Title 40—Protection of Environment--Volume 1
PART 82—PROTECTION OF STRATOSPHERIC OZONE
§ 82.1   Purpose and scope.
(a) The purpose of the regulations in this subpart is to implement the Montreal Protocol on Substances that Deplete the Ozone Layer and sections 602, 603, 604, 605, 606, 607, 614 and 616 of the Clean Air Act Amendments of 1990, Public Law 101-549. The Protocol and section 604 impose limits on the production and consumption (defined as production plus imports minus exports, excluding transhipments and used controlled substances) of certain ozone-depleting substances, according to specified schedules. The Protocol also requires each nation that becomes a Party to the agreement to impose certain restrictions on trade in ozone-depleting substances with non-Parties.
(b) This subpart applies to any person that produces, transforms, destroys, imports or exports a controlled substance or imports or exports a controlled product.
§ 82.2   [Reserved]
§ 82.3   Definitions for class I and class II controlled substances.
As used in this subpart, the term:
Administrator means the Administrator of the United States Environmental Protection Agency or his or her authorized representative. Starting May 18, 2020, reports and petitions that are available to be submitted through the Central Data Exchange, as well as any related supporting documents, must be submitted through that tool. Any other reports and communications shall be submitted to Stratospheric Protection Manager, 1200 Pennsylvania Ave. NW, Mail Code: 6205T, Washington, DC 20460.
Aircraft halon bottle means a vessel used as a component of an aircraft fire suppression system containing halon-1301 or halon-1211 approved under FAA rules for installation in a certificated aircraft.
Appliance means any device which contains and uses a refrigerant and which is used for household or commercial purposes, including any air conditioner, refrigerator, chiller, or freezer.
Applicator means the person who applies methyl bromide.
Approved critical use(s) means those uses of methyl bromide listed in Column A of appendix L to this subpart as further clarified in Columns B and C of that appendix.
Approved critical user(s) means a person who:
(1) For the applicable control period, applied to EPA for a critical use exemption or is a member of a consortium that applied to EPA for a critical use exemption for a use and location of use that was included in the U.S. nomination, authorized by a Decision of the Parties to the Montreal Protocol, and then finally determined by EPA in a notice-and-comment rulemaking to be an approved critical use; and
(2) Has an area in the applicable location of use that requires methyl bromide fumigation because the person reasonably expects that the area will be subject to a limiting critical condition during the applicable control period.
Article 5 allowances means the allowances apportioned under §§ 82.9(a), 82.11(a)(2), and 82.18(a).
Baseline consumption allowances means the consumption allowances apportioned under §§ 82.6 and 82.19.
Baseline production allowances means the production allowances apportioned under §§ 82.5 and 82.17.
Batch emission episode means a discrete venting episode associated with a vessel in a process; a vessel may have more than one batch emission episode. For example, a displacement of vapor resulting from the charging of a vessel with a feed material will result in a discrete emission episode that will last through the duration of the charge and will have an average flow rate equal to the rate of the charge. If the vessel is then heated, there will also be another discrete emission episode resulting from the expulsion of expanded vapor. Other emission episodes also may occur from the same vessel and other vessels in the process, depending on process operations.
Batch process or batch operation means a noncontinuous operation involving intermittent or discontinuous feed into equipment, and, in general, involves the emptying of the equipment after the batch operation ceases and prior to beginning a new operation. Addition of raw material and withdrawal of product do not occur simultaneously in a batch operation.
Beijing Amendments means the Montreal Protocol, as amended at the Eleventh Meeting of the Parties to the Montreal Protocol in Beijing in 1999.
Byproduct (for the purpose of this subpart only) means a chemical that is produced coincidentally during the production of another chemical.
Calculated level means the weighted amount of a controlled substance determined by multiplying the amount (in kilograms) of the controlled substance by that substance's ozone depletion potential (ODP) weight listed in appendix A or appendix B to this subpart.
Central Data Exchange means EPA's centralized electronic document receiving system, or its successors.
Class I refers to the controlled substances listed in appendix A to this subpart.
Class II refers to the controlled substances listed in appendix B to this subpart.
Commodity Owner, Shipper or their Agent means the person requesting that an applicator use methyl bromide for quarantine or preshipment applications.
Completely destroy means to cause the expiration of a controlled substance at a destruction efficiency of 98 percent or greater, using one of the destruction technologies approved by the Parties.
Confer means to shift the essential-use allowances obtained under § 82.8 from the holder of the unexpended essential-use allowances to a person for the production of a specified controlled substance.
Consortium means an organization representing a group of methyl bromide users that has collectively submitted an application for a critical use exemption on behalf of all members of the group. The members of a consortium shall be determined on the basis of the rules established by the organization. Members may either be required to formally join the consortium ( e.g. , by submitting an application or paying dues) or may automatically become members upon meeting particular criteria ( e.g. , a grower of a specific crop in a particular region).
Consumption means the production plus imports minus exports of a controlled substance (other than transhipments, or used controlled substances).
Consumption allowances means the privileges granted by this subpart to produce and import controlled substances; however, consumption allowances may be used to produce controlled substances only in conjunction with production allowances. A person's consumption allowances for class I substances are the total of the allowances obtained under §§ 82.6 and 82.7 as may be modified under § 82.12 (transfer of allowances). A person's consumption allowances for class II controlled substances are the total of the allowances obtained under §§ 82.19 and 82.20, as may be modified under § 82.23.
Continuous process or operation means a process where the inputs and outputs flow continuously throughout the duration of the process. Continuous processes are typically steady state.
Control period means the period from January 1, 1992 through December 31, 1992, and each twelve-month period from January 1 through December 31, thereafter.
Controlled product means a product that contains a controlled substance listed as a Class I, Group I or II substance in appendix A to this subpart. Controlled products include, but are not limited to, those products listed in appendix D to this subpart.
Controlled products belong to one or more of the following six categories of products:
(1) Automobile and truck air conditioning units (whether incorporated in vehicles or not);
(2) Domestic and commercial refrigeration and air-conditioning/heat pump equipment (whether containing controlled substances as a refrigerant and/or in insulating material of the product), e.g. Refrigerators, Freezers, Dehumidifiers, Water coolers, Ice machines, Air-conditioning and heat pump units;
(3) Aerosol products, except medical aerosols;
(4) Portable fire extinguishers;
(5) Insulation boards, panels and pipe covers;
(6) Pre-polymers.
Controlled substance means any substance listed in appendix A or appendix B to this subpart, whether existing alone or in a mixture, but excluding any such substance or mixture that is in a manufactured product other than a container used for the transportation or storage of the substance or mixture. Thus, any amount of a listed substance in appendix A or appendix B to this subpart that is not part of a use system containing the substance is a controlled substance. If a listed substance or mixture must first be transferred from a bulk container to another container, vessel, or piece of equipment in order to realize its intended use, the listed substance or mixture is a “controlled substance.” The inadvertent or coincidental creation of insignificant quantities of a listed substance in appendix A or appendix B to this subpart; during a chemical manufacturing process, resulting from unreacted feedstock, from the listed substance's use as a process agent present as a trace quantity in the chemical substance being manufactured, or as an unintended byproduct of research and development applications, is not deemed a controlled substance. Controlled substances are divided into two classes, Class I in appendix A to this subpart, and Class II listed in appendix B to this subpart. 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.
Copenhagen Amendments means the Montreal Protocol on Substances That Deplete the Ozone Layer, as amended at the Fourth Meeting of the Parties to the Montreal Protocol in Copenhagen in 1992.
Critical use means a circumstance in which the following two conditions are satisfied:
(1) There are no technically and economically feasible alternatives or substitutes for methyl bromide available that are acceptable from the standpoint of environment and health and are suitable to the crops and circumstances involved, and
(2) The lack of availability of methyl bromide for a particular use would result in significant market disruption.
Critical use allowance (CUA) means the privilege granted by this subpart to produce or import one (1) kilogram of methyl bromide for an approved critical use during the specified control period. A person's critical use allowances are the total of the allowances obtained under § 82.8(c) as may be modified under § 82.12 (transfer of allowances).
Critical use allowance for pre-plant uses means the privilege granted by this subpart to produce or import one (1) kilogram of methyl bromide solely for an approved critical use in pre-plant categories specified in Appendix L to this subpart during the specified control period. A person's critical use allowances for pre-plant uses are the total of the allowances obtained under § 82.8(c) as may be modified under § 82.12 (transfer of allowances).
Critical use allowance for post-harvest uses means the privilege granted by this subpart to produce or import one (1) kilogram of methyl bromide solely for an approved critical use in post-harvest categories specified in appendix L to this subpart during the specified control period. A person's critical use allowances for post-harvest uses are the total of the allowances obtained under § 82.8(c) as may be modified under § 82.12 (transfer of allowances).
Critical use allowance (CUA) holder means an entity to which EPA allocates a quantity of critical use allowances as reflected in § 82.8(c) or who receives a quantity of critical use allowances through a transfer under § 82.12.
Critical use methyl bromide means the class I, Group VI controlled substance produced or imported through expending a critical use allowance or that portion of inventory produced or imported prior to the January 1, 2005 phaseout date that is sold only for approved critical uses.
Destruction means the expiration of a controlled substance to the destruction and removal efficiency actually achieved, unless considered completely destroyed as defined in this section. Such destruction might result in a commercially useful end product, but such usefulness would be secondary to the act of destruction. Destruction must be achieved using one of the following controlled processes approved by the Parties to the Protocol:
(1) Liquid injection incineration;
(2) Reactor cracking;
(3) Gaseous/fume oxidation;
(4) Rotary kiln incineration;
(5) Cement kiln;
(6) Radio frequency plasma;
(7) Municipal waste incinerators (only for the destruction of foams);
(8) Nitrogen plasma arc;
(9) Portable plasma arc;
(10) Argon plasma arc;
(11) Chemical reaction with hydrogen and carbon dioxide;
(12) Inductively coupled radio frequency plasma;
(13) Microwave plasma;
(14) Porous thermal reactor;
(15) Gas phase catalytic de-halogenation;
(16) Superheated steam reactor; or
(17) Thermal reaction with methane.
Difficult-to-monitor means the equipment piece may not be monitored without elevating the monitoring personnel more than 2 meters (7 feet) above a support surface or it is not accessible in a safe manner when it is in controlled substance service.
Distributor of methyl bromide means the person directly selling a class I, Group VI controlled substance to an applicator.
Dual mechanical seal pump and dual mechanical seal agitator means a pump or agitator equipped with a dual mechanical seal system that includes a barrier fluid system where the barrier fluid is not in light liquid service; each barrier fluid system is equipped with a sensor that will detect failure of the seal system, the barrier fluid system, or both; and meets the following requirements:
(1) Each dual mechanical seal system is operated with the barrier fluid at a pressure that is at all times (except periods of startup, shutdown, or malfunction) greater than the pump or agitator stuffing box pressure; or
(2) Equipped with a barrier fluid degassing reservoir that is routed to a process or fuel gas system or connected by a closed-vent system to a control device; or
(3) Equipped with a closed-loop system that purges the barrier fluid into a process stream.
Equipment (for the purposes of § 82.25 only) means each pump, compressor, agitator, pressure relief device, sampling connection system, open-ended valve or line, valve, connector, and instrumentation system in controlled substance service for a process listed in § 82.25(b)(2); and any destruction units or closed-vent systems to which corresponding processes are vented.
Essential Metered Dose Inhaler (Essential MDI) means metered dose inhalers for the treatment of asthma and chronic obstructive pulmonary disease, approved by the Food and Drug Administration or by another Party's analogous health authority before December 31, 2000, and considered to be essential by the Party where the MDI product will eventually be sold. In addition, if the MDI product is to be sold in the U.S., the active moiety contained in the MDI must be listed as essential at 21 CFR 2.125(e).
Essential-Use Allowances means the privileges granted by § 82.4(n) to produce class I substances, as determined by allocation decisions made by the Parties to the Montreal Protocol and in accordance with the restrictions delineated in the Clean Air Act Amendments of 1990.
Essential-Use Chlorofluorocarbons (Essential-use CFCs) are the CFCs (CFC-11, CFC-12, or CFC-114) produced under the authority of essential-use allowances and not the allowances themselves. Essential-use CFCs include CFCs imported or produced by U.S. entities under the authority of essential-use allowances for use in essential metered dose inhalers, as well as CFCs imported or produced by non-U.S. entities under the authority of privileges granted by the Parties and the national authority of another country for use in essential metered dose inhalers.
Essential-Uses means those uses of controlled substances designated by the Parties to the Protocol to be necessary for the health and safety of, or critical for the functioning of, society; and for which there are no available technically and economically feasible alternatives or substitutes that are acceptable from the standpoint of environment and health. Beginning January 1, 2000 (January 1, 2002 for methyl chloroform) the essential use designations for class I substances must be made in accordance with the provisions of the Clean Air Act Amendments of 1990.
Export means the transport of virgin or used controlled substances from inside the United States or its territories to persons outside the United States or its territories, excluding United States military bases and ships for on-board use.
Export production allowances means the privileges granted by § 82.18(b) to produce HCFC-141b for export following the phaseout of HCFC-141b on January 1, 2003.
Exporter means the person who contracts to sell controlled substances for export or transfers controlled substances to his affiliate in another country.
Facility means one or more plants at the same location owned by or under common control of the same person.
Foreign state means an entity which is recognized as a sovereign nation or country other than the United States of America. 1
1 Taiwan is not considered a foreign state.
Foreign state complying with, when referring to a foreign state not Party to the 1987 Montreal Protocol, the London Amendment, the Copenhagen Amendment, or the Beijing Amendment, means any foreign state that has been determined to be complying with the 1987 Montreal Protocol or the specified amendments by a Meeting of the Parties.
Foreign state not Party to or Non-Party means a foreign state that has not deposited instruments of ratification, acceptance, or other form of approval with the Directorate of the United Nations Secretariat, evidencing the foreign state's ratification of the provisions of the 1987 Montreal Protocol, the London Amendment, the Copenhagen Amendment, or the Beijing Amendment, as specified.
Halon bank means a facility run by a national government or privately run and authorized by a national government that collects and stores previously-recovered halon for reuse at a later date.

granted to a HCFC-141b formulator; an agency, department, or instrumentality of the U.S.; or a non-governmental space vehicle entity by this subpart to order production of or to import HCFC-141b, as determined in accordance with § 82.16(h).
Heel means the amount of a controlled substance that remains in a container after it is discharged or off-loaded (that is no more than ten percent of the volume of the container).
Hydrostatic testing means checking a gas pressure vessel for leaks or flaws. The vessel is filled with a nearly incompressible liquid—usually water or oil—and examined for leaks or permanent changes in shape.
Import means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into any place subject to the jurisdiction of the United States whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States, with the following exemptions:
(1) Off-loading used or excess controlled substances or controlled products from a ship during servicing,
(2) Bringing controlled substances into the U.S. from Mexico where the controlled substance had been admitted into Mexico in bond and was of U.S. origin, and
(3) Bringing a controlled product into the U.S. when transported in a consignment of personal or household effects or in a similar non-commercial situation normally exempted from U.S. Customs attention.
Importer means any person who imports a controlled substance or a controlled product into the United States. “Importer” includes the person primarily liable for the payment of any duties on the merchandise or an authorized agent acting on his or her behalf. The term also includes, as appropriate:
(1) The consignee;
(2) The importer of record;
(3) The actual owner; or
(4) The transferee, if the right to draw merchandise in a bonded warehouse has been transferred.
In controlled substance service means that a piece of equipment that engages in an activity listed in § 82.25(b)(2), either contains or contacts a controlled substance that is a liquid or gas, and contains at least 5 percent by weight of a controlled substance.
In gas and vapor service means that a piece of equipment in regulated material service contains a gas or vapor at operating conditions.
In heavy liquid service means that a piece of equipment in regulated material service is not in gas and vapor service or in light liquid service.
In light liquid service means that a piece of equipment in regulated material service contains a liquid that meets the following conditions:
(1) The vapor pressure of one or more of the compounds is greater than 0.3 kilopascals at 20  °C;
(2) The total concentration of the pure compounds constituents having a vapor pressure greater than 0.3 kilopascals at 20  °C is equal to or greater than 20 percent by weight of the total process stream; and
(3) The fluid is a liquid at operating conditions.
Vapor pressures may be determined by standard reference texts or ASTM D-2879.
In vacuum service means that equipment is operating at an internal pressure which is at least 5 kilopascals below ambient pressure.
Individual shipment means the kilograms of a controlled substance for which a person may make one (1) U.S. Customs entry, as identified in the non-objection letter from the Administrator under §§ 82.13(g) and 82.24(c).
Interstate commerce means the distribution or transportation of any controlled substance between one state, territory, possession or the District of Columbia, and another state, territory, possession or the District of Columbia, or the sale, use or manufacture of any controlled substance in more than one state, territory, possession or District of Columbia. The entry points for which a controlled substance is introduced into interstate commerce are the release of a controlled substance from the facility in which the controlled substance was manufactured, the entry into a warehouse from which the domestic manufacturer releases the controlled substance for sale or distribution, and at the site of United States customs clearance.
Isolated intermediate means a product of a process that is stored before subsequent processing. An isolated intermediate is usually a product of chemical synthesis. Storage of an isolated intermediate marks the end of a process. Storage occurs at any time the intermediate is placed in equipment used solely for storage.
Limiting critical condition means the regulatory, technical, and economic circumstances listed in Column C of Appendix L to this subpart that establish conditions of critical use for methyl bromide in a fumigation area.
Location of use means the geographic area (such as a state, region, or the entire United States) covered by an application for a critical use exemption in which the limiting critical condition may occur.
London Amendments means the Montreal Protocol, as amended at the Second Meeting of the Parties to the Montreal Protocol in London in 1990.
Manufactured, for an appliance, means the date upon which the appliance's refrigerant circuit is complete, the appliance can function, the appliance holds a full refrigerant charge, and the appliance is ready for use for its intended purposes; and for a pre-charged appliance component, means the date that such component is completely produced by the original equipment manufacture, charged with refrigerant, and is ready for initial sale or distribution in interstate commerce.
Montreal Anniversary amendments means the Montreal Protocol, as amended at the Ninth Meeting of the Parties to the Montreal Protocol in Montreal in 1997.
Montreal Protocol means the Montreal Protocol on Substances that Deplete the Ozone Layer, a protocol to the Vienna Convention for the Protection of the Ozone Layer, including adjustments adopted by the Parties thereto and amendments that have entered into force.
1987 Montreal Protocol means the Montreal Protocol, as originally adopted by the Parties in 1987.
No external shaft pump and no external shaft agitator means any pump or agitator that is designed with no externally actuated shaft penetrating the pump or agitator housing.
Non-Objection notice means the privilege granted by the Administrator to import a specific individual shipment of a controlled substance in accordance with §§ 82.13(g)(2), (3), and (5) and 82.24(c)(3), (4), and (6).
Operating scenario means any specific operation of a process and includes the information specified in paragraphs (1) through (5) of this definition for each process. A change or series of changes to any of these elements, except for paragraph (4) of this definition, constitutes a different operating scenario.
(1) A description of the process, the specific process equipment used, and the range of operating conditions for the process.
(2) An identification of related process vents, their associated emissions episodes and durations, and calculations and engineering analyses to show the annual uncontrolled emissions of controlled substances from the process vent.
(3) The control or destruction units used, as applicable, including a description of operating and/or testing conditions for any associated destruction unit.
(4) The process vents (including those from other processes) that are simultaneously routed to the control or destruction unit(s).
(5) The applicable monitoring requirements and any parametric level that assures destruction or removal for all emissions routed to the control or destruction unit.
Party means a foreign state that has deposited instruments of ratification, acceptance, or other form of approval with the Directorate of the United Nations Secretariat, evidencing the foreign state's ratification of the provisions of the 1987 Montreal Protocol, the London Amendment, the Copenhagen Amendment, or the Beijing Amendment, as specified. (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php. )
Person means any individual or legal entity, including an individual, corporation, partnership, association, state, municipality, political subdivision of a state, Indian tribe; any agency, department, or instrumentality of the United States; and any officer, agent, or employee thereof.
Plant means any process equipment ( e.g., reactor, distillation column) used to convert raw materials or feedstock chemicals into controlled substances or use controlled substances in the production of other chemicals.
Preshipment applications, with respect to class I, Group VI controlled substances, are those non-quarantine applications applied within 21 days prior to export to meet the official requirements of the importing country or existing official requirements of the exporting country. Official requirements are those which are performed by, or authorized by, a national plant, animal, environmental, health or stored product authority.
Process (for the purposes of § 82.25 only) means all equipment that collectively functions to engage in an activity listed in § 82.25(b)(2). A process may consist of one or more unit operations. For the purposes of § 82.25, process includes any, all, or a combination of reaction, recovery, separation, purification, or other activity, operation, manufacture, or treatment which are used to engage in an activity listed in § 82.25(b)(2). For a continuous process, cleaning operations may be considered part of the process at the discretion of the facility. For a batch process, cleaning operations are part of the process. Ancillary activities are not considered a process or part of any process under § 82.25. Ancillary activities include boilers and incinerators, chillers and refrigeration systems, and other equipment and activities that are not directly involved ( i.e., they operate within a closed system and materials are not combined with process fluids) in an activity listed in § 82.25(b)(2).
Process agent means a controlled substance used to form the environment for a chemical reaction or inhibit an unintended chemical reaction ( e.g., use as a solvent, catalyst, or stabilizer) where the controlled substance is not consumed in the reaction, but is removed or recycled back into the process and where no more than trace quantities remain in the final product. A feedstock, in contrast, is consumed during the reaction. The term process agent includes, but is not limited to: carbon tetrachloride used in the elimination of nitrogen trichloride in chlor-alkali production, carbon tetrachloride used in the recovery of chlorine by tail gas absorption from chlor-alkali production, CFC-11 used in the production of synthetic fiber sheet, bromochloromethane used in the bromination of a styrenic polymer, and CFC-113 used in the production of high modulus polyethylene fiber.
Process condenser means a condenser whose primary purpose is to recover material as an integral part of a process. All condensers recovering condensate from a process vent at or above the boiling point or all condensers in line prior to a vacuum source are considered process condensers. Typically, a primary condenser or condensers in series are considered to be integral to the process if they are capable of and normally used for the purpose of recovering chemicals for fuel value ( i.e., net positive heating value), use, reuse or for sale for fuel value, use, or reuse.
Process vent means a vent from a process vessel or vents from multiple process vessels within a process that are manifolded together into a common header, through which a controlled substance-containing gas stream is, or has the potential to be, released to the atmosphere (or the point of entry into a control device, if any). Examples of process vents include, but are not limited to, vents on condensers used for product recovery, bottoms receivers, surge control vessels, reactors, filters, centrifuges, and process tanks. Process vents do not include vents on storage tanks, wastewater emission sources, or pieces of equipment.
Production means the manufacture of a controlled substance from any raw material or feedstock chemical, but does not include:
(1) The manufacture of a controlled substance that is subsequently transformed;
(2) The reuse or recycling of a controlled substance;
(3) Amounts that are destroyed by approved destruction technologies; or
(4) Amounts that are spilled or vented unintentionally.
Production allowances means the privileges granted by this subpart to produce controlled substances; however, production allowances may be used to produce controlled substances only in conjunction with consumption allowances. A person's production allowances for class I substances are the total of the allowances obtained under §§ 82.5, 82.7 and 82.9, and as may be modified under § 82.12 (transfer of allowances). A person's production allowances for class II controlled substances are the total of the allowances obtained under § 82.17 and as may be modified under §§ 82.18 and 82.23.
Quarantine applications, with respect to class I, Group VI controlled substances, are treatments to prevent the introduction, establishment and/or spread of quarantine pests (including diseases), or to ensure their official control, where: (1) Official control is that performed by, or authorized by, a national (including state, tribal or local) plant, animal or environmental protection or health authority; (2) quarantine pests are pests of potential importance to the areas endangered thereby and not yet present there, or present but not widely distributed and being officially controlled. This definition excludes treatments of commodities not entering or leaving the United States or any State (or political subdivision thereof).
Source facility means the location at which a used controlled substance was recovered from a piece of equipment, including the name of the company responsible for, or owning the piece of equipment, a contact person at the location, the mailing address for that specific location, and a phone number and a fax number for the contact person at the location.
Space vehicle means a man-made device, either manned or unmanned, designed for operation beyond earth's atmosphere. This definition includes integral equipment such as models, mock-ups, prototypes, molds, jigs, tooling, hardware jackets, and test coupons. Also included is auxiliary equipment associated with tests, transport, and storage, which through contamination can compromise the space vehicle performance.
Third party applicator means an applicator of critical use methyl bromide who fumigates or treats commodities, structures, crops, or land on behalf of an approved critical user.
Transform means to use and entirely consume (except for trace quantities) a controlled substance in the manufacture of other chemicals for commercial purposes.
Transhipment means the continuous shipment of a controlled substance, from a foreign state of origin through the United States or its territories, to a second foreign state of final destination, as long as the shipment does not enter into United States jurisdiction. A transhipment, as it moves through the United States or its territories, cannot be re-packaged, sorted or otherwise changed in condition.
Typical batch means a batch process operated within a range of operating conditions that are documented in an operating scenario. Emissions from a typical batch are based on the operating conditions that result in representative emissions. The typical batch defines the uncontrolled emissions for each emission episode defined under the operating scenario.
Uncontrolled emissions of controlled substance means a gas stream containing a controlled substance which has exited the process (or process condenser or control condenser, where applicable), but which has not yet been introduced into a destruction unit to reduce the mass of controlled substance in the stream. If the emissions from the process are not routed to a destruction unit, uncontrolled emissions are those controlled substance emissions released to the atmosphere.
Unexpended Article 5 allowances means Article 5 allowances that have not been used. At any time in any control period a person's unexpended Article 5 allowances are the total of the level of Article 5 allowances the person has authorization under this subpart to hold at that time for that control period, minus the level of controlled substances that the person has produced in that control period until that time.
Unexpended consumption allowances means consumption allowances that have not been used. At any time in any control period a person's unexpended consumption allowances are the total of the level of consumption allowances the person has authorization under this subpart to hold at that time for that control period, minus the level of controlled substances that the person has produced or imported (not including transhipments and used controlled substances) in that control period until that time.
Unexpended critical use allowances (CUA) means critical use allowances against which methyl bromide has not yet been produced or imported. At any time in any control period a person's unexpended critical use allowances are the total of the level of critical use allowances the person holds at that time for that control period, minus the level of class I, Group VI controlled substances that the person has produced or has imported solely for approved critical uses in that control period.
Unexpended destruction and transformation credits means destruction and transformation credits that have not been used. At any time in any control period a person's unexpended destruction and transformation credits are the total of the level of destruction and transformation credits the person has authorization under this subpart to hold at that time for that control period, minus the level of controlled substances that the person has produced or imported (not including transhipments and used controlled substances) in that control period until that time.
Unexpended essential-use allowances means essential-use allowances that have not been used. At any time in any control period a person's unexpended essential-use allowances are the total of the level of essential-use allowances the person has authorization under this subpart to hold at that time for that control period, minus the level of controlled substances that the person has imported or had produced in that control period until that time.
Unexpended export production allowances means export production allowances that have not been used. A person's unexpended export production allowances are the total of the quantity of the export production allowances the person has authorization under § 82.18(h) to hold for that control period, minus the quantity of class II controlled substances that the person has produced at that time during the same control period.
Unexpended production allowances means production allowances that have not been used. At any time in any control period a person's unexpended production allowances are the total of the level of production allowances he has authorization under this subpart to hold at that time for that control period, minus the level of controlled substances that the person has produced in that control period until that time.
Unsafe-to-monitor means that monitoring personnel would be exposed to an immediate danger as a consequence of monitoring the piece of equipment. Examples of unsafe-to-monitor equipment include, but are not limited to, equipment under extreme pressure or heat.
Use of a class II controlled substance, for the purposes of § 82.15 of this subpart, includes but is not limited to, use in a manufacturing process, use in manufacturing a product, intermediate uses such as formulation or packaging for other subsequent uses, and use in maintaining, servicing, or repairing an appliance or other piece of equipment. Use of a class II controlled substance also includes use of that controlled substance when it is removed from a container used for the transportation or storage of the substance but does not include use of a manufactured product containing a controlled substance.
Used controlled substances means controlled substances that have been recovered from their intended use systems (may include controlled substances that have been, or may be subsequently, recycled or reclaimed).
§ 82.4   Prohibitions for class I controlled substances.
(a)(1) Prior to January 1, 1996, for all Groups of class I controlled substances, and prior to January 1, 2005, for class I, Group VI controlled substances, 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 unexpended production allowances or unexpended Article 5 allowances for that substance held by that person under the authority of this subpart at that time for that control period. Every kilogram of excess production constitutes a separate violation of this subpart.
(2) Effective January 1, 2003, production of class I, Group VI controlled substances is not subject to the prohibitions in paragraph (a)(1) of this section if it is solely for quarantine or preshipment applications as defined in this subpart.
(b)(1) 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 substances, and effective August 18, 2003, 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, or in excess of the amount of unexpended critical use allowances, or in excess of the amount of unexpended Article 5 allowances as allocated under § 82.9 and § 82.11, as may be modified under § 82.12 (transfer of allowances) for that substance held by that person under the authority of this subpart at that time for that control period. Every kilogram of excess production constitutes a separate violation of this subpart.
(2) Effective January 1, 2005, production of class I, Group VI controlled substances is not subject to the prohibitions in paragraph (b)(1) of this section if it is solely for quarantine or preshipment applications as defined in this subpart, or it is solely for export to satisfy critical uses authorized by the Parties for that control period.
(c)(1) Prior to January 1, 1996, for all Groups of class I controlled substances, and prior to January 1, 2005, for class I, Group VI controlled substances, no person may produce or (except for transhipments, heels or used controlled substances) import, at any time in any control period, (except for controlled substances that are transformed or destroyed) in excess of the amount of unexpended consumption allowances held by that person under the authority of this subpart at that time for that control period. Every kilogram of excess production or importation (other than transhipments, heels or used controlled substances) constitutes a separate violation of this subpart.
(2) Effective January 1, 2003, production and import of class I, Group VI controlled substances is not subject to the prohibitions in paragraph (c)(1) of this section if it is solely for quarantine or preshipment applications as defined in this subpart.
(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 August 18, 2003, 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, or in excess of unexpended critical use allowances, for that substance held by that person under the authority of this subpart at that time for that control period. Every kilogram of excess importation (other than transhipments or heels) constitutes a separate violation of this subpart. It is a violation of this subpart to obtain unused class I controlled substances under the general laboratory exemption in excess of actual need and to recycle that material for sale into other markets.
(e) Effective January 1, 1996, no person may place an order by conferring essential-use allowances for the production of the class I controlled substance, at any time in any control period, in excess of the amount of unexpended essential-use allowances, held by that person under the authority of this subpart at that time for that control period. Effective January 1, 1996, no person may import a class I controlled substance with essential-use allowances, at any time in any control period, in excess of the amount of unexpended essential-use allowances, held by that person under the authority of this subpart at that time for that control period. No person may import or place an order for the production of a class I controlled substance with essential-use allowances, at any time in any control period, other than for the class I controlled substance(s) for which they received essential-use allowances under paragraph (u) of this section. Every kilogram of excess production ordered in excess of the unexpended essential-use allowances conferred to the producer constitutes a separate violation of this subpart. Every kilogram of excess import in excess of the unexpended essential-use allowances held at that time constitutes a separate violation of this subpart.
(f) [Reserved]
(g) Effective January 1, 1996, the U.S. total production and importation of a class I controlled substance (except Group VI) as allocated under this section for essential-use allowances and exemptions, and as obtained under § 82.9 for destruction and transformation credits, may not, at any time, in any control period until January 1, 2000, exceed the percent limitation of baseline production in appendix H of this subpart, as set forth in the Clean Air Act Amendments of 1990. No person shall cause or contribute to the U.S. exceedance of the national limit for that control period.
(h) No person may sell in the U.S. any Class I controlled substance produced explicitly for export to an Article 5 country.
(i) Effective January 1, 1995, no person may import, at any time in any control period, a heel of any class I controlled substance that is greater than 10 percent of the volume of the container in excess of the amount of unexpended consumption allowances, or unexpended destruction and transformation credits held by that person under the authority of this subpart at that time for that control period. Every kilogram of excess importation constitutes a separate violation of this subpart.
(j)(1) Effective January 1, 1995, no person may import, at any time in any control period, a used class I controlled substance, except for Group II used controlled substances shipped in aircraft halon bottles for hydrostatic testing, without having received a non-objection notice from the Administrator in accordance with § 82.13(g)(2) and (3). A person who receives a non-objection notice for the import of an individual shipment of used controlled substances may not transfer or confer the right to import and may not import any more than the exact quantity, in kilograms, of the used controlled substance cited in the non-objection notice. Every kilogram of importation of used controlled substance in excess of the quantity cited in the non-objection notice issued by the Administrator in accordance with § 82.13(g)(2) and (3) constitutes a separate violation.
(2) No person may import for purposes of destruction, at any time in any control period, a class I controlled substance for which EPA has apportioned baseline production and consumption allowances, without having submitted a certification of intent to import for destruction to the Administrator and received a non-objection notice in accordance with § 82.13(g)(5). A person issued a non-objection notice for the import of an individual shipment of class I controlled substances for destruction may not transfer or confer the right to import and may not import any more than the exact quantity (in kilograms) of the class I controlled substance stated in the non-objection notice. For imports intended to be destroyed in the United States, a person issued a non-objection notice must destroy the controlled substance within one year of the date stamped on the non-objection letter, may not transfer or confer the right to import, and may not import any more than the exact quantity (in kilograms) of the class I controlled substance stated in the non-objection notice. Every kilogram of import of class I controlled substance in excess of the quantity stated in the non-objection notice issued by the Administrator in accordance with § 82.13(g)(5) constitutes a separate violation of this subpart.
(k)(1) Prior to January 1, 1996, for all Groups of class I controlled substances, and prior to January 1, 2005, for class I, Group VI controlled substances, a person may not use production allowances to produce a quantity of a class I controlled substance unless that person holds under the authority of this subpart at the same time consumption allowances sufficient to cover that quantity of class I controlled substances nor may a person use consumption allowances to produce a quantity of class I controlled substances unless the person holds under authority of this subpart at the same time production allowances sufficient to cover that quantity of class I controlled substances. However, prior to January 1, 1996, for all class I controlled substances, and prior to January 1, 2005, for class I, Group VI controlled substances, only consumption allowances are required to import, with the exception of transhipments, heels, and used controlled substances. Effective January 1, 1996, for all Groups of class I controlled substances, except Group VI, only essential use allowances or exemptions are required to import class I controlled substances, with the exception of transhipments, heels, used controlled substances, and essential use CFCs.
(2) Notwithstanding paragraph (k)(1) of this section, effective January 1, 2003, for class I, Group VI controlled substances, consumption allowances are not required to import quantities solely for quarantine or preshipment applications as defined in this subpart.
(l) Every kilogram of a controlled substance, and every controlled product, imported or exported in contravention of this subpart constitutes a separate violation of this subpart. No person may:
(1) Import or export any quantity of a controlled substance listed in class I, Group I or Group II, in appendix A to this subpart from or to any foreign state not Party to the 1987 Montreal Protocol unless that foreign state is complying with the 1987 Montreal Protocol (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php );
(2) Import or export any quantity of a controlled substance listed in class I, Group III, Group IV, or Group V, in appendix A to this subpart, from or to any foreign state not Party to the London Amendment, unless that foreign state is complying with the London Amendment (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php ); or
(3) Import a controlled product, as noted in appendix D, annex 1 to this subpart, from any foreign state not Party to the 1987 Montreal Protocol, unless that foreign state is complying with the 1987 Montreal Protocol (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php ).
(4) Import or export any quantity of a controlled substance listed in class I, Group VII, in appendix A to this subpart, from or to any foreign state not Party to the Copenhagen Amendment, unless that foreign state is complying with the Copenhagen Amendment (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php ).
(5) Import or export any quantity of a controlled substance listed in class I, Group VI, in appendix A to this subpart, from or to any foreign state not Party to the Copenhagen Amendment unless that foreign state is complying with the Copenhagen Amendment (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php ).
(6) 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 Amendment, unless that foreign state is complying with the Beijing Amendment (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php ).
(m) Effective October 5, 1998, no person may export a controlled product to a Party listed in appendix J of this subpart in any control period after the control period in which EPA publishes a notice in the Federal Register listing that Party in appendix J of this subpart. EPA will publish a notice in the Federal Register that lists a Party in appendix J if the Party formally presents to the U.S. a government document through its embassy in the United States stating that it has established a ban on the import of controlled products and a ban on the manufacture of those same controlled products.
(n) No person may use class I controlled substances produced or imported under the essential use exemption for any purpose other than those set forth in this paragraph. Effective January 1, 1996, essential-use allowances are apportioned to a person under § 82.8(a) and (b) for the exempted production or importation of specified class I controlled substances solely for the purposes listed in paragraphs (n)(1)(i) through (iii) of this section.
(1) Essential-uses for the production or importation of controlled substances as agreed to by the Parties to the Protocol and subject to the periodic revision of the Parties are:
(i) Metered dose inhalers (MDIs) for the treatment of asthma and chronic obstructive pulmonary disease that were approved by the Food and Drug Administration before December 31, 2000.
(ii) Space Shuttle—solvents.
(iii) Essential laboratory and analytical uses (defined in appendix G of this subpart).
(2) Any person acquiring unused class I controlled substances produced or imported under the authority of essential-use allowances or the essential-use exemption granted in § 82.8 to this subpart for use in anything other than an essential-use ( i.e. , for uses other than those specifically listed in paragraph (n)(1) of this section) is in violation of this subpart. Each kilogram of unused class I controlled substance produced or imported under the authority of essential-use allowances or the essential-use exemption and used for a non-essential use is a separate violation of this subpart. Any person selling unused class I controlled substances produced or imported under authority of essential-use allowances or the essential-use exemption for uses other than an essential-use is in violation of this subpart. Each kilogram of unused class I controlled substances produced or imported under authority of essential-use allowances or the essential-use exemption and sold for a use other than an essential-use is a separate violation of this subpart. It is a violation of this subpart to obtain unused class I controlled substances under the exemption for laboratory and analytical uses in excess of actual need and to recycle that material for sale into other markets.
(o) [Reserved]
(p) Critical Use Exemption: With respect to class I, Group VI substances (methyl bromide):
(1) No person shall sell critical use methyl bromide without first receiving a certification from the purchaser that the quantity purchased will be sold or used solely for an approved critical use. Every kilogram of critical use methyl bromide sold without first obtaining such certification constitutes a separate violation of this subpart.
(2) For approved critical users, each action associated with each 200 kilograms of critical use methyl bromide for the following subparagraphs constitutes a separate violation of this subpart.
(i) No person shall take possession of quantities of critical use methyl bromide or acquire fumigation services using quantities of critical use methyl bromide without first completing the appropriate certification in accordance with the requirements in § 82.13.
(ii) No person who purchases critical use methyl bromide may use such quantities for a use other than the specified critical use listed in column A and the specified location of use in column B of appendix L to this subpart.
(iii) No person who purchases critical use methyl bromide produced or imported with expended critical use allowances for pre-plant uses, may use such quantities for other than the pre-plant uses as specified in column A and column B of appendix L to this subpart.
(iv) No person who purchases critical use methyl bromide produced or imported with expended critical use allowances for post-harvest uses, may use such quantities for other than the post-harvest uses as specified in column A and column B of appendix L to this subpart.
(v) No person who uses critical use methyl bromide on a specific field or structure may concurrently or subsequently use non-critical use methyl bromide on the same field or structure for the same use (as defined in column A and column B of appendix L) in the same control period, excepting methyl bromide used under the quarantine and pre-shipment exemption.
(vi) No person who purchases critical use methyl bromide during the control period shall use that methyl bromide on a field or structure for which that person has used non-critical use methyl bromide for the same use (as defined in columns A and B of appendix L) in the same control period, excepting methyl bromide used under the quarantine and pre-shipment exemption, unless, subsequent to that person's use of the non-critical use methyl bromide, that person becomes subject to a prohibition on the use of methyl bromide alternatives due to the reaching of a local township limit described in appendix L of this part, or becomes an approved critical user as a result of rulemaking.
(q) Emergency use exemption. [Reserved]
(r) No person may sell or use methyl bromide produced or imported under the quarantine and preshipment exemption for any purpose other than for quarantine applications or preshipment applications as defined in § 82.3. Each kilogram of methyl bromide produced or imported under the authority of the quarantine and preshipment exemption and sold or used for a use other than quarantine or preshipment is a separate violation of this subpart.
(s) No person may sell or distribute, or offer for sale or distribution, any class I substance that they know, or have reason to know, was imported in violation of this section, except for such actions needed to re-export the controlled substance. Every kilogram of a controlled substance imported in contravention of this paragraph (s) that is sold or distributed, or offered for sale or distribution, constitutes a separate violation of this subpart.
§ 82.5   Apportionment of baseline production allowances for class I controlled substances.
Persons who produced controlled substances in Group I or Group II in 1986 are apportioned baseline production allowances as set forth in paragraphs (a) and (b) of this section. Persons who produced controlled substances in Group III, IV, or V in 1989 are apportioned baseline production allowances as set forth in paragraphs (c), (d), and (e) of this section. Persons who produced controlled substances in Group VI and VII in 1991 are apportioned baseline allowances as set forth in paragraphs (f) and (g) of this section.
§ 82.6   Apportionment of baseline consumption allowances for class I controlled substances.
Persons who produced, imported, or produced and imported controlled substances in Group I or Group II in 1986 are apportioned chemical-specific baseline consumption allowances as set forth in paragraphs (a) and (b) of this section. Persons who produced, imported, or produced and imported controlled substances in Group III, Group IV, or Group V in 1989 are apportioned chemical-specific baseline consumption allowances as set forth in paragraphs (c), (d) and (e) of this section. Persons who produced, imported, or produced and imported controlled substances in Group VI or VII in 1991 are apportioned chemical specific baseline consumption allowances as set forth in paragraphs (f) and (g) of this section.
§ 82.7   Grant and phase reduction of baseline production and consumption allowances for class I controlled substances.
For each control period specified in the following table, each person is granted the specified percentage of the baseline production and consumption allowances apportioned to him under §§ 82.5 and 82.6 of this subpart.
§ 82.8   Grant of essential use allowances and critical use allowances.
(a) Effective January 1, 1996, persons in the following list are allocated essential-use allowances or exemptions for quantities of a specific class I controlled substance for a specific essential-use (the Administrator reserves the right to revise the allocations based on future decisions of the Parties).
Table I—Essential Use Allowances for Calendar Year 2010
(b) There is a global exemption for the production and import of class I controlled substances for essential laboratory and analytical uses, subject to the restrictions in appendix G of this subpart, and subject to the recordkeeping and reporting requirements at § 82.13(u) through (x). There is no amount specified for this exemption.
(c) Effective January 1, 2005, critical use allowances are apportioned as set forth in paragraph (c)(1) of this section for the exempted production and import of class I, Group VI controlled substances specifically for those approved critical uses listed in appendix L to this subpart for the applicable control period. Every kilogram of production and import in excess of the total number and type of unexpended critical use allowances held for a particular type of use constitutes a separate violation of this subpart.
(1) Allocated critical use allowances granted for specified control period.
* For production or import of Class I, Group VI controlled substance exclusively for the pre-plant or post-harvest uses specified in appendix L to this subpart.
(2) [Reserved]
§ 82.9   Availability of production allowances in addition to baseline production allowances for class I controlled substances.
(a)—(b) [Reserved]
(c) A company may increase or decrease its production allowances, including its Article 5 allowances, by trading with another Party to the Protocol according to the provision under this paragraph (c). A company may increase or decrease its essential-use allowances for CFCs for use in essential MDIs according to the provisions under this paragraph (c). A nation listed in appendix C to this subpart (Parties to the Montreal Protocol) must agree either to transfer to the person for the current control period some amount of production or import that the nation is permitted under the Montreal Protocol or to receive from the person for the current control period some amount of production or import that the person is permitted under this subpart. If the controlled substance is produced under the authority of production allowances and is to be sold in the United States or to another Party (not the Party from whom the allowances are received), the U.S. company must expend its consumption allowances allocated under §§ 82.6 and 82.7 in order to produce with the additional production allowances.
(1) For trades from a Party, the person must obtain from the principal diplomatic representative in that nation's embassy in the United States a signed document stating that the appropriate authority within that nation has established or revised production limits or essential-use allowance limits for the nation to equal the lesser of the maximum production that the nation is allowed under the Protocol minus the amount transferred, the maximum production or essential-use allowances that are allowed under the nation's applicable domestic law minus the amount transferred, or the average of the nation's actual national production level for the three years prior to the transfer minus the production transferred. The person must submit to the Administrator a transfer request that includes a true copy of this document and that sets forth the following:
(i) The identity and address of the person;
(ii) The identity of the Party;
(iii) The names and telephone numbers of contact persons for the person and for the Party;
(iv) The chemical type, type of allowance being transferred, and the level of allowances being transferred;
(v) The control period(s) to which the transfer applies; and
(vi) For increased production intended for export to the Party from whom the allowances would be received, a signed statement of intent to export to the Party.
(vii) In the case of transferring essential-use allowances, the transferor must include a signed document from the transferee identifying the CFC MDI products that will be produced using the essential-use allowances.
(2) For trades to a Party, a person must submit a transfer request that sets forth the following:
(i) The identity and address of the person;
(ii) The identity of the Party;
(iii) The names and telephone numbers of contact persons for the person and for the Party;
(iv) The chemical type, type of allowance being transferred, and the level of allowances being transferred; and
(v) The control period(s) to which the transfer applies.
(3) After receiving a transfer request that meets the requirements of paragraph (c)(2) of this section, the Administrator may, at his discretion, consider the following factors in deciding whether to approve such a transfer:
(i) Possible creation of economic hardship;
(ii) Possible effects on trade;
(iii) Potential environmental implications; and
(iv) The total amount of unexpended production or essential-use allowances held by a U.S. entity.
(v) In the case of transfer of essential-use allowances the Administrator may consider whether the CFCs will be used for production of essential MDIs.
(4) The Administrator will issue the person a notice either granting or deducting production allowances, Article 5 allowances, or essential-use allowances, and specifying the control period to which the transfer applies, provided that the request meets the requirement of paragraph (c)(1) of this sections for trades from Parties and paragraph (c)(2) of this section for trades to Parties, unless the Administrator has decided to disapprove the trade under paragraph (c)(3) of this section. For a trade from a Party, the Administrator will issue a notice that revises the allowances held by the person to equal the unexpended production, Article 5, or essential-use allowances held by the person under this subpart plus the level of allowable production transferred from the Party. For a trade to a Party, the Administrator will issue a notice that revises the production limit for the person to equal the lesser of:
(i) The unexpended production allowances, essential-use allowances, or Article 5 allowances held by the person under this subpart minus the amount transferred; or
(ii) The unexpended production allowances, essential-use allowances, or Article 5 allowances held by the person under this subpart minus the amount by which the United States average annual production of the controlled substance being traded for the three years prior to the transfer is less than the total production allowable for that substance under this subpart minus the amount transferred. The change in allowances will be effective on the date that the notice is issued.
(5) If after one person obtains approval for a trade of allowable production of a controlled substance to a Party, one or more other persons obtain approval for trades involving the same controlled substance and the same control period, the Administrator will issue notices revising the production limits for each of the other persons trading that controlled substance in that control period to equal the lesser of:
(i) The unexpended production allowances or Article 5 allowances held by the person under this subpart minus the amount transferred; or
(ii) The unexpended production allowances or Article 5 allowances held by the person under this subpart minus the amount by which the United States average annual production of the controlled substance being traded for the three years prior to the transfer is less than the total allowable production for that substance under this subpart multiplied by the amount transferred divided by the total amount transferred by all the other persons trading the same controlled substance in the same control period minus the amount transferred by that person.
(iii) The Administrator will also issue a notice revising the production limit for each person who previously obtained approval of a trade of that substance in that control period to equal the unexpended production allowances or unexpended Article 5 allowances held by the person under this subpart plus the amount by which the United States average annual production of the controlled substance being traded for the three years prior to the transfer is less than the total allowable production under this subpart multiplied by the amount transferred by that person divided by the amount transferred by all of the persons who have traded that controlled substance in that control period. The change in production allowances or Article 5 allowances will be effective on the date that the notice is issued.
(d) Effective January 1, 1996, there will be no trade in production or consumption allowances with other Parties to the Protocol for class I controlled substances, except for class I, Group VI, methyl bromide.
(e)—(f) [Reserved]
(g) International transfer of essential-use CFCs. (1) For trades of essential-use CFCs where the transferee or the transferor is a person in another nation (Party), the persons involved in the transfer must submit the information requested in § 82.12(d)(2) and (d)(3), along with a signed document from the principal diplomatic representative in the Party's embassy in the United States stating that the appropriate authority within that nation has approved the transfer of the essential-use CFCs.
(2) If the transfer claim is complete, and EPA does not object to the transfer, then EPA will issue letters to the transferor and the transferee indicating that the transfer may proceed. EPA reserves the right to disallow a transfer if the transfer request is incomplete, or if it has reason to believe that the transferee plans to produce MDIs that are not essential MDIs. If EPA objects to the transfer, EPA will issue letters to the transferor and transferee stating the basis for disallowing the transfer. The burden of proof is placed on the transferee to retain sufficient records to prove that the transferred essential-use CFCs are used only for production of essential MDIs. If EPA ultimately finds that the transferee did not use the essential-use CFCs for production of essential MDIs then the transferee is in violation of this subpart.
§ 82.10   [Reserved]
§ 82.11   Exports of class I controlled substances to Article 5 Parties.
(a) If apportioned Article 5 allowances under § 82.9(a) or § 82.11(a)(2), a person may produce Class I controlled substances, in accordance with the prohibitions in § 82.4 and the reduction schedule in § 82.11(a)(3), to be exported (not including exports resulting in transformation or destruction, or exports of used controlled substances) to foreign states listed in appendix E to this subpart (Article 5 countries).
(1) A person must submit a notice to the Administrator of exports to Article 5 countries (except exports resulting in transformation or destruction, or used controlled substances) at the end of the quarter that includes the following:
(i) The identities and addresses of the exporter and the Article 5 country recipient of the exports;
(ii) The exporter's Employee Identification Number;
(iii) The names and telephone numbers of contact persons for the exporter and for the recipient;
(iv) The quantity and the type of controlled substances exported, its source and date purchased;
(v) The date on which, and the port from which, the controlled substances were exported from the United States or its territories;
(vi) The Article 5 country to which the controlled substances were exported;
(vii) A copy of the bill of lading and invoice indicating the net quantity shipped and documenting the sale of the controlled substances to the Article 5 purchaser;
(viii) The commodity code of the controlled substance exported; and
(ix) A copy of the invoice or sales agreement covering the sale of the controlled substances to the recipient Article 5 country that contains provisions forbidding the reexport of the controlled substance in bulk form and subjecting the recipient or any transferee of the recipient to liquidated damages equal to the resale price of the controlled substances if they are reexported in bulk form.
(2) Persons who reported exports of Class I, Group I controlled substances to Article 5 countries in 2000-2003 are apportioned baseline Article 5 allowances as set forth in § 82.11(a)(2)(i). Persons who reported exports of Class I, Group VI controlled substances to Article 5 countries in 1995-1998 are apportioned baseline Article 5 allowances as set forth in § 82.11(a)(2)(ii)).
(i) For Group I Controlled Substances
(ii) For Group VI Controlled Substances
(3) Phased Reduction Schedule for Article 5 Allowances allocated in § 82.11. For each control period specified in the following table, each person is granted the specified percentage of the baseline Article 5 allowances apportioned under § 82.11.
(2) [Reserved]
(b) [Reserved]
§ 82.12   Transfers of allowances for class I controlled substances.
(a) Inter-company transfers. (1) After January 1, 2002, any essential-use allowance holder (including those persons that hold essential-use allowances issued by a Party other than the United States) (“transferor”) may transfer essential-use allowances for CFCs to a metered dose inhaler company solely for the manufacture of essential MDIs. After January 1, 2005, any critical use allowance holder (“transferor”) may transfer critical use allowances to any other person (“transferee”).
(i) The transferor must submit to the Administrator a transfer claim setting forth the following:
(A) The identities and addresses of the transferor and the transferee;
(B) The name and telephone numbers of contact persons for the transferor and the transferee;
(C) The type of allowances being transferred, including the names of the controlled substances for which allowances are to be transferred;
(D) The group of controlled substances to which the allowances being transferred pertains;
(E) The amount of allowances being transferred;
(F) The control period(s) for which the allowances are being transferred;
(G) The amount of unexpended allowances of the type and for the control period being transferred that the transferor holds under authority of this subpart as of the date the claim is submitted to EPA; and
(H) The one percent offset applied to the unweighted amount traded will be deducted from the transferor's production or consumption allowance balance (except for trades from transformers and destroyers to producers or importers for the purpose of allowance reimbursement). In the case of transferring essential use allowances, the amount of one tenth of one percent of the amount traded will be deducted from the transferor's allowance balance. In the case of transferring critical use allowances, the amount of one tenth of one percent of the amount traded will be deducted from the transferor's critical use allowance balance.
(I) The transferor must include a signed document from the transferee identifying the CFC MDI products that will be produced using the essential-use allowances.
(ii) The Administrator will determine whether the records maintained by EPA, taking into account any previous transfers and any production, allowable imports and exports of controlled substances reported by the transferor, indicate that the transferor possesses, as of the date the transfer claim is processed, unexpended allowances sufficient to cover the transfer claim ( i.e., the amount to be transferred plus, in the case of transferors of essential use allowances and critical use allowances, one tenth of one percent of the transferred amount). Within three working days of receiving a complete transfer claim, the Administrator will take action to notify the transferor and transferee as follows:
(A) If EPA's records show that the transferor has sufficient unexpended allowances to cover the transfer claim, the Administrator will issue a notice indicating that EPA does not object to the transfer and will reduce the transferor's balance of unexpended allowances by the amount to be transferred plus, in the case of transfers of production or consumption allowances, one percent of that amount, or in the case of transfers of essential use allowances, one tenth of one percent of that amount. When EPA issues a no objection notice, the transferor and the transferee may proceed with the transfer. However, if EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor and transferee will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.
(B) If EPA's records show that the transferor has insufficient unexpended allowances to cover the transfer claim, or that the transferor has failed to respond to one or more Agency requests to supply information needed to make a determination, the Administrator will issue a notice disallowing the transfer. Within 10 working days after receipt of notification, either party may file a notice of appeal, with supporting reasons, with the Administrator. The Administrator may affirm or vacate the disallowance. If no appeal is taken by the tenth working day after notification, the disallowance shall be final on that day.
(iii) In the event that the Administrator does not respond to a transfer claim within the three working days specified in paragraph (a)(1)(ii) of this section the transferor and transferee may proceed with the transfer. EPA will reduce the transferor's balance of unexpended allowances by the amount to be transferred plus, in the case of transfers of production or consumption allowances, one percent of that amount, and in the case of essential use allowances and critical use allowances, one tenth of one percent of that amount. However if EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor and transferee will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.
(2) [Reserved]
(b)—(c) [Reserved]
(d) Transfers of essential-use CFCs. (1) Effective January 1, 2002, any metered dose inhaler company (transferor) may transfer essential-use CFCs to another metered dose inhaler company (transferee) provided that the Administrator approves the transfer.
(2) The transferee must submit a transfer claim to the Administrator for approval before the transfer can take place. The transfer claim must set forth the following:
(i) The identities and addresses of the transferor and the transferee; and
(ii) The name and telephone numbers of contact persons for the transferor and the transferee; and
(iii) The amount of each controlled substance (CFC-11, CFC-12, or CFC-114) being transferred; and
(iv) The specific metered dose inhaler products (i.e. the MDI drug product or active moiety) that the transferee plans to produce with the transferred CFCs; and
(v) The country(ies) where the CFC metered dose inhalers produced with the transferred essential-use CFCs will be sold if other than in the United States; and
(vi) Certification that the essential-use CFCs will be used in the production of essential MDIs. If the MDIs are to be sold in the United States, the certification must state that MDIs produced with the transferred essential-use CFCs are listed as essential at 21 CFR 2.125, and were approved by the Food and Drug Administration before December 31, 2000. If the MDIs produced with the essential-use CFCs are to be sold outside the United States, the transferee must certify that the metered dose inhalers produced with the essential-use CFCs are considered essential by the importing country.
(3) The transferor must submit a letter stating that it concurs with the terms of the transfer as requested by the transferee.
(4) Once the transfer claim is complete, and if EPA does not object to the transfer, then EPA will issue letters to the transferor and the transferee within 10 business days indicating that the transfer may proceed. EPA reserves the right to disallow a transfer if the transfer request is incomplete, or if it has reason to believe that the transferee plans use the essential-use CFCs in anything other than essential MDIs. If EPA objects to the transfer, within EPA will issue letters to the transferor and transferee stating the basis for disallowing the transfer. The burden of proof is placed on the transferee to retain sufficient records to prove that the transferred essential-use CFCs are used only for production of essential MDIs. If EPA ultimately finds that the transferee did not use the essential-use CFCs for production of essential MDIs then the transferee is in violation of this subpart.
§ 82.13   Recordkeeping and reporting requirements for class I controlled substances.
(a) Effective dates. 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 August 18, 2003. For critical use methyl bromide, the recordkeeping and reporting requirements set forth in this section take effect January 1, 2005.
(b) Reports and records required by this section may be used for purposes of compliance determinations. These requirements are not intended as a limitation on the use of other evidence admissible under the Federal Rules of Evidence. Failure to provide the reports, petitions and records required by this section, and to certify the accuracy of the information in the reports, petitions and records required by this section, will be considered a violation of this subpart. False statements made in reports, petitions and records will be considered violations of Section 113 of the Clean Air Act.
(c) Timing of reports. Unless otherwise specified, reports required by this section must be submitted to the Administrator within 45 days of the end of the applicable reporting period. Revisions of reports that are required by this section must be submitted to the Administrator within 180 days of the end of the applicable reporting period, unless otherwise specified. Starting May 18, 2020, reports that are available for submission through the Central Data Exchange or another format specified by EPA must be submitted electronically through that tool.
(d) Records and copies of reports required by this section must be retained for three years.
(e) In reports required by this section, quantities of controlled substances must be stated in terms of kilograms.
(f) Producers. Every person (“producer”) who produces class I controlled substances during a control period must comply with the following recordkeeping and reporting requirements:
(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 July 18, 2003 for class I, Group VIII controlled substances, every producer who has not already done so must submit to the Administrator a report describing:
(i) The method by which the producer in practice measures daily quantities of controlled substances produced;
(ii) Conversion factors by which the daily records as currently maintained can be converted into kilograms of controlled substances produced, including any constants or assumptions used in making those calculations (e.g., tank specifications, ambient temperature or pressure, density of the controlled substance);
(iii) Internal accounting procedures for determining plant-wide production;
(iv) The quantity of any fugitive losses accounted for in the production figures; and
(v) The estimated percent efficiency of the production process for the controlled substance. Within 60 days of any change in the measurement procedures or the information specified in the above report, the producer must submit a report specifying the revised data or procedures to the Administrator.
(2) Recordkeeping requirements Every producer of a class I controlled substance during a control period must maintain the following records:
(i) Dated records of the quantity of each controlled substance produced at each facility;
(ii) Dated records of the quantity of controlled substances produced for use in processes that result in their transformation or for use in processes that result in their destruction and quantity sold for use in processes that result in their transformation or for use in processes that result in their destruction;
(iii) Dated records of the quantity of controlled substances produced for an essential-use and quantity sold for use in an essential-use process;
(iv)—(v) [Reserved]
(vi) Copies of invoices or receipts documenting sale of controlled substance for use in processes resulting in their transformation or for use in processes resulting in destruction;
(vii) Dated records of the quantity of each controlled substance used at each facility as feedstocks or destroyed in the manufacture of a controlled substance or in the manufacture of any other substance, and any controlled substance introduced into the production process of the same controlled substance at each facility;
(viii) Dated records identifying the quantity of each chemical not a controlled substance produced within each facility also producing one or more controlled substances;
(ix) Dated records of the quantity of raw materials and feedstock chemicals used at each facility for the production of controlled substances;
(x) Dated records of the shipments of each controlled substance produced at each plant;
(xi) The quantity of controlled substances, the date received, and names and addresses of the source of used materials containing controlled substances which are recycled or reclaimed at each plant;
(xii) Records of the date, the controlled substance, and the estimated quantity of any spill or release of a controlled substance that equals or exceeds 100 pounds;
(xiii) Internal Revenue Service Certificates in the case of transformation, or the destruction verification in the case of destruction (as in § 82.13(k)), showing that the purchaser or recipient of a controlled substance, in the United States or in another country that is a Party, certifies the intent to either transform or destroy the controlled substance, or sell the controlled substance for transformation or destruction in cases when production and consumption allowances were not expended;
(xiv) Written verifications that essential-use allowances were conveyed to the producer for the production of specified quantities of a specific controlled substance that will only be used for the named essential-use and not resold or used in any other manufacturing process;
(xv) Written certifications that quantities of controlled substances, meeting the purity criteria in appendix G of this subpart, were purchased by distributors of laboratory supplies or by laboratory customers to be used only in essential laboratory and analytical uses as defined by appendix G, and not to be resold or used in manufacturing;
(xvi) [Reserved]
(xvii) For methyl bromide, dated records of the quantity of controlled substances produced for quarantine and preshipment applications and quantity sold for quarantine and preshipment applications;
(xviii) Written certifications that quantities of methyl bromide produced solely for quarantine and preshipment applications were purchased by distributors or applicators to be used only for quarantine applications and preshipment applications in accordance with the definitions in this subpart; and
(xix) Written verifications from a U.S. purchaser that methyl bromide produced solely for quarantine and preshipment applications, if exported, will be exported solely for quarantine applications and preshipment applications upon receipt of a certification in accordance with the definitions of this subpart and requirements in paragraph (h) of this section.
(xx) For methyl bromide, dated records such as invoices and order forms, and a log of the quantity of controlled substances produced for critical use, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, and the quantity sold for critical use, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use;
(xxi) Written certifications that quantities of methyl bromide produced for critical use were purchased by distributors, applicators, or approved critical users to be used or sold only for critical use in accordance with the definitions and prohibitions in this subpart. Certifications must be maintained by the producer for a minimum of three years; and
(xxii) For methyl bromide, dated records such as invoices and order forms, and a log of the quantity of controlled substances produced solely for export to satisfy critical uses authorized by the Parties for that control period, and the quantity sold solely for export to satisfy critical uses authorized by the Parties for that control period.
(3) Reporting requirements—producers. For each quarter, except as specified below, each producer of a class I controlled substance must provide the Administrator with a report containing the following information:
(i) The production by company in that quarter of each controlled substance, specifying the quantity of any controlled substance used in processing, resulting in its transformation by the producer;
(ii) The amount of production for use in processes resulting in destruction of controlled substances by the producer;
(iii) The levels of production (expended allowances and credits) for each controlled substance;
(iv) [Reserved]
(v) The amount of controlled substance sold or transferred during the quarter to a person other than the producer for use in processes resulting in its transformation or eventual destruction;
(vi) A list of the quantities and names of controlled substances exported, by the producer and or by other U.S. companies, to a Party to the Protocol that will be transformed or destroyed and therefore were not produced expending production or consumption allowances;
(vii) For transformation in the United States or by a person of another Party, one copy of an IRS certification of intent to transform the same controlled substance for a particular transformer and a list of additional quantities shipped to that same transformer for the quarter;
(viii) For destruction in the United States or by a person of another Party, one copy of a destruction verification (as under § 82.13(k)) for a particular destroyer, destroying the same controlled substance, and a list of additional quantities shipped to that same destroyer for the quarter;
(ix) [Reserved]
(x) A list of the essential-use allowance holders, distributors of laboratory supplies and laboratory customers from whom orders were placed and the quantity of specific essential-use controlled substances requested and produced;
(xi) The certifications from essential-use allowance holders stating that the controlled substances were purchased solely for specified essential uses and will not be resold or used in any other manufacturing process;
(xii) In the case of laboratory essential-uses, certifications from distributors of laboratory supplies that controlled substances were purchased for sale to laboratory customers who certify that the substances will only be used for essential laboratory and analytical uses as defined by appendix G of this subpart, and will not be resold or used in manufacturing; or, if sales are made directly to laboratories, certification from laboratories that the controlled substances will only be used for essential laboratory and analytical uses (defined at appendix G of this subpart) and will not be resold or used in manufacturing.
(xiii) The amount of methyl bromide sold or transferred during the quarter to a person other than the producer solely for quarantine and preshipment applications;
(xiv) A list of the quantities of methyl bromide produced by the producer and exported by the producer and/or by other U.S. companies, to a Party to the Protocol that will be used solely for quarantine and preshipment applications and therefore were not produced expending production or consumption allowances; and
(xv) For quarantine and preshipment applications of methyl bromide in the United States or by a person of another Party, one copy of a certification that the material will be used only for quarantine and preshipment applications in accordance with the definitions in this subpart from each recipient of the material and a list of additional quantities shipped to that same person for the quarter.
(xvi) For critical uses of methyl bromide, producers shall report annually the amount of critical use methyl bromide owned by the reporting entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, as well as quantities held by the reporting entity on behalf of another entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use along with the name of the entity on whose behalf the material is held; and
(xvii) A list of the quantities of methyl bromide produced by the producer and exported by the producer and/or by other U.S. companies in that control period, solely to satisfy the critical uses authorized by the Parties for that control period; and
(xviii) On an annual basis, the amount of methyl bromide produced or imported prior to the January 1, 2005, phaseout date owned by the reporting entity, as well as quantities held by the reporting entity on behalf of another entity, specifying the name of the entity on whose behalf the material is held.
(4) For any person who fails to maintain the records required by this paragraph, or to submit the report required by this paragraph, the Administrator may assume that the person has produced at full capacity during the period for which records were not kept, for purposes of determining whether the person has violated the prohibitions at § 82.4.
(g) Importers. Importers of class I controlled substances during a control period must comply with record-keeping and reporting requirements specified in this paragraph (g).
(1) Recordkeeping—importers. Any importer of a class I controlled substance (including used, recycled and reclaimed controlled substances) must maintain the following records:
(i) The quantity of each controlled substance imported, either alone or in mixtures, including the percentage of each mixture which consists of a controlled substance;
(ii) The quantity of those controlled substances imported that are used (including recycled or reclaimed) and, where applicable, the information provided with the petition as under paragraph (g)(2) of this section;
(iii) The quantity of controlled substances other than transhipments or used, recycled or reclaimed substances imported for use in processes resulting in their transformation or destruction and quantity sold for use in processes that result in their destruction or transformation;
(iv) The date on which the controlled substances were imported;
(v) The port of entry through which the controlled substances passed;
(vi) The country from which the imported controlled substances were imported;
(vii) The commodity code for the controlled substances shipped, which must be one of those listed in Appendix K to this subpart;
(viii) The importer number for the shipment;
(ix) A copy of the bill of lading for the import;
(x) The invoice for the import;
(xi) The quantity of imports of used, recycled, or reclaimed class I controlled substances;
(xii) The U.S. Customs entry number;
(xiii) Dated records documenting the sale or transfer of controlled substances for use in processes resulting in transformation or destruction;
(xiv) Copies of IRS certifications that the controlled substance will be transformed or destruction verifications that it will be destroyed (as in § 82.13(k));
(xv) Dated records of the quantity of controlled substances imported for an essential use; and
(xvi) Copies of certifications that imported controlled substances are being purchased for essential laboratory and analytical uses (defined at appendix G of this subpart) or being purchased for eventual sale to laboratories that certify that controlled substances are for essential laboratory and analytical uses (defined at appendix G of this subpart).
(xvii) Dated records of the quantity of methyl bromide imported for quarantine and preshipment applications and quantity sold for quarantine and preshipment applications;
(xviii) Written certifications that quantities of methyl bromide imported solely for quarantine and preshipment applications were purchased by distributors or applicators to be used only for quarantine and preshipment applications in accordance with the definitions in this subpart; and
(xix) Written verifications from a U.S. purchaser that methyl bromide imported solely for quarantine and preshipment applications, if exported, will be exported solely for quarantine and preshipment applications upon receipt of a certification in accordance with the definitions of this subpart and requirements in paragraph (h) of this section.
(xx) For methyl bromide, dated records such as invoices and order forms, of the quantity of controlled substances imported for critical use, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, and the quantity sold for critical use, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use; and
(xxi) Written certifications that quantities of methyl bromide imported for critical use were purchased by distributors, applicators, or approved critical users to be used or sold only for critical use in accordance with the definitions and prohibitions in this subpart. Certifications must be maintained by an importer for a minimum of three years.
(2) Petitioning—importers of used, recycled, or reclaimed controlled substances. For each individual shipment over 5 pounds of a used controlled substance as defined in § 82.3, except for Group II used controlled substances shipped in aircraft halon bottles for hydrostatic testing and imports intended for destruction, an importer must submit directly to the Administrator, at least 40 working days before the shipment is to leave the foreign port of export, the following information in a petition:
(i) Name, commodity code, and quantity in kilograms of the used controlled substance to be imported;
(ii) Name and address of the importer, the importer ID number, and the contact person's name, email address, and phone number;
(iii) Name, address, contact person, email address, and phone number of all previous source facilities from which the used controlled substance was recovered or the halon bank storing the controlled substance;
(iv) A detailed description of the previous use of the controlled substance at each source facility and a best estimate of when the specific controlled substance was put into the equipment at each source facility, and, when possible, documents indicating the date the material was put into the equipment;
(v) A list of the name, make and model number of the equipment from which the material was recovered at each source facility;
(vi) Name, address, contact person, email address, and phone number of the exporter and of all persons to whom the material was transferred or sold after it was recovered from the source facility;
(vii) The U.S. port of entry for the import, the expected date of shipment and the vessel transporting the chemical. If at the time of submitting a petition the importer does not know the U.S. port of entry, the expected date of shipment and the vessel transporting the chemical, and the importer receives a non-objection notice for the individual shipment in the petition, the importer is required to notify the Administrator of this information prior to the actual U.S. Customs entry of the individual shipment;
(viii) A description of the intended use of the used controlled substance, and, when possible, the name, address, contact person, email address, and phone number of the ultimate purchaser in the United States;
(ix) Name, address, contact person, email address, and phone number of the U.S. reclamation facility, where applicable;
(x) If someone at the source facility recovered the controlled substance from the equipment, the name, email address, and phone number of that person;
(xi) If the imported controlled substance was reclaimed in a foreign Party, the name, address, contact person, email address, and phone number of any or all foreign reclamation facility(ies) responsible for reclaiming the cited shipment;
(xii) The export license, application for an export license, or official communication acknowledging the export from the appropriate government agency in the country of export and, if recovered in another country, the export license or official communication from the appropriate government agency in that country, and quantity authorized for export in kilograms on the export license, and an English translation of these documents;
(xiii) If the imported used controlled substance is intended to be sold as a refrigerant in the United States, the name, address, and email address of the EPA-certified U.S. reclaimer who will bring the material to the standard required under subpart F of this part if not already reclaimed to those specifications; and
(xiv) [Reserved]
(xv) If the used controlled substance is stored in a halon bank, in lieu of the information required in paragraphs (g)(2)(iv) through (vi) of this section, the petitioner may provide an official letter from the appropriate government agency in the country where the material is stored indicating that the halon is used and that the halon bank is authorized to collect used halon. If source information in paragraphs (g)(2)(iv) through (vi) is available, it should also be provided in addition to the letter.
(3) Review of petition to import a used substance. Starting on the first working day following receipt by the Administrator of a petition to import a used class I controlled substance, the Administrator will initiate a review of the information submitted under paragraph (g)(2) of this section and take action within 40 working days to issue either an objection-notice or a non-objection notice for the individual shipment to the person who submitted the petition to import the used class I controlled substance.
(i) For the following reasons, the Administrator may issue an objection notice to a petition:
(A) If the Administrator determines that the information is insufficient, that is, if the petition lacks or appears to lack any of the information required under paragraph (g)(2) of this section or other information that may be requested during the review of the petition necessary to verify that the controlled substance is used;
(B) If the Administrator determines that any portion of the petition contains false or misleading information, or the Administrator has information from other U.S. or foreign government agencies indicating that the petition contains false or misleading information;
(C) If the importer wishes to import a used class I controlled substance from a country which is, for that particular controlled substance, out of compliance regarding its phaseout obligations under the Protocol or the transaction in the petition is contrary to other provisions in the Vienna Convention or the Montreal Protocol;
(D) If the appropriate government agency in the exporting country has not agreed to issue an export license for the cited individual shipment of used controlled substance;
(E) If allowing the import of the used class I controlled substance would run counter to government restrictions from either the country of recovery or export regarding controlled ozone-depleting substances;
(F) If reclamation capacity is installed or is being installed for that specific controlled substance in the country of recovery or country of export and the capacity is funded in full or in part through the Multilateral Fund.
(ii) Within ten (10) working days after receipt of the objection notice, the importer may re-petition the Administrator, only if the Administrator indicated “insufficient information” as the basis for the objection notice. If no appeal is taken by the tenth working day after the date on the objection notice, the objection shall become final. Only one appeal of re-petition will be accepted for any petition received by EPA.
(iii) Any information contained in the re-petition which is inconsistent with the original petition must be identified and a description of the reason for the inconsistency must accompany the re-petition.
(iv) In cases where the Administrator does not object to the petition based on the criteria listed in paragraph (g)(3)(i) of this section, the Administrator will issue a non-objection notice.
(v) To pass the approved used class I controlled substances through U.S. Customs, the non-objection notice issued by EPA must accompany the shipment through U.S. Customs.
(vi) If for some reason, following EPA's issuance of a non-objection notice, new information is brought to EPA's attention which shows that the non-objection notice was issued based on false information, then EPA has the right to:
(A) Revoke the non-objection notice;
(B) Pursue all means to ensure that the controlled substance is not imported into the United States; and
(C) Take appropriate enforcement actions.
(vii) A person receiving the non-objection notice is permitted to import the individual shipment only within one year of the date stamped on the non-objection notice.
(viii) A person receiving a non-objection notice from the Administrator for a petition to import used class I controlled substances must maintain the following records:
(A) a copy of the petition;
(B) the EPA non-objection notice;
(C) the bill of lading for the import; and
(D) The U.S. Customs entry number.
(4) Reporting requirements—importers. For each quarter, except as specified below, every importer of a class I controlled substance (including importers of used, recycled or reclaimed controlled substances) must submit to the Administrator a report containing the following information:
(i) Summaries of the records required in paragraphs (g)(1) (i) through (xvi) of this section for the previous quarter;
(ii) The total quantity imported in kilograms of each controlled substance for that quarter;
(iii) The quantity of those controlled substances imported that are used controlled substances.
(iv) The levels of import (expended consumption allowances before January 1, 1996) of controlled substances for that quarter and totaled by chemical for the control-period-to-date;
(vii) [Reserved]
(viii) The amount of controlled substances imported for use in processes resulting in their transformation or destruction;
(ix) The amount of controlled substances sold or transferred during the quarter to each person for use in processes resulting in their transformation or eventual destruction;
(x) The amount of controlled substances sold or transferred during the quarter to each person for an essential use;
(xi) [Reserved]
(xii) Internal Revenue Service Certificates showing that the purchaser or recipient of imported controlled substances intends to transform those substances or destruction verifications (as in § 82.13(k)) showing that purchaser or recipient intends to destroy the controlled substances; and
(xiii) The certifications from essential-use allowance holders stating that the controlled substances were purchased solely for specified essential-uses and will not be resold or used in manufacturing; and the certifications from distributors of laboratory supplies that the controlled substances were purchased solely for eventual sale to laboratories that certify the controlled substances are for essential laboratory and analytical uses (defined at appendix G of this subpart), or if sales are made directly to laboratories, certifications from laboratories that the controlled substances will only be used for essential laboratory and analytical uses (defined at appendix G of this subpart) and will not be resold or used in manufacturing.
(xiv) In the case of laboratory essential uses, a certification from distributors of laboratory supplies that controlled substances were purchased for sale to laboratory customers who certify that the substances will only be used for laboratory applications and will not be resold or used in manufacturing; and
(xv) The amount of methyl bromide sold or transferred during the quarter to a person other than the importer solely for quarantine and preshipment applications;
(xvi) A list of the quantities of methyl bromide exported by the importer and or by other U.S. companies, to a Party to the Protocol that will be used solely for quarantine and preshipment applications and therefore were not imported expending consumption allowances; and
(xvii) For quarantine and preshipment applications of methyl bromide in the United States or by a person of another Party, one copy of a certification that the material will be used only for quarantine and preshipment applications in accordance with the definitions in this subpart from each recipient of the material and a list of additional quantities shipped to that same person for the quarter.
(xviii) For critical uses of methyl bromide, importers shall report annually the amount of critical use methyl bromide owned by the reporting entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, as well as quantities held by the reporting entity on behalf of another entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use along with the name of the entity on whose behalf the material is held.
(xix) Importers shall report annually the amount of methyl bromide produced or imported prior to the January 1, 2005, phaseout date owned by the reporting entity, as well as quantities held by the reporting entity on behalf of another entity, specifying the name of the entity on whose behalf the material is held.
(5) Certification of intent to import for destruction. For each individual shipment of a class I controlled substance imported with the intent to destroy that substance, an importer must submit electronically to the Administrator, at least 30 working days before the shipment is to leave the foreign port of export, the following information:
(i) Name, commodity code, and quantity in kilograms of each controlled substance to be imported;
(ii) Name and address of the importer, the importer ID number, and the contact person's name, email address, and phone number;
(iii) Name and address of any intermediary who will aggregate controlled substances imported for destruction, and the contact person's name, email address, and phone number;
(iv) The U.S. port of entry for the import, the expected date of shipment and the vessel transporting the material. If at the time of submitting the certification of intent to import for destruction the importer does not know the U.S. port of entry, the expected date of shipment and the vessel transporting the material, and the importer receives a non-objection notice for the individual shipment in the petition, the importer is required to notify the Administrator of this information prior to the entry of the individual shipment into the United States;
(v) Name, address, contact person, email address, and phone number of the responsible party at the destruction facility;
(vi) The export license, application for an export license, or official communication acknowledging the export from the appropriate government agency in the country of export and, if recovered in another country, the export license or official communication from the appropriate government agency in that country, and quantity authorized for export in kilograms on the export license, and an English translation of these documents; and
(vii) A certification of accuracy of the information submitted in the certification.
(6) Destruction verification. For each individual shipment of a class I controlled substance imported with the intent to destroy that substance, an importer must submit to the Administrator a copy of the destruction verification within 30 days after destruction of the controlled substance(s).
(7) Review of certification of intent to import for destruction. (i) Starting on the first working day following receipt by the Administrator of a certification of intent to import a class I controlled substance for destruction, the Administrator will initiate a review of the information submitted under paragraph (g)(5) of this section and take action within 30 working days to issue either an objection notice or a non-objection notice for the individual shipment to the person who submitted the certification of intent to import the class I controlled substance for destruction.
(ii) The Administrator may issue an objection notice if the petition lacks or appears to lack any of the information required under paragraph (g)(5) of this section or for the reasons listed in paragraphs (g)(3)(i)(B) through (F) of this section.
(iii) In cases where the Administrator does not object to the petition, the Administrator will issue a non-objection notice.
(iv) To pass the approved class I controlled substances through U.S. Customs, the non-objection notice issued by EPA must accompany the shipment through U.S. Customs.
(v) If for some reason, following EPA's issuance of a non-objection notice, new information is brought to EPA's attention which shows that the non-objection notice was issued based on false information, then EPA has the right to:
(A) Revoke the non-objection notice;
(B) Pursue all means to ensure that the class I controlled substance is not imported into the United States; and
(C) Take appropriate enforcement actions.
(8) Timing of import. A person receiving the non-objection notice is permitted to import the individual shipment only within one year of the date stamped on the non-objection notice.
(9) Additional recordkeeping requirements—importers of used, recycled, or reclaimed controlled substances. A person receiving a non-objection notice from the Administrator for a certification of intent to import class I controlled substances for destruction must maintain the following records:
(i) A copy of the certificate of intent to import for destruction;
(ii) The EPA non-objection notice;
(iii) A copy of the export license, export license application, or official communication from the appropriate government agency in the country of export;
(iv) U.S. Customs entry documents for the import that must include one of the commodity codes from appendix K to this subpart;
(v) The date, amount, and type of controlled substance sent for destruction, per shipment;
(vi) An invoice from the destruction facility verifying the shipment was received;
(vii) A copy of the destruction verification from the destruction facility; and
(viii) An English translation of the document in paragraph (g)(9)(iii) of this section.
(10) Recordkeeping requirements-aggregators. A person identified in paragraph (g)(5)(iii) of this section as aggregating a controlled substance prior to destruction must:
(i) Maintain transactional records that include the name and address of the entity from whom they received the controlled substance imported for destruction;
(ii) Maintain transactional records that include the name and address of the entity to whom they sent the controlled substance imported for destruction;
(iii) Maintain records that include the date and quantity of the imported controlled substance received for destruction;
(iv) Maintain records that include the date and quantity of the imported controlled substance sent for destruction; and
(v) If the person is the final aggregator of such a controlled substance before the material is destroyed, maintain a copy of the destruction verification.
(h) Reporting requirements—exporters. (1) For any exports of class I controlled substances (except methyl bromide) not reported under paragraph (f)(3) of this section (reporting for producers of controlled substances), the exporter who exported a class I controlled substance (except methyl bromide) must submit to the Administrator the following information within 45 days after the end of the control period in which the unreported exports left the United States:
(i) The names and addresses of the exporter and the recipient of the exports;
(ii) The exporter's Employer Identification Number;
(iii) The type and quantity of each controlled substance exported including the quantity of controlled substance that is used, recycled, or reclaimed;
(iv) The date on which, and the port from which, the controlled substances were exported from the United States or its territories;
(v) The country to which the controlled substances were exported;
(vi) The amount exported to each Article 5 country;
(vii) The commodity code of the controlled substance shipped; and
(viii) The invoice or sales agreement containing language similar to the Internal Revenue Service Certificate that the purchaser or recipient of imported controlled substances intends to transform those substances, or destruction verifications (as in paragraph (k) of this section) showing that the purchaser or recipient intends to destroy the controlled substances.
(2) For any exports of methyl bromide not reported under paragraph (f)(3) of this section (reporting for producers of controlled substances), the exporter who exported methyl bromide must submit to the Administrator the following information within 45 days after the end of each quarter in which the unreported exports left the United States:
(i) The names and addresses of the exporter and the recipient of the exports;
(ii) The exporter's Employer Identification Number;
(iii) The quantity of methyl bromide exported by use (transformation, destruction, critical use, or quarantine and preshipment);
(iv) The date on which, and the port from which, the methyl bromide was exported from the United States or its territories;
(v) The country to which the methyl bromide was exported;
(vi) The amount exported to each Article 5 country;
(vii) The commodity code of the controlled substance shipped; and
(viii) The invoice or sales agreement containing language similar to the Internal Revenue Service Certificate that the purchaser or recipient of imported methyl bromide intends to transform those substances, the destruction verifications (as in paragraph (k) of this section) showing that the purchaser or recipient intends to destroy the controlled substances, or the certification that the purchaser or recipient and the eventual applicator will only use the material for quarantine and preshipment applications in accordance with the definitions in this subpart.
(i) [Reserved]
(j) Persons who destroy class I controlled substances shall, following promulgation of this rule, provide EPA with a one-time report stating the destruction unit's destruction efficiency and the methods used to record the volume destroyed and those used to determine destruction efficiency and the name of other relevant federal or state regulations that may apply to the destruction process. Any changes to the unit's destruction efficiency or methods used to record volume destroyed and to determine destruction efficiency must be reflected in a revision to this report to be submitted to EPA within 60 days of the change.
(k) Persons who purchase or receive and subsequently destroy controlled class I substances that were originally produced without expending allowances shall 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.
(1) The destruction verification shall include the following:
(i) Identity and address of the person intending to destroy controlled substances;
(ii) Indication of whether those controlled substances will be completely destroyed, as defined in § 82.3 of this rule, or less than completely destroyed, in which case the destruction efficiency at which such substances will be destroyed must be included;
(iii) Period of time over which the person intends to destroy controlled substances; and
(iv) Signature of the verifying person.
(2) If, at any time, any aspects of this verification change, the person must submit a revised verification reflecting such changes to the producer from whom that person purchases controlled substances intended for destruction.
(l) Persons who purchase class I controlled substances and who subsequently transform such controlled substances shall provide the producer or importer with the IRS certification that the controlled substances are to be used in processes resulting in their transformation.
(m) Any person who transforms or destroys class I controlled substances who has submitted an IRS certificate of intent to transform or a destruction verification (as under paragraph (k) of this section) to the producer or importer of the controlled substance, must report the names and quantities of class I controlled substances transformed and destroyed for each control period within 45 days of the end of such control period.
(n) Persons who import or export used controlled substances (including recycled or reclaimed) must label their bill of lading or invoice indicating that the controlled substance is used, recycled or reclaimed.
(o) Persons who import heels of controlled substances must label their bill of lading or invoice indicating that the controlled substance in the container is a heel.
(p) Every person who brings back a container with a heel to the United States, as defined in § 82.3, must report quarterly the amount brought into the United States certifying that the residual amount in each shipment is less than 10 percent of the volume of the container and will either:
(1) Remain in the container and be included in a future shipment;
(2) Be recovered and transformed;
(3) Be recovered and destroyed; or
(4) Be recovered for a non-emissive use.
(q) Every person who brings a container with a heel into the United States must report on the final disposition of each shipment within 45 days of the end of the control period.
(r) Every person who transships 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.
(s) Any person allocated essential-use allowances who submits an order to a producer or importer for a controlled substance must report the quarterly quantity received from each producer or importer.
(t) Any distributor of laboratory supplies receiving controlled substances under the global laboratory essential-use exemption for sale to laboratory customers must report quarterly the quantity received of each controlled substance from each producer or importer.
(u) Holders of Essential-Use Allowances—Reporting.
(1) Within 30 days of the end of every quarter, any person allocated essential-use allowances must submit to the Administrator a report containing the quantity of each controlled substance, in kilograms, purchased and received from each producer and each importer during that quarter as well as from which country the controlled substance was imported.
(2) Any person allocated essential-use allowances must submit to the Administrator a report containing the following information within 30 days of the end of the control period, and, if possible, within 20 days of the end of the control period:
(i) The gross quantity of each controlled substance, in kilograms, that was used for the essential use during the control period; and
(ii) The quantity of each controlled substance, in kilograms, contained in exported products during the control period; and
(iii) The quantity of each controlled substance, in kilograms, that was destroyed or recycled during the control period; and
(iv) The quantity of each controlled substance, in kilograms, held in inventory as of the last day of the control period, that was acquired with essential use allowances in all control periods ( i.e. quantity on hand at the end of the year); and
(v) The quantity of each controlled substance, in kilograms, in a stockpile that is owned by the company or is being held on behalf of the company under contract, and was produced or imported through the use of production allowances and consumption allowances prior to the phaseout ( i.e. class I ODSs produced before their phaseout dates); and
(vi) For essential use allowances for metered-dose inhalers only, the allowance holder must report the total number of marketable units of each specific metered-dose inhaler product manufactured in the control period.
(v) Laboratory use exemption distributors. Any distributor of laboratory supplies who purchased controlled substances under the global essential laboratory and analytical use exemption must submit quarterly (except distributors following procedures in paragraph (x) of this section) the quantity of each controlled substance purchased by each laboratory customer or distributor whose certification was previously provided to the distributor pursuant to paragraph (w) of this section, the contact information for the source company from which material was purchased, and the laboratories to whom the material is sold.
(w) Laboratory use exemption customers. A laboratory customer purchasing a controlled substance under the global essential laboratory and analytical 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 essential laboratory and analytical uses (defined at appendix G of this subpart) and not be resold or used in manufacturing.
(1) The identity and address of the laboratory customer;
(2) The name, email address, and phone number of a contact person for the laboratory customer;
(3) The name and quantity of each controlled substance purchased, and the estimated percent of the controlled substance that will be used for each listed type of laboratory application.
(x) Any distributor of laboratory supplies who purchased class I controlled substances under the global essential laboratory and analytical use exemption, and who only sells the class I controlled substances as reference standards for calibrating laboratory analytical equipment, may write a letter to the Administrator requesting permission to submit the reports required under paragraph (v) of this section annually rather than quarterly. The Administrator will review the request and issue a notification of permission to file annual reports if, in the Administrator's judgment, the distributor meets the requirements of this paragraph. Upon receipt of a notification of extension from the Administrator, the distributor must submit annually the quantity of each controlled substance purchased by each laboratory customer whose certification was previously provided to the distributor pursuant to paragraph (w) of this section.
(y) Quarantine and preshipment methyl bromide distributors. Every distributor of methyl bromide who purchases or receives a quantity produced or imported for quarantine or preshipment applications under the exemptions in this subpart must comply with the following recordkeeping and reporting requirements:
(1) Every distributor of quarantine and preshipment methyl bromide must certify to the producer, importer, or distributor from whom they purchased or received the controlled substance that quantities purchased or received will be sold only for quarantine applications or preshipment applications in accordance with the definitions in this subpart.
(2) Every distributor of quarantine and preshipment methyl bromide must receive from an applicator, exporter, or distributor to whom they sell or deliver the controlled substance a certification, prior to delivery, stating that the quantity will be used or sold solely for quarantine applications or preshipment applications in accordance with definitions in this subpart.
(3) Every distributor of quarantine and preshipment methyl bromide must maintain the certifications as records for 3 years.
(4) Every distributor of quarantine and preshipment methyl bromide must report to the Administrator within 45 days after the end of each quarter, the total quantity delivered to applicators or end users for quarantine applications and preshipment applications in accordance with definitions in this subpart.
(z) Quarantine and preshipment methyl bromide applicators. Every applicator of methyl bromide who purchases or receives a quantity produced or imported solely for quarantine or preshipment applications under the exemptions in this subpart must comply with the following recordkeeping and reporting requirements:
(1) Recordkeeping. Every applicator of methyl bromide produced or imported for quarantine and preshipment applications under the exemptions of this subpart must maintain, for every application, a document from the commodity owner, shipper, or their agent requesting the use of methyl bromide citing the requirement that justifies its use in accordance with definitions in this subpart. These documents shall be retained for 3 years.
(2) Reporting. Every applicator who purchases or receives methyl bromide that was produced or imported for quarantine and preshipment applications under the exemptions in this subpart shall provide the distributor of the methyl bromide, prior to shipment, with a certification that the methyl bromide will be used only for quarantine applications or preshipment applications as defined in this subpart.
(aa) Quarantine and preshipment methyl bromide end user certification. Every commodity owner, shipper or their agent requesting an applicator to use methyl bromide that was produced or imported solely for quarantine and preshipment applications under the exemptions of this subpart must maintain a record for 3 years, for each request, certifying knowledge of the requirements associated with the exemption for quarantine and preshipment applications in this subpart and citing the requirement that justifies its use. The record must include the following statement: “I certify knowledge of the requirements associated with the exempted quarantine and preshipment applications published in 40 CFR part 82, including the requirement that this letter cite the treatments or official controls for quarantine applications or the official requirements for preshipment requirements.”
(bb) Every distributor of methyl bromide (class I, Group VI controlled substances) who purchases or receives a quantity of critical use methyl bromide must comply with recordkeeping and reporting requirements specified in this paragraph (bb).
(1) Recordkeeping—Every distributor of critical use methyl bromide must certify to the producer or importer or other entity from which they are acquiring quantities of critical use methyl bromide that such quantities received will be sold or used only for approved critical use(s) in accordance with the definitions and prohibitions in this subpart.
(i) Every distributor of a quantity of critical use methyl bromide must receive from an applicator, or any other entity to whom they sell critical use methyl bromide, a certification of the quantity of critical use methyl bromide ordered, prior to delivery of the quantity, stating that the quantity will be sold or used only for approved critical uses in accordance with definitions and prohibitions in this subpart.
(ii) Every distributor of methyl bromide who receives a certification from an applicator or any other entity to which they sell critical use methyl bromide must maintain the certifications as records for 3 years.
(iii) Every distributor of a quantity of critical use methyl bromide must maintain invoice and order records related to the sale of such material for 3 years.
(2) Reporting—Every distributor of critical use methyl bromide must report to the Administrator annually, the following items:
(i) For critical uses of class I, Group VI controlled substances, an annual list of the amount of critical use methyl bromide bought;
(ii) For critical uses of class I, Group VI controlled substances, an annual list of the amount of critical use methyl bromide sold for each specified critical use in Appendix L of this subpart;
(iii) For critical uses of class I, Group VI controlled substances, report the amount of critical use methyl bromide owned by the reporting entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, as well as quantities held by the reporting entity on behalf of another entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, along with the name of the entity on whose behalf the material is held;
(iv) [Reserved]
(v) The amount of methyl bromide produced or imported prior to the January 1, 2005, phaseout date owned by the reporting entity, as well as quantities held by the reporting entity on behalf of another entity, specifying the name of the entity on whose behalf the material is held.
(cc) Every third party applicator of methyl bromide (class I, Group VI controlled substances) that purchases or receives critical use methyl bromide must comply with recordkeeping and reporting requirements specified in this paragraph (cc).
(1) Recordkeeping—Every third party applicator of critical use methyl bromide must certify to the producer or importer or other entity from which they are acquiring quantities of critical use methyl bromide that such quantities received will be sold or used only for approved critical use(s) in accordance with the definitions and prohibitions in this subpart.
(i) Every third party applicator of a quantity of critical use methyl bromide must receive from any entity to whom they sell critical use methyl bromide, a certification of the quantity of critical use methyl bromide ordered, prior to delivery of the quantity, stating that the quantity will be sold or used only for approved critical uses in accordance with definitions and prohibitions in this subpart.
(ii) Every third party applicator of methyl bromide who receives a certification from an entity to which they sell critical use methyl bromide must maintain the certifications as records for 3 years.
(iii) Every third party applicator of a quantity of critical use methyl bromide must maintain invoice and order records related to the sale of such material for 3 years.
(2) Reporting—Every third party applicator of critical use methyl bromide must report to the Administrator annually, the following items:
(i) For critical uses of class I, Group VI controlled substances, an annual list of the amount of critical use methyl bromide bought;
(ii) For critical uses of class I, Group VI controlled substances, an annual list of the amount of critical use methyl bromide sold for each specified critical use in Appendix L of this subpart;
(iii) For critical uses of class I, Group VI controlled substances, report annually the amount of critical use methyl bromide owned by the reporting entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, as well as quantities held by the reporting entity on behalf of another entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, along with the name of the entity on whose behalf the material is held;
(iv) [Reserved]
(v) The amount of methyl bromide produced or imported prior to the January 1, 2005 phaseout date owned by the reporting entity, as well as quantities held by the reporting entity on behalf of another entity, specifying the name of the entity on whose behalf the material is held.
(dd) Every approved critical user purchasing an amount of critical use methyl bromide or purchasing fumigation services with critical use methyl bromide must, for each request, identify the use as a critical use and certify being an approved critical user. The approved critical user certification will state, in part: “I certify, under penalty of law, I am an approved critical user and I will use this quantity of methyl bromide for an approved critical use. My action conforms to the requirements associated with the critical use exemption published in 40 CFR part 82. I am aware that any agricultural commodity within a treatment chamber, facility or field I fumigate with critical use methyl bromide cannot subsequently or concurrently be fumigated with non-critical use methyl bromide during the same control period, excepting a QPS treatment or a treatment for a different use ( e.g. , a different crop or commodity). I will not use this quantity of methyl bromide for a treatment chamber, facility, or field that I previously fumigated with non-critical use methyl bromide during the same control period, excepting a QPS treatment or a treatment for a different use ( e.g. , a different crop or commodity), unless a local township limit now prevents me from using methyl bromide alternatives or I have now become an approved critical user as a result of rulemaking.” The certification will also identify the type of critical use methyl bromide purchased, the location of the treatment, the crop or commodity treated, the quantity of critical use methyl bromide purchased, and the acreage/square footage treated, and will be signed and dated by the approved critical user.
(ee) Process agents. Any entity that uses a class I controlled substance as a process agent must comply, in addition to the recordkeeping and reporting requirements in § 82.25, with the following recordkeeping and reporting requirements for each facility that uses a class I controlled substance as a process agent:
(1) Reporting—one-time report. By February 7, 2025, or within 120 days of the date that an entity first uses a class I controlled substance as a process agent, whichever is later, any entity that uses a class I controlled substance as a process agent must submit to the Administrator a report containing the following information for each use of a class I controlled substance as a process agent:
(i) The name and address of each facility and plant, and each responsible person's name, email address, and phone number;
(ii) The name, purpose, and final product manufactured of each process agent application that uses a class I controlled substance;
(iii) The start-up date of each facility and the start-up date of each plant that uses a class I controlled substance as a process agent;
(iv) For each facility, the names and amounts of each product and byproduct manufactured in the process agent application during the previous control period, including amounts destroyed or used as a feedstock;
(v) For each facility, the total air, fugitive air, and stack point air emissions of class I controlled substances used as a process agent during the previous control period;
(vi) For each facility, a description of technologies currently being used and actions taken or currently under evaluation to minimize use or emissions of class I controlled substances used as process agents (including estimated emissions reductions associated with each); and
(vii) For each facility, a description that includes details of the percentages of class I controlled substances used as a process agent and:
(A) Retained within the process agent application;
(B) Consumed in the process agent application;
(C) Recovered after the process agent application;
(D) Emitted; and
(E) Entrained in the final product.
(2) Annual reports. Any entity that uses a class I controlled substance as a process agent must provide by February 14 of each year an annual report for the previous control period containing the following information for each use of the class I controlled substance as a process agent:
(i) For each facility, contact information including email address and phone number for a primary and alternate contact person;
(ii) For each facility, the name and amount of each class I controlled substance initially introduced into the process agent application for use as a process agent, specified independently for paragraphs (ee)(2)(ii)(A) through (G) of this section by whether the class I controlled substance was:
(A) Obtained as virgin;
(B) Obtained as used;
(C) Produced by the entity;
(D) Purchased from a U.S. producer;
(E) Imported;
(F) Reclaimed by the entity from a different use; and
(G) Reclaimed by another entity;
(iii) For each facility, the name and amount of each class I controlled substance used as a process agent and reused or recycled for use by the entity for continued use in the same process agent application at the same facility;
(iv) For each facility, the name and amount of each class I controlled substance used as a process agent that was ultimately:
(A) Transformed;
(B) Reused or recycled for use in a different process agent application; or
(C) Destroyed by approved destruction technologies;
(v) For each facility, the total air, fugitive air, and stack point air emissions of each class I controlled substance used as a process agent;
(vi) For each facility, the names and amounts of each product and byproduct manufactured in the process agent application during the previous control period, including amounts destroyed or used as a feedstock;
(vii) For each facility, a description of emission reduction actions for class I controlled substances used as a process agent taken since the last one-time or annual report, planned, or currently under evaluation; and
(viii) For each entity, any process agent application changes anticipated to result in increases for the next annual report, as compared to the previous control period and the average of the three previous control periods, of the following magnitude must be specified in a report submitted to EPA at least 180 days prior to implementing the change:
(A) Greater than 20 percent of the amount of class I controlled substance initially introduced for use as a process agent; or
(B) At least one metric ton and 20 percent of the amount emitted during use as a process agent.
(3) Recordkeeping. Every entity who uses a class I controlled substance as a process agent during a control period must maintain the following records, as applicable:
(i) Dated records of the quantity of each class I controlled substance initially introduced at each facility into the process application for use as a process agent;
(ii) Dated records of the quantity of each class I controlled substance produced at each facility for use as a process agent;
(iii) Records identifying the producer or importer of the class I controlled substance received at each facility for use as a process agent by the entity;
(iv) For each facility, copies of the invoices or receipts documenting the sale or other transfer of ownership of each class I controlled substance for use as a process agent to the entity;
(v) Dated records identifying the quantity of each product manufactured within each facility by using a class I controlled substance as a process agent;
(vi) For each facility, records of the date and the estimated quantity of any spill or release of each class I controlled substance used as a process agent that equals or exceeds 100 pounds;
(vii) For each facility, a description of the methodology used to measure and calculate emissions, and dated records of equipment parameters, measured data, supporting calculations, and other rationale used to validate reported emission quantities;
(viii) For each facility, dated records of the quantity of each class I controlled substance used as a process agent which is subsequently transformed or destroyed;
(ix) In the case where class I controlled substances used as a process agent were ultimately transformed by an entity other than the entity which last used the class I controlled substances as a process agent, a copy of the Internal Revenue Service Certificate showing that the purchaser or recipient of the controlled substance, in the United States or in another country that is a Party, certifies the intent to transform the controlled substance, or sell the controlled substance for transformation; and
(x) In the case where class I controlled substances used as a process agent were ultimately destroyed by an entity other than the entity which last used the class I controlled substances as a process agent, a copy of the destruction verification (as in paragraph (k) of this section), showing that the purchaser or recipient of a controlled substance, in the United States or in another country that is a Party, certifies the intent to destroy the controlled substance, or sell the controlled substance for destruction.
(4) Request for extension. Any entity that uses a class I controlled substance as a process agent may request an extension to comply with paragraph (ee)(1) of this section.
(i) This request must include the following information:
(A) Name of the facility submitting the request, contact information for a person at the facility, and the address of the facility;
(B) An explanation of the reasons that an extension is necessary and the timeline that would be practicable; and
(C) Supporting documentation of the circumstances.
(ii) The Administrator will review the request and, within five working days of receiving a complete request, provide notification of whether the request is granted and when the report is due.
(5) Notification that use has ceased. Reports are no longer required for process agent use starting in the year after an entity notifies the Administrator that they have permanently ceased use of all class I controlled substances as a process agent, but the entity must continue to comply with all applicable recordkeeping requirements.
§ 82.14   Process for electronic reporting.
(a) Starting May 18, 2020, reports and petitions that are available to be submitted through the Central Data Exchange or another format specified by EPA, as well as any related supporting documents, must be submitted through that tool.
(b) Entities can register and access the Central Data Exchange as follows:
(1) Go to EPA's Central Data Exchange website at https://cdx.epa.gov and follow the links for the submission of ozone-depleting substances.
(2) Call EPA's Central Data Exchange Help Desk at 1-888-890-1995.
(3) Email the EPA's Central Data Exchange Help Desk at HelpDesk@epacdx.net.
§ 82.15   Prohibitions for class II controlled substances.
(a) Production. (1) Effective January 21, 2003, no person may produce class II controlled substances for which EPA has apportioned baseline production and consumption allowances, in excess of the quantity of unexpended production allowances, unexpended Article 5 allowances, unexpended export production allowances, or conferred unexpended HCFC-141b exemption allowances held by that person for that substance under the authority of this subpart at that time in that control period, unless the substances are transformed or destroyed domestically or by a person of another Party, or unless they are produced using an exemption granted in paragraph (f) of this section. Every kilogram of excess production constitutes a separate violation of this subpart.
(2) Effective January 21, 2003, no person may use production allowances to produce a quantity of class II controlled substance unless that person holds under the authority of this subpart at the same time consumption allowances sufficient to cover that quantity of class II controlled substances. No person may use consumption allowances to produce a quantity of class II controlled substances unless the person holds under authority of this subpart at the same time production allowances sufficient to cover that quantity of class II controlled substances.
(b) Import. (1) Effective January 21, 2003, no person may import class II controlled substances (other than transhipments, heels or used class II controlled substances) for which EPA has apportioned baseline production and consumption allowances , in excess of the quantity of unexpended consumption allowances, or conferred unexpended HCFC-141b exemption allowances held by that person under the authority of this subpart at that time in that control period, unless the substances are for use in a process resulting in their transformation or their destruction, or unless they are produced using an exemption granted in paragraph (f) of this section. Every kilogram of excess import constitutes a separate violation of this subpart.
(2) Effective January 21, 2003, no person may import, at any time in any control period, a used class II controlled substance for which EPA has apportioned baseline production and consumption allowances, without having submitted a petition to the Administrator and received a non-objection notice in accordance with § 82.24(c)(3) and (4). A person issued a non-objection notice for the import of an individual shipment of used class II controlled substances may not transfer or confer the right to import, and may not import any more than the exact quantity (in kilograms) of the used class II controlled substance stated in the non-objection notice. Every kilogram of import of used class II controlled substance in excess of the quantity stated in the non-objection notice issued by the Administrator in accordance with § 82.24(c)(3) and (4) constitutes a separate violation of this subpart.
(3) No person may import for purposes of destruction, at any time in any control period, a class II controlled substance for which EPA has apportioned baseline production and consumption allowances, without having submitted a certification of intent to import for destruction to the Administrator and received a non-objection notice in accordance with § 82.24(c)(6). A person issued a non-objection notice for the import of an individual shipment of class II controlled substances for destruction may not transfer or confer the right to import and may not import any more than the exact quantity (in kilograms) of the class II controlled substance stated in the non-objection notice. For imports intended to be destroyed in the United States, a person issued a non-objection notice must destroy the controlled substance within one year of the date stamped on the non-objection letter, may not transfer or confer the right to import, and may not import any more than the exact quantity (in kilograms) of the class II controlled substance stated in the non-objection notice. Every kilogram of import of class II controlled substance in excess of the quantity stated in the non-objection notice issued by the Administrator in accordance with § 82.24(c)(6) constitutes a separate violation of this subpart.
(c) Production with Article 5 allowances. No person may introduce into U.S. interstate commerce any class II controlled substance produced with Article 5 allowances, except for export to an Article 5 Party as listed in Appendix E of this subpart. Every kilogram of a class II controlled substance produced with Article 5 allowances that is introduced into interstate commerce other than for export to an Article 5 Party constitutes a separate violation under this subpart. No person may export any class II controlled substance produced with Article 5 allowances to a non-Article 5 Party. Every kilogram of a class II controlled substance that was produced with Article 5 allowances that is exported to a non-Article 5 Party constitutes a separate violation under this subpart.
(d) Production with export production allowances. No person may introduce into U.S. interstate commerce any class II controlled substance produced with export production allowances. Every kilogram of a class II controlled substance that was produced with export production allowances that is introduced into U.S. interstate commerce constitutes a separate violation under this subpart.
(e) Trade with Parties. No person may import or export any quantity of a class II controlled substance listed in Appendix A to this subpart, from or to any foreign state that is not either:
(1) A Party to the Beijing Amendment. As of March 14, 2014, the following foreign states had not ratified the Beijing Amendment: Kazakhstan, Libya, and Mauritania. For updates on ratification status, see the Ozone Secretariat's Web site at: http://ozone.unep.org/new_site/en/treaty_ratification_status.php. Or,
(2) A foreign state not party to the Beijing Amendment that is complying with the Beijing Amendment as defined in this subpart.
(f) Exemptions. (1) Medical Devices [Reserved]
(g) Introduction into interstate commerce or use. (1) Effective January 1, 2010, no person may introduce into interstate commerce or use HCFC-141b (unless used, recovered, and recycled) for any purpose except for use in a process resulting in its transformation or its destruction; for export to Article 5 Parties under § 82.18(a); for HCFC-141b exemption needs; as a transhipment or heel; or for exemptions permitted in paragraph (f) of this section.
(2)(i) Effective January 1, 2010, no person may introduce into interstate commerce or use HCFC-22 or HCFC-142b (unless used, recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for use as a refrigerant in equipment manufactured before January 1, 2010; for export to Article 5 Parties under § 82.18(a); as a transhipment or heel; or for exemptions permitted in paragraph (f) of this section.
(ii) Introduction into interstate commerce and use of HCFC-22 is not subject to the prohibitions in paragraph (g)(2)(i) of this section if the HCFC-22 is for use in medical equipment prior to January 1, 2015; for use in thermostatic expansion valves prior to January 1, 2015; or for use as a refrigerant in appliances manufactured before January 1, 2012, provided that the components are manufactured prior to January 1, 2010, and are specified in a building permit or a contract dated before January 1, 2010, for use on a particular project.
(3) Effective January 1, 2015, no person may introduce into interstate commerce or use HCFC-141b (unless used, recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for export to Article 5 Parties under § 82.18(a), as a transhipment or heel; or for exemptions permitted in paragraph (f) of this section.
(4)(i) Effective January 1, 2015, no person may introduce into interstate commerce or use any class II controlled substance not governed by paragraphs (g)(1) through (3) of this section (unless used, recovered and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for use as a refrigerant in equipment manufactured before January 1, 2020; for use as a fire suppression streaming agent listed as acceptable for use or acceptable subject to narrowed use limits for nonresidential applications in accordance with the regulations at subpart G of this part; for export to Article 5 Parties under § 82.18(a); as a transhipment or heel; for exemptions permitted under paragraph (f) of this section; or for exemptions permitted under paragraph (g)(4)(ii) or (iii) of this section.
(ii) Effective January 1, 2015, use of HCFC-225ca or HCFC-225cb as a solvent (excluding use in manufacturing a product containing HCFC-225ca or HCFC-225cb) is not subject to the use prohibition in paragraph (g)(4)(i) of this section if the person using the HCFC-225ca or HCFC-225cb placed the controlled substance into inventory before January 1, 2015. This paragraph does not create an exemption to the prohibition on introduction into interstate commerce in paragraph (g)(4)(i) of this section.
(iii) Effective January 1, 2015, use of HCFC-124 as a sterilant for the manufacture and testing of biological indicators is not subject to the use prohibition in paragraph (g)(4)(i) of this section if the person using the HCFC-124 placed the controlled substance into inventory before January 1, 2015. This paragraph does not create an exemption to the prohibition on introduction into interstate commerce in paragraph (g)(4)(i) of this section.
(5)(i) Effective January 1, 2020, no person may introduce into interstate commerce or use HCFC-123 or HCFC-124 (unless used, recovered and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for use as a refrigerant in equipment manufactured before January 1, 2020; for use as a fire suppression streaming agent listed as acceptable for use or acceptable subject to narrowed use limits for nonresidential applications in accordance with the regulations at subpart G of this part and only to the extent permitted under paragraph (g)(5)(ii) of this section; for export to Article 5 Parties under § 82.18(a); as a transhipment or heel; or for exemptions permitted under paragraph (f) of this section.
(ii) HCFC-123 that was produced or imported on or after January 1, 2020 may be used as a fire suppression streaming agent only to service equipment manufactured before January 1, 2020. HCFC-123 that was produced or imported prior to January 1, 2020 (or used, recovered and recycled) may be used as a fire suppression streaming agent in equipment manufactured before, on, or after January 1, 2020.
(iii) Notwithstanding the prohibition on use in paragraph (g)(5)(i) of this section, the use of HCFC-123 as a refrigerant in equipment manufactured on or after January 1, 2020 but before January 1, 2021 is permitted if the conditions of this paragraph (g)(5)(iii) are met. The HCFC-123 must be in the possession of an entity that will complete the manufacture of the appliance and imported prior to January 1, 2020. The appliance components must be ready for shipment to a construction location prior to July 24, 2019 and be specified in a building permit or a contract dated before July 24, 2019 for use on a particular project. All HCFC-123 used to service such appliances on or after January 1, 2021 must be used, recovered, or recycled.
(6) Effective January 1, 2030, no person may introduce into interstate commerce or use any class II controlled substance (unless used, recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for export to Article 5 Parties under § 82.18(a); as a transhipment or heel; or for exemptions permitted in paragraph (f) of this section.
(7) Effective January 1, 2040, no person may introduce into interstate commerce or use any class II controlled substance (unless used, recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction, as a transhipment or heel, or for exemptions permitted in paragraph (f) of this section.
(8) No person may sell or distribute, or offer for sale or distribution, any class II substance that they know, or have reason to know, was imported in violation of this section, except for such actions needed to re-export the controlled substance. Every kilogram of a controlled substance imported in contravention of this paragraph (g)(8) that is sold or distributed, or offered for sale or distribution, constitutes a separate violation of this subpart.
§ 82.16   Phaseout schedule of class II controlled substances.
(a)(1) Calendar-year allowances. In each control period as indicated in the following tables, each person is granted the specified percentage of baseline production allowances and baseline consumption allowances for the specified class II controlled substances apportioned under §§ 82.17 and 82.19:
Table 1 to Paragraph ( a )—Calendar-Year HCFC Production Allowances
Table 2 to Paragraph ( a )—Calendar-Year HCFC Consumption Allowances
(2) Recoupment allowances. In the control period beginning January 1, 2013 and ending December 31, 2013, and again in the control period beginning January 1, 2014 and ending December 31, 2014, certain companies are granted HCFC consumption and production allowances in addition to the percentage of baseline listed in the table at paragraph (a)(1) of this section. The following companies will receive the amounts listed below in both 2013 and 2014: 2,374,846 kg of HCFC-22 consumption allowances and 2,305,924 kg of HCFC-22 production allowances to Arkema; 1,170 kg of HCFC-142b consumption allowances to DuPont; 29,146 kg of HCFC-142b consumption allowances and 53,549 kg of HCFC-142b production allowances to Honeywell; 578,948 kg of HCFC-22 consumption allowances to Solvay Fluorides; and 144,900 kg of HCFC-142b production allowances to Solvay Solexis.
(b) Effective January 1, 2003, no person may produce HCFC-141b except for use in a process resulting in its transformation or its destruction, for export under § 82.18(a) using unexpended Article 5 allowances, for export under § 82.18(b) using unexpended export production allowances, for HCFC-141b exemption needs using unexpended HCFC-141b exemption allowances, or for exemptions permitted in § 82.15(f). Effective January 1, 2003, no person may import HCFC-141b (other than transhipments, heels or used class II controlled substances) in excess of the quantity of unexpended HCFC-141b exemption allowances held by that person except for use in a process resulting in its transformation or its destruction, or for exemptions permitted in § 82.15(f).
(c) Effective January 1, 2010, no person may produce HCFC-22 or HCFC-142b for any purpose other than for use in a process resulting in their transformation or their destruction, for use in equipment manufactured before January 1, 2010, for export under § 82.18(a) using unexpended Article 5 allowances, or for export under § 82.18(b) using unexpended export production allowances, or for exemptions permitted in § 82.15(f). Effective January 1, 2010, no person may import HCFC-22 or HCFC-142b (other than transhipments, heels or used class II controlled substances) for any purpose other than for use in a process resulting in their transformation or their destruction, for exemptions permitted in § 82.15(f), or for use in equipment manufactured prior to January 1, 2010.
(d) Effective January 1, 2015, no person may produce class II controlled substances not previously controlled for any purpose other than for use in a process resulting in their transformation or their destruction, for use as a refrigerant in equipment manufactured before January 1, 2020, for use as a fire suppression streaming agent listed as acceptable for use or acceptable subject to narrowed use limits for nonresidential applications in accordance with the regulations at subpart G of this part, for export under § 82.18(a) using unexpended Article 5 allowances, for export under § 82.18(b) using unexpended export production allowances, or for exemptions permitted in § 82.15(f). Effective January 1, 2015, no person may import class II controlled substances not subject to the requirements of paragraph (b) or (c) of this section (other than transhipments, heels, or used class II controlled substances) for any purpose other than for use in a process resulting in their transformation or their destruction, for exemptions permitted in § 82.15(f), for use as a refrigerant in equipment manufactured prior to January 1, 2020, or for use as a fire suppression streaming agent listed as acceptable for use or acceptable subject to narrowed use limits for nonresidential applications in accordance with the regulations at subpart G of this part.
(e)(1) Effective January 1, 2020, no person may produce HCFC-22 or HCFC-142b for any purpose other than for use in a process resulting in their transformation or their destruction, for export under § 82.18(a) using unexpended Article 5 allowances, or for exemptions permitted in § 82.15(f). Effective January 1, 2020, no person may import HCFC-22 or HCFC-142b for any purpose other than for use in a process resulting in their transformation or their destruction or for exemptions permitted in § 82.15(f).
(2) Effective January 1, 2020, no person may produce HCFC-123 for any purpose other than for use in a process resulting in its transformation or its destruction, for use as a refrigerant in equipment manufactured before January 1, 2020, for export under § 82.18(a) using unexpended Article 5 allowances, or for exemptions permitted in § 82.15(f). Effective January 1, 2020, no person may import HCFC-123 for any purpose other than for use in a process resulting in its transformation or its destruction, for use as a refrigerant in equipment manufactured before January 1, 2020, for use as a fire suppression streaming agent in equipment manufactured before January 1, 2020 and listed as acceptable for use or acceptable subject to narrowed use limits for nonresidential applications, or for exemptions permitted in § 82.15(f).
(f) Effective January 1, 2030, no person may produce class II controlled substances, for any purpose other than for use in a process resulting in their transformation or their destruction, for export under § 82.18(a) using unexpended Article 5 allowances, or for exemptions permitted in § 82.15(f). Effective January 1, 2030, no person may import class II controlled substances for any purpose other than for use in a process resulting in their transformation or their destruction, or for exemptions permitted in § 82.15(f).
(g) Effective January 1, 2040, no person may produce class II controlled substances for any purpose other than for use in a process resulting in their transformation or their destruction, or for exemptions permitted in § 82.15(f).
(h) [Reserved]
§ 82.17   Apportionment of baseline production allowances for class II controlled substances.
The following persons are apportioned baseline production allowances for HCFC-22, HCFC-141b, HCFC-142b, HCFC-123, HCFC-124, HCFC-225ca, and HCFC-225cb as set forth in the following table:
§ 82.18   Availability of production in addition to baseline production allowances for class II controlled substances.
(a) Article 5 allowances. (1) Effective January 1, 2003, a person apportioned baseline production allowances for HCFC-141b, HCFC-22, or HCFC-142b under § 82.17 is also apportioned Article 5 allowances, equal to 15 percent of their baseline production allowances, for the specified HCFC for each control period up until December 31, 2009, to be used for the production of the specified HCFC for export only to foreign states listed in Appendix E to this subpart.
(2) Effective January 1, 2010, a person apportioned baseline production allowances under § 82.17 for HCFC-141b, HCFC-22, or HCFC-142b is also apportioned Article 5 allowances, equal to 10 percent of their baseline production allowances, for the specified HCFC for each control period up until December 31, 2019, to be used for the production of the specified HCFC for export only to foreign states listed in Appendix E to this subpart.
(3) Effective January 1, 2015, a person apportioned baseline production allowances under § 82.17 for HCFC-123, HCFC-124, HCFC-225ca, and HCFC-225cb is also apportioned Article 5 allowances, equal to 10 percent of their baseline production allowances, for the specified HCFC for each control period up until December 31, 2019, to be used for the production of the specified HCFC for export only to foreign states listed in Appendix E to this subpart.
(b) Export Production Allowances. (1) Effective January 1, 2003, a person apportioned baseline production allowances for HCFC-141b under § 82.17 is also apportioned export production allowances, equal to 100 percent of their baseline production allowances, for HCFC-141b for each control period up until December 31, 2009, to be used for the production of HCFC-141b for export only, in accordance with this section.
(2) [Reserved]
(c) International trades of production allowances, export production allowances and Article 5 allowances. (1) A person may increase or decrease their production allowances, export production allowances, or Article 5 allowances, for a specified control period through trades with a foreign state that is Party to the Beijing Amendment or is complying with the Beijing Amendment as defined in this subpart. The foreign state must agree either to trade to the person for the current control period some quantity of production that the foreign state is permitted under the Montreal Protocol or to receive from the person for the current control period some quantity of production that the person is permitted under this subpart. The person must expend their consumption allowances allocated under § 82.19, or obtained under § 82.20 in order to produce with the additional production allowances.
(2) Trade from a Party—Information requirements. (i) A person requesting a trade from a Party must submit to the Administrator a signed document from the principal diplomatic representative in that nation's embassy in the U.S. stating that the appropriate authority within that nation will establish or revise production limits for the nation to equal the lowest of the following three production quantities:
(A) The maximum production that the nation is allowed under the Protocol minus the quantity (in kilograms) to be traded;
(B) The maximum production that is allowed under the nation's applicable domestic law minus the quantity (in kilograms) to be traded; or
(C) The average of the nation's actual national production level for the three years prior to the trade minus the production to be traded.
(ii) A person requesting a trade from a Party must also submit to the Administrator a true copy of the document that sets forth the following:
(A) The identity and address of the person;
(B) The identity of the Party;
(C) The names and telephone numbers of contact persons for the person and for the Party;
(D) The chemical type and quantity (in kilograms) of production being traded;
(E) Documentation that the Party possesses the necessary quantity of unexpended production rights;
(F) The control period(s) to which the trade applies; and
(G) For increased production intended for export to the Party from whom the allowances would be received, a signed statement of intent to export to the Party.
(3) Trade to a Party—Information requirements. A person requesting a trade to a Party must submit a request that sets forth the following information to the Administrator:
(i) The identity and address of the person;
(ii) The identity of the Party;
(iii) The names and telephone numbers of contact persons for the person and for the Party;
(iv) The chemical type and quantity (in kilograms) of allowable production being traded; and
(v) The control period(s) to which the trade applies.
(4) Review of international trade request to a Party. After receiving a trade request that meets the requirements of paragraph (c)(3) of this section, the Administrator may, at his/her discretion, consider the following factors by seeking concurrence from the Department of Commerce, the United States Trade Representative, and the Department of State, where appropriate, in deciding whether to approve such a trade:
(i) Possible creation of domestic economic hardship;
(ii) Possible effects on trade;
(iii) Potential environmental implications; and
(iv) The total quantity of unexpended production allowances held by U.S. entities.
(5) Notice of trade. If the request meets the requirement of paragraph (c)(2) of this section for trades from Parties and paragraphs (c)(3) and (4) of this section for trades to Parties, the Administrator will issue the person a notice. The notice will either grant or deduct production allowances or export production allowances or Article 5 allowances and specify the control period to which the trade applies. The Administrator may disapprove the trade request contingent on the consideration of factors listed in paragraph (c)(4) of this section for trades to Parties.
(i) For trades from a Party, the Administrator will issue a notice revising the allowances held by the recipient of the trade to equal the unexpended production allowances, unexpended export production allowances, or unexpended Article 5 allowances held by the recipient of the trade under this subpart plus the quantity of allowable production traded from the Party.
(ii) For trades to a Party, the Administrator will issue a notice revising the production limit for the trader to equal the lesser of:
(A) The unexpended production allowances, unexpended export production allowances or unexpended Article 5 allowances held by the trade or minus the quantity traded; or
(B) The unexpended production allowances held by the trader minus the amount by which the U.S. average annual production of the class II controlled substance being traded for the three years prior to the trade is less than the total allowable production of that class II controlled substance under this subpart minus the amount traded; or
(C) The total U.S. allowable production of the class II controlled substance being traded minus the three-year average of the actual annual U.S. production of the class II controlled substance prior to the control period of the trade.
(6) Revised notices of production limits for subsequent traders. If after one person obtains approval of a trade of allowable production of a class II controlled substance to a Party and other persons obtain approval for trades of the same class II controlled substance during the same control period, the Administrator will issue revised notices. The notices will revise the production limits for each of the other persons trading to equal the lesser of:
(i) The unexpended production allowances, unexpended export production allowances or unexpended Article 5 allowances held by the trader under this subpart minus the quantity traded; or
(ii) The result of the following set of calculations:
(A) The total U.S. allowable production of the class II controlled substance minus the three-year average of the actual annual U.S. production of the class II controlled substance prior to the control period of the trade;
(B) The quantity traded divided by the total quantity traded by all the other persons trading the same class II controlled substance in the same control period;
(C) The result of paragraph (c)(6)(ii)(A) of this section multiplied by the result of paragraph (c)(6)(ii)(B) of this section;
(D) The quantity derived in paragraph (c)(6)(i) of this section, minus the result of paragraph (c)(6)(ii)(C) of this section;
(7) Production limit for previous traders. The Administrator will also issue a notice revising the production limit for each trader who previously obtained approval of a trade of the class II controlled substance to a Party in the same control period to equal the result of the following set of calculations:
(i) The total U.S. allowable production of the class II controlled substance minus the three-year average of the actual annual U.S. production of the class II controlled substance prior to the control period of the trade;
(ii) The quantity traded by the person divided by the quantity traded by all the persons who have traded that class II controlled substance in that control period;
(iii) The result of paragraph (c)(7)(i) of this section multiplied by the result of paragraph (c)(7)(ii) of this section.
(iv) The unexpended production allowances, unexpended export production allowances or unexpended Article 5 allowances held by the person plus the result of paragraph (c)(7)(iii) of this section;
(8) Effective date of revised production limits. The change in production allowances, export production allowances or Article 5 allowances will be effective on the date that the notice is issued.
§ 82.19   Apportionment of baseline consumption allowances for class II controlled substances.
The following persons are apportioned baseline consumption allowances for HCFC-22, HCFC-142b, HCFC-123, HCFC-124, HCFC-225ca, and HCFC-225cb as set forth in the following table:
§ 82.20   Availability of consumption allowances in addition to baseline consumption allowances for class II controlled substances.
(a) A person may obtain at any time during the control period, in accordance with the provisions of this section, consumption allowances equivalent to the quantity of class II controlled substances that the person exported from the United States and its territories to a foreign state in accordance with this section, when that quantity of class II controlled substance was produced in the U.S. or imported into the United States with expended consumption allowances. Both the export of the class II controlled substance and the request for additional consumption allowances must occur during a calendar year in which consumption allowances were issued for that class II controlled substance.
(1) The exporter must submit to the Administrator a request for consumption allowances setting forth the following:
(i) The identities and addresses of the exporter and the recipient of the exports;
(ii) The exporter's Employer Identification Number;
(iii) The names and telephone numbers of contact persons for the exporter and the recipient;
(iv) The quantity (in kilograms) and type of class II controlled substances reported;
(v) The source of the class II controlled substances and the date purchased;
(vi) The date on which, and the port from which, the class II controlled substances were exported from the U.S. or its territories;
(vii) The country to which the class II controlled substances were exported;
(viii) A copy of the bill of lading and the invoice indicating the net quantity (in kilograms) of class II controlled substances shipped and documenting the sale of the class II controlled substances to the purchaser;
(ix) The commodity codes of the class II controlled substances reported; and
(x) A written statement from the producer that the class II controlled substances were produced with expended allowances or a written statement from the importer that the class II controlled substances were imported with expended allowances.
(2) The Administrator will review the information and documentation submitted under paragraph (a)(1) of this section and will issue a notice.
(i) The Administrator will determine the quantity of class II controlled substances that the documentation verifies was exported and issue consumption allowances equivalent to the quantity of class II controlled substances that were exported.
(A) The grant of the consumption allowances will be effective on the date the notice is issued.
(B) The consumption allowances will be granted to the person the exporter indicates, whether it is the producer, the importer, or the exporter.
(ii) The Administrator will issue a notice that the consumption allowances are not granted if the Administrator determines that the information and documentation do not satisfactorily substantiate the exporter's claims.
(b) International trades of consumption allowances. (1) A person may increase its consumption allowances for a specified control period through trades with another Party to the Protocol as set forth in this paragraph (b). A person may only receive consumption from Poland or Norway, or both, and only if the nation agrees to trade to the person for the current control period some quantity of consumption that the nation is permitted under the Montreal Protocol.
(2) Trade from a Party—Information requirements. A person must submit the following information to the Administrator:
(i) A signed document from the principal diplomatic representative in the Polish or Norwegian embassy in the U.S. stating that the appropriate authority within that nation will establish or revise consumption limits for the nation to equal the lowest of the following three consumption quantities:
(A) The maximum consumption that the nation is allowed under the Protocol minus the quantity (in kilograms) traded;
(B) The maximum consumption that is allowed under the nation's applicable domestic law minus the quantity (in kilograms) traded; or
(C) The average of the nation's actual consumption level for the three years prior to the trade minus the consumption traded.
(ii) A person requesting a consumption trade from Poland or Norway must also submit to the Administrator a true copy of the document that sets forth the following:
(A) The identity and address of the person;
(B) The identity of the Party;
(C) The names and telephone numbers of contact persons for the person and for the Party;
(D) The chemical type and quantity (in kilograms) of consumption being traded;
(E) Documentation that the Party possesses the necessary quantity of unexpended consumption rights;
(F) The control period(s) to which the trade applies; and
(3) Notice of trade. If the request meets the requirement of paragraph (b)(2) of this section for trades from Parties, the Administrator will issue the person a notice. The notice will grant consumption allowances and specify the control period to which the trade applies. The Administrator may disapprove the trade request if it does not meet the requirements of paragraph (b)(2) of this section.
(4) Trade from a Party. The Administrator will issue a notice revising the allowances held by the recipient of the trade to equal the unexpended consumption allowances held by the recipient of the trade under this subpart plus the quantity of allowable consumption traded from the Party.
(5) Effective date of revised consumption limits. The change in consumption allowances will be effective on the date that the notice is issued.
§§ 82.21-82.22   [Reserved]
§ 82.23   Transfers of allowances of class II controlled substances.
(a) Inter-company transfers. Effective January 1, 2003, a person (“transferor”) may transfer to any other person (“transferee”) any quantity of the transferor's class II consumption allowances, production allowances, export production allowances, or Article 5 allowances for the same type of allowance as follows:
(i) The transferor must submit to the Administrator a transfer claim setting forth the following:
(A) The identities and addresses of the transferor and the transferee;
(B) The name and telephone numbers of contact persons for the transferor and the transferee;
(C) The type of allowances being transferred, including the names of the class II controlled substances for which allowances are to be transferred;
(D) The quantity (in kilograms) of allowances being transferred;
(E) The control period(s) for which the allowances are being transferred;
(F) [Reserved]
(G) For trades of consumption allowances, production allowances, export production allowances, or Article 5 allowances, the quantity of the 0.1 percent offset applied to the unweighted quantity traded that will be deducted from the transferor's allowance balance.
(ii) The Administrator will determine whether the records maintained by EPA indicate that the transferor possesses unexpended allowances sufficient to cover the transfer claim on the date the transfer claim is processed. The transfer claim is the quantity (in kilograms) to be transferred plus 0.1 percent of that quantity. The Administrator will take into account any previous transfers, any production, and allowable imports and exports of class II controlled substances reported by the transferor. Within three working days of receiving a complete transfer claim, the Administrator will take action to notify the transferor and transferee as follows:
(A) The Administrator will issue a notice indicating that EPA does not object to the transfer if EPA's records show that the transferor has sufficient unexpended allowances to cover the transfer claim. In the case of transfers of production or consumption allowances, EPA will reduce the transferor's balance of unexpended allowances by the quantity to be transferred plus 0.1 percent of that quantity. In the case of transfers of export production or Article 5 allowances, EPA will reduce the transferor's balance of unexpended allowances, respectively, by the quantity to be transferred plus 0.1 percent of that quantity. The transferor and the transferee may proceed with the transfer when EPA issues a no objection notice. However, if EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor and transferee, where applicable, will be held liable for any knowing violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.
(B) The Administrator will issue a notice disallowing the transfer if EPA's records show that the transferor has insufficient unexpended allowances to cover the transfer claim, or that the transferor has failed to respond to one or more Agency requests to supply information needed to make a determination. Either party may file a notice of appeal, with supporting reasons, with the Administrator within 10 working days after receipt of notification. The Administrator may affirm or vacate the disallowance. If no appeal is taken by the tenth working day after notification, the disallowance shall be final on that day.
(iii) The transferor and transferee may proceed with the transfer if the Administrator does not respond to a transfer claim within the three working days specified in paragraph (a)(1)(ii) of this section. In the case of transfers of production or consumption allowances, EPA will reduce the transferor's balance of unexpended allowances by the quantity to be transferred plus 0.1 percent of that quantity. In the case of transfers of export production allowances or Article 5 allowances, EPA will reduce the transferor's balance of unexpended allowances by the quantity to be transferred plus 0.1 percent of that quantity. If EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor and/or the transferee, where applicable, will be held liable for any knowing violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.
(b) Inter-pollutant transfers. (1) Effective January 1, 2003, a person (transferor) may convert consumption allowances, production allowances or Article 5 allowances for one class II controlled substance to the same type of allowance for another class II controlled substance listed in appendix B of this subpart, following the procedures described in paragraph (b)(3) of this section.
(i) A person (transferor) may only convert allowances for one class II controlled substance for which EPA has issued allowances under § 82.16 to another class II controlled substance for which EPA has issued allowances under § 82.16.
(ii) [Reserved]
(2) Inter-pollutant transfers will be permitted at any time during the control period and during the 30 days after the end of a control period.
(3) The transferor must submit to the Administrator a transfer claim that includes the following:
(i) The identity and address of the transferor;
(ii) The name and telephone number of a contact person for the transferor;
(iii) The type of allowances being converted, including the names of the class II controlled substances for which allowances are to be converted;
(iv) The quantity (in kilograms) and type of allowances to be converted;
(v) The quantity (in kilograms) of allowances to be subtracted from the transferor's unexpended allowances for the first class II controlled substance, to be equal to 100.1 percent of the quantity of allowances converted;
(vi) The quantity (in kilograms) of allowances to be added to the transferee's unexpended allowances for the second class II controlled substance, to be equal to the quantity (in kilograms) of allowances for the first class II controlled substance being converted multiplied by the quotient of the ozone depletion potential of the first class II controlled substance divided by the ozone depletion potential of the second class II controlled substance, as listed in Appendix B to this subpart;
(vii) The control period(s) for which the allowances are being converted; and
(viii) The quantity (in kilograms) of unexpended allowances of the type and for the control period being converted that the transferor holds under authority of this subpart as of the date the claim is submitted to EPA.
(4) The Administrator will determine whether the records maintained by EPA indicate that the convertor possesses unexpended allowances sufficient to cover the transfer claim on the date the transfer claim is processed ( i.e., the quantity (in kilograms) to be converted plus 0.1 percent of that quantity (in kilograms)). EPA will take into account any previous transfers, and any production, imports (not including transshipments or used class II controlled substances), or exports (not including transhipments or used class II controlled substances) of class II controlled substances reported by the convertor. Within three working days of receiving a complete transfer claim, the Administrator will take action to notify the convertor as follows:
(i) The Administrator will issue a notice indicating that EPA does not object to the transfer if EPA's records show that the convertor has sufficient unexpended allowances to cover the transfer claim. EPA will reduce the transferor's balance of unexpended allowances by the quantity to be converted plus 0.1 percent of that quantity (in kilograms). When EPA issues a no objection notice, the transferor may proceed with the transfer. However, if EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.
(ii) The Administrator will issue a notice disallowing the transfer if EPA's records show that the transferor has insufficient unexpended allowances to cover the transfer claim, or that the transferor has failed to respond to one or more Agency requests to supply information needed to make a determination. The transferor may file a notice of appeal, with supporting reasons, with the Administrator within 10 working days after receipt of notification. The Administrator may affirm or vacate the disallowance. If no appeal is taken by the tenth working day after notification, the disallowance shall be final on that day.
(iii) The transferor may proceed with the transfer if the Administrator does not respond to a transfer claim within the three working days specified in paragraph (b)(4) of this section. EPA will reduce the transferor's balance of unexpended allowances by the quantity (in kilograms) to be converted plus 0.1 percent of that quantity (in kilograms). The transferor will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer if EPA ultimately finds that the transferor did not have sufficient unexpended allowances or credits to cover the claim.
(c) Inter-company transfers and Inter-pollutant transfers. If a person requests an inter-company transfer and an inter-pollutant transfer simultaneously, the quantity (in kilograms) subtracted from the transferor's unexpended production or consumption allowances for the first class II controlled substance will be equal to 100.1 percent of the quantity (in kilograms) of allowances that are being converted and transferred.
(d) Permanent transfers. The procedures in paragraph (a) of this section apply to permanent inter-company transfers of baseline production allowances or baseline consumption allowances. A person receiving a permanent transfer of baseline production allowances or baseline consumption allowances (the transferee) for a specific class II controlled substance will be the person who has their baseline allowances adjusted in accordance with phaseout schedules in this subpart. No person may conduct permanent inter-pollutant transfers of baseline production allowances or baseline consumption allowances.