41626 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 82

[FRL–6129–2]

RIN 2060–AG48

Protection of Stratospheric Ozone:

Reconsideration of Petition Criteria

and Incorporation of Montreal Protocol

Decisions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: With this action, EPA is

revising the accelerated phaseout

regulation that governs the production,

import, export, transformation and

destruction of substances that deplete

the ozone layer under the authority of

Sections 602, 604, 605, 606, and 614 of

Title VI of the Clean Air Act

Amendments of 1990 (CAA or the Act).

Today’s amendments reflect changes in

U.S. obligations under the Montreal

Protocol on Substances that Deplete the

Ozone Layer (Protocol) due to recent

amendments and decisions by signatory

countries to this international

agreement. Additionally, in response to

a petition submitted to EPA, the Agency

is removing the requirement in the

petition process for imports of used

class I controlled substances that a

person must certify knowledge of tax

liability. Other amendments are

designed to ease the burden on affected

companies while continuing to ensure

compliance with Title VI of the CAA

and meet U.S. obligations under the

Protocol.

DATES: This rule will become effective

October 5, 1998 without further notice

unless the Agency receives relevant

adverse comment by September 3, 1998.

Should the agency receive such

comments, it will publish a timely

withdrawal informing the public that

this rule will not take effect. If a public

hearing is requested, the comment

period will end 30 days after the date of

the public hearing, in which case, EPA

will publish a document in the Federal

Register announcing the hearing

information and the extended comment

period.

ADDRESSES: Comments on this

rulemaking should be submitted in

duplicate (two copies) to: Air Docket

No. A–92–13, U.S. Environmental

Protection Agency, 401 M Street, SW,

Room M–1500, Washington, DC 20460.

Inquiries regarding a public hearing

should be directed to the Stratospheric

Ozone Protection Hotline at 1–800–269–

1996.

Materials relevant to this rulemaking

are contained in Docket No. A–92–13.

The Docket is located in room M–1500,

First Floor, Waterside Mall at the

address above. The materials may be

inspected from 8 a.m. until 4 p.m.

Monday through Friday. A reasonable

fee may be charged by EPA for copying

docket materials.

FOR FURTHER INFORMATION CONTACT: Tom

Land, U.S. Environmental Protection

Agency, Stratospheric Protection

Division, Office of Atmospheric

Programs, 6205J, 401 M Street, SW.,

Washington, DC 20460, 202–564–9185.

SUPPLEMENTARY INFORMATION: The EPA

is revising the accelerated phaseout

regulation as a direct final rule without

prior proposal because the Agency

views these revisions as

noncontroversial and anticipates no

relevant adverse comments. The EPA is

also publishing a companion proposed

rule to this direct final rule in this issue

of the Federal Register to serve as the

proposal should adverse comments be

filed on provisions of the direct final

rule. Should the Agency receive

relevant adverse comment on the direct

final rule, it will publish a timely

withdrawal informing the public that

the rule will not take effect. The EPA

will not institute a second comment

period on this rule. Any parties

interested in commenting on these

revisions to 40 CFR part 82, subpart A

should do so at this time.

Relevant adverse comment will be

addressed in a subsequent final

rulemaking document.

Table of Contents

I. Background

II. Revisions to the Stratospheric Ozone

Protection Program

A. Amendments to § 82.3—Definitions

1. Adding a Definition for the Term

‘‘Confer’’ that Pertains to Essential-Use

Allowances

2. Adding Destruction Technologies to the

List of Those Approved in the Definition

of Destruction

3. Simplifying the Definition of ‘‘Importer’’

4. Adding a Definition for the Phrase

‘‘Source Facility’’ that Pertains to the

Petition Process for Imports of Used

Controlled Substances

5. Clarifying the Definition of

Transhipment

B. Amendments to § 82.4—Prohibitions

1. Licensing System for Imports and

Exports of Listed Controlled

Substances—both Newly Manufactured

and Previously Used

2. Control of Exported Products that Rely

on Class I Controlled Substances for their

Continuing Functioning to Article 5

Parties

3. Prohibit Imports and Exports of HBFCs

from or to Non-Parties to the Protocol

4. Application Process for Exemptions to

the HCFC Phaseout for Specific National

Security Uses

5. Simplify Procedure for Apportioning

Essential-Use Allowances and EssentialUse Exemptions through a Notice

6. Prohibit Import of Class I Controlled

Substances for Essential-Uses Except by

Companies Allocated Essential-Use

Allowances

C. Amendments to § 82.9—Availability of

Production Allowances in Addition to

Baseline Production Allowances

1. Clarification of Increases or Decreases of

Article 5 Allowances due to

International Transfers

D. Amendments to § 82.12—Transfers

1. Increases or Decreases of Essential-Use

Allowances due to Emergency

International Transfers

E. Amendments to § 82.13—Recordkeeping

and Reporting Requirements

1. Removal of Producer Requirement to

Report the Quantity of Used Material

Received that Contains Recycled or

Reclaimed Controlled Substances

2. Add to the Producer Recordkeeping and

Reporting Requirements the Need to

Maintain and Submit a Certification that

a Quantity of Class I Controlled

Substance will be used as a Process

Agent.

3. Clarify the Need for Letters that Confer

Essential-Use Allowances and

Destruction and Transformation Credits

to Producers and that these Letters be

Submitted with Producer’s Quarterly

Reports

4. Changes to the Petition Process for

Importing Used Class I Controlled

Substances

a. Clarification that a Petition to Import

Used Class I Controlled Substances is

Submitted for One Individual Shipment

b. Changing the de minimis Quantity for an

Individual Shipment for which a Person

is Required to Submit a Petition to

Import Used Class I Controlled

Substances

c. Revised and Expanded Information

Requirements for a Petition to Import

Used Class I Controlled Substances

d. Removal of the Information Requirement

regarding the Tax for People Petitioning

to Import Used Class I Controlled

Substances

e. Clarification of the Timing for EPA

Review of a Petition

f. Clarification of Reasons for Disallowing

Petitions to Import Used Class I

Controlled Substances

g. Requirement that the Petition and the

Non-Objection Letter from EPA for the

Import of Used Class I Controlled

Substances Accompany the Shipment

through U.S. Customs Clearance

5. Requirement that Importers of

Controlled Substances and Used

Controlled Substances use the

Harmonized Commodity Codes in this

Regulation in completing Customs Entry

Documents

6. Modify the Requirement for a Sales

Contract that Certifies Exported

Controlled Substances will be

Transformed or Destroyed
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41627

1Several revisions to the original 1988 rule were

issued on the following dates: February 9, 1989 (54

FR 6376), April 3, 1989 (54 FR 13502), July 5, 1989

(54 FR 28062), July 12, 1989 (54 FR 29337),

February 13, 1990 (55 FR 5005), June 15, 1990 (55

FR 24490) and June 22, 1990 (55 FR 25812) July 30,

1992 (57 FR 33754), and December 10, 1993 (58 FR

65018).

7. Applying the Recordkeeping and

Reporting Requirements to Material

obtained from Importers as well as

Producers for a Person that Transforms

or Destroys Class I Controlled Substances

8. Changes to the Recordkeeping and

Reporting Requirements for Entities

Allocated Essential-Use Allowances

9. Changes to the Reporting Requirement

for Distributors of Laboratory Supplies

under the Global Laboratory Essential

Use Exemption

III. Miscellaneous Additional Changes

IV. Summary of Supporting Analysis

A. Unfunded Mandates Reform Act

B. Regulatory Flexibility

C. Executive Order 12866

D. Applicability of E.O. 13045—Children’s

Health Protection

E. Paperwork Reduction Act

F. Executive Order 12875

G. Submission to Congress and the General

Accounting Office

I. Background

The current regulatory requirements

of the Stratospheric Ozone Protection

Program that limit production and

consumption of ozone-depleting

substances were promulgated by the

Environmental Protection Agency (EPA

or the Agency) in the Federal Register

on May 10, 1995 (60 FR 24970) and on

December 20, 1994 (59 FR 65478). The

regulatory program was originally

published in the Federal Register on

August 12, 1988 (53 FR 30566), in

response to the 1987 signing of the

Montreal Protocol on Substances that

Deplete the Ozone Layer (Protocol).1

The U.S. was one of the original

signatories to the 1987 Montreal

Protocol and the U.S. ratified the

Protocol on April 4, 1988. Congress then

enacted, and President Bush signed into

law, the Clean Air Act Amendments of

1990 (CAA or the Act) that included

Title VI on Stratospheric Ozone

Protection. Today’s actions amend the

existing EPA regulations published

under Sections 604, 605, 606 and 614 of

the CAA governing the production and

consumption of ozone-depleting

substances. Today’s amendments are

designed to ensure the U.S. meets its

obligations under the Protocol and the

CAA.

EPA derives its authority for today’s

action from sections 602, 604, 605, 606,

and 614 of the CAA. Many of today’s

changes are made to reflect adjustments

or amendments to the Protocol or

decisions taken by the Parties to the

Protocol at their meetings from 1995

through 1997. EPA is acting in

accordance with section 614 of the CAA

in amending the regulations to reflect

these changes. Section 614 of the CAA

states that Title VI of the Act ‘‘shall be

construed, interpreted, and applied as a

supplement to the terms and conditions

of the Montreal Protocol, as provided in

Article 2, paragraph 11 thereof, and

shall not be construed, interpreted, or

applied to abrogate the responsibilities

of obligations of the United States to

implement fully the provisions of the

Montreal Protocol. In the case of conflict

between any provision of [Title VI of the

CAA] and any provision of the Montreal

Protocol, the more stringent provision

shall govern.’’ Section 606 of the CAA

allows EPA to accelerate the phaseout

schedules found in sections 604 and 605

of the Act.

Today’s action adjusts the regulatory

framework promulgated under section

606, while retaining the accelerated

phaseout dates. The changes in today’s

action are made to close loopholes in

existing regulatory language, to ease the

burden on the regulated community, to

clarify existing requirements and to

lessen EPA’s administrative burden in

implementing the Allowance Program

(the Program).

The requirements contained in the

final rules published in the Federal

Register on May 10, 1995 and December

20, 1994 establish an Allowance

Program. The Program and its history

are described in the notice of proposed

rulemaking (NPRM) published in the

Federal Register on November 10, 1994

(59 FR 56276). The control and the

phaseout of production and

consumption of ozone-depleting

substances as required under the

Protocol and CAA are accomplished

through the Allowance Program.

In developing the Allowance Program,

EPA collected information on the

amounts of ozone-depleting substances

produced, imported, exported,

transformed and destroyed within the

United States for specific baseline years

for specific chemicals. This information

was used to establish the U.S.

production and consumption ceilings

for these chemicals. The data were also

used to assign company-specific

production and import rights to

companies that were in most cases

producing or importing during the

specific year of data collection. These

production or import rights are called

‘‘allowances.’’ Due to the complete

phaseout of many of the ozonedepleting chemicals, the quantities of

production allowances and

consumption allowances granted to

companies for those chemicals were

gradually reduced and eventually

eliminated. Production allowances and

consumption allowances continue to

exist for only one specific class I

controlled ozone-depleting substance—

methyl bromide. All other production or

consumption of class I controlled

substances is prohibited under the

Protocol and the CAA, but for a few

narrow exemptions.

In the context of the regulatory

program, the use of the term

consumption may be misleading.

Consumption does not mean the ‘‘use’’

of a controlled substance, but rather is

defined as production plus imports

minus export of controlled substances

(Article 1 of the Protocol and Section

601 of the CAA). Class I controlled

substances that were produced or

imported through the expenditure of

allowances prior to their phaseout date

can continue to be used by industry and

the public after that specific chemical’s

phaseout under these regulations,

unless otherwise precluded under

separate regulations.

The specific names and chemical

formulas for the controlled ozonedepleting substances in the Groups of

class I controlled substances are in

Appendix A and Appendix F in Subpart

A of 40 CFR part 82. The specific names

and chemical formulas for the class II

controlled ozone-depleting substances

are in Appendix B and Appendix F in

Subpart A.

Although the regulations phased out

the production and consumption of

class I, Group II (halons) on January 1,

1994, and all other class I controlled

substances (except methyl bromide) on

January 1, 1996, a very limited number

of exemptions exist, consistent with

U.S. obligations under the Protocol. The

regulations allow for the manufacture of

phased-out class I controlled

substances, provided the substances are

either transformed, or destroyed. (40

CFR 82.4(b)) They also allow limited

manufacture if the substances are (1)

exported to countries listed under

Article 5 of the Protocol, (2) produced

for essential uses as authorized by the

Protocol and the regulations, or (3)

produced with destruction or

transformation credits. (40 CFR 82.4 (b))

The regulations allow import of

phased-out class I controlled substances

provided the sources are either

transformed or destroyed. (40 CFR

82.4(d)) Limited exceptions to the ban

on the import of phased-out class I

controlled substances also exist if the

substances are: (1) previously used, (2)

imported for essential uses as

authorized by the Protocol and the

regulations, or (3) a transhipment or a

heel. (40 CFR 82.4(d))
41628 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

II. Revisions to the Stratospheric Ozone

Protection Program

A. Amendments to § 82.3—Definitions

1. Adding a Definition for the Term

‘‘Confer’’ That Pertains to Essential-Use

Allowances

EPA is adding a definition for the

term ‘‘confer’’ to reflect wording already

in the current regulatory text as

published in the Federal Register on

May 10, 1995 (60 FR 24970). Section

82.4(b) currently includes references to

‘‘conferred unexpended essential-use

allowances’’ and ‘‘conferred

unexpended destruction and

transformation credits.’’ The preamble

to the final rule published in the

Federal Register on May 10, 1995

described how the holder of essentialuse allowances could confer those

unexpended essential-use allowances to

a producer or importer. (60 FR at

24976.) The preamble to the May 10,

1995 final rule also described how the

holder of destruction and

transformation credits could confer the

right to produce or import under the

credits to a producer or importer. (60 FR

at 24973–24974.) EPA is adding a

definition to § 82.3 that ‘‘confer means

to shift the rights obtained under

§ 82.4(t) for essential-use allowances

from the holder of the unexpended

essential-use allowance to a person for

the production of a specified controlled

substance, or to shift the rights obtained

under § 82.9(f) for destruction and

transformation credits from the holder

of the unexpended destruction and

transformation credits to a person for

the production of a specified controlled

substance.’’

2. Adding Destruction Technologies to

the List of Those Approved in the

Definition of Destruction

EPA is adding two new approved

destruction processes to the list of

technologies currently appearing in the

regulation under the definition of

destruction (60 FR 24970, 24987; 40

CFR 82.3). The Parties to the Montreal

Protocol at the Seventh Meeting in 1995

decided to include radio frequency

plasma destruction in the list of

approved technologies. The Protocol’s

Technology and Economic Assessment

Panel (TEAP) reviewed test results from

the technology’s operation and verified

that radio frequency plasma destruction

meets the suggested minimum emission

standards approved by the Parties

(Decision IV/11). EPA believes that the

technical review and recommendation

by the TEAP of radio frequency plasma

destruction and the subsequent

approval by the Parties to the Protocol

warrants today’s inclusion of the

technology in the list of approved

destruction processes found under the

definition of destruction in § 82.3 (60 FR

24970).

EPA is also adding, solely for the

destruction of foams, the limited

inclusion of municipal solid waste

incinerators in the list of approved

technologies in the definition of

destruction currently found in § 82.3 of

the regulation (60 FR 24970, 24987).

The Parties to the Montreal Protocol at

the Fifth Meeting in 1993 decided to

include municipal solid waste

incinerators in the list of approved

technologies, but only for the

destruction of foams containing ozonedepleting substances. The TEAP

reviewed the test results from the

operation of municipal solid waste

incinerators for the destruction of foams

that contain ozone-depleting substances

and verified that the technology meets

the suggested minimum emission

standards approved by the Parties at the

Fourth Meeting (Decision IV/11). EPA

believes that the technical review and

recommendation by the TEAP of

municipal solid waste incinerators for

the destruction of foams that contain

ozone-depleting substances and the

subsequent approval by the Parties to

the Protocol warrants today’s inclusion

of the technology in the list of approved

destruction technologies found under

the definition of destruction in § 82.3

(60 FR 24970, 24987).

3. Simplifying the Definition of

‘‘Importer’’

EPA is simplifying the definition of

‘‘importer’’ for enforcement purposes.

Over the past few years, EPA has

worked with an inter-agency taskforce

of other Federal Agencies to enforce

against the illegal import of banned

class I controlled substances. Members

of the inter-agency taskforce include

EPA, the Department of Justice, the U.S.

Customs Service, the Internal Revenue

Service, the Department of State, and

other interested agencies. Enforcement

personnel from taskforce agencies have

discovered difficulties in working with

the definition of importer listed in the

May 10, 1995 final rule (60 FR 24988)

in building cases against illegal

importers due to ambiguities about who

ultimately is responsible. Thus,

enforcement officials from EPA and

other taskforce agencies suggested that

EPA simplify the definition of the term

‘‘importer’’ to eliminate ambiguities and

to make it easier to enforce. EPA is

simplifying the definition of ‘‘importer’’

to be ‘‘the importer of record listed on

U.S. Customs Service forms for

imported controlled substances, used

controlled substances or controlled

products.’’

4. Adding a Definition for the Phrase

‘‘Source Facility’’ That Pertains to the

Petition Process for Imports of Used

Controlled Substances

EPA is adding a definition to § 82.3

for the term ‘‘source facility.’’ The term

‘‘source’’ was included in the regulatory

text of § 82.13(g)(2)(iii) regarding

petitions to import used class I

controlled substances but was not

defined in § 82.3 of the final rule

published in the Federal Register on

May 10, 1995 (60 FR 24970). As

explained in the preamble to the May

10, 1995 final rule, the intent of the

petition process is to allow EPA to

independently verify whether a class I

controlled substance is, in fact,

previously used. EPA established the

petition process because quantities of

class I controlled substances were

entering the U.S. mis-identified as

‘‘used’’ when they were, in fact, newly

produced ozone-depleting chemicals.

Under the Protocol, trade in previously

used controlled substances is permitted

even after the phaseout dates. To

independently verify that a quantity of

class I controlled substance was

previously used, EPA needs detailed

information about the source facility

from which the material was recovered.

EPA discovered that companies

petitioning to import used class I

controlled substances under the current

requirements need clarification of the

term ‘‘source facility’’ so that they can

submit complete information to allow

independent verification. In distributing

information about the petition process,

EPA has clarified that source facility

means the exact location from which a

used controlled substance was

recovered from a piece of equipment,

including the name of the company

responsible for, or owning the location,

a contact person at the location, the

mailing address for that specific

location, as well as a phone number and

a fax number for the contact person at

the location. In choosing this definition

for the term ‘‘source facility,’’ EPA

considered whether it was sufficiently

clear for a person wishing to submit a

petition to import used class I

controlled substances as well as for EPA

to independently verify that the

quantity of material cited in the petition

was, in fact, previously used.

5. Clarifying the Definition of

Transhipment

In today’s action, EPA would like to

clarify the definition of ‘‘transhipment’’

of controlled substances and make the

distinction between a transhipment and
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41629

an import that is subsequently reexported. The first discussion of

transhipment appeared in the proposed

rulemaking published in the Federal

Register on March 18, 1993 (58 FR

15014, 15044). The March 18, 1993

proposed rulemaking raised the issue of

transhipments pursuant to Decision IV/

14 of the Fourth Meeting of the Parties,

which addressed transhipments of bulk

substances from the country of origin,

through a third country, to the country

of final destination. Decision IV/14 of

the Parties to the Protocol clarifies that

transhipments are not included in the

third country’s calculation of

consumption. Recall that consumption

means production plus imports minus

exports.

The December 10, 1993 final

rulemaking defined ‘‘transhipment’’ as

‘‘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.’’ (58 FR 65018, 65064).

The clarifying phrase ‘‘as long as the

shipment does not enter into United

States jurisdiction’’ was added on May

10, 1995 (60 FR 24970, 24983).

Re-packaging a shipment that is

passing through the United States

would make it an import and a

subsequent export under the provisions

of the Montreal Protocol. Such a

shipment would count toward the

United States’ calculation of its level of

consumption. As an Article 2 country

under the Montreal Protocol, the United

States is obligated to have a calculated

level of consumption equal to zero for

all class I controlled substances (except

those substances in Group VI, like

methyl bromide, which are on a

different phaseout schedule). Any repackaging of shipments of class I

controlled substances moving through

the United States could therefore be a

violation of the United States’

obligations under the Protocol. Thus,

EPA is adopting a definition of

transhipment that does not permit a

shipment to be re-packaged. The current

definition distinguishes between a

transhipment and a shipment that is

imported, re-packaged and then

exported, by using the phrase,

‘‘continuous shipment.’’ A continuous

shipment enters and leaves the United

States and is not repackaged or

manipulated in any manner before it

exits for its final destination. In the

context of U.S. Customs regulations (19

CFR § 123 and § 19 CFR 19), the term

‘‘manipulation’’ has a specific meaning

regarding whether a shipment is to be

‘‘cleaned, sorted, repacked or otherwise

changed in condition’’ as it travels in

transit through United States

jurisdiction. In today’s action, EPA is

stating that a transhipment as defined

under this Subpart cannot be repackaged, sorted, or otherwise changed

in condition.

In conjunction with the clarification

of the definition of transhipment

proposed in the Federal Register on

November 20, 1994 (59 FR 56276), EPA

discussed re-packaging of controlled

substances during transhipments. The

discussion was prompted by concerns of

a company that brings large quantities of

a controlled substance in tank ships that

are unloaded to on-shore tanks in the

United States. The quantities of

controlled substance put into these onshore tanks are loaded directly onto

other ships bound for foreign

destinations. EPA does not consider the

unloading of a controlled substance

from a tank ship directly into a large

receiving tank for eventual re-loading

onto another tank ship to be repackaging. When the controlled

substance is directly unloaded from a

ship into an on-shore tank and then

directly loaded from that same tank onto

a different ship the package for the

controlled substance does not change

while it is within the United States

jurisdiction, and therefore is not repackaged. In contrast, when a controlled

substance is unloaded from a ship onto

a dock in the United States in, for

example, a 1-ton ISO tank and the

controlled substance is transferred from

the 1-ton ISO tank to either smaller or

larger containers, it is considered to be

re-packaged. EPA does not consider the

transfer of controlled substances

between ships in U.S. ports to be repackaging.

EPA is continuing to exempt

transhipments from the limits and

requirements set forth in the

prohibitions of § 82.4. Transhipments

do not include imports where any form

of re-packaging occurs for a shipment of

controlled substance as it moves

through the United States or its

territories before it is exported to a

foreign country. In the final rule

published in the Federal Register on

May 10, 1995, EPA decided against

broadening the definition of

transhipment to allow re-packaging.

EPA believes that re-packaging of

controlled substances coming from a

foreign state of origin, moving through

the United States or its territories,

bound for a final destination in another

foreign state renders the controlled

substance an import for purposes of the

Montreal Protocol. Today’s action

clarifies the meaning of the definition of

transhipment vis-a`-vis re-packaging and

corrects the grammar in the current

definition to read, ‘‘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.’’

B. Amendments to § 82.4—Prohibitions

1. Licensing Imports and Exports of

Listed Controlled Substances—Both

Newly Manufactured and Previously

Used

EPA believes that current regulatory

requirements can be used to satisfy the

United States’ obligation to establish a

licensing system for imports and exports

of new and used controlled substances,

in accordance with a recent amendment

to the Montreal Protocol. At the Ninth

Meeting of the Parties to the Protocol

(1997, Montreal), the Parties agreed to

amend Article 4, with the addition of

section B. Paragraph 1 of Article 4B

reads: ‘‘Each Party shall, by 1 January

2000 or within three months of the date

of entry into force of this Article for it,

whichever is the later, establish and

implement a system for licensing the

import and export of new, used,

recycled and reclaimed controlled

substances in Annexes A, B, C and E.’’

Under paragraph 3 of Article 4B, each

Party is obligated to report to the Ozone

Secretariat ‘‘within three months of the

date of introducing its licensing

system.’’

EPA wishes to address this change to

Article 4B to ensure compliance with

the Protocol and the CAA. Section

614(b) of the CAA states, ‘‘[t]his title as

added by the Clean Air Act

Amendments of 1990 shall be

construed, interpreted, and applied as a

supplement to the terms and conditions

of the Montreal Protocol, as provided in

Article 2, paragraph 11 thereof, and

shall not be construed, interpreted, or

applied to abrogate the responsibilities

of obligations of the United States to

implement fully the provisions of the

Montreal Protocol.’’ Thus, today’s

discussion of the U.S. licensing system

is relevant to ensuring compliance with

both the Protocol and Title VI of the

CAA.

Under the current regulatory

framework, only companies with one of

several types of licenses are allowed to

import or export controlled substances

and used controlled substances not

exempted under § 82.4(d), and (h) of the

final rule published in the Federal

Register on May 10, 1995 (60 FR 24970).

EPA will consider holders of all type of
41630 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

allowances, credits or non-objection

notices to be holders of licenses in

accordance with U.S. obligations under

the Protocol. The types of allowances

that will be considered licenses include

production and consumption

allowances, Article 5 allowances and

essential-use allowances. The specifics

of what EPA will consider as licenses

and other types of imports and exports

exempted from licensing are discussed

below. Other systems EPA considered

for licensing imports and exports of

controlled substances are also described

below.

In implementing various provisions of

the Montreal Protocol and Title VI of the

CAA, EPA currently requires certain

types of licenses to import or export

class I controlled substances. Imports of

class I controlled substances (except

Group VI substances) are currently

banned, but for exemptions and

exceptions contained in § 82.4 of the

final rule published in the Federal

Register on May 10, 1995. The

exemptions in this rule (40 CFR Part 60

Subpart A) are permitted under the

Protocol and the CAA.

Companies allocated production and

consumption allowances in §§ 82.5 and

82.6 of the May 10, 1995 final rule for

class I, Group VI controlled substances

(i.e., methyl bromide) will be

considered holders of licenses (in the

form of allowances) for the import and

export of this specific class I controlled

substance. Companies granted essentialuse allowances under the provisions of

section 82.4(t) will also be considered

holders of licenses to import a restricted

quantity of the specific class I controlled

substance(s) during the specified control

period. Likewise, a person obtaining a

non-objection notice in response to a

petition to import used class I

controlled substances in accordance

with § 82.4(j) and § 82.13(g)(2) and (3)

will be considered the holder of a

shipment-specific import license.

The current regulations, published in

the Federal Register on May 10, 1995

(60 FR 24970), have few restrictions on

exports. The current regulations limit

the quantity of class I controlled

substances a company can produce for

export to Article 5 countries through the

allocation in § 82.9 of Article 5

allowances. Therefore, companies

allocated Article 5 allowances in § 82.9

will be considered to be holders of

licenses to export. In addition, § 82.4(k)

of the current rule (§ 82.4(l) of today’s

amendments) prohibits a person from

exporting a class I, Group I or Group II

controlled substance to a foreign state

that is a non-Party to the Protocol. This

section also prohibits the export of class

I, Group III, IV, or V substances to a

foreign state not party to the 1990

amendments to the Protocol. In Part

II.B.4 and Part II.B.5 below, EPA is

adding a prohibition on exports of class

I, Group VII controlled substances to

non-Parties in accordance with

amendments to the Protocol agreed to in

Vienna in 1995.

For class II controlled substances

(HCFCs), in accordance with the

amendment agreed to by the Parties to

the Protocol in 1997, EPA will consider

importers and exporters who submit

quarterly reports as currently required

in § 82.13(n) of Subpart A to be the

holders of import and export licenses.

EPA is adopting this approach for class

II controlled substances as a temporary

measure. The Agency will soon publish

an Advance Notice of Proposed

Rulemaking (ANPRM) that will describe

potential control measures for ensuring

U.S. consumption of class II controlled

substances remains under the cap

established under Article 2F of the

Protocol. The ANPRM will describe

options being considered for

establishing an allowance system to

control production, import and export

of class II controlled substances. At the

time EPA establishes controls through

allowances, to limit U.S. consumption

of class II controlled substances, the

allowances will be considered licenses

for imports and exports.

In developing today’s rule, EPA

considered other licensing systems,

including one that would require a

company to request a license prior to

importing class I controlled substances,

including those for exempted purposes,

such as transformation, destruction, and

heels. In addition, EPA considered a

parallel licensing system for exports that

would require a company to request a

license prior to exporting class I

controlled substances for exempted

purposes, such as transformation or

destruction. EPA believes that the 1997

amendment to Article 4 of the Protocol

that requires a ‘‘system for licensing the

import and export of new, used,

recycled and reclaimed controlled

substances’’ does not extend to

controlled substances destroyed by

approved technologies or used as

feedstocks, since these amounts are not

included in the definitions of

production or consumption under the

Protocol. EPA’s consideration of other

licensing systems included: a shipmentby-shipment approach, a quarterly

approach, a yearly approach, a quantity

specific approach, and a non-quantity

specific approach. EPA decided not to

adopt these alternative licensing

systems in order to minimize burden on

the regulated community and conserve

Agency resources.

EPA’s decision to treat existing

requirements as a licensing system in no

way relieves a person importing and

exporting controlled substances or used

controlled substances from the existing

recordkeeping and reporting

requirements in §§ 82.9 through 82.13.

2. Control of Exported Products That

Rely on Class I Controlled Substances

for Their Continuing Functioning to

Article 5 Parties

EPA is amending the regulation to

control the export of products that rely

on class I controlled substances for their

continuing functioning to Article 5

Parties, in accordance with Decision IX/

9 agreed to by the Parties to the Protocol

at the 9th Meeting in Montreal in 1997.

Decision IX/9 ‘‘recommend[s] to nonArticle 5 Parties to adopt appropriate

measures to control, in cooperation with

the importing Article 5 Parties, the

export of used products and equipment,

other than personal effects, whose

continuing functioning relies on supply

of substances listed in Annexes A and

B of the Montreal Protocol [CFCs,

halons, carbon tetrachloride, and methyl

chloroform].’’

Decision IX/9 was taken by the Parties

to the Protocol in recognition of the

concern expressed by Article 5 Parties

that CFC-technologies, and other

technologies relying on class I

controlled substances for their

continuing functioning, are

decommissioned in Article 2 Parties and

‘‘dumped’’ into their markets. Article 5

Parties have until 2010 to complete their

phaseout of production and

consumption of class I controlled

substances (except Group VI

substances). This phaseout date for

Article 5 Parties is ten (10) years after

the phaseout date originally established

for non-Article 5 Parties at the 1990

Meeting of the Parties (London

Amendments). Since 1990, the nonArticle 5 Parties have agreed to

accelerate their phaseout date for class

I controlled substances (except Group VI

substances).

Due to the existence of alternative

technologies, some Article 5 Parties

view products that rely on class I

controlled substances for their

continuing functioning as being

obsolete. Some Article 5 Parties say

exports from industrialized nations of

products that rely on class I controlled

substances foster continued dependence

on these substances and retard their

transition to non-ODS technologies.

EPA supports a speedy transition away

from class I controlled substances in

Article 5 Parties and has considered

various ways in which the U.S. can

support this transition through
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41631

restrictions and controls on exported

products whose continuing functioning

relies on class I controlled substances.

EPA has considered several methods

for implementing Decision IX/9 taken

by the Parties to the Protocol in 1997 at

the Anniversary Meeting in Montreal. It

should be noted that the phrase

‘‘continuing functioning’’ was chosen by

the Parties to refer to products that need

to be re-filled with class I controlled

substances to continue to serve their

intended purpose; the decision did not

capture other products, such as

metered-dose inhalers. In today’s action,

EPA is adding a restriction on exports

of products whose continuing

functioning relies on class I controlled

substances that will be triggered when,

and if, EPA receives a notification from

an Article 5 government that the import

of a particular type of product is

restricted and the manufacture of that

product with specified ozone-depleting

substances is banned in that Article 5

country. The relevant agency or the

consulate of the Article 5 Party must

provide EPA with a copy of the national

law, regulation or other administrative

action creating a restriction on imports

of products that rely on class I

controlled substances for their

continuing functioning and restricting

their manufacture within the same

country. With today’s action EPA is

adding a new § 82.4(m) to establish the

framework for a ban on the export of

products whose continuing functioning

relies on class I controlled substances.

Upon receipt of an official document

from the government of an Article 5

Party, EPA will publish a notice in the

Federal Register triggering the specific

ban on all exports from the United

States of products that rely on class I

controlled substances for their

continuing functioning to the specific

Article 5 Party. The specific Article 5

Party will be listed in Appendix J to

Subpart A.

In addition, EPA is considering the

creation of a licensing system for U.S.

exports of products whose continuing

functioning relies on class I controlled

substances. A licensing system would

be used to monitor exports of products

from the U.S. to Article 5 countries as

an additional control measure that

would work in parallel with the ban

described above.

3. Prohibit Imports and Exports of

HBFCs From or to Non-Parties To the

Protocol

EPA is amending the existing

regulation to prohibit the import or

export of hydrobromofluorocarbons

(HBFCs) (class I, Group VII controlled

substances) from or to a foreign state

that is not a Party to the 1992

Copenhagen Amendments to the

Montreal Protocol. In today’s action,

EPA is adding § 82.4(l)(3) to ban trade

in HBFCs with non-Parties to the

Copenhagen Amendments to ensure the

United States meets its obligations

under the Protocol. HBFCs are very

uncommon substances and EPA has no

record of U.S. trade in these class I

controlled substances. Article 4,

paragraph 1 ter of the Protocol bans the

import of HBFCs from any country not

a Party to the Copenhagen

Amendments. Article 4, paragraph 2 ter

of the Protocol bans exports of HBFCs

to any Party that has not ratified the

Copenhagen Amendments.

The current regulation (60 FR 24970;

40 CFR 82.4(k)(1)) prohibits the import

and export of class I, Group I or Group

II controlled substances from or to

foreign states not Parties to the Montreal

Protocol (1987). In addition, the current

regulation (60 FR 24970; 40 CFR

82.4(k)(2)) prohibits the import and

export of class I, Group III, Group IV,

and Group V controlled substances from

or to foreign states not Parties to the

London Amendments (1990). These

bans on imports from and exports to

non-Parties reflect an agreed strategy by

signatory countries for encouraging

ratification of the Montreal Protocol and

each successive package of

amendments.

4. Application Process for Exemptions

to the HCFC Phaseout for Specific

National Security Uses

In today’s action, EPA is creating a

very limited exemption to the U.S.

accelerated phaseout dates for class II

controlled substances, known

collectively as

hydrochlorofluorocarbons (HCFCs). EPA

believes U.S. government national

security interests have vital needs for

specific, small quantities of HCFC–141b

beyond the phaseout dates contained in

§ 82.4(l) and(m) of the final rule

published in the Federal Register on

May 10, 1995 (60 FR 24970). EPA is

creating an exemption to the accelerated

phaseout of the production and import

of HCFC–141b for national security

purposes. EPA believes that the new

§ 82.4(u)(3) will not adversely affect

compliance with the provisions of the

Clean Air Act Amendments of 1990 or

the U.S. obligations under the Montreal

Protocol as amended.

A person seeking an exemption for

the production and import of HCFCs for

national security purposes under

§ 82.4(u)(3) must apply for the

exemption under § 82.9. Today’s action

includes a streamlined application and

review process under § 82.9(g) for

national security allowances. The

application process requires a U.S.

government entity with a national

security interest to submit the following

information to EPA: (a) name and

address of national security entity; name

of contact person and phone and fax

numbers and e-mail address; (b)

quantity (in kilograms) of HCFC–141b

needed for the control period for the

national security interest; (c) a

description of the national security

interest met by the use of HCFC–141b;

(d) a technical description of the use of

HCFC–141b; (e) a technical description

of why alternatives and substitutes are

not sufficient or suitable to eliminate

the national security use of HCFC–141b;

and (f) a detailed analysis showing why

stockpiled, recovered or recycled

quantities are deemed to be technically

and economically infeasible for use.

EPA will review the application in

order to determine whether to grant

national security allowances for the

specific quantity of HCFC–141b for the

control period. If more information is

needed, EPA will contact the applicant

and specify the needed information.

EPA will retain the right to disallow the

national security allowances based on

information received regarding, inter

alia, fraud, misrepresentation,

inconsistency with Articles and

Decisions under the Montreal Protocol,

inconsistency with the intent of the

Clean Air Act Amendments of 1990, or

other reasons related to human health

and the environment.

EPA considered other approaches to a

national security exemption for the

production and import of HCFCs. EPA

considered whether the exemption

should be specific for one, or two, or all

of the HCFCs (e.g., specific exemptions

only for 141b, 22, or 142b for national

security purposes.) To date, EPA has

received only specific requests for

national security exemptions for 141b.

Therefore, EPA believes there is no need

for a broader exemption and accordingly

is limiting the exemption to HCFC–

141b.

EPA is also establishing a specific

application period ending December 1,

1999. By limiting the time frame for

accepting applications, EPA is

providing a strong incentive for U.S.

government entities with national

security interests to review their HCFC–

141b needs and conduct long-term

planning. By limiting the time frame for

the review of applications, EPA would

also be reducing the Agency’s long-term

burden to continually review claims of

national security interest.

EPA considered conducting a onetime period of review of petitions for

national security allowances to be
41632 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

finalized by publication of a notice with

a list of acceptable and unacceptable

national security exemptions to the

class II phaseout dates. EPA decided not

to adopt this approach because the

Agency expects very few applications

for national security allowances for

class II controlled substances.

Another option in the implementation

of an exemption for the production and

import of HCFCs beyond the accelerated

phaseout would be a limit on the total

quantity of any HCFC that one U.S.

government entity could request and

obtain in a control period. Finally, EPA

could limit the number of control

periods for which a U.S. government

entity with national security interests

may apply for an HCFC exemption. EPA

did not adopt these options to limit the

quantity of material or the control

periods because the Agency expects the

numbers of requests and the quantities

to be very small.

The Agency is creating an exemption

process for the continued production or

import of HCFC–141b up to January 1,

2030, for applications related to national

security in cases where stockpiled,

recovered or recycled quantities are

deemed to be technically and

economically infeasible for use. Upon

request by a Federal Government

Agency, the Administrator may grant

authorization for production or import

of a specified quantity, for a specified

period of time. Only agencies of the

Federal Government can request

production or import quantities under

this exception. Thus, companies and

other organizations that are contractors,

grantees or otherwise service providers

for the Federal Government must first

secure approval and endorsement

through the Agency which requires

products made with or containing

HCFCs. Approval for production or

import does not imply or mandate

production; each user must locate a

willing supplier and negotiate supply. It

should be noted that under CAA section

605(b)(1), beginning January 1, 2015, it

will be unlawful for any person to

produce any class II substance in excess

of baseline production levels.

The Agency believes technically

feasible and economically viable

alternatives will be available for all

commercial and the vast majority of

non-commercial uses of HCFCs prior to

their phaseout dates. However, there

may be specialized uses where

stockpiled, recovered, or recycled

quantities are technically inadequate or

economically not viable. At this time,

the only foreseeable use of this

authorization is for ballistic insulation

foam used for space exploration and

possibly cleaning applications for

oxygen generators in the military.

Section 605 of the Clean Air Act

contains certain constraints on use,

production, and consumption of HCFCs.

This exemption is limited by these

constraints. For example, under CAA

section 605(a), effective January 1, 2015,

no person may introduce into interstate

commerce or use any virgin class II

substance unless the substance is either

used and entirely consumed (except for

trace quantities) in the production of

other chemicals, or the substance is

used as a refrigerant in appliances

manufactured prior to January 1, 2020.

In addition, CAA section 605(b)(2)

prohibits production of class II

substances on or after January 1, 2030.

Finally, EPA will not authorize

quantities of HCFCs under the national

security exemption that would cause the

United States to exceed the HCFC

consumption cap as agreed under the

Montreal Protocol.

5. Simplify Procedure for Apportioning

Essential-Use Allowances

EPA is simplifying the yearly process

for apportioning essential-use

allowances to U.S. companies. With

today’s action, EPA is creating a

mechanism to allocate essential-use

allowances for future control periods

beginning in 1999 by a letter from the

Agency to each person nominated by

the United States to the Secretariat of

the Montreal Protocol for an essential

use exemption. After allocating the

essential-use allowances, EPA will

publish a Federal Register notice

containing a summary of the allocations.

In establishing the process for

exempting essential uses from the

phaseout, EPA published a proposed

rule in the Federal Register on

November 10, 1994 (59 FR 56276) and

then published the final rule on May 10,

1995 (60 FR 24970). These rules

discussed the essential-use exemption

process and allocated essential-use

allowances for 1996 and 1997. EPA

published a rule allocating essential use

allowances for 1998 on January 28, 1998

(63 FR 4359). Given the need for quick

action in allocating allowances, EPA is

simplifying the process for allocating

essential-use allowances for each

control period by issuing allowances by

letter, followed by a notice summarizing

the allocations.

Given the extensive review prior to

authorization by the Parties to the

Protocol, EPA believes the allocation of

essential-use allowances through

rulemaking is unnecessary.

In discussing the essential-use process

in the preamble to the November 10,

1994 proposed rule (59 FR 56276,

56282–56283), EPA described the steps

necessary to submit an application

domestically. In the same passage, EPA

discussed the procedure that the U.S.

government follows in nominating uses

to the Parties to the Protocol. Before the

U.S. makes a nomination to the Parties

for an essential-use exemption, EPA and

other relevant government agencies

carefully review applications in light of

the criteria established in Decision IV/

25 and subsequent Decisions of the

Parties to the Protocol that govern

essential uses. The U.S. takes great

pains to ensure that each nomination

submitted to the Parties reflects a truly

essential need for a phased-out

controlled substance. The Parties

carefully consider the review and

recommendations of the Montreal

Protocol’s Technical and Economic

Assessment Panel (TEAP) and its

Technical Options Committees (TOCs)

before authorizing the production of

controlled substances for essential uses

beyond the phaseout dates. With today’s

action, EPA is announcing its intent to

allocate the total quantity of essentialuse authorizations for the calendar year

that were approved by the Parties.

6. Prohibit Import of Class I Controlled

Substances for Essential-Uses Except by

Companies Allocated Essential-Use

Allowances

EPA is prohibiting the import of class

I controlled substances for essential uses

by any person that is not allocated

essential-use allowances. EPA is making

this change to ensure that the import is

actually used for the allocated essential

use, to simplify the recordkeeping and

reporting procedures for U.S. companies

and to ease the administrative burden of

tracking imports of exempted quantities

by the Federal government. Today’s

amendment changes the current

regulations regarding the ability to

confer essential-use allowances for

imports. The current regulations (60 FR

24970; 40 CFR 82.4(e), § 82.13(g)(1)(xvi))

allow holders of essential-use

allowances to confer to another U.S.

company the rights to import quantities

of phased-out class I controlled

substances. With today’s action, EPA is

requiring that U.S. entities allocated

essential-use allowances be the actual

importers of class I controlled

substances. EPA believes that U.S.

companies allocated essential-use

allowances can work with customs

brokers to ensure that their company is

listed as the importer of record on U.S.

Customs Service entry documents. By

eliminating the option of conferring

essential-use allowances to import class

I controlled substances EPA is

attempting to simplify the reporting and
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41633

recordkeeping requirements in § 82.13

of the final rule and ease the U.S.

government’s task of tracking imports.

In an effort to combat illegal imports

of class I controlled substances, EPA

joined forces with many Federal

agencies to create an inter-agency

taskforce. As the supply of ozonedepleting substances has declined, the

residual demand has prompted the

development of a black market for

phased-out ozone-depleting substances.

In 1995, the U.S. Customs Service began

assisting EPA in monitoring imports of

ozone-depleting substances. U.S.

Customs Service inspectors now call

EPA to confirm that any import of class

I controlled substances is exempted

under one of the special provisions in

§ 82.4 of the regulation, such as

essential uses. EPA believes that

confirming, tracking and cross-checking

imports of class I controlled substances

for essential uses will be easier if the

actual holder of the essential-use

allowance is listed as the importer of

record or consignee on the U.S. Customs

Service entry document (Customs form

7501). In addition, EPA believes that

recordkeeping and reporting

requirements will be simplified for U.S.

companies if the holder of the essentialuse allowances is responsible for

submitting the importer’s quarterly

report.

C. Amendments to § 82.9—Availability

of Production Allowances in Addition to

Baseline Production Allowances

1. Clarification of Increases or Decreases

of Article 5 Allowances Due to

International Transfers

EPA is clarifying the regulations

regarding trades of Article 5 allowances.

To address the confusion about the

permissibility of trades of Article 5

allowances and because trades are

allowed under the provisions of the

Montreal Protocol, EPA is removing the

phrase ‘‘Until January 1, 1996’’ from

§ 82.9(c) and adding the phrase ‘‘or

Article 5 allowances’’ in the first

sentence after ‘‘production allowances.’’

The regulatory text published in the

Federal Register on May 10, 1995 is

silent regarding trades of Article 5

allowances with other Parties to the

Montreal Protocol. However, at the time

of publication, EPA wrote in the

preamble its interpretation of the

Montreal Protocol stating, ‘‘With today’s

action, EPA permits inter-pollutant and

inter-company transfers of Article 5

allowances as proposed but is not

permitting inter-Party trades. The

Agency determined that inter-Party

trades of Article 5 allowances would

violate the provision of the Protocol that

specifically allows additional

production by each Party for export to

Article 5 countries.’’ (60 FR 24980)

EPA subsequently learned that the

Parties to the Protocol do in fact permit

inter-Party trades of Article 5

production. The United Nations

Environment Programme (UNEP)

document from the 1993 Bangkok

meeting (UNEP/OzL.Pro.5/8) titled,

‘‘Transfer of Production Rights under

Article 2 of the Montreal Protocol’’ asks

the question in paragraph 5(a), ‘‘Can a

Party transfer to another Party its right

to produce controlled substances to

meet the basic domestic needs of the

Parties under Article 5, paragraph 1?’’ In

the same UNEP document (UNEP/

OzL.Pro.5/8), paragraph 6 responds,

‘‘Concerning the question in paragraph

5(a) above , it appears that the term

‘‘calculated level of production’

contained in paragraph 5 of Article 2

includes production to meet the basic

domestic needs of the Parties operating

under Article 5, paragraph 1. Therefore,

a Party can transfer to another Party its

right to produce to meet the basic

domestic needs of the Parties operating

under Article 5, paragraph 1.’’ Based on

the text in the Montreal Protocol

document (UNEP/OzL.Pro.5/8), EPA is

clarifying that inter-Party trades of

Article 5 allowances are permissible.

D. Amendments to § 82.12—Transfers

1. Increases or Decreases of EssentialUse Allowances Due to Emergency

International Transfers

EPA is amending the current

regulation to allow the transfer of MDI

essential-use authorizations to or from

other Parties under limited situations to

reflect Decision IX/20 taken by the

Parties at the 1997 Ninth Meeting in

Montreal. Decision IX/20 allows the

transfer of essential-use authorizations

for CFCs for MDIs between Parties

without prior review at a Meeting of the

Parties only in emergency situations

only if specific conditions are met.

There is only one precedent for the

transfer of MDI essential-use

authorizations between two Parties. In

this one case, New Zealand submitted a

request to transfer previously approved

MDI essential-use authorizations to

Australia. New Zealand requested the

transfer because of the planned closure

of its MDI production facility and an

agreement with Australia that the MDIs

would be manufactured in Australia and

shipped to New Zealand. New Zealand’s

request was submitted with sufficient

time prior to the Meeting of the Parties

for the TEAP to review and make a

recommendation regarding the transfer.

The Parties to the Protocol approved the

transfer of New Zealand’s essential-use

allowances for CFCs for MDIs to

Australia. Today’s action reflects the

creation of a safety valve for emergency

cases in which a transfer of essential-use

authorizations from one Party to another

would need to occur without

opportunity for prior review and

approval of a Meeting of the Parties.

Today’s action and Decision IX/20 allow

an emergency transfer with the Parties

to the Protocol approving the action

after-the-fact.

Decision IX/20 taken at the Ninth

Meeting of the Parties allows the

transfer of essential-use allowances for

CFCs for MDIs between two countries

without prior approval by the Parties

only in emergency situations and under

very specific conditions. If any specific

condition is not met, the transfer may

not occur. Decision IX/20 states that: ‘‘in

an emergency situation,’’ the transfer of

essential-use authorizations may be

allowed by the Ozone Secretariat, in

consultation with the Technology and

Economic Assessment Panel, if the

following conditions are met: ‘‘(a) the

transfer applies only up to the

maximum level that has previously been

authorized for the calendar year in

which the next Meeting of the Parties is

to be held, (b) both Parties involved

agree to the transfer, (c) the aggregate

annual level of authorizations for all

Parties for essential uses of MDIs does

not increase as a result of the transfer,

and (d) the transfer or receipt is reported

by each Party involved on the essentialuse quantity accounting format

approved by the Eighth Meeting of

Parties by paragraph 9 of decision VIII/

9.’’

During the discussion of Decision IX/

20, the Parties clarified that the intent

of the phrase ‘‘in an emergency

situation,’’ was to allow a safety

provision for the supply of CFCs for

MDIs if there is a disaster, such as a fire

at the only MDI manufacturing facility

within a country. Thus, EPA will

approve transfers of essential-use

authorizations only if the emergency

situation is the result of a catastrophic

natural event or war. A request to

transfer essential-use allowances due to

poor planning or management will not

be considered an emergency situation

for purposes of today’s amendment.

Furthermore, an emergency situation

must also be shown to seriously

threaten the treatment of patients with

asthma or chronic obstructive

pulmonary disease (COPD) within one

of the countries in the proposed

transfer.

With today’s action, EPA will not

allow the transfer of essential-use

allowances from one U.S. company to
41634 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

another company within the United

States. EPA believes that information on

the U.S. MDI market indicates domestic

essential-use allowances are distributed

in a manner that will allow for

continued treatment of patients with

asthma and COPD in the event of an

interruption of supply of CFCs or a

problem with manufacturing at one

facility or one company. EPA’s analysis

indicates a measure of redundancy in

the domestic market to respond to such

contingencies.

The procedures for transferring

essential-use authorizations prior to the

meeting of the Parties to address an

emergency situation require a company

to submit a very detailed description of

the emergency and an analysis

demonstrating the serious impact the

emergency will have on patients. A U.S.

holder of essential-use allowances for

CFCs for MDIs or a U.S. manufacturer of

MDIs identified through prior

arrangement with a foreign

manufacturer of MDIs may submit a

request for approval to EPA regarding an

emergency situation that requires the

transfer of essential-use authorizations.

The information to be submitted in a

request for an emergency transfer of

essential-use allowances is listed in

Section 82.12(a)(3). The request must

certify the accuracy of the information

submitted and fully document the

emergency situation that was created by

a catastrophic natural event or war,

including, where appropriate,

submission of photos, reports from

local, state or Federal authorities, or a

report from an independent auditor. In

a case when the emergency situation

exists in a foreign state the request must

include a letter from the foreign

environmental ministry and a letter

from the foreign health ministry

verifying the emergency situation and

the serious threat the emergency

situation poses for the treatment of

patients with asthma and COPD in that

country. Submission of a request to

transfer essential-use authorizations for

CFCs for MDIs does not guarantee EPA’s

approval of or agreement with the

requested transfer. Rather, EPA will

review the information provided and

use it to independently verify that the

emergency situation exists and that the

emergency situation seriously threatens

the health and treatment of patients

with asthma or COPD.

In reviewing a request for an

emergency transfer of essential-use

authorizations for CFCs for MDIs, EPA

may consider the following factors:

(1) Information sufficient to make a

determination regarding whether the

situation is an emergency due to a

catastrophic natural event or war; (2)

possible serious threats to the treatment

of patients with asthma and COPD; (3)

possible creation of economic hardship;

(4) possible effects on trade; (5)

potential environmental implications;

and (6) the total amount of unexpended

essential-use allowances held by United

States entities.

After a review of these factors in

consultation with other agencies of the

U.S. Federal government, a notice will

be issued through the U.S. Department

of State, to the UNEP Ozone Secretariat,

either agreeing or disagreeing with the

transfer of essential-use authorizations

and specifying the control period to

which the transfer applies. For an

approved trade from a Party, EPA will

issue a notice that revises the essentialuse allowances held by the person for

the control period in question to equal

the unexpended essential-use

allowances held by the person under

Subpart A plus the amount of essentialuse authorizations transferred from the

Party. For an approved trade to a Party,

EPA will issue a notice that revises the

essential-use allowances held by the

person to equal the unexpended

essential-use allowances held by the

person under Subpart A minus the

amount of essential-use authorizations

transferred to the Party for the specific

control period.

E. Amendments to § 82.13—

Recordkeeping and Reporting

Requirements

1. Removal of Producer Requirement To

Report the Quantity of Used Material

Received That Contains Recycled or

Reclaimed Controlled Substances

EPA is removing the reporting

requirement under § 82.13(f)(3)(v) that

asks producers of class I controlled

substances to report on ‘‘the quantity of

used material received containing

controlled substances that are recycled

or reclaimed.’’ Because of the phaseout,

EPA believes most producers either

closed their facilities or drastically

reduced their business in class I ozonedepleting substances (except Group VI

substances). Class I controlled

substances used as refrigerants are

controlled under authority of Section

608 of the CAA in the regulations

published under 40 CFR Part 82,

Subpart F. Reclaimers of refrigerants are

required to be EPA-certified under

section 82.164 and required to report

information about their reclamation

process annually under section 82.166.

U.S. producers of class I controlled

substances are, in general, not accepting

recycled or reclaimed material because

class I controlled substances are being

recycled and reclaimed by special

facilities that handle refrigerants or reprocess wastes. Today’s action

eliminates the reporting requirement in

82.13(f)(3)(v) because EPA tracks the

reclamation of refrigerants under the

608 regulations and producers are no

longer accepting used controlled

substances after the phaseout of class I

controlled substances.

2. Add to the Producer Recordkeeping

and Reporting Requirements the Need

To Maintain and Submit a Certification

That a Quantity of Class I Controlled

Substance Will Be Used as a Process

Agent

EPA is adding the requirement that

producers of class I controlled

substances maintain a record obtained

from purchasers certifying the

purchasers’ intent to use the cited

quantity as a process agent in

accordance with the current definition

of controlled substance in Section 82.3.

EPA is requiring that the purchaser

certify that it will use the total quantity

of purchased class I controlled

substance as a process agent in

accordance with the definition of

controlled substance in the final rule

published in the Federal Register on

May 10, 1995 (60 FR 24970). EPA is also

requiring that producers submit the

certifications received with their

quarterly reports.

EPA is adding today’s recordkeeping

and reporting requirement for process

agents due to a change in the treatment

of process agents under the Montreal

Protocol. Since 1996, the Parties to the

Protocol have agreed to treat process

agents in the same manner as

feedstocks, that is, the same as

controlled substances that are

transformed. In accordance with

Decisions VI/10 and VII/10, since the

phaseout of class I controlled

substances, the production of these

substances for use as a process agent has

been treated as transformation for

purposes of recordkeeping and reporting

under this regulation. At the Ninth

Meeting of the Parties in 1997, the

Parties did not extend beyond the 1998

control period the treatment of process

agents in a manner similar to feedstocks.

When the Parties to the Protocol

decided not to extend the treatment of

process agents in a manner similar to

feedstocks, the treatment of process

agents reverted to an earlier decision by

the Parties. Decision VI/12, taken by the

Parties in 1992, clarifies the definition

of controlled substances and states that

‘‘insignificant quantities of controlled

substances originating from inadvertent

or coincidental production during a

manufacturing process, from unreacted

feedstock, or from their use as process
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41635

agents which are present in chemical

substances as trace impurities, or that

are emitted during production

manufacture or handling, shall be

considered not to be covered by the

definition of a controlled substance

contained in paragraph 4 of Article 1 of

the Montreal Protocol.’’ Decision IV/12

is reflected in the current definition of

controlled substances in Section 82.3 as

published in the Federal Register on

May 10, 1995. Thus, the production of

controlled substances for use as a

process agent is not included in the

definition of controlled substances in

the regulation.

A very small number of

manufacturing processes in the U.S. use

a class I controlled substance as a

process agent. In almost every case, the

manufacturing process uses carbon

tetrachloride to control or maintain a

chemical reaction. Many companies

have submitted a description of their

manufacturing process to EPA, asking if

their process would be considered a

process agent use of a class I controlled

substance. In such cases, a producer of

a class I controlled substance can rely

on the letter from EPA to determine if

the purchaser can purchase the material

as a process agent. If a producer of a

class I controlled substance is unsure

about whether the manufacturing

process of a potential new purchaser

qualifies as a process agent use, the

producer should refer the purchaser to

EPA for a determination.

3. Clarify the Need for Letters That

Confer Essential-Use Allowances and

Destruction and Transformation Credits

to Producers and That These Letters Be

Submitted With Producer’s Quarterly

Reports

EPA is issuing a clarification of

existing requirements. EPA is clarifying

that holders of essential-use allowances

that place orders for class I controlled

substances must confer essential-use

allowances to the producer in order to

receive the material. EPA is also

clarifying that the letter that confers the

essential-use allowances must certify

that the quantity of class I controlled

substance is being purchased solely for

the specified essential use and will not

be resold or used in any other

manufacturing process. Similarly,

laboratory customers that place orders

for class I controlled substances must

certify that the quantity of class I

controlled substance is being purchased

solely for laboratory applications and

will not be resold or used in

manufacturing. Distributors of

laboratory supplies that place orders for

class I controlled substances must

certify that the controlled substances

were purchased for sale to laboratory

customers who make the above

certifications.

EPA is clarifying that producers must

submit to the Agency a copy of letters

that confer any essential-use allowances

or destruction and transformation

credits. Under the current reporting

requirements found in § 82.13(f)(3)(xi)

and (xii) of the final rule published in

the Federal Register on May 10, 1995

(60 FR 24970), producers must submit

‘‘a list of essential-use allowance

holders * * * from whom orders were

placed’’ as well as ‘‘the certifications

from essential-use allowance holders.’’

Under the current reporting

requirements at § 82.13(f)(3)(iv),

producers must submit data on the

number of expended and unexpended

essential-use allowances and

destruction and transformation credits

conferred to them for each quarter.

In 1996 and 1997, few producers and

importers submitted letters from

purchasers conferring essential-use

allowances or certifying that the

controlled substances were purchased

solely for the specified essential uses.

With today’s action, EPA is clarifying

that holders of essential-use allowances

must write a letter conferring the

essential use allowances to the

producer, and that this letter must

certify that material is purchased solely

for the specified essential-use and will

not be resold or used in any other

manufacturing process. Laboratory

customers that place orders for class I

controlled substances must certify that

the quantity of class I controlled

substance is being purchased solely for

laboratory applications and will not be

resold or used in manufacturing.

Distributors of laboratory supplies must

certify that the material is purchased

solely 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.

As explained in Section II.B.8. above,

EPA is prohibiting holders of essentialuse allowances from conferring the right

to import, and instead, requiring them

to become the actual importer of

phased-out class I controlled substance.

EPA is also requiring that distributors of

laboratory supplies follow the same

procedures and, as they have done since

1996, act as the importer of the quantity

of phased-out class I controlled

substance that is exempted under the

essential-use provisions for laboratory

and analytical uses.

EPA is clarifying an existing

requirement that copies of letters that

confer essential-use allowances and that

certify that the material is purchased

solely for the specified essential use be

included with the producer’s quarterly

reports to EPA.

4. Changes to the Petition Process for

Importing Used Class I Controlled

Substances

EPA is changing the petition process

for imports of used class I controlled

substances. Today’s changes clarify

existing requirements. In addition, some

of the amendments are designed to give

EPA greater ability to ensure imports

are, in fact, used controlled substances

(i.e., not newly produced substances).

The original reason the Parties to the

Protocol agreed to permit international

trade in previously used ozonedepleting substances beyond the

Protocol’s control regimes was to ease

the transition to alternatives. In

addition, the Parties believed that

allowing trade in quantities of already

existing used material would offset the

need for new production globally. EPA

believes that, in many cases, the

opposite may be occurring. The

diminishing supplies and hence rising

prices of class I controlled substances in

the U.S., combined with continued

production of virgin material in Article

5 countries, creates an opportunity for

such large financial gain that, instead of

offsetting new production, it is likely

that trade in used controlled substances

is fostering new production. Evidence

increasingly indicates that new

production overseas is being

clandestinely diverted to the U.S. and

other non-Article 5 countries as exports

of ‘‘used’’ material. To the extent that

the petition process unwittingly

encourages mislabelling or adulteration

of new production overseas, and the

submission of false information, it

undermines the Parties’ original

intention in permitting trades of used

ozone-depleting substances.

Although today’s amendments simply

tighten the existing requirements, EPA

is also considering a complete ban on

imports of used class I controlled

substances. EPA is considering an

import ban on used class I controlled

substances because of the enormous

burden, both in logistics and in

resources, to independently verify the

information in petitions to guarantee

that shipments are, in fact, previously

used controlled substances. Without

physically inspecting each site from

which a class I controlled substance is

recovered from equipment, EPA is

making decisions based on the

documents and information provided by

petitioners. EPA is also considering a

ban on imports of specific used

controlled substances instead of a
41636 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

comprehensive ban on all used class I

controlled substances.

EPA believes that, in some cases, the

petition requirements published in the

May 10, 1995 final rule (60 FR 24970;

40 CFR § 82.13(g)(2)) have been

misunderstood. EPA hopes today’s

clarifications will reduce the number of

times EPA objects to a petition and then

objects to re-submissions of the same

petition due to insufficient information

before finally approving the complete

petition package. EPA believes that, in

other cases, the petition process has

been abused. EPA is making today’s

changes in the hopes that the provisions

of the petition process can be

adequately tightened to guard against

abuses and guarantee that imported

material is truly previously used.

a. Clarification that a Petition to

Import Used Class I Controlled

Substances is Submitted for Each

Individual Shipment. EPA would like to

clarify that a petition to import used

class I controlled substances may only

be submitted on a shipment by

shipment basis. EPA is not changing the

current requirement with this action but

clarifying the existing requirement in

§ 82.13(g)(2). The information in a

petition and the quantity a person

wishes to import into the United States

must be limited to a specific shipment

and a single U.S. Customs entry. If an

importer cannot arrange for the entire

quantity to be shipped as one entry

through U.S. Customs, the importer is

required to submit more than one

petition for the quantity in each

individual Customs entry.

b. Changing the de minimis Quantity

for an Individual Shipment for which a

Person is Required to Submit a Petition

to Import Used Class I Controlled

Substances. EPA is reducing the de

minimis amount for an individual

shipment for which a person is required

to submit a petition to import used class

I controlled substances. Section

81.13(g)(2) of the final rule published in

the Federal Register on May 10, 1995,

requires a person to submit a petition to

import used class I controlled

substances ‘‘for each individual

shipment over 150 pounds.’’ A de

minimis amount of 150 pounds was

established in the May 10, 1995 final

rule to allow companies to import small

samples of material so they could run

laboratory analyses and determine if

reclamation would be physically

possible and economically justifiable

before importing a large tank. EPA has

since learned that samples of class I

controlled substances are generally

taken from large tanks in special

cylinders that generally weigh less than

2 pounds. EPA is therefore setting the

de minimis quantity at five (5) pounds.

EPA is setting the de minimis quantity

at five pounds in order to avoid the

unnecessary import of class I controlled

substances. EPA believes that a quantity

of 150 pounds is much larger than

necessary to meet laboratory analysis

needs. A de minimis level of five

pounds allows a company to take three

samples from a large ISO-tank for

laboratory analysis and send those

samples to a testing facility in the U.S.

without being subject to the petition

requirements. In developing today’s

amendments, EPA also considered

requiring that a person who wishes to

import any quantity of used class I

controlled substance, regardless of the

size, be required to submit a petition,

thereby eliminating the de minimis level

altogether. EPA decided not to eliminate

the de minimis level altogether in order

to minimize burden on the regulated

community and conserve Agency

resources.

c. Revised and Expanded Information

Requirements for a Petition to Import

Used Class I Controlled Substances.

EPA is amending the regulation to

include a more comprehensive and

detailed list of information that will be

required for petitions to import used

class I controlled substances. Most of

these changes are intended to make the

current regulatory text more explicit

regarding the type of information that

EPA needs to independently verify,

above all, the previous use of the

controlled substance. Today’s action

adds a requirement under § 82.13(g)(2)

that contact information for the entire

chain of custody of the used controlled

substance be provided in the petition.

For example, EPA is stating that a

petition include complete contact

information for: every source facility

from which the used controlled

substance was recovered, every

company that collected the material

from the equipment, every previous

owner of the material, and every

company that will be exporting the used

controlled substance.

EPA is also requiring that a petition

to import used class I controlled

substances include dated documents

indicating the time the material was put

into the equipment. EPA is requiring

that the petition to import used class I

controlled substances include the name,

make and model number of the

equipment from which the material was

removed. The current text under

§ 82.13(g)(2)(vi) requires a petition to

provide the ‘‘intended use’’ of the

controlled substance. Today’s

amendment calls for, in addition to the

intended use, a copy of a contract for

the purchase of the controlled

substance. In light of efforts by Parties

to the Protocol to implement a licensing

system for exports as well as imports,

EPA is requiring that the petition

provide an export license from the

appropriate government agency in the

country of export.

d. Removal of the Information

Requirement regarding the Certification

of Tax Liability for Used Class I

Controlled Substances from the Petition.

EPA is removing the requirement in

§ 82.13(g)(2) (viii) of the current rule

from the list of information to be

included with a petition to import used

class I controlled substances. This

provision required an importer to certify

that the purchaser of the used, recycled

or reclaimed substance ‘‘is liable for the

payment of the tax.’’ See 60 FR 24970

(May 10, 1995). EPA published a stay of

this provision on January 31, 1996 (61

FR 3316), and published an extension of

the stay on June 11, 1996 (61 FR 29485).

EPA believes that this provision failed

to establish a clear and comprehensive

reference to Internal Revenue Service

(IRS) tax requirements that the Agency

could implement effectively. EPA

believes it is more appropriate to defer

interpretation of regulatory

requirements regarding excise taxes for

ozone-depleting chemicals to the

Internal Revenue Service (IRS), the

Federal agency given authority for these

taxes under the Omnibus Budget

Reconciliation Act of 1989, the

Omnibus Budget Reconciliation Act of

1990 and the Energy Policy Act of 1992.

EPA understands from the IRS that there

is an excise tax on bulk shipments of

used class I controlled substances, used

class I controlled substances, products

containing class I controlled substances

and products made with but not

containing class I controlled substances.

However, EPA requests that all

questions regarding the excise taxes on

ozone-depleting chemicals be directed

to the Internal Revenue Service.

e. Timing for EPA Review of a

Petition. EPA is clarifying and amending

the current regulatory language in

§ 82.13(g)(2) and (3) published in the

Federal Register on May 10, 1995,

regarding the timing for EPA’s review of

petitions to import used class I

controlled substances. First, EPA is

extending the current 15 working-day

time limit within which EPA must

respond to a petition. Given the large

number of petitions being submitted

(182 in 1997), combined with the fact

that EPA will likely require more time

to independently verify the additional

information required with today’s

notice, EPA is extending the current

time limit for the review of a petition

from 15 to 40 working days. Second,
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41637

EPA is clarifying that the time for

review begins on the working day after

EPA’s Stratospheric Protection Division

actually receives the petition.

EPA included a time limit for the

review of a petition to import used class

I controlled substances in the May 10,

1995 final rule (61 FR 24970) in an

attempt to reduce regulatory burden. In

the May 10, 1995 final rule, EPA made

approval of a petition automatic if, after

15 working days, the person who

submitted the petition had not received

a notification from EPA. Through

experience and the unforeseen volume

of incoming petitions, EPA learned that

the 15 working-day time limit was too

short a period for EPA to conduct a

thorough review and automatic

approvals were occurring of petitions

that the Agency would not have

otherwise approved. Today’s action is

designed to correct the issue of too short

a time period for the review of petitions

leading to automatic approvals of

petitions that would not otherwise be

approved.

EPA considered many other time

frames for the review of petitions to

import used class I controlled

substances, including a complete

elimination of any time limit for EPA’s

review of a petition. EPA considered

time frames for the review of a petition

to import used class I controlled

substances from the current 15 workingdays to as long as 180 working-days.

EPA also considered whether to include

an automatic approval provision with

any of these time limits. EPA decided

that a 40-day time frame with no

automatic approval would allow the

Agency to balance the goals of

responsiveness to legitimate requests

and thoroughness in identifying abuses

of the petition process.

f. Clarification of Reasons for Issuing

an Objection Notice to a Petition to

Import Used Class I Controlled

Substances. EPA is amending the list of

reasons for which the Agency may

disallow a petition to import used class

I controlled substances. Section 82.4(i)

of the regulation published in the

Federal Register on May 10, 1995,

requires a person to comply with the

petition procedures in § 82.13(g)(2) and

(3). The current regulation in

§ 82.13(g)(3) states that, ‘‘if the

Administrator determines that the

information is insufficient, or there is

reason to disallow the import, the

Administrator will issue an objection

notice.’’ EPA is adding a more detailed

list of the reasons for disallowing an

import of used class I controlled

substances.

As explained in the preamble of the

May 10, 1995 final rule, EPA attempts

to independently verify the information

contained in a petition to import used

class I controlled substances, with

special attention given to confirming the

prior use of the material. EPA’s effort to

confirm the information in a petition is

conducted with support from other

government agencies that are members

of the inter-agency taskforce combating

illegal imports of ozone-depleting

substances. Since 1994, EPA has worked

with the inter-agency taskforce members

who include the Department of Justice,

the Internal Revenue Service, the

Customs Service, the State Department,

and the Department of Defense. In the

two years of implementing the petition

process, EPA has received a variety of

petitions to import used class I

controlled substances. Many of the

petitions provide insufficient

information or provide information that

EPA has reason to doubt is sufficient to

confirm that the material is, in fact,

previously used. EPA also learned

during two years of reviewing petitions

that other agencies sometimes have

important insights regarding the specific

information listed in a petition.

EPA is amending its list of reasons for

which the Agency might issue an

objection notice to a petition to import

used class I controlled substances.

The first reason for disallowing a

petition is a clarification of the current

regulatory text, which says that the

petition must provide the information

required in § 82.13(g)(2) and that

insufficient information or what appears

to be insufficient information in

response to these requirements is a basis

for disallowing a petition.

The second reason for disallowing a

petition is if the Agency determines that

the petition contains, or is believed to

contain, false or misleading information.

EPA may issue objection notices for

petitions to import used controlled

substances that are contrary to

provisions of the Vienna Convention on

Substances that Deplete the Ozone

Layer, the Montreal Protocol and its

amendments and decisions, and the

non-compliance procedures outlined

and instituted by the Implementation

Committee of the Montreal Protocol.

Section 614(b) of the CAA states that in

the case of conflict between the CAA

and the Montreal Protocol, the more

stringent provision shall govern. Thus,

EPA may, and will, object to any

petition submitted to EPA that contains

information about a transaction that is

recognized to be contrary to the

provisions of the Convention and the

Protocol, including its amendments and

decisions.

With today’s action EPA may disallow

a petition if the appropriate government

agency in the exporting country has not

agreed to issue an export license for the

individual shipment of used controlled

substance that is cited in the petition.

EPA may disallow petitions due to

official statements made by foreign

governments. EPA believes that foreign

governments may make official

statements either to the United States or

to the Parties to the Montreal Protocol

that would warrant an objection notice

to a petition to import used controlled

substances from that country. Certain

countries have stated to the

Implementation Committee of the

Montreal Protocol that they are no

longer allowing exports of used

controlled substances. If a country states

that it is no longer allowing exports or

if it reports that it has not granted any

export licenses EPA will treat this as

grounds for issuing an objection notice

for a petition to import from that

country.

EPA may also issue an objection

notice for a petition when the Agency

receives information indicating that a

person listed in the petition is willing

to produce false or misleading

information regarding transactions in

ozone-depleting substances. In the past,

EPA has received information from

other U.S. government agencies, from

other petitioners, from nongovernmental organizations and from

foreign governments that have

implicated companies or individuals in

activities designed to mislead

government authorities about activities

related to ozone-depleting substances.

Another reason for disallowing a

petition is the receipt by the

Administrator of information regarding

activities contrary to EPA regulations by

any individual or company listed in a

petition. Activities contrary to EPA

regulations, that have been reported to

EPA or discovered by EPA personnel

and that are related to ozone-depleting

substances include, but are not limited

to, un-certified recovery, un-certified

reclamation, reclamation that does not

meet the required specifications,

improper labeling, diverted

transhipment, mis-identification during

import, forgery of EPA documents, and

fraudulent claims regarding these

activities. EPA may disallow a petition

if the Agency receives information that

any person or company listed in the

petition is involved in an activity that

is a potential violation of an EPA

regulation.

EPA will not grant petitions to import

used class I controlled substances if it

is determined that, for the current

control period, the U.S. demand for the

specific controlled substance can be

satisfied from domestic stockpiles and
41638 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

from recycling and reclamation

programs for existing quantities in

domestic equipment. If such a

determination is made, EPA would view

further importation of quantities of that

specific used class I controlled

substances to be unwarranted.

Furthermore, EPA decided that

conditions established for disbursing

monies to specific country projects by

the Executive Committee of the

Montreal Protocol’s Multilateral Fund

may be a basis for objecting to petitions.

EPA believes no used controlled class I

substances should be imported from

countries where reclamation capacity,

for that specific controlled substance,

has been or is being installed through

assistance of the Multilateral Fund. The

United States contributes approximately

one fourth of all funds going to the

Multilateral Fund, the general purpose

of which is to assist countries operating

under Article 5(1) of the Protocol to

make the transition away from ozonedepleting substances; and a transition

policy includes the development of

reclamation facilities in order to

optimize the use of existing ozonedepleting substances so as to avoid

unnecessary production of virgin

materials. Thus, EPA views the

importation of used class I controlled

substances from countries where

reclamation capacity has been

supported by the Multilateral Fund to

run counter to U.S. interest, and counter

to the aims of a global phaseout strategy.

With today’s actions, EPA is clarifying

and expanding the list of reasons for

objecting to a petition to give the

Agency greater leverage in its efforts to

ensure that trade in previously used

material is consistent with the CAA and

is in accordance with U.S. obligations

under the Protocol.

g. Requirement that the Petition and

the Non-Objection Letter from EPA for

the Import of Used Class I Controlled

Substances Accompany the Shipment

through U.S. Customs Clearance. EPA is

adding a requirement that the petition

and the non-objection notice from EPA

approving the import of a used class I

controlled substance accompany each

shipment through U.S. Customs. In the

preamble to the final rule published in

the Federal Register on May 10, 1995,

EPA suggested that the petition and EPA

approval letter accompany the shipment

of used class I controlled substances

through U.S. Customs. However, EPA

did not make this a requirement in the

regulatory language. Today EPA is

adding this requirement to § 82.13(g)

such that all importers of used class I

controlled substances must provide

these documents to bring a shipment

into the United States. EPA believes that

presenting the petition and EPAapproval letter with a shipment will

facilitate the clearance through U.S.

Customs.

5. Requirement That Importers of

Controlled Substances and Used

Controlled Substances Use the

Harmonized Commodity Codes

Specified in This Regulation in

Completing Customs Entry Documents

EPA is requiring that importers of

controlled substances and used

controlled substances file Customs entry

documents (Form 7501) containing the

specified Harmonized Tariff Schedule

numbers listed in the new Appendix K

to 40 CFR Part 82, Subpart A.

Monitoring compliance with the

regulatory requirements under this

accelerated phaseout rule will be

facilitated by consistency in the

Harmonized Tariff Codes used on

Customs entry forms. The regulations of

the U.S. Customs Service require

importers to properly identify the

contents of a shipment, including the

use of the proper commodity code

number from the Harmonized Tariff

Schedule. EPA cross-checks and

monitors imports and exports of

controlled substances and used

controlled substances by reviewing

information from the U.S. Customs

Service. Both EPA and Customs believe

a consistent list of numbers from the

Harmonized Tariff Schedule will ease

tracking, reporting, and compliance

monitoring of the ozone-depleting

substance phaseout program.

6. Modify the Requirement for a Sales

Contract That Certifies Exported

Controlled Substances Will Be

Transformed or Destroyed

The current regulations state that

exporters of class I controlled

substances must submit to EPA a sales

contract certifying that the exported

controlled substances will be

transformed or destroyed. (40 CFR

82.13(h)(8)) EPA is changing the

requirement in § 82.13(h)(8) to a

requirement similar to the current

requirement for importers in

§ 82.13(g)(3)(xii). The new requirement

requires exporters to submit an invoice

or sales agreement that includes

language similar to the IRS certificate

for transformation or the destruction

verification for exports of class I

controlled substances to Article 5

Parties to the Protocol (developing

countries).

7. Applying the Recordkeeping and

Reporting Requirements to Material

Obtained From Importers as Well as

Producers for a Person Who Transforms

or Destroys Class I Controlled

Substances

EPA is extending the recordkeeping

and reporting requirement for persons

involved in second-party transformation

and second-party destruction of class I

controlled substances, to the quantities

they themselves did not import.

EPA is adding a requirement that

persons keep records if they transform

or destroy class I controlled substances

that they did not import. The current

regulatory text in § 82.13(i) requires a

person to keep these records only if they

did not produce the transformed or

destroyed class I controlled substance.

With today’s action, EPA is also

adding to § 82.13(m) a requirement that

persons report to EPA the names and

quantities of class I controlled

substances they transform or destroy

when they submit an IRS certificate of

intent to transform or a destruction

verification to an importer. The current

regulatory text in § 82.13(m) requires

persons to report within 45 days of the

end of the control period the quantities

of class I controlled substances they

transform or destroy for which they

submitted an IRS certificate of intent to

transform or a destruction verification to

a producer. EPA is now making the

recordkeeping and reporting

requirements apply equally whether the

person who transforms or destroys the

substances obtains them from a

producer or an importer.

8. Changes to the Recordkeeping and

Reporting Requirements for Entities

Allocated Essential-Use Allowances

EPA is changing the recordkeeping

and reporting requirements for entities

allocated essential-use allowances in

accordance with a decision taken by the

Parties to the Protocol at the Eighth

Meeting in 1996. Decision VIII/9

approved a new reporting format for the

quantities of production and

consumption of controlled substances

obtained by Parties under the essentialuse authorizations. This accounting

framework, included in annex IV of the

document entitled ‘‘Report of the Eighth

Meeting of the Parties to the Montreal

Protocol on Substances That Deplete the

Ozone Layer’’ (UNEP/OzL.Pro.8/12), is

designed to assist the Parties in, among

other things, monitoring the amount of

controlled substances acquired through

production or through import under

essential-use authorizations.

EPA is adopting the exact format

approved by the Parties to the Protocol
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41639

as an adjustment to the quarterly

reporting requirements for each

company allocated essential-use

allowances. Under today’s action, each

company receiving a letter from EPA

that allocates essential-use allowances

for a control period will be required to

submit the information in the Protocol’s

accounting framework for each quarter.

Much of the information required in the

Protocol accounting framework is

currently required under § 82.13(u) of

the rule published in the Federal

Register on May 10, 1995.

The Protocol accounting framework

for essential uses is designed to assist

the Parties in determining whether

quantities of controlled substances

claimed for essential uses are actually

being produced or imported. EPA

wishes to ensure that quantities of

phased-out controlled substances that

the United States nominates to the

Parties as being essential are fully

justified. EPA believes today’s

requirement that companies holding

essential-use allowances complete the

Protocol accounting framework will

ultimately help the United States in

making credible nominations for future

years. The accounting framework

should make more apparent the quantity

of phased-out controlled substance that

each company obtains by expending its

essential-use allowances and the

amount of that material each company

then uses in a given year for

accomplishing the specifically

designated essential use. To more

accurately track the use of CFCs

obtained under the essential-use

exemption, today’s requirement requires

submission of data on the number of

units of each specific product

manufactured in a control period. A

company exhibiting a pattern of holding

unexpended essential-use allowances at

the end of control periods, or a company

exhibiting a pattern of holding

quantities of controlled substances

obtained with expended essential-use

allowances that are not incorporated

into the designated end product during

that same control period, may indicate

over-inflated requests for quantities of

phased-out controlled substances. The

United States government does not want

the appearance of overinflated requests

to jeopardize future approval by the

Parties of requests for essential-use

quantities for controlled substances.

The essential-use procedures

developed internationally and

domestically are designed to strictly

control and limit exceptions to the

production and consumption phaseout

of ozone-depleting substances while at

the same time encouraging a transition

to a complete phaseout. EPA believes

that, in accordance with the intent of

the Decisions taken by the Parties to the

Protocol, each kilogram of a controlled

substance authorized after the phaseout

must be justified as being essential. The

U.S. government, and EPA in particular,

is committed to working with U.S.

companies to continue to obtain the

justified quantities of phased-out

controlled substances for essential uses.

9. Changes to the Reporting

Requirement for Distributors of

Laboratory Supplies Under the Global

Laboratory Essential-Use Exemption

EPA is making several changes and

additions to the current § 82.13(v) to

ease the reporting burden for companies

supplying class I controlled substances

under the laboratory essential-use

exemption. EPA will require that

companies distributing laboratory

supplies in accordance with the global

essential-use exemption in the current

§ 82.4(r) (82.4(t) in these amendments),

and Appendix G to Subpart A, maintain

as records the certifications from each

laboratory customer for each class I

controlled substance ordered in a

control period. EPA will not, however,

require that distributors of laboratory

supplies submit the certifications with

each quarterly report. Under today’s

amendments, distributors of laboratory

supplies will continue to receive

certifications from labs that class I

controlled substances are being

purchased solely for laboratory and

analytical purposes and are not being

used for manufacturing and will not be

resold. The distributor of laboratory

supplies will continue to collect the

certifications but will not be required to

forward them to EPA. The distributor of

laboratory supplies will continue to

report each quarter the total quantity of

each class I controlled substance sold to

each customer under the global

essential-use exemption (new

§ 82.13(x)). Similarly, the distributor

will continue to report each quarter the

quantity of each such substance

received from each producer or importer

(new § 82.13(v)). The total quantity

reported will reflect the quantity of each

class I controlled substance ordered by

all laboratories during the quarter. Each

of the labs ordering a class I controlled

substance will have submitted to the

distributor, for the distributor to

maintain in accordance with

recordkeeping requirements, a one-timeper-year certification as in § 82.13(w) of

the rule published in the Federal

Register on May 10, 1995 (new

§ 82.13(y)).

EPA is collecting information on the

total quantity of class I controlled

substances produced and imported

under the global laboratory essential-use

exemption in order to meet reporting

obligations under the Protocol. In

addition, EPA is collecting information

on the total quantity of class I controlled

substances sold to labs in order to meet

reporting obligations under the Protocol.

EPA believes these obligations under

the Protocol can be met through today’s

changes while at the same time reducing

the reporting burden for distributors of

laboratory supplies.

With today’s action, EPA is permitting

companies only distributing class I

controlled substances as reference

standards for calibrating laboratory

equipment to request an extension of

the reporting requirement (new

§ 82.13(z)). EPA is providing that

companies distributing reference

standards of class I controlled

substances may write a letter to the

Agency requesting to file annual rather

than quarterly reports. The quantities of

class I controlled substances contained

in a reference standard for calibrating

laboratory analytical equipment, such as

a gas chromatograph, are typically

thousandths or ten thousandths of a

kilogram. EPA is creating a process for

replacing the quarterly reporting

requirement with an annual reporting

requirement for companies that only sell

laboratory reference standards, because

the total quantity of a class I controlled

substance sold by such companies

under the global essential-use

exemption during a year will often be

less than a kilogram. EPA is creating

this process for lengthening the

reporting period for companies that only

sell reference standards of class I

controlled substances to ease the overall

reporting burden.

Today’s changes are designed to

reduce the overall reporting burden

without creating opportunities for abuse

of the essential-use exemption for

laboratory and analytical purposes. EPA

wishes to note that today’s action does

not change the packaging and purity

requirements found in Appendix G for

class I controlled substances distributed

for laboratory and analytical purposes

under the global essential-use

exemption.

III. Miscellaneous Additional Changes

Included with today’s revisions are

miscellaneous corrections and minor

changes, such as the inclusion of a

specific address in the definition for

‘‘Administrator’’ in § 82.3. The rule also

includes corrections in § 82.9(a)

regarding Article 5 allowances available

to those producers listed in § 82.5 and

in accordance with the Montreal

Protocol. This rule re-publishes an

updated Appendix C to Subpart A,
41640 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

listing Parties to the Montreal Protocol

and its amendments. Also included are

the new Appendix J and Appendix K to

Subpart A.

IV. Summary of Supporting Analysis

A. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Pub. L.

104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures by State, local

and tribal governments, in the aggregate,

or by the private sector, of $100 million

or more in any one year. If a written

statement is required under section 202,

section 205 of the UMRA generally

requires EPA to identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective or least burdensome

alternative that achieves the objectives

of the rule, unless the Agency explains

why this alternative is not selected or

the selection of this alternative is

inconsistent with law.

Section 203 of the UMRA requires the

Agency to establish a plan for obtaining

input from and informing, educating,

and advising any small governments

that may be significantly or uniquely

affected by the rule. Section 204 of the

UMRA requires the Agency to develop

a process to allow elected state, local,

and tribal government officials to

provide input in the development of any

proposal containing a significant

Federal intergovernmental mandate.

EPA has determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more by State, local and tribal

governments, in the aggregate, or by the

private sector, in any one year. Most of

the provisions in today’s rule fulfill the

obligations of the United States under

the international treaty, The Montreal

Protocol on Substances that Deplete the

Ozone Layer, as well as those

requirements specifically set forth by

Congress in sections 604, 606 and 614

of the Clean Air Act Amendments of

1990. The remainder merely serve to

clarify existing regulatory text and

therefore impose no new additional

enforceable duties on governmental

entities or the private sector. The

majority of the amendments do not

create significant additional costs for

either the public or the private sector

because they address various

implementation issues without major

changes in policy. Viewed as a whole,

all of today’s amendments do not create

a Federal mandate resulting in costs of

$100 million or more in any one year for

State, local and tribal governments, in

the aggregate, or for the private sector.

Thus, today’s rule is not subject to the

requirements of sections 202 and 205 of

the UMRA. EPA has also determined

that this rule contains no regulatory

requirements that might significantly or

uniquely affect small governments;

therefore, EPA is not required to

develop a plan with regard to small

governments under section 203. Finally,

because this proposal does not contain

a significant intergovernmental

mandate, the Agency is not required to

develop a process to obtain input from

elected state, local, and tribal officials

under section 204.

B. Regulatory Flexibility

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

The Agency performed an initial

screening analysis and determined that

this regulation does not have a

significant economic impact on a

substantial number of small entities.

EPA characterized the regulated

community by identifying the SIC codes

of the companies affected by this rule.

The Agency determined that the

members of the regulated community

affected by today’s rule are generally not

small businesses. Small governments

and small not-for-profit organizations

are not subject to the provisions of

today’s rule. The provisions in the

accelerated phaseout rule and today’s

action regulate large, multinational

corporations that either produce,

import, export, transform or destroy

ozone-depleting chemicals controlled by

this rule. To the extent that today’s

actions affect entities other than large,

multinational corporations, there are

few that are small entities and the

economic impact is negligible. Thus,

today’s rule will not have a significant

economic impact on a substantial

number of small entities. The rule

includes changes to recordkeeping or

reporting requirements. Those changes

included in today’s rule that increase

reporting burden only apply to large

companies (pharmaceutical companies

holding essential-use allowances). In

general, for small entities, the changes

in today’s action reduce reporting and

recordkeeping.

EPA has determined that it is not

necessary to prepare a regulatory

flexibility analysis in connection with

this final rule. EPA has also determined

that this rule will not have a significant

economic impact on a substantial

number of small entities.

C. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency

must determine whether this regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines a ‘‘significant’’

regulatory action as one that is likely to

result in a rule that may:

(1) have an annual effect on the

economy of $100 million or more, or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

It has been determined by EPA and

OMB that this rule is not a ‘‘significant

regulatory action’’ within the meaning

of the Executive Order.

D. Applicability of E.O. 13045

Children’s Health Protection

This rule is not subject to E.O. 13045,

entitled ‘‘Protection of Children from

Environmental Health Risks and Safety

Risks’’ (62 FR 19885, April 23, 1997),

because it does not involve decisions on

environmental health risks or safety

risks that may disproportionately affect

children.

E. Paperwork Reduction Act

The revised information collection

requirements in these amendments have

been submitted for approval to OMB

under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq. An Information

Collection Request (ICR) document has

been prepared by EPA (ICR No. 1432.17)

and a copy may be obtained from Sandy

Farmer by mail at OPPE Regulatory

Information Division; U.S.

Environmental Protection Agency

(2137); 401 M St., SW., Washington, DC
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41641

20460, by email at

farmer.sandy@epamail.epa.gov, or by

calling (202) 260–2740. A copy may also

be downloaded off the internet at http:/

/www.epa.gov/icr. The additional

information requirements in these

amendments are not effective until OMB

approves them.

The information collection under this

rule is authorized under sections 603(b)

and 114 of the Clean Air Act

Amendments of 1990 (CAA). This

information collection is conducted to

meet U.S. obligations under Article 7,

Reporting Requirements, of the

Montreal Protocol on Substances that

Deplete the Ozone Layer (Protocol); and

to carry out the requirements of Title VI

of the CAA, including sections 603 and

614.

The reporting requirements included

in the amendments to the current rule

are designed to:

(1) Ensure compliance with the

restrictions on production, import and

export of controlled ozone-depleting

substances after the phaseout of class I

substances (except methyl bromide)

after January 1, 1996;

(2) Allow exempted production and

import for certain essential uses and the

consequent tracking of that production

and import;

(3) Address industry and Federal

concerns regarding the illegal import of

mislabelled used controlled substances

that are claimed to be undercutting U.S.

markets;

(4) Respond to industry comments on

the functioning of the program to

streamline reporting and eliminate

administrative inefficiencies;

(5) Satisfy U.S. obligations under the

international treaty, the Montreal

Protocol on Substances that Deplete the

Ozone Layer (Protocol), to report data

under Article 7;

(6) Fulfill statutory obligations under

Section 603(b) of Title VI of the Clean

Air Act Amendments of 1990 (CAA) for

reporting and monitoring;

(7) Provide information to report to

Congress on the production, use and

consumption of class I and class II

controlled substances as statutorily

required in Section 603(d) of Title VI of

the CAA.

EPA informs respondents that they

may assert claims of business

confidentiality for any of the

information they submit. Information

claimed confidential will be treated in

accordance with the procedures for

handling information claimed as

confidential under 40 CFR Part 2,

Subpart B, and will be disclosed only if

EPA determines that the information is

not entitled to confidential treatment. If

no claim of confidentiality is asserted

when the information is received by

EPA, it may be made available to the

public without further notice to the

respondents (40 CFR 2.203).

The information collection

requirements for this action have an

estimated reporting burden averaging

23.3 hours per response. This estimate

includes time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed and completing the

collection of information.

The estimate includes the time

needed to comply with EPA’s reporting

requirements, as well as that used for

the completion of the reports under the

amended regulations.

Collection activity Number of

respondents

Responses/

respondent

Total

responses

Hours per

response Total hours

Producer’s Report ..................................................................................... 8 4 32 16 512

Importer’s Report ...................................................................................... 12 4 48 16 768

Notification of Trade ................................................................................. 2 1 2 2 4

Export Report ............................................................................................ 10 1 10 80 800

Lab Certification ........................................................................................ 1000 1 1000 1 1000

Class II Report .......................................................................................... 14 4 56 16 896

Transformation & Destruction ................................................................... 15 1 15 80 1200

Essential Use Allowance Holders ............................................................. 12 4 48 32 1536

Lab Suppliers ............................................................................................ 4 4 16 24 384

Lab Suppliers—Reference Standards ...................................................... 10 1 10 16 160

Total burden hrs ............................................................................. .................... .................... .................... .................... 7260

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An Agency may not conduct or

sponsor, and a person is not required to

respond to, a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR Part 9 and 48 CFR Chapter

15.

Send comments on the Agency’s need

for this information, the accuracy of the

provided burden estimates, and any

suggested methods for minimizing

respondent burden, including through

the use of automated collection

techniques to the Director, OPPE

Regulatory Information Division; U.S.

Environmental Protection Agency

(2137); 401 M St., SW; Washington, DC

20460; and to the Office of Information

and Regulatory Affairs, Office of

Management and Budget, 725 17th St.,

NW, Washington, DC 20503, marked

‘‘Attention: Desk Officer for EPA.’’

Include the ICR number in any

correspondence.

F. Executive Order 12875

Today’s action does not impose any

unfunded mandate upon any State,

local, or tribal government; therefore,

Executive Order 12875 does not apply

to this rulemaking.

G. Submission to Congress and the

General Accounting Office

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a
41642 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

List of Subjects in 40 CFR Part 82

Environmental protection,

Administrative practice and procedure,

Air pollution control, Chemicals,

Chlorofluorocarbons, Exports,

Hydrochlorofluorocarbons, Imports,

Ozone layer, Reporting and

recordkeeping requirements.

Dated: July 17, 1998.

Carol M. Browner,

Administrator.

40 CFR part 82 is amended as follows:

PART 82—PROTECTION OF

STRATOSPHERIC OZONE

1. The authority citation for part 82

continues to read as follows:

Authority: 42 U.S.C. 7414, 7601, 7671–

7671q.

Subpart A—Production and

Consumption Controls

2. Section 82.1 is revised to read as

follows:

§ 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 nonParties.

(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 [Removed and reserved]

3. Section 82.2 is removed and

reserved.

4. Section 82.3 is amended by adding

new definitions in alphabetical order for

the terms ‘‘Confer’’, ‘‘Individual

Shipment’’, ‘‘Montreal Anniversary

Amendments’’, ‘‘National Security

Allowances’’, ‘‘Non-Objection Notice’’,

and ‘‘Source Facility’’ and revising

definitions in alphabetical order for

‘‘Administrator’’, ‘‘Destruction’’,

‘‘Importer’’, ‘‘Nations complying with,

but not joining, the Protocol’’,

‘‘Transhipment’’, and ‘‘Unexpended

Essential-Use Allowances’’.

§ 82.3 Definitions.

As used in this subpart, the term:

Administrator means the

Administrator of the United States

Environmental Protection Agency or his

authorized representative. For purposes

of reports and petitions, the

Administrator must be written at the

following mailing address: EPA (6205J),

Stratospheric Protection Division, 401

M Street, SW, Washington, DC 20460.

* * * * *

Confer means to shift the essential-use

allowances obtained under § 82.4(u)

from the holder of the unexpended

essential-use allowance to a person for

the production of a specified controlled

substance, or to shift the destruction

and transformation credits obtained

under § 82.9(f) from the holder of the

unexpended destruction and

transformation credits to a person for

the production of a specified controlled

substance.

* * * * *

Destruction means the expiration of a

controlled substance to the destruction

efficiency actually achieved, unless

considered completely destroyed as

defined in this section. Such destruction

does not result in a commercially useful

end product and uses 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; or

(7) Municipal waste incinerators only

for the destruction of foams.

* * * * *

Importer means the importer of record

listed on U.S. Customs Service forms for

imported controlled substances, used

controlled substances or controlled

products.

Individual shipment means the

kilograms of a used controlled substance

for which a person may make one (1)

U.S. Customs entry, not to be disaggregated, as identified in the nonobjection letter from the Administrator

under § 82.13(g).

* * * * *

Montreal Anniversary amendments

means the Montreal Protocol, as

amended at the Ninth Meeting of the

Parties to the Montreal Protocol in

Montreal in 1997.

National Security allowances means

the privileges granted by this subpart to

produce or import class II controlled

substances until January 1, 2015, as

determined by the Administrator in

accordance with § 82.9(g).

Nations complying with, but not

joining, the Protocol means any nation

listed in Appendix C, Annex 2, to this

subpart.

Non-objection notice means the

privilege granted by the Administrator

to import a specific individual shipment

of used controlled substance in

accordance with § 82.13(g).

* * * * *

Source facility means the exact

location from which a used controlled

substance was recovered from a piece of

equipment, including the name of the

company responsible for, or owning the

location, a contact person at the

location, the mailing address for that

specific location, as well as a phone

number and a fax number for the

contact person at the location.

* * * * *

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.

* * * * *

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.

* * * * *

5. Section 82.4 is amended by revising

paragraphs (d), (e), by redesignating

paragraphs (l) through (s) as (n) through

(u) and redesignating paragraphs (f)

through (k) as (g) through (l); by revising

newly designated paragraph, (j), (t), and

by adding paragraphs (f), (m), (l)(4),

(t)(3), and (u)(3) to read as follows:

§ 82.4 Prohibitions.

* * * * *

(d) Effective January 1, 1996, for any

class I, Group I, Group II, Group III,
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41643

Group IV, Group V, or Group VII

controlled substances, 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 essentialuse allowances or exemption as

allocated under this section, or the

amount of unexpended destruction and

transformation credits obtained under

§ 82.9, 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.

(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) Effective January 1, 1996, no

person may place an order by conferring

transformation and destruction credits

for the production of the class I

controlled substance, at any time in any

control period, in excess of the amount

of transformation and destruction

credits, 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 class I

controlled substance, at any time in any

control period, in excess of the amount

of transformation and destruction

credits, 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 transformation and

destruction credits, at any time in any

control period, other than for the class

I controlled substance(s) for which they

received transformation and destruction

credits as under § 82.9(f). Every

kilogram of excess production ordered

in excess of the unexpended

transformation and destruction credits

conferred to the producer constitutes a

separate violation of this subpart. Every

kilogram of excess import in excess of

the unexpended transformation and

destruction credits held at that time

constitutes a separate violation of this

subpart.

* * * * *

(j) Effective January 1, 1995, no

person may import, at any time in any

control period, a used class I controlled

substance, without having received a

non-objection notice from the

Administrator in accordance with

§ 82.13(g)(2) and (3). A person issued 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.

* * * * *

(l) * * *

(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 Amendments

(as noted in Appendix C, Annex l, to

this subpart), unless that foreign state is

complying with the Copenhagen

Amendments (as noted in Appendix C,

Annex 2, to this subpart.

(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.

* * * * *

(t) Effective January 1, 1996, essentialuse allowances are apportioned to a

person under paragraph (t)(2) of this

section for the exempted production or

importation of specified class I

controlled substances solely for the

purposes listed in paragraphs (t)(1)(i)

and (ii) of this section. Effective October

5, 1998 production and importation of

class I controlled substances for the

purposes listed in paragraph (t)(1)(iii) of

this section are exempted as an essential

use if conducted in accordance with

requirements in § 82.13(v) through (z)

and Appendix G to subpart A.

* * * * *

(3) Effective for the 1999 control

period and thereafter, EPA will allocate

essential-use allowances for quantities

of a specific class I controlled substance

by means of a confidential letter to each

person nominated by the United States

to the UNEP Ozone Secretariat of the

Montreal Protocol and approved by the

Parties for an essential use exemption

for the control period in question. EPA

will thereafter publish a notice in the

Federal Register of the allocations made

for the control period in question.

(u) The following exemptions apply to

the production and consumption

restrictions under paragraphs (n), (o),

and (p), of this section:

* * * * *

(3) National security interests—A

person may obtain national security

allowances to produce HCFC–141b after

January 1, 2003, as an exemption to

paragraph (n) of this section, only for

specific purposes deemed by the

Administrator to be national security

interests in accordance with the

procedures in § 82.9. A person may

obtain national security allowances to

import HCFC-141b after January 1, 2003,

as an exemption to paragraph (o) of this

section, only for specific purposes

deemed by the Administrator to be

national security interests in accordance

with the procedures in § 82.9. No person

may produce or import a class II

controlled substance under this

paragraph on or after January 1, 2030.

6. Section 82.9 is amended by revising

the section heading and paragraphs, (a)

and (c), and adding paragraph (g) to read

as follows:

§ 82.9 Availability of allowances in

addition to baseline production allowances.

(a) Every person apportioned baseline

production allowances for class I

controlled substances under § 82.5 (a)

through (f) of this subpart is also granted

Article 5 allowances equal to:

(1) 10 percent of their baseline

production allowances listed for class I,

Group I, Group III, Group IV, and Group

V controlled substances listed under
41644 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

§ 82.5 of this subpart for each control

period ending before January 1, 1996;

(2) 10 percent of their baseline

production allowances for class I, Group

VI controlled substances listed under

§ 82.5 of this subpart for each control

period ending before January 1, 2001;

(3) 15 percent of their baseline

production allowances for class I, Group

II controlled substances listed under

§ 82.5 of this subpart for each control

period beginning January 1, 1994, until

January 1, 2003;

(4) 15 percent of their baseline

production allowances for class I, Group

I, Group III, Group IV, and Group V

controlled substances listed under

§ 82.5 of this subpart for each control

period beginning January 1, 1996, until

January 1, 2010; and

(5) 15 percent of their baseline

production allowances for class I, Group

VI controlled substances listed under

§ 82.5 of this subpart for each control

period beginning January 1, 2005, until

January 1, 2015.

* * * * *

(c) A company may increase or

decrease its production allowances or

its Article 5 allowances by trading with

another Party to the Protocol according

to the provision 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 that the

nation is permitted under the Montreal

Protocol or to receive from the person

for the current control period some

amount of production that the person is

permitted under this subpart. If the

controlled substance is to be returned to

the Party from whom production

allowances are received, the request for

production allowances shall also be

considered a request for consumption

allowances under § 82.10(c). If the

controlled substance 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 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 that is 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 and level of

production 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.

(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 and level of

allowable production to be 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 allowances held by United

States entities.

(4) The Administrator will issue the

person a notice either granting or

deducting production allowances or

Article 5 allowances and specifying the

control period to which the transfer

applies, provided that the request meets

the requirement of paragraph (c)(1) of

this section for trades from Parties and

paragraphs (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 trades to Parties.

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 allowances or Article 5

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 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

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
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41645

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.

* * * * *

(g) Effective October 5, 1998, and

until December 31, 1999, an agency,

department, or instrumentality of the

United States may petition the

Administrator for national security

allowances for HCFC–141b in

accordance with § 82.4(v) and as an

exemption to prohibitions in §§ 82.4(o)

through 82.4(p) by submitting the

following:

(1) Name and address of U.S.

government national security entity;

name of contact person and phone and

fax numbers and e-mail address;

(2) Quantity (in kilograms) of HCFC–

141b needed for the control period for

the national security interest;

(3) A description of the national

security interest met by the use of

HCFC–141b;

(4) A technical description of the use

of HCFC–141b;

(5) A technical description of why

alternatives and substitutes are not

sufficient to eliminate the national

security use of HCFC–141b; and

(6) A detailed analysis showing why

stockpiled, recovered or recycled

quantities are deemed to be technically

and economically infeasible for use.

(i) Effective October 5, 1998, the

Administrator will issue an agency,

department, or instrumentality of the

United States national security

allowances for HCFC–141b that the

Administrator determines are necessary

to national security interests based on

information received in accordance with

paragraph (g) of this section. The

Administrator may decide not to grant

national security allowances if: the

national security interest can be met by

the use of a substance other than HCFC–

141b; the national security interest can

be met by the use of existing supplies

of HCFC–141b; there is evidence of

fraud or misrepresentation; approval of

the allowances would be inconsistent

with the Montreal Protocol or Decisions

of the Parties; approval of the

allowances would be inconsistent with

the Clean Air Act Amendments of 1990;

or approval of the allowances may

reasonably be expected to endanger

public health or welfare. The grant of

national security allowances will be

effective on the date that the notice

specified in paragraph (g)(2) of this

section is issued.

(ii) Effective October 5, 1998, if the

Administrator decides not to grant the

request for national security allowances

for any of the reasons stated in

paragraph (g)(1) of this section, the

Administrator will issue an objection

letter disallowing the request for

national security allowances. Within ten

working days after receipt of the

objection letter, the requestor may file a

one-time petition of appeal, with

supporting reasons, with the

Administrator. The Administrator may

affirm the disallowance or grant an

allowance, as she/he finds appropriate

in light of the available evidence. If no

appeal is taken by the tenth day after

receipt of the objection letter, the

disallowance will be final on that day.

7. Section 82.12 is amended by

adding paragraph (a)(3) to read as

follows:

§ 82.12 Transfers.

(a) * * *

(3) A person holding essential-use

allowances for class I, Group I

controlled substances for metered-dose

inhalers (MDIs) may increase or

decrease their essential-use allowances

in an emergency situation by trading

with another Party to the Protocol

according to the provisions under this

paragraph (a)(3). A nation listed in

Appendix C to this subpart (Parties to

the Montreal Protocol) must agree either

to transfer to the person for a specified

control period some amount of their

essential-use authorizations for MDIs

that the nation is permitted under the

Montreal Protocol or to receive from the

person for a specified control period

some amount of essential-use

allowances that the person is permitted

under this subpart.

(i) For trades from a Party or to a

Party, the person must submit to the

Administrator a request to revise and

transfer essential-use authorizations that

sets forth the following:

(A) The identity and address of the

person;

(B) The identity of the Party;

(C) The names, telephone and fax

numbers of contact persons for the

person and for the Party;

(D) The chemical type and level of

essential-use authorizations being

transferred;

(E) The control period(s) to which the

transfer applies;

(F) Documentation and analysis

confirming the emergency situation due

to a catastrophic natural event or war

regarding the manufacture of MDIs, (if

the situation exists in a foreign state, a

signed document from the principal

diplomatic representative in that

nation’s embassy in the United States

introducing a letter from the authority

within that foreign state responsible for

health and a letter from the authority

within that foreign state responsible for

environmental international agreements

certifying an emergency situation due to

a catastrophic natural event or war and

agreeing to a transfer of essential-use

authorizations);

(G) Documentation and analysis that

demonstrates the emergency situation

seriously threatens the treatment of

patients with asthma or Chronic

Obstructive Pulmonary Disease (COPD),

(if the situation exists in a foreign state,

a signed document from the principal

diplomatic representative in that

nation’s embassy in the United States

introducing a letter from the authority

within that foreign state responsible for

health and a letter from the authority

within that foreign state responsible for

environmental international agreements

certifying an emergency situation that

seriously threatens the treatment of

patients with asthma or COPD and

agreeing to a transfer of essential-use

authorizations); and

(H) A certification of the accuracy of

the information submitted.

(ii) After receiving a transfer request

that meets the requirements of

paragraph (a)(3) of this section, the

Administrator may, at her/his

discretion, consider the following

factors in deciding whether to approve

such a transfer:

(A) Information sufficient to make a

determination regarding whether the

situation is an emergency due to a

catastrophic natural event or war;

(B) Possible serious threats to the

treatment of patients with asthma and

COPD;

(C) Possible creation of economic

hardship;

(D) Possible effects on trade;

(E) Potential environmental

implications; and

(F) The total amount of unexpended

essential-use allowances held by United

States entities.

(iii) The Administrator will issue a

notice to the UNEP Ozone Secretariat,

through the U.S. Department of State,

agreeing with the transfer of essentialuse authorizations and specifying the

control period to which the transfer

applies, provided that the request meets

the requirement of paragraph (a)(3)(i), of

this section for trades from Parties or

trades to Parties, unless the

Administrator has decided to

disapprove the trade under paragraph

(a)(3)(ii) of this section. For an approved

trade from a Party, the Administrator

will issue a letter that revises the
41646 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

essential-use allowances held by the

person to equal the unexpended

essential-use allowances held by the

person under this subpart plus the

amount of essential-use authorizations

transferred from the Party for the

specific control period. For an approved

trade to a Party, the Administrator will

issue a notice that revises the essentialuse allowances held by the person to

equal the unexpended essential-use

allowances held by the person under

this subpart minus the amount of

essential-use authorizations transferred

to the Party for the specific control

period.

* * * * *

8. Section 82.13 is amended by

revising paragraphs (b), (f)(1)(iv), (f)(2)

introductory text, (f)(2) (xiv), and

(f)(2)(xvi), by adding (f)(2)(xvii), by

removing paragraph (f)(3)(v) and

redesignating (f)(3)(vi) through (xiii) as

(f)(3)(v) through (xii), and revising

newly designated (f)(3)(xi) through

(xiii), by revising paragraphs (g)(1)(vii),

(g)(1)(xvi), (g)(2) and the first (g)(3), by

adding paragraph (g)(1)(xvii), by

redesignating the second (g)(3)

‘‘Reporting Requirements—Importers,’’

as (g)(4) and revising the newly

designated (g)(4)(iii) and (xiii), by

adding paragraphs (g)(4)(xiv) and

(g)(4)(xv), by revising paragraphs (h)(8),

(i) introductory text, (m), (u), (v), and

redesignating paragraph (w) as

paragraph (y), and adding paragraphs

(w), (x) and (z) to read as follows:

§ 82.13 Recordkeeping and reporting

requirements.

* * * * *

(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.

* * * * *

(f) * * *

(1) * * *

(iv) The quantity of any fugitive losses

accounted for in the production figures;

and

* * * * *

(2) Every producer of a class I or class

II controlled substance during a control

period must maintain the following

records:

* * * * *

(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.

* * * * *

(xvi) Written verifications from a U.S.

purchaser that the controlled substance

was exported to an Article 5 country in

cases when Article 5 allowances were

expended during production; and

(xvii) Written certifications that the

quantities of controlled substances

purchased will be used as a process

agent in accordance with the definition

of controlled substance in § 82.3.

* * * * *

(3) * * *

(xi) The certifications from essentialuse 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, 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; or, if

sales are made directly to laboratories,

certifications from laboratories that the

controlled substances will only be used

for laboratory applications and will not

be resold or used in manufacturing; and

(xiii) The certifications from

purchasers of controlled substances that

the controlled substance will be used as

a process agent in accordance with the

definition of controlled substance in

§ 82.3.

* * * * *

(g) * * *

(1) * * *

(vii) The commodity code for the

controlled substances shipped, which

must be one of those listed in Appendix

K to this subpart;

* * * * *

(xvi) Copies of certifications that

imported controlled substances are

being purchased for essential laboratory

and analytical applications or being

purchased for eventual sale to

laboratories that certify the controlled

substances are for essential laboratory

applications.

(xvii) Written certifications that the

quantities of controlled substances

purchased will be used as a process

agent in accordance with the definition

of controlled substance in § 82.3.

* * * * *

(2) Petitioning—importers of used,

recycled or reclaimed controlled

substances. For each individual

shipment (not to be aggregated) over 5

pounds of a used controlled substance

as defined in § 82.3, 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) The name and quantity in

kilograms of the used controlled

substance to be imported;

(ii) The name and address of the

importer, the importer ID number, the

contact person, and the phone and fax

numbers;

(iii) Name, address, contact person,

phone number and fax number of all

previous source facilities from which

the used controlled substance was

recovered;

(iv) A detailed description of the

previous use of the controlled substance

at each source facility and dated

documents indicating the date the

material was put into the equipment at

each source facility (material must have

remained in the equipment at least 24

months prior to recovery to be

considered previously used);

(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,

phone number and fax 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 a copy of the contract for the

purchase of the controlled substance

that includes the name, address, contact

person, phone number and fax number

of the purchaser;

(ix) The name, address, contact

person, phone number and fax number

of the U.S. reclamation facility, where

applicable;
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41647

(x) If someone at the source facility

recovered the controlled substance from

the equipment, the name and phone and

fax numbers of that person;

(xi) If the imported controlled

substance was reclaimed in a foreign

Party, the name, address, contact

person, phone number and fax number

of any or all foreign reclamation

facility(ies) responsible for reclaiming

the cited shipment;

(xii) An export license from the

appropriate government agency in the

country of export and, if recovered in

another country, the export license from

the appropriate government agency in

that country;

(xiii) If the imported used controlled

substance is intended to be sold as a

refrigerant in the U.S., the name and

address of the U.S. reclaimer who will

bring the material to the standard

required under section 608 (§ 82.152(g))

of the CAA, if not already reclaimed to

those specifications; and

(xiv) A certification of accuracy of the

information submitted in the petition.

(3) 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 reasons listed in this

paragraph, 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;

(B) If the Administrator determines

that any portion of the petition contains

false or misleading information or has

reason to believe 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 the spirit of statements made

by government officials in the country

of recovery or export regarding

controlled ozone-depleting substances;

(F) If the Administrator has received

information indicating that a person

listed in the petition has at any time

been willing to produce false

information regarding trade in

controlled substances, including

information required by EPA or required

by the appropriate government agency

in the exporting country;

(G) If the Administrator has received

information indicating that a person

listed in the petition is in violation of

a requirement in any regulation

published by the U.S. Environmental

Protection Agency;

(H) If the Administrator determines

that, for the current control period, the

U.S. demand for the controlled

substance cited in the petition can be

satisfied by domestic stockpiles and

estimated recycling and reclamation of

quantities contained in domestic

equipment; or

(I) 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 repetition.

(iv) In cases where the Administrator

has no reason to 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 petition and the nonobjection 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) Once the Administrator issues a

non-objection notice, the person

receiving the non-objection notice is

required to import the individual

shipment of used class I controlled

substance within the same control

period as the date stamped on the nonobjection notice.

(viii) A person receiving a nonobjection 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) U.S. Customs entry documents for

the import that must include one of the

commodity codes from Appendix K to

this subpart.

(4) * * *

(iii) The quantity of those controlled

substances imported that are used

controlled substances.

* * * * *

(xiii) The certifications from essentialuse allowance holders and laboratory

customers stating that the controlled

substances were purchased solely for

specified essential uses and will not be

resold or used in manufacturing; or, if

sales are made directly to laboratories,

certifications from laboratories that the

controlled substances will only be used

for laboratory applications 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 certifications from

purchasers of controlled substances that

the controlled substance will be used as

a process agent in accordance with the

definition of controlled substance in

§ 82.3.

* * * * *

(h) * * *

(8) 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
41648 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

destruction verifications (as in

paragraph (k) of this section) showing

that the purchaser or recipient intends

to destroy the controlled substances.

(i) Every person who has requested

additional production allowances under

§ 82.9(e) of this subpart or destruction

and transformation credits under

§ 82.9(f) of this subpart or consumption

allowances under § 82.10(b) of this

subpart or who transforms or destroys

class I controlled substances not

produced or imported by that person

must maintain the following:

* * * * *

(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 sectioin) 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.

* * * * *

(u) Holders of essential-use

allowances—reporting. Within 30 days

of the end of every quarter, any person

allocated essential-use allowances

through an EPA letter must submit to

the Administrator a report containing

the following information:

(1) The quantity of each controlled

substance, in kilograms, purchased and

received from each producer and each

importer during that quarter;

(2) The gross quantity of each

controlled substance, in kilograms, that

was used for the essential use during

that quarter (for Metered Dose Inhalers,

this is the total quantity of each

controlled substance that was filled into

Metered Dose Inhalers canisters during

the quarter and the quantity used in the

manufacturing process that may have

been emitted, used for cleaning,

recycled or destroyed);

(3) The quantity of each controlled

substance, in kilograms, that was

destroyed during the quarter (for

Metered Dose Inhalers, the controlled

substance was used in the manufacture

of Metered Dose Inhalers but was not

incorporated into marketable Metered

Dose Inhalers canisters);

(4) The quantity of each controlled

substance, in kilograms, that was

emitted during the essential-use during

the quarter;

(5) For Metered Dose Inhalers, for the

fourth quarter report only, the quantity

of each controlled substance, in

kilograms, that was incorporated into all

marketable Metered Dose Inhalers;

(6) For Metered Dose Inhalers, for the

fourth quarter report only, the quantity

of each controlled substance, in

kilograms, contained in Metered Dose

Inhalers that were exported during the

control period;

(7) For the fourth quarter report only,

the quantity of each controlled

substance, in kilograms, held in

inventory, that was acquired with

essential use allowances in all control

periods;

(8) For the fourth quarter report only,

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; and

(9) For Metered Dose Inhalers, for the

fourth quarter report only, the total

number of units of each specific product

manufactured in the control period,

(including marketable and defective

units).

(v) Any distributor of laboratory

supplies receiving class I controlled

substances under the global laboratory

essential-use exemption for sale to

laboratory customers must report

quarterly the quantity received of each

class I controlled substance from each

producer or importer.

(w) Any distributor of laboratory

supplies who purchased controlled

substances under the global laboratory

essential-use exemption must maintain

as records copies of certifications from

laboratory customers provided to the

distributor pursuant to paragraph (y) of

this section.

(x) Any distributor of laboratory

supplies who purchased controlled

substances under the global laboratory

essential-use exemption must submit

quarterly (except distributors following

procedures in § 82.4(z)) the quantity of

each controlled substance purchased by

each laboratory customer whose

certification was previously provided to

the distributor pursuant to paragaph (y)

of this section.

* * * * *

(z) Any distributor of laboratory

supplies, who purchased class I

controlled substances under the global

laboratory essential-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 (x) 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 (y)

of this section.

9. Appendix C to Subpart A is revised

to read as follows:

Appendix C to Subpart A—Parties to

the Montreal Protocol (as of February

19, 1998)

Foreign state Montreal

protocol

London

amendments

Copenhagen amendments

Algeria ...................................................................................................................................................... ✔ ✔ ....................

Antigua and Barbuda ............................................................................................................................... ✔ ✔ ✔

Argentina .................................................................................................................................................. ✔ ✔ ✔

Australia .................................................................................................................................................... ✔ ✔ ✔

Austria ...................................................................................................................................................... ✔ ✔ ✔

Azerbaijan ................................................................................................................................................. ✔ ✔ ✔

Bahamas .................................................................................................................................................. ✔ ✔ ✔

Bahrain ..................................................................................................................................................... ✔ ✔ ✔

Bangladesh ............................................................................................................................................... ✔ ✔ ....................

Barbados .................................................................................................................................................. ✔ ✔ ✔

Belarus ..................................................................................................................................................... ✔ ✔ ....................

Belgium ..................................................................................................................................................... ✔ ✔ ✔

Belize ........................................................................................................................................................ ✔ ✔ ✔

Benin ........................................................................................................................................................ ✔ .................... ....................
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41649

Foreign state Montreal

protocol

London

amendments

Copenhagen amendments

Bolivia ....................................................................................................................................................... ✔ ✔ ✔

Bosnia and Herzegovina .......................................................................................................................... ✔ .................... ....................

Botswana .................................................................................................................................................. ✔ ✔ ✔

Brazil ......................................................................................................................................................... ✔ ✔ ✔

Brunei Darussalam ................................................................................................................................... ✔ .................... ....................

Bulgaria .................................................................................................................................................... ✔ .................... ....................

Burkina Faso ............................................................................................................................................ ✔ ✔ ✔

Burundi ..................................................................................................................................................... ✔ .................... ....................

Cameroon ................................................................................................................................................. ✔ ✔ ✔

Canada ..................................................................................................................................................... ✔ ✔ ✔

Central African Republic .......................................................................................................................... ✔ .................... ....................

Chad ......................................................................................................................................................... ✔ .................... ....................

Chile ......................................................................................................................................................... ✔ ✔ ✔

China ........................................................................................................................................................ ✔ ✔ ....................

Colombia .................................................................................................................................................. ✔ ✔ ✔

Comoros ................................................................................................................................................... ✔ ✔ ....................

Congo ....................................................................................................................................................... ✔ ✔ ....................

Congo, Democratic Republic of ............................................................................................................... ✔ ✔ ✔

Costa Rica ................................................................................................................................................ ✔ .................... ....................

Cote d’Ivoire ............................................................................................................................................. ✔ ✔ ....................

Croatia ...................................................................................................................................................... ✔ ✔ ✔

Cuba ......................................................................................................................................................... ✔ .................... ....................

Cyprus ...................................................................................................................................................... ✔ ✔ ....................

Czech Republic ........................................................................................................................................ ✔ ✔ ✔

Denmark ................................................................................................................................................... ✔ ✔ ✔

Dominica ................................................................................................................................................... ✔ ✔ ....................

Dominican Republic ................................................................................................................................. ✔ .................... ....................

Ecuador .................................................................................................................................................... ✔ ✔ ✔

Egypt ........................................................................................................................................................ ✔ ✔ ✔

El Salvador ............................................................................................................................................... ✔ .................... ....................

Equatorial Guinea ..................................................................................................................................... .................... .................... ....................

Estonia ...................................................................................................................................................... ✔ .................... ....................

Ethiopia ..................................................................................................................................................... ✔ .................... ....................

European Community ............................................................................................................................... ✔ ✔ ✔

Federated States of Micronesia ............................................................................................................... ✔ .................... ....................

Fiji ............................................................................................................................................................. ✔ ✔ ....................

Finland ...................................................................................................................................................... ✔ ✔ ✔

France ...................................................................................................................................................... ✔ ✔ ✔

Gabon ....................................................................................................................................................... ✔ .................... ....................

Gambia ..................................................................................................................................................... ✔ ✔ ....................

Georgia ..................................................................................................................................................... ✔ .................... ....................

Germany ................................................................................................................................................... ✔ ✔ ✔

Ghana ....................................................................................................................................................... ✔ ✔ ....................

Greece ...................................................................................................................................................... ✔ ✔ ✔

Greneda .................................................................................................................................................... ✔ ✔ ....................

Guatemala ................................................................................................................................................ ✔ .................... ....................

Guinea ...................................................................................................................................................... ✔ ✔ ....................

Guyana ..................................................................................................................................................... ✔ .................... ....................

Honduras .................................................................................................................................................. ✔ .................... ....................

Hungary .................................................................................................................................................... ✔ ✔ ✔

Iceland ...................................................................................................................................................... ✔ ✔ ✔

India .......................................................................................................................................................... ✔ ✔ ....................

Indonesia .................................................................................................................................................. ✔ ✔ ....................

Iran, Islamic .............................................................................................................................................. ✔ ✔ ✔

Ireland ....................................................................................................................................................... ✔ ✔ ✔

Israel ......................................................................................................................................................... ✔ ✔ ✔

Italy ........................................................................................................................................................... ✔ ✔ ✔

Jamaica .................................................................................................................................................... ✔ ✔ ✔

Japan ........................................................................................................................................................ ✔ ✔ ✔

Jordan ....................................................................................................................................................... ✔ ✔ ✔

Kenya ....................................................................................................................................................... ✔ ✔ ✔

Kiribati ....................................................................................................................................................... ✔ .................... ....................

Korea, Democratic People’s Republic of ................................................................................................. ✔ .................... ....................

Korea, Republic of .................................................................................................................................... ✔ ✔ ✔

Kuwait ....................................................................................................................................................... ✔ ✔ ✔

Latvia ........................................................................................................................................................ ✔ .................... ....................

Lebanon .................................................................................................................................................... ✔ ✔ ....................

Lesotho ..................................................................................................................................................... ✔ ✔ ....................

Liberia ....................................................................................................................................................... ✔ ✔ ✔

Libyan Arab Jamahiriya ............................................................................................................................ ✔ .................... ....................

Liechtenstein ............................................................................................................................................ ✔ ✔ ✔

Lithuania ................................................................................................................................................... ✔ ✔ ✔
41650 Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations

Foreign state Montreal

protocol

London

amendments

Copenhagen amendments

Luxembourg .............................................................................................................................................. ✔ ✔ ✔

Madagascar .............................................................................................................................................. ✔ .................... ....................

Malawi ...................................................................................................................................................... ✔ ✔ ✔

Malaysia ................................................................................................................................................... ✔ ✔ ✔

Madives .................................................................................................................................................... ✔ ✔ ....................

Mali ........................................................................................................................................................... ✔ ✔ ....................

Malta ......................................................................................................................................................... ✔ ✔ ....................

Marshall Islands ....................................................................................................................................... ✔ ✔ ✔

Mauritania ................................................................................................................................................. ✔ .................... ....................

Mauritius ................................................................................................................................................... ✔ ✔ ✔

Mexico ...................................................................................................................................................... ✔ ✔ ✔

Modlova .................................................................................................................................................... ✔ .................... ....................

Monaco ..................................................................................................................................................... ✔ ✔ ....................

Mongolia ................................................................................................................................................... ✔ ✔ ✔

Morocco .................................................................................................................................................... ✔ ✔ ✔

Mozambique ............................................................................................................................................. ✔ ✔ ✔

Myanmar ................................................................................................................................................... ✔ ✔ ....................

Namibia .................................................................................................................................................... ✔ ✔ ....................

Nepal ........................................................................................................................................................ ✔ ✔ ....................

Netherlands .............................................................................................................................................. ✔ ✔ ✔

New Zealand ............................................................................................................................................ ✔ ✔ ✔

Nicaragua ................................................................................................................................................. ✔ .................... ....................

Niger ......................................................................................................................................................... ✔ ✔ ....................

Nigeria ...................................................................................................................................................... ✔ .................... ....................

Norway ..................................................................................................................................................... ✔ ✔ ✔

Pakistan .................................................................................................................................................... ✔ ✔ ✔

Panama .................................................................................................................................................... ✔ ✔ ✔

Papua New Guinea .................................................................................................................................. ✔ ✔ ....................

Paraguay .................................................................................................................................................. ✔ ✔ ....................

Peru .......................................................................................................................................................... ✔ ✔ ....................

Philippines ................................................................................................................................................ ✔ ✔ ....................

Poland ...................................................................................................................................................... ✔ ✔ ✔

Portugal .................................................................................................................................................... ✔ ✔ ....................

Qatar ......................................................................................................................................................... ✔ ✔ ✔

Romania ................................................................................................................................................... ✔ ✔ ....................

Russian Federation .................................................................................................................................. ✔ ✔ ....................

Saint Kitts & Nevis ................................................................................................................................... ✔ .................... ....................

Saint Lucia ................................................................................................................................................ ✔ .................... ....................

Saint Vincent and the Grenadines ........................................................................................................... ✔ ✔ ✔

Samoa ...................................................................................................................................................... ✔ .................... ....................

Saudi Arabia ............................................................................................................................................. ✔ ✔ ✔

Senegal .................................................................................................................................................... ✔ ✔ ....................

Seychelles ................................................................................................................................................ ✔ ✔ ✔

Singapore ................................................................................................................................................. ✔ ✔ ....................

Slovakia .................................................................................................................................................... ✔ ✔ ✔

Slovenia .................................................................................................................................................... ✔ ✔ ....................

Solomon Islands ....................................................................................................................................... ✔ .................... ....................

South Africa .............................................................................................................................................. ✔ ✔ ....................

Spain ........................................................................................................................................................ ✔ ✔ ✔

Sri Lanka .................................................................................................................................................. ✔ ✔ ✔

Sudan ....................................................................................................................................................... ✔ .................... ....................

Suriname .................................................................................................................................................. ✔ .................... ....................

Swaziland ................................................................................................................................................. ✔ .................... ....................

Sweden ..................................................................................................................................................... ✔ ✔ ✔

Switzerland ............................................................................................................................................... ✔ ✔ ✔

Syrian Arab Republic ............................................................................................................................... ✔ .................... ....................

Tajikistan .................................................................................................................................................. ✔ ✔ ....................

Tanzania, United Republic of ................................................................................................................... ✔ ✔ ....................

Thailand .................................................................................................................................................... ✔ ✔ ✔

The Former Yugoslav Republic of Macedonia ........................................................................................ ✔ .................... ....................

Togo ......................................................................................................................................................... ✔ .................... ....................

Trinidad and Tobago ................................................................................................................................ ✔ .................... ....................

Tunisia ...................................................................................................................................................... ✔ ✔ ✔

Turkey ....................................................................................................................................................... ✔ ✔ ✔

Turkmenistan ............................................................................................................................................ ✔ ✔ ....................

Tuvalu ....................................................................................................................................................... ✔ .................... ....................

Uganda ..................................................................................................................................................... ✔ ✔ ....................

Ukraine ..................................................................................................................................................... ✔ ✔ ....................

United Arab Emirates ............................................................................................................................... ✔ .................... ....................

United Kingdom ........................................................................................................................................ ✔ ✔ ✔

USA .......................................................................................................................................................... ✔ ✔ ✔

Uruguay .................................................................................................................................................... ✔ ✔ ✔
Federal Register / Vol. 63, No. 149 /Tuesday, August 4, 1998 /Rules and Regulations 41651

Foreign state Montreal

protocol

London

amendments

Copenhagen amendments

Uzbekistan ................................................................................................................................................ ✔ .................... ....................

Vanuatu .................................................................................................................................................... ✔ ✔ ✔

Venezuela ................................................................................................................................................. ✔ ✔ ✔

Viet Nam ................................................................................................................................................... ✔ ✔ ✔

Yemen ...................................................................................................................................................... ✔ .................... ....................

Yugoslavia ................................................................................................................................................ ✔ .................... ....................

Zambia ...................................................................................................................................................... ✔ ✔ ....................

Zimbabwe ................................................................................................................................................. ✔ ✔ ✔

Note: Updated lists of Parties to the

Protocol and the Amendments can be located

at: www.unep.org/unep/secretar/ozone/

home.htm

10. Appendix J to Subpart A is added

and reserved to read as follows:

Appendix J to Subpart A—Parties to the

Montreal Protocol Classified Under

Article 5(1) That Have Banned the

Import of Controlled Products That

Rely on Class I Controlled Substances

for Their Continuing Functioning

[Reserved]

11. Appendix K to Subpart A is added

to read as follows:

Appendix K to Subpart A—Commodity

Codes From the Harmonized Tariff

Schedule for Controlled Substances and

Used Controlled Substances

Description of commodity or chemical

Commodity code

from harmonized

tariff schedule

CFC–11 .......................................................................................................................................................................................... 2903.41.0000

CFC–12 .......................................................................................................................................................................................... 2903.42.0000

CFC–113 ........................................................................................................................................................................................ 2903.43.0000

CFC–114 ........................................................................................................................................................................................ 2903.44.0010

CFC–115 ........................................................................................................................................................................................ 2903.44.0020

HALONS ........................................................................................................................................................................................ 2903.46.0000

CFC–13, CFC–111, CFC–112, CFC–211, CFC–212, CFC–213, CFC–214, CFC–215, CFC–216, CFC–217 ........................... 2903.45.0000

HCFC–22 ....................................................................................................................................................................................... 2903.49.9010

HCFC–21, HCFC–31, HCFC–123, HCFC–124, HCFC–133, HCFC–141b, HCFC–142b, HCFC–225 ........................................ 2903.49.0000

OTHER, HALOGENATED ............................................................................................................................................................. 2903.49.9060

MIXTURES (R–500, R–502, ETC.) ............................................................................................................................................... 3824.71.0000

MIXTURES, OTHER ...................................................................................................................................................................... 3824.79.0000

CARBON TETRACHLORIDE ........................................................................................................................................................ 2903.14.0000

METHYL CHLOROFORM ............................................................................................................................................................. 2903.19.6010

METHYL BROMIDE ....................................................................................................................................................................... 2903.30.1520

[FR Doc. 98–20150 Filed 8–3–98; 8:45 am]

BILLING CODE 6560–50–P