United States Environmental Protection Agency Air and Radiation Stratospheric Protection Division (6205J) January, 1993 CLASS I NONESSENTIAL PRODUCTS BAN SECTION 610 OF THE CLEAN AIR ACT AMENDMENTS OF 1990 On December 31, 1992, the Environmental Protection Agency (EPA) issued regulations that ban the sale and distribution of a number of nonessential products containing chlorofluorocarbons (CFCs) under section 610 of the Clean Air Act Amendments of 1990 (the Act). These regulations also prohibit the sale and distribution of CFC-containing cleaning fluids for electronic and photographic equipment to noncommercial purchasers, as required by section 610 of the statute. This rulemaking was published in the Federal Register on January 15, 1993 (58 FR 4768). BACKGROUND Section 610 of the Act requires the Administrator to ban the sale, distribution, or offer of sale or distribution in interstate commerce of certain nonessential products that release ozone-depleting substances. Section 610 contains both a ban on nonessential products containing class I substances (effective November 15, 1992) and a ban on certain nonessential products containing class II substances (effective January 1, 1994). This rulemaking addresses only the class I nonessential products ban. Under the class I ban, the Act directed EPA to ban "silly string," noise horns, and cleaning fluids for noncommercial photographic and electronic equipment. In addition, the Act directed EPA to identify and ban other nonessential products that release class I substances. On January 16, 1992, EPA published a notice of proposed rulemaking (NPRM) for the class I nonessential products ban (57 FR 1992). The NPRM proposed banning the sale or distribution of the products specifically mentioned in the statute, as well as plastic flexible or packaging foams and all aerosol products except for seven applications that were specifically excluded. The NPRM 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. The NPRM also discussed at great length the criteria used to determine whether a product was considered nonessential under section 610(b)(3). Finally, the NPRM requested comments on whether halon fire extinguishers for residential use should be banned as nonessential products. MAJOR COMMENTS RECEIVED The public comment period for the proposed rule ended on March 23, 1992. The Agency received 190 public comment letters. A public hearing on the proposed rule was held on January 31, 1992. Most of the comments received fell into three main categories: the scope of the rule, the treatment of existing inventories of nonessential products, and the proposed recordkeeping requirements. EPA's decision to include aerosol products and flexible and packaging foams in the nonessential products ban under section 610(b)(3) generated most of the public comments. Many commenters were upset that EPA proposed banning products they manufactured or sold. Their comments criticized the proposed rule on a number of grounds, including EPA's statutory authority and the criteria EPA used in identifying nonessential products. Many commenters also addressed the treatment of existing inventories. These commenters contended that there was insufficient time for retailers and distributors to liquidate existing stocks of nonessential products before the November 15, 1992 effective date. Most of these commenters asked EPA to grandfather existing inventories. Several trade associations pointed out that many products affected by the ban often remain in the stream of commerce for quite some time. Consequently, they felt that grandfathering the sale of products for a finite period of time--a year, for example--would not completely address this problem. Finally, a number of comments were received that suggested that the recordkeeping requirements in the proposed rule were unnecessary and excessively burdensome, especially when compared to the environmental benefits they produced. CHANGES FROM PROPOSED RULE The final rule is very similar to the proposed rule. While the final rule exempts several additional products in response to public comment, its scope is essentially the same as that of the NPRM. This regulation differs from the proposed rule in five major aspects, which are discussed below. The most significant change is that the final rule provides certain businesses with an additional year in which to liquidate existing inventories and to redesign and replace manufacturing equipment. In addition, the final rule clarifies the EPA's interpretation of sale, distribution, or offer of sale or distribution in interstate commerce to exclude resale of used durable goods. The final rule also eliminates the recordkeeping requirements for the sale of cleaning fluids to commercial purchasers, and exempts additional products from the ban based on information received during the comment period. Finally, the final rule also replaces the single prohibition on sale, distribution, or offer of sale or distribution in interstate commerce with three separate prohibitions specific to the products affected by sections 610(b)(1), 610(b)(2), and 610(b)(3), respectively. EPA felt that commenters' concerns about treatment of existing inventories were legitimate, and provided additional relief in two ways, through grandfathering some inventories for one year and through clarifying its interpretation of sale, distribution, or offer of sale or distribution in interstate commerce. EPA believes that the statute limits the Agency's ability to grandfather existing inventories to no more than one year. Consequently, this regulation grandfathers existing inventories of any products first listed as nonessential in the NPRM for an additional year in order to allow businesses more time to liquidate existing inventories and to redesign and replace manufacturing equipment. This appears consistent with the intent of Congress, as expressed in the statute, to provide a year's notice between promulgation of the regulations prohibiting the sale of certain products and the effective date for the ban. In the final rule EPA interpreted "sale, distribution, or offer of sale or distribution in interstate commerce" to exclude the resale of used durable goods such as automobiles. Consequently, resale of durable goods is not covered under the ban. Because the CFCs used in producing the foam in these durable goods were, for the most part, released during the manufacturing process, no environmental benefit would accrue from prohibiting the resale of such goods. In fact, such an action would have significant negative environmental and economic consequences. The third major change involves the statutory requirement to prohibit the sale of CFC-containing cleaning fluids for electronic and photographic equipment to noncommercial users. EPA considered the public comments carefully and concluded that the proposed recordkeeping requirements were, indeed, too burdensome. As a result, the recordkeeping requirements for the sale of these products have been replaced with a requirement for sellers and distributors of these products to verify that purchasers are in fact commercial users. The regulation lists a number of commercial identification methods, such as state sales tax exemption numbers, which can be used to prove one's commercial status. Several additional products have been exempted from the nonessential products ban. These products were brought to EPA's attention by commenters after publication of the January 16, 1992 NPRM, and the Agency was unable to determine that substitutes were commercially available for CFCs in these applications in the time available. Consequently, EPA decided to exclude them from the class I nonessential products ban at this time. These applications consist of certain medical devices, document preservation spray, red pepper bear repellent spray, spinnerette lubricant/cleaning sprays for synthetic fiber production, the use of CFC-12 for solvent purposes in lubricants, coatings, and cleaning fluids for electrical and electronic equipment, the use of CFCs for plasma etching, and flexible and packaging foams used in the production of coaxial cable. Finally, in the final rule, the proposed rule's single prohibition on sale and distribution of nonessential products has been replaced with three separate prohibitions specific to the products affected by sections 610(b)(1), 610(b)(2), and 610(b)(3), respectively. This change was made exclusively to improve the clarity of the rule; it does not produce any anticipated change in policy. The first prohibition bans the sale, distribution, or offer of sale or distribution in interstate commerce of chlorofluorocarbon-propelled plastic party streamers and noise horns effective February 16, 1993. The second prohibition bans the sale, distribution, or offer of sale or distribution in interstate commerce of CFC-containing cleaning fluids for noncommercial electronic and photographic equipment effective February 16, 1993. The third prohibition bans the sale, distribution, or offer of sale or distribution in interstate commerce of products determined by the Administrator under section 610(b)(3) to be nonessential effective January 17, 1994. LIST OF NONESSENTIAL PRODUCTS 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 Amendments of 1990. The products affected by this rulemaking include: - chlorofluorocarbon-propelled plastic party streamers and noise horns - chlorofluorocarbon-containing cleaning fluids for noncommercial electronic and photographic equipment - plastic flexible and packaging foams manufactured with CFCs, except for foam used in the production of coaxial cable - all aerosol and pressurized dispensers containing chlorofluorocarbons, except for the following products: - certain medical devices - lubricants, coatings or cleaning fluids for electrical or electronic equipment containing CFC-11, CFC-113, or CFC-12 for solvent purposes - lubricants, coatings or cleaning fluids for aircraft maintenance containing CFC- 11 or CFC-113 - mold release agents containing CFC-11 or CFC-113 - spinnerette lubricant/cleaning sprays containing CFC-114 - containers of CFCs used in plasma etching - document preservation sprays containing CFC-113 - red pepper bear repellent sprays containing CFC-113 This rulemaking does not ban the sale, distribution, or offer of sale or distribution of halon fire extinguishers for residential use. The products identified as nonessential by this rulemaking may not be sold, distributed, or offered for sale or distribution after the effective dates listed above; however, this regulation does not prohibit the use of nonessential products purchased before the ban takes effect. ANTICIPATED IMPACT OF CLASS I NONESSENTIAL PRODUCTS BAN EPA believes that the impact of this regulation will be minor. Most of the companies in the foam and aerosol industries have already made the transition from CFCs to alternatives. The final rule also includes a generous grandfathering provision and replaces the proposed rule's recordkeeping requirements with a verification provision. Finally, the President's accelerated phaseout proposal and the recent increase in the excise tax on ozone-depleting substances will force almost all CFC users to switch to non-CFC alternatives within the next several years, regardless of their treatment under this regulation. FUTURE REGULATION EPA is currently preparing a notice of proposed rulemaking for the class II nonessential products ban.