[Federal Register Volume 67, Number 209 (Tuesday, October 29, 2002)]
[Proposed Rules]
[Pages 65916-65931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27340]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-7400-3]
RIN 2060-AJ27
Protection of Stratospheric Ozone: Phaseout of Chlorobromomethane
Production and Consumption
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: With this action, EPA is proposing to add chlorobromomethane
(CBM) to the list of controlled substances subject to production and
consumption controls in accordance with both the Montreal Protocol on
Substances that Deplete the Ozone Layer (Protocol) and EPA's
regulations under the Clean Air Act Amendments of 1990 (CAAA). Today's
action proposes to create a new Group (Group VIII) of class I
substances for CBM, and to designate the value of CBM's ``ozone
depleting potential'' (ODP) as 0.12. In accordance with the Protocol,
today's action proposes phasing out CBM production and consumption upon
publication of the final rule with permitted exemptions. Today's action
also proposes to restrict trade in CBM with countries who are not
Parties to the Beijing Amendments to the Protocol.
DATES: Comments must be received in writing by November 29, 2002,
unless a public hearing is requested. If a public hearing takes place,
it will be scheduled for November 13, 2002, after which comments must
be received on or before December 13, 2002. Any party requesting a
public hearing must notify the contact person listed below by 5 p.m.
Eastern Standard Time on November 5, 2002. After that time, interested
parties may call EPA's Stratospheric Ozone Protection Information
Hotline at 1-800-296-1996 to inquire with regard to whether a hearing
will be held, as well as the time and place of such a hearing.
ADDRESSES: Public comments and data specific to this action should be
submitted in duplicate (two copies) to: Air and Radiation Docket
(6102), Air Docket No. A-92-13, Section XII, U.S. Environmental
Protection Agency, 401 M Street, SW., Room M-1500, Washington, DC
20460. If you plan to submit comments, please also notify Jabeen
Akhtar, U.S. Environmental Protection Agency, Global Programs Division
(6205J), 1200 Pennsylvania
[[Page 65917]]
Avenue, NW., Washington, DC 20460, (202) 564-3514.
Materials relevant to this proposed rulemaking are contained in
Public Docket No. A-92-13, Section XII. The docket is located in room
M-1500, Waterside Mall (Ground Floor), at the above address. The
materials may be inspected from 8 a.m. until 5:30 p.m., Monday through
Friday. The telephone number is (202) 260-7548. The docket may charge a
reasonable fee for copying docket materials.
Information designated as Confidential Business Information (CBI)
under 40 CFR, Part 2, Subpart 2, must be sent directly to the contact
person for this notice. However, the Agency is requesting that all
respondents submit a non-confidential version of their comments to the
docket as well.
FOR FURTHER INFORMATION CONTACT: The Stratospheric Ozone Information
Hotline at 1-800-296-1996, or Jabeen Akhtar, U.S. Environmental
Protection Agency, Global Programs Division (6205J), 1200 Pennsylvania
Avenue, NW., Washington, DC, 20460, (202) 564-3514;
[email protected]. Overnight or courier deliveries should be sent
to the office location at 4th floor, 501 3rd Street, NW., Washington,
DC, 20001. You may also visit the Ozone Depletion web site of EPA's
Global Programs Division at http://www.epa.gov/ozone/index.html for
further information about EPA's Ozone Protection regulations, the
science of ozone depletion, and other topics.
SUPPLEMENTARY INFORMATION: This document concerns proposed amendments
to the production and import controls for ozone-depleting substances
(ODS). The proposed amendment concerns the addition of a new controlled
substance, chlorobromomethane (CBM), to the list of substances already
subject to controls related to production, import, export, destruction,
transhipment, essential uses, and feedstock uses.
The regulated categories that may be affected by this proposed
action include:
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Examples of potentially regulated
Category SIC NAICS entities
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1. Industrial organic chemicals, NEC. 2869 325199 Producers, importers, or exporters of
CBM.
2. Pharmaceutical preparations....... 2834 325412 Transformers of CBM.
3. Pesticides and agricultural 2879 32532 Transformers of CBM.
chemicals, NEC.
4. Chemicals and allied products, NEC 5169 42269 Lab suppliers of CBM.
5. Testing laboratories, except 8734 54138 Lab users of CBM.
veterinary testing labs.
6. Medical and diagnostic 8071 6215 Lab users of CBM.
laboratories.
7. Research and development in the 8731, 8733 54171 Lab users of CBM.
physical, engineering and life
sciences.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
proposed action. This table lists the types of entities that EPA is now
aware could potentially be regulated by this proposed action. Other
types of entities not listed in this table could also be affected. To
determine whether your facility, company, business organization, etc.,
could be regulated by this proposed action, you should carefully
examine the applicability criteria in Sec. 82.1(b) of Title 40 of the
Code of Federal Regulations (CFR). If you have any questions regarding
the applicability of this proposed action to a particular entity,
consult the person listed in the For Further Information Contact
section.
Table of Contents
I. What is the scientific and legal background for the regulations
to phase out ozone-depleting substances?
II. What chemicals are addressed by today's proposed action and how
are they used?
A. CBM as a fire extinguishing agent
B. CBM as an explosion protection agent
C. CBM as a solvent
D. CBM as a feedstock
E. Process agents
III.What are the elements of the international agreement to regulate
CBM?
A. Preliminary discussions on controlling CBM
B. The ``Beijing Amendments'' and its provisions regarding CBM
IV. What are the new U.S. requirements proposed by today's action?
A. Legal authority
B. Specific elements of today's proposed action
1. Listing CBM and controls
2. Ban on Trade with non-Parties
3. Essential Use Exemptions
4. Recordkeeping and reporting requirements
(a) Producers
(b) Importers
(c) Exporters
(d) Destroyers
(e) Transformers
(f) Transhipments, heels, and essential uses
(g) Laboratory essential uses
V. What other stratospheric protection regulations will relate to
CBM following today's proposed action?
VI. What are the supporting analyses?
A. Unfunded Mandates Reform Act
B. Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601
et seq.
C. Executive order 12866
D. Applicability of Executive Order 13045--Protection of
Children from Environmental Health Risks and Safety Risks
E. Paperwork Reduction Act
F. Executive Order 13132 (Federalism)
G. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments)
H. The National Technology Transfer and Advancement Act
I. Executive Order 13211 (Energy Effects)
I. What Is the Scientific and Legal Background for Regulations To Phase
Out Ozone-Depleting Substances?
International and national regulatory activities to phase out
ozone-depleting substances (ODSs) arose from scientific findings
linking ODSs with stratospheric ozone depletion. The stratospheric
ozone layer protects the Earth from penetration of harmful ultraviolet
(UV-B) radiation. Scientific evidence links the release of certain man-
made halocarbons, including chlorofluorocarbons (CFCs), halons, carbon
tetrachloride, methyl chloroform, and methyl bromide, to the depletion
of the stratospheric ozone layer. Ozone depletion harms human health
and the environment through increased incidence of cataracts, certain
skin cancers, suppression of the immune system, damage to plants
including crops and aquatic organisms, increased formation of ground-
level ozone and increased weathering of outdoor plastics.
In response to the body of evidence linking chlorofluorocarbons and
other chlorinated and brominated compounds to ozone depletion, the
international community reached agreement in 1987 on a landmark treaty.
This treaty, the Montreal Protocol on Substances that Deplete the Ozone
Layer (``Montreal Protocol'' or ``Protocol'') was originally signed by
46 nations, including the United States. The Protocol establishes
[[Page 65918]]
controls on the production and consumption of ozone depleting
chemicals. The Protocol has been amended and adjusted numerous times in
the 15 years since its original signing, and 183 nations have now
ratified the original Protocol (as of 1/24/02).
The Clean Air Act Amendments of 1990 direct the Environmental
Protection Agency (EPA) to issue regulations to implement the
provisions of the Protocol within the United States. Accordingly, EPA
developed a scheme of production and consumption controls relative to
substances addressed by the Protocol. The current regulatory
requirements of the Stratospheric Ozone Protection Program implement
the provisions of the Protocol and the Clean Air Act (CAA) by limiting
the production and consumption of ozone-depleting substances. These
regulatory requirements are codified at Subpart A to Part 82 of Volume
40 of the Code of Federal Regulations (40 CFR Part 82, Subpart A). As
the control measures of the Protocol have been amended or adjusted, and
in consideration of other factors, Subpart A has also been amended. For
example, following the amendments to the Protocol made at the Fourth
Meeting of the Parties in Copenhagen in 1992, a number of changes to
the control provisions of the Protocol were made, including an
accelerated phaseout of ODS production and consumption. EPA published a
final regulation in December of 1993, implementing the United States'
obligation under the Copenhagen amendments (58 FR 65018). Other
regulations amending Subpart A include those published on December 20,
1994 (59 FR 65478), May 10, 1995 (60 FR 24970), August 4, 1998 (63 FR
41625), and October 5, 1998 (64 FR 53290).
In the context of the regulatory program, the use of the term
consumption may be misleading. Consumption does not mean the ``use'' of
a controlled substance, but rather is defined as the formula:
consumption = production + imports--exports, of controlled substances
(Article 1 of the Protocol and Section 601 of the CAA). Furthermore,
the objective that consumption shall not exceed zero, except for
exempted uses (as is the ultimate objective under the Montreal Protocol
and CAA for all ozone-depleting substances) is achieved through a ban
on production and on import. Quantities of exports are not controlled
as such (although trade in controlled substances with non-Parties to
the Protocol is controlled for reasons explained in section IV.C.3. of
this Preamble). Yet by setting production and import in the above
equation equal to zero, any positive quantity of export in the above
equation will result in a value for consumption which is less than
zero. Under the regulatory program established by EPA to implement the
Montreal Protocol, limited exceptions to the ban on the import of
phased-out class I controlled substances exist if the substances are:
(1) Previously used, (2) imported for essential uses as authorized by
the Protocol and 40 CFR Part 82, Subpart A, (3) imported for
destruction or transformation only, or (4) a transhipment (i.e., from
one foreign country through the U.S., to another foreign country) or a
heel (a small amount of controlled substance remaining in a container
after discharge) (40 CFR 82.4(d), 82.13(g)(2)).
II. What Chemicals Are Addressed by Today's Proposed Action and How Are
They Used?
Today's proposed action will affect only one chemical,
chlorobromomethane (CBM).\1\ CBM is a chemical compound found in trace
quantities in the atmosphere with both natural and man-made sources.
Research indicates that CBM has an atmospheric lifetime of [sim]0.21-
0.25 yr-1. The Parties to the Montreal Protocol designated
the ODP of CBM as 0.12. This value is consistent with an examination of
scientific investigations on this topic, which concluded that an
appropriate range for the ODP of CBM is 0.07-0.15 (See 64 FR 22985, 4/
18/99).
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\1\ The terms chlorobromomethane and bromochloromethane are
synonymous. They both refer to the chemical, CH2BrCl.
Both terms can be found in industry, scientific, and regulatory
documents.
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Preliminary research indicates that the past and current major
industrial applications of CBM have been in 4 main areas: in the fire
protection sector, as an explosion suppression agent, as a solvent, and
as a feedstock in the manufacture of other chemicals. Informal
discussions with CBM producers indicate that the majority of CBM is
produced for feedstock use. EPA seeks comment as to whether any other
uses of CBM exist that have not been captured in the following
subsections.
A. CBM as a Fire Extinguishing Agent
Halogenated agent fire extinguishers were initially developed in
the early 1900s and filled an important fire protection niche.
Halogenated agent extinguishers were efficient on fires in materials
where water or largely water solutions were ineffective, such as on
fires involving electrical arcs and on fires involving volatile
liquids.
Increasing concerns about short and long-term adverse health
effects of CBM on the lungs, kidneys, skin, and liver led to the end of
this agent's acceptability as a fire extinguishing agent for use in
areas occupied by humans. In the 1960s, Underwriters' Laboratories,
Inc. withdrew recognition of fire extinguishing agents with a toxicity
classification exceeding a certain threshold. This action affected CBM,
carbon tetrachloride and methyl bromide as fire extinguishing agents.
In the early 1980s, the Occupational Safety and Health Administration
(OSHA) banned the use of both carbon tetrachloride and CBM as fire
extinguishing agents in areas where employees can be exposed to the
agent or its side effects. OSHA does, however, permit the use of CBM as
an explosion suppression agent in unoccupied spaces (29 CFR Part 1910,
Subpart L, Appendix A (Section 160)).
Preliminary research by EPA also indicates that CBM was used in
some military applications (e.g., in aircraft fire protection).
However, Department of Defense (DoD) officials indicate that no current
requirements exist or are expected to exist for CBM, and that today's
proposed action will not adversely affect DoD.
B. CBM as an Explosion Protection Agent
CBM is an effective explosion protection agent. Explosions affect
many industries such as plastics, forest products, powdered foods,
waste disposal, grain, coal, chemical, petrochemical, food processing,
brewing, and pharmaceutical. Explosions are broadly classified as
deflagrations or detonations, depending upon the speed at which the
combustion zone propagates. Five primary methods exist for controlling
deflagrations: prevention, containment, venting, suppression, and
isolation. CBM and other halon agents were used in explosion
suppression systems. Such systems operate by detecting an explosion in
its early stages and introducing a suppressant (e.g., CBM) that
prevents the combustion reaction from continuing.
EPA research indicates that one U.S. company historically
manufactured explosion protection systems containing CBM. Manufacture
and sale of such systems ended in the early 1990s. No significant
imports of such systems into this country are known. It is estimated
that several hundred such explosion protection systems are currently
deployed among various facilities throughout the United States. An EPA
regulation, published on April 28, 1999 (64 FR 22982), found CBM to be
unacceptable as a substitute for Halon
[[Page 65919]]
1301 in total flooding applications in the fire suppression and
explosion protection sector. EPA published this rule under Section 612
of the CAAA, which authorizes EPA to develop a program for evaluating
alternatives to ozone-depleting substances. The program generates lists
of acceptable and unacceptable substitutes for each of the major
industrial use sectors. EPA refers to this program as the Significant
New Alternatives Policy (SNAP) program. In the April 1999 action, the
SNAP program found that other alternative Halon 1301 replacement agents
existed with zero or lower ozone-depleting potential than CBM.
C. CBM as a Solvent
CBM has been considered as a potentially promising cleaning agent,
either alone or as a solvent blend. Under EPA's SNAP program, the
Agency received an application requesting consideration of CBM as a
substitute for CFC-113 and methyl chloroform in solvents cleaning of
metals, electronics, and in precision cleaning.
In a regulation published on April 28, 1999 (noted above), EPA
determined that CBM was unacceptable as a substitute for CFC-113,
methyl chloroform (MCF), and HCFC-141b in metals cleaning, electronics
cleaning and precision cleaning because numerous other alternative
substances exist with lower environmental risks (64 FR 22982). That
regulation also established that CBM is unacceptable in aerosols (as a
solvent) as a substitute for CFC-113, methyl chloroform, and HCFC 141b,
and in adhesives, coatings, and inks (as a carrier solvent) as a
substitute for CFC-113, methyl chloroform, and HCFC 141b.
D. CBM as a Feedstock
According to preliminary research by EPA, approximately 80% of CBM
produced in the past has been used as a feedstock in the manufacture of
pharmaceutical products, water treatment chemicals, and a biocide.
Today's proposed action would not affect production or import (except
for import from non-Party countries; see section IV.C.1.) of CBM when
that CBM is subsequently transformed, as it is when it is used as a
feedstock. ``Transform'' means to use and entirely consume (except for
trace quantities) a controlled substance in the manufacture of other
chemicals for commercial purposes (See 40 CFR 82.3). The definition of
``production'' of controlled substances in Sec. 82.3 explicitly
excludes ``the manufacture of a controlled substance that is
subsequently transformed'' and therefore production controls will not
apply to such manufacture. Also, Sec. 82.4 (c) and (d) exclude
controlled substances ``that are transformed or destroyed'' from the
Class I import prohibition.
E. Process Agents
The Parties to the Protocol recognize that certain controlled
ozone-depleting substances, because of their unique chemical and/or
physical properties, can facilitate an intended chemical reaction and/
or inhibit an unintended chemical reaction. The term ``process agent''
is used to refer to controlled substances in such applications.
Controlled substances are typically used in chemical processes as
process agents for at least two of the following unique chemical and/or
physical properties: (1) Chemically inert during a chemical reaction;
(2) physical properties (e.g., boiling point, vapor pressure, specific
solvency); (3) to act as a chain transfer agent; (4) to control the
desired physical properties of a process (e.g., molecular weight,
viscosity); (5) to increase plant yield; (6) non-flammable/non-
explosive; and (7) to minimize undesirable by-product formation.
Source: Process Agents Task Force (PATF), 2001 (available at http://www.teap.org/html/process_agents_reports.html).
Formally, the term ``process agents'' under the Montreal Protocol
means ``the use of controlled substances for the applications listed in
table A'' of Decision X/14 of the Meetings of the Parties to the
Montreal Protocol (Handbook for the International Treaties for the
Protection of the Ozone Layer. Ozone Secretariat, UNEP, Nairobi, Kenya,
p. 85. Available at http://www.unep.org/ozone/Handbook2000.shtml).
Presently, four controlled substances are listed as process agents:
carbon tetrachloride (CTC), CFC-11, CFC-12, and CFC-113. These are used
in the manufacture of chlorine, polymers, chlorinated (intermediate)
products, pharmaceuticals, and pesticides and other agricultural
chemicals.
Controlled substances produced or imported as process agents (as
listed in table A of Decision X/14) for use in plants and installations
that were in operation before January 1, 1999, are not counted in the
calculation of production and consumption of controlled substances from
January 1, 2002, and thereafter. That is, production and import of
controlled substances as process agents listed in table A of Decision
X/14 are not subject to production and import restrictions under the
Montreal Protocol. In the case of non-Article 5 Parties such as the
U.S., the emissions of controlled substances in these processes must be
reduced to insignificant levels as defined in table B of Decision X/14.
Parties may propose additions to the list of controlled substances
designated as process agents by sending a detailed proposal to the
Ozone Secretariat, which will forward them to the Technology and
Economic Assessment Panel (TEAP). The Panel will then investigate the
proposed change and make a recommendation to the Parties whether or not
the proposed use should be added to the list by decision of the
Parties.
EPA received a letter from one stakeholder requesting that their
use of CBM as a solvent in the process of producing a polymer additive
be considered a process agent use. EPA has approved this company's use
of CBM as a process agent use and has submitted a request to the TEAP
to add this use of CBM to the list of process agents in Table A of
Decision X/14 and to change the emissions limit for the United States
in Table B to reflect this addition. EPA seeks comment as to whether
any other applications of CBM exist that should be submitted for
consideration as a process agent. Commenters should provide detailed
information on the quantities of chemicals involved, the chemical
process, and the products. EPA also seeks comment as to the anticipated
impacts, if any, of this proposed rule on such potential process agent
uses.
III. What Are the Elements of the International Agreement To Regulate
CBM?
A. Preliminary Discussions on Controlling CBM
Interest in banning production of CBM was first raised in the
Montreal Protocol forum in 1998. At the Tenth Meeting of the Parties to
the Protocol in November, 1998, the suggestion was made that the
Parties immediately ban CBM. CBM was recognized as a ``new'' and
unregulated substance with a high ODP. In response to concern that CBM
was being aggressively marketed to developing countries as an ``ozone-
safe'' alternative solvent, and that unhindered global production of
CBM could significantly harm or threaten the ozone layer, the Parties
to the Montreal Protocol agreed at the Tenth Meeting to take measures
to discourage its production and marketing. The 1999 Report of the
Technology and Economic Assessment Panel included a recommendation for
regulatory controls of CBM from the Solvents Technical Options
Committee (STOC):
In view of the predicted quantities of CBM, if the market for this
substance is developed
[[Page 65920]]
unhindered and the ODP, which is within the same range as HCFCs
regulated under the Montreal Protocol, the STOC recommends that the
Parties consider appropriate action to prevent or limit further
depletion of the ozone layer due to this substance.'' \2\
\2\ April 1999 Report of the Technology and Economic Assessment
Panel, Part V, 2.7.1.
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It should be noted that there was reason to believe that a
significant future market for CBM might exist in the absence of
regulation. For example, industry had identified CBM as a potentially
promising cleaning agent in the 1990s; and as mentioned above, EPA's
SNAP program had received an application requesting consideration of
CBM as a substitute for CFC-113 and methyl chloroform in solvents
cleaning of metals, electronics, and in precision cleaning. Although
EPA's 1999 regulation noted above (64 FR 22982) determined that CBM was
unacceptable as a substitute for CFC-113, methyl chloroform (MCF), and
HCFC-141b in metals cleaning, electronics cleaning and precision
cleaning, as well as unacceptable as a substitute for Halon 1301 in
total flooding applications in the fire suppression and explosion
protection sector, these restrictions do not control CBM use outside of
the United States.
B. The ``Beijing Amendments'' and Their Provisions Regarding CBM
The Parties to the Protocol at the Eleventh Meeting (``Beijing
Amendments'') agreed to list CBM as a controlled substance and
establish its phaseout schedule. The specific terms of the Beijing
Amendments can be found at http://www.unep.org/ozone/Beijing-Amendment.shtml and also in the Docket to this proposed rulemaking. The
Parties agreed to add a new group of controlled substances to Annex C.
This new group, Group III, consists of a single entry,
chlorobromomethane, which was assigned an ODP of 0.12. Furthermore, the
Parties agreed to add a new Article (``Article 2I:
Bromochloromethane'') to the Protocol which specifies that as of
January 1, 2002, the consumption and production of the controlled
substance in Group III of Annex C shall not exceed zero, except for
production or consumption necessary to satisfy uses that may be agreed
by the Parties in the future to be essential.
The Protocol contains no exemptions from production controls for
CBM to meet the ``basic domestic needs'' of ``Article 5'' parties as it
does for many other groups of ODSs. For other ODSs, the Montreal
Protocol allows Parties to exceed their level of baseline production to
accommodate the ``basic domestic needs'' of Article 5 countries.
Article 5 countries are defined by the Parties as developing countries
whose annual calculated level of consumption of controlled substances
falls below certain thresholds. The basis for allowances for Article 5
Parties has been described previously (52 FR 47496, 12/14/87). For
certain ODSs, the Protocol allows excess production for Article 5
countries and EPA has accordingly provided for such excess production
in its regulations (see 40 CFR Part 82, Subpart A, 82.9(a)). In
contrast, when the control measures set forth in the Protocol do not
provide for such excess production, no ``Article 5'' provision has been
granted in EPA regulations. Because Article 2I of the Protocol, which
specifies controls on CBM, does not include the provision for granting
Article 5 allowances for CBM, such a provision will not be made with
today's proposed action (see discussion in Section IV.C.5.a).
In addition to the control measures described above, the Beijing
Amendments add to the Protocol a ban on import of CBM from, and export
of CBM to, non-Parties to the Beijing Amendments. Under the terms of
the Beijing Amendments, each Party is required to implement this trade
ban on CBM within 1 year of the date of entry into force of the
Amendments. In general, under the Montreal Protocol and its amendments,
bans on imports from and exports to non-Parties reflect an agreed
strategy by the Parties to the Montreal Protocol to encourage
ratification of each successive amendment package to the Protocol and
to ensure that controlled ozone-depleting substances are not provided
to countries that have not agreed to control measures.
Finally, as with most other groups of ODSs regulated under the
Montreal Protocol, the phaseout of CBM production and consumption
accommodates the future possibility of ``essential use'' allowances. At
the Fourth Meeting of the Parties to the Protocol in Copenhagen
(November 23-25, 1992), the Parties established criteria for
determining ``essential uses'' that could be exempted from the phaseout
of production and importation. These criteria and the nomination
process are described in more detail in earlier Federal Register
notices (64 FR 50084, 9/15/99).
IV. What Are the New U.S. Requirements Proposed by Today's Action?
A. Legal Authority
Several provisions of the CAA provide the legal authority for
today's proposed action. Section 602(a) provides EPA with the general
authority to list Class I substances. Section 602(a) requires EPA to
add to the list of Class I substances those substances that it finds
cause or contribute significantly to harmful effects on the
stratospheric ozone layer. Section 602(c) requires that the
Administrator place newly added Class I substances, to the extent
consistent with the Montreal Protocol, either into an existing Group or
a new Group. As explained in Section III A of today's proposed action,
EPA believes that CBM may cause or contribute significantly to the
harmful effects on the stratospheric ozone layer. Whenever EPA adds a
substance to the Class I list, EPA is also required by Section 602(e)
to assign a numerical value representing the substance's ozone-
depleting potential (ODP). Section 602(e) requires this ODP numerical
value to be consistent with the Montreal Protocol if such ODP is
specified by the Montreal Protocol.
Those substances listed as a Class I (or Class II) substance are
then subject to the monitoring and reporting requirements as set forth
and implemented under Section 603. Section 603(b) requires that on a
quarterly basis, or other such basis as EPA may prescribe, a report be
filed with EPA regarding the amount of substance(s) produced, imported,
and exported during the preceding reporting period.
Section 604 sets forth the general phase-out schedule of Class I
substances and exceptions to the phase-out. Section 604(a) requires EPA
to promulgate regulations implementing the phase-out schedule for Class
I substances set forth in the CAA. The Section 604 phaseout date for
most Class I substances is January 1, 2000; however, under Section
602(d), EPA may establish a later phaseout date for a newly listed
substance if the Section 604 phaseout date is unattainable, considering
when the substance is listed.
Section 614(b) requires that Title VI of the CAAA be ``construed,
interpreted, and applied as a supplement to the terms and conditions of
the Montreal Protocol, * * *, and shall not be construed, interpreted,
or applied to abrogate the responsibilities of the United States to
implement fully the provisions of the Montreal Protocol.'' Section
614(b) requires that in the case
[[Page 65921]]
of any conflict ``between any provision of this title and any provision
of the Montreal Protocol, the more stringent provision shall govern.''
Thus, today's proposed actions list CBM and put in place the phaseout
controls consistent with the Montreal Protocol.
B. Specific Elements of Today's Proposed Action
1. Listing CBM and Controls
Today's proposed action would create a new Group (Group VIII) of
class I substances, place CBM in this new Group, and assign CBM an ODP
of 0.12. Today's proposed action would establish a full ban on CBM
production and import. This ban would not apply to the production or
import of CBM that is subsequently transformed or destroyed, or to
imports of transhipments or heels (see Section I). No interim phasedown
levels are proposed; that is, production and import are unrestricted
until the effective date of the ban. It should be noted that EPA is not
proposing baseline allowances for CBM and therefore will not at this
time collect information on baseline production and consumption of CBM.
Today's action does not propose production for the ``basic domestic
needs'' of Article 5 countries for reasons described in Section III B
of this Preamble. After the total phaseout of CBM production and
import, EPA anticipates that the Parties to the Protocol may authorize
inclusion of CBM in the exemption for laboratory and analytical uses,
described in greater detail in Section IV.B.2 of this Preamble. EPA is
proposing reporting and recordkeeping requirements for persons who
produce, import, destroy, transform, tranship, or export CBM, as well
as for CBM authorized for essential uses. In addition, EPA is proposing
that persons wishing to import used, recycled or reclaimed CBM must
comply with the petition process described in 40 CFR 82.4(j) and
82.13(g)(2), (3) and (4).
EPA is proposing that the effective date for all of today's
proposed actions would be 30 days from the date of publication of the
final rule in the Federal Register. Under Section 604(b) of the CAA,
unless otherwise stated, the phaseout date for Class I substances is
January 1, 2000. However, pursuant to Section 602(d), EPA may establish
a later phaseout date for a newly listed substance if the Section
604(b) date is unattainable. Because the January 1, 2000 phaseout date
is in the past, it is obviously unattainable. Therefore, EPA is
proposing to establish a later phaseout date linked to the publication
date of the final rule.
Today's proposed effective date takes into consideration that the
Beijing Amendments entered-into-force under the Protocol on February
25, 2002, for Parties that have ratified the amendment package. The
U.S. Senate gave their advice and consent to the ratification of the
Beijing Amendment package on October 9, 2002, but the U.S. must still
officially deposit its instrument of ratification with the United
Nations. Ninety days following the date the U.S. officially deposits
the instrument of ratification for the Beijing Amendment package, the
U.S. assumes obligations to comply with the provisions of the Beijing
Amendment. Thus, EPA needs to have put in place (prior to the deposit
of the instrument of ratification) final regulatory programs that will
implement and ensure U.S. compliance with the provisions of the Beijing
Amendment package.
2. Ban on Trade With Non-Parties
Today's action also proposes to prohibit CBM import from and export
to a foreign state that is not a Party to the 1999 Beijing Amendments
to the Protocol. In accordance with previously established provisions
under the Protocol, current EPA regulations (60 FR 24970; 40 CFR
82.4(l)) prohibit certain class I controlled substances from export to
or import from foreign states not Parties to the Montreal Protocol or
specific amendment packages to the Protocol (e.g., the London
Amendments).
With today's action, EPA is proposing adding a new subparagraph,
Sec. 82.4(l)(5) regarding a CBM trade ban that would become effective
30 days after the date of publication of the final rule in the Federal
Register. However, in going forward with today's proposal, EPA wishes
to note that it is also considering alternative dates for making the
trade ban effective. EPA is also considering an effective date
immediately upon publication of the final rule. This other approach is
being considered because under the Protocol, the CBM trade ban will go
into effect one year from entry-into-force of the Beijing Amendments.
Since the Beijing Amendments entered-into-force on February 25, 2002,
the effective date of the trade ban for those countries that have
ratified the Amendments would be February 25, 2003. An effective date
for the trade ban for the U.S. could therefore be on or after this 2003
date.
The U.S. Senate gave their advice and consent to the ratification
of the Beijing Amendment package on October 9, 2002, but the U.S. must
still officially deposit its instrument of ratification with the United
Nations. Ninety days following the date the U.S. officially deposits
the instrument of ratification for the Beijing Amendment package, the
U.S. assumes obligations to comply with the provisions of the Beijing
Amendment. Thus, EPA needs to have put in place (prior to the deposit
of the instrument of ratification) final regulatory programs that will
implement and ensure U.S. compliance with the provisions of the Beijing
Amendment (including the trade ban on CBM).
A revised list of Parties that have ratified the Montreal Protocol
and successive amendments to the Protocol is published as Annex 1 in
Appendix C to Subpart A with today's proposed action. For the purposes
of the trade ban proposed in today's action, companies should refer to
Appendix C to Subpart A of Part 82 to identify nations that have not
yet ratified the Beijing Amendments, although this list will likely
change by the time a final rule is published. CBM imports from or
exports to these nations that have not ratified the Beijing Amendments
would be prohibited. EPA will publish notices on a periodic basis to
update this list (Appendix C) to reflect when Parties ratify the
Montreal Protocol and its amendments. For additional information on
countries that have ratified the Protocol and its amendments, visit the
website of the United Nations Environment Program (UNEP) Ozone
Secretariat at www.unep.org/ozone/ and look for the ``Status of
Ratification.''
3. Essential Use Exemptions
Article 2I of the Montreal Protocol allows for the possibility of
``essential use'' exemptions from the phaseout established for CBM. The
Parties to the Protocol established a process in Decision IV/25 by
which they can determine what uses of a controlled substance are
considered ``essential uses.'' In contrast, the CAA delineates several
specific exemptions under which uses of ODS may be considered to be
exempt from the phaseout of ODSs. Thus, a use that is considered an
``essential use'' under the Protocol, taking into account more recent
decisions under the Protocol, may or may not be specifically exempt
from the phaseout under the CAA. Section 614 of the CAA dictates that
the more stringent provision should prevail when there is a conflict
with the Protocol. In some instances the CAA may contain the more
stringent provision.
In 2001, EPA provided a de minimis exemption for essential
laboratory uses of class I ODSs based on the criteria
[[Page 65922]]
listed in Appendix G of subpart A of 40 CFR part 82. Production and
import of class I controlled substances for certain narrowly defined
laboratory and analytical applications are exempt from the production
and import phaseout (See 66 FR 14760 (3/13/01)). The criteria
identifying exempt applications are specified in Appendix G to 40 CFR
Part 82, Subpart A. Furthermore, the production and import of class I
controlled substances for laboratory and analytical applications must
be conducted in accordance with the recordkeeping and reporting
requirements specified in 40 CFR 82.13(v) to (z) of Subpart A, which
are summarized later in this Preamble.
On February 11, 2002, EPA extended this exemption through the year
2005, while eliminating the following uses, consistent with Decision
XI/15: (1) Testing of oil, grease and total petroleum hydrocarbons in
water; (b) Testing of tar in road-paving materials; and (c) Forensic
finger-printing (67 FR 6352). However, it should be noted that the
Parties to the Montreal Protocol have not extended the global
laboratory and analytical essential-use exemption indefinitely. This
issue is further discussed at 66 FR 14767 (3/13/01).
4. Recordkeeping and Reporting Requirements
If EPA designates CBM as a class I ODS, existing recordkeeping and
reporting requirements in 40 CFR 82.13 will apply to production,
importation, destruction, transformation, transhipments, export, or
essential uses of CBM. Potentially affected parties are urged to
consult the relevant regulatory paragraphs in 40 CFR Part 82.13,
Subpart A. In addition, guidance and reporting forms for these
requirements are available from EPA's Stratospheric Ozone Hotline
((800) 296-1996). Today's proposal to extend the existing recordkeeping
and reporting requirements to CBM will not take effect until EPA's
information collection request (ICR) has been finalized. This process
is described in Section VII.E.
(a) Producers
EPA is proposing that entities that produce CBM, as for other class
I controlled substances, would submit a report to the EPA Administrator
within 120 days of publication of the final rule, describing in detail
how daily production quantities are measured and recorded, including
how fugitive losses are accounted for and the estimated percent
efficiency of production process. These entities would also maintain
detailed records pertaining to (i) The quantity of controlled
substances produced at each facility and the purposes for which they
are produced, used, and sold, with certain written verifications; (ii)
quantities of other chemicals produced within each facility and
quantities of inputs used in the production of controlled substances;
and (iii) shipments of controlled substances produced at each facility.
These entities would, in addition, submit a quarterly report
identifying quarterly production amounts and amounts sold, transferred,
or exported (and specifying amounts transformed or destroyed by the
producer or recipient), with appropriate verifications; and a list of
the essential-use (including laboratory essential use) allowance
holders from whom orders were placed and the quantity of essential-use
controlled substances requested and produced, with appropriate
verifications. See 40 CFR Part 82, Subpart A (Sec. 82.13) for the
complete reporting and recordkeeping requirements.
(b) Importers
According to EPA's existing requirements for ODSs, a person may
import a used class I controlled substance if they comply with the
petition process described in 40 CFR 82.4(j) and 82.13(g)(2),(3) and
(4). Under the Protocol and the CAA, the import of ``used controlled
substances'' does not count against a country's obligation to
completely phase out import. Therefore, EPA is proposing that with the
listing of CBM as a class I controlled substance, an importer of used,
recycled, or reclaimed CBM would become subject to the requirements
specified in these sections. Specifically, importers of used, recycled,
or reclaimed controlled substances and transshipments would need to
fulfill the import petition process.
This process requires that for each individual shipment of greater
than 150 lbs, at least 15 working days before the shipment leaves the
foreign port of export, the importer must submit to EPA a petition
including the identity and quantity of the controlled substance;
information pertaining to the source, foreign owner, and exporter of
the controlled substance, and information regarding the previous use
and identity of foreign reclaimer; information on import port of entry,
vessel, and dates of shipment; and the intended use of the controlled
substance (40 CFR 82.13(g)(2) and (g)(3)).
EPA is also proposing that entities that import CBM, would also be
subject to the standard recordkeeping and reporting requirements for
importers of class I substances. These include the requirement to
maintain detailed records of the quantity of each controlled substance,
including information and documentation pertaining to the amounts that
may be in mixtures, that are used, recycled or reclaimed, that are for
use or sold for use in processing resulting in their transformation or
destruction, and that are imported for essential uses; and including
documentation and/or certification relating to port of entry, country
from which the substance was imported, bill of lading, the U.S. customs
entry form, and intended use of the imported substance. Such entities
must also submit to EPA a quarterly report summarizing the records
described above and including certifications regarding the intended use
of controlled substances (e.g., transformation, destruction, essential
uses). In the case of imports of used (including recycled or reclaimed)
controlled substances, or heels of controlled substances, bills of
lading or invoices must be labeled, indicating that the controlled
substance is used, recycled, reclaimed, or a heel, as appropriate. See
40 CFR Part 82, Subpart A (Sec. 82.13) for complete reporting and
recordkeeping requirements.
(c) Exporters
EPA is proposing that exporters of CBM, as for other class I
controlled substances, would submit information within 45 days after
the end of the control period, including the names and addresses of the
exporter and the recipient of the exports, the type and quantity of the
controlled substances exported, percentage which is used, recycled, or
reclaimed, date/port of export, amount exported to Article 5 countries,
and documentation or certification relating to purchaser's or
importer's intent to transform or destroy the controlled substance.
Exporters of class I controlled substances must also label, in the case
of exports of used (including recycled or reclaimed) controlled
substance, bills of lading or invoices, indicating that the controlled
substance is used, recycled, or reclaimed. See 40 CFR Part 82, Subpart
A (Sec. 82.13) for the complete reporting and recordkeeping
requirements.
(d) Destroyers
EPA is proposing that entities that destroy CBM, as with other
class I controlled substances, would submit a one-time report stating
the destruction unit's efficiency and the methods used to determine
destruction efficiency and to record the volume destroyed. Changes to
these methods must be
[[Page 65923]]
reported within 60 days of the change. The report must also include
names of other regulations applicable to the destruction process. Such
entities must also provide the producer or importer from whom they
purchased or received the controlled substances with a verification
that controlled substances will be used in processes that result in
their destruction. Destroyers of class I controlled substances must
also report the names and quantities of class I controlled substances
destroyed for each control period within 45 days of the end of the
control period. See 40 CFR Part 82, Subpart A (Sec. 82.13) for the
complete reporting and recordkeeping requirements.
(e) Transformers
EPA is proposing that entities that transform CBM, as for other
class I controlled substances, would provide the producer or importer
of the controlled substances the IRS certification that the controlled
substances are to be used in processes resulting in their
transformation, and report the names and quantities of class I
controlled substances transformed for each control period within 45
days of the end of the control period. See 40 CFR Part 82, Subpart A
(Sec. 82.13) for the complete reporting and recordkeeping
requirements.
(f) Transhipments, Heels, and Essential Uses
EPA is proposing that entities that bring back a container with a
heel of CBM to the United States would report quarterly the amount
brought into the United States, certifying that the residual amount in
each shipment is less than 10% of the volume of the container and will
remain in the container and be included in a future shipment, be
recovered and transformed or destroyed, or be recovered for a non-
emissive use. They would also have to report on the final disposition
of each shipment within 45 days of the end of the control period.
Entities that transship a controlled substance must maintain records
that indicate that the controlled substance shipment originated in a
foreign country destined for another foreign country, and does not
enter interstate commerce with the United States. Entities that were
allocated essential-use allowances and submitted an order to a producer
or importer for a controlled substance must report the quarterly
quantity received from each producer or importer. See 40 CFR Part 82,
Subpart A (Sec. 82.13) for the complete reporting and recordkeeping
requirements.
(g) Laboratory Essential Uses
EPA is proposing that CBM to be used in laboratory applications be
exempted from the ban in the same manner that all other Class I ODSs
are exempted for laboratory uses. In addition, laboratory distributors
who sell CBM under this exemption would be subject to the reporting
requirements outlined in 40 CFR Part 82, Subpart A (Sec. 82.13). These
reporting requirements are as follows: Laboratory distributors/
suppliers must report quarterly the quantity received of each class I
controlled substance from each producer or importer. Distributors must
also keep on record certifications from customers who purchase CBM (or
any Class I ODS) stating that the CBM will only be used in laboratory
applications defined in 40 CFR Part 82, Subpart A (Sec. 82.13),
Appendix G. (Laboratory customers purchasing a controlled substance
under the global laboratory essential-use exemption must provide the
producer, importer or distributor with a one-time-per-year
certification for each controlled substance that the substance will
only be used for laboratory applications and not be resold or used in
manufacturing). Distributors must report quarterly the quantity of the
controlled substance purchased by each laboratory customer. If the
controlled substances are only sold as reference standards for
calibrating laboratory analytical equipment, the distributor may write
a letter to the EPA Administrator requesting permission to submit these
reports annually rather than quarterly. See 40 CFR Part 82, Subpart A
(Sec. 82.13) for complete reporting and recordkeeping requirements.
V. What Other Stratospheric Protection Regulations Will Relate to CBM
Following Today's Proposed Action?
A regulation originally published on February 11, 1993 (58 FR 8136)
and amended at 60 FR 4020 (January 19, 1995) establishes requirements
pertaining to labeling of products containing or made with ozone-
depleting substances. The text of that regulation (as well as Fact
Sheets about it) can be found at the following Web site: http://www.epa.gov/ozone/title6/labeling/labeling.html. The labeling
requirements apply to products manufactured with, containers of, and
products containing specific ozone-depleting substances pursuant to
section 611of the CAAA. Specifically, the regulations require products
that are manufactured with a process using a class I substance;
products containing a class I substance; and containers of a class I or
class II (hydrochlorofluorocarbons (HCFCs)) substance or mixture to
bear a ``clearly legible and conspicuous'' warning statement.
Manufacturers, distributors, wholesalers, and retailers of products
manufactured with, containers of, and products containing CBM would
therefore be required to comply with the labeling requirements which
would become applicable to CBM one year after its final listing as a
class I ODS; See 40 CFR Part 82, Subpart E.
VI. What Are the Supporting Analyses?
A. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector.
Under section 202 of the UMRA, EPA generally must prepare a written
statement, including a cost-benefit analysis, for proposed and final
rules with ``Federal mandates'' that may result in expenditures to
State, local, and tribal governments, in the aggregate, or to the
private sector, of $100 million or more in any one year. Before
promulgating an EPA rule for which a written statement is needed,
section 205 of the UMRA generally requires EPA to identify and consider
a reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Section 204 of the UMRA requires the
Agency to develop a process to allow elected State, local, and tribal
government officials to provide input in the development of any
proposal containing a significant Federal intergovernmental mandate.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
[[Page 65924]]
small governments on compliance with the regulatory requirements.
EPA has determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. Today's proposed ban on production and
import is expected to have minimal economic impact because production
and import for feedstock uses (which represent the majority of current
production and import uses) are exempt from the ban. Furthermore, CBM
use has been largely curtailed by prior environmental and safety
regulations in the fire protection, explosion suppression, and solvent
sectors. Therefore the proposed ban of CBM is not expected to
significantly affect the regulated community.
Based upon research and information available to EPA at this time,
EPA understands that the regulated community directly impacted by
today's proposed action is restricted in size. Potentially regulated
entities include entities that produce, export, or import CBM; entities
that use CBM in a process that results in its transformation or
destruction; entities that are laboratory suppliers of CBM; and
entities with laboratory uses of CBM. For all of these entities, there
would be new recordkeeping and reporting requirements imposed by
today's proposed action, but these are estimated to be minimal
(approximately a total for the industry of $200,000 per year; see
VII.B. for explanation of this estimate).
Thus, today's proposed rule is not subject to the requirements of
sections 202 or 205 of the UMRA. EPA has also determined that this
proposed rule contains no regulatory requirements that are expected to
significantly or uniquely affect small governments; therefore, we are
not required to develop a plan with regard to small governments under
section 203. Finally, because this proposed rule does not contain a
significant intergovernmental mandate, the Agency is not required to
develop a process to obtain input from elected State, local, and tribal
officials under section 204.
B. Regulatory Flexibility Act (RFA), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business that
is identified by the Standard Industrial Classification (SIC) Code in
the Table below; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field. The size standards described
in this section apply to all Small Business Administration (SBA)
programs unless otherwise specified. The size standards themselves are
expressed either in number of employees or annual receipts in millions
of dollars, unless otherwise specified. The number of employees or
annual receipts indicates the maximum allowed for a concern and its
affiliates to be considered small.
----------------------------------------------------------------------------------------------------------------
SIC small
business size
standard (in
Category SIC Code NAICS Code number of
employees or
millions of
dollars)
----------------------------------------------------------------------------------------------------------------
1. Industrial organic chemicals, NEC............................ 2869 325199 1,000
2. Pharmaceutical preparations.................................. 2834 325412 750
3. Pesticides and agricultural chemicals, NEC................... 2879 32532 500
4. Chemicals and allied products, NEC........................... 5169 42269 100
5. Testing laboratories, except veterinary testing labs......... 8734 54138 $5.0
6. Medical and diagnostic laboratories.......................... 8071 6215 $5.0
7. Research and development in the physical, engineering and 8731, 8733 54171 $5.0
life sciences..................................................
----------------------------------------------------------------------------------------------------------------
After considering the economic impacts of today's proposed rule on
small entities, I certify that this proposed action will not have a
significant economic impact on a substantial number of small entities.
Briefly, the following entities may potentially be affected by this
regulation: entities that produce, export, or import CBM; entities that
use CBM in a process that results in its transformation or destruction;
entities that are laboratory suppliers of CBM; and entities with
laboratory uses of CBM. For all these entities, there are new
recordkeeping and reporting requirements imposed by today's proposed
action. See the section entitled ``Paperwork Reduction Act.'' It is
estimated that total recordkeeping and reporting requirements will cost
approximately an industry-wide total of $200,000 for the universe of
potentially regulated entities, consisting of approximately 130
companies.
In addition to recordkeeping and reporting requirements, today's
proposed action bans the production and import of CBM. There are only 2
known producers of CBM in the United States. These are large,
multinational corporations and not small entities. In addition,
informal discussions with these producers indicate that virtually all
of their CBM production is for customers who transform CBM; this
production is not subject to the CBM phaseout implemented by today's
proposed action. Regarding import, EPA records indicate that during the
years 1995-1999 (the years for which data were available), 22 companies
had imported CBM during one or more years. Of these, 16 had imported
CBM in only one of the 5 years of record. Informal discussions with the
primary importer (responsible for 77% of the imported CBM) indicate
that 80-85% of their imports are for transformation. Thus, the impacts
of today's proposed action on CBM importers will also be limited
(providing that import is from countries that are Parties to or in
compliance with the Beijing Amendments). EPA sent letters on February
28, 2001, and again on April 25, 2001, to all importers for which
[[Page 65925]]
addresses could be found, as well as others, notifying them of EPA's
anticipated implementation of the 1999 Beijing Amendments to the
Montreal Protocol, including the ban on production and import, and new
recordkeeping and reporting requirements. To date, no adverse concern
has been expressed by any small business recipient of the letter.
Today's proposed action also bans trade in CBM with countries which
are not Parties to or in compliance with the Beijing Amendments to the
Montreal Protocol. EPA believes that this provision of today's proposed
rule will not significantly impact the regulated community because
extremely limited demand is believed to exist for non-feedstock
purposes, as explained in earlier sections of this Preamble, and
because it is expected that demand for CBM for feedstock purposes could
potentially be met by domestic production.
Although this proposed rule will not have a significant economic
impact on a substantial number of small entities, EPA notes that it has
conducted outreach to consult with and notify the potentially affected
community of today's proposed action.
C. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether this proposed regulatory action is
``significant'' and therefore subject to OMB review and the
requirements of the Executive Order. The Order defines a
``significant'' regulatory action as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this proposed rule is not a ``significant regulatory
action'' and is therefore not subject to OMB review.
D. Applicability of Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it implements an obligation of
the United States to implement fully the provisions of the Montreal
Protocol and is not directly based on health or safety risks.
E. Paperwork Reduction Act
The information collection requirements in this proposed rule will
be submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1432.22) and a copy may be obtained from Susan Auby by mail at
Collection Strategies Division; U.S. Environmental Protection Agency
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460, by email at
auby.susan @epa.gov, or by calling (202) 566-1672. A copy may also be
downloaded off the Internet at http://www.epa.gov/icr. The information
requirements are not enforceable until OMB has approved them.
As explained in EPA's ICR document, EPA's Office of Air and
Radiation is revising the previously approved information collection by
the same title.\3\ Today's proposed action will impose new
recordkeeping and reporting requirements associated with the
production, import, export, recycling, destruction, transhipment, and
feedstock use of CBM. Specifically, producers, importers, and exporters
will be required to submit to EPA quarterly reports of the quantity of
CBM in each of their transactions; they will also be required to report
the quantity of CBM transformed or destroyed. Producers, importers, and
exporters of CBM must also maintain records such as Customs entry
forms, bills of lading, sales records, and canceled checks to support
their quarterly reports. The quarterly reports may be faxed or mailed
to EPA, where they will be handled as confidential business
information. EPA will store the submitted information in a computerized
database designed to track production, import, and export balances and
transfer activities. EPA is currently exploring the possibility of
having reports filled and submitted to the Agency over a secure Web
site. If and when electronic reporting would occur, EPA would change
its guidance document and its ICR to indicate a change in burden hours.
EPA will use the information to ensure that the U.S. maintains
compliance with the Protocol requirements and to report annually to
United Nations Environment Programme the U.S. activity in CBM. EPA will
store the submitted information in a computer system designed to track
production, import, and export balances and transfer activities. EPA
estimates that the information collection will involve approximately
133 respondents: 2 producers, 2 exporters, 8 importers, 100 laboratory
certifiers, 8 transformers and destroyers, 6 essential use allowance
holders, 2 laboratory suppliers, and 5 laboratory suppliers (reference
standards). The total annual industry burden and cost are estimated at
2,580 hours and $201,350, of which $3,000 are annual operating and
maintenance (O&M) costs.
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\3\ On March 5, 2001, the Office of Management and Budget (OMB)
approved EPA's request for the extension of approval of this ICR.
The request for extension was submitted by EPA on November 29, 2000.
With that approval, OMB stated that it ``understands that EPA is in
the process of developing several rules that would result in
revisions to this collection * * * EPA will need to revise this
collection as part of those rulemaking processes.'' This ICR
revision is one such revision.
---------------------------------------------------------------------------
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and
[[Page 65926]]
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. Comments
are requested on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, including through the use of automated
collection techniques. Send comments on the ICR to the Director,
Collection Strategies Division; U.S. Environmental Protection Agency
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460; and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, 725 17th Street, NW., Washington, DC 20503, marked ``Attention:
Desk Officer for EPA.'' Include the ICR number in any correspondence.
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after October 29, 2002, a comment to OMB is best assured of
having its full effect if OMB receives it by November 29, 2002.
F. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule will not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132.
Today's proposed rule is expected to primarily affect private
sector entities that either produce, import, export, transform, or use
or supply CBM for laboratory purposes. EPA is not aware of any current
uses of CBM by public sector entities. Thus, the requirements of
section 6 of the Executive Order do not apply to this proposed rule.
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Today's proposed rule is expected to primarily affect private
sector entities that either produce, import, export, transform, or use
or supply CBM for laboratory purposes. EPA is not aware of any current
uses of CBM by tribal governments or their communities. Thus, Executive
Order 13175 does not apply to this proposed rule. In the spirit of
Executive Order 13175, and consistent with EPA policy to promote
communications between EPA and tribal governments, EPA specifically
solicits additional comment on this proposed rule from tribal
officials.
H. The National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. 104-113, Section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
Today's proposed action does not involve technical standards.
Therefore, EPA did not consider the use of any voluntary consensus
standards.
I. Executive Order 13211 (Energy Effects)
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations that Significantly Affect Energy
Supply, Distribution, or Use,'' (66 FR 28355 (5/22/01)) because it is
not a significant regulatory action under Executive Order 12866.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Chlorobromomethane, Exports, Imports,
Reporting and recordkeeping requirements, Halon, Ozone layer.
Dated: October 18, 2002.
Christine Todd Whitman,
Administrator.
For reasons set out in the preamble, 40 CFR Part 82 is proposed to
be amended 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, 7671-7671q.
Subpart A--Production and Consumption Controls
2. Section 82.3 is amended by:
a. Adding in alphabetical order the definition of Beijing
Amendments.
b. Revising the last sentence in the definition of Controlled
substance.
The revision and addition read as follows:
Sec. 82.3 Definitions.
* * * * *
Beijing Amendments means the Montreal Protocol, as amended at the
Eleventh Meeting of the Parties to the Montreal Protocol in Beijing in
1999.
* * * * *
Controlled substance * * * Class I substances are further divided
into eight groups, Group I, Group II, Group III, Group IV, Group V,
Group VI, Group VII, and Group VIII, as set forth in appendix A to this
subpart.
* * * * *
3. Section 82.4 is amended by:
a. Revising the first sentence of paragraph (b),
b. Revising the first sentence of paragraph (d),
[[Page 65927]]
c. Adding paragraph (l)(5).
The revisions and addition read as follows:
Sec. 82.4 Prohibitions.
* * * * *
(b) Effective January 1, 1996, for any class I, Group I, Group II,
Group III, Group IV, Group V, or Group VII controlled substances, and
effective January 1, 2005, for any class I, Group VI controlled
substance, and effective [date 30 DAYS FROM PUBLICATION OF FINAL RULE
IN Federal Register], for any class I, Group VIII controlled substance,
no person may produce, at any time in any control period, (except that
are transformed or destroyed domestically or by a person of another
Party) in excess of the amount of conferred unexpended essential-use
allowances or exemptions under this section, or the amount of
unexpended Article 5 allowances as allocated under Sec. 82.9 for that
substance held by that person under the authority of this subpart at
that time for that control period. * * *
* * * * *
(d) Effective January 1, 1996, for any class I, Group I, Group II,
Group III, Group IV, Group V, or Group VII controlled substances, and
effective January 1, 2005, for any class I, Group VI controlled
substance, and effective [date 30 DAYS FROM PUBLICATION OF FINAL RULE
IN Federal Register] for any class I, Group VIII controlled substance,
no person may import (except for transhipments or heels), at any time
in any control period, (except for controlled substances that are
transformed or destroyed) in excess of the amount of unexpended
essential-use allowances or exemptions as allocated under this section
for that substance held by that person under the authority of this
subpart at that time for that control period. * * *
* * * * *
(l) * * *
(5) Import or export any quantity of a controlled substance listed
in Class I, Group VIII, in Appendix A to this subpart, from or to any
foreign state not Party to the Beijing Amendments (as noted in Appendix
C, Annex 1, to this subpart), unless that foreign state is complying
with the Beijing Amendments (as noted in Appendix C, Annex 2, to this
subpart).
* * * * *
4. Section 82.13 is amended by:
a. Revising paragraph (a).
b. Revising paragraph (f)(1) introductory text.
The revisions read as follows:
Sec. 82.13 Recordkeeping and reporting requirements.
(a) Unless otherwise specified, the recordkeeping and reporting
requirements set forth in this section take effect on January 1, 1995.
For class I, Group VIII controlled substances, the recordkeeping and
reporting requirements set forth in this section take effect on [date
30 DAYS FROM PUBLICATION OF FINAL RULE IN THE Federal Register].
* * * * *
(f) * * *
(1) Within 120 days of May 10, 1995, or within 120 days of the date
that a producer first produces a class I controlled substance,
whichever is later, and within 120 days of [PUBLICATION OF FINAL RULE]
for class I, Group VIII controlled substances, every producer who has
not already done so must submit to the Administrator a report
describing:
* * * * *
5. Appendix A to Subpart A is amended by adding paragraph H. to
read as follows:
Appendix A to Subpart A of Part 82--Class 1 Controlled Substances
------------------------------------------------------------------------
Class 1 controlled substances ODP
------------------------------------------------------------------------
* * * * *
H. Group VIII:
CH2BrCl (Chlorobromomethane)............................... 0.12
------------------------------------------------------------------------
6. Appendix C to Subpart A is revised to read as follows:
Appendix C to Subpart A of Part 82--Parties to the Montreal Protocol,
and Nations Complying With, But Not Parties To, The Protocol
Annex 1 to Appendix C of Subpart A--Parties to the Montreal Protocol
(as of January 24, 2002)
The check mark
[[]] means the
particular country ratified the Protocol or the specific Amendment
package. Amendment packages are identified by the name of the city
where the amendment package was negotiated and agreed. Updated lists
of Parties to the Protocol and the Amendments can be located at:
www.unep.org/ozone/ratif.shtml.
----------------------------------------------------------------------------------------------------------------
Montreal London Copenhagen Montreal Beijing
Foreign state protocol amendments amendments amendments amendments
----------------------------------------------------------------------------------------------------------------
Albania...................................
Algeria...................................
Angola....................................
Antigua and Barbuda.......................
Argentina.................................
Armenia...................................
Australia.................................
Austria...................................
Azerbaijan................................
Bahamas...................................
Bahrain...................................
Bangladesh................................
Barbados..................................
Belarus...................................
Belgium...................................
Belize....................................
Benin.....................................
Bolivia...................................
Bosnia and Herzegovina....................
Botswana..................................
Brazil....................................
Brunei Darussalam.........................
Bulgaria..................................
Burkina Faso..............................
[[Page 65928]]
Burundi...................................
Cambodia..................................
Cameroon..................................
Canada....................................
Cape Verde................................
Central African Republic..................
Chad......................................
Chile.....................................
China.....................................
Colombia..................................
Comoros...................................
Congo.....................................
Congo, Democratic Republic of.............
Costa Rica................................
Cote d'Ivoire.............................
Croatia...................................
Cuba......................................
Cyprus....................................
Czech Republic............................
Denmark...................................
Djibouti..................................
Dominica..................................
Dominican Republic........................
Ecuador...................................
Egypt.....................................
El Salvador...............................
Estonia...................................
Ethiopia..................................
European Community........................
Federated States of Micronesia............
Fiji......................................
Finland...................................
France....................................
Gabon.....................................
Gambia....................................
Georgia...................................
Germany...................................
Ghana.....................................
Greece....................................
Grenada...................................
Guatemala.................................
Guinea....................................
Guyana....................................
Haiti.....................................
Honduras..................................
Hungary...................................
Iceland...................................
India.....................................
Indonesia.................................
Iran, Islamic.............................
Ireland...................................
Israel....................................
Italy.....................................