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Vol. 58 No.  10 Friday, January 15, 1993  p 4768 (Rule)            
    1/4134  

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-4553-4]

Protection of Stratospheric Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.



SUMMARY: This final rule establishes regulations to ban
nonessential
products releasing Class I ozone-depleting substances under 
section 610 of the Clean Air Act (the Act), as amended. This
rulemaking prohibits the sale, distribution, or offer of sale 
or distribution, in interstate commerce of certain products 
containing or produced with CFCs after specified dates. In
addition, 
it restricts the sale of chlorofluorocarbon-containing cleaning 
fluids for electronic and photographic equipment to commercial 
entities.

   The products affected by this rulemaking use or contain
chlorofluorocarbons 
(CFCs), the chemicals designated as Group I or Group III substances

by the Clean Air Act, as amended in 1990. The products affected 
by this rulemaking include chlorofluorocarbon-propelled plastic 
party streamers and noise horns; chlorofluorocarbon-containing 
cleaning fluids for electronic and photographic equipment; plastic 
flexible and packaging foams produced with CFCs, except foam 
used in coaxial cable; and all aerosol products and pressurized 
dispensers containing chlorofluorocarbons except the following 
products: certain medical devices, lubricants, coatings or cleaning

fluids for electrical or electronic equipment that contain CFC-
11, CFC-12, or CFC-113, but no other CFCs, for nonpropellant 
purposes only; lubricants, coatings or cleaning fluids for aircraft

maintenance that contain CFC-11 or CFC-113, but no other CFCs; 
mold release agents that contain CFC-11 or CFC-113, but no other 
CFCs, and that are used in the production of plastic and
elastomeric 
materials; spinnerette lubricant/cleaning sprays that contain 
CFC-114, but no other CFCs, and that are used for synthetic 
fiber production; containers of CFCs used in plasma etching; 
document preservation sprays that contain CFC-113, but no other 
CFCs; and red pepper bear repellent sprays that contain CFC-
113, but no other CFCs.

DATES: This final rule bans the sale, distribution, or offer 
of sale or distribution, in interstate commerce of the products 
specifically mentioned in .82.66(a) effective on February 16, 
1993. This rulemaking also bans the sale or distribution of 
the products specifically mentioned in .82.66(b) effective on 
February 16, 1993. Finally, this rulemaking bans the sale,
distribution, 
or offer of sale or distribution, in interstate commerce of 
the other products identified in this rulemaking as nonessential 
effective January 17, 1994.

ADDRESSES: Comments and materials supporting this rulemaking 
are contained in Air Docket No. A-91-39 (Docket) at: U.S.
Environmental 
Protection Agency (LE-131), 401 M Street, SW., Washington, DC 
20460. The Docket is located in room M-1500, First Floor Waterside 
Mall. Materials relevant to this rulemaking may be inspected 
from 8:30 a.m. to 12 noon and from 1:30 to 3:30 p.m. Monday 
through Friday.

FOR FURTHER INFORMATION CONTACT: Matthew C. Dinkel at (202) 
233-9200, Stratospheric Protection Division, Office of Atmospheric 
Programs, Office of Air and Radiation, 6202J, 401 M Street SW., 
Washington, DC 20460.

SUPPLEMENTARY INFORMATION: The contents of today's preamble 
are listed in the following outline:

I. Background
A. Overview of Problem
B. Aerosol Ban in 1978
C. Montreal Protocol
D. Excise Tax
E. London Amendments to the Montreal Protocol
F. Clean Air Act Amendments of 1990, Title VI
G. Accelerated Phaseout of CFC Production
H. Requirements of Section 610
  1. Class I Products
  2. Class II Products
  3. Medical Products
I. Notice of Proposed Rulemaking
  1. Specified Class I Products
  a. CFC-propelled Plastic Party Streamers
  b. CFC-propelled Noise Horns
  c. CFC-containing Cleaning Fluids for Noncommercial Electronic
    and Photographic Equipment
  2. Criteria
  a. Criteria in the 1978 ban
  b. Criteria in the Clean Air Act Amendments of 1990
  1. Purpose or Intended Use of the Product
  2. Technological Availability of Substitutes
  3. Safety and Health
  4. Other Relevant Factors
  3. Other Products
  a. Flexible and Packaging Foams Containing CFCs
  b. Aerosols and Pressurized Dispensers Containing CFCs
  4. Recordkeeping Requirements
II. Summary of Public Participation
III. Responses to Major Public Comments
A. Scope and Specific Provisions of Nonessential Rule
  1. Support for the Proposed Rule
  2. Scope of Regulation
  3. President's Moratorium on Regulation
  4. Section 608 and EPA Authority
  5. Criteria for Determining Nonessentiality
  6. Definition of the Term "Product"
  7. Definition of Interstate Commerce and Grandfathering Existing 
    Product Inventories
  8. Verification, Recordkeeping and Public Notice Requirements
  9. Imports and Exports
  10. Future Regulation
  11. Regulatory Impact Analysis
B. Specific End Uses
  1. Statutorily Mandated Products
  2. Foams
  a. Distinction Between Insulating Foams and Flexible and
Packaging 
    Foams

  b. Flexible Polyurethane Slabstock Foam 
  c. Integral Skin Foam
  d. Closed Cell Polyurethane Foam Used As Flotation Foam
  e. Coaxial Cable
  f. Aerosol Polyurethane Foam
  3. Aerosols and Pressurized Dispensers
  a. Impact of 1994 Class II Nonessential Products Ban
  b. Clarification of "Aerosols and Other Pressurized Dispensers"
  c. Dusters and Freeze Sprays
  d. Lubricants, Coatings, and Cleaning Fluids for Electrical 
    or Electronic Equipment
  e. Spinnerette Lubricant/Cleaning Sprays
  f. Plasma Etching
  g. Red Pepper Bear Repellent Sprays
  h. Document Preservation Sprays
  4. Medical Products
  5. Halon Fire Extinguishers for Residential Use
  6. Other Products
IV. Summary of Today's Final Rule
A. Authority
B. Purpose
C. Definitions
D. Prohibitions
E. Nonessential Products and Exceptions
F. Verification and Public Notice Requirements
V. Effective Dates
VI. Judicial Review
VII. Summary of Supporting Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
VIII. References

I. Background

A. Overview of the Problem

   The stratospheric ozone layer protects the earth from
ultraviolet 
(UV-B) radiation. Research conducted in the 1970s indicated 
that when certain industrially produced halocarbons (including 
chlorofluorocarbons, halons, carbon tetrachloride and methyl 
chloroform) are released into the environment, they migrate 
into the stratosphere, where they contribute to the depletion 
of the ozone layer. To the extent depletion occurs, penetration 
of the atmosphere by UV-B radiation increases. Increased exposure 
to UV-B radiation produces health and environmental damage, 
including increased incidence of skin cancer and cataracts, 
suppression of the immune system, damage to crops and aquatic 
organisms, increased formation of ground-level ozone and increased 
weathering of outdoor plastics.

B. Aerosol Ban in 1978

   The initial hypothesis linking chlorofluorocarbons and depletion

of the stratospheric ozone layer appeared in a paper by Mario 
J. Molina and F.S. Rowland in 1974. Since that time, the scientific

community has made remarkable advances in understanding atmospheric

processes affecting stratospheric ozone and in analyzing data 
measuring ozone depletion, both over the polar regions and
globally. 
In response to the initial research indicating that CFCs could 
cause stratospheric ozone depletion, EPA, the Consumer Product 
Safety Commission, and the Food and Drug Administration (FDA) 
acted on March 17, 1978 (43 FR 11301; 43 FR 11318) to ban the 
use of CFCs as aerosol propellants in all but "essential
applications." 
During the mid-1970s, the use of CFCs as aerosol propellants 
constituted over 50 percent of total CFC consumption in the 
United States. The 1978 ban reduced the use of CFCs in aerosols 
in this country by approximately 95 percent, eliminating nearly 
half of the total U.S. consumption of these chemicals.
   Some CFC aerosol products were specifically exempted from 
the ban based on a determination of "essentiality" (See Essential 
Use Determinations-Revised, 1978). Other pressurized dispensers 
containing CFCs were excluded from the ban because they did 
not fit the narrow definition of "aerosol propellant."
   In the years following the aerosol ban, CFC use increased 
significantly in refrigeration, foam and solvent applications. 
By 1985, CFC use in the United States had surpassed pre-1974 
levels and represented 29 percent of total global CFC consumption. 

C. Montreal Protocol

   Scientific research in the late 1970s and early 1980s produced 
additional evidence that chlorine and bromine could destroy 
stratospheric ozone on a global basis. In 1985, scientists
discovered 
the existence of a substantial seasonal reduction in stratospheric 
ozone (an ozone "hole") over Antarctica each year. Subsequent 
studies linked this phenomenon to CFCs and suggested that some 
depletion of global stratospheric ozone levels had already
occurred. 
In response to this research, many members of the international 
community began discussing the need for an international agreement 
to reduce global production of ozone-depleting substances. Because 
releases of CFCs from all areas mix in the atmosphere to affect 
stratospheric ozone globally, efforts to reduce emissions from 
specific products by only a few nations could quickly be offset
by increases in emissions from other nations, leaving the risks 
to the ozone layer unchanged. EPA evaluated the risks of ozone 
depletion in Assessing the Risks of Trade Gases That Can Modify 
the Stratosphere (1987) and concluded that an international 
approach was necessary to effectively safeguard the ozone layer.
   EPA participated in negotiations organized by the United 
Nations Environment Programme (UNEP) to achieve an international 
agreement to protect the ozone layer. In September 1987, the 
United States and 22 other countries signed the Montreal Protocol 
on Substances that Deplete the Ozone Layer. The 1987 Protocol 
called for a freeze in the production and consumption (defined 
as production plus imports minus exports of bulk chemicals) 
of CFC-11, -12, -113, -114, -115, and halon 1211, 1301 and 2402 
at 1986 levels beginning in 1989, and a phased reduction of 
the CFCs to 50 percent of 1986 levels by 1998. Currently, 83 
nations representing over 90 percent of the world's consumption 
are parties to the Protocol.
   In its August 12, 1988 final rulemaking (53 FR 30566) EPA 
promulgated regulations implementing the requirements of the 
1987 Protocol through a system of tradable allowances. EPA
apportioned 
these allowances to producers and importers of these "controlled 
substances" based on their 1986 levels. To monitor industry's 
compliance with the production and consumption limits, EPA required

recordkeeping and quarterly reporting and conducted periodic 
compliance reviews and inspections. This regulation took effect 
July 1, 1989.

D. Excise Tax

   As part of the Omnibus Budget Reconciliation Act of 1989, 
the United States Congress levied an excise tax on the sale 
of CFCs and other chemicals which deplete the ozone layer, with 
specific exemptions for exports and recycling. The tax went 
into effect on January 1, 1990, and increases annually. By raising 
the cost of virgin controlled substances, the tax has created 
an incentive for industry to shift out of these substances and 
increase recycling activities, and it has encouraged the
development 
of a market for alternative chemicals and processes. The original 
excise tax was amended by the Omnibus Budget Reconciliation 
Act of 1990 to include methyl chloroform, carbon tetrachloride 
and the other CFCs regulated by the amended Montreal Protocol 
and title VI of the Clean Air Act, as amended in 1990. The Energy 
Policy Act of 1992 revised and further increased the excise 
tax effective January 1, 1993.

E. London Amendments to the Montreal Protocol

   Under the Montreal Protocol, the Parties are required to 
assess the science, economics and alternative technologies related 
to protection of the ozone layer every two years. In response 
to this requirement, the Parties issued their first scientific 
assessment in 1989 (see Environmental Effects Panel Report). 
In preparing the first scientific assessment required under 
the Protocol, scientists examined the data from the land-based 
monitoring stations and the total ozone measurement spectrometer 
(TOMS) satellite data and concluded that there had been global 
ozone depletion over the northern hemisphere as well. The
scientific 
assessment reported that a three to five percent decrease in 
ozone levels had occurred between 1969 and 1986 in the northern 
hemisphere in the winter months that could not be attributed 
to known natural processes. In addition, further studies of 
the Antarctic ozone hole implicated chlorine as the main cause 
of ozone depletion over the Antarctic, and linked high chlorine 
concentrations to CFCs and other chlorinated and brominated 
compounds.
   At the Second Meeting of the Protocol Parties, held in London 
on June 29, 1990, the Parties responded to this new evidence 
by reassessing and tightening the restrictions placed on these 
chemicals. The Parties to the Protocol passed amendments and 
adjustments which called for a full phaseout of the regulated 
CFCs and halons by 2000, a phaseout of carbon tetrachloride 
and "other CFCs" by 2000 and a phaseout of methyl chloroform 
by 2005. The Parties also passed a non-binding resolution regarding

the use of hydrochlorofluorocarbons (HCFCs) as interim substitutes 
for CFCs. Partially halogenated HCFCs add much less chlorine 
to the stratosphere than the fully halogenated CFCs, but still 
pose a significant threat to the ozone layer (See 56 FR 2420, 
January 22, 1991 for more information on the relative effects 
of different ozone-depleting substances).

F. Clean Air Act Amendments of 1990, Title VI

   On November 15, 1990 the Clean Air Act Amendments of 1990 
were signed into law. The Act required EPA to publish two lists 
of ozone-depleting substances, based on their ozone-depleting 
potentials (ODPs). The Act categorized CFCs, halons, carbon 
tetrachloride and methyl chloroform as Class I substances,
substances 
that possess a high potential for destroying stratospheric ozone 
molecules. It also designated hydrochlorofluorocarbons as Class 
II substances, substances with a lesser, but still significant 
ozone depletion potential.
   The other requirements in title VI of the amended Act include 
phaseout controls similar to those in the London Amendments, 
although the interim targets are more stringent and the phaseout 
date for methyl chloroform is earlier (2002). EPA has already 
promulgated regulations implementing the phaseout provisions 
contained in section 604 of the Act (57 FR 33754, July 30, 1992). 
Unlike the amended Montreal Protocol, the Clean Air Act, as 
amended, also restricts the uses of controlled ozone-depleting 
substances, including provisions to reduce emissions of controlled 
substances to the "lowest achievable level" in all use sectors 
(section 608); requires the recovery and recycling of refrigerant 
when servicing motor vehicle air conditioners (section 609); 
bans nonessential products (section 610); mandates warning labels 
(section 611); establishes a safe alternatives program (section 
612); and requires revision of federal procurement policies 
to minimize government use of ozone-depleting substances (section 
613). With the exception of the rulemakings implementing the 
phaseout (57 FR 33754, July 30, 1992) and section 609 (57 FR 
31242, July 14, 1992), EPA is currently in the process of
promulgating 
regulations pursuant to these statutory provisions.
   One of the provisions of the Act which complements the
nonessential 
products ban under section 610 is the Significant New Alternatives 
Policy (SNAP) program established under section 612. The SNAP 
program has been established to evaluate the overall effects 
on human health and the environment of the potential substitutes 
for ozone-depleting substances. The SNAP program is a powerful 
tool to identify substitutes that may pose unnecessary
environmental 
hazards. Through review of substitutes, the Agency can ensure 
that environmentally preferable alternatives will be developed. 
Rules promulgated under SNAP will render it unlawful to replace 
on ozone-depleting substance with a substitute chemical or
technology 
that may present adverse effects to human health and the
environment 
if the Administrator determines that some other alternative 
is commercially available and that this alternative poses a 
lower overall threat to human health and the environment.
   It is important to note that the SNAP program will promote 
the widest range of environmentally acceptable substitutes. 
The SNAP program will in no case ban all of the available
substitutes. 
Under section 612, the SNAP program is only authorized to prohibit 
a particular substitute for a Class I or Class II substance 
when another, less environmentally harmful substitute is available.

Consequently, there is no possibility that the effect of today's 
rulemaking and subsequent regulatory action under section 612 
will be to ban the use of all available substitutes in a particular

application.

G. Accelerated Phaseout

   Significant scientific advances have continued since the 
1989 Protocol assessments. Several reports since that time have 
indicated that ozone depletion is occurring more rapidly than 
was previously believed. The most recent Protocol Scientific 
Assessment was issued on December 17, 1991. The report, entitled 
Scientific Assessment of Ozone Depletion: 1991, analyzed
information 
collected from ground- and satellite-based monitoring instruments. 
This information indicated that there had been significant
decreases 
in total-column ozone in winter, in both the northern and southern 
hemispheres at middle and high latitudes. This data also indicated,
for the first time, the depletion of stratospheric ozone in 
these latitudes in spring and summer as well. The study reported 
no significant depletion in the tropics. The TOMS data indicated 
that for the period 1979 to 1991, decreases in total ozone at 
45 degrees south ranged between 4.4 percent in the fall to as 
much as 6.2 percent in the summer, while depletion at 45 degrees 
north ranged between 1.7 percent in the fall to 5.6 percent 
in the winter. Data from the ground-based Dobson network confirmed 
these losses in total column ozone during the twelve-year period, 
but these findings show almost twice as much depletion as the 
average rate measured by the ground-based network alone over 
a twenty-year period. Based on this new data, scientists have 
concluded that the ozone in the stratosphere during the 1980s 
disappeared at a much faster rate than experienced in the previous 
decade.
   The recent UNEP Scientific Assessment also included new data 
on the estimated ozone depletion potentials (ODPs) of ozone-
depleting substances. The assessment placed the ODP of methyl 
bromide, a chemical previously thought to have an insignificant 
effect on stratospheric ozone, at 0.6, with a range of uncertainty 
between 0.44-0.69. The Executive Summary of the Assessment stated 
that, "if the anthropogenic sources of methyl bromide are
significant 
and their emissions can be reduced, then each ten percent reduction

in methyl bromide would rapidly result in a decrease in
stratospheric 
bromide of 1.5 pptv (parts per trillion by volume), which is 
equivalent to a reduction in chlorine of 0.045 to 0.18 ppbv 
(parts per billion by volume). This gain is comparable to that 
of a three-year acceleration of the scheduled phaseout of the 
CFCs."
   Several months after the release of the Scientific Assessment, 
on February 3, 1992, NASA released preliminary data acquired 
by the ongoing Arctic Airborne Stratospheric Experiment-II (AASE-
II), a series of high-altitude instrument-laden plane flights 
over the northern hemisphere (see Interim Findings: Second Airborne

Arctic Stratospheric Expedition). Additional data were also 
obtained from the initial observations by NASA's Upper Atmosphere 
Research Satellite (UARS), launched in September 1991. The
measurements 
showed higher levels of chlorine oxide (ClO) (the key agent 
responsible for stratospheric ozone depletion) over Canada and 
New England than were observed during any previous series of 
aircraft flights. These levels are only partially explainable 
by enhanced aerosol surface reactions due to the emissions from 
the Mount Pinatubo volcano. The expedition also found that the 
levels of hydrogen chloride (HCl), a chemical species that stores 
atmospheric chlorine, were observed to be low, providing new 
evidence for the existence of chemical processes that convert 
stable forms of chlorine into ozone-destroying species. The 
high ClO and bromide oxide (BrO) levels observed indicated that 
human-induced rates of ozone destruction could be as high as 
one to two percent per day for short periods of time beginning 
in late January.
   In addition, the levels of nitrogen oxides (NOx) were also 
observed to be low, providing evidence of reactions that take 
place on the surface of aerosols that diminish the ability of 
the atmosphere to control the buildup of chlorine radicals. 
New observations of HCl and nitrogen oxide (NO) imply that chlorine

and bromide are more effective in destroying ozone than previously 
believed.
   The NASA findings indicate that in late January of 1992, 
the Arctic air was chemically "primed" for the potential formation 
of a springtime ozone "hole" similar to that formed each spring 
over Antarctica. These findings also are consistent with theories 
that ozone depletion may occur on aerosols anywhere around the 
globe, and not only on polar stratospheric clouds as was previously

believed.
   After collecting more data, NASA released an April 30, 1992 
"End of Mission Statement," which indicated that while a rise 
in stratospheric temperatures in late January apparently prevented 
severe ozone depletion from occurring in the Arctic this year, 
observed ozone levels were nonetheless lower than had previously 
been recorded for this time of year. This information has further 
increased the Agency's concern that significant ozone loss may 
occur over populated regions of the earth, thus exposing humans, 
plants and animals to harmful levels of UV-B radiation, and 
adds support to the need for further efforts to limit emissions 
of anthropogenic chlorine and bromide.
   In response to these findings, President Bush announced on 
February 11, 1992 that the United States would unilaterally 
accelerate the phaseout schedule for ozone-depleting substances, 
and he called upon other nations to agree to an accelerated 
phaseout schedule as well. At the Fourth Meeting of the Parties 
to the Montreal Protocol, held in Copenhagen, Denmark on November 
25, 1992, the Parties adopted a more stringent phaseout schedule. 
Under the new agreement, CFC production will be capped at 25 
percent of the 1986 baseline in 1994, and production of CFCs, 
carbon tetrachloride, and methyl chloroform for all but essential 
uses will be completely phased out by 1996. Production of halons, 
except for essential uses, will be phased out by 1994. EPA has 
begun the rulemaking process for implementing this accelerated 
phaseout.
   The accelerated phaseout will have a significant impact upon 
the products affected by today's rulemaking. The combined effects 
of the excise tax and the original phaseout schedule have already 
created strong incentives for industry to find substitutes for 
Class I substances. In fact, current U.S. production of Class 
I substances is more than 40 percent below the levels set by 
the Montreal Protocol. The accelerated phaseout will significantly 
increase the incentives for Class I substance users to switch 
to alternatives. Consequently, even where a particular use of 
a Class I substance is not included in the nonessential products 
ban, the substance in question will rapidly become scarce and 
expensive, and industry will be forced to find alternative
chemicals 
or processes.
   The accelerated phaseout dramatically reduces the need for 
aggressive EPA action under section 610. When Congress passed 
the Clean Air Act Amendments of 1990, it required the phaseout 
of the production of Class I substances by the year 2000.
Consequently, 
there was a period of eight years in which the Class I nonessential

products ban would have had an effect on manufacturers of these 
products. However, the Montreal Protocol Parties' decision to 
end production of CFCs by January 1, 1996 means that the ban 
on nonessential products authorized in section 610(b)(3) will 
only be in effect for two years before the complete phaseout 
takes effect. As a result, EPA believes that other provisions 
of title VI provide more effective and efficient means of
implementing 
the Act's goals of protecting the earth's stratospheric ozone 
layer.
   The final rule reflects this belief by banning only those 
products specified in sections 610(b) and 610(d) that contain 
Class I substances. Section 610(d)(1) is self-executing and 
bans the sale or distribution of foam and aerosol products
containing 
or produced with Class II substances after January 1, 1994 unless 
an exception is granted under paragraph 610(d)(2). The Agency 
believes that aerosols and plastic flexible and packaging foams 
containing or produced with Class I substances should also be 
subject to the nonessential products ban to avoid providing 
incentives for manufacturers to revert to CFC use when the less 
environmentally harmful Class II substances are banned in these 
applications after January 1, 1994 under section 610(d). Moreover, 
the Agency believes that the use of CFCs in these two sectors 
is nonessential; as discussed elsewhere in this preamble, a 
number of substitutes for CFCs have already been adopted in 
these sectors. The fact that the affected industries have already 
largely made the transition out of CFCs may have encouraged 
Congress to ban the use of Class II substances in aerosols and 
noninsulating foams under section 610(d) of the statute.

H. Requirements Under Section 610

1. Class I Products

   Title VI of the Act divides ozone-depleting chemicals into 
two distinct classes based on their ability to destroy ozone 
in the stratosphere. Class I substances are those substances 
identified as such in section 602, as well as any substance 
subsequently identified that has an ozone depletion potential 
(ODP) of 0.2 or greater (ozone depletion potential reflects 
the destructiveness of an ozone-depleting substance relative 
to CFC-11). Class I is comprised of CFCs, halons, carbon
tetrachloride 
and methyl chloroform. Class II substances have ODPs lower than 
0.2; at this time, Class II consists exclusively of HCFCs (see 
listing notice, January 22, 1991; 56 FR 2420). EPA is currently 
evaluating other substances to determine whether they meet the 
criteria for Class I or Class II substances.
   Section 610(b) of the Act calls on EPA to identify nonessential 
products that release Class I substances into the environment 
(including any release during manufacture, use, storage, or 
disposal) and to prohibit any person from selling or distributing 
any such product, or offering any such product for sale or
distribution, 
in interstate commerce.
   Section 610(b) (1) and (2) specifies products to be prohibited 
under this requirement, including "chlorofluorocarbon-propelled 
plastic party streamers and noise horns" and "chlorofluorocarbon-
containing cleaning fluids for noncommercial electronic and 
photographic equipment."
   Section 610(b)(3) extends the prohibition to other products 
determined by EPA to release Class I substances and to be
nonessential. 
In determining whether a product is nonessential, EPA is to 
consider the following criteria: the purpose or intended use 
of the product, the technological availability of substitutes 
for such product and for such Class I substance, safety, health, 
and other relevant factors.
   Section 610(a) provides that EPA is to promulgate final
regulations 
for the Class I products ban within one year after enactment 
of the Clean Air Act Amendments of 1990 (November 15, 1991). 
Section 610(b) provides that 24 months after enactment (November 
15, 1992), it shall be unlawful to sell or distribute any
nonessential 
product to which regulations under section 610 apply. Since 
this rulemaking implementing section 610(b) has been published 
after November 15, 1992, there were no prohibitions on nonessential

products in effect. This regulation will take effect on February 
16, 1993.

2. Class II Products

   Section 610(d) (1) states that after January 1, 1994, it 
shall be unlawful for any person to sell or distribute, or offer 
for sale or distribution, in interstate commerce-(A) any aerosol 
product or other pressurized dispenser which contains a Class 
II substance; or (B) any plastic foam product which contains, 
or is manufactured with, a Class II substance. Section 610(d)(2) 
authorized EPA to grant exceptions to the Class II ban in certain 
circumstances.
   EPA believes that, unlike the Class I ban, the Class II ban 
is self-executing and that, consequently, EPA is not required 
to promulgate regulations within one year of enactment under 
section 610 to implement the Class II ban.{1} Section 610(d) 
bans the sale of the specified Class II products without any 
reference to required regulations. EPA believes it has the
authority 
to issue regulations as necessary to implement the Class II 
ban under sections 610 and 301 of the Clean Air Act, as amended, 
and intends to do so at a later date in order to establish a 
procedure for granting exceptions under section 610(d)(2). This 
will not, however, affect the effective date of the Class II 
ban. EPA is currently in the process of drafting proposed
regulations 
for this purpose.

      │{1} Although the legislative history of section 610 is 
      │unclear on this point, the Senate Statement of Managers

      │specifically states that the section 608 ban on the
venting 
      │of refrigerants, which like the Class II ban is an
outright 
      │prohibition, is self-executing and will take effect on 
      │the stated date even if that date is in advance of EPA 
      │regulations implementing the ban. See Congressional
Record, 
      │page S16948, October 27, 1990.

3. Medical Products

   Section 610(e) states that nothing in this section shall 
apply to any medical devices as defined in section 601(8). Section 
601(8) defines "medical device" as any device (as defined in 
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321))
diagnostic 
product, drug (as defined in the Federal Food, Drug, and Cosmetic 
Act), and drug delivery system-(A) if such device, product, 
drug, or drug delivery system utilizes a Class I or Class II 
substance for which no safe and effective alternative has been 
developed and, where necessary, approved by the Commissioner 
of the Food and Drug Administration (FDA); and (B) if such device, 
product, drug, or drug delivery system, has, after notice and 
opportunity for public comment, been approved and determined 
to be essential by the Commissioner in consultation with the 
Administrator.
   The FDA currently lists 12 medical devices for human use 
as essential uses of CFCs in 21 CFR 2.125. These devices consist 
of certain metered dose inhalers (MDIs), contraceptive vaginal 
foams, intrarectal hydrocortisone acetate, polymyxin B sulfate-
bacitracin-zinc-neomycin sulfate soluble antibiotic powder without 
excipients for topical use, and anesthetic drugs for topical 
use on accessible mucous membranes where a cannula is used for 
application.
   No medical products as defined above are banned by the
provisions 
of today's rulemaking. Today's regulation specifically exempts 
medical products contained in the FDA's list of essential uses 
(21 CFR 2.125), as well as gauze bandage adhesives and adhesive 
removers, lubricants for pharmaceutical and tablet manufacture, 
and topical anesthetic and vapocoolant products. Regulation 
of medical products may be considered at a later date under 
the conditions in section 610(e) and section 601(8).

I. Notice of Proposed Rulemaking

   On January 16, 1992, EPA published a notice of proposed
rulemaking 

(NPRM 57 FR 1992) addressing issues related to the prohibition 

required by section 610 of the Act on the sale or distribution 

in interstate commerce of nonessential Class I products.

   In developing the proposed rule, EPA was assisted by a
subcommittee 

of the standing Stratospheric Ozone Protection Advisory Committee 

(STOPAC). The STOPAC consists of members selected on the basis 

of their professional qualifications and diversity of perspectives 

and provides balanced representation from the following sectors: 

industry and business; academic and educational institutions; 

federal, state and local government agencies; and environmental 

groups. Since its formation, the STOPAC has provided advice 

and counsel to the Agency on policy and technical issues related 

to the protection of the stratospheric ozone layer.

   In 1990, members were asked to participate in subgroups of 

the STOPAC to assist the Agency in developing regulations under 

the new requirements of title VI of the Clean Air Act, as amended 

in 1990. To date, the Subcommittee on Nonessential Products 

has met twice, reviewing two in-depth briefing packets (contained 

in Docket A-91-39) and offering comments and technical expertise 

on the January 16 proposed rule. 

   In its NPRM, EPA proposed definitions for the terms
"chlorofluorocarbon," 

"commercial," "consumer," "distributor," "product," and "release." 

These proposed definitions would apply only to regulations under 

section 610. In describing these definitions, EPA discussed 

the legal and policy aspects of the various options considered. 

The NPRM also discussed at great length the criteria used to 

determine whether a product was nonessential under section
610(b)(3). 

The proposed rule listed the products identified as nonessential 

by the statute, as well as the products which the Agency proposed 

to identify as nonessential. The proposed rule called for banning 

the sale or distribution of the CFC-containing products
specifically 

mentioned in the statute, and, in addition, plastic flexible 

or packaging foams and all aerosol products except seven uses 

which were specifically identified. The NPRM also explained 

EPA's decision to include aerosols and pressurized dispensers 

containing CFCs, as well as plastic flexible and packaging foams 

produced with CFCs in the Class I nonessential products ban. 

Finally, the NPRM requested comments on whether halon fire
extinguishers 

for residential use should be banned as nonessential products.

1. Specified Class I Products

   a. CFC-propelled plastic party streamers. EPA found only 

one type of product that fits the description "chlorofluorocarbon-

propelled plastic party streamers" as set forth in section
601(b)(1). 

String confetti is a household novelty product comprised of 

a plastic resin, a solvent, and a propellant mixed together 

in a pressurized can. When the dispensing nozzle is depressed, 

blowing action converts the resin into plastic foam streamers 

and propels them a few feet. Once popular at children's parties, 

string confetti was commonly known by its commercial name "silly 

string."

   String confetti was originally manufactured using CFC-12 

as the blowing agent. However, EPA is unaware of any company 

that currently uses CFCs in this type of product. The use of 

CFC-12 in string confetti was not prohibited by EPA's 1978 aerosol 

ban because technically the CFC also served as an active ingredient


in the product and not exclusively as an aerosol propellant. 

Manufacturers switched initially to hydrocarbon systems but, 

due to flammability concerns, have since moved to HCFC-22 systems. 

HCFC-22 is a Class II substance with an ozone depletion potential 

of 0.05 (one twentieth that of CFC-12) (see listing notice of 

ozone depleting substances 56 FR 2420; January 22, 1991).

   EPA believes that since the excise tax and production limits 

on CFCs will continue to raise their cost, it is unlikely that 

they would again be used to propel string confetti. Nonetheless, 

as required by the statute, the proposed rule called for a
prohibition 

on the sale or distribution of any CFC-propelled plastic party 

streamers.

   b. CFC-propelled noise horns. A noise horn is generally regarded


as a product from which the high dispensing pressure of a
propellant 

produces a loud piercing sound that can travel long distances. 

EPA is aware of several products that could fit the description 

of "noise horns" in section 610(b)(10), including marine safety 

noise horns, sporting event noise horns, personal safety noise 

horns, wall-mounted industrial noise horns used as alarms in 

factories and other work areas, and intruder noise horns used 

as alarms in homes and cars.

   In the past, many boaters used noise horns propelled by CFC-

12 to meet U.S. Coast Guard regulations requiring vessels of 

all sizes to carry a noise-making signalling device. One of 

the largest manufacturers of such "marine safety" noise horns 

reported that all of its horn products except for the smallest 

canister (2.1 ounces) had either been reformulated to use HCFC-

22 or dropped from its product line. According to this
manufacturer, 

the reason that CFC-12 is still used in its smallest canister 

is that the Department of Transportation (DOT) has not yet approved


a canister of that size to accommodate the different pressure 

of HCFC-22.

   The use of CFC-12 in noise horns was not prohibited by the 

1978 aerosol ban because the CFC served as the sole ingredient 

in the product and not merely as a propellant. EPA's report 

Alternative Formulations to Reduce CFC Use in U.S. Exempted 

and Excluded Aerosol Products (Alternative Formulations) states 

that as of September 1989, "several manufacturers" of noise 

horns had switched from CFC-12 to HCFC-22. Noise horns propelled 

with HCFC-22 meet or exceed all Coast Guard requirements and 

are available in canisters as small as 4.5 ounces. EPA believes 

that 4.5 ounce canisters are sufficiently small to satisfy consumer


needs for all recreational, boating, automotive and home uses, 

and should not cost significantly more than the currently available


2.1 ounces size that uses CFC-12. Other alternative propellants 

for noise horns include HCFC-142b (in a mixture with HCFC-22), 

hydrocarbons, and hydrofluorocarbon (HFC)-134a. Hydrocarbons 

have not been commonly used due to flammability concerns. HFC-

134a appears promising as a non-chlorinated substitute that 

unlike HCFC-22 poses no threat to the ozone layer. HFC-134a 

has recently become available in limited commercial quantities. 

EPA believes that the current and potential availability of 

effective substitutes (including either the use of a different 

propellant or a slightly larger canister pending DOT approval 

of the smallest) indicates Congressional intent to prohibit 

the sale and distribution of any CFC-propelled noise horns, 

including those which serve as safety devices.

   Other products propelled with CFCs that appear to fit the 

description "noise horns" in section 610(b)(1) include sporting 

event noise horns, personal safety noise horns, wall-mounted 

industrial noise horns used as alarms in factories and other 

work areas, and intruder noise horns used as alarms in homes 

and cars. The availability of substitutes for these other noise 

horn products is similar to that of the marine safety noise 

horns. In fact, the same noise horn product may perform several 

of the uses listed above.

   As with the party streamers, EPA believes that the excise 

tax and the limits on supply have raised the prices of CFCs 

so much that it may already be more economical to use substitutes 

in noise horns. Nevertheless, in the January 16, 1992 NPRM, 

EPA proposed to ban all noise horns propelled with CFCs, as 

required by the statute.

   c. CFC-containing cleaning fluids for noncommercial electronic 

and photographic equipment. Cleaning fluids are generally used 

to remove oxides, contaminants, dust, dirt, oil, airborne
chemicals, 

fingerprints, and fluxes (the waste produced during soldering) 

from electronic and photographic equipment. These fluids are 

currently comprised of CFCs, HCFCs, methyl chloroform or alcohols, 

either alone or in mixtures.

   EPA identified several products that it considered to be 

CFC-containing cleaning fluids for the uses described in section 

610(b)(2). These products fall into four broad categories: solvent 

wipes containing CFC-113 (pre-moistened cloths), liquid packaging 

containing CFC-113 (applied with a cloth or other applicator), 

solvent sprays containing CFC-113 and/or CFC-11 (sprayed from 

a pressurized container through a nozzle or tube), and gas sprays 

containing CFC-12 (pressurized fluid released as a gas to
physically 

blow particles from a surface). These cleaning fluid products 

include tape and computer disk head cleaners, electronic circuit 

and contact cleaners, film and negative cleaners, flux removers, 

and camera lens and computer keyboard dusters.

   EPA believes that the tax and the limits on supply are providing


an ever-increasing incentive for users of noncommercial cleaning 

fluids to switch from products containing CFCs to alternatives. 

Nevertheless, the January 16, 1992 NPRM proposed to ban the 

noncommercial use of these products, as required by the statute.

2. Criteria

   Section 610 authorizes the Administrator to identify and 

ban nonessential products in addition to those specifically 

addressed in the Act. In keeping with Congressional intent, 

EPA examined products that were not specifically addressed in 

the statute. Section 610(b)(3) provides that in examining these 

products, the Administrator consider the purpose or intended 

use of the product, the technological availability of substitutes 

for such product and for such Class I substance, safety, health, 

and other relevant factors. The statute requires EPA to consider 

each criterion but does not outline either a ranking or a
methodology 

for comparing their relative importance, not does it require 

that any minimum standard within each criterion be met. EPA 

considered all of these criteria in determining whether a product 

was nonessential. In addition, EPA reviewed the criteria used 

in the development of its 1978 ban on aerosol propellant uses 

of CFCs under the Toxic Substances Control Act (TSCA). All of 

these criteria are discussed below.

   a. Criteria in the 1978 Ban. The criteria used by EPA to 

determine which products should be exempted from the 1978 ban 

as "essential uses" were: (1) "Nonavailability" of alternative 

products; (2) economic significance of the product, including 

the economic effects of removing the product from the market; 

(3) environmental and health significance of the product; and 

(4) effects on the "quality of life" resulting from no longer 

having the product available or from using an alternative produce 

(See Essential Use Determinations-Revised, 1978). These criteria 

are in many ways comparable to those included in section 610.

   The background document supporting the 1978 ban states that 

when granting "essential use" exemptions, EPA believed that 

no single factor was sufficient to determine that a product 

or particular use was essential. The lack of available substitutes 

alone, for example, was not sufficient for EPA to exempt a product.


The product also had to provide an important societal benefit 

to obtain an "essential use" exemption. If an alternative did 

exist, however, EPA decided that this product or use was not 

"essential," and that it was not necessary to make any judgements 

concerning the other criteria.

   In other words, if EPA determined that an aerosol product 

had an available alternative, EPA did not need to make a
determination 

on whether its purpose was or was not important in order to 

deny any petition for exemption for that product under the 1978 

rule.

   b. Criteria in the Clean Air Act Amendments of 1990-1. The 

Purpose of Intended Use of the Product. EPA interprets this 

criterion as relating to the importance of the product,
specifically 

whether the product is sufficiently important that the benefits 

of its continued production outweigh the associated danger from 

the continued use of a Class I ozone-depleting substance in 

it, or alternatively, whether the product is so unimportant 

that even a lack of available substitutes might not prevent 

the product from being considered nonessential. For example, 

the statute seems to indicate that the purpose or intended use 

of medical products is important enough to preclude EPA from 

banning as nonessential any medical product without an "effective 

alternative," and that, conversely, party streamers are not 

important enough to warrant the continued use of CFCs regardless 

of the availability of substitutes.

   However, the other examples of nonessential products cited 

by Congress for EPA to ban at a minimum do not provide as clear-

cut an illustration of this criterion. Noise horns, for example, 

are primarily used for safety reasons. Nor is the use of cleaning 

fluids on noncommercial photographic and electronic equipment 

generally considered to be frivolous. EPA believes that these 

examples of nonessential products provided by Congress show 

that while it is critical to consider the purpose or intended 

use of a product along with the other specified criteria, Congress 

did not intend to limit EPA's authority to consideration of 

only the intended use.

   A possible corresponding criterion from the 1978 aerosol 

ban is the effect on the "quality of life" of no longer having 

the product available or of using an alternative. As discussed 

above, the product had to provide an important societal benefit 

for EPA to grant an exemption from the 1978 ban, even if the 

product did not have an available alternative. Consequently, 

in the Class I nonessential products ban under section 610(b)(3), 

EPA considered the contribution to the quality of life of a 

product using a Class I substance, the impact of compelling 

a transition to a substitute chemical or process, and the impact 

of the product's removal from the market altogether, in evaluating 

this criterion.

   The distinction between a "nonessential product" and a
"nonessential 

use of Class I substances in a product" is also relevant to 

this criterion. While foam cushioning products for beds and 

furniture are not "frivolous," for example, the use of a Class 

I substance in the process of manufacturing foam cushioning 

where substitutes are readily available could be considered 

nonessential. EPA believes that the extent to which manufacturers 

of a product have already switched out of Class I substances 

is a relevant indicator for this criterion. For example, the 

Agency believes that in sectors where the grant majority of 

manufacturers had already shifted to substitutes, the use of 

a Class I substance in that product may very well be nonessential; 

EPA is also aware that in certain subsectors, the continued 

use of CFCs, despite the imposition of the excise tax and the 

impending production phaseout, may indicate failure to meet 

one or more of the criteria for nonessentiality, such as the 

technological availability of substitutes. Consequently, EPA 

carefully examined sectors in which most of the market had switched


out of CFCs.

   2. The Technological Availability of Substitutes. EPA interprets


this criterion to mean the existence and accessibility of
alternative 

products or alternative chemicals for use in, or in place of, 

products releasing Class I substances. EPA believes that the 

phrase "technological availability" may include both currently 

available substitutes (i.e., presently produced and sold in 

commercial quantities) and potentially available substitutes 

(i.e., determined to be technologically feasible, environmentally 

acceptable and economically viable, but not yet produced and 

sold in commercial quantities). However, EPA considered the 

current availability of substitutes more compelling than the 

potential availability of substitutes in determining whether 

a product was nonessential.

   The corresponding criterion from the 1978 ban is the
"nonavailability 

of alternative products." In its supporting documentation, EPA 

stated that this was the primary criterion for determining if 

a product has an "essential use" under the 1978 rule. EPA
emphasized, 

however, that the absence of an available alternative did not 

alone disqualify a product from being banned.

   The availability of substitutes is clearly a critical criterion 

for determining if a product is nonessential. In certain cases, 

a substitute that is technologically feasible, environmentally 

acceptable and economically viable, but not yet produced and 

sold in commercial quantities, may meet this criterion. EPA 

believes that, where substitutes are readily available, the 

use of controlled substances could be considered nonessential 

even in a product that is extremely important.

   It should be noted, however, that EPA does not necessarily 

advocate all substitutes that are currently being used in place 

of CFCs in the products EPA identifies as nonessential. Some 

manufacturers have switched from CFCs to substitutes that may 

have serious health and safety concerns. EPA will be looking 

carefully at the relative risks and merits of different substitutes


for ozone-depleting substances as it implements section 612 

(SNAP). On the other hand, EPA wants to reassure the public 

that the section 610 and the section 612 rulemakings will not, 

either intentionally or inadvertently, leave manufacturers or 

consumers without appropriate substances for each essential 

use.

   3. Safety and Health. EPA interprets these two criteria to 

mean the effects on human health and the environment of the 

products releasing Class I substances or their substitutes. 

In evaluating these criteria, EPA considered the direct and 

indirect effects of product use, and the direct and indirect 

effects of alternatives, such as ozone-depletion potential, 

flammability, toxicity, corrosiveness, energy efficiency, ground 

level air hazards, and other environmental factors.

   If any safety or health issues prevented a substitute from 

being used in a given product, EPA then considered that substitute 

to be "unavailable" at this time for that specific product or 

use. As new information becomes available on the health and 

safety effects of possible substitutes, EPA may re-evaluate 

determinations made regarding the nonessentiality of products 

not covered in today's rulemaking or, as stated above, the Agency 

may take action under section 612.

   4. Other Relevant Factors. Section 610(b)(3) does not specify 

that EPA must consider the economic impact of banning a product, 

as in the 1978 ban, but the Agency did consider the economic 

impact of such an action as an "other relevant factor." EPA 

believes that it has the authority under section 610(b)(3) to 

consider any relevant factors, including costs, in determining 

whether products are nonessential.

   In considering the immediate economic impact of banning the 

use of a Class I substance in a product, EPA attempted to compare 

the cost of the possible substitutes and the cost of the Class 

I substance, including the effects of the excise tax and the 

limits on production and importation under the Clean Air Act, 

when this information was available. EPA believes that in many 

cases the tax and supply limits have already provided a compelling 

incentive for manufacturers using Class I substances to switch 

to substitutes. EPA also considered the available information 

on manufacturing costs associated with using substitutes or 

switching to alternative market lines. Finally, EPA attempted 

to assess the societal costs of eliminating the product altogether 

where appropriate.

   Another relevant factor that EPA considered was the impact 

of state or local laws prohibiting the use of certain substances 

commonly used as substitutes for ozone-depleting chemicals. 

For example, Massachusetts, New Jersey and California all
specifically 

limit the use of methylene chloride, which is used as a CFC-

substitute for some flexible foam products. Other areas have 

limits on the general emissions of volatile organic compounds 

(VOCs). If the only available substitute for the use of a Class 

I substance in a product-including both alternative chemicals 

and product substitutes-was a chemical whose use was prohibited 

in certain areas, EPA considered substitutes to be unavailable 

for that product in those areas. As stated above, however, the 

lack of available substitutes did not automatically disqualify 

a product from being prohibited as nonessential.

   Finally, after publication of the proposed rule, EPA received 

comments on a number of products not specifically covered in 

the proposed rule. A number of these products, such as tobacco 

expanded with CFCs and closed cell polyurethane foam used as 

a flotation foam, may meet the criteria for designation as
nonessential 

products subject to the Class I nonessential products ban. EPA 

believes, however, that it would be inappropriate to include 

new product categories in the ban which were not considered 

by the proposed rule. Consequently, today's rulemaking covers 

only products included in the January 16, 1992 proposed rule. 

EPA has the authority to consider designating as nonessential 

other products which release ozone-depleting substances in future 

rulemakings, however, and the Agency may consider such action 

if at a later date EPA determines that these products satisfy 

the criteria for nonessentiality.

   In evaluating products for inclusion in the Class I nonessential


products ban, EPA considered all of the criteria described above. 

Any one of the criteria outlined above could be the deciding 

factor in relation to all other factors in determining whether 

a product was, or was not, covered under the ban.

3. Other Products

   In determining which products to prohibit under section
610(b)(3), 

the Agency considered every major use sector (although not each 

individual product or brand) of each Class I substance (CFCs, 

halons, carbon tetrachloride and methyl chloroform), including 

refrigeration and air conditioning, solvent use, fire
extinguishing, 

foam blowing, and aerosol uses. Based on this review, the Agency 

identified three broadly defined products for further preliminary 

evaluation: aerosol products and pressurized dispensers containing 

CFCs, plastic flexible and packaging foams, and halon fire
extinguishers 

for residential use. EPA then analyzed these three sectors in 

more detail before preparing the January 16, 1992 NPRM.

   EPA had reason to believe that in each of these sectors two 

important conditions existed: substitutes were already available 

for the product or the Class I substance used or contained in 

that product; and, either the affected industry had, for the 

most part, moved out of the Class I substances or the market 

share of products using or containing Class I substances was 

small and shrinking.

   In addition, in the case of aerosols and plastic flexible 

and packaging foams, section 610(d) imposes a self-effectuating 

ban on the sale or distribution of such products containing 

or produced with Class II substances after January 1, 1994. 

The Agency was concerned that failure to ban nonessential products 

containing or produced with Class I substances in these use 

sectors would provide an incentive for the affected industries 

to switch back to the use of Class I substances after that date, 

resulting in increased damage to the environment.

   In the January 16, 1992 NPRM, EPA proposed to ban the sale 

or distribution of aerosols and pressurized dispensers containing 

CFCs and plastic flexible and packaging foams manufactured with 

CFCs. In addition, it requested public comment on the advantages 

and disadvantages of including residential home fire extinguishers 

in the ban, but it did not propose including these products 

in this rulemaking. The reasoning behind EPA's decision is
described 

in greater detail below.

   Refrigeration and air-conditioning, including mobile air-

conditioning, represent the largest total use of Class I substances


in the United States (31.8 percent weighted by ozone-depletion 

potential in 1987). Substances are available for some refrigeration


and air-conditioning products. EPA believes that substitutes 

for some uses, like refrigerant in motor vehicle air conditioners, 

are already available, and that the affected industries are 

switching to these alternatives (the major automobile companies, 

for example, are introducing new models which use HFC-134a rather 

than CFC-12 in their air conditioning systems). However, potential 

substitutes for other refrigeration and air-conditioning uses 

are still being evaluated. For example, HCFC-123 has been proposed 

as a replacement for CFC-11, but toxicity testing of HCFC-123 

has only recently been completed.

   EPA did not include prohibitions on the use of Class I
substances 

in refrigeration or air conditioning in the proposed rule because 

conclusions on the appropriate substitutes were not anticipated 

to be available within the time-frame of this rulemaking.
Accordingly, 

EPA could not conclude that any refrigeration or air conditioning 

uses were nonessential at the time of proposal. The industry 

continues to investigate chemical substitutes for CFCs in deep 

freeze applications, as well as substitutes for CFC-114 and 

CFC-115. EPA plans to specifically address refrigeration and 

air-conditioning uses of Class I substances under its upcoming 

section 608 regulations to require the recovery and reuse of 

refrigerants in these applications.

   Solvent uses of Class I substances, including commercial 

electronics de-fluxing, precision cleaning, metal cleaning and 

dry cleaning, also represent a significant use in the U.S. (21.7 

percent weighted by ODP in 1987). Industry has identified
potentially 

available substitutes for nearly all of the thousands of products 

currently manufactured with Class I solvents, and many companies 

have already phased out the use of CFCs in certain products.

   EPA did not address solvent use in the proposed regulations 

because the sheer number of products and the range of potential 

substitutes (each with specific technical and health and safety 

issues) made it impossible for EPA to conclude that substitutes 

are currently available for any of these specific uses, and 

thus that such uses were nonessential, within the short statutory 

time-frame of this rulemaking. However, the Agency recognizes 

that the solvent industry is also making significant progress 

toward the elimination of ozone-depleting chemicals as solvents.

   EPA considered the use of Class I substances in fire
extinguishing 

applications in its initial review as well. Halons are widely 

used in fire extinguishing systems today. These fire extinguishing 

systems include both total flooding systems (such as stationary 

fire suppression systems in large computer facilities) and
streaming 

systems (such as hand-held fire extinguishers). In evaluating 

possible nonessential uses of halons in fire fighting, the Agency 

divided the fire protection sector into six broad end uses: 

(1) Residential/Consumer Streaming Agents, (2)
Commercial/Industrial 

Streaming Agents, (3) Military Streaming Agents, (4) Total Flooding


Agents for Occupied Areas, (5) Total Flooding Agents for Unoccupied


Areas, and (6) Explosion Inertion.

   Although halons are extremely effective at fighting fires, 

they have extremely high ODPs. In fact, although total halon 

production (measured in metric tons) comprised just 2 percent 

of the total production of Class I substances in 1986, halons 

represented 23 percent of the total estimated ozone depletion 

potential of CFCs and halons combined. Consequently, halons 

in fire extinguishing equipment represent a significant use 

sector in terms of ozone depleting potential, and the Agency 

has worked closely with industry and the military to minimize 

halon emissions and encourage a rapid transition to acceptable 

substitutes. Halon recycling and banking is instrumental in 

reducing halon emissions and will extend the availability of 

these chemicals past the phaseout.

   The fire protection community has made considerable progress 

in adopting alternatives to halons in fire protection applications.


Most recent efforts to develop substitutes for halon have focused 

primarily on halocarbon chemicals, but several "alternative" 

agents such as water, carbon dioxide, foam, and dry chemical 

are already in widespread use as fire extinguishants and can 

be expected to find use as substitutes for halons in many
applications.

   Substitutes for halons, whether other halocarbons or
alternatives 

such as water, should meet four general criteria to provide 

a basis for determining that the use of halon in residential 

fire extinguishers is nonessential. They must be effective fire 

protection agents, they must have an acceptable environmental 

impact, they must have a low toxicity, and they must be relatively 

clean or volatile. In addition, they must be commercially available


as a halon replacement in the near future.

   The excise tax on halons is scheduled to rise from $0.25 

per pound to $13.05 per pound for halon 1211 and $43.50 per 

pound for halon 1301 in 1994. EPA anticipates that this dramatic 

increase in the price of halons will provide a significant economic


incentive for consumers to shift from halons to available
substitutes, 

and for producers to develop halon substitutes and substitute 

products.

   After its initial review of this use sector, EPA concluded 

that while satisfactory substitutes were not yet available in 

most commercial and military applications within the short
statutory 

time-frame of this rulemaking, certain substitutes were already 

commercially available for hand-held halon fire extinguishers 

in residential settings. Consequently, the Agency decided to 

evaluate this application more closely in order to determine 

whether residential fire extinguishers containing halon should 

be designated nonessential products, or whether the continued 

use of halons, despite the imposition of the excise tax and 

the impending production phaseout, indicated that this application 

did not meet the criteria for nonessentiality. With this end 

in mind, the proposed rule requested comments on whether these 

products met the criteria for nonessentiality as well as whether, 

due to the excise tax on ozone-depleting substances, banning 

these products would be unnecessary in order to effectuate the 

statutory goal of removing such products from interstate commerce.

   EPA considered aerosols and pressurized dispensers likely 

candidates for designation as nonessential products because 

a great deal of information on substitutes for CFCs in these 

applications already existed. Research on substitutes for CFCs 

in aerosol applications began in the 1970s in response to the 

early studies on stratospheric ozone depletion and the 1978 

ban on the use of CFCs as aerosol propellants. Consequently, 

extensive data already existed on possible substitutes for most 

remaining aerosol uses. EPA's evaluation concentrated on products 

which had been exempted or excluded from the 1978 ban on CFC 

propellants because these products were the only remaining legal 

applications of CFCs in this use sector.

   The 1978 aerosol ban prohibited the manufacture of aerosol 

products using CFCs as propellants. Other uses of CFCs in aerosols 

(such as solvents, active ingredients, or sole ingredients) 

were not included in the ban. In addition, certain "essential 

uses" of CFCs as aerosol propellants were exempted from the 

ban because no adequate substitutes were available at the time. 

Consequently, although the use of CFCs in aerosols was reduced 

dramatically by the 1978 ban, the production of a number of 

specific aerosol products containing CFCs is still legal. These 

products include: metered dose inhalant drugs; contraceptive 

vaginal foam; lubricants for the production of pharmaceutical 

tablets; medical solvents such as bandage adhesives and adhesive 

removers; skin chillers for medical purposes; aerosol tire
inflators; 

mold release agents; lubricants, coatings, and cleaning fluids 

for industrial/institutional applications to electronic or
electrical 

equipment; special-use pesticides; aerosols for the maintenance 

and operation of aircraft; aerosols necessary for the military 

preparedness of the United States of America; diamond grit spray; 

single-ingredient dusters and freeze sprays; noise horns; mercaptan


stench warning devices; pressurized drain openers; aerosol
polyurethane 

foam dispensers; and whipped topping stabilizers. After examining 

the available information (see Background Document on
Identification 

of Nonessential Products that Release Class I Substances and 

Alternative Formulations in Docket), EPA concluded that
satisfactory 

substitutes were available for most uses of CFCs in aerosols 

and pressurized dispensers. As a result, the Agency proposed 

banning all uses of CFCs in aerosols and pressurized dispensers 

except for certain products, such as medical devices, that it 

specifically exempted.

   EPA examined the use of Class I substances in foam products, 

relying heavily on the research conducted for the 1991 United 

Nations Environment Programme (UNEP) technical options report 

on foams (see Technical Options Report). The UNEP report divided 

polyurethane foam into three major categories: rigid foam, flexible


foam, and integral skin foam. It further subdivided rigid
polyurethane 

foams into functional categories: open cell packaging foam and 

closed cell insulating foam. EPA used the same categories in 

the section 610 rulemaking. Based on this research, the Agency 

proposed prohibiting the use of CFCs in flexible and packaging 

foams in the NPRM. The Agency focused on these foam sectors 

due to the clear availability of substitutes such as water-blown 

foam, reformulated foams, and alternative chemicals such as 

HCFC-22 and methylene chloride. EPA did not propose to prohibit 

the use of CFCs in insulating foam, expanded polystyrene foam, 

polyvinyl chloride foam, or integral skin foam. The reasons 

for this decision are described below.

   EPA did not propose the inclusion of insulating foams
manufactured 

with CFCs in the Class I nonessential products ban. Although 

flexible and packaging foams have currently available substitutes, 

the UNEP technical options report estimated that the elimination 

of CFCs in insulating foams would not be technical feasible 

until 1995 in developed countries. Rigid insulating foams using 

CFCs were exempt from the excise tax in 1990, and they are subject 

to a reduced tax until 1994. The required ban on the use of 

Class II substances in foam products in section 610(d) also 

specifically exempts insulating foams. As a result, EPA proposed 

banning only flexible and packaging foams in the NPRM. The Agency 

intends to address insulating foams under the section 612
rulemaking.

   While polyvinyl chloride foam and expanded polystyrene foam 

could be considered flexible and packaging foams, EPA did not 

propose banning products made with expanded polystyrene foam 

or polyvinyl chloride foam in the NPRM because the 1991 UNEP 

report indicates that CFCs were never used in the production 

of either expanded polystyrene or polyvinyl chloride foams. 

As a result, EPA believes that it is unnecessary to formally 

prohibit the use of CFCs in these products, and the Agency did 

not include them in the proposed Class I nonessential products 

ban. However, EPA reserves the right to take action in the future 

under this section to prohibit as nonessential the use of CFCs 

in these products should it appear appropriate.

   EPA also considered including integral skin foam in the Class 

I nonessential products ban. The UNEP report treated polyurethane 

integral skin foam as a separate category distinct from rigid 

insulating, rigid packaging, and flexible foams. In preparing 

the proposed rule, EPA utilized the same categories as the 1991 

UNEP technical options report on foams. Consequently, EPA does 

not consider integral skin foam to be a "flexible or packaging 

foam." Integral skin foam is used in a number of applications, 

including motor vehicle safety applications, as suggested by 

section 610(d)(3)(B). EPA was not able to conclusively determine 

in the time available that adequate substitutes for integral 

skin foam, or for the use of CFCs in the production of integral 

skin foam, were available. As a result, EPA did not include 

them in the proposed Class I nonessential products ban. However, 

EPA must address integral skin foams in its rulemaking for the 

Class II nonessential products ban. Section 610(d)(2)(B) exempts 

integral skin, rigid, or semi-rigid foam utilized to provide 

for motor vehicle safety in accordance with Federal Motor Vehicle 

Safety Standards where no adequate substitute substance (other 

than a Class I or Class II substance) is practicable for
effectively 

meeting such Standards from the nonessential products ban on 

foams containing, or manufactured with, Class II substances. 

The Agency reserves the right to take action under section 610 

to prohibit the use of CFCs in integral skin foams at that time, 

or some other future time, if necessary.

   EPA did not propose banning any products releasing the other 

Class I substances (halons, carbon tetrachloride and methyl 

chloroform) in the NPRM, although it requested comments on the 

need to ban halon fire extinguishers for residential use (for 

a discussion of halons, see the preceding discussion in this 

section, as well as section III.B.5. in today's preamble). EPA 

estimates that in the United States today, most carbon
tetrachloride 

is consumed in the production of CFCs. The nonessential products 

ban is directed at specific end uses, not feedstocks, and
therefore, 

the Agency has decided not to take action on this chemical under 

section 610. Methyl chloroform, also a Class I chemical, is 

widely used as a solvent for metal cleaning, in adhesives and 

coatings, and in aerosols. Methyl chloroform is used in thousands 

of different products. EPA believes that substitutes are available 

for many of the current uses of methyl chloroform, but these 

substitutes could not be thoroughly evaluated within the time 

constraints established in the Act. Consequently, EPA could 

not conclude that any such uses were nonessential. Thus, EPA's 

proposed rule did not cover many use sectors or products which 

use methyl chloroform. Nevertheless, EPA has reason to believe 

that substitutes exist for a number of these applications, and 

many of these uses of methyl chloroform may be addressed in 

the Agency's section 612 rulemaking.

   EPA will further analyze the sectors described above on which 

it has insufficient information at this time and may take further 

regulatory action to ban uses in such sectors as appropriate 

once the agency obtains sufficient data.

   EPA selected the product sectors identified in today's notice 

for the following reasons. First, EPA believes that they all 

clearly fit the criteria specified by section 610(b)(3) based 

upon information and analysis the Agency already had or could 

obtain within the tight regulatory time-frame required by the 

statute. In fact, all the identified products are relatively 

well-defined, have commercially available alternatives, and 

have been the subject of prior federal or state-level rulemakings 

or voluntary agreements to limit the use of ozone-depleting 

substances.

   EPA also took into consideration the prohibition required 

by section 610(d) on certain products releasing Class II
substances, 

which goes into effect in 1994. EPA is concerned that banning 

the use of Class II substances in certain products in 1994, 

while permitting the use of the more harmful Class I substances 

in the same products, could provide an environmentally harmful 

incentive that encourages the use of Class I substances over 

Class II substances. Thus, the statutory prohibition in section 

610(d) provided further direction in choosing products on which 

to focus at this time under section 610.

   As a result of this process, the NPRM proposed prohibiting 

the sale and distribution of flexible and packaging foam using 

CFCs and aerosols and other pressurized dispensers containing 

CFCs. Below, EPA defines these product categories and then presents


an overview of how each one meets the criteria specified by 

section 610(b)(3) and discussed above in section I.I.1. More 

detailed analyses of the "other" products to be prohibited are 

provided in the background documents accompanying this rulemaking 

(see Docket A-91-39).

   a. Flexible and packaging foam using CFCs. CFCs have been 

widely used in the production of a variety of foam plastics. 

CFC-11, -12, -113, and -114 have all been used as blowing agents 

in the manufacture of foam products such as building and appliance 

insulation, cushioning products, packaging materials, and flotation


devices. According to the 1991 UNEP Flexible and Rigid Foams 

Technical Options Report, the foam plastics industry used
approximately 

174,000 metric tons of CFCs worldwide in 1990, a 35 percent 

drop from the industry's estimated CFC consumption in 1986. 

The UNEP report also estimates that, of the CFCs consumed by 

the foam plastics industry, approximately 80 percent were used 

in building and appliance insulation while the remaining 20 

percent found use as blowing agents in applications such as 

packaging, cushioning and flotation. In the United States, CFC 

use in many foam types has decreased dramatically since 1986. 

In some applications, especially in flexible and packaging foams, 

most manufacturers have already phased out the use of CFCs
completely.

   CFCs have been widely used as blowing agents in the
manufacturing 

process of many foam products because they possess suitable 

boiling points and vapor pressures, low toxicity, and very low 

thermal conductivity; in addition, they are non-flammable, non-

reactive, and, until the introduction of the excise tax and 

production limits, cost-effective. The excise tax levied by 

Congress in 1989 significantly raised the price of CFCs (except 

for use in the manufacture of rigid insulating foam, which was 

exempt from the tax in 1990 and is subject to a greatly reduced 

tax of approximately $0.25 per pound until 1994), and as a result, 

foam manufacturers have switched to non-CFC substitutes in many 

areas.

   Even before the tax went into effect, several groups of foam 

manufacturers, including the Foodservice and Packaging Industry 

and the Polyurethane Foam Association, made significant voluntary 

efforts in cooperation with the Agency and several environmental 

groups to eliminate or reduce the use of CFCs in their products 

ahead of the required phaseout timetable. In addition, one industry


group has worked with the Agency to develop and make available 

an in-depth description of technical options to achieve these 

reductions (see Handbook for Eliminating and Reducing
Chlorofluorocarbons 

in Flexible Foams). Among the many commonly used substitutes 

for CFCs in flexible and packaging foam are HCFCs, hydrocarbons 

and methylene chloride (See below for further discussion of 

these substitutes).

   The 1991 UNEP technical options report provides information 

on potential substitutes for the entire foam industry by foam 

type. Each type of foam has a distinct set of product and process 

application needs; for example, an important distinction exists 

between foam plastics where the cells are closed, trapping the 

blowing agent inside, and those with open cells which release 

the blowing agent during the manufacturing process.

   For the purposes of today's rulemaking, EPA identifies the 

following categories as "flexible and packaging foam:" Polyurethane


flexible slabstock and molded foams, open cell rigid polyurethane 

packaging foam, polyethylene foam, polypropylene foam, and extruded


polystyrene sheet foams. The included polyurethane foams are 

open cell thermosetting foams, where the blowing agent is mixed 

with chemicals which react to form the plastic. The other included 

foams are closed cell thermoplastic foams, where the blowing 

agent is injected into a molten plastic resin which hardens 

upon cooling.

   EPA first suggested the possibility of banning flexible and 

packaging foams in its December 14, 1987 Proposed Rule (52 FR 

47489) and again in its August 12, 1988 Advanced Notice of Proposed


Rulemaking (53 FR 30604). Of the foam types identified as "flexible


and packaging," EPA believes that the producers of polyurethane 

flexible molded foam, open cell rigid polyurethane poured foam, 

polyethylene foam, polypropylene foam and extruded polystyrene 

sheet foam have already eliminated the use of CFCs. EPA also 

believes that CFC emissions from the manufacture of flexible 

polyurethane slabstock foam can be reduced to zero because
manufacturers 

have largely converted from CFCs to readily available substitutes 

and are currently exploring alternative technologies.

   EPA proposed prohibiting the sale and distribution of flexible 

and packaging foams using CFCs in the January 16, 1992 NPRM 

primarily because CFC use has already largely stopped in these 

foam types following voluntary efforts and the imposition of 

the excise tax. In addition, the Agency believes that if CFCs 

are not prohibited in flexible and packaging foams, the self-

effectuating 1994 ban on noninsulating foam products made with 

or containing Class II substances could set up an environmentally 

harmful incentive for foam manufacturers who have not switched 

out of CFCs to continue to use them, or for those using HCFCs 

to switch back to CFCs.

   In making its determination that flexible and packaging foams 

are nonessential, EPA examined their purpose and intended use. 

Flexible and packaging foams are used in furniture and upholstery, 

transport and protective packaging, cushioning, protective wrap, 

food containers, and flotation devices. EPA does no consider 

the purposes of flexible and packaging foams "frivolous."

   EPA determined, however, that adequate substitutes for CFCs 

in the production of flexible and packaging foams were indeed 

available. Substitute options currently being used in flexible 

and packaging foams vary depending on the foam type in question. 

Options for flexible polyurethane slabstock foam production 

include increased foam density or the use of more water in the 

production process, as well as the substitution of acetone, 

HCFCs, methyl chloroform, and methylene chloride. Other near-

term alternatives available to eliminate CFCs in flexible
polyurethane 

slabstock foam include new polyol technology which increases 

softness with little or no CFC use and "AB" technology which 

uses formic acid to double the quantity of gas generated in 

the reaction of isocyanate with water. Alternatives for the 

production of other flexible and packaging foams include
hydrocarbons, 

carbon dioxide, or HCFCs. EPA believes that the fact that the 

great majority of manufacturers of these products have already 

switched our of CFCs to commercially available substitutes
indicates 

that the use of CFCs in this product area is nonessential.

   There are a number of safety and health issues associated 

with the possible substitutes for CFCs in the production of 

plastic flexible and packaging foams; however, EPA believes 

that with the proper precautions, each of these alternatives 

can be used safely.

   Methylene chloride is classified by EPA as a B2 (probable 

human) carcinogen with an Occupational Safety and Health
Administration 

Permissible Exposure Limit (OSHA PEL) of 25 parts per million. 

Appropriate worker health and safety practices must be followed 

by flexible foam manufactures in those states that allow the 

use of this chemical.

   Hydrocarbons and acetone are flammable. Manufacturers must 

take special safety precautions, including appropriate ventilation,


when using these substances. Hydrocarbons and acetone are also 

volatile organic compounds (VOCs) which can contribute to the 

formation of ground-level air pollution. States must consider 

VOC emissions in meeting requirements of State Implementation 

Plans (SIPs) to attain the ground-level ozone National Ambient 

Air Quality Standards (NAAQS).

   HCFCs (particularly-141b) and methyl chloroform, although 

they have much less effect on stratospheric ozone than do CFCs, 

have measurable ozone-depletion potentials (see listing notice 

56 FR 2420; January 22, 1991). In addition, these substances 

may be regulated elsewhere in title VI (sections 604, 605, 606, 

608, 609, 611, 612, and 613).

   The formic acid used in AB technology creates carbon monoxide 

and has a Ph of 3, so it too requires special care in handling.

   EPA believes that none of the health and safety issues described


above should preclude the prohibition of CFC use in flexible 

and packaging foams under section 610. Each technology presents 

its own associated set of hazards, including the use of CFCs. 

The Agency believes, however, that if the proper precautionary 

steps are taken, these alternatives can be used safely. EPA 

does not necessarily endorse all of the substitutes currently 

being used by manufacturers in place of CFCs and intends to 

carefully examine the issue of safe alternatives under section 

612.

   In making its determination to classify flexible and packaging 

foams as nonessential, EPA also considered several other relevant 

factors. As noted earlier, the majority of flexible and packaging 

foam manufacturers have already phased out the use of CFCs. 

The excise tax and the phaseout of CFR production provide
significant 

incentives for those manufacturers still using CFCs to switch 

to substitutes. In addition, the accelerated phaseout should 

provide manufacturers with an additional incentive to move out 

of the use of Class I substances as rapidly as possible. As 

a result, EPA anticipates that the future economic impact from 

today's rulemaking will be minimal, even for small businesses 

(see Background Document).

   Finally, EPA recognizes that some states limit the use of 

methylene chloride. Flexible foam manufacturers still using 

CFCs in these areas would be unable to use this particular
substitute 

in the production of super-soft and low-density flexible foams. 

EPA recognizes, however, that several substitute options apart 

from methylene chloride (e.g., modified polyols and water-blown 

foam) are currently in use or will be available in the near 

future as substitutes for these foam types (production of flexible 

slabstock foam is discussed in greater detail in section
III.B.2.b.). 

Therefore, EPA proposed banning the use of CFCs in areas where 

methylene chloride use is restricted, as well as in areas where 

it is not.

   b. Aerosols and other pressurized dispensers containing CFCs. 

In the past, CFCs have been used extensively in aerosol products 

worldwide, mainly as propellants, but also as solvents and
diluents, 

and as the active ingredients in some products. In the mid-1970s 

the use of CFC-11 and -12 in aerosols accounted for 60 percent 

of the total use of these chemicals worldwide. Due to mandatory 

and voluntary reduction programs in several countries, including 

the 1978 ban in the United States, this use has been significantly 

reduced. However, in 1986, aerosol use was still substantial, 

accounting for 300,000 metric tons, representing 27 percent 

of the global use of CFCs. In the United States, 9870 metric 

tons were used in aerosols exempted or excluded from the 1978 

ban, representing approximately 2.5 percent of all Class I
substances 

(weighted by ozone-depletion potential) in 1988.

   In the January 16, 1992 NPRM, EPA defined "aerosols and other 

pressurized dispensers containing CFCs" to include both propellant 

and non-propellant uses of CFCs. Propellant uses of CFCs were 

banned by EPA in 1978, except for essential uses. Non-propellant 

uses of CFCs, such as solvent use, were excluded from the 1978 

ban. EPA has re-examined all of the products excluded from the 

1978 ban, as well as those specifically exempted from the 1978 

ban. EPA has also examined products identified by commenters 

to the proposed rule. As EPA stated in its August 12, 1988 Advanced


Notice of Proposed Rulemaking (53 FR 30604), several alternative 

propellants and delivery systems have been developed since the 

original aerosol exemptions were granted. In addition, many 

previously exempted or excluded products no longer use CFCs 

(see Alternative Formulations).

   EPA proposed banning CFCs in aerosols and other pressurized 

dispensers primarily because a variety of substitutes for CFCs 

are now widely available and currently in use. In addition, 

the Agency believes that it is important to ban the use of CFCs 

in aerosols and pressurized dispensers due to the ban on the 

use of Class II substances in such products under section 610(d).

   Section 610(d) bans the sale, distribution, or offer of sale 

or distribution in interstate commerce of aerosols or pressurized 

dispensers containing a Class II substance effective January 

1, 1994. EPA believes that if the aerosols and other pressurized 

dispensers containing CFCs are not included in the Class I
nonessential 

products ban, the ban on aerosols and pressurized dispensers 

containing Class II substances in 1994 could set up an
environmentally 

harmful incentive for manufacturers who have not switched out 

of CFCs to continue to use them, or for those using HCFCs to 

switch back to CFCs. Because the ozone depletion potentials 

of CFCs are so much greater than those of HCFCs, the continued 

use of CFCs in this application would have a significant adverse 

impact on the environment.

   In making its determination that the use of CFCs in aerosols 

and pressurized containers was nonessential, EPA looked at the 

purpose or intended use of these products. CFCs have been used 

in aerosol products and other pressurized dispenser products 

as propellants, solvents, diluents, and active ingredients. 

Those uses exempted or excluded from the 1978 ban included: 

metered dose inhalant drugs; contraceptive vaginal foam; lubricants


for the production of pharmaceutical tablets; medical solvents 

such as bandage adhesives and adhesive removers; skin chillers 

for medical purposes; aerosol tire inflators; mold release agents; 

lubricants, coatings, and cleaning fluids for
industrial/institutional 

applications to electronic or electrical equipment; special-

use pesticides; aerosols for the maintenance and operation of 

aircraft; aerosols necessary for the military preparedness of 

the United States of America (primarily pesticides, aircraft 

and electronics maintenance products, and specialty lubricants); 

diamond grit spray; single ingredient dusters and freeze sprays; 

noise horns; mercaptan stench warning devices; pressurized drain 

openers; aerosol polyurethane foam dispensers; and whipped topping 

stabilizers. EPA believes that the purposes of these aerosols 

and pressurized dispensers are generally not "frivolous."

   However, EPA determined that adequate substitutes for CFCs 

in the production of most aerosol products and pressurized
dispensers 

were indeed available. EPA believes that the fact that the great 

majority of manufacturers of these products have switched out 

of CFCs (see Background Document) indicates that the use of 

CFCs in this product area is nonessential.

   Currently available substitutes for aerosols and other
pressurized 

dispensers include: hydrocarbons (predominantly propane and 

butane); other higher priced/special use flammable gases (dimethyl 

ether, HCFC-142b, and HFC-152a); nonflammable compressed gases 

(such as carbon dioxide, nitrogen oxide, and HCFC-22, alone 

or in mixtures); solvent substitutes (methylene chloride and 

dimethyl ether/water mixtures); non-aerosol spray dispensers 

(finger pumps, trigger pumps, and mechanical pressure dispensers); 

and non-spray dispensers (solid sticks, roll-ons, brushes, pads, 

shakers, and powders). Potentially available substitutes for 

propellant and solvent uses of CFCs in aerosols and other
pressurized 

dispensers include HCFCs-123, -124, -141b, 142b, and HFC-134a.

   In evaluating possible substitutes for CFCs in aerosols and 

other pressurized dispensers, EPA relied heavily on existing 

Agency research due to the short statutory timeframe for this 

rulemaking, especially its 1989 report Alternative Formulations 

to Reduce CFC Use in U.S. Exempted and Excluded Aerosol Products. 

The UNEP Technical Options Committee report on aerosols, sterilants


and miscellaneous uses of CFCs also provided valuable information 

on possible substitutes for CFCs in these applications (see 

Aerosols). In addition, many commenters requesting exemptions 

for specific products provided information on possible substitutes,


as did several commenters opposed to exemptions for specific 

products.

   EPA believes that manufacturers have been working to identify 

substitutes for CFCs in all of their product areas. However, 

there are several products for which EPA has not identified 

satisfactory substitutes, and which, in its January 16, 1992 

NPRM, EPA proposed to exclude from the ban on aerosols and other 

pressurized dispensers containing CFCs. These products are: 

contraceptive vaginal foams; lubricants for pharmaceutical and 

tablet manufacture; metered dose inhalation devices; gauze bandage 

adhesives and adhesive removers; commercial products using CFC-

11 or CFC-113, but no other CFCs, as lubricants, coatings and 

cleaners for electrical or electronic equipment; commercial 

products using CFC-11 or CFC-113, but no other CFCs, as lubricants,


coatings and cleaners for aircraft maintenance uses; and commercial


products using CFC-11 and CFC-113 as release agents for molds 

used in the production of plastic and elastomeric materials. 

In addition, EPA received information during the public comment 

period about the lack of available substitutes for certain products


of which the Agency had previously been unaware, such as red 

pepper safety sprays and document preservation sprays. EPA
considered 

requests for exemptions for these products while preparing the 

final rule, and on the basis of this information excluded certain 

additional aerospace applications of CFCs from coverage in today's 

rulemaking (for additional information on the products mentioned 

above, see Alternative Formulations and Background Document).

   There are a number of safety and health issues associated 

with the possible substitutes for CFCs in the production of 

aerosol products and other pressurized dispensers; however, 

EPA believes that with the proper precautions these alternatives 

can be used safely.

   Hydrocarbons are flammable. Manufacturers and consumers must 

take special safety precautions, including appropriate ventilation,


when using these substances. Hydrocarbons are also volatile 

organic compounds (VOC)s which can contribute to the formation 

of ground-level air pollution. States must consider VOC emissions 

in meeting the requirements of State Implementation Plans to 

attain the ground-level ozone National Ambient Air Quality
Standards.

   HCFCs (particularly -141b) and methyl chloroform, although 

they have much less effect on stratospheric ozone than CFCs, 

do have measurable ozone-depletion potentials (see listing notice 

56 FR 2420; January 22, 1991). In addition, these substances 

may be regulated elsewhere in title VI (sections 604, 605, 606, 

608, 609, 611, 612, and 613).

   Methylene chloride is classified by EPA as a B2 (probable 

human) carcinogen, with an Occupational Safety and Health
Administration 

Permissible Exposure Limit (OSHA PEL) of 25 parts per million. 

Appropriate worker health and safety practices must be followed 

by aerosol and pressurized dispenser manufacturers in those 

states that allow the use of this chemical.

   EPA believes that none of the health and safety issues described


above are persuasive enough to preclude the identification of 

CFC-use in aerosols and other pressurized dispensers as a
nonessential 

product under the requirements of section 610. However, EPA 

does not necessarily advocate all substitutes currently being 

used by manufacturers in place of CFCs. EPA intends to carefully 

examine the issue of safe alternatives under regulations to 

implement section 612.

   In making its determination to classify aerosols and other 

pressurized dispensers as nonessential, EPA also considered 

several other relevant factors. First, most propellant uses 

of CFCs have been banned already under the Toxic Substances 

Control Act (TSCA) since 1978. Today, aerosols and pressurized 

dispensers containing CFCs make up only a small percentage of 

existing aerosol products; consequently, EPA estimates that 

the economic impact of banning CFC use in these applications 

will be minimal (see Background Document). Second, the excise 

tax provides an ever-increasing economic incentive for
manufacturers 

of aerosol and pressurized dispenser products which were exempted 

or excluded from the 1978 ban to switch to substitutes. In
addition, 

the accelerated phaseout of CFC production will force most
manufacturers 

to convert to substitutes as quickly as possible. As a result, 

EPA anticipates minimal future economic impact from banning 

aerosols and other pressurized dispensers containing CFCs under 

section 610.

4. Recordkeeping Requirements

   In the NPRM, EPA proposed recordkeeping requirements to monitor 

compliance with the ban on the sale or distribution of
chlorofluorocarbon-

containing cleaning fluids for noncommercial electronic and 

photographic equipment. Recordkeeping was one of four options 

considered by EPA for restricting the sale of these products 

to commercial users. These options were described in the January 

16, 1992 NPRM.

   The first option would have required that CFC-containing 

cleaning fluids be sold in bulk. However, EPA recognized that 

some commercial users needed only small quantities of these 

products, and that the bulk sales requirement would impose a 

significant burden on such entities. Moreover, this restriction 

would raise the cost of these products for noncommercial users, 

but it would not prevent noncommercial users from purchasing 

them.

   The second option EPA proposed was to prohibit the sale of 

CFC-containing cleaning fluids by outlets which primarily serve 

noncommercial users. However, as with the first option, this 

restriction would not prevent noncommercial users from purchasing 

these products. In addition, it would be a burden on commercial 

users who purchase these products at retail outlets. Moreover, 

it would be difficult to adequately define retail stores that 

are predominantly oriented to noncommercial users.

   The third option EPA proposed would have required that stores 

post notices stating that the sale of these products to
noncommercial 

users was prohibited; alternatively, EPA considered requiring 

warning labels on containers of these cleaning fluids indicating 

that they were intended for commercial use only. EPA did not 

include either of these provisions in the proposed regulatory 

language because neither of these alternatives by itself would 

have promoted effective EPA enforcement of the ban on the sale 

of these cleaning fluids to noncommercial users. In addition, 

the EPA was concerned that the labeling requirement would be 

costly and unnecessarily burdensome, given that such products 

are already also subject to section 611 of the Act. Section 

611 requires warning labels on containers of Class I or Class 

II substances and products containing or manufactured with Class 

I substances. Consequently, in its NPRM, EPA opted for the fourth, 

more restrictive option presented, which proposed recordkeeping 

requirements, because this was the only option considered which 

EPA believed would allow the Agency to effectively enforce the 

prohibition on the sale of these products to noncommercial users. 

   The NPRM discussed two potential recordkeeping regimes, one 

requiring annual records of sales to commercial users and one 

which was transaction-specific. In each case, sellers would 

require purchasers to provide identifying information, as well 

as a commercial identification number, in order to verify that 

the products were being purchased for commercial use; consumers 

without commercial identification numbers would be unable to 

purchase CFC-containing cleaning fluids. Commercial identification 

numbers were defined in the proposed rule as federal employer 

identification numbers, state sales tax exemption numbers, or 

local business license numbers. In a transaction-specific system, 

distributors would be required to record the purchaser's
identifying 

information, transaction dates, and the quantities of cleaning 

fluids which were purchased; in addition, distributors would 

be required to maintain records of their own purchases of these 

products. In this way, EPA could compare distributors' sales 

and purchases of these products to ensure compliance. Under 

an annual recordkeeping system, distributors would be required 

to maintain records of commercial purchasers but not of individual 

transactions. As a result, EPA would be unable to verify through 

annual recordkeeping that a distributor had sold these products 

exclusively to commercial users. EPA proposed a transaction-

specific recordkeeping requirement in the proposed rule, but 

it requested comment on the advantages and disadvantages of 

annual and transaction-specific recordkeeping requirements in 

the preamble. 

   In connection with the exemptions from the 1978 ban, EPA 

imposed reporting requirements under 40 CFR 712.4 for those 

products which used a CFC propellant. These reporting requirements 

expired in 1982. Since that time, the 1978 ban has functioned 

effectively without specific reporting requirements concerning 

the commercial uses of these substances. EPA believes that, 

as a result of the 1978 ban, noncommercial use of CFC-containing 

aerosol lubricants, coatings, aircraft maintenance products 

and mold release agents is currently negligible. Therefore, 

EPA did not propose recordkeeping requirements in these areas. 

II. Summary of Comments 

   A public hearing on the proposed rule was held on January 

31, 1992. Six groups presented oral comments on the proposed 

requirements, and five of them submitted written comments to 

the Agency as well. A transcript of the hearing is contained 

in the public docket (see Docket). 

   The Agency received a total of 190 comments on the proposed 

rule (see Docket). Many commenters expressed support for the 

proposed rule, and some suggested expanding the types of products 

covered. Other commenters criticized the scope of the rule, 

the criteria for determining whether products are nonessential, 

and the citation of section 608 as additional authority for 

restricting the use of Class I substances. A number of commenters 

made suggestions regarding record-keeping requirements, and 

several requested clarification of the definition of "interstate 

commerce." Finally, a number of commenters objected to the possible


inclusion of a number of products in the ban, such as
self-pressurized 

containers, medical devices, and residential halon fire
extinguishers. 

III. Responses to Major Public Comments 

   A document summarizing the public comments to this rulemaking 

and responding fully to all significant comments is available 

in the public docket for this final rule (see Response to Comments 

for Proposed Rule on Nonessential Products Made with Class I 

Substances). The major issues raised by the commenters and the 

Agency's responses to them are described below. 

A. Scope and Specific Provisions of Nonessential Rule 



1. Support for the Proposed Rule 

   A number of commenters expressed their support for the proposed 

rule. One commenter, an industry group, supported the proposed 

rule in its treatment of available substitutes, consideration 

of other relevant factors, and the selection of other products. 

Another industry group supported the Agency's general approach 

and actions in proposing to ban the products listed in the NPRM. 

Many commenters wrote to urge EPA to ban the sale or distribution 

of all nonessential Class I and Class II substances as soon 

as possible. 

2. Scope of Regulation 

   Several commenters expressed the opinion that the scope of 

the proposed rule was too great. In several sections of the 

regulations, EPA used the language "including but not limited 

to" in describing the products subject to the nonessential products


ban. See sections 82.66 (a), (b), (c), and (d). Several commenters 

indicated that this language was not sufficiently specific to 

describe the products subject to the ban, especially in light 

of detailed descriptions of certain subcategories that followed 

such language in those sections. These commenters suggested 

that the phrase be deleted and that only specifically listed 

product subtypes be subject to the ban. 

   EPA believes that it is appropriate to use the phrase "including


but not limited to" in describing the products subject to the 

ban. Section 610 clearly gives EPA the authority to ban all 

products within a certain category, such as cleaning fluids 

for electronic and photographic equipment. EPA could have simply 

listed the overall product categories in the rule. It is true 

that the rules must clearly identify those products subject 

to the ban, and that the descriptions cannot be overly vague. 

However, EPA does not believe that there is anything vague about 

the descriptions used in the rule. EPA believes that they are 

all terms with clear meaning in the industries affected and 

that any manufacturers or distributors will know if they are 

handling a product that falls within the ban. 

   The fact that EPA specifically listed certain subcategories 

of the larger product categories subject to the ban does not 

in any way render the overall product category descriptions 

vague or unclear. EPA concluded that it would be helpful to 

manufacturers and distributors to specifically list as many 

product subcategories as the Agency could identify in the rule 

to aid the public in identifying products subject to the ban. 

EPA attempted to be comprehensive in this listing, but could 

not be sure that it had identified all product subtypes within 

the overall product categories. The "including but not limited 

to" language is included in the final rule to clarify that all 

products within the stated product categories are subject to 

the ban on sale of nonessential products.  

   Several commenters stated that the Agency does not have the 

authority under the Act to ban the use of CFCs in aerosols. 

However, it is clear from the language of section 610 that EPA 

is authorized to examine all products which result in the release 

of Class I substances into the atmosphere for the purpose of 

determining whether they are nonessential. Under section 610(b)(3),


the Administrator has the authority to restrict the use of Class 

I substances in products that Congress did not specifically 

cite. Congress provided the Agency with criteria to determine 

whether a Class I product should be banned (discussed at length 

in section III.A.5.), and EPA has acted within these parameters 

in considering products for their eligibility for the nonessential 

products ban. The fact that CFC use in aerosols is regulated 

by the 1978 ban does not affect EPA's authority to regulate 

any aerosol uses exempted or excluded from that ban under section 

610.

   One commenter felt that the broadening of section 610 was 

not justified in light of the President's plan to accelerate 

the phaseout of ozone-depleting chemicals. The commenter observed 

that the accelerated phaseout would eliminate the production 

of CFCs by the end of 1995, only a short time after the
nonessential 

products ban takes effect. The commenter questioned whether 

the environmental benefits of the ban during the period would 

justify the burden associated with expanding its scope. As stated 

in section I.G. of this preamble, EPA agrees with the commenter 

for the most part. Consequently, EPA has limited the scope of 

today's rule to the product categories affected by the Class 

II ban and those CFC-containing products specifically listed 

in the statute. While EPA believes that accelerated phaseout 

dates will do much to protect the stratospheric ozone layer, 

the Agency is still required to promulgate regulations to ban 

those uses of ozone-depleting chemicals it determines are
nonessential. 

EPA believes that there is still a compelling argument for banning 

the use of CFCs in aerosol products and plastic flexible and 

packaging foams (see section I.G. of today's preamble). The 

primary reason for prohibiting the use of CFCs in these sectors 

is to force them to move to alternatives other than CFCs and 

HCFCs prior to January 1, 1994, when the Class II nonessential 

products ban takes effect.

   One commenter suggested that the scope of the proposed rule 

was too narrow, and that other use sectors, such as solvents 

and methyl chloroform, should be included. This commenter cited 

examples in which manufacturers had phased out the Class I
substances 

in various use sectors to justify expanding the scope of the 

rule. EPA is aware that substitutes exist for certain solvent 

applications of CFCs and particular uses of methyl chloroform. 

However, EPA could not properly evaluate the tremendous number 

of products manufactured with methyl chloroform within the short 

statutory time-frame of this rulemaking. The Agency also felt 

that it could not address CFC solvent uses adequately in this 

section 610 rulemaking, since they also find use in large numbers 

of applications. The Agency believes that the Class I substances 

and use sectors not addressed in this rulemaking can be addressed 

more effectively under sections 608 or 612. Finally, given the 

number of applications to be considered, and given EPA's preferred 

approach of addressing products and applications by use category 

rather than individually, the Agency feels it would be impractical 

and inconsistent to ban products based exclusively on the example 

of individual users.

   One commenter was concerned that there may be some confusion 

over the use of nonessential products and the sales prohibition. 

The commenter suggested that EPA confirm that nonessential products


purchased before the effective date may still be used, and that 

the Agency is not regulating the use of nonessential products, 

merely their sale and distribution. The Agency agrees with the 

commenter that section 610 of the Act does not address the use 

of products which are determined to be nonessential. The use 

of nonessential products purchased prior to the effective dates 

for the nonessential products ban is not subject to any restriction


in this regulation, although other laws and regulations regarding 

the release of ozone-depleting substances may apply to such 

use.

3. President's Moratorium on Regulation

   Two commenters questioned whether the nonessential products 

rule would be subject to President Bush's rulemaking moratorium. 

The President's directive does not allow for certain categories 

of regulations to be promulgated without delay. Specifically, 

government agencies have been directed not to postpone any
regulation 

that is subject to a statutory or judicial deadline which falls 

during the period of the moratorium. Since section 610 contains 

a statutory deadline for the publication of the final rule, 

as well as an effective date of November 15, 1992, the nonessential


rule is exempt from the regulatory moratorium.

4. Section 608 and EPA Authority

   One commenter objected to the citation of the Lowest Achievable 

Emission Level (LAEL) standards in section 608 as a basis for 

restricting the emissions of ozone depleting substances. According 

to the commenter, Congress clearly intended to confine product 

restrictions to section 610. In particular, the commenter suggested


that the LAEL standards were exclusively intended to cover
emissions 

from the appliance and industrial process refrigeration market. 

The commenter cited the legislative history behind the creation 

of section 608 to support its interpretation of section 608.

   The EPA disagrees with the commenter's suggestion that reliance 

on section 608 as additional authority for its actions is
unwarranted. 

EPA considers section 608 to be a multiple phase emission control 

program. The Agency believes that the authority granted under 

section 608 (National Emission Reduction Program) may be applied 

to today's rulemaking, and that LAEL standards may, in certain 

circumstances, have the same practical effect as the nonessential 

products ban authorized in section 610.

   It is clear from the statute that section 608(a)(1) of the 

National Recycling and Emission Reduction Program initially 

affects only appliances and industrial process refrigeration, 

and the Agency is addressing the recycling of refrigerant in 

the appliance and industrial process refrigeration sector in 

the section 608 proposal published in the Federal Register on 

December 10, 1992 (57 FR 58644). EPA believes, however, that 

the commenter is incorrect in suggesting that the section 608 

LAEL standards apply only to appliances and industrial process 

refrigeration. Section 608(a)(2) requires EPA to promulgate 

regulations establishing standards and requirements regarding 

use and disposal of Class I and II substances not covered by 

paragraph (1) and section 608(a)(3) requires the reduction of 

the use and emission of such substances to the lowest achievable 

level. EPA believes that this statutory language gives the Agency 

the authority to apply the LAEL standards to all sectors using 

Class I and Class II substances.

   Where adequate substitutes for Class I or Class II substances 

are available, EPA may make a determination that the lowest 

achievable level is zero. To implement the LAEL standards, the 

Agency may issue regulations requiring emission controls, work 

practices, the use of alternative substances, or simply setting 

a performance standard. A zero level performance standard under 

section 608 would amount to an effective ban on the use of Class 

I or Class II substances in that product category. EPA similarly 

believes that it has authority under section 608 to require 

the use of alternatives to certain ozone-depleting substances 

in specific uses. Consequently, the Agency believes that the 

requirements of sections 608 and 610 may overlap in some instances,


and that reference to the section 608 LAEL standards in this 

rulemaking is appropriate.

5. Criteria for Determining Nonessentiality

   Several commenters felt that Congress only banned frivolous 

products or products which "when used by nonprofessionals would 

result in large unwarranted releases of CFCs when measured against 

the expected beneficial results of the product's use," and that 

EPA in the proposed rule had overstepped its authority by
attempting 

to ban products that are considered extremely important. EPA 

believes that the specific products selected by Congress reflect 

broader criteria for determining a product's status under section 

610 than utility alone. Congress specifically cited noise horns 

as products in which the use of Class I substances is nonessential.


Noise horns are primarily used in the area of marine safety; 

noise horns provide warning and maneuvering signals in case 

of an emergency. In addition, the noncommercial use of cleaning 

fluids for photographic and electronic equipment is generally 

not reviewed as a frivolous end use. Nevertheless, these products 

were specifically cited in the statute as examples of nonessential 

uses. Finally, Congress also prohibited the sale or distribution 

of aerosols and certain foam products containing Class II
substances 

after January 1, 1994 in the nonessential products ban. The 

products banned in section 610(d) are clearly not all frivolous, 

and yet Congress banned them as nonessential products. These 

examples indicate that Congress relied on broader criteria than 

the utility of the product alone in determining a product's 

status under section 610, and section 610(b) specifically
identified 

criteria other than the utility of the product for EPA to consider 

in determining nonessentiality for the purposes of the Class 

I nonessential products ban. Consequently, EPA disagrees with 

the commenter's contention.

   One commenter who questioned the application of the ban to 

any product other than frivolous products cited the legal doctrine 

of ejusdem generis. Under this doctrine of statutory
interpretation, 

where general words follow specific words in a statutory
enumeration, 

the general words are construed to embrace only objects similar 

in nature to those objects enumerated by the preceding specific 

words. The commenter concluded that under this doctrine EPA's 

authority to ban other products is limited to frivolous products 

because the specifically enumerated products identified in sections


610(b) (1) and (2) are all frivolous products. 

   EPA believes that the doctrine of ejusdem generis is
inapplicable 

here because the premise underlying the commenter's conclusion 

is false. The products specifically listed in sections 610(b) 

(1) and (2) are not all frivolous products. Only the first product 

listed in 610(b)(1), plastic party streamers, can be considered 

frivolous. For the reasons given above, EPA believes that the 

other product categories listed in 610(b) (1) and (2) clearly 

include products which are not frivolous. As a result, EPA believes


that the specific enumerations in 610(1) and (2) do not limit 

the Agency's authority to identify nonessential products under 

610(b)(3) that are frivolous. Rather, EPA is required by 610(b) 

to consider a number of factors in determining whether a product 

is nonessential, including the purpose or intended use of a 

product, the technological availability of substitutes, safety, 

health, and other relevant factors. 

   One commenter suggested that even if substitutes for Class 

I substances were available, EPA had no authority to ban the 

sale or distribution of "extremely important" products under 

section 610 unless substitutes were available for both the product 

and the Class I substance used in its manufacture. As discussed 

above and in the proposed rule, EPA believes that the section 

610 statutory ban on noise horns, CFC-containing cleaning fluids 

for noncommercial electronic and photographic equipment, as 

well as aerosols, pressurized dispensers, and plastic foam products


containing Class II substances, clearly indicates congressional 

intent to include important "nonfrivolous" uses of ozone-depleting 

substances and products produced with ozone-depleting substances 

in the nonessential products ban. Moreover, the statute directed 

EPA to consider the "technological availability of substitutes 

for such product and for such Class I substance," as well as 

the purpose or intended use of the product, in determining whether 

a product was nonessential. However, the statute does not
specifically 

require EPA to determine that substitutes are available for 

both the product and the Class I substance used in its production. 

Consequently, EPA believes that the statute authorizes the Agency 

to ban a product containing or manufactured with Class I substances


if, when EPA evaluates such a product against the five criteria 

mentioned in section 610(b)(3), it determines that adequate 

substitutes are available for either the product or the use 

of Class I substances in its manufacture. EPA believes that 

in cases where such substitutes exist, the Administrator has 

the authority to determine that products manufactured with Class 

I substances are nonessential, regardless of the importance 

of these products. In each case, however, EPA must consider 

all five of the criteria in making its determination. 

6. Definition of the Term "Product" 

   The January 16, 1992 proposed rule discussed EPA's definition 

of the term "product" at great length. EPA reiterates its belief 

that the use of the term "product" in section 610 of the statute 

indicates that Congress intended to apply this term to any type 

or category of merchandise or commodity offered for sale, as 

well as any use of a Class I substance in the manufacture or 

packaging of any such merchandise or commodity. 

   A number of commenters disputed EPA's definition of the term 

"product". Several commenters criticized EPA for banning entire 

categories of products rather than individual products. EPA 

believes that such an approach is appropriate, and that it is 

justified by the criteria listed in section 610(b), the statutory 

treatment of certain groups of products manufactured with or 

containing Class II substances in section 610(d), and by the 

tight statutory deadline for promulgation of this regulation.

   In determining whether a product is nonessential, section 

610(b) of the statute directs the Administrator to "consider 

the purpose or intended use of the product, the technological 

availability of substitutes for such product and for such Class 

I substance, safety, health, and other relevant factors". EPA 

reiterates its belief articulated in the proposed rule that 

the statutory mandate to consider the technological availability 

of substitutes "for such product and for such Class I substance" 

clearly indicates Congressional intent to focus on the use of 

Class I substances in broad categories of products as well as 

in individual products (see NPRM for greater discussion of this 

issue).

   In addition, Congress banned entire categories of products 

in section 610(d)(2) when it banned aerosols, pressurized
dispensers, 

and plastic foam products containing Class II substances. EPA 

believes that the statutory language of section 610(d)(2) indicates


Congressional intent to address products and the use of ozone-

depleting substances by broad use categories, provided that 

some mechanism exists for addressing particular applications 

within those categories for which no suitable substitutes exist, 

or for which other important concerns might justify an exemption. 

EPA employed such a mechanism in its section 610 rulemaking 

for the Class I nonessential products ban. In its NPRM, EPA 

proposed banning the use of CFCs in two product categories, 

aerosol products and flexible and packaging foams, but it also 

exempted products for which it had reason to believe that no 

satisfactory substitutes were currently available. EPA then 

carefully considered requests for exemptions received during 

the public comment period in order to address additional products 

within these sectors for which no suitable substitutes exist, 

or for which other concerns might justify an exemption. As a 

result of this procedure, the final rule includes exemptions 

from the nonessential ban for several additional products (see 

sections III.B and IV.E. of today's preamble).

   Finally, there are hundreds of thousands of diverse end uses 

for Class I substances, and EPA clearly could not address the 

multitude of products and end uses for these substances
individually 

given the tight statutory time-frame for promulgating this
regulation. 

Consequently, EPA adopted the approach taken by Congress in 

section 610(d)(2) and proposed banning broad categories of products


and end uses in the NPRM. EPA then considered any comments
requesting 

exemptions for particular applications within these broad
categories 

and carefully evaluated the information provided by the commenters 

as to why these particular applications should not be covered 

by the Class I nonessential products ban. EPA believes that 

this approach is equitable, comprehensive, and that it represents 

the most effective use of the Agency's resources.

7. Definition of Interstate Commerce and Grandfathering of Existing


Product Inventories

   Many commenters addressed the impact of the ban on existing 

inventories. The primary concern of all these commenters was 

the treatment of existing inventories of nonessential products 

after the effective date of the regulation. One commenter, one 

of the largest producers of CFCs, stated that the November 15th 

compliance date could affect a large number of products containing 

up to 50,000 pounds of CFCs.

   The commenters expressed concern that banning the sale of 

these existing inventories would impose significant economic 

burdens on the affected businesses. Moreover, several commenters 

observed that recovery and recycling of CFCs from small aerosol 

containers is difficult and expensive, and that much of the 

ozone depleting chemical used to produce flexible and packaging 

foams is released in the foam-blowing process. Consequently, 

the recall of such products would result in little environmental 

benefit.

   Commenters suggested changing the treatment of existing
inventories 

in the final rule. One commenter, a major manufacturing
association, 

felt that the November 15th compliance date should not apply 

to the sale of products to the ultimate consumer. Many other 

commenters proposed grandfathering existing inventories of products


that had not been sold by November 15, 1992.

   EPA agrees with these commenters that banning the sale of 

existing inventories after November 15, 1992, would adversely 

affect a number of businesses without providing any appreciable 

environmental benefit. The Agency is well aware that redesigning 

and modifying production facilities cannot be accomplished
overnight. 

EPA is also aware that some of the affected products, such as 

spare parts for automobiles, which are packaged with foam, have 

unusually long shelf lives. Moreover, EPA recognizes that the 

statute contemplated that businesses would have one year to 

liquidate existing stocks of nonessential products, and that 

the late publication of the final rule allows manufacturers, 

distributors, and retailers insufficient time to liquidate existing


inventories and revise manufacturing processes. Congress clearly 

intended to give these individuals a year's notice prior to 

banning these products. Given the late publication date of the 

rule, adhering to the November 15, 1992 date for all nonessential 

products would actually contradict Congressional intent in this 

regard. However, as of November 15, 1992, the statute clearly 

prohibits the sale, distribution, or offer of sale or distribution,


in interstate commerce of nonessential products identified in 

EPA regulations (after the effective date of such regulations) 

one year after promulgation of the Class I nonessential products 

ban rule.

   The affected industries could not have known for certain 

whether such products would be banned until final promulgation. 

Consequently, to provide some measure of relief for certain 

industries, with respect to any such products which Congress 

anticipated would be banned, EPA has decided to make January 

17, 1994 the effective date for the ban on products determined 

to be nonessential under section 610(b)(3). This action will 

allow manufacturers, distributors, and retail establishments 

additional time to liquidate existing inventories of Class I 

nonessential products, and to phase out of CFC use in these 

applications in an efficient manner.

   EPA believes, however, that the manufacturers, distributors, 

and retailers of products specifically mentioned in sections 

610(b)(1) and 610(b)(2) of the Act have received sufficient 

prior notice of this action, having been on notice that such 

products would be banned since enactment of the statute.
Consequently, 

chlorofluorocarbon-propelled plastic party streamers and noise 

horns may not be sold, distributed, or offered for sale or
distribution 

in interstate commerce as of February 16, 1993, the effective 

date of this rule. Similarly, cleaning fluids for electronic 

and photographic equipment which contain chlorofluorocarbons 

may only be sold, distributed, or offered for sale or distribution,


in interstate commerce to commercial purchasers effective on 

February 16, 1993.

   EPA believes that sufficient precedent exists for this decision.


The United States District Court for the District of Columbia 

Circuit has established a four-part test to judge the
appropriateness 

of Agency grandfathering (see Sierra Club v. EPA, 719 F.2d 436 

(D.C. Cir. 1983)). This test involves balancing the results 

of four analyses, including whether the new rule represents 

an abrupt departure from previously established practice, the 

extent to which a party relied on the previous rule, the degree 

of burden that application of the new rule would impose on the 

party, and the statutory interest in applying the new rule
immediately.

   For the reasons stated above, EPA believes that banning the 

sale, distribution, or offer of sale or distribution in interstate 

commerce of existing inventories of products first designated 

as nonessential products in this rulemaking after November 15, 

1992 would constitute an abrupt departure from previously
established 

practice and would impose an unreasonable burden on a number 

of affected parties without providing any significant environmental


benefits that might justify an immediate ban. Prior to the
publication 

of today's rulemaking, individuals selling or distributing these 

products faced no restrictions on their sale or distribution; 

moreover, until today, these individuals could not know for 

certain that the products affected under the discretionary
authority 

of section 610(b)(3) of the Act would be identified and banned 

as nonessential products.

   Today's rulemaking does not provide manufacturers, distributors,


or retailers of products specifically mentioned in section
610(b)(1) 

addition time to phase out these nonessential products; however, 

because EPA believes that their listing in the statute provided 

sufficient advance notice, publication of the final rule does 

not in their case constitute an abrupt departure from previously 

established practice.

   In addition, today's rule maintains the proposed rule's ban 

on the sale of chlorofluorocarbon-containing cleaning fluids 

for electronic and photographic equipment to noncommercial
purchasers 

effective on February 16, 1993. Since existing inventories of 

CFC-containing cleaning fluid products not otherwise affected 

by this rulemaking may still be sold to commercial purchasers, 

on February 16, 1993 effective date will not impose any significant


economic burden on the affected businesses. Manufacturers,
distributors 

and retailers of aerosol chlorofluorocarbon-containing cleaning 

fluids banned under section 610(b)(3) will not be able to sell, 

distribute, or offer to sell or distribute, these products in 

interstate commerce to any user, commercial or noncommercial, 

after January 17, 1994, the effective date of the ban on products 

identified under section 610(b)(3). As described above, as with 

the other nonessential products banned under section 610(b)(3), 

the affected businesses will thus have an additional year to 

liquidate their existing inventories of these products after 

promulgation of these regulations.

   One commenter requested that EPA clarify its interpretation 

of interstate commerce with regard to sale, distribution, or 

offer of sale or distribution, of nonessential products within 

the boundaries of a single state. EPA agrees with the commenter 

that the Act does not ban the sale, distribution, or offer of 

sale or distribution, of a product otherwise affected by this 

rulemaking that is manufactured, distributed, and sold without 

ever crossing state lines. However, the Agency wishes to clearly 

state its position that to avoid coverage by this rulemaking, 

an affected party must provide adequate documentation that not 

only was the product manufactured, distributed, and/or sold 

exclusively within a particular state, but that all of the
components, 

equipment, and labor that went into manufacturing, distributing, 

selling, and/or offering to sell or distribute such a product 

originated within that state as well.

   Finally, EPA wishes to clarify its interpretation of sale, 

distribution, or offer of sale or distribution, in interstate 

commerce with regard to the resale of used products. The Agency 

recognizes that more than one consumer often derives utility 

from owning and using certain durable goods affected by this 

rulemaking, such as automobiles, boats, or furniture. Many of 

these products contain components manufactured out of flexible 

and packaging foam, most notably seat cushions. Restricting 

the resale of such used durable goods before the end of their 

productive lifetimes would provide little, if any, environmental 

benefit because the CFCs used to blow foam for these products 

were, for the most part, released during their manufacture. 

Because restricting the resale of such used durable goods would 

impose significant economic hardship on a great many consumers 

without providing any associated environmental benefits, EPA 

does not feel that Congress intended to ban their resale.
Consequently, 

while EPA's interpretation of "interstate commerce" is such 

that interstate commerce includes the entire chain of sale and 

distribution from the manufacturer of a new product to its ultimate


consumer, the Agency recognizes that in the case of durable 

consumer goods such as boats, cars, and furniture, resale of 

the product to additional consumers may occur after the sale 

of the new product to the ultimate consumer. In such cases, 

EPA does not consider the resale of these nonessential products 

to constitute sale, distribution, or offer of sale or distribution,


in interstate commerce for the purposes of this rulemaking.

8. Verification, Recordkeeping and Public Notice Requirements

   Over 60 commenters considered the recordkeeping provisions 

contained in the proposed rule to be burdensome and unnecessary. 

The Agency considered the need for recordkeeping requirements 

at great length as a result of these comments. EPA was concerned 

by the suggestion that the burden imposed by these requirements 

far outweighed any health and environmental benefits associated 

with them.

   The total volume of CFCs used in the U.S. in 1988 for both 

commercial and noncommercial cleaning fluids for electronic 

and photographic equipment was approximately 3000 metric tons, 

or less than 0.8 percent of the total use of Class I substances 

(weighted for ozone-depletion potential). EPA estimates that 

noncommercial sales represented a small but not insignificant 

fraction of this total 1988 use estimate and that total sales 

have dropped since 1988, due to the tax and the scarcity of 

CFCs caused by the phaseout regulations. EPA believes that the 

excise tax on CFCs and the limits on production and imports 

have already raised the price of CFCs sufficiently so that it 

may no longer be economical to use them as cleaning fluids for 

noncommercial equipment. As a result, the current sales of cleaning


fluids for electronic and photographic equipment to noncommercial 

users are likely to be substantially lower than the 1988 level. 

Nevertheless, the statute specifically requires EPA to ban the 

sale of these products for noncommercial use. Consequently, 

the Agency sought to devise a means to meet the statutory
requirements 

without imposing an undue burden on the public.

   EPA has decided to eliminate the specific recordkeeping
requirements 

proposed in the NPRM. The Agency agrees with the commenters 

that these requirements are too burdensome when compared to 

the associated environmental benefits. Instead of requiring 

distributors to maintain records of transactions involving CFC-

containing cleaning fluids, today's final rule merely requires 

sellers and distributors to post signs stating that sale,
distribution, 

or offer of sale or distribution, in interstate commerce of 

these products to noncommercial users is prohibited and that 

purchasers of these products must provide verification that 

they are commercial users. In addition, sellers and distributors 

are required to verify that purchasers of these products are 

commercial users. In order to purchase these products, commercial 

users would have to prove that they are indeed commercial entities.


EPA anticipates that purchasers could fulfill this requirement 

by presenting any number of documents, including but not limited 

to invoices, purchase orders, or official correspondence,
containing 

a commercial identification number. Sellers and distributors 

would have to have a reasonable basis for believing that the 

information presented by the purchaser is accurate and thus 

that the purchaser is in fact a commercial user.

   EPA believes that this approach minimizes the burden of
implementing 

the Congressionally-mandated ban on the sale of CFC-containing 

cleaning fluids for noncommercial electronic and photographic 

equipment. The Agency feels that some form of verification is 

necessary to ensure that these products are not sold to
noncommercial 

users. Requiring purchasers to present, and sellers and
distributors 

to verify, some proof of their commercial status is certainly 

less burdensome than the recordkeeping requirements discussed 

in the proposed rule. EPA could not conceive of requirements 

less burdensome than these that would nonetheless meet the
statutory 

requirement to prevent noncommercial users from purchasing CFC-

containing cleaning fluids.

   One commenter recommended that EPA include government contract 

numbers as an acceptable identification option in the sale of 

cleaning fluids for electronic and photographic uses to government 

clients who would not have a commercial identification number. 

The Agency believes the use of a government contract number 

in verification of commercial status to be a sound option which 

would not compromise the sales restriction to noncommercial 

sources.

   One commenter suggested that the definition of distributor 

should be revised to reflect resale of CFC-containing cleaning 

fluids to other distributors rather than sale to the ultimate 

consumer. EPA believes that the commenter has raised a valid 

point. A number of companies that sell these products to consumers 

also use the products themselves (for example, many computer 

retailers also perform service on customers' computer equipment 

which requires the use of cleaning fluids). Given the nature 

of this industry, it may be difficult for any person who sells 

or distributes these products to determine whether the purchaser 

intends to use them or resell them; the purchaser himself may 

not be certain at the time of purchase whether he intends to 

use or resell these products. Consequently, EPA has revised 

the definition of distributor to include resale of CFC-containing 

cleaning fluids to other distributors. The Agency would like 

to point out, however, that due to its decision to eliminate 

recordkeeping requirements, this change will not require any 

additional recordkeeping. The Agency believes that the burden 

involved in verifying that a distributor who purchases these 

products is a commercial entity will be minimal.

9. Imports and Exports

   Two commenters requested clarification on whether the import 

of products made with CFCs would be prohibited under the ban. 

EPA believes that both the import of any product for sale or 

distribution within the United States, or the initial sale or 

distribution of any product intended for ultimate export from 

the point of manufacture to the point of export, are acts of 

interstate commerce for the purposes of section 610 and would, 

accordingly, be affected by this regulation. The import or export 

of products affected by today's rulemaking will be subject to 

the same restrictions as the sale, distribution, or offer of 

sale or distribution, in the United States (for a discussion 

of EPA's interpretation of "interstate commerce," see section 

III.A.7. of today's preamble). EPA will work in close cooperation 

with the U.S. Customs Service to enforce this restriction. Because 

today's rulemaking prohibits the sale, distribution, or offer 

of sale or distribution, in interstate commerce of products 

banned pursuant to section 610(b)(3) effective on January 17, 

1994, these products may continue to be imported, or sold or 

distributed for export, until January 17, 1994.

10. Future Regulation

   Several commenters criticized EPA for limiting the scope 

of today's rulemaking primarily to plastic flexible and packaging 

foams and aerosols and pressurized dispensers that release CFCs. 

In addition, several commenters discussed a number of products 

not covered by the proposed rule. Several of these products 

or processes, such as tobacco expansion, aerosol insulating 

foam, and the use of closed-cell polyurethane foam as a flotation 

foam, may meet the criteria for nonessentiality; nevertheless, 

as discussed elsewhere in today's rulemaking, EPA believes that 

it would be inappropriate to ban them in today's final rule 

because the Agency did not propose banning these products in 

the NPRM. 

   The status of methyl chloroform under the nonessential products 

regulation was raised by four commenters, and at the public 

hearing, one commenter criticized EPA for not covering methyl 

chloroform in the Class I nonessential rule. This commenter 

cited a major corporation's policy of phasing out the use of 

methyl chloroform by the end of 1992 to support the inclusion 

of methyl chloroform in the Class I nonessential products ban. 

The Agency encourages and applauds companies that have phased 

out the use of ozone depleting chemicals as quickly as possible, 

and it reiterates its belief that substitutes are available 

for many of the current uses of methyl chloroform. Methyl
chloroform 

is a chemical with many extremely diverse end uses, however, 

and insufficient time was available for the Agency to analyze 

the uses of methyl chloroform systematically given the short 

statutory time-frame mandated for this rulemaking. The Agency 

will continue to collect information on the uses of methyl
chloroform.

   The Agency is aware that the potential exists for eliminating 

other nonessential uses of ozone-depleting substances. In that 

regard, EPA wishes to emphasize that, in general, other sections 

of the Act provide sufficient controls for reducing emissions 

of ozone-depleting substances. The use sectors and product
categories 

addressed by the commenters have already been affected by the 

section 604 phaseout of the production of ozone-depleting
substances 

and the excise tax on ozone-depleting substances. In addition, 

it is possible that they may also be specifically addressed 

in a number of other provisions of title VI. For example, the 

Agency is currently developing regulations to implement section 

608, concerning emission limitations, and section 612, concerning 

safe substitutes, as well as the accelerated phaseout required 

by the recent modifications to the Montreal Protocol. The products 

and use sectors discussed in the Class I nonessential products 

ban will be affected by these regulations as well.

   EPA will continue to collect information on the use of CFCs 

and acceptable substitutes. EPA has the authority to revise 

the list of products banned under sections 610(a) and 610(b), 

and, although the Agency does not at this time anticipate the 

need to add other products to the list of banned Class I products, 

it reserves the right to undertake additional rulemaking in 

the future regarding products that release Class I substances 

into the environment as necessary and appropriate.

11. Regulatory Impact Analysis

   One commenter suggested that banning the use of CFCs in plasma 

etching would increase the costs associated with this regulation 

to over $100 million. Executive Order 12291 requires agencies 

to conduct a Regulatory Impact Analysis for regulations with 

economic impacts which exceed this level. Consequently, the 

commenter requested that EPA conduct a regulatory impact analysis 

(RIA) for the Class I nonessential products rulemaking if the 

use of CFCs in plasma etching was banned. EPA believes that 

the commenter is correct in observing that prohibiting the use 

of Class I substances in plasma etching would significantly 

increase the economic costs associated with the Class I
nonessential 

products ban. However, as discussed elsewhere in today's
rulemaking, 

EPA does not intend to ban the use of Class I substances in 

plasma etching. Consequently, the Agency believes that the cost 

and benefits chapter of the background document adequately
addresses 

the regulatory impact of section 610, since it is considered 

to be only a minor rulemaking (see Background Document). EPA 

believes that preparing an RIA is not required by the Executive 

Order for the Class I nonessential products ban rulemaking, 

and that consequently, preparing such a document would be redundant


and inappropriate.

B. Specific End Uses



1. Statutorily Mandated Products

   Section 610 listed three specific products to which the Class 

I nonessential products ban applies: Chlorofluorocarbon-propelled 

plastic party streamers, chlorofluorocarbon-propelled noise 

horns, and chlorofluorocarbon-containing cleaning fluids for 

noncommercial electronic and photographic equipment.

   The statute left EPA little discretion with regard to the 

treatment of these products under the nonessential products 

ban, and no significant comments were received regarding them, 

with the exception of comments on the treatment of existing 

inventories. As mentioned in section II.A.6. of today's preamble, 

the final rule bans the sale, distribution, or offer of sale 

or distribution, in interstate commerce of these products effective


on February 16, 1993.

2. Foams

   a. Distinciton between insulation foams and flexible and 

packaging foams. One commenter suggested that the distinction 

between thermal insulation foams (which are excluded from the 

Class I nonessential products ban) and flexible and packaging 

foams (which are covered by the Class I ban) should not be
reapplied 

for the Class II ban. According to the commenter, the legislative 

history indicates that the definition of insulation foams to 

be exempted from the Class II ban should be expanded beyond 

thermal insulation and include foam cushioning for other uses 

such as medical and electronic supplies. However, the commenter 

did not question EPA's decision to exempt thermal insulation 

foams produced with CFCs from the Class I nonessential products 

ban. EPA will consider the commenter's recommendations on the 

definition of "foam insulation product" in preparing the proposed 

rule for the Class II ban.

   b. Flexible polyurethane slabstock foam. In the January 16, 

1992 NPRM, EPA proposed to ban the use of CFCs in flexible
polyurethane 

slabstock foam. The Agency also requested comment on the potential 

impacts of individual states' limits on the use of methylene 

chloride (MeCl) as a blowing agent in flexible polyurethane 

slabstock foams. EPA received two comments arguing that state 

and regional restrictions on the use of MeCl are unlikely to 

impose significant economic burdens on flexible foam manufacturers 

because acceptable alternative technologies are currently
available. 

The Agency also received a third comment arguing that a ban 

on the use of CFC-11 in flexible polyurethane slabstock foam 

production, in conjunction with the impending 1994 Class II 

nonessential products ban on the use of HCFCs in the production 

of certain foams and the possible future restriction on methyl 

chloroform use as well, would cause production of super-soft 

and low-density foams to cease in those states that limit the 

use of MeCl. The commenter also urged EPA to allow limited
exceptions 

to the ban until January 1, 1994 for those companies likely 

to be adversely affected by it. EPA carefully considered these 

comments in developing the provisions of the final rule that 

affected the production of flexible polyurethane slabstock foam. 

   In making its determination, EPA examined the purpose and 

intended use of flexible polyurethane slabstock foam. Flexible 

polyurethane slabstock foam finds use in cushioning applications 

for furniture, carpet underlay, bedding, automobile upholstery, 

and packaging, among others. EPA does not consider the purposes 

for which flexible slabstock is employed to be "frivolous." 

   EPA determined, however, that adequate substitutes for CFCs 

in the production of flexible polyurethane slabstock foam were 

indeed available. According to the 1991 UNEP Flexible and Rigid 

Foams Technical Options Report, CFC-11 use represents only a 

small fraction of total auxiliary blowing agent use in flexible 

slabstock foams. Because the vast majority of flexible slabstock 

producers have converted from CFC-11 to alternative blowing 

agents and processes, EPA believes that substitutes for CFCs 

are readily available in this area and that the use of CFCs 

in flexible polyurethane foam is therefore nonessential. At 

present, there are a number of alternatives to the use of CFCs 

in flexible polyurethane slabstock foam. MeCl represents the 

most widely used and widely available alternative. In areas 

that restrict the use of MeCl, manufacturers have turned to 

alternative blowing agents such as acetone, HCFCs, and methyl 

chloroform. Other near-term alternatives are also available. 

For example, modifications in polyol technology and the use 

of softening additives can reduce or even eliminate the need 

for certain auxiliary blowing agents. "AB" technology, which 

uses formic acid to double the quantity of gas produced during 

the isocyanate reaction, may offer a viable alternative to CFCs 

in those areas where other substitutes are infeasible. Finally, 

an increase in the density of foam produced can dramatically 

reduce the need for auxiliary blowing agents. 

   There are a number of safety and health issues associated 

with the possible substitutes for CFCs in the production of 

flexible polyurethane slabstock foam; however, EPA believes 

that with the proper precautions these alternatives can be used 

safely. EPA has classified MeCl as a probable human carcinogen 

with an Occupational Safety and Health Administration Permissible 

Exposure Limit (OSHA PEL) of 25 parts per million. Flexible 

foam manufacturers that use MeCl must follow appropriate worker 

health and safety practices. Acetone is extremely flammable, 

and manufacturers must ensure that ventilation is adequate, 

and they may need to take other safety precautions as well. 

Moreover, acetone is a volatile organic compound (VOC) that 

can contribute to the formation of ground-level ozone (smog). 

States have the primary responsibility for enforcing the National 

Ambient Air Quality Standards (NAAQS) that relate to ground-

level ozone, and the use of acetone could be subject to
restrictions 

in those regions classified as ozone nonattainment areas. HCFCs 

and methyl chloroform, although they have much lower potential 

to deplete stratospheric ozone than CFCs, have measurable ozone-

depletion potentials; consequently, other sections of title 

VI place restrictions on HCFCs and methyl chloroform. Finally, 

the formic acid used in the "AB" process has a low Ph and requires 

special handling. In addition, the carbon monoxide produced 

by the reaction between the isocyanate and the formic acid can 

prove harmful without proper ventilation. While each of these 

alternatives presents some degree of risk to human health and 

the environment, EPA believes that with the proper precautions, 

each can be considered a possible substitute for CFC-11 in the 

production of super-soft and low-density flexible polyurethane 

slabstock foam. Consequently, the Agency believes that substitutes 

are available for this use of CFC-11, and that flexible
polyurethane 

slabstock foam produced with CFC-11 is a nonessential product. 

   In making its determination to classify CFC use in flexible 

and packaging foams as nonessential, EPA also considered several 

other relevant factors. EPA believes that the excise tax on 

CFC-11 will provide a continuing incentive for manufacturers 

to convert to less costly alternatives. Moreover, in those areas 

where MeCl use is restricted, the wide range of near-term
alternatives 

for CFC-11 should provide flexible slabstock manufacturers with 

sufficient opportunity to find an acceptable substitute. As 

a result, EPA expects the economic impacts associated with a 

ban on CFC use in flexible slabstock foams to be minimal. 

   Based on consideration of the above criteria, EPA believes 

that the use of CFCs in flexible polyurethane slabstock foam 

is nonessential. Therefore, today's final rule bans the use 

of CFCs in flexible polyurethane slabstock foam. In response 

to the commenter's request for a limited exemption, EPA seriously 

considered allowing companies with foam production facilities 

located in NAAQS nonattainment areas for ground-level ozone 

in states that prohibit the use of methylene chloride to petition 

the EPA for a limited exemption to the ban until January 1, 

1994. For EPA to grant such an exemption, petitioners would 

have had to satisfactorily document the reasons why these
particular 

facilities could not modify their production processes without 

undue hardship. However, the effective date in today's rulemaking 

for the ban on production of flexible and packaging foams with 

CFCs is January 17, 1993. Since the effective date of the ban 

on CFC use in flexible slabstock foams roughly coincides with 

the date requested in the comment for the termination of the 

limited exemption, such an exemption appears unnecessary. 

   c. Integral skin foam. Two commenters addressed the use of 

polyurethane integral skin foam in automobiles. Polyurethane 

integral skin foam is used for flexible molded foam steering 

wheels and pads. One commenter was concerned that integral skin 

foam may be covered by the Class I rulemaking due to the broad 

regulatory language under the plastic flexible foam and packaging 

foam categories, and requested an exemption for the use of CFC-

11 in the production of integral skin foam until January 1, 

1994. The other commenter asserted that it had developed a process 

for producing integral skin foam using water as the blowing 

agent. EPA wishes to clarify the status of integral skin foam 

under the Class I nonessential products rulemaking. The Agency 

does not consider integral skin foam to be a plastic flexible 

or packaging foam product (see section I.I.3. of today's preamble),


and EPA has not included integral skin foam in the Class I
nonessential 

products ban. Consequently, there was no need to consider the 

commenter's request for an exemption for the use of CFC-11 in 

the production of integral skin foam. However, the phaseout 

of the production of CFCs by 1996 required under the newly-modified


Montreal Protocol will force manufacturers to adopt alternatives 

to CFCs within a relatively short period of time regardless 

of the nonessential products ban. In addition, the Agency must 

consider the production of integral skin foam during the rulemaking


for the Class II nonessential products ban. Consequently, EPA 

was pleased to learn from the public comments that the automobile 

industry expects to completely phase out the use of CFCs, as 

well as HCFCs, in the production of integral skin foam by January 

1, 1994. 

   d. Closed cell polyurethane foam used as flotation form. 

EPA provided several illustrative examples of "noninsulating 

uses" for flexible and packaging foams in its preamble to the 

proposed rule, including flotation foam. Since publication of 

the proposed rule, EPA has become aware that closed cell
polyurethane 

foam, which EPA does not consider a flexible or packaging foam, 

is used as a flotation foam in the manufacture of certain boats. 

At least one manufacturer uses a CFC-blown foam as both structural 

and flotation material in the manufacture of its boats.
Consequently, 

in drafting today's rulemaking, EPA considered whether it should 

include this application in the Class I nonessential products 

ban. 

   In evaluating this application of closed cell polyurethane 

foam, EPA examined the purpose and intended use of flotation 

foam. Flotation foam serves as an important safety feature of 

many small watercraft. In addition, in at least one product 

line, closed cell polyurethane foam serves as a structural element 

as well. Consequently, EPA does not believe that the purpose 

of closed cell polyurethane flotation foam is "frivolous." 

   The use of CFCs in this product, which EPA does not consider 

a flexible or packaging foam, may not be nonessential at the 

present time. One manufacturer of closed cell polyurethane
flotation 

foam has indicated its intention to convert from CFCs to HCFCs 

in the near future. However, EPA has not verified that all uses 

of closed cell polyurethane flotation foam have available non-

CFC alternatives at this time.

   Flotation foam serves an important safety function in the 

design and operation of boats, and EPA does not want to take 

action that would jeopardize the continued manufacture of this 

type of foam. However, EPA is concerned about the risks to human 

health and the environment posed by continued use of Class I 

substances in the manufacture of closed cell polyurethane flotation


foam as well. As a result, the Agency intends to continue examining


the need to prohibit such use. 

   EPA also considered several other relevant factors. EPA believes


that the excise tax on CFCs will provide a continuing incentive 

for manufacturers to move away from the use of CFC-11 where 

possible. In addition, the accelerated phaseout will force
manufacturers 

to adopt alternatives within a relatively short period of time 

regardless of the nonessential products ban.

   Finally, EPA believes that it would be inappropriate to include 

new product categories in the ban that were not considered by 

the proposed rule. EPA believes that the Administrative Procedure 

Act and section 307(d) of the Clean Air Act require EPA to propose 

rulemaking and take comment before proceeding to final rulemaking. 

In preparing the proposed rule, EPA relied heavily upon the 

research conducted for the 1991 UNEP Flexible and Rigid Foams 

Technical Options Report. EPA participated in the development 

of the definitions of product categories utilized in the UNEP 

technical options reports, and the Agency routinely employs 

these categories in its own reports, internal documents, and 

rulemakings. The UNEP report categorizes closed cell polyurethane 

foam as an insulating foam rather than a flexible or packaging 

foam. EPA, too, categorizes closed cell polyurethane foam as 

an insulating foam, not a flexible and packaging foam. Because 

EPA was unaware that closed cell polyurethane foam was used 

as a flotation foam at the time the NPRM was published, it did 

not include the use of closed cell polyurethane foam as a flotation


foam in the proposed Class I nonessential products ban. 

   Today's rulemaking covers only products proposed in the January 

16, 1992 proposed rule. Consequently, closed cell polyurethane 

flotation foam is not included in the nonessential products 

ban implemented by today's rulemaking. However, EPA research 

indicates that the use of CFC-blown closed cell polyurethane 

foam as flotation foam may indeed meet the criteria for
nonessentiality. 

The Agency is also aware that the self-effectuating 1994 ban 

on HCFC use in noninsulating foams could encourage movement 

away from HCFCs and back to CFCs. Because the Agency intends 

to avoid promoting such environmentally harmful activity, it 

will continue to examine the need to prohibit CFC use in closed 

cell polyurethane flotation foams. EPA has the authority to 

consider designating as nonessential other products which release 

ozone-depleting substances in future rulemakings, and the Agency 

may consider such action if at a later date EPA determines that 

these products satisfy the criteria for nonessentiality. 

   e. Coaxial cable. EPA did not address the issue of coaxial 

cable in the preamble to the proposed rule. At the time that 

EPA promulgated the proposed rule, the Agency was unaware that 

CFCs are used in the production coaxial cable. Moreover, the 

Agency received no formal comments regarding CFC use in coaxial 

cable. However, since promulgation of the proposed rule,
manufacturers 

of coaxial cable have informed EPA that such use exists. 

   Coaxial cable is widely used as a transmitter of telephone 

and television signals. It consists of two conductors (e.g., 

steel and aluminum) separated by a dielectric (nonconducting) 

material. Manufacturers claim that acceptable dielectric material 

must generate a specific wave pattern to ensure against problems 

such as "signal dropout." As a result, the foam within coaxial 

cable must confirm to stringent performance standards. 

   At least one cable manufacturer currently employs an extruded 

polyethylene foam blown with CFC-12 as the dielectric material 

in its coaxial cable. The same manufacturer is in the process 

of converting to a non-ODP blowing agent to replace its use 

of CFC-12; however, it is unclear whether other manufacturers 

of coaxial cable could take advantage of this process. 

   In evaluating this product, EPA examined the purpose and 

intended use of coaxial cable. EPA recognizes that the purposes 

served by coaxial cable are not "frivolous." 

   EPA has not been able to determine that adequate substitutes 

for CFCs in the production of coaxial cable are available.
Therefore, 

the use of CFCs in this area may not be nonessential at the 

present time. It appears that the largest manufacturer of coaxial 

cable does not use CFCs in the manufacture of its product. In 

addition, another manufacturer of coaxial cable has indicated 

its intention to convert to a non-ODP blowing agent in the
manufacture 

of its product. However, EPA knows very little about these
substitutes 

at this time, and the Agency has been unable to confirm that 

substitutes for CFCs are currently available for most coaxial 

cable manufacturers. 

   EPA is also concerned about the tradeoff between the risks 

to human health and the environment posed by continued use of 

Class I substances in the manufacture of coaxial cable and the 

risks to human health and the environment posed by the use of 

particular substitutes. As a result, EPA intends to continue 

collecting information on possible CFC substitutes for this 

application.

   EPA also considered several other relevant factors. A ban 

on CFC use in the manufacture of coaxial cable could prove harmful 

to some coaxial cable manufacturers. Moreover, EPA believes 

that the excise tax on CFCs will provide a continuing incentive 

for coaxial cable manufacturers to move away from the use of 

CFC-12 where possible. In addition, the accelerated phaseout 

will force manufacturers to adopt alternatives within a relatively 

short period of time regardless of the nonessential products 

ban.

   Consequently, EPA does not intend to ban the use of CFCs 

in coaxial cable at this time. However, the Agency will continue 

to examine the need to take action in the future to prohibit 

the use of CFCs in the manufacture of coaxial cable.

   f. Aerosol polyurethane foam. Aerosol polyurethane foam, 

also known as one component foam, is used by both the building 

industry and by do-it-yourselfers in a variety of applications. 

These include draft-proofing around pipes, cable runs, doors 

and windows; sealing doors and window frames; and joining together 

insulating panels, roofing boards, and pipe insulation.

   CFC-12 has traditionally been the blowing agent of choice 

for aerosol foams because of its relatively low boiling point. 

CFC-12 acts both as a propellant and as a blowing agent yielding 

"frothed foam" that does not flow away from the site of its 

application. In recent years, there has been widespread conversion 

away from CFC-12 and toward alternatives such as HCFC-22 and 

hydrocarbons.

   EPA did not address aerosol foams directly in the preamble 

to the proposed rule. However, the Agency wishes to clarify 

that, for the purposes of this rulemaking, aerosol foams will 

be treated as foams and not as aerosols. EPA believes that this 

approach is consistent with regulations published by the Internal 

Revenue Service (52 FR 56303) that treat spray foam as an
insulating 

foam product for tax purposes. Despite this determination, EPA 

did evaluate this product against the criteria in section
610(b)(3).

   EPA does not believe that either the purpose or intended 

use of aerosol polyurethane foam is "frivolous." Moreover, because 

substitutes for CFCs in aerosol polyurethane foam may not be 

available for all applications, EPA did not determine that the 

use of CFCs in this product is nonessential at this time.

   While many manufacturers have converted from CFCs to
alternatives 

such as HCFCs and hydrocarbons, it is not clear that non-CFC 

substitutes are adequate for all applications at the present 

time. Hydrocarbons may pose flammability risks both at the point 

of manufacture and at the point of use. In addition, both
hydrocarbons 

and HCFCs lack the thermal insulating capabilities of CFC-12.

   Hydrocarbons, because of their flammability, may pose
significant 

risks to safety and health when used as propellants and blowing 

agents in aerosol foams. However, EPA is also concerned about 

the risks to human health and the environment posed by continued 

use of Class I substances in aerosol foams. As a result, the 

Agency intends to continue examining the need to prohibit such 

use.

   In evaluating aerosol polyurethane foam, EPA also considered 

several other relevant factors. Certain manufacturers may be 

unable to convert to non-CFC alternatives at this time due to 

considerations of safety, energy efficiency, or technological 

viability. As a result, a ban on the use of CFCs in aerosol 

foams may be undesirable. Moreover, EPA believes that the excise 

tax on CFCs will provide a continuing incentive for manufacturers 

to move away from the use of CFC-12 where possible. In addition, 

the accelerated phaseout will force manufacturers to adopt
alternatives 

within a relatively short period of time regardless of the
nonessential 

products ban.

   Finally, EPA believes that it would be inappropriate to include 

new product categories in the ban that were not considered by 

the proposed rule. EPA considers aerosol polyurethane foam to 

be an insulating foam, not a flexible and packaging foam.
Consequently, 

this product was not included in the proposed Class I nonessential 

products ban. Today's rulemaking covers only products proposed 

in the January 16, 1992 proposed rule; consequently, aerosol 

polyurethane foam is not included in the nonessential products 

ban implemented by today's rulemaking. However, preliminary 

EPA research indicates that the use of CFCs in aerosol polyurethane


foam may indeed meet the criteria for nonessentiality. EPA has 

the authority to consider designating as nonessential other 

products that release ozone-depleting substances in future
rulemakings, 

and the Agency may consider such action if at a later date EPA 

determines that these products satisfy the criteria for
nonessentiality.

3. Aerosols

   a. Impact of 1994 Class II nonessential products ban. Several 

commenters argued that the proposed rulemaking's inclusion of 

aerosol products was unwarranted. They felt that EPA's concern 

that some manufacturers would switch from the use of Class II 

substances to Class I substances in certain products after January 

1, 1994, was unjustified. The commenters stated that market 

forces would prevent Class I substances from being used in place 

of Class II substances after 1994. In response, the Agency wishes 

to emphasize that it is encouraged by steady movement of the 

aerosol market into non-ozone depleting compounds. EPA believes 

that the use of Class I substances in place of Class II substances 

in most aerosol products after January 1, 1994 is unlikely. 

However, without a regulatory restriction on the use of CFCs 

in aerosols, there are possible scenarios under which the use 

of CFCs may be attractive in 1994, when the ban on the use of 

HCFCs in aerosols takes effect. Consequently, EPA reiterates 

the view expressed in the proposed rule that the Class I ban 

on aerosols is necessary to prevent federal policy from actually 

encouraging additional destruction of the stratospheric ozone 

layer.

   One commenter was concerned that by banning the use of CFCs 

in aerosol products, EPA was closing the provisions made in 

the Act for granting exceptions for the use of Class II substances.


EPA notes that the commenter is correct in observing that today's 

rulemaking may impact the Class II ban on aerosol products. 

However, this does not render the exceptions in the statute 

irrelevant. The Act permits the continued use of Class II compounds


only if the Administrator determines that the aerosol product 

or pressurized dispenser is essential as a result of flammability 

or worker safety concerns and that the only available substitute 

is a legally available Class I substance. While today's rulemaking 

does restrict the use of Class I substances in aerosol products, 

this is not contrary to Congressional intent. EPA is not banning 

all uses of Class I substances in aerosols; consequently, while 

today's action reduces the number of possible candidates for 

exceptions to the Class II ban on aerosol products, it does 

not preclude future action to except uses of Class II substances 

in aerosols or pressurized dispensers.

   The restrictions on the use of Class I substances in aerosols 

and other pressurized dispensers under today's regulations are 

rooted in the fact that for many aerosol uses, which were exempted 

under the 1978 aerosol ban, substitutes have since been developed. 

EPA has shown considerable flexibility in granting exceptions 

for Class I compounds where a substitute is unavailable (MDIs 

and mold release agents, for example). In addition, the exception 

for the use of Class II compounds due to flammability and worker 

safety concerns presents another opportunity for the Agency 

to grant limited exceptions for the use of Class II substances. 

   b. Clarification of "aerosols and other pressurized dispensers".


One commenter requested that EPA examine the use of the phrase 

"other pressurized dispensers" in the language for the aerosol 

restrictions. According to the commenter, "other pressurized 

dispensers" could be interpreted as applying to pressurized 

containers ("bulk containers") used to distribute materials 

for use in other products because these materials generally 

are self-pressurized when so contained. The commenter proposed 

that EPA exclude any pressurized vessel being used as the
containment 

vessel for distribution purposes when the material therein
contained 

is self-pressurized. EPA agrees with the commenter that further 

clarification of the definition of pressurized containers is 

necessary. The use of the phrase "other pressurized dispensers" 

was meant to include non-aerosol products such as CFC-12 dusters 

and freeze sprays. EPA does not believe that the term "other 

pressurized dispensers" applies to pressurized containment vessels 

such as small containers of motor vehicle refrigerant or
containment 

vessels for recycled, recovered or reclaimed refrigerant. Such 

an interpretation would have a devastating and unintended impact 

on the air conditioning and refrigeration industry.  

   As a result of this comment, EPA wishes to clarify that the 

phrase "aerosol product or other pressurized dispenser" does 

not include containers which are used for the transportation 

or storage of Class I substances or mixtures (bulk containers 

are described in 40 CFR 82.3(i) and the July 30, 1992 final 

rule implementing section 604 and related provisions of sections 

603, 607, and 616 of the Act (57 FR 33754)). Such a bulk container 

is not part of a use system; rather, as specified in 40 CFR 

82.3(i), the "substance or mixture must first be transferred 

from a bulk container to another container, vessel, or piece 

of equipment in order to realize its intended use." An example 

of an ambiguous situation affected by this clarification is 

the use of a 12-ounce container of CFC-12 used to recharge a 

motor vehicle air-conditioner. The CFC-12, while it is in the 

container, is not acting and will not act as a refrigerant. 

The CFC must be charged into the motor vehicle air conditioning 

system before it can serve as a refrigerant. Once the refrigerant 

is charged into the air-conditioner, the container is discarded 

and serves no purpose in the operation of the air-conditioner. 

Since the container only serves to transport and store the
chemical, 

EPA considers it to be a bulk container, and not subject to 

the Class I nonessential products ban.  

   c. Dusters and freeze sprays. One commenter requested an 

exemption for the use of CFC-12 in freeze sprays used on electronic


equipment. Another commenter expressed its belief that the Act 

specifically prohibited the sale or distribution of Class II 

substances such as HCFC-22 in aerosols after January 1, 1994, 

but allowed the continued sale or distribution of CFC-12 dusters. 

The commenter felt that the use of CFC-12 in aerosol dusters 

was an unacceptable loophole. EPA wishes to clarify that while 

the Act does not specifically ban the use of Class I substances 

in aerosol dusters, it requires EPA to identify and ban
nonessential 

products containing Class I substances. Consequently, the final 

rule addresses a number of Class I use sectors not specifically 

identified in the statute, including aerosols and plastic flexible 

and packaging foams.  

   Dusters and freeze sprays (also referred to as freezants) 

typically contain a pressurized fluid, such as CFC-12, which 

is released as a gas (duster) or as a liquid (freezant). Dusters 

and freeze sprays contain only one ingredient and are used for 

both commercial and noncommercial applications. The noncommercial 

use of dusters was addressed earlier in the preamble (see section 

I.I.1.c.). EPA considers gas sprays containing CFCs to be among 

the products described as CFC-containing cleaning fluids for 

noncommercial electronic and photographic equipment in section 

610(b)(2). Consequently, the sale of gas sprays to noncommercial 

purchasers is banned by today's rulemaking, as required by the 

statue.  

   Dusters are primarily used in the electronic and photographic 

industries to blow fine dirt materials and dust away from products 

which need to be kept dust-free and which cannot be wiped clean. 

Freeze sprays can be used for a variety of purposes including 

shrink fitting small metal products, testing for faults in
electronic 

equipment, some medical applications, and the removal of chewing 

gum and other waxy or gummed substances from various surfaces. 

   Based on information in a recent report to EPA's Office of 

Research and Development and information provided by commenters, 

EPA evaluated dusters and freeze sprays against the criteria 

for nonessentiality and determined that the use of CFCs in these 

aerosol products, i.e. as propellant or sole ingredient, does 

not warrant an exemption and, therefore, should be banned as 

nonessential.  

   Dusters and freeze sprays serve an important and nonfrivolous 

purpose for the electronics industry as well as other users. 

EPA has not determined that the purpose and intended use of 

these products is nonessential. However, because there are
commercially 

available substitutes, EPA believes that the use of CFC-12 in 

dusters and freeze sprays is nonessential.  

   Several substitute formulations for the use of CFC-12 in 

dusters and freeze sprays have been identified, including HCFCs, 

hydrocarbons, and inert gases (e.g., carbon dioxide and nitrogen 

oxide). Non-aerosol alternatives are also available. EPA believes, 

therefore, that adequate substitutes are readily available for 

CFC-12 as the sole ingredient in dusters and freeze sprays. 

   EPA is aware that, to ensure the safety of workers in the 

electronics industry, alternative formulations for aerosol products


used on electronic or electrical equipment must be nontoxic 

and, in most applications, nonflammable. EPA believes, however, 

that effective and safe non-CFC propellants are readily available. 

   In making its determination regarding these products, EPA 

also considered the economic impact of banning these products. 

EPA acknowledges that any manufacturers still producing CFC 

dusters or freeze sprays would suffer some economic impact as 

a result of this rule. EPA believes, however, that given a 12-

month period before the ban on these products takes effect, 

these manufacturers will have sufficient opportunity to liquidate 

existing inventories and reformulate their products with a
substitute 

for CFC-12. In any case, manufacturers will have to convert 

to a non-CFC substitute soon, given the phaseout of CFC production 

by January 1, 1996 under the modified Montreal Protocol.  

   In conclusion, EPA has determined that the use of Class I 

substances such as CFC-12 as the sole ingredients in dusters 

or freeze sprays is nonessential and, therefore, dusters and 

freeze sprays are included in the ban on nonessential products 

promulgated in today's rulemaking. Consequently, the loophole 

which concerned the second commenter will not exist.  

   d. Lubricants, coatings, and cleaning fluids for electrical 

or electronic equipment. In the proposed rule, EPA proposed 

to ban the use of CFCs in all aerosol products and pressurized 

dispensers with a number of exemptions, including the use of 

CFC-11 or CFC-113 in lubricants, coatings, and cleaners for 

commercial electrical and electronic uses. EPA received one 

comment requesting that the exemption for commercial electrical 

and electronic uses be expanded to include CFC-12.  

   Lubricants and coatings typically contain an active ingredient 

(the lubricating or coating material), a solvent or diluent, 

and a propellant. Cleaning fluids can include solvent sprays 

and gas sprays (gas sprays are discussed in the preceding section 

on dusters and freeze sprays). The solvent sprays typically 

contain a solvent and a propellant and are dispensed as a liquid. 

Lubricants, coatings and cleaning fluids can contain CFCs as 

either solvents or as propellants. CFC-11 and CFC-113 are the 

most common CFCs used as solvents, although a commenter claimed 

that CFC-12 is also used as a solvent in certain applications. 

CFC-12, however, is most commonly used as a propellant. EPA 

believes that the use of CFC-12 as a solvent rather than a
propellant 

is very small.  

   Based on information in a recent report by EPA's Office of 

Research and Development and information provided by commenters, 

EPA evaluated lubricants, coatings, and cleaning fluids for 

electrical and electronic equipment against the criteria for 

nonessentiality and determined that: (1) Use of CFCs as solvents 

or diluents in these aerosol products should not be banned, 

but that (2) use of CFCs as propellants in these aerosol products 

does not warrant an exemption and, therefore, should be banned.

   Lubricants, coatings and cleaners for electronic and electrical 

equipment serve an important and nonfrivolous purpose for the 

electronics industry. EPA has not determined that the purpose 

and intended use of these products is nonessential.

   EPA research indicates that adequate substitutes for the 

use of CFCs as solvents or diluents in these applications may 

not yet be available. In November 1989, EPA's Office of Research 

and Development (ORD) published an evaluation of the need for 

continued use of CFCs in both exempted and excluded uses of 

CFCs in aerosols (see Alternative Formulations). The ORD report 

concluded that adequate substitutes did not yet exist for
lubricants, 

coatings and cleaners using CFC-11 or CFC-113 for commercial 

electrical and electronic equipment. EPA believes that adequate 

substitutes have still not been found for CFCs used as solvents 

or diluents in these aerosol products. In addition, according 

to a commenter, CFC-12 is occasionally used as a solvent in 

these products. EPA believes that the use of CFC-12 as a solvent 

is similar to that of CFC-11 and CFC-113 and that substitutes 

may not be available for this application either.

   However, several substitute formulations for the use of CFC-

12 as a propellant have been identified, including HCFCs,
hydrocarbons, 

and inert gases (e.g., carbon dioxide and nitrogen oxide). These 

substitute propellants are suitable for use as propellants in 

products that contain other ingredients, such as solvent sprays, 

lubricants, and coatings. Non-aerosol alternatives are also 

available. EPA believes, therefore, that adequate substitutes 

are available for CFC-12 as a propellant in lubricants, coatings, 

and cleaners for commercial electrical and electronic equipment.

   EPA is aware that, to ensure the safety of workers in the 

electronics industry, alternative formulations for aerosol products


used on electronic or electrical equipment must be nontoxic 

and, in most applications, nonflammable. EPA believes that, 

while effective and safe non-CFC propellants are readily available,


non-CFC solvents may not be available.

   In making its determination regarding these products, EPA 

also considered the economic impact of banning these products. 

Since substitutes for CFC solvents in aerosol lubricants, coatings,


and cleaners for electronic equipment are not readily available, 

banning these products could have a significant economic impact 

on the electronics industry.

   In conclusion, EPA will permit the continued use of CFC-11, 

CFC-12, and CFC-113 in aerosol lubricants, coatings and cleaners 

for electronic and electrical equipment if the CFCs are used 

as solvents or diluents. EPA has, however, determined that the 

use of CFC-12 as a propellant is nonessential and, therefore, 

its use is banned. As noted above, EPA believes that the use 

of CFC-12 as a solvent rather than as a propellant is very limited.


EPA, therefore, expects that CFC-12 will be used in very few 

aerosol products and only in situations where the manufacturer 

can clearly demonstrate that CFC-12 is not used as a propellant. 

EPA will continue to examine the need to take action in the 

future regarding the remaining uses of CFCs in lubricants,
coatings, 

and cleaning fluids.

   In addition, one commenter suggested that the treatment of 

lubricants, coatings and cleaning fluids for electrical or
electronic 

equipment in the proposed rule was ambiguous. The commenter 

requested clarification about the effect that the phrase "other 

than those specified above" in .82.66(d) had on the treatment 

of these products.

   In drafting the proposed rule, EPA intended to prohibit all 

aerosol uses of CFCs in lubricants, coatings, and cleaning fluids 

for electrical or electronic equipment except for the use of 

CFC-11 and CFC-113 for nonpropellant purposes in such products. 

The preamble to the January 16, 1992 NPRM clearly expressed 

this intent (as mentioned above, EPA has subsequently decided 

to include the use of CFC-12 for nonpropellant purposes in this 

exception). EPA acknowledges, however, that the use of the phrase 

"other than those specified above" in .82.66(d) of the proposed 

rule did not clearly express this intent, because it could have 

been interpreted as excluding additional commercial uses of 

such cleaning fluids in certain electronic applications from 

coverage under the Class I ban. This was not EPA's intent.
Consequently, 

in response to the commenter's request for clarification, the 

phrase "other than those specified above" has been changed to 

"other than those banned in .82.64(a) or .82.64(b)" in today's 

rulemaking.

   e. Spinnerette lubricant/cleaning spray. In the proposed 

rule, EPA exempted several solvent applications of CFCs in certain 

aerosol products due to a lack of available substitutes. One 

exempted product category consisted of release agents for molds 

using CFC-11 or CFC-113 in the production of plastic and
elastomeric 

materials. EPA received one comment requesting that a class 

of somewhat similar products, spinnerette lubricant/cleaning 

sprays used for synthetic fiber production, be exempted from 

the ban on aerosols and pressurized dispensers containing CFCs.

   During the production of certain synthetic fibers such as 

acrylic, a silicone product is sprayed onto spinning blocks 

called spinnerettes. In certain applications, this aerosol product,


containing CFC-114 as the solvent and silicone as the active 

ingredient, is used to both clean and lubricate the spinnerettes 

in order to remove unwanted residue which otherwise builds up 

on them. The formulation acts both as a lubricant and as a cleaning


agent. Spinnerette lubricant/cleaning sprays currently contain 

CFCs, both as solvents and as propellants. CFC-114 is preferred 

as a solvent because it is nonflammable, nontoxic, and provides 

adequate dispersion of the active ingredient. CFC-12 is used 

as the propellant. The commenter estimates that its annual usage 

of CFC-114 is roughly 9,000 pounds per year.

   Based on the information provided by the commenter, EPA
evaluated 

spinnerette cleaning lubricant sprays against the criteria for 

nonessentiality and determined that: (1) Use of CFCs as solvents 

in these aerosol products should not be banned as nonessential 

products at this time, but that (2) use of CFCs as propellants 

do not warrant an exemption and, therefore, should be banned 

as nonessential products.

   In making its determination, EPA examined the purpose and 

intended use of spinnerette lubricant/cleaning sprays. EPA
acknowledges 

the importance of this product for the production of certain 

synthetic fibers and does not consider the use of spinnerette 

lubricant/cleaning sprays to be nonessential.

   The commenter indicated that although research on alternatives 

is currently underway, no solvent substitute which is as safe 

and effective as the CFC-114 formulation for spinnerette
lubricant/cleaning 

sprays is available at this time. However, several substitute 

formulations for the use of CFC-12 as a propellant have been 

identified including HCFCs and inert gases (e.g., carbon dioxide 

and nitrogen oxide). EPA believes, therefore, that adequate 

substitutes are available for CFC-12 as a propellant in spinnerette


cleaning lubricants used for fiber production.

   To ensure worker safety, spinnerette cleaning lubricants 

should be nonflammable and nontoxic. EPA believes that, while 

safe and effective non-CFC propellants are readily available, 

non-CFC solvent alternatives for CFC-114 may not be available 

for all applications at this time.

   In making its determination, EPA also considered the economic 

impact of banning the use of CFC-114 in spinnerette
lubricant/cleaning 

sprays. Since substitutes for the CFC-114 solvent in aerosol 

spinnerette lubricant/cleaning sprays are not readily available, 

banning these products could have a significant economic impact 

on the fiber-producing industries using this production method.

   The excise tax on ozone-depleting compounds and the accelerated 

phaseout will force manufacturers to adopt alternatives within 

a relatively short period of time regardless of the nonessential 

products ban. The industry is currently conducting research 

on such substitutes. 

   EPA has, therefore, decided to exempt the use of CFC-114 

as a solvent in spinnerette lubricant/cleaning sprays from the 

ban on aerosol products and pressurized dispensers containing 

CFCs at this time. However, the use of CFC-12 as a propellant 

in this product is nonessential and, therefore, such use is 

banned.

   f. Plasma etching. EPA received several comments requesting 

that EPA exempt the use of CFCs for plasma etching from the 

ban on aerosol products and pressurized dispensers containing 

CFCs.

   One step in the manufacturing process of semiconductors and 

other microcomputer components requires the sub-micron etching 

of circuit lines on thin sheets of silicon crystal. This technology


process, referred to as plasma or dry etching, uses various 

chlorine- and fluorine-containing chemicals as halide sources 

to create a plasma which is used to etch the silicon wafers 

within a sealed chamber. The chemicals used vary depending on 

the process and include CFCs, halons, carbon tetrachloride, 

and methyl chloroform. These ozone depleting substances are 

transformed into chemicals with no ozone depleting potential 

in the plasma etching process.

   The chemicals used for this process are usually contained 

in stainless steel cylinders. Containers of low pressure
substances, 

such as CFC-11 and methyl chloroform, are pressurized with nitrogen


or carbon dioxide; containers of high pressure substances are 

self pressurized. Typically, hoses and other dispensing mechanisms 

are attached to the containers or cylinders prior to their use 

for plasma etching to allow the chemical to flow into the sealed 

chambers at carefully regulated rates.

   Based on information provided by the commenters and after 

conducting further research into this process, EPA evaluated 

pressurized dispensers for plasma etching against the criteria 

for nonessentiality and determined that they should not be banned 

as nonessential products. 

   In making its determination, EPA examined the purpose and 

intended use of plasma etching. Pressurized dispensers containing 

CFCs for plasma etching provide an important function for the 

computer industry in the manufacture of semiconductors and are 

not nonessential.

   EPA also evaluated the availability of substitutes for the 

CFCs used in plasma etching. The Agency is aware that manufacturers


are in the process of developing substitutes for the Class I 

substances currently used for plasma etching. The excise tax 

on ozone-depleting compounds and the accelerated phaseout will 

force manufacturers to adopt alternatives within a relatively 

short period of time regardless of the nonessential products 

ban. However, no such substitutes are currently available for 

immediate use at economical prices. The cost of converting away 

from CFCs over a one-year period, as would be required if such 

uses were included in the ban on nonessential products-even 

if that conversion is technologically feasible-is economically 

prohibitive. Industry estimates suggest that costs would approach 

several million dollars per facility. Therefore, EPA does not 

consider that substitutes are available within the time frame 

of the nonessential products rule.

   EPA is not aware of any safety or health considerations
associated 

with the alternatives for CFCs in plasma etching. However, EPA 

is also aware that, since virtually all of the CFCs used for 

plasma etching are transformed, the ozone depleting potential 

of the CFCs used in making these products is destroyed in the 

plasma etching process. Consequently banning the use of CFCs 

in the plasma etching process would have an immeasurably small 

environmental benefit.

   Due to the lack of available substitutes at this time, EPA 

has decided to include the use of CFCs for plasma etching in 

the list of products exempted from the ban on aerosol products 

and pressurized dispensers. The accelerated phaseout will force 

manufacturers to adopt alternatives within a relatively short 

period of time regardless of the nonessential products ban. 

EPA encourages the industry to make a swift and efficient
transition 

to these alternatives.

   g. Red pepper bear repellent spray. EPA received one comment 

requesting that red pepper defensive spray used as a bear repellent


be exempted from the ban on nonessential aerosol products
containing 

CFCs. The commenter argued that its product did not meet EPA's 

criteria for nonessentiality and, thus, should not be banned.

   Red pepper sprays are aerosol products used to temporarily 

disable an attacker. They contain an active ingredient (the 

essence of red pepper) that causes temporary blindness, breathing 

difficulties, and severe skin discomfort to animals or humans 

that come into contact with it. Red pepper sprays are used by 

individuals and law enforcement agencies for a variety of purposes 

ranging from personal protection to crowd control. In addition, 

bear repellent spray containing red pepper is used by campers, 

hikers, and park and forest service officials, most typically 

against charging grizzly bears. EPA is aware that CFC-113 is 

used as a solvent in at least one defensive spray. EPA is not 

aware of any other safety sprays containing CFCs as propellants.

   CFC-113 is used as a solvent in at least one defensive spray. 

This product, developed as a bear repellent spray, uses CFC-

113 to propel the active ingredient some distance and produce 

a large cloud of repellent fog that remains in the air long 

enough to affect a charging bear. The commenter argued that 

no available substitute could produce the necessary cloud of 

repellent at sufficient distance. The commenter also uses CFC-

113 because it is nonflammable, nontoxic, and compatible with 

the active ingredient.

   Based on information provided by the commenter and after 

conducting further research into this product, EPA evaluated 

red pepper sprays against the criteria for nonessentiality and 

determined that: (1) Use of CFCs as solvents in red pepper sprays 

used as bear repellent should not be banned; but that (2) use 

of CFCs as solvents in other safety sprays, including red pepper 

sprays, is nonessential; and (3) use of CFCs as propellants 

in all safety sprays is nonessential and, therefore, should 

be banned under this rule. An exemption to the ban is warranted 

only for the use of CFC-113 as a solvent in bear repellent sprays.

   In making its determination, EPA examined the purpose and 

intended use of red pepper spray. EPA acknowledges that red 

pepper sprays serve an important nonfrivolous use and has not 

concluded that the use of red pepper sprays is nonessential. 

However, EPA has determined that the use of CFCs in red pepper 

sprays is, in most cases, unnecessary and is, therefore,
nonessential.

   EPA determined that adequate substitutes for CFCs in the 

production of red pepper spray were indeed available for all 

applications, with the possible exception of bear repellents. 

Several manufacturers produce non-CFC aerosol formulations of 

red pepper and other personal safety sprays for protection against 

humans. Solvents in these formulations include methyl chloroform, 

HCFC-141b, dimethyl ether, and water-based compounds. As a result, 

EPA has concluded that effective substitutes are available for 

the CFC solvent in red pepper and other safety sprays used against 

humans, and that use of CFCs in these red pepper sprays is
nonessential. 

However, no manufacturer has formulated a non-CFC bear repellent 

spray that has been proven to be effective. The solvent use 

of CFCs in these products is necessary to allow the spray to 

travel long distances and produce adequate dispersion to stop 

a charging bear. Therefore, the Agency believes that substitutes 

may not be available for application against bears.

   There are a number of safety and health issues associated 

with the possible substitutes for CFCs in the production of 

red pepper spray. EPA understands that, because of potential 

dangers posed to both the user and the intended target,
formulations 

(including solvents) should be nontoxic and nonflammable. EPA 

believes that non-CFC formulations currently exist for most 

defensive sprays that are both effective and safe to use. However, 

since proven substitutes for CFC-113 in bear repellent have 

not been tested yet, EPA concluded that a safe and effective 

non-CFC formulation for bear repellent may not be available.

   EPA acknowledges that the manufacturer producing the CFC 

formulation would suffer some economic impact as a result of 

this rulemaking (the company markets this product for use against 

humans as well). EPA believes, however, that given a 12-month 

period before the ban takes effect, the manufacturer will have 

sufficient opportunity to reformulate its product for use against 

humans with a substitute for the CFC solvent. However, since 

substitutes for CFC solvents in red pepper sprays used as bear 

repellent are not readily available at this time, banning these 

products could cause more significant economic injury for the 

manufacturer of this product. In any case, the manufacturer 

will have to convert to a non-CFC substitute soon, given the 

phaseout of CFC production by January 1, 1996 under the modified 

Montreal Protocol.

   In conclusion, EPA will permit the continued use of CFC-113 

as a solvent in red pepper sprays used as bear repellent. EPA 

believes, however, that it is not necessary to exempt other 

safety sprays, including red pepper sprays, for use against 

humans from the ban on nonessential products. Therefore, aerosol 

or pressurized dispensers of red pepper sprays containing CFCs 

which are not sold as bear repellent will be included in the 

ban. EPA has also determined that the use of CFC-12 as a propellant


in safety sprays is nonessential and, therefore, such use is 

banned. EPA will continue to examine the need to take action 

in the future to prohibit the remaining uses of CFCs in red 

pepper safety sprays as appropriate.

   h. Document preservation. EPA received one comment requesting 

that processes and products used for the preservation of books 

and archival documents be exempted from the ban on aerosols 

and pressurized dispensers containing CFCs. Further research 

conducted by EPA determined that at least two manufacturers 

in the U.S. produce aerosol products which are used for document 

preservation.

   Books, documents, and works of art on paper can be preserved 

through the application of a nonaqueous deacidification treatment 

which neutralizes existing acids in paper and increases its 

expected life for several hundred years. There are several
application 

methods for this technology, including a dipping method, a
liquified 

gas process conducted in an enclosed chamber, and an aerosol 

spray method. Most of the existing methods that have proven 

to be both safe and effective use CFC solvents (primarily CFC-

113) to dissolve the preserving and alkalizing chemicals and/or 

act as carriers to transport them to the paper. CFC-113 is
preferred 

because it is nonflammable, nontoxic, evaporates quickly, is 

nonreactive with the document material, and displays little 

or no tendency to dissolve inks, dyes, or bindings. EPA estimates 

that the production of aerosol document preservation sprays 

uses less than 10,000 pounds of CFCs per year.

   Most documents at large institutions are preserved through 

a non-aerosol mass deacidification process. This method does 

not necessarily require the use of CFCs but is not generally 

available to outside users. However, the aerosol method, which 

involves spraying the preserving chemicals directly onto documents 

through an aerosol can or pressurized dispenser, is the only 

method that is appropriate and affordable for extremely delicate 

or valuable documents or for occasional and small volume users 

such as librarians, conservators, and archivists. Due to the 

risk of loss or irreparable damage, transportation of documents 

to centralized deacidification facilities may often not be
possible.

   Based on the information provided by the commenter and by 

other manufacturers of this product, EPA evaluated document 

preservation sprays against the criteria for nonessentiality 

and determined that the products should not be banned as
nonessential 

products at this time.

   In making its determination, EPA examined the purpose and 

intended use of document preservation sprays. EPA acknowledges 

the importance of this product for preserving valuable and historic


documents and does not consider the use of document preservation 

sprays to be nonessential.

   Manufacturers have indicated that no substitute which is 

as safe and effective as the CFC formulation for aerosol document 

preservation sprays is available at this time. The excise tax 

on ozone-depleting compounds and the accelerated phaseout will 

force manufacturers to adopt alternatives within a relatively 

short period of time regardless of the nonessential products 

ban. EPA is aware that at least one manufacturer is currently 

in the process of developing a non-CFC formulation for its aerosol 

deacidification product. Development of this formulation is, 

however, in the early stages, and the technology has not yet 

been demonstrated to be effective in the field. EPA believes, 

therefore, that safe and effective solvent substitutes have 

not yet been found.

   To protect the safety of both the user and the document to 

be preserved, document preservation sprays should be nonflammable 

and nontoxic. EPA believes that safe and effective alternatives 

for CFC-113 in document preservation sprays are not available 

at this time.

   In making its determination, EPA also considered the impact 

on society of banning this product. Since non-CFC substitutes 

for CFC-113 in document preservation sprays are not readily 

available, banning this use of CFC-113 would eliminate a product 

which may be the only preservation technology available to
occasional 

and small volume users. EPA acknowledges that, if these
preservation 

sprays were banned, many valuable documents might not be preserved.


The deterioration of many of these documents would result in 

a loss to society that, although difficult to measure, would 

be significant.

   EPA has, therefore, decided to exempt the use of CFC-113 

in document preservation sprays from the ban on aerosol products 

and pressurized dispensers containing CFCs. EPA does not believe 

that this product is a nonessential product under the criteria 

specified in Section 610. EPA will, however, continue to examine 

the need to take action in the future to prohibit the use of 

CFCs in document preservation sprays should substitutes be
developed.

4. Medical Products

   The proposed rule exempted certain medical products from 

the ban, but it requested comments on the need for continued 

CFC use in medical products.

   The Agency received many comments regarding the omission 

from the regulatory language of certain products that have been 

declared essential uses of CFCs by the Food and Drug Administration


(FDA). One commenter recommended that all products listed as 

essential by the FDA should be exempted from the ban. The EPA 

wants to clarify that it is indeed the Agency's intent to exempt 

all products listed as essential by the FDA in 21 CFR 2.125. 

With that end in mind, the final rule was re-written to reference 

21 CFR 2.125 rather than to list specific uses. Today's final 

rule exempts the sale or distribution of CFCs in the medical 

products listed in 21 CFR 2.125. EPA will continue to work in 

close cooperation with the FDA to monitor the relevant developments


in technology and to evaluate the need for CFCs in various medical 

applications. If, at some point in the future, the FDA removes 

a category of medical device from its list of essential uses 

of chlorofluorocarbons, that product will meet the criteria 

for nonessentially and be subject to the Class I ban. Other 

comments addressed the specific products described below.

   Prior to the public comment period, EPA believed that the 

industry had phased out the use of CFCs for administering
intrarectal 

hydrocortisone acetate and in anesthetic drugs for topical use 

on accessible mucous membranes of humans where a cannula is 

used for the application. As a result, it did not list these 

uses as exempt from the ban. The extensive information provided 

by two commenters sufficiently demonstrated the continued use 

of CFCs in these applications. These applications are still 

considered essential uses of CFCs by the FDA, and are so listed 

in 21 CFR 2.125. The final rule specifically excludes products 

listed in 21 CFR 2.125 from the nonessential products ban on 

Class I substances; consequently, these products are exempt 

from the nonessential products ban at this time.

   Another commenter filed extensive comments regarding CFC 

use in metered dose inhalers (MDIs). EPA appreciates the detailed 

nature of the information presented on MDIs and is encouraged 

by research on alternative chemicals for use in MDIs. However, 

at this time, no alternative propellant has been approved by 

the FDA, and MDIs are still listed in 21 CFR 2.125 as essential 

uses of CFCs. Consequently, under the final rule, metered dose 

inhalers are exempt from the nonessential products ban at this 

time.

   One commenter applied for an exemption from the nonessential 

products ban for its topical anesthetic and vapocoolant products. 

Since the 1978 aerosol ban restricted only CFCs used as
propellants, 

the use of CFCs as active ingredients in topical anesthetic 

and vapocoolants was not subject to the 1978 ban; however, in 

explaining the status of such products, the preamble to the 

1978 ban expressed the FDA's intent to address topical anesthetic 

and vapocoolant products at a future date.

   According to the commenter, its topical anesthetic and
vapocoolant 

products fit the definition of medical devices under the Federal 

Food, Drug and Cosmetic Act (21 U.S.C. .321). The commenter 

alleged that when its topical anesthetic product is applied 

to human skin, it acts as a counter-irritant to block pain
associated 

with muscle spasms.

   The commenter also disputed the findings of the 1989 EPA 

report on alternative formulations for products which were exempted


or excluded from the 1978 ban on the use of CFCs in aerosols 

products (see Alternative Formulations). The commenter claimed 

that the proposed replacement formula (HCFC-142b, HCFC-22 and 

ethanol), when applied to human skin, would produce temperatures 

in the range of -26 °C to -30 °C, resulting in frostbite.
The 

commenter noted that the temperature of the proposed reformulation 

could be raised by increasing the proportion of HCFC-142b in 

the formulation, but that this change would increase the
flammability 

risk significantly.

   Finally, the commenter noted that FDA approval is necessary 

for the use of any alternative reformulation in medical devices, 

and that the FDA has not yet approved an alternative.

   The EPA believes that the definition of medical device in 

section 601(8) of the Act applies to topical anesthetic and 

vapocoolant products. Consequently, the continued use of CFCs 

in this application is permitted by EPA until FDA takes further 

action with regard to such products. If and when FDA approves 

a safe and effective alternative formula for topical anesthetics, 

this product will no longer meet the statutory definition of 

medical device in section 601(8); at that time, EPA will consult 

the FDA and consider promulgating regulations to prohibit the 

sale, distribution, or offer of sale or distribution, in interstate


commerce of topical anesthetic and vapocoolant products containing 

any ozone-depleting substance. EPA is encouraged to learn that 

the commenter is in the process of applying for FDA approval 

of a reformulation which does not require the use of either 

CFCs or HCFCs. EPA will continue to monitor these developments, 

and it may consider regulation of these products at a later 

date.

5. Residential Halon Fire Extinguishers

   The Agency's request for comments on banning halon fire
extinguishers 

for residential use produced a number of responses. Many commenters


supported a ban on the sale and distribution of residential 

halon fire extinguishers, and a number of commenters encouraged 

EPA to take immediate action to remove halon fire extinguishers 

from store shelves; some commenters even urged EPA to ban the 

use of all fire extinguishers containing halons. Despite their 

differences, all of these commenters argued that substitutes 

were currently available for residential halon fire extinguishers, 

and that the need to reduce emissions of ozone-depleting chemicals 

was sufficient to justify banning these products.

   Several other commenters opposed a ban on residential halon 

fire extinguishers, arguing that currently available alternatives 

were inadequate and that the threat posed to the environment 

by residential fire extinguishers was minimal. In addition, 

these commenters argued that including these products in the 

ban would have a significant adverse impact on manufacturers 

of halon fire extinguishers.

   Based on the available information (see Background Document 

and various comments in Docket), EPA evaluated residential halon 

fire extinguishers against the criteria for nonessentiality 

and determined that they should not be currently considered 

nonessential products. Consequently, EPA has decided not to 

ban residential halon fire extinguishers at this time.

   In making its determination, EPA examined the purpose and 

intended use of residential halon fire extinguishers. Fire
extinguishers 

for residential use are critical home safety products. These 

products are clearly not frivolous.

   Although there are alternatives to halon fire extinguishers 

commercially available for residential use, the commenters raised 

legitimate concerns about the suitability of these substitutes 

for all situations. EPA felt that the important safety function 

served by handheld residential fire extinguishers obligated 

the Agency to carefully evaluate the safety concerns associated 

with a ban on the sale and distribution of halon fire extinguishers


for residential use. As a result of its research, however, EPA 

determined that adequate substitutes for halon fire extinguishers 

in most situations were indeed available. In fact, some of these 

substitutes are more effective than halons for certain types 

of fires, such as deep-seated fires (see Background Document). 

The Agency recognizes, however, that the continued use of these 

products suggests that in certain noncommercial applications, 

halon fire extinguishers do not meet the criteria for
nonessentiality.

   The health and safety issues associated with the possible 

substitutes for halon in residential fire extinguishers include 

the toxicity of the various chemicals and the health effects 

associated with the product's impact on stratospheric ozone 

depletion. EPA believes that excluding the effects of stratospheric


ozone depletion, currently available substitutes provide an 

equivalent level of fire safety protection without posing any 

offsetting threat to safety or human health. When the health 

and environmental effects of stratospheric ozone depletion are 

considered as well, EPA believes that there is a compelling 

case to be made for phasing out halon fire extinguishers for 

residential use.

   However, in making its determination to exclude halon fire 

extinguishers from the Class I nonessential products ban, EPA 

considered several other relevant factors as well. While the 

EPA believes that adequate substitutes for residential halon 

fire extinguishers currently exist for many uses, the Agency 

also believes that given the effective date of today's rulemaking, 

the scheduled increase in the excise tax on halons, and the 

imminent cessation of halon production under the accelerated 

phaseout, little environmental benefit would result from including 

residential halon fire extinguishers in the Class I nonessential 

products ban.

   The dramatic increase in the tax on halons which takes effect 

January 1, 1994 should act as a strong incentive for manufacturers 

to expedite the phaseout of halons. EPA anticipates that the 

tax alone will significantly reduce sales of halon fire
extinguishers 

for residential use. Moreover, halon fire extinguishers for 

residential use represent only a small fraction of total annual 

ODS emissions (far less than one percent of annual global ODP-

weighted emissions).

   At the time the NPRM was published, EPA believed that sufficient


time remained to promulgate its final rule well before the November


15, 1992 effective date specified in the statute. Consequently, 

in developing the January 16, 1992 NPRM, the Agency believed 

that the practical effect of including residential halon fire 

extinguishers in the Class I nonessential products ban would 

be to accelerate the phaseout of these products by 14 months. 

One of the concerns expressed by EPA in the proposed rule was 

whether such an action would be worthwhile, considering the 

relatively short period of time during which the ban would have 

any impact. Since the NPRM was published, Congress has increased 

the tax on halons, and the Parties to the Montreal Protocol 

have agreed to phase out the production of halon in member
countries, 

except for essential uses, by January 1, 1994. Given that the 

effective date of the ban for products identified under section 

610(b)(3) in today's rulemaking nearly coincides with the January 

1, 1994 increase in the excise tax and the ban on halon production 

under the Montreal Protocol, this concern is even more pertinent.

   EPA believes that the combined effect of the excise tax and 

the accelerated phaseout will be to end the sale and distribution 

of halon fire extinguishers for residential use. Consequently, 

although EPA believes that adequate substitutes exist for halon 

in residential fire extinguishers in many situations, the Agency 

believes that the use of halon in these products will be addressed 

more effectively through the excise tax and the accelerated 

phaseout, and, thus, that regulation under section 610 is
unnecessary. 

As a result, residential halon fire extinguishers are not included 

in the Class I nonessential products ban. 

6. Other Uses

   EPA received one comment requesting that expanded tobacco 

produced using CFC-11 as an expansion agent be included in the 

rule as a nonessential product.

   The CFC-11 tobacco expansion process is a patented, physical 

process that uses CFC-11 to restore cured, aged tobacco to its 

original field volume. In this process, cured tobacco is
impregnated 

with CFC-11. The impregnated tobacco is then brought in contact 

with hot air that causes the CFC-11 to vaporize and the tobacco 

to expand. The CFC-11 is then recovered by cooling and compressing.


EPA is aware that other tobacco expansion methods used by tobacco 

companies include process using carbon dioxide, steam, and
nitrogen. 

Carbon dioxide appears to be the most promising of these
substitutes, 

as it can achieve the same expansion levels as the CFC-11 process. 

Additional information provided to EPA suggests that tobacco 

processors are currently engaged in converting from the CFC-

11 process to the carbon dioxide process.

   EPA investigated the possibility of banning the use of CFC-

11 for tobacco expansion as a nonessential product due to the 

availability of substitutes. The Agency believes that, due to 

the commercial availability of substitutes for CFC-11 in this 

process, the use of CFC-11 in tobacco expansion is nonessential. 

However, as stated in section III.A.5., EPA believes it is
inappropriate 

to ban products through this final rule that were not included 

in the proposed rule. Consequently, the use of CFCs in tobacco 

expansion is not banned as a nonessential product in today's 

rulemaking. Given that CFC production will end by January 1, 

1996, EPA believes that there is a strong incentive for companies 

to convert all production processes to non-CFC methods. However, 

EPA will continue to examine the need to take action in the 

future to prohibit the use of CFC's for tobacco expansion.

IV. Summary of Today's Final Rule

   This section briefly describes the provisions of today's 

final rule. Any changes made to the rule language as a result 

of the public comments are described. Various minor changes 

to the final rule that have been made for purposes of clarification


are not described herein.

A. Authority

   The authority citation remains the same as in the proposed 

rule.

B. Purpose (Section 82.60)

   This section states that these rules implement sections 608 

and 610 of the Clean Air Act Amendments of 1990 regarding emission 

reductions and the Class I nonessential products ban. There 

were no changes in this section based on public comment. Minor 

editing changes were made to improve clarity and consistency.

C. Definitions (Section 82.62)

   This section contains the definitions of the terms
"chlorofluorocarbon," 

"commercial," "consumer," "distributor," "product," and "release."

   No major changes were made in this section of the rule since 

proposal, although the definitions of "distributor" and
"commercial" 

were revised to reflect the changes made in section 82.68 in 

response to public comments regarding recordkeeping, verification 

of commercial status, and commercial identification numbers.

   The definition of "chlorofluorocarbon" describes the Class 

I substances affected by this rule. The definition of "consumer" 

is intended to distinguish the ultimate purchaser, recipient 

or user of a product from a manufacturer, seller, or distributor. 

The definition of "product" is intended to describe an item 

or category of items affected by today's rulemaking. The definition


of "release" is intended to identify products that are affected 

by today's rulemaking.

   The definition of "commercial" is intended to identify
purchasers 

who are not prohibited by the statute from buying cleaning fluids 

for electronic and electrical equipment. The definition of
"distributor" 

is intended to identify individuals who have responsibilities 

in restricting the sale of CFC-containing cleaning fluids for 

electronic and photographic equipment to commercial users. The 

definitions of "distributor" and "commercial" were revised in 

response to public comment to include the sale of a product 

to another distributor. In addition, the definition of "commercial"


was changed to include a government contract number as a commercial


identification number in response to public comment. Other minor 

editing changes were made to improve clarity and consistency.

D. Prohibitions (Section 82.64)

   The proposed rule contained one prohibition which, effective 

November 15, 1992, prohibited any person from selling,
distributing, 

or offering to sell or distribute, in interstate commerce any 

product identified as being nonessential in .82.66. The final 

rule differs from the proposed rule in that it implements the 

nonessential products ban with three prohibitions rather than 

one.

   The first prohibition states that effective on February 16, 

1993, no person may sell, distribute, or offer for sale or
distribution, 

in interstate commerce any plastic party streamer or any noise 

horn which is propelled by a chlorofluorocarbon. This prohibition 

bans the sale, distribution, or offer of sale or distribution, 

of the products specifically mentioned in section 610(b)(1) 

of the Act. The effective date has been revised to reflect the 

actual publication date of today's rulemaking.

   The second prohibition states that effective on February 

16, 1993, no person may sell, distribute, or offer for sale 

or distribution, in interstate commerce any cleaning fluid for 

electronic and photographic equipment which contains a
chlorofluorocarbon 

to anyone who does not provide proof that he or she is a commercial


purchaser, as defined under section 82.62. This prohibition 

makes the sale, distribution, or offer of sale or distribution, 

in interstate commerce of the products specifically mentioned 

in section 610(b)(2) of the Act to noncommercial purchasers 

unlawful, as required by the statute. The effective date has 

been revised to reflect the actual publication date of today's 

rulemaking.

   The third prohibition states that effective on January 17, 

1994, no person may sell, distribute, or offer for sale or
distribution, 

in interstate commerce any product listed as nonessential in 

.82.66(c) and .82.66(d). This prohibition makes it unlawful 

to sell, distribute, or offer for sale or distribution, in
interstate 

commerce any of the products determined by the Administrator 

under section 610(b)(3) of the Act to be nonessential. The
effective 

date has been revised to reflect the actual publication date 

of today's rulemaking, to facilitate the liquidation of existing 

inventories, and to allow manufacturers sufficient time to redesign


and modify their production facilities and manufacturing processes,


consistent with congressional intent.

E. Nonessential Products and Exceptions (Section 82.66)

   The list of nonessential products in the final rule differs 

from the proposed rule with regard to exclusions for one foam 

product and several aerosol products or pressurized dispensers. 

In its January 16, 1992 NPRM, EPA specifically excluded several 

products from the proposed ban on aerosols and other pressurized 

dispensers containing CFCs. These products were: contraceptive 

vaginal foams; lubricants for pharmaceutical and tablet
manufacture; 

metered dose inhalation devices; gauze bandage adhesives and 

adhesive removers; products using CFC-11 or CFC-113 as lubricants, 

coatings and cleaners for electrical or electronic equipment; 

products using CFC-11 or CFC-113 as lubricants, coatings and 

cleaners for aircraft maintenance uses; and products using CFC-

11 and CFC-113 as release agents for molds used in the production 

of plastic and elastomeric materials (for additional information 

on these products, see Alternative Formulations and Background 

Document).

   Today's rulemaking differs from the proposed rule in that 

the exclusions for contraceptive vaginal foams and metered dose 

inhalation devices, which were originally listed separately, 

have been replaced by a more general exclusion for all medical 

devices listed in 21 CFR 2.125(e); these products are included 

on that list. Intrarectal hydrocortisone acetate, anesthetic 

drugs for topical use on accessible mucous membranes of humans 

where a cannula is used for the application, and polymyxin B 

sulfate-bacitracin-zinc-neomycin sulfate soluble antibiotic 

powder without excipients for topical use on humans are also 

medical devices listed as essential uses of CFCs in 21 CFR 2.125(e)


and are therefore excluded from the nonessential products ban 

at this time. In response to comments, topical anesthetic and 

vapocoolant products have also been excluded from the nonessential 

products ban, as have products using CFC-12 for nonpropellant 

purposes in lubricants, coatings or cleaning fluids for electrical 

or electronic equipment. Spinnerette lubricant/cleaning sprays 

that contain CFC-114 and are used in the production of synthetic 

fibers have also been excluded from the nonessential products 

ban, as have products using CFC-113 in document preservation 

sprays and bear repellent sprays, and the use of CFCs in plasma 

etching. In addition, in response to public comment, the Agency 

has excluded the use of flexible and packaging foam in the
manufacture 

of coaxial cable from the Class I products ban at this time. 

Other minor editing changes were made to improve clarity and 

consistency.

F. Verification, Public Notice, and Recordkeeping Requirements 

(Section 82.68)

   The January 16, 1992 NPRM presented four options for restricting


the sale of these products to commercial users, and proposed 

transaction-specific recordkeeping requirements to help ensure 

compliance with the prohibition on the sale of cleaning fluids 

for noncommercial electronic and photographic equipment.

   The final rule differs from the proposed rule in that
recordkeeping 

requirements for distributors of CFC-containing cleaning fluids 

for electronic and photographic equipment have been eliminated. 

Distributors need not maintain records of transactions involving 

these products; instead, distributors must verify that purchasers 

are commercial users, and they must post a sign stating that 

the sale of these products for noncommercial use is prohibited.

V. Effective Dates

   The effective date for the proposed rule was November 15, 

1992. This final rule differs from the proposed rule in that 

it makes it unlawful to sell, distribute, or offer to sell or 

distribute, in interstate commerce the products specifically 

mentioned in 40 CFR section 82.66(a) effective on February 16, 

1993. This rule also restricts the sale, distribution, or offer 

of sale or distribution, in interstate commerce of the products 

specifically mentioned in 40 CFR section 82.66(b) effective 

on February 16, 1993, and it bans the sale, distribution, or 

offer of sale or distribution, in interstate commerce of the 

products identified in 40 CFR 82.66(c) and 82.66(d) as nonessential


effective on January 17, 1994.

VI. Judicial Review

   Under section 307(b)(1) of the Clean Air Act, EPA hereby 

finds that these regulations are of national applicability. 

Accordingly, judicial review of this action is available only 

by the filing of a petition for review in the United States 

Circuit Court of Appeals for the District of Columbia Circuit 

within 60 days of publication. Under section 307(b)(2) of the 

Act, the requirements that are the subject of today's rule may 

not be challenged later in judicial proceedings brought to enforce 

these requirements.

VII. Summary of Supporting Analyses



A. Executive Order 12291

   Executive Order (E.O.) 12291 requires the preparation of 

a regulatory impact analysis for major rules, defined by the 

order as those likely to result in:

   (1) An annual effect on the economy of $100 million or more;

   (2) A major increase in costs or prices for consumers,
individual 

industries, federal, state or local government agencies, or 

geographic regions; or

   (3) Significant adverse effects on competition, employment, 

investment, productivity, innovation, or on the ability of United 

States-based enterprises to compete with foreign-based enterprises 

in domestic or export markets.

   EPA has determined that this proposed regulation does not 

meet the definition of a major rule under E.O. 12291 and has 

therefore not prepared a formal regulatory impact analysis. 

EPA has instead prepared a background document (see Background 

Document), which includes a qualitative study of the economic 

impact of this proposed regulation for each product identified 

as nonessential and prohibited from sale or distribution.

B. Regulatory Flexibility Act

   The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires 

that Federal agencies examine the impacts of their regulations 

on small entities. Under 5 U.S.C. 604(a), whenever an agency 

is required to publish a general notice of proposed rulemaking, 

it must prepare and make available for public comment an initial 

regulatory flexibility analysis (RFA). Such an analysis is not 

required if the head of an agency certifies that a rule will 

not have a significant economic impact on a substantial number 

of small entities, pursuant to 5 U.S.C. 605(b).

   The Administrator believes that the regulation will not have 

a significant impact on a substantial number of small entities 

and has therefore concluded that a formal RFA is unnecessary. 

A qualitative treatment of potential impacts on small entities 

is included in EPA's background document accompanying this
regulation.

   EPA believes that most companies in the industries affected 

by this regulation have already ceased using CFCs in the affected 

products. In addition, EPA believes that the rising excise tax 

and the scarcity resulting from the required incremental reductions


of these substances will provide a continually increasing incentive


to switch to substitutes for those companies that have not already 

done so. EPA also believes that the prohibition of sales to 

noncommercial users in the case of the products identified in 

section 82.66(b) of today's rulemaking (CFC-containing cleaning 

fluids for electronic and photographic equipment) allows
manufacturers, 

distributors, and retailers to continue to market those products 

to commercial users with little or no impact. Moreover, EPA 

would like to point out that the phaseout in the year 2000 of 

the production and import of Class I substances provides a de 

facto ban on all products using these substances. Regardless 

of the nonessential products ban, the phaseout will force
manufacturers 

to adopt non-CFC alternatives in the near future. Since the 

publication of the proposed rule, the Parties to the Montreal 

Protocol have agreed to phase out production of Class I substances 

by January 1, 1996, and the President has announced plans to 

accelerate the phaseout under section 606 of the Clean Air Act, 

as amended (see section I.G. of today's preamble); such action 

will reduce the impact of today's rulemaking even more. EPA 

will consider the economic impact of the accelerated phaseout 

in its rulemaking to carry out its obligations under the Montreal 

Protocol. Consequently, EPA anticipates that the economic impact 

of today's rulemaking will be minimal.

   For the purposes of this regulation, EPA believes that
identifying 

companies by Standard Industrial Classification (SIC) code is 

inappropriate, because most of the affected products represent 

only a small fraction of the products within each SIC code. 

In addition, since most manufacturers have already ceased using 

Class I substances, only a few companies within each classification


currently manufacture products containing CFCs. Due to the small 

number of potentially affected companies within each industry, 

the definition of companies as large or small is based for the 

most part on the characterization of manufacturing process by 

industry contacts, rather than on a standardized measure such 

as number of employees.

C. Paperwork Reduction Act

   There are no information collection requirements in this 

rule. The proposed rule contained recordkeeping requirements 

associated with the sale of chlorofluorcarbon-containing cleaning 

fluids for electronic and photographic equipment, but these 

requirements have been eliminated in the final rule in favor 

of a public disclosure requirement. No Information Collection 

Request (ICR) is required for a public disclosure requirement. 

The Information Collection Request document prepared by EPA 

under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., for 

the proposed rule (ICR No. 1592.01) is contained in the Docket 

for this rulemaking. A copy may be obtained by writing to the 

Information Policy Branch, U.S. Environmental Protection Agency, 

401 M Street, SW. PM-223Y; Washington, DC 20460 or by calling 

(202) 260-2740.

VIII. References

United Nations Environment Programme. Aerosols, Sterilants and 

   Miscellaneous Uses of CFCs: Report by the Technical Options 

   Committee (June 30, 1989).

United Nations Environment Programme. Environmental Effects 

   Panel Report (1989).

United Nations Environment Programme. Final Report of the Halons 

   Technical Options Committee (August 11, 1989).

United Nations Environment Programme. Flexible and Rigid Foams 

   Technical Options Report (June 30, 1989).

United States Environmental Protection Agency. Alternative
Formulations 

   to Reduce CFC Use in U.S. Exempted and Excluded Aerosol Products


   (November 1989).

United States Environmental Protection Agency. Background Document 

   on Identification of Nonessential Products that Release Class 

   I Substances (July 1, 1991).

United States Environmental Protection Agency. Essential Use 

   Determination-Revised: Support Document Fully Halogenated 

   Chlorofluoroalkanes (March 17, 1978).

United States Environmental Protection Agency. Handbook for 

   Reducing and Eliminating Chlorofluorocarbons in Flexible 

   Polyurethane Foams (April 1991).

United States Environmental Protection Agency. Response to Comments


   for Proposed Rule on Nonessential Products Made with Class 

   I Substances (October 30, 1992).

List of Subjects in 40 CFR Part 82

   Administrative practice and procedure, Air pollution control,
Chemicals, Chlorofluorocarbons, Clean Air Act Amendments of
1990, Exports, Imports, Nonessential products, Recordkeeping
and reporting requirements, Stratospheric ozone layer.

   Dated: December 31, 1992.

William K. Reilly, 

Administrator.

   Title 40, Code of Federal Regulations, part 82, is amended 

to read as follows:

PART 82-PROTECTION OF STRATOSPHERIC OZONE

   1. The authority citation for part 82 continues to read as 
follows:

   Authority: 42 U.S.C. 7414, 7601, 7671-7671(q).

   2. A new subpart C is added to read as follows:

Subpart C-Ban on Nonessential Products Containing Class I
Substances

Sec.

82.60 Purpose.

82.62 Definitions.

82.64 Prohibitions.

82.66 Nonessential products and exceptions.

82.68 Verification and public notice requirements.

.82.60  Purpose.

   The purpose of this subpart is to implement the requirements 
of sections 608 and 610 of the Clean Air Act Amendments of 1990 
on emission reductions and nonessential products.

.82.62  Definitions.

   For purposes of this subpart:

   (a) Chlorofluorocarbon means any substance listed as Class 
I group I or Class I group III part 82, appendix A to subpart A.

   (b) Commercial, when used to describe the purchaser of a 
product, means a person that has one of the following
identification 
numbers:
   (1) A federal employer identification number;

   (2) A state sales tax exemption number;

   (3) A local business license number; and

   (4) A government contract number and that uses the product 
in the purchaser's business or sells it to another person.

   (c) Consumer, when used to describe a person taking action 
with regard to a product, means the ultimate purchaser, recipient 
or user of a product. 

   (d) Distributor, when used to describe a person taking action 
with regard to a product;

   (1) Means the seller of a product or another distributor; 
or

   (2) A person who sells or distributes that product in commerce 
for export from the United States.

   (e) Product means an item or category of items manufactured 
from raw or recycled materials which is used to perform a function 
or task.

   (f) Release means to emit into the environment during the 
manufacture, use, storage or disposal of a product.

.82.64  Prohibitions.

   (a) Effective on February 16, 1993, no person may sell or 
distribute, or offer to sell or distribute, in interstate commerce 
any of the products identified as being nonessential in .82.66(a).

   Effective on February 16, 1993, no person may sell or
distribute, 
or offer to sell or distribute, in interstate commerce any of 
the products specified in .82.66(b) to a person who does not 
provide proof of being a commercial purchaser, as defined under 
.82.62.

   (c) Effective on January 17, 1994, no person may sell or 
distribute, or offer to sell or distribute, in interstate commerce 
any of the products identified as being nonessential in .82.66(c) 
or .82.66(d).

.82.66  Nonessential products and exceptions.

   The following products which release a Class I substance 
(as defined in part 82, appendix A to subpart A) are identified 
as being nonessential, and subject to the prohibitions specified 
under .82.64:

   (a) Any plastic party streamer or noise horn which is propelled 
by a chlorofluorocarbon, including but not limited to:

   (1) String confetti;

   (2) Marine safety horns;

   (3) Sporting event horns;

   (4) Personal safety horns;

   (5) Wall-mounted alarms used in factories or other work areas; 
and

   (6) Intruder alarms used in homes or cars.

   (b) Any cleaning fluid for electronic and photographic equipment


which contains a chlorofluorocarbon:

   (1) Including but not limited to liquid packaging, solvent 
wipes, solvent sprays, and gas sprays; and

   (2) Except for those sold or distributed to a commercial 
purchaser.

   (c) Any plastic flexible or packaging foam product which 
is manufactured with or contains a chlorofluorocarbon;

   (1) Including but not limited to:

   (i) Open cell polyurethane flexible slabstock foam;

   (ii) Open cell polyurethane flexible molded foam;

   (iii) Open cell rigid polyurethane poured foam;

   (iv) Closed cell extruded polystyrene sheet foam;

   (v) Closed cell polyethylene foam; and

   (vi) Closed cell polypropylene foam.

   (2) Except-flexible or packaging foam used in coaxial cable.

   (d) Any aerosol product or other pressurized dispenser, other 
than those banned in .82.64(a) or .82.64(b), which contains 
a chlorofluorocarbon;

   (1) Including but not limited to household, industrial,
automotive 
and pesticide uses;

   (2) Except-(i) Medical devices listed in 21 CFR 2.125(e);

   (ii) Lubricants for pharmaceutical and tablet manufacture;

   (iii) Gauze bandage adhesives and adhesive removers;

   (iv) Topical anesthetic and vapocoolant products;

   (v) Lubricants, coatings or cleaning fluids for electrical 
or electronic equipment, which contain CFC-11, CFC-12, or CFC-
113 for solvent purposes, but which contain no other CFCs;

   (vi) Lubricants, coatings or cleaning fluids used for aircraft 
maintenance, which contain CFC-11 or CFC-113, but which contain 
no other CFCs;

   (vii) Mold release agents used in the production of plastic 
and elastomeric materials, which contain CFC-11 or CFC-113, 
but which contain no other CFCs;

   (viii) Spinnerette lubricant/cleaning sprays used in the 
production of synthetic fibers, which contain CFC-114, but which 
contain no other CFCs;

   (ix) Containers of CFCs used as halogen ion sources in plasma 
etching;

   (x) Document preservation sprays which contain CFC-113, but 
which contain no other CFCs; and

   (xi) Red pepper bear repellent sprays which contain CFC-113, 
but which contain no other CFCs.

.82.68  Verification and public notice requirements for
distributors 
of certain products intended exclusively for commercial use.

   (a) Effective on February 16, 1993, any person who sells 
or distributes any cleaning fluid for electronic and photographic 
equipment which contains a chlorofluorocarbon must verify that 
the purchaser is a commercial entity as defined in .82.62. In 
order to verify that the purchaser is a commercial entity, the 
person who sells or distributes this product must be presented 
with documentation that proves the purchaser's commercial status 
by containing one or more of the commercial identification numbers 
specified in .82.62. The seller or distributor must have a
reasonable 
basis for believing that the information presented by the purchaser

is accurate.

   (b) Effective on February 16, 1993, any person who sells
or distributes any cleaning fluid for electronic and photographic
equipment which contains a chlorofluorocarbon must prominently 
display a sign where sales of such product occur which states: 
"It is a violation of federal law to sell, distribute, or offer 
to sell or distribute, any chlorofluorocarbon-containing cleaning 
fluid for electronic and photographic equipment to anyone who 
is not a commercial user of this product. The penalty for violating

this prohibition can be up to $25,000 per sale. Individuals 
purchasing such products must present proof of their commercial 
status in accordance with 40 CFR 82.68(a)."

[FR Doc. 93-757 Filed 1-14-93; 8:45 am]

BILLING CODE 6560-50-M

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