55480 Federal Register / Vol. 70, No. 182 / Wednesday, September 21, 2005 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[FRL–7971–6] 

RIN 2060–AK45 

Protection of Stratospheric Ozone: 

Adjusting Allowances for Class I 

Substances for Export to Article 5 

Countries 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: Today’s action proposes 

adjustments to allocations of Article 5 

allowances that permit production of 

Class I ozone depleting substances 

(ODSs) solely for export to developing 

countries to meet those countries’ basic 

domestic needs. Today’s action 

proposes adjustments to the baseline 

Article 5 allowances for companies for 

specific Class I controlled substances 

and establishes a schedule for 

reductions in the Article 5 allowances 

for these Class I controlled substances in 

accordance with the Montreal Protocol 

on Substances that Deplete the Ozone 

Layer (Montreal Protocol) and the Clean 

Air Act (CAA). Today’s proposal also 

would extend the allocation of Article 5 

allowances for the manufacture of 

methyl bromide solely for export to 

developing countries beyond January 1, 

2005, in accordance with the Montreal 

Protocol and the CAA. 

DATES: Written comments on this 

proposed rule must be received on or 

before November 21, 2005. If a public 

hearing takes place, it will be scheduled 

for October 6, 2005. Any party 

requesting a public hearing must notify 

the contact person listed below by 5pm 

Eastern Standard Time on September 

28, 2005. After that time, interested 

parties may call EPA’s Stratospheric 

Ozone Protection Information Hotline at 

1–800–296–1996 for information on 

whether a hearing will be held, as well 

as the time and place of such a hearing. 

ADDRESSES: Submit your comments, 

identified by Regional Material in 

EDOCKET (RME) ID No. OAR–2005– 

0151, by one of the following methods: 

1. Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

2. Agency Web site: http:// 

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

3. E-mail: A-and-R-docket@epa.gov. 

4. Fax: 202–343–2338, Attn: Hodayah 

Finman. 

5. Mail: ‘‘OAR–2005–0151’’, Air 

Docket, Environmental Protection 

Agency, Mail code 6102T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460. 

6. Hand Delivery or Courier. Deliver 

your comments to: EPA Air Docket, EPA 

West 1301 Constitution Avenue, NW., 

Room B108, Mail Code 6102T, 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

OAR–2005–0151. EPA’s policy is that 

all comments received will be included 

in the public docket without change and 

may be made available online at http:// 

www.epa.gov/edocket, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the Federal 

regulations.gov Web site are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters and any 

form of encryption, and should be free 

of any defects or viruses. 

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, such as CBI or 

other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at the Air Docket, EPA/DC, EPA 

West, Room B102, 1301 Constitution 

Ave., NW., Washington, DC. This 

Docket Facility is open from 8:30 a.m. 

to 4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: For 

further information about this proposed 

rule, contact Hodayah Finman by 

telephone at (202) 343–9246, or by email at finman.hodayah@epa.gov, or by 

mail at Hodayah Finman, U.S. 

Environmental Protection Agency, 

Stratospheric Protection Division, 

Stratospheric Program Implementation 

Branch (6205J), 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

Overnight or courier deliveries should 

be sent to 1310 L Street, NW., 

Washington, DC 20005. You may also 

visit the Ozone Depletion Web site of 

EPA’s Global Programs Division at 

http://www.epa.gov/ozone/index.html 

for further information about EPA’s 

Stratospheric Ozone Protection 

regulations, the science of ozone layer 

depletion, and other topics. 

SUPPLEMENTARY INFORMATION: Today’s 

action proposes to establish a new 

Article 5 allowance baseline for 

specified Class I substances, establish a 

schedule for phased reductions in such 

allowances, and extend the time 

allowed for Article 5 production for 

methyl bromide. 

Table of Contents 

I. General Information 

A. Regulated Entities 

B. How Can I Get Copies of This Document 

and Other Related Information? 

C. How and to Whom Do I Submit 

Comments? 

D. How Should I Submit Confidential 

Business Information (CBI) to the 

Agency? 

II. What Is the Legislative and Regulatory 

Background of the Phaseout Regulations 

for Ozone-Depleting Substances? 

III. How Did the Beijing Amendments to the 

Montreal Protocol Change the Levels and 

Schedules of ODS Production To Meet 

the Basic Domestic Needs of Developing 

Countries? 

IV. How Do EPA’s Regulations Permit 

Additional Production for Export to 

Article 5 Countries? 

V. What Is the New Calculation of Baselines 

of Article 5 Allowances? 

A. CFCs Subject to Earliest Controls 

B. Other Fully Halogenated CFCs 

C. Methyl Bromide 

VI. What Is EPA’s Proposed Schedule To 

Reflect the Beijing Amendment for 

Phased Reductions of Article 5 

Allowances? 

Federal Register / Vol. 70, No. 182 / Wednesday, September 21, 2005 / Proposed Rules 55481 

A. CFCs Subject to Earliest Controls 

B. Other Fully Halogenated CFCs 

C. Methyl Bromide 

VII. What Is the New Timeline for Article 5 

Production of Methyl Bromide? 

VIII. Other Options 

IX. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA), as 

Amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (SBREFA), 5 U.S.C. 601 et seq. 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I . The National Technology Transfer and 

Advancement Act 

I. General Information 

A. Regulated Entities 

Entities potentially regulated by this 

action are those associated with the 

production and export of Class I ODSs. 

Potentially regulated categories and 

entities include: 

Category Examples of regulated 

entities 

Industry .......... Producers and Exporters of 

Class I ODSs. 

The above table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could potentially be regulated by 

this action. To determine whether your 

facility, company, business, 

organization is regulated by this action, 

you should carefully examine the 

regulations promulgated at 40 CFR part 

82, subpart A. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. How Can I Get Copies of This 

Document and Other Related 

Information? 

1. Docket. EPA has established an 

official public docket for this action 

under the Office of Air and Radiation 

Docket & Information Center, Electronic 

Docket ID No. OAR–2005–0151. The 

official public docket consists of the 

documents specifically referenced in 

this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the public docket does 

not include Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

The official public docket is the 

collection of materials that is available 

for public viewing at EPA West, 1301 

Constitution Avenue, NW., Room B108, 

Mail Code 6102T, Washington, DC 

20460, Phone: (202)–566–1742, Fax: 

(202)–566–1741. The materials may be 

inspected from 8:30 a.m. until 4:30 p.m. 

Monday through Friday, excluding legal 

holidays. A reasonable fee may be 

charged for copying docket materials. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/. An 

electronic version of the public docket 

is available through EPA’s electronic 

public docket and comment system, 

EPA Dockets. You may use EPA Dockets 

at http://www.epa.gov/edocket/ to 

submit or view public comments, access 

the index listing of the contents of the 

official public docket, and access 

documents in the public docket that are 

available electronically. Once in the 

system, select ‘‘search,’’ then type in the 

appropriate docket identification 

number. 

Certain types of information will not 

be placed in the EPA Dockets. 

Information claimed as CBI and other 

information whose disclosure is 

restricted by statute, which is not 

included in the official public docket, 

will not be available for public viewing 

in EPA’s electronic public docket. EPA’s 

policy is that copyrighted material will 

not be placed in EPA’s electronic public 

docket but will be available only in 

printed, paper form in the official public 

docket. Although not all docket 

materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the docket facility. 

For public commenters, it is 

important to note that EPA’s policy is 

that public comments, whether 

submitted electronically or in paper, 

will be made available for public 

viewing in EPA’s electronic public 

docket as EPA receives them and 

without change, unless the comment 

contains copyrighted material, CBI, or 

other information whose disclosure is 

restricted by statute. When EPA 

identifies a comment containing 

copyrighted material, EPA will provide 

a reference to that material in the 

version of the comment that is placed in 

EPA’s electronic public docket. The 

entire printed comment, including the 

copyrighted material, will be available 

in the public docket. 

Public comments submitted on 

computer disks that are mailed or 

delivered to the docket will be 

transferred to EPA’s electronic public 

docket. Public comments that are 

mailed or delivered to the docket will be 

scanned and placed in EPA’s electronic 

public docket. Where practical, physical 

objects will be photographed, and the 

photograph will be placed in EPA’s 

electronic public docket along with a 

brief description written by the docket 

staff. 

C. How and to Whom Do I Submit 

Comments? 

You may submit comments 

electronically, by mail, or through hand 

delivery/courier. To ensure proper 

receipt by EPA, identify the appropriate 

docket identification number in the 

subject line on the first page of your 

comment. Please ensure that your 

comments are submitted within the 

specified comment period. Comments 

received after the close of the comment 

period will be marked late. EPA is not 

required to consider these late 

comments. If you plan to submit late 

comments, please also notify Hodayah 

Finman, U.S. Environmental Protection 

Agency, Stratospheric Protection 

Division (mail code 6205J), 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460, (202) 343–9246. 

Information designated as CBI under 

40 CFR part 2, subpart 2, must be sent 

directly to the contact person for this 

notice. However, the Agency requests 

that all respondents submit a nonconfidential version of their comments 

to the docket as well. 

1. Electronically. If you submit an 

electronic comment as prescribed 

below, EPA recommends that you 

include your name, mailing address, 

and an e-mail address or other contact 

information in the body of your 

comment. Also include this contact 

information on the outside of any disk 

or CD–ROM you submit, and in any 

cover letter accompanying the disk or 

CD–ROM. This ensures that you can be 

identified as the submitter of the 

comment and allows EPA to contact you 

in case EPA cannot read your comment 

due to technical difficulties or needs 

further information on the substance of 

your comment. EPA’s policy is that EPA 

will not edit your comment, and any 

identifying or contact information 

provided in the body of a comment will 

be included as part of the comment that 

is placed in the official public docket, 

and made available in EPA’s electronic 

public docket. If EPA cannot read your 

comment due to technical difficulties 

55482 Federal Register / Vol. 70, No. 182 / Wednesday, September 21, 2005 / Proposed Rules 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. 

The electronic public docket is EPA’s 

preferred method for receiving 

comments. Go directly to EPA dockets 

at http://www.epa.gov/edocket, and 

follow the online instructions for 

submitting comments. 

2. By Mail. Send two copies of your 

comments to: Air and Radiation Docket 

(6102), Docket No. OAR–2005–0151, 

U.S. Environmental Protection Agency, 

Mailcode 6205J, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

3. By Hand Delivery or Courier. 

Deliver your comments to: 1310 L Street 

NW., Washington, DC 20005, Attention: 

Docket ID No. OAR–2005–0151. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation as 

identified under ADDRESSES. 

4. By Facsimile. Fax your comments 

to: (202) 566–1741, Attention: Docket ID 

No. OAR–2005–0151. 

D. How Should I Submit Confidential 

Business Information (CBI) to the 

Agency? 

Do not submit information that you 

consider to be CBI electronically 

through EPA’s electronic public docket 

or by e-mail. Send or deliver 

information identified as CBI only to the 

mail or courier addresses listed above, 

as appropriate, to the attention of 

Docket ID No. OAR–2005–0151. You 

may claim information that you submit 

to EPA as CBI by marking any part or 

all of that information as CBI. If you 

submit CBI on disk or CD–ROM, mark 

the outside of the disk or CD–ROM as 

CBI and then identify electronically 

within the disk or CD–ROM the specific 

information that is CBI. Information so 

marked will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. In addition to one 

complete version of the comment that 

includes any information claimed as 

CBI, a copy of the comment that does 

not contain the information claimed as 

CBI must be submitted for inclusion in 

the public docket and EPA’s electronic 

public docket. If you submit the copy 

that does not contain CBI on disk or 

CD–ROM, mark the outside of the disk 

or CD–ROM clearly that it does not 

contain CBI. Information not marked as 

CBI will be included in the public 

docket and EPA’s electronic public 

docket without prior notice. If you have 

any questions about CBI or the 

procedures for claiming CBI, please 

consult the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

II. What Is the Legislative and 

Regulatory Background of the Phaseout 

Regulations for Ozone-Depleting 

Substances? 

The current regulatory requirements 

of the Stratospheric Ozone Protection 

Program that limit production and 

consumption of ozone depleting 

substances can be found at 40 CFR part 

82, subpart A. The regulatory program 

was originally published in the Federal 

Register on August 12, 1988 (53 FR 

30566), in response to the 1987 signing 

and subsequent ratification of the 

Montreal Protocol on Substances that 

Deplete the Ozone Layer (Protocol). The 

U.S. was one of the original signatories 

to the 1987 Montreal Protocol and the 

U.S. ratified the Protocol on April 21, 

1988. Congress then enacted, and 

President Bush signed into law, the 

Clean Air Act Amendments of 1990 

(CAA of 1990), which included Title VI 

on Stratospheric Ozone Protection, 

codified as 42 U.S.C. chapter 85, 

subchapter VI, to ensure that the United 

States could satisfy its obligations under 

the Protocol. EPA issued new 

regulations to implement this legislation 

and has made several amendments to 

the regulations since. 

The requirements contained in the 

final rules published in the Federal 

Register on December 20, 1994 (59 FR 

65478) and May 10, 1995 (60 FR 24970) 

establish an Allowance Program. The 

Allowance Program and its history are 

described in the notice of proposed 

rulemaking published in the Federal 

Register on November 10, 1994 (59 FR 

56276). The control and the phaseout of 

the production and consumption of 

Class I ODSs as required under the 

Protocol and the CAA are accomplished 

through the Allowance Program. 

In developing the Allowance Program, 

we collected information on the 

amounts of ODSs produced, imported, 

exported, transformed and destroyed 

within the U.S. 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 companyspecific 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 ODSs, the quantities 

of allowances granted to companies for 

those chemicals were gradually reduced 

and eventually eliminated. Production 

allowances and consumption 

allowances no longer exist for any Class 

I ODSs. All production or consumption 

of Class I controlled substances is 

prohibited under the Protocol and the 

CAA, except 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 the formula: production + 

imports ¥ exports, 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 except where the 

regulations include explicit use 

restrictions. Use of such substances may 

be subject to other regulatory 

limitations. 

The specific names and chemical 

formulas for the Class I ODSs 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 

ODSs are in appendix B and appendix 

F in subpart A. 

Although the regulations phased out 

the production and consumption of 

Class I controlled substances, 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. They also allow limited 

manufacture if the substances are (1) 

exported to countries operating under 

Article 5 of the Protocol or (2) produced 

for essential or critical uses as 

authorized by the Protocol and the 

regulations. 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 or critical uses as 

authorized by the Protocol and the 

regulations, (3) imported for destruction 

or transformation only, or (4) a 

transhipment or a heel (a small amount 

of controlled substance remaining in a 

container after discharge) (40 CFR 82.4). 

III. How Did the Beijing Amendments to 

the Montreal Protocol Change the 

Levels and Schedules of ODS 

Production To Meet the Basic Domestic 

Needs of Developing Countries? 

Under the Montreal Protocol, 

industrialized countries and developing 

countries have differentiated schedules 

for phasing out the production and 

import of ODSs. Developing countries 

operating under Article 5, paragraph 1 

Federal Register / Vol. 70, No. 182 / Wednesday, September 21, 2005 / Proposed Rules 55483 

of the Protocol in most cases have 

substantial additional time in which to 

phase out ODSs. The Parties to the 

Protocol recognized that it would be 

inadvisable for developing countries to 

spend their scarce resources to build 

new ODS manufacturing facilities to 

meet their basic domestic needs as 

industrialized countries phase out. The 

Parties therefore decided to permit a 

small amount of production in 

industrialized countries, above and 

beyond the amounts permitted under 

those countries’ phaseout schedules, to 

meet the basic domestic needs of 

developing countries. 

The original Montreal Protocol 

schedule for industrialized country 

production of ODSs to meet the basic 

domestic needs of developing countries 

was based on a percentage of each 

producing country’s baseline. The 

initial level was set at 10 percent of the 

baseline and this level changed to 15 

percent upon phaseout of each specific 

ODS or group of chemicals (see section 

IV). Current EPA regulations reflect this 

approach. 

The adjustments to the Montreal 

Protocol adopted by the Parties at their 

11th meeting in Beijing change the basis 

for calculating production by 

industrialized countries to meet the 

basic domestic needs of developing 

countries for specific ODSs or groups of 

ODSs. Instead of being calculated as a 

percentage of total production of the 

ODS in a given year, the new baselines 

for basic domestic need production are 

calculated based on the average quantity 

of the ODS exported to Article 5 

countries over a specified range of years. 

The new baseline calculation agreed to 

in Beijing reflects the Parties’ concern, 

which EPA shares, that global 

oversupply of certain Class I ODSs is 

interfering with the transition to 

alternatives. The oversupply of these 

ODSs results in low prices that make it 

difficult for non-ozone depleting 

alternatives to compete in the 

marketplace. Businesses and 

individuals thus lack an economic 

incentive to transition to alternatives. 

The new baseline calculation is 

designed to overcome this problem with 

respect to Article 5 countries by 

reducing supply to those countries. The 

price of these ODSs should rise to 

reflect the decrease in supply. 

The adjustments agreed to in Beijing 

also establish reduction schedules for 

the manufacture of ODSs by 

industrialized countries to meet the 

basic domestic needs of developing 

countries. Article 5 countries are subject 

to periodic step-downs in the amount of 

ODSs they may consume. If 

industrialized countries’ production for 

export to Article 5 countries were not 

adjusted to take into account these stepdowns, the problem of oversupply likely 

would recur. Therefore, the Parties 

agreed at Beijing to reduction schedules 

that would mirror each step-down in 

Article 5 consumption. The schedules 

also reflect the complete consumption 

phaseouts in Article 5 countries. Under 

these schedules, industrialized 

countries must cease production for 

export to developing countries of CFCs 

by January 1, 2010, and of methyl 

bromide by January 1, 2015. 

To ensure consistency with the 

Montreal Protocol, EPA is proposing to 

adopt new baselines and reduction 

schedules at 40 CFR part 82, subpart A. 

Under this proposed rule, the amount of 

ODSs that could be produced to meet 

the basic domestic needs of developing 

countries would be reduced by a certain 

percentage of the baseline in accordance 

with the step-down schedule for Article 

5 developing countries for those 

chemicals until they are completely 

phased out. 

The details of the new baselines and 

reduction schedules agreed to in 

Beijing, as well as updated baselines 

proposed by EPA, are in the sections 

below. EPA is also removing obsolete 

provisions from the regulations at 

682.4(h) to increase the clarity of the 

regulations. 

IV. How Do EPA’s Regulations Permit 

Additional Production for Export to 

Article 5 Countries? 

Section 604(e) of the Clean Air Act 

allows EPA to authorize, through 

rulemaking, limited production of Class 

I ODSs for export to developing 

countries, for the purpose of satisfying 

their basic domestic needs. The limits 

on such production must be no less 

stringent than the Protocol. With respect 

to the Class I ODSs specifically listed in 

the Act, EPA may not authorize an 

amount of production greater than 15 

percent of baseline, and the exception 

must terminate no later than January 1, 

2010, or, in the case of methyl 

chloroform, 2012. Production of methyl 

bromide for export to developing 

countries is addressed separately in 

section 604(e)(3). The CAA does not 

contain a specific cap or termination 

year for production of methyl bromide 

for this purpose. Consistent with section 

604(e) of the CAA, EPA created a 

category of allowances called ‘‘Article 5 

Allowances’’ in § 82.9 of the regulations 

to permit limited production of Class I 

ODSs explicitly for export to developing 

countries. Based on the original Protocol 

agreement regarding production to meet 

the basic domestic needs of Article 5 

countries, each U.S. producer of an ODS 

is granted Article 5 allowances equal to 

an additional specified percentage of its 

baseline production allowances as listed 

in § 82.5. This quantity of additional 

production is permitted solely for 

export to Article 5 countries. 

Today’s proposed action would 

ensure that EPA’s regulations 

concerning Article 5 allowances 

continue to be no less stringent than the 

Protocol, as required by the CAA. 

Section 614 of the Clean Air Act states 

that the Act shall ‘‘be construed, 

interpreted, and applied as a 

supplement to the terms and conditions 

of the Montreal Protocol, * * * and 

shall not be construed, interpreted, or 

applied to abrogate the responsibilities 

or 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 

Act] and any provision of the Montreal 

Protocol, the more stringent provision 

shall govern.’’ In accordance with 

section 614, today’s proposed action 

would ensure full implementation of the 

Montreal Protocol’s limitations on 

production for export to Article 5 

countries and, in the case of the baseline 

for CFCs, would impose more stringent 

limitations based on more recent 

information than that available to the 

Parties in Beijing. Today’s proposal 

would also ensure consistency with the 

termination date for Article 5 

allowances in section 604(e), by 

specifying that holders of baseline 

Article 5 allowances for production of 

CFCs will receive zero percent of their 

baseline beginning January 1, 2010. In 

addition, as discussed below, today’s 

proposed action would ensure that 

Article 5 allowances for production of 

CFCs prior to that date would not 

exceed the maximum level of 15 percent 

of baseline specified in the Act. 

V. What Is the New Calculation of 

Baselines of Article 5 Allowances? 

Pursuant to the Beijing Amendments 

of the Montreal Protocol and section 

604(e) of the CAA, this rule proposes to 

adjust the calculation of the baseline of 

Article 5 allowances for some of the 

Class I ODSs. The Parties considered but 

decided not to change the basic 

domestic needs baselines for carbon 

tetrachloride and methyl chloroform 

(Group IV and Group V controlled 

substances, respectively) at the meeting 

in Beijing; thus the current regulatory 

baselines for these substances remain 

consistent with Protocol requirements. 

EPA believes that there is no need, at 

this time, to propose a change to the 

baselines for carbon tetrachloride and 

methyl chloroform, since these 

substances are exported primarily for 

55484 Federal Register / Vol. 70, No. 182 / Wednesday, September 21, 2005 / Proposed Rules 

use as a feedstock in the manufacture of 

other substances, and are thus 

transformed. While the Parties did 

adopt new, more stringent baselines for 

Group II substances (halons), Article 5 

allowances for these substances ceased 

to be available in the U.S. as of January 

1, 2003. Accordingly, this proposed rule 

does not address those substances. 

Thus EPA is proposing to change the 

existing regulations only with respect to 

CFCs (Groups I and III) and methyl 

bromide (Group VI). The Protocol 

contains a formula for calculating the 

new Article 5 allowance baselines for 

each of these Class I controlled 

substances. The Protocol also contains a 

range of years to be used for the 

calculation of each baseline as 

articulated in Articles 2A, 2C, and 2H. 

At the time of the meeting in Beijing 

(1999), the years chosen for establishing 

new baselines for production to meet 

Article 5 countries’ basic domestic 

needs were the years of most recent and 

complete historical available data to the 

Parties for the particular group of ODSs. 

For CFCs, EPA is proposing to amend 

the phaseout regulations to make the 

new baselines for Article 5 allowances 

reflect more recent historical data for 

exports to Article 5 countries. For 

methyl bromide, EPA is proposing to 

amend the phaseout regulations to 

reflect the new baselines for Article 5 

allowances specified in Article 2H of 

the Protocol. With respect to CFCs, EPA 

considered granting allowances to 

companies exporting CFCs to Article 5 

countries based on an average of data 

from the range of years specified in 

Articles 2A and 2C of the Protocol. The 

Agency is seeking comment on the use 

of these time periods to calculate the 

baseline. However, EPA prefers a more 

stringent approach. The presence of 

only minor price fluctuations for CFCs 

in recent years suggests that there is no 

shortage of CFCs in Article 5 countries 

(see p. 33 of Technology and Economic 

Assessment Panel (TEAP) Task Force 

Report on Basic Domestic Needs—

October 2004). In addition, the October 

2004 TEAP report says, ‘‘* * * in 2002 

no deficit of CFCs were reported in any 

Article 5(1) country’’ (p. 24, para. (a)) 

and ‘‘there has been no sign of any 

shortage [of CFCs] in any Article 5(1) 

country (even during 2004)’’ (p. 24, 

para. (d)). Thus it appears that current 

supplies are adequate. In addition, the 

U.S. has not historically been a major 

supplier of CFCs to developing 

countries. EPA’s tracking database 

shows that the U.S. supply of CFCs has 

been significantly lower than the TEAP 

report indicates. To view the aggregate 

data on CFC supply and production by 

the U.S., visit EDOCKET OAR–2005–

0151. Also, the ability to reuse and 

recycle CFCs taken out of refrigeration 

products provides an additional source 

of supply should demand for CFCs 

exceed expectations. 

With respect to methyl bromide, the 

phaseout is in an earlier stage and the 

adequacy of supply is less certain. The 

U.S. provides a large percentage of the 

supply of methyl bromide to developing 

countries. As a result, decreasing the 

U.S. baseline could have a substantial 

effect on the amount of supply 

potentially available to those countries. 

Therefore, EPA is not proposing a more 

stringent baseline for methyl bromide. 

Each substance or group of substances 

has its own formula for calculating the 

new baseline as described below. The 

new baselines for each company would 

be specified in § 82.11. 

A. CFCs Subject to Earliest Controls 

As discussed above, under the current 

regulations Article 5 allowances are 

currently calculated as a percentage of 

the original production baseline. 

Section 601(2) of the CAA and EPA’s 

implementing regulations at 40 CFR 

82.5 establish the year 1986 as the 

production baseline for Class I, Group I 

substances. Under the current § 82.9, 

every person apportioned baseline 

production allowances for Group I CFCs 

received Article 5 allowances equal to 

10 percent of their 1986 baseline for 

each control period ending before 

January 1, 1996 (the phaseout date), and 

15 percent of their baseline for each 

control period thereafter. 

As a result of the Beijing Amendment 

to the Protocol, Article 2A, paragraphs 

4–7 state that an industrialized Party’s 

allowable production of CFCs 11, 12, 

113, 114, and 115 to meet the basic 

domestic needs of Article 5 Parties shall 

be measured against ‘‘the annual 

average of its production of [these 

substances] for basic domestic needs for 

the period 1995 to 1997 inclusive.’’

However, EPA has more recent 

historical data on CFC exports to 

developing countries over the period 

2000–2003 that show much lower levels 

being exported to Article 5 countries. 

Using the recent data on exports of 

CFCs from the U.S. to developing 

countries, specifically for the years 

2000–2003, EPA is proposing a new 

baseline of Article 5 allowances which 

would be less than one percent (< 1%) 

of the 1986 production allowance 

baseline for CFCs. The proposed new 

baseline for Article 5 allowances for 

Group I CFCs therefore meets the 

requirement in section 604(e)(2)(B) of 

the CAA to limit Article 5 allowances to 

no more than 15 percent of the 1986 

production baseline. Since the purpose 

of adjusting the Article 5 allowance 

baselines is to avoid oversupply of CFCs 

in Article 5 countries, EPA is proposing 

to establish the new baselines for Article 

5 allowances based on this more recent 

historical data. These new baselines 

should be a more accurate starting point 

for the reduction schedule specified in 

the Protocol. 

B. Other Fully Halogenated CFCs 

As discussed above, under the current 

regulations Article 5 allowances are 

calculated as a percentage of the original 

production baseline. Section 601(2) of 

the CAA and EPA’s implementing 

regulations at 40 CFR 82.5 establish the 

year 1989 as the production baseline for 

Class I, Group III substances. Under the 

current § 82.9, every person apportioned 

baseline production allowances for 

Group III CFCs received Article 5 

allowances equal to 10 percent of their 

1989 baseline for each control period 

ending before January 1, 1996 (the 

phaseout date), and 15 percent of their 

baseline for each control period 

thereafter. 

As a result of the Beijing Amendment 

to the Protocol, Article 2C, paragraphs 

3–4 state that an industrialized Party’s 

allowable production of other fully 

halogenated CFCs to meet the basic 

domestic needs of Article 5 Parties shall 

be measured against ‘‘the annual 

average of its production of [these 

substances] for basic domestic needs for 

the period 1998–2000 inclusive.’’

However, EPA has more recent 

historical data on exports of CFCs to 

developing countries over the period 

2000–2003 that show much lower levels 

of CFC being exported to Article 5 

countries. 

Since there was no export of Class I, 

Group III substances during the 2000–

2003 period being proposed as the basis 

for calculating new allocations of 

Article 5 allowances, today’s proposal 

would establish a new baseline of zero. 

Since the purpose of adjusting the 

Article 5 allowance baselines is to 

reduce the amount of CFCs globally, and 

more recent data should provide a more 

accurate starting point for the reduction 

schedule, EPA is proposing to establish 

the new baselines for Article 5 

allowances based on this more recent 

historical data. 

C. Methyl Bromide 

As discussed above, under the current 

regulations Article 5 allowances are 

calculated as a percentage of the original 

production baseline. Section 601(2) of 

the CAA and EPA’s implementing 

regulations at 40 CFR 82.5 establish the 

year 1991 as the production baseline for 

Class I, Group VI substances (methyl 

Federal Register / Vol. 70, No. 182 / Wednesday, September 21, 2005 / Proposed Rules 55485 

bromide). Under the current § 82.9, 

every person apportioned baseline 

production allowances for Group VI 

substances received Article 5 

allowances equal to 15 percent of their 

1991 baseline for each control period 

ending before January 1, 2005 (the 

phaseout date). There is currently no 

regulatory framework in place to allow 

for the production of methyl bromide 

for export to developing countries past 

the phaseout date. Section VII of this 

proposed rulemaking proposes to 

amend the current regulations to allow 

for exempted production of methyl 

bromide for export to Article 5 countries 

past January 1, 2005 in accordance with 

section 604(e)(3) of the CAA. 

As a result of the Beijing Amendment 

to the Protocol, paragraphs 5–5 bis of 

Article 2H stipulate that an 

industrialized Party’s allowable 

production of methyl bromide to meet 

the basic domestic needs of Article 5 

Parties shall be measured against ‘‘the 

annual average of its production of 

[methyl bromide] for basic domestic 

needs for the period 1995 to 1998 

inclusive.’’ EPA is therefore proposing 

to establish the average of each 

company’s production exported to 

Article 5 countries for the years 1995–

1998 as the new Article 5 allowance 

baseline for methyl bromide. 

VI. What Is EPA’s Proposed Schedule 

To Reflect the Beijing Amendment for 

Phased Reductions of Article 5 

Allowances? 

Today’s proposed action would 

establish a schedule for phased 

reductions in the manufacture of certain 

Class I ODSs to meet the basic domestic 

needs of Article 5 countries in 

accordance with the adjustments to the 

Protocol agreed to in Beijing. For each 

control period specified in the table in 

§ 82.11, EPA proposes to grant each U.S. 

company the specified percentage of the 

baseline Article 5 allowances 

apportioned to it under § 82.11. 

The idea of reduction schedules for 

the manufacture of ODSs to meet basic 

domestic needs of developing countries 

is new to the Protocol and to U.S. 

regulations. While the CAA does not 

require a reduction schedule, such a 

schedule is a reasonable means of 

assuring that production of Class I 

substances for this purpose will 

terminate in accordance with the 

deadlines provided in the Act and in the 

Protocol. In addition, the CAA does not 

allow EPA to authorize Article 5 

allowances in a manner inconsistent 

with the Protocol. Thus, today’s action 

proposes to freeze and gradually phase 

out the production of ODSs in the 

United States to meet the basic domestic 

needs of Article 5 parties in line with 

the Protocol’s phase down schedules for 

consumption in Article 5 countries. So, 

every time the developing countries 

have a step down in the percentage of 

their consumption for a Class I ODS, the 

allowable production in the United 

States to meet those countries’ basic 

domestic needs will mirror that step 

down. For instance, in 2005, developing 

countries operating under Article 5(1) 

must reduce their consumption of CFCs 

by 50 percent of their baseline; 

therefore, the amount of Article 5 

allowances for producing CFCs to meet 

those countries’ basic domestic needs is 

also reduced by 50 percent. 

A. CFCs Subject to Earliest Controls 

In the Montreal Protocol, Article 2A, 

paragraphs 5–8 set forth the reduction 

schedule for the production of CFCs 11, 

12, 113, 114, and 115 for basic domestic 

needs of Article 5 countries. EPA is 

proposing to incorporate this reduction 

schedule into the phaseout regulations. 

Hence, the Article 5 allowance 

reduction schedule for production of the 

Class I, Group I controlled substances 

would be as follows: 50% of the Article 

5 allowance baseline for the 2006 

control period; 15% of baseline for each 

of the control periods from January 1, 

2007, to December 31, 2009; and 0% 

(complete phaseout) for the control 

periods beginning January 1, 2010, and 

thereafter. 

B. Other Fully Halogenated CFCs 

Paragraphs 3–5 of Article 2C of the 

Montreal Protocol establish the 

reduction schedule for the production of 

other fully halogenated CFCs (the Class 

I, Group III controlled substances) to 

meet the basic domestic needs of Article 

5 countries. If EPA were to set a baseline 

other than zero for these CFCs, the 

reduction schedule for their production 

would be: 80% of baseline for the 2006 

control period; 15% of baseline for each 

of the control periods from January 1, 

2007 to December 31, 2009; and 0% 

(complete phaseout) for the control 

periods beginning January 1, 2010 and 

thereafter. However, EPA’s preferred 

option is to set a zero baseline based on 

2000–2003 data, which would make a 

reduction schedule unnecessary. 

C. Methyl Bromide 

Article 2H, paragraphs 5 bis. and 5 

ter. of the Montreal Protocol set forth 

the reduction schedule for production of 

methyl bromide to meet the basic 

domestic needs of Article 5 countries. 

EPA is proposing to incorporate this 

reduction schedule into the phaseout 

regulations. The reduction schedule for 

the production of methyl bromide (Class 

I, Group VI controlled substances) 

would be as follows: 80% of the Article 

5 allowance baseline for each of the 

control periods from January 1, 2006 to 

December 31, 2014; 0% (complete 

phaseout) starting January 1, 2015 and 

thereafter. 

VII. What Is the New Timeline for 

Article 5 Production of Methyl 

Bromide? 

The current regulations have no 

provision that allows for exempted 

production of methyl bromide for export 

to Article 5 countries past January 1, 

2005. This rule proposes to create a new 

basis for exempted production of methyl 

bromide for export to Article 5 countries 

beyond the 2005 phaseout in the U.S. 

The methyl bromide phaseout date for 

Article 5 countries is 2015 and allowing 

continuing U.S. production to meet 

such countries’ basic domestic needs up 

to that phaseout date obviates the need 

to install ODS production capacity in 

those countries. The Protocol allows 

limited production for this purpose up 

until January 1, 2015. The CAA, in 

Section 604(e)(3), does not specify a 

termination date for this exemption but 

does require consistency with the 

Protocol. In addition, section 614 

requires the regulations to be no less 

stringent than the Protocol. Therefore, 

EPA is proposing to allow limited 

production of methyl bromide for export 

to Article 5 countries up until January 

1, 2015. 

VIII. Other Options 

In this section EPA describes another 

option it considered regarding the 

baseline for CFC production and why it 

is not the Agency’s preferred approach. 

EPA looked at granting allowances to 

companies exporting CFCs to Article 5 

countries based on an average of data 

from the range of years specified in 

Article 2A (for Group I) and 2C (for 

Group III) of the Protocol (see section 

V). Although this is not EPA’s preferred 

approach, the Agency is seeking 

comment on the use of these time 

periods to calculate the baseline. 

EPA prefers a more stringent 

approach than that described in Articles 

2A and 2C. As described earlier, 

observed market indicators suggest that 

there is no shortage of CFCs in the 

marketplace in Article 5 countries 

because the price of CFCs has remained 

stable over the past several years. Also, 

as described earlier, reported data 

described in the October 2004 TEAP 

Task Force Report on Basic Domestic 

Needs indicates that CFC supplies are 

stable. 

In addition, historically the U.S. has 

not been a major supplier of CFCs to 

55486 Federal Register / Vol. 70, No. 182 / Wednesday, September 21, 2005 / Proposed Rules 

developing countries. EPA’s tracking 

database shows that the U.S. supply of 

CFCs has been significantly lower than 

the TEAP report indicates. (To view the 

aggregate data on CFC supply and 

production by the U.S., visit EDOCKET 

OAR–2005–0151.) Also, the ability to 

reuse and recycle CFCs taken out of 

refrigeration products provides an 

additional source of supply should 

demand exceed expectations. 

IX. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Agency 

must determine whether this proposed 

regulatory action is ‘‘significant’’ and 

therefore subject to OMB review and the 

requirements of the Executive Order. 

The Order defines a ‘‘significant’’

regulatory action as one that is likely to 

result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more, or adversely affect in 

a material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

It has been determined by OMB and 

EPA that this proposed action is not a 

‘‘significant regulatory action’’ under 

the terms of Executive Order 12866, and 

is therefore not subject to OMB review 

under the Executive Order. 

B. Paperwork Reduction Act 

This proposed action does not add 

any information collection requirements 

or increase burden under the provisions 

of the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq. The Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations, 40 CFR part 82, 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2060–0170, EPA ICR number 1432. A 

copy of the OMB approved Information 

Collection Request (ICR) may be 

obtained from Susan Auby, Collection 

Strategies Division; U.S. Environmental 

Protection Agency (2822T); 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460 or by calling 

(202) 566–1672. 

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. 

C. Regulatory Flexibility Act (RFA), as 

Amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (SBREFA), 5 U.S.C. 601 et seq. 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impact 

of today’s proposed rule on small 

entities, small entity is defined as: (1) A 

small business that is identified by the 

North American Industry Classification 

System code (NAICS) in the table below; 

(2) a small governmental jurisdiction 

that is a government of a city, county, 

town, school district or special district 

with a population of less than 50,000; 

and (3) a small organization that is any 

not-for-profit enterprise which is 

independently owned and operated and 

is not dominant in its field. 

Category NAICS code SIC code 

SIC small business size standard (in number of 

employees or millions of dollars) 

1. Chemical and Allied Products, NEC ..................................................................... 422690 5169 100 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This proposed rule will not 

impose any requirements on small 

entities, as it regulates large 

corporations that produce, import, or 

export Class I ODSs. There are no small 

entities in this regulated industry. We 

continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Federal Register / Vol. 70, No. 182 / Wednesday, September 21, 2005 / Proposed Rules 55487 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective or least 

burden some alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that this 

proposed rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or the private sector in 

any one year. This proposed rule 

imposes stricter baselines and reduction 

schedules for Article 5 allowances and 

extends the availability of an exemption 

from a regulatory prohibition. It does 

not impose mandates on State, local, or 

tribal governments and does not result 

in substantial expenditures for the 

private sector. Thus, today’s rule is not 

subject to the requirements of sections 

202 or 205 of the UMRA. 

We determined that this proposed 

rule contains no regulatory 

requirements that might significantly or 

uniquely affect small governments; 

therefore, we are not required to 

develop a plan with regard to small 

governments under section 203. Finally, 

because this proposed rule does not 

contain a significant intergovernmental 

mandate, the Agency is not required to 

develop a process to obtain input from 

elected state, local, and tribal officials 

under section 204. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ This 

proposed rule does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This proposed 

rule relates to an exemption used by 

large corporations that produce, import, 

or export Class I ODSs. It has no effect 

on State or local governments. Thus 

Executive Order 13132 does not apply 

to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’

This proposed rule does not have 

tribal implications as specified in 

Executive Order 13175. It will not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes, 

as specified in Executive Order 13175. 

This proposed rule relates to an 

exemption used by large multinational 

corporations that produce, import, or 

export Class I ODSs. It has no effect on 

tribal governments. Thus Executive 

Order 13175 does not apply to this 

proposed rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ under Executive Order 

12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

While this proposed rule is not 

subject to the Executive Order because 

it is not economically significant as 

defined in Executive Order 12866, we 

nonetheless have reason to believe that 

the environmental health or safety risk 

addressed by this action may have a 

disproportionate effect on children. 

Depletion of stratospheric ozone results 

in greater transmission of the sun’s 

ultraviolet (UV) radiation to the earth’s 

surface. The following studies describe 

the effects on children of excessive 

exposure to UV radiation: (1) 

Westerdahl J, Olsson H, Ingvar C. ‘‘At 

what age do sunburn episodes play a 

crucial role for the development of 

malignant melanoma,’’ Eur J Cancer 

1994; 30A: 1647–54; (2) Elwood JM, 

Jopson J. ‘‘Melanoma and sun exposure: 

an overview of published studies,’’ Int 

J Cancer 1997; 73:198–203; (3) 

Armstrong BK. ‘‘Melanoma: childhood 

or lifelong sun exposure’’ In: Grobb JJ, 

Stern RS, Mackie RM, Weinstock WA, 

eds. ‘‘Epidemiology, causes and 

prevention of skin diseases,’’ 1st ed. 

London, England: Blackwell Science, 

1997: 63–6; (4) Whiteman D., Green A. 

‘‘Melanoma and Sunburn,’’ Cancer 

Causes Control, 1994: 5:564–72; (5) 

Kricker A, Armstrong, BK, English, DR, 

Heenan, PJ. ‘‘Does intermittent sun 

exposure cause basal cell carcinoma? A 

case control study in Western 

Australia,’’ Int J Cancer 1995; 60: 489–

94; (6) Gallagher, RP, Hill, GB, Bajdik, 

CD, et. al. ‘‘Sunlight exposure, 

pigmentary factors, and risk of 

nonmelanocytic skin cancer I, Basal cell 

carcinoma,’’ Arch Dermatol 1995; 131: 

157–63; (7) Armstrong, BK. ‘‘How sun 

exposure causes skin cancer: an 

epidemiological perspective,’’

Prevention of Skin Cancer. 2004. 89–

116. 

The methyl bromide phaseout date for 

Article 5 countries is 2015 and allowing 

continuing U.S. production to meet 

such countries’ basic domestic needs 

avoids the need for those countries to 

install new ODS manufacturing 

facilities. The effect of extending the 

availability of Article 5 allowances for 

methyl bromide should be that methyl 

bromide that would otherwise be 

produced at new facilities in developing 

countries will instead be produced in 

the U.S. for export to those countries. 

The amount of methyl bromide that will 

be released to the atmosphere should 

remain the same regardless of the 

manufacturing location. In addition, 

avoiding the installation of new 

capacity is one means of ensuring that 

production levels continue to decline. 

Thus, this rule is not expected to 

increase the impacts on children’s 

55488 Federal Register / Vol. 70, No. 182 / Wednesday, September 21, 2005 / Proposed Rules 

health from stratospheric ozone 

depletion. 

The public is invited to submit or 

identify peer-reviewed studies and data, 

of which EPA may not be aware, that 

assessed results of early life sun 

exposure. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not a significant 

regulatory action under Executive Order 

12866. 

I. The National Technology Transfer 

and Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. Today’s 

proposed rulemaking does not involve 

technical standards. Therefore, EPA is 

not considering the use of any voluntary 

consensus standards. 

Dated: September 14, 2005. 

Stephen Johnson, 

Administrator. 

Title 40, Code of Federal Regulations, 

part 82, is amended to read 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. 

2. Section 82.3 is amended by revising 

the entry for ‘‘Article 5 allowance’’ to 

read as follows: 

§ 82.3 Definitions for class I and class 

controlled substances. 

* * * * * 

Article 5 allowances means the 

allowances apportioned under § 82.9(a), 

§ 82.11(a)(2), and § 82.18(a). 

* * * * * 

3. Section 82.4 is amended by revising 

paragraphs (b)(1) and (h) to read as 

follows: 

§ 82.4 Prohibitions for class I controlled 

substances. 

* * * * * 

(b)(1) Effective January 1, 1996, for 

any Class I, Group I, Group II, Group III, 

Group IV, Group V or Group VII 

controlled substances, and effective 

January 1, 2005 for any Class I, Group 

VI controlled substances, and effective 

August 18, 2003, for any Class I, Group 

VIII substance, no person may produce, 

at any time in any control period 

(except that are transformed or 

destroyed domestically or by a person of 

another Party) in excess of the amount 

of conferred unexpended essential use 

allowances or exemptions, or in excess 

of the amount of unexpended critical 

use allowances, or in excess of the 

amount of unexpended Article 5 

allowances as allocated under § 82.9 

and § 82.11, as may be modified under 

§ 82.12 (transfer of allowances) for that 

substance held by that person under the 

authority of this subpart at that time for 

that control period. Every kilogram of 

excess production constitutes a separate 

violation of this subpart. 

* * * * * 

(h) No person may sell in the U.S. any 

Class I controlled substance produced 

explicitly for export to an Article 5 

country. 

* * * * * 

4. Section 82.9 is amended by revising 

paragraph (a)(4) to read as follows: 

§ 82.9 Availability of production 

allowances in addition to baseline 

production allowances for Class I 

controlled substances. 

(a) * * * 

(4) 15 percent of their baseline 

production allowances for Class I, 

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; 

* * * * * 

5. Section 82.11 is amended by 

revising paragraph (a) introductory text 

and adding a new paragraph (a)(2) and 

(a)(3) to read as follows: 

§ 82.11 Exports of Class I controlled 

substances to Article 5 Parties. 

(a) If apportioned Article 5 allowances 

under § 82.9(a) or § 82.11(a)(2), a person 

may produce Class I controlled 

substances, in accordance with the 

prohibitions in § 82.4 and the reduction 

schedule in § 82.11(a)(3), to be exported 

(not including exports resulting in 

transformation or destruction, or used 

controlled substances) to foreign states 

listed in appendix E to this subpart 

(Article 5 countries). 

* * * * * 

(2) Persons who reported exports of 

Class I, Group I controlled substances to 

Article 5 countries in 2000–2003 are 

apportioned baseline Article 5 

allowances as set forth in 

§ 82.11(a)(2)(i). Persons who reported 

exports of Class I, Group VI controlled 

substances to Article 5 countries in 

1995–1998 are apportioned baseline 

Article 5 allowances as set forth in 

§ 82.11(a)(2)(ii)). 

(i) For Group I controlled substances: 

Controlled substance Person Allowances 

(kg) 

CFC–11 .................................................................................... Honeywell ................................................................................ 7,150 

Sigma Aldrich .......................................................................... 1 

CFC–113 .................................................................................. Fisher Scientific ....................................................................... 5 

Honeywell ................................................................................ 313,686 

Sigma Aldrich .......................................................................... 48 

CFC–114 .................................................................................. Honeywell ................................................................................ 24,798 

Sigma Aldrich .......................................................................... 1 

(ii) For Group VI controlled 

substances: 

Federal Register / Vol. 70, No. 182 / Wednesday, September 21, 2005 / Proposed Rules 55489 

Controlled substance Person Allowances 

(kg) 

Methyl Bromide ........................................................................ Albemarle ................................................................................ 1,152,714 

Ameribrom ............................................................................... 176,903 

Great Lakes Chemical Corporation ......................................... 3,825,846 

(3) Phased Reduction Schedule for 

Article 5 Allowances allocated in 

§ 82.11. 

For each control period specified in 

the following table, each person is 

granted the specified percentage of the 

baseline Article 5 allowances 

apportioned under § 82.11. 

Control period 

Class I 

substances 

in group I 

(percent) 

Class I 

substances 

in group VI 

(percent) 

2006 ......................................................................................................................................................................... 50 80 

2007 ......................................................................................................................................................................... 15 80 

2008 ......................................................................................................................................................................... 15 80 

2009 ......................................................................................................................................................................... 15 80 

2010 ......................................................................................................................................................................... 0 80 

2011 ......................................................................................................................................................................... 0 80 

2012 ......................................................................................................................................................................... 0 80 

2013 ......................................................................................................................................................................... 0 80 

2014 ......................................................................................................................................................................... 0 80 

2015 ......................................................................................................................................................................... 0 0 

* * * * * 

[FR Doc. 05–18832 Filed 9–20–05; 8:45 am] 

BILLING CODE 6560–50–P