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.