Vol. 58 No. 236 Friday, December 10, 1993 p 65018 (Rule)
1/8006
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-4810-7]
Protection of Stratospheric Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final rulemaking.
SUMMARY: With this action, EPA is amending the schedule for
the phaseout of ozone-depleting chemicals that is specified
in section 604 of the Clean Air Act, as amended in 1990 (the
Act). This action responds to several petitions and comments
submitted by environmental organizations and industry groups
seeking an accelerated phaseout of ozone-depleting substances,
as authorized under section 606 of the Act. Today's action also
establishes regulations implementing the amendments, adjustments
and decisions adopted by the Parties to the Montreal Protocol
on Substances that Deplete the Ozone Layer at their November
1992 meeting. In this action, EPA adds methyl bromide to the
list of class I substances, in response to new scientific
information,
a petition submitted under section 602 of the Act, and the decision
of the Protocol Parties to classify methyl bromide as a controlled
substance with an ozone-depleting potential (ODP) of 0.7. EPA
is also adding hydrobromofluorocarbons (HBFCs) to the list of
class I substances. In addition, in accordance with trade
provisions
in Article 4 of the Montreal Protocol, EPA is banning specified
trade between the U.S. and foreign states not party to, nor
complying with the Protocol. Finally, this regulation modifies
several recordkeeping and reporting requirements to streamline
the reporting burden, and facilitate compliance.
EFFECTIVE DATE: The effective date of this rule is January 1,
1994, except that appendix A of subpart A of 40 CFR part 82,
sections E. & G. (the addition of Methyl bromide and the HBFCs
to the list of class I substances) is effective December 10,
1993 and 82.4(d) is effective January 10, 1994. See the
SUPPLEMENTARY
INFORMATION section of this document for reasons why a 30 day
notice is neither necessary nor appropriate.
ADDRESSES: Materials relevant to the rulemaking are contained
in Air Docket No. A-92-13 at: U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460. The public
docket room is located in room M-1500, Waterside Mall (Ground
Floor). Materials may be inspected from 8:30 a.m. until noon
and from 1:30 p.m. until 3:30 p.m. Monday through Friday. A
reasonable fee may be charged by EPA for copying docket materials.
Information on this rulemaking can also be obtained from the
Stratospheric Protection Information Hotline at 1-800-296-1996.
FOR FURTHER INFORMATION CONTACT: The Stratospheric Protection
Information Hotline at 1-800-296-1996 or Peter Voigt, U.S. EPA,
Stratospheric Protection Division, Office of Atmospheric Programs,
Office of Air and Radiation, 6205J, 401 M Street, SW., Washington,
DC 20460, (202) 233-9185.
SUPPLEMENTARY INFORMATION:
Additional Information on the Effective Date
The effective date of this rule is January 1, 1994. Methyl
bromide and the HBFCs are added to the list of class I substances
as of the date of publication. Section 602(d) of the Clean Air
Act specifies that extension of the phaseout schedule for a
newly listed substance may not extend the date for termination
of production for any class I substance to a date more than
7 years after January 1 of the year after the year in which
the substance is added to the list of class I substances. EPA
believes Congress intended the seven years to be tolled from
no later than the date of publication of the listing, and that
30 days notice before the listing becomes effective for this
purpose is neither necessary nor appropriate.
EPA believes that the time between publication and January
1, 1994 is sufficient for industry to comply with the annual
production and consumption limits beginning January 1, 1994.
The Agency believes this is a reasonable amount of notice for
this kind of regulation. Compliance with the annual production
period controls necessitates less advance notice than regulations
for which compliance is measured over a shorter period. Also,
since title VI controls of production and consumption are
implemented
on an annual basis, implementation on January 1, 1994 is necessary
to avoid delaying the implementation of control until January
1, 1995. EPA believes that the environmental benefits associated
with the 1994 controls warrant this action. Moreover, the Agency
notes that 1994 restrictions on class I substances (other than
methyl bromide) are necessary for compliance with the Montreal
Protocol. Other regulatory provisions in this rule are tied
to the production and consumption phaseout. (The class II
restrictions
do not take effect until much later). Finally, EPA has taken
steps to provide notice of this final action to the regulated
industry upon signature of the rule and prior to publication.
For these reasons, EPA believes that the amount of time provided
before the rule becomes effective is reasonable.
EPA notes that the general requirement under 5 U.S.C. 553(d)
(the Administrative Procedure Act), that publication or service
of a substantive rule be made not less than 30 days before its
effective date does not apply here. Section 307(d)(1) of the
Clean Air Act specifically applies to regulations under title
V of the Clean Air Act and provides that ``[t]he provisions
of sections 553 through 557 and section 706 of title VI shall
not, except as expressly provided in this subsection, apply
to actions to which this subsection applies.'' Nowhere does
subsection 307(d) expressly provide that section 553(d) of title
V applies. Even if section 553(d) were to apply, EPA believes
that, for the reasons described above, there is good cause under
section 553(d)(3) of title V to provide less than 30 days notice
following publication.
The contents of today's preamble are listed in the following
outline:
I. Background
II. Accelerated Phaseout of Class I Controlled Substances
A. Summary of Proposal
B. Comments on Proposal
C. Final Schedule
D. Legal Authority
III. Accelerated Phaseout of Class II Controlled Substances
A. Statutory Authority
B. Copenhagen Amendments to the Montreal Protocol
C. CAA Petitions
1. NRDC/FOE/EDF
2. CFC Alliance Petition
3. IEER Petition
4. EPA's Proposed Action
5. Response to IEER Petition
6. Today's Final Action
IV. Addition of Methyl Bromide to List of Class I Substances
and Phaseout Schedule
A. Summary
B. Legal Authority
1. CAA Legal Authority
2. Public Comments on Legal Issues
C. Background
1. Initial Identification of Risks of Methyl Bromide
2. Petition to List
3. Montreal Protocol Actions
4. Domestic Regulatory Action
D. Today's Final Action
1. Summary
2. Decision to List
3. Scientific Issues Related to Methyl Bromide
a. Faster Formation of HOBr
b. HBr Branching
c. Other Sinks for Methyl Bromide
d. Natural and Man-made Emissions
e. Summary of ODP Discussion
4. Uses and Substitutes for Methyl Bromide
a. The NAPIAP Study
b. Comments
c. Soil Fumigation
d. Commodity Fumigation
e. Structural Fumigation
5. Analysis of Costs and Benefits
6. Group Assignment and Baseline Year
7. Interim Reductions and Phaseout Schedule
8. Labeling
9. Essential Uses
V. Additional of Hydrobromofluorocarbons (HBFCs) to the List
of Class I Substances and to the Phaseout Schedule
VI. Trade Restrictions
A. Description of Proposed and Final Requirements
B. Response to Major Comments
C. Legal Authority
D. Definitions
E. Foreign States not Party to the Protocol
VII. Changes in Definition of Production
A. Definition of Production
1. Transformation
a. Changes in Treatment of Transformation
b. Recordkeeping and Reporting Changes Relative to Transformation
2. Destruction
a. Elimination of Coincidental Unavoidable Byproducts Provision
b. Destruction-Background
c. Definition of Destruction/Change in Definition of Production
d. Treatment of Destruction
e. Response to Major Comments
f. Degree of Exemption/Credit Afforded for Destruction
g. Standards for Destruction
h. Comments on Reporting and Recordkeeping Associated with
Destruction
3. Spills
B. Imports
C. International Issues
1. Exports
2. Transfers of Production Rights Between Nations
D. Insignificant Quantities
1. Insignificant Quantities of Substances Other than Methyl
Bromide
2. Insignificant Production of Methyl Bromide
VIII. Other Issues
A. Definition of Importer
B. Tracking Essential Uses
C. Addition of HCFCs to the EPCRA Section 313 List
D. Environmental Impact Statement
E. Recycled and Used Controlled Substances
F. Transhipments
G. Publication of the Regulatory Text
IX. Changes from the Proposal and Current Program
X. Impact of Final Action
XI. Additional Information
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
I. Background
A broad scientific consensus has emerged that continuing
depletion of the stratospheric ozone layer will lead to increased
penetration of harmful UV-B radiation to the earth's surface,
resulting in potential damage to human health and the environment.
The risks from ozone depletion include increases in skin cancer
and cataracts, suppression of the human immune response system,
damage to crops and aquatic organisms, increased formation of
ground-level smog, and accelerated weathering of outdoor plastics.
Several national and international assessments have been
conducted over the past years and provide useful summaries of
the information supporting the linkage between emissions of
certain chlorine and bromine-containing substances, depletion
of the earth's protective ozone layer, and damage to human health
and the environment. See for example, ``Assessing the Risks
of Stratospheric Ozone'' EPA (1985); ``Scientific Assessment
of Ozone Depletion'' WMO/UNEP (1989 and 1991); ``Health and
Environmental Effects of Ozone Depletion'' UNEP (1989 and 1991),
and ``Methyl Bromide: Its Atmospheric Science, Technology, and
Economics.''
While considerable uncertainties remain in fully understanding
the complex reactions that occur in the atmosphere that cause
depletion of the ozone layer, scientific research has made
remarkable
progress since 1974 in understanding the atmospheric processes
that lead to depletion of the ozone layer both in the polar
regions and globally. In response to the growing body of evidence
that links chlorofluorocarbons (CFCs) and other chlorinated
and brominated compounds to ozone depletion, the international
community reached agreement in 1987 on a landmark treaty.
The Montreal Protocol on Substances that Deplete the Ozone
Layer (Montreal Protocol) initially called for a fifty percent
reduction in CFC production and consumption by the year 1998
and a freeze in halon production and consumption. When originally
negotiated in 1987, it had been signed by 23 nations and the
European Community.
In the six years since its initiation, the Protocol has evolved
rapidly in response to new scientific and technology developments.
As new evidence was developed suggesting that the risk of ozone
depletion from CFCs and other compounds was greater than had
previously been thought, nations of the world responded by
strengthening
the Protocol first in 1990 and again in 1992.
As the treaty currently stands, the number of Parties has
grown to over 125 nations. Instead of a reduction of 50% in
CFCs by 1998, the Protocol now calls for a phaseout in 1996
with the possible exception for critical uses. In the case of
halons, the Protocol calls for their phaseout by the end of
1993. In addition to the originally controlled compounds,
additional
compounds were added first in 1990 when methyl chloroform and
carbon tetrachloride were added by the Parties and scheduled
for phaseout. The phaseout date for both of these compounds
is now 1996. In addition, at their meeting in 1992, the Parties
adopted an amendment calling for controls and the eventual phaseout
of HCFCs and a freeze on production and consumption of methyl
bromide (except quarantine and preshipment uses).
The accelerated phaseout and expanded scope of compounds
covered by the Montreal Protocol were in response to a series
of reports from the scientific community stating that ozone
depletion in Antarctica appears to be directly the result of
increased concentrations of man-made chlorinated and brominated
compounds, that the potential exists for more significant depletion
in the Arctic region, and that mid-latitude concentrations of
ozone have also been reduced over the past decade or so. A more
detailed description of recent scientific evidence is included
in EPA's March notice of proposed rulemaking (NPRM) (March 18,
1993, 58 FR 15014).
The most recent scientific reports on ozone depletion were
completed after the publication of the March proposal and show
that ozone values over mid-latitudes have been substantially
lower in the winter of 1992 and spring of 1993 than had been
previously recorded for these times of the year. On April 23,
1993, a paper by Gleason et al. was published in Science and
included data from the Total Ozone Mapping Spectrometer (TOMS)
instrument on-board the Nimbus 7 satellite which showed that
global ozone levels were 2-3% lower than any previous year for
these months and 4% lower than normal. Ozone levels for the
northern mid-latitudes were about 10% lower than historical
averages for this time of the year for this region and appear
to have continued at these low levels through the early part
of the summer. While the precise cause of these low ozone values
cannot yet be determined, it may well prove that they are the
result of the indirect effects from the eruption of Mt. Pinatubo
in June 1991. These effects could result from the injection
of aerosol particles into the stratosphere which provide surfaces
for accelerated depletion of ozone by chlorine or bromine species
or which increase stratospheric temperatures and, therefore,
lead to faster reactions involving chlorinated and brominated
species resulting in more depletion. Investigations continue
into better defining the exact role of the sulfur particles
from the volcano in the recent increase in depletion.
II. Accelerated Phaseout of Class I Controlled Substances
A. Summary of Proposal
EPA considered several schedules in the March 18 proposal
to accelerate the phaseout of class I controlled substances.
The Agency had received prior to the proposal two petitions
to accelerate the phaseout, as well as several industry comments
on those petitions, submitted under section 606 of the Clean
Air Act Amendments. These two petitions laid out recommended
schedules to complete the phaseout sooner than the year 2000,
the date required under section 604 of the Clean Air Act. The
Alliance for a Responsible CFC Policy (the Alliance) petitioned
the Agency to complete the phaseout by 1996, allowing for a
limited volume of CFC production until 2000 to service existing
refrigerator and air-conditioning systems. The Alliance suggested
a cut of 50 percent of 1986 production levels for 1993, with
subsequent cuts to 40 percent and 25 percent in 1994 and 1995,
respectively. The Natural Resources Defense Council, the Friends
of the Earth, and the Environmental Defense Fund (NRDC/FOE/EDF)
requested more drastic reductions in 1992, 1993 and 1994 of
40 percent, 25 percent and 15 percent, respectively, with a
complete phaseout by the end of 1994 for CFCs. The environmental
groups also requested that the production of halons and carbon
tetrachloride stop as of 1992, with a 50 percent of baseline
cut for methyl chloroform in 1992, and its complete phaseout
by 1993.
In November of 1992, the Parties to the Montreal Protocol
met and agreed to a set of ``adjustments'', or changes to the
phaseout schedules for the existing controlled substances. The
Parties agreed to phase out all CFCs by 1996, allowing for
production
and consumption of 25 percent of baseline level in 1994 and
1995. The Parties also agreed to cut carbon tetrachloride to
15 percent of baseline levels in 1995, and to complete its phaseout
by 1996. Methyl chloroform was to be eliminated by 1996 also,
with a cut to 50 percent of baseline in 1994 and 1995. The Parties
agreed to phase out the production of halons by the end of 1993.
In order to facilitate these expedited reduction schedules,
the Parties also established criteria for exempting essential
uses from the production phaseout.
In response to the two petitions and the agreement reached
by the Parties in Copenhagen, the Agency proposed in the March
18 NPRM to cut CFC production and consumption to 25 percent
of baseline in 1994, with a subsequent cut to 15 percent by
1995. The Agency proposed to phase out CFCs by 1996, with no
production extending beyond that date to service existing
equipment,
as had been requested by the Alliance, but discussed criteria
established under the Montreal Protocol for granting essential
use exemptions. Since the publication of the March 18 NPRM,
the Agency came to believe that the 15 percent level it had
proposed for 1995 would be too stringent for the sectors that
rely on CFCs. Although CFC use has dropped significantly over
the last few years, a reduction to 15 percent of baseline levels
for CFCs in 1995 could hurt certain sectors, where alternatives
are not yet feasible (e.g. metered dose inhalers, possibly
household
refrigerators), or where CFCs are required for servicing equipment
with long useful lifetimes such as the automobile air conditioner
and comfort cooling sectors. Since retrofits for existing equipment
are still being evaluated and tested for several large use sectors,
the Agency believed that the proposed level of 15 percent in
1995 could deleteriously affect consumers and these user groups.
EPA asked for comments at the public hearing on changing the
1995 limit to 25 percent and published a separate notice requesting
comment on this issue (58 FR 25793, April 28, 1993).
After its proposed regulation was initially signed by the
EPA Administrator, DuPont announced its intent to phase out
its production of CFCs by the end of 1994. Since DuPont has
historically been allocated about half of all allowances (based
on the 1986 base year), its decision to stop production a year
ahead of the schedule proposed by EPA has potentially significant
consequences. EPA also requested comments at the public hearing
on the possible implications of DuPont's action on sectors
requiring
CFCs.
With respect to class I substances other than CFCs, the Agency
proposed to phase out production of carbon tetrachloride and
methyl chloroform by January 1, 1996 also, with interim reductions
of 50 percent and 15 percent of baseline for carbon tetrachloride
in 1994 and 1995, and 50 percent and 30 percent of baseline
cuts for methyl chloroform for those years.
B. Comments on Proposal
EPA received eight comments supporting the proposed accelerated
schedule with the modified 1995 limit of 25% baseline production
and consumption. These commenters, primarily CFC and methyl
chloroform users, believed the proposed schedule feasible, and
that many were on the way to completing the phaseout. However,
several of these companies warned that any further acceleration
would jeopardize phaseout plans and would possibly force the
use of unsafe substitutes. Many agreed that the United States
must adhere to the international phaseout dates set in the Montreal
Protocol, but that it should not unilaterally expedite the
phaseout.
Two environmental groups objected to the proposed scheduling,
both arguing that a faster accelerated schedule was possible
and that CFC production should cease as of January 1, 1995.
One commenter cited DuPont's and the European Community's
announcements
to stop production as of that date as proof that such a phaseout
is possible. Both commenters believe that methyl chloroform
could be phased out in 1995, and that carbon tetrachloride could
be phased out by January 1, 1994.
In addition, EPA received several comments on the issue of
Dupont's decision not to produce CFCs in 1995. Several major
industry groups stated that full production of the 25 percent
allowance is critical to the smooth transition out of CFCs and
that without this quantity available in 1995 severe shortages
are likely to exist and significant economic hardship to consumers
and equipment owners is likely to result. One commenter opposed
any Agency action on this issue, suggesting that DuPont's decision
is better for the environment. DuPont in its comments reiterated
that it believes that demand will drop off to such a degree
in 1995 that its allocation will not be necessary, but that
if the Agency believes that production of the full 25 percent
of baseline levels for 1995 is necessary it would not object
if the Agency were to take action to facilitate this production.
Based on its current view of the marketplace, EPA expects
that almost all major uses of CFCs in new equipment will have
shifted by January 1, 1995, with the possible exception of metered
dose inhalers and some lines of home refrigerators. Thus, the
major source of demand for CFCs in 1995 will be to service existing
refrigeration and air-conditioning equipment.
To reduce future demand by those sectors, EPA has initiated
a number of activities to implement its mandatory recycling
and recovery and disposal rules, to minimize leaks from equipment,
and to encourage retrofits and replacements of existing air-
conditioning and refrigeration systems. However, in the absence
of a drop-in refrigerant to service existing CFC-12 vehicles,
the Agency has determined that the Protocol allowable production
and consumption of 25% in 1995 is necessary to minimize economic
disruption and to facilitate a smoother transition out of CFCs
on the accelerated schedule adopted today. Furthermore, as
explained
below in the section on essential uses, EPA denied several such
applications related to servicing air conditioning and
refrigeration
equipment on the assumption that steps will be taken to ensure
that full production of CFCs is permitted in 1994 and 1995 to
provide additional supplies beyond 1995 in order to minimize
the costs of the phaseout to vehicle and equipment owners. As
a result, the rulemaking contains the legally permissible 25
percent allowable production level in 1995 and the Agency intends
to follow-up on the issue to ensure that this level of production
is made available.
C. Final Schedule
In today's rule, the Agency has finalized the following schedule
for the accelerated phaseout of the class I, groups I through
V controlled substances. This is the schedule originally proposed
in the March 18 notice, with the exception of the 25 percent
level for CFCs in 1995, which is the level on which the Agency
requested comment in its April 28, 1993, Federal Register Notice.
Final Schedule for Class I Controlled Substances, Groups I, II,
III, IV
and V
[Percent Allowable of Baseline Production and
Consumption]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄ
³ CFCs ³
³ Carbon ³ Methyl
³ (Group ³ Halons
³ tetrac ³ chloro
Year (beginning Jan. 1) ³ I and ³ (Group
³ hloride³ form
³ III) ³ II)
³ (Group ³ (Group
³ ³
³ IV) ³ V)
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄ
³ ³
³ ³
1994 .............................. ³ 25 ³ 0
³ 50 ³ 50
1995 .............................. ³ 25 ³ 0
³ 15 ³ 30
1996 .............................. ³ 0 ³ 0
³ 0 ³ 0
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄ
The Agency has decided on this accelerated schedule for several
reasons. First, with one exception discussed below, this is
the schedule that the Parties agreed to in Copenhagen in November
of 1992. The United States agreed to this schedule at that time,
and believe that the schedule appropriately reflects the fastest
technological and economically feasible reduction schedule.
The United States, as well as the majority of the Parties, believes
that a 1996 phaseout is possible, but that an earlier phaseout
would exceed technological capabilities and result in excessive
economic costs. Without international commitment to a phaseout
date, this unilateral action by the United States to phase out
earlier would pose significant costs, but would yield few benefits.
It is true that despite the agreed-to 1996 phaseout, the European
Community and several other countries party to the Protocol
have decided to phase out of the class I chemicals one year
earlier (i.e., January 1, 1995). However, EPA understands that
the European Community and other countries pursuing an earlier
phaseout are not as dependent on CFCs for refrigeration and
air-conditioning as the United States. Consequently, the financial
cost of such a phaseout by the European Community is not nearly
as great as it would be for the United States (see cost
implications
below). EPA believes that the schedule set in Copenhagen is
sufficient to allow an orderly transition out of class I chemicals
without significantly further degrading the ozone layer. However,
EPA believes that a faster schedule for the reduction in 1995
of methyl chloroform in the United States is both technically
and economically feasible and environmentally desirable. As
a result, EPA proposed and is today finalizing the proposed
reduction to 30 percent of baseline levels for this compound
compared to the 50 percent reduction required by the Montreal
Protocol for 1995.
Recent analysis indicates that substantial costs to U.S.
industry and consumers would occur if the U.S. were to accelerate
further the phaseout for CFCs to 1995, rather than 1996. Much
of this cost would fall on consumers and equipment owners in
the refrigeration and air-conditioning sector. Unlike other
sectors, such as solvents and foam blowing, the switch to
alternatives
has been complicated by the search for refrigerants that could
be used to service existing equipment and would not diminish
the efficiency and capacity of existing equipment, and by the
search for refrigerant-compatible lubricating oils. Although
alternatives have been developed for new equipment, the issue
of servicing existing equipment with useful lifetimes well
exceeding
the 1995 phaseout is substantially more complicated. In many
cases, owners of existing equipment must make modifications
to accommodate possible alternatives. This problem is complicated
by the large amount of air-conditioning and refrigeration equipment
in existence. EPA and industry estimates that over 100 million
mobile air-conditioners currently require CFC-12 as a refrigerant.
Some percentage of these will need to be retrofitted if CFC-
12 is not available past the phaseout. Although refrigerant
recycling and recovery at disposal sites will supply this sector
some CFC-12 past 1995, the required volume of refrigerant will
exceed the supply of recycled CFC-12, even with 1995 production
at 25% of baseline. (EPA could not allow production at greater
than 25% level, however, because the Protocol establishes the
level of 25% for 1995.)
For stationary refrigeration sectors, EPA estimates that
more than 67,000 CFC chillers, as well as 7,000 industrial process
chillers are currently operating in the United States. This
equipment has a useful life of 30 years or longer. Although
owners are beginning to retrofit and replace these chillers,
the pace of these activities has been slow, and it is not clear
that there will be sufficient recycled refrigerant past 1995.
Retrofits are available, but costs vary significantly by sector
and even within sectors by type of equipment.
The Agency had proposed in its March 18 NPRM to limit production
and consumption to only 15 percent of baseline in 1995. However,
EPA requested comment on whether the less stringent reduction
to 25 percent baseline would be more appropriate (58 FR 25793).
In today's final action, EPA is allowing the 25 percent baseline
production to be consistent with the provisions of the Copenhagen
agreement by the Parties, and because consumers and equipment
owners would face significant retrofit costs if production levels
were further reduced in 1995. The need for full allowable
production
under the Montreal Protocol in 1995 is even more critical given
the limited essential uses likely to be granted under the Montreal
Protocol for production after that date.
EPA is limiting carbon tetrachloride to 50 percent of baseline
in 1994, with a subsequent cut to 15 percent of baseline in
1995, and no production in 1996, consistent with the Protocol.
Environmentalists, in their comments on the proposal, requested
a carbon tetrachloride phaseout date of January 1, 1994. In
response, the Agency believes that significant steps have been
taken to eliminate the use of this chemical for both health
and environmental reasons. However, the remaining uses are often
unique applications for which the industry continues to search
for substitutes. EPA believes that this remaining 15 percent
of production and consumption for carbon tetrachloride is necessary
to assist the industry in the transition to a complete phaseout.
EPA intends to limit methyl chloroform to 50 percent of baseline
allowances in 1994, and to further reduce consumption and
production
of this chemical to 30 percent of baseline in 1995, with a complete
phaseout in 1996 also. Environmentalists commented that EPA
should phase out this chemical in 1995. In response, EPA believes
that the 1996 phaseout is more appropriate. This user sector
has been subjected to more immediate and drastic reductions
than the other major controlled substances over the last three
years, and to phase out one year earlier than required under
the Montreal Protocol would place an undue burden on a sector
that involves many small users and has faced continually changing
reduction schedules. Despite this, EPA is only allowing production
and consumption equal to 30 percent of baseline, due to the
advancements made by the user sector rather than the 50 percent
allowed under the Protocol. EPA believes that this level is
a feasible one.
EPA performed a comprehensive review of all costs and benefits
of the phaseout of class I chemicals associated with the various
proposed schedules. However, the quantification of benefits
is difficult. In the past, scientists have generally underpredicted
the extent of ozone depletion caused by these chemicals. For
this reason, scientists and policymakers have relied more on
chlorine loading calculations as a surrogate for risk of ozone
depletion than predictions of ozone depletion. Policymakers
have set a target concentration of 2 parts per billion (ppb)
of chlorine as the level that existed prior to the Antarctic
ozone hole. All policies are directed toward reducing the peak
chlorine levels and minimizing the length of time that
concentrations
exceed 2 ppb.
EPA examined the impact on chlorine levels under the schedules
proposed by the environmental groups and by industry as well
as their suggested schedules submitted in their comments on
the proposal. According to this analysis, all three schedules
would return chlorine concentrations to below 2 ppb at the same
time over the next 100 years. As for ``peak'' concentrations,
the environmental groups' schedule limited peak concentrations
to little over 4.0 ppb by the turn of the century, with the
concentrations under the schedules announced here also peaking
at this time, but at approximately 4.1 ppb. The chlorine loadings
for the industry schedule rose to about 4.2 ppb, but peaked
at a later date than either the final rule schedule or the
environmentalists'
schedule. Under all schedules, chlorine concentrations would
decrease from the peak level several years after the 1995 phaseout
and again following the HCFC ban. Although chlorine concentrations
under the environmentalists' schedules do peak at the lowest
level of the chlorine concentrations of the three schedules,
EPA believes that the total volume of additional chlorine loading
from the final rule schedule over the earlier phaseout of
environmentalists'
schedule is not significant, especially when considered over
the next century.
EPA calculated the benefits for the various accelerated
schedules
and compared those benefits with their corresponding costs through
a more traditional cost-benefit analysis. In past analysis of
the benefits of reducing production and consumption of ozone-
depleting chemicals, the Agency has monetized many of the health
and environmental benefits (skin cancer and cataract cases avoided,
crop loss, materials damage, etc.) due to the protection of
the ozone layer. Social costs reflect the expenses incurred
from the transition to alternatives.
The table below presents the costs and benefits for the phaseout
schedules analyzed for the rulemaking.
Incremental Costs and Benefits of the Accelerated Class I
Phaseouts Over
the 2000 Phaseout (Methyl Bromide Not Included; Costs and
Benefits
Discounted at a 2% Discount Rate)
[In Billions of Dollars-Cumulative Costs: 1989-2075 in 1985
Dollars]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄ
Scenario ³Benefits ³
Costs ³ Net
³ ³
³benefits
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄ
³ ³
³
Final rule .................................. ³ 48-189 ³
7 ³ 41-182
NRDC ........................................ ³ 56-221 ³
29 ³ 27-192
Alliance {1} ................................ ³ 39-152 ³
1 ³ 38-151
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄ
{1} The ``Alliance'' is the Alliance for a Responsible CFC
Policy, an
industry lobby group representing producers and users of these
chemicals.
The table does not reflect the large number of uncertainties
associated with such an analysis. The numerical value of benefits
varies depending on the assumed value of life, while costs reflect
social costs and not necessarily the actual costs faced by
companies.
However, despite these uncertainties, the analysis does provide
a range of net benefits for the phaseout of class I chemicals,
and indicates that these net incremental benefits range from
approximately $37 to $192 billion. The NRDC phaseout achieves
the highest net benefit under one set of benefit assumptions,
but the lower end of its net benefit range is below the range
for both the Alliance and the final rule schedule. This is because
of the relatively high cost of the NRDC phaseout. (The Agency
analyzed the reduction schedule suggested in NRDC's response
to the proposed rule. EPA's analysis indicates that, although
costs are lowered, the net incremental benefits are approximately
the same as those of the schedule proposed in their petition.)
Both the final rule schedule and the Alliance schedule have
similar net benefits, but the upper range of the benefits of
the final rule schedule exceeds the benefits range for the Alliance
schedule. For these reasons, the Agency believes it appropriate
to set the reduction schedules as specified in this final rule.
In performing this analysis, the Agency examined the necessary
reductions to meet the production and consumption targets of
this rule. For CFCs, the final rule schedule requires a 75%
reduction in the 1986 baseline in both 1994 and 1995. For the
air-conditioning and refrigeration sectors, EPA assumes that
there is full implementation of recovery of refrigerant at
servicing
and disposal. Also, the Agency assumes that all new equipment
in these sectors contain such alternatives as HFC-134a, HCFC-
123, ternary blends and ammonia, and that high-efficiency purges
have been installed on half of the existing chillers by the
end of 1995.
For the foam sector in 1994 and 1995, the Agency estimates
that more than 23% of the rigid polyurethane boardstock market
will have shifted to product substitutes, and that the remaining
share of that sector will shift to HCFC substitutes. One commenter
did note that the appliance manufacturers would not completely
shift to HCFC replacements by the end of 1993, as had been noted
in the proposal. All other foams have shifted to water blown
foams or product substitutes. With the exception of appliance
foam, EPA expects all uses of CFCs in this sector will have
been eliminated by the end of 1993.
EPA expects that both the solvent and sterilant sectors will
continue to use engineering and housekeeping controls to limit
use of CFCs and shift to alternatives or process changes. Aqueous,
semi-aqueous cleaning, and ``no clean'' technologies continue
to penetrate the new equipment market, while existing equipment
adopts drop-in replacements. Many of the aerosol products have
already moved to alternative propellants and delivery systems.
EPA expects that all uses of CFCs in these sectors will be
eliminated
by the end of 1995.
By the beginning of 1996 all CFC use sectors, except for
certain essential uses, will have made the transition to
alternative
chemicals and products. However, as noted earlier, existing
air-conditioning and refrigeration equipment will require utilizing
some combination of existing CFC inventories, maximum recycling
and recovery at disposal, retrofits, actions to minimize leaks,
and replacement of older, less energy efficient equipment.
The final rule schedule calls for a 50% reduction in 1989
baseline use of methyl chloroform in 1994, with an additional
20 percent reduction in 1995. The Agency believes that this
sector may accomplish these reductions in 1994 through
implementation
of engineering and housekeeping controls in all solvent equipment,
and by industry beginning to use aqueous cleaning in cold cleaning
and conveyorized vapor degreasers. The adhesives sector will
continue implementation of water-based adhesives, and begin
to use hot melts and other solvent based adhesives, while the
coatings and inks sector will continue to use powder coatings,
and expand use of water based coatings.
The 1995 target of 30% of baseline may be achieved by
implementation
of additional alternative solvents in new and existing cold
cleaning, conveyorized and open-top equipment. In addition,
methyl chloroform aerosol producers and users will begin to
adopt petroleum distillates and water based applications. The
industry will completely phase out of methyl chloroform by the
full penetration of these technologies by 1996 except possibly
for limited essential uses.
The schedule in today's final rule requires the complete
phaseout of halons by January 1, 1994. Indeed the Agency
understands
that all manufacturers in the United States will soon have stopped
production of these compounds. The fire prevention community
has successfully completed the transition by adopting alternatives
as well as minimizing the emission of halons during training,
and increased recycling through the recent establishment of
halon banks. EPA commends the halon user sector for their efforts
in the elimination of their use of new, virgin halon. Efforts
to establish halon banks are now underway and should provide
adequate supplies of recycled halons for all critical uses well
into the future. The cooperation of this industry and its resolve
to minimize emissions represents a model for the remaining sectors
to achieve the same results.
In the March proposal, EPA also discussed in detail the
essential
use provision provided for in a decision taken by the Parties
to the Montreal Protocol at their 1992 meeting in Copenhagen.
The proposal discussed the criteria established by the Parties
for granting essential uses, noted that any uses granted under
domestic rules must be consistent with actions taken by the
Parties, and stated that EPA would be requesting essential use
nominations through separate Federal Register announcements.
EPA has published two such announcements in the past six
months. The initial announcements dealt with essential use
nominations
for halons for 1994 (58 FR 6788). Following that, EPA issued
a second announcement (58 FR 29410) covering CFCs, carbon
tetrachloride,
methyl chloroform, and HBFCs for production in 1996.
In the case of halons, EPA received a number of applications
for essential uses, but was able to cooperate with each of the
applicants to address their short-term needs, and therefore
the United States did not nominate any essential uses for halons
for 1994. Nominations were, however, submitted by about a dozen
other nations. As a first step in the review process, these
nominations were examined by the halon committee of the Technology
and Economic Assessment Panel under the Montreal Protocol. This
panel concluded that either adequate substitutes existed for
each of these applications or adequate supplies existed in the
halon bank, and therefore recommended against any additional
production in 1994 for halon essential uses. This recommendation
was unanimously supported at the Open-Ended Working Group which
met in August 1993 in Geneva. The final decision will be taken
this year by the Parties at their meeting in Thailand.
In the case of the other compounds, EPA received approximately
twenty. In evaluating whether additional production would be
needed in 1996, one important consideration is whether adequate
supplies will exist, either from recycled or recovered sources
or from production allowed in 1995 or before, that might be
available for use in 1996 and beyond. To the extent that supplies
are available from any of these sources, then the criteria of
``no available supply'' necessary for granting an essential
use would not be satisfied.
The United States Government reviewed these applications
and forwarded to the Protocol's Secretariat nominations for
production after 1995 for use in: Metered dose inhalers and
other specified medical applications; a bonding agent for the
Space Shuttle; aerosol wasp killers; a limited use in a specified
bonding application and specified polymer application; and a
general nomination for laboratory uses under specified limitations.
The United States did not forward applications submitted in
the area of servicing automobile air conditioners and building
chillers. These were rejected because the government believed
that by taking all economically feasible steps including shifting
to alternatives, initiating retrofits, reducing emissions and
utilizing 1994 and 1995 productions of CFCs, adequate supplies
would exist for servicing for 1996 and for the same period beyond.
However, in putting forward its nominations, the United States
discussed its continued concern about the potential costs if
a significant number of expensive retrofits are required. It
reserved the right in future years to submit nomination in areas
other than those submitted for 1996. The decision by the Parties
on essential uses for CFCs, MCF, carbon tetrachloride and HBFCs
for 1996 will be taken at the 1994 Meeting of the Parties. EPA
will periodically inform the public through Federal Register
notices of the schedule for future essential use nominations
and the outcome and decisions by the Parties of past nominations.
D. Legal Authority
Section 606 of the Act provides the Administrator with authority
to accelerate the phaseout of ozone-depleting substances. That
section authorizes the Administrator to promulgate regulations
that ``establish a schedule for phasing out the production and
consumption of class I and class II substances (or use of class
II substances) that is more stringent than set forth in section
604 or 605, or both, if:
(1) Based on an assessment of credible current scientific
information (including any assessment under the Montreal Protocol)
regarding harmful effects on the stratospheric ozone layer
associated
with a class I or class II substance, the Administrator determines
that more stringent schedule may be necessary to protect human
health and the environment against such effects,
(2) Based on the availability of substitutes for listed
substances,
the Administrator determines that such a more stringent schedule
is practicable, taking into account technological achievable,
safety, and other relevant factors, or
(3) The Montreal Protocol is modified to include a schedule
to control or reduce production, consumption, or use of any
substance more rapidly than the applicable schedule under this
title. In making any determination under paragraphs (1) and
(2), the Administrator shall consider the status of the period
remaining under the applicable schedule under this title.''
As explained above, section 606(a) of the Act sets forth
the criteria on which EPA is to base a decision to accelerate
the phaseout schedule for ozone-depleting substances. The
accelerated
schedules established today are justified under both sections
606(a)(1) (necessary to protect human and the environment) and
606(a)(2) (technologically feasible).
Recent scientific evidence, including the latest of the Montreal
Protocol assessments, provide ample ``credible'' evidence of
the need for further reductions. As discussed above, the latest
scientific evidence provided by NASA, NOAA, and the UNEP assessment
demonstrates that ozone depletion is occurring at a far more
rapid rate than was thought to be the case at the time of the
enactment of the 1990 Clean Air Act Amendments. This evidence
clearly warrants an acceleration of the phaseout schedule. With
respect to section 606(a)(2), the substantial reductions in
production of class I substances highlight the progress being
made in shifting to alternatives. Furthermore, the latest UNEP
Technology Assessment provides adequate documentation of the
technological availability of accelerating the phaseout of these
chemicals.
Section 606(a)(3) also provides authority for implementing
the adjustments to the Protocol agreed to at the Fourth Meeting
of the Parties, i.e., the acceleration of the phaseouts of CFCs,
halons, carbon tetrachloride, and methyl chloroform. Unlike
amendments, adjustments do not need to be ratified by a specified
number of Parties before they enter into force. The adjustments
entered into force on September 22, 1993, prior to the promulgation
of this phaseout rule. Thus, EPA believes that section 606(a)(3)
provides additional authority for accelerating the phaseout
of class I substances at this time.
With respect to amendments approved by the Parties to the
Protocol that accelerate the phaseout of substances listed under
the CAA, such as HCFCs, section 606(a)(3) provides additional
authority for the acceleration of their phaseout schedules once
the amendments have been ratified by the necessary 20 Parties;
all that remains is the passage of time before the amendments
enter into force.
EPA also notes that section 614(b) of the CAA provides that
in the case of a conflict between title VI of the CAA and the
Protocol, the more stringent provision shall govern. Thus, the
Act requires the Agency to establish phaseout schedules at least
as stringent as the accelerated ones agreed to by the Parties.
The phaseout schedules that the Agency is establishing today
are at least as stringent as those required by the adjustments
to the Protocol. The final phaseout dates that are required
for all Class I substances are the same as those in the new
adjustments. The interim reductions required for CFCs in 1994
and 1995, for methyl chloroform in 1994, and for carbon
tetrachloride
in 1995 are also identical to those contained in the adjustments.
The other required interim reductions are more stringent than
those contained in the adjustments. These are being established
under the authority granted in section 606(a) (1) and (2), as
explained in the NPRM (58 FR 15021-22).
EPA believes that an acceleration of the phaseout can be
justified under either paragraph (1) or paragraph (2) of section
606(a), but that even if EPA determines that an accelerated
schedule is warranted based solely on an assessment of credible
scientific information under paragraph (1), it can take into
account the availability of substitutes in determining the specific
accelerated schedule that it promulgates.
EPA believes that this view is reasonable and supported by
both the language and the legislative history of the 1990 Clean
Air Act Amendments. The last sentence of section 606(a) provides
that in making any determination under paragraphs (1) and (2),
the Administrator shall consider the status of the period remaining
under the applicable schedule under this title. Implicit in
the sentence is the notion that EPA will consider both
environmental
need and technological achievability in making ``any''
determination
to accelerate the phaseout schedule. On its face, the sentence
provides that even when making a decision regarding acceleration
pursuant to paragraph (1), EPA is to ``consider the status of
the period remaining under the applicable schedule.'' This connotes
that EPA is to consider the practicality of an accelerated
schedule,
including the availability of substitutes.
Even apart from the language at the end of section 606(a),
which was added during the House-Senate Conference on the 1990
Clean Air Act Amendments, EPA believes it has the authority
to take into account the technological achievability of a specific
schedule in accelerating a phaseout schedule on the basis of
scientific findings. Congress itself recognized the linkage
between the need to phase out the production and consumption
of ozone-depleting chemicals to protect the environment and
human health and the availability of substitutes for those
chemicals.
Even though Congress understood that any delay in phasing out
ozone-depleting substances would delay a return to normal ozone
levels, Congress did not require an immediate phaseout. Instead,
Congress established a schedule phasing out the chemicals over
a period of several years to allow time for substitutes to be
developed and for affected industries to adjust.
The Senate Environment and Public Works Committee noted that
the ``importance of accelerating the phaseout schedule is reflected
in the estimate, presented by expert witnesses, that a three
to five year delay in the phaseout deadline translates into
an additional 20 to 30 years of elevated chlorine levels in
the atmosphere. An additional 20 years of elevated chlorine
levels presents an unacceptable risk that must be avoided if
it is at all possible to do so.'' (S. Comm. Rep. No. 101-228
at 394). Furthermore, with respect to a provision concerning
the phaseout of HCFCs, the Committee Report stated that it must
be recognized ``that the goal of eliminating the potent, long-
lived CFCs as rapidly as possible is, to some extent, dependent
on the near-term availability of HCFCs as intermediate substitutes
* * *.'' (Id. at 395) Thus, the Senate clearly recognized that
the availability of substitutes had to be taken into account
in determining how quickly CFCs could be phased out,
notwithstanding
the environmental benefits that would result from an even more
rapid phaseout.
Moreover, in explaining the provision of the Senate Committee
Report concerning the acceleration of the phaseout schedule,
which provided for EPA to accelerate the schedule if any of
three criteria substantially identical to those in the Amendments
were met, the Committee stated that ``[i]n keeping with the
national policy of eliminating the production before the year
2000, to the maximum extent practicable, the Administrator is
directed to determine no less often than every 18 months whether
any of three conditions requiring acceleration of the schedule
has been satisfied.'' (S. Comm. Rep. No. 101-228, Dec. 20, 1989,
at 393., emphasis added). The Committee's use of the terms,
``as rapidly as possible'' and ``to the maximum extent
practicable,''
demonstrates its recognition of the role of considerations other
than strictly scientific ones in the application of section
606(a).
In taking the availability of substitutes into account, the
Administrator may consider the future potential for substitutes,
as well as the cost of the substitutes, and adopt a phaseout
schedule that will be technology-forcing by inducing the
development
of substitutes on a more accelerated pace than would otherwise
have been the case. This is confirmed by the same Senate Committee
Report that indicated a role for technological factors in the
establishment of a phaseout schedule. The report notes that
a unilateral acceleration of the phaseout schedule by the
Administrator
may be necessary ``to accelerate technological developments.''
(Id. at 393).
EPA believes that the accelerated phaseout schedules for
class I substances are fully justified and within its authority.
III. Accelerated Phaseout of Class II Controlled Substances
In today's final rule, EPA accelerates the phaseout of
production
and consumption of HCFC-22, HCFC-141b and HCFC-142b, three
relatively
high ODP-weighted HCFCs. The Agency believes that this approach
will meet the requirements of the Copenhagen Amendments, as
well as comply with the requirements of the Clean Air Act.
Specifically,
the Agency will ban the production and consumption of HCFC-141b
as of January 1, 2003. The production and consumption of HCFC-
142b and HCFC-22 will be frozen at baseline levels in 2010,
with a complete phaseout of these chemicals by January 1, 2020.
Production and consumption of these chemicals between 2010 and
2020 can only be for the purpose of servicing equipment
manufactured
prior to January 1, 2010. Production and consumption of the
remaining HCFCs will be frozen at baseline levels beginning
January 1, 2015, with all uses of virgin production of these
materials banned except for use as a feedstock or as a refrigerant
in appliances manufactured prior to January 1, 2020. The final
category of HCFCs would be phased out by January 1, 2030.
The Agency has not established a baseline year or corresponding
levels for these HCFCs at this time. EPA will continue to monitor
the production and consumption of these chemicals to determine
the appropriate baseline to ensure that the requirements of
the Copenhagen Amendments and the Clean Air Act are met. Although
a baseline level may be required in order to establish the
appropriate
freeze levels in 2010 and 2015 as required under section 605(d)
of the Clean Air Act, the Agency believes that action so far
in advance of these dates is neither necessary nor desirable.
A. Statutory Authority
Today's final rule accelerates the phaseout of production
and consumption of specified HCFCs. The revised schedule for
phasing out these compounds modifies the schedule contained
in section 605 of the CAA, which states: ``(a) That effective
January 1, 2015, it shall be unlawful for any person to introduce
into interstate commerce or use any class II substance unless
such substance-(1) has been used, recovered, or recycled; (2)
is used and entirely consumed (except for trace quantities)
in the production of other chemicals; or (3) is used as a
refrigerant
in appliances prior to January 1, 2020, and (b) that effective
January 1, 2015, it shall be unlawful for any person to produce
any class II substance in an annual quantity greater than the
quantity of such substance produced by such person during the
baseline year. Effective January 1, 2030, it shall be unlawful
for any person to produce any class II substance.''
The authority to accelerate the phaseout of HCFCs is contained
in section 606 of the CAA, which has been discussed above in
the context of the accelerated phaseout of class I substances.
As part of the petitions submitted to the Agency under section
606 of the CAA, both NRDC/FOE/EDF and the CFC Alliance proposed
modified dates for the phaseout of certain HCFCs. In addition,
the Agency received a third petition dealing with class II
substances
submitted by the Institute for Energy and Environmental Research
(IEER). The Agency responded to the first two sections in the
March 18 proposal while the Agency's response to the IEER petition
is discussed in detail below.
B. Copenhagen Amendments to the Montreal Protocol
At the Fourth Meeting of Montreal Protocol in Copenhagen
in November 1992, the Parties agreed to amend the Protocol to
include a control regime restricting the consumption of HCFCs.
The measures adopted by the Parties place an overall cap on
consumption of these compounds based on their ozone-depleted
weights, and gradually reduce the permissible amount allowed
under this cap. The regime also calls for a phaseout of consumption
in 2030. The consumption cap for each of the developed countries
is equal to the sum of 3.1 percent of the country's 1989 ODP-
weighted consumption of CFCs in Group 1 of Annex A and the ODP-
weighted level of HCFCs also consumed in that year. The HCFC
restrictions are to begin in 1996, assuming that the Copenhagen
Amendments have entered into force by that date. The amendments
further call for a 35% reduction under the cap in 2004, followed
by a 65% reduction in 2010, a 90% reduction in 2015, a 99.5%
reduction in 2020, and a total phaseout in 2030.
Under a separate Federal Register notice (58 FR 40048), EPA
has requested the 1989 HCFC and CFC data it needs to establish
the exact level of the cap that would be applicable to the United
States under the Protocol amendments. Once EPA has calculated
the United States' baseline, the Agency shall publish in the
Federal Register the consumption baseline for the purposes of
the Montreal Protocol.
C. CAA Petitions
1. NRDC/FOE/EDF
The NRDC/FOE/EDF petition requested, among other things,
that the Agency accelerate the phaseout of certain HCFCs, with
the earliest phaseout dates proposed for those compounds with
the highest ODP. Specifically, the petitioners requested that
the production and consumption of HCFC-22, HCFC-141b, and HCFC-
142b be prohibited from use in new equipment by January 1, 2000.
The environmentalist would allow these compounds to be available
for an additional 5 years, until January 1, 2005, to service
existing equipment.
2. CFC Alliance Petition
The CFC Alliance Petition proposed an acceleration of the
same compounds identified in the NRDC/FOE/EDF petition, but
requested different phaseout dates. It suggested a January 1,
2010 ban on the production and use of HCFC-22, HCFC-141b, and
HCFC-142b in new equipment, with a total phaseout of these
compounds
in 2020. The petition submitted by the CFC Alliance was generally
supported in comments provided by the Association of Home Appliance
Manufacturers and the Air Conditioning and Refrigeration Institute.
3. IEER Petition
IEER also submitted a petition dated April 23, 1992 that
relates to the issue of controls on class II substances. IEER
requested that EPA: (1) Reclassify HCFC-22, HCFC-141b, HCFC-
142b as class I substances; (2) recalculate the ozone depletion
potential of any partially halogenated substance with an
atmospheric
lifetime of six months or more based on its peak contribution
to atmospheric chlorine relative to CFC-11 following an
instantaneous
release of each; and (3) survey all chlorine-containing substances
with an atmospheric lifetime greater than one month and list
as a class II substance any such compound that contributes greater
than three parts per trillion to atmospheric chlorine.
The IEER petition argues that the use of ``steady state''
ODPs are an inappropriate basis for dealing with the risks
associated
with various compounds. The calculation of an ODP is based on
its contribution to ozone depletion compared to that of CFC-
11 over a period of roughly 200 years, which is based on the
length of time that CFC-11 would contribute to ozone depletion.
This is referred to as the ``steady state'' ODP. Since the HCFCs
have a considerably shorter atmospheric lifetime, their
contribution
to the risks of ozone depletion occurs over a period of a few
years to several decades, a period far shorter than that of
CFC-11. The IEER petition argues that using the ``steady state''
period of roughly 200 years for analyzing the impact of the
HCFCs is inappropriate and masks their near-term impact. IEER
contends that, most importantly, since the risks of ozone depletion
are greatest over the next decade or so when atmospheric chlorine
and bromine levels are likely to peak and then begin to decline,
EPA should alter its method of calculating ODPs to that proposed
by the petitioner and list compounds as class I or II substances
based on this modified approach.
4. EPA's Proposed Action
In its proposal, EPA addressed both the Copenhagen Amendments
and the issues raised in the NRDC/FOE/EDF and CFC Alliance
petitions.
The proposal incorporated several key concepts contained in
these petitions, including distinguishing among HCFCs based
on their ODP and phasing out use in new equipment prior to use
for servicing existing equipment. The proposal did not explicitly
follow the cap approach adopted internationally under the
Copenhagen
Amendments, but instead contained specific timetables for the
phaseouts of each compound that EPA expects will result in full
compliance with the phased reductions called for by the Protocol
Amendment.
The proposal set forth the following schedule for HCFC
reductions:
by January 1, 2003, all production and consumption of HCFC-141b
would be eliminated; by January 1, 2010, production and consumption
of HCFC-22 and HCFC-142b would be frozen at baseline levels
and virgin material could only be used only as a feedstock or
as a refrigerant in appliances manufactured prior to January
1, 2010; by January 1, 2015, baseline production and consumption
of all other HCFCs would be frozen and all uses of virgin
production
of these materials would be banned except for use as a feedstock
or as a refrigerant in appliances manufactured prior to January
1, 2020; by January 1, 2020, production and consumption of HCFC-
22 and HCFC-142b would be prohibited; and by January 1, 2030,
production and consumption of all other HCFC substances would
be banned.
In this proposal, the Agency discussed at length the basis
for accelerating the phaseout of HCFCs to respond to increased
risks of ozone depletion. It also described its rationale for
rejecting the earlier phaseout dates requested in the NRDC/FOE/EDF
petition. EPA's rationale focused primarily on the fact that
alternatives to many of the HCFCs have not yet been developed
to the point that the Agency could determine that commercialization
would be feasible on a faster timetable. The Agency views HCFCs
as important interim substitutes that will allow for the earliest
possible phaseout of CFCs and other Class I substances. However,
the Agency believes that the use of HCFCs should be limited
to only those applications where other environmentally acceptable
alternatives do not exist. EPA has proposed limitations under
its section 612 rulemaking (Significant New Alternatives Policy
Program) to implement this approach. 58 FR 28094 (May 12, 1993).
By distinguishing between HCFCs based on their relative
contributions
to ozone depletion, the Agency has also sought to minimize risks
associated with the use of HCFCs. In particular, the early phaseout
date for HCFC-141b was proposed because its ODP is substantially
greater than any other of the HCFCs. Similarly, in allowing
until 2030 for the phaseout of HCFC-123 and other HCFCs with
very low ODPs, the Agency's proposed action reflected the fact
that these compounds will contribute substantially less to the
risks of ozone depletion.
The Agency's proposal also explained in detail the rationale
behind implementing a regulatory scheme that differed in approach
from that adopted by the Protocol. The Agency explained that
the cap approach adopted in the Protocol could create unworkable
administrative problems in allocating allowances and that its
proposed regime built on activities (e.g., HCFC production and
use plans) already well underway and would be less disruptive
and provide greater certainty for industries moving aggressively
out of class I substances.
Most importantly, the proposal explained the basis for the
Agency's belief that its regulatory scheme would ensure compliance
with the United States' obligations under the Montreal Protocol.
The Agency presented detailed, sector-by-sector, analysis of
likely uses of HCFCs and determined that based on conservative
assumptions, total use within the United States under its proposal
would not exceed the limits established in the Protocol.
5. Response to IEER Petition
While EPA's March 18, 1993 proposal on class II substances
addresses many of the issues raised in the IEER petition, the
Agency did not explicitly respond to the petition in the context
of that proposal. In doing so here, the Agency believes it is
important to address directly the issues raised by IEER concerning
the listing of several HCFCs as class I substances and the method
of calculating ODPs.
As discussed above, the IEER petition requested that the
Agency shift its methodology in calculating ODPs from the ``steady
state'' calculations that have traditionally been used by EPA
under the Clean Air Act and under the Montreal Protocol to a
calculation based on the ODP at the time of a compound's peak
contribution to atmospheric chlorine or bromine. The rationale
behind this proposal is that an ODP calculated in this manner
better represents the risks of ozone depletion associated with
compounds that have relatively short atmospheric lifetimes and
that this approach is particularly appropriate given that
atmospheric
chlorine levels, and therefore health and environmental risks,
are likely to peak around the turn of the century. The table
below contains ODP calculations for different periods of time
that have recently been published in the scientific literature.
It demonstrates the general point made in the IEER petition
that ODPs for all of the HCFCs are substantially higher over
the short- than over the longterm.
Semi-Empirical Polar Ozone Depletion Potentials
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³ Time
horizon (yrs.)
ÃÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄ
³ 10 ³
20 ³ 100 ³ 500
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄ
³ ³
³ ³
HCFC-22 ................................... ³ 0.17 ³
0.14 ³ 0.07 ³ 0.05
HCFC-141b ................................. ³ 0.45 ³
0.33 ³ 0.13 ³ 0.11
HCFC-123 .................................. ³ 0.19 ³
0.08 ³ 0.03 ³ 0.02
HCFC-142b ................................. ³ 0.16 ³
0.14 ³ 0.08 ³ 0.07
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄ
Source: Solomon and Albritton (1992).
The Agency believes that the need to consider the short-term
impacts of HCFCs on ozone depletion is important in its decisions
to set various control measures for controlled substances required
for phaseout. The decision to accelerate the phaseout of Class
II substances and to require a faster phaseout of those HCFCs
with a higher ODP reflects the Agency's response to this concern.
Indeed, EPA's modeling analysis accounts for short term effects.
Thus, this consideration supports the Agency's decision to phase
out HCFC-141b before any other HCFC.
While recognizing the importance of short-term impacts on
ozone depletion in its regulatory decisions, the Agency has
decided not to modify the manner in which it calculates ODPs
for the purposes of regulating compounds under the CAA. The
Agency believes it has adequate authority to consider a compound's
short-term impact in shaping its regulatory policy without such
a change. For example, in calculating the risks associated with
different phaseout schedules and interim reduction targets,
the Agency's analytical tools (e.g., modeling of chlorine and
ozone depletion) take into consideration both the near-term
and longer-term impacts associated with each compound. Indeed
publication of an atmospheric lifetime and halogen loading
potential
reveals these impacts, when considered together with the steady
state ODP. The Agency has authority under section 602 to add
substances to the class I and II lists based on their overall
harm to the ozone layer and under section 606 to accelerate
the phaseout of class II substances in the light of these impacts.
The Agency believes that changing the calculation methodology
for ODPs as IEER suggests would conflict with the Agency's goals
in protecting against ozone depletion which reach beyond simply
reducing the near-term risks. The Agency and the Montreal Protocol
also have as an important goal restoring ozone to the levels
existing before the onset of the Antarctic ozone hole. To achieve
this goal, it is necessary to also reduce the use of the compounds
with longer atmospheric lifetimes and very high ODPs, including
the CFCs and carbon tetrachloride. To the extent that the
availability
of HCFCs allows for the accelerated phaseout of CFCs, their
use contributes to this important objective. (For several important
uses of CFCs, HCFCs are currently the only available alternatives.)
Changing the method for calculating ODPs could limit the Agency's
flexibility to allow continued use of certain HCFCs as transitional
substitutes for the CFCs.
Furthermore, the Agency has decided not to modify its method
for calculating ODPs because of two potentially important
inconsistencies
that such a change would create. First, the 0.2 threshold in
section 602 for listing a class I substance was specified by
Congress on the basis of a steady state ODP. Since this level
is fixed in the CAA, shifting to short-term ODPs for determining
whether a compound should be listed would produce unintended
results. While the Agency always has the flexibility to add
substances to the class I list based on significant contribution
to ozone depletion, considering all relevant information, the
Agency believes the 0.2 mandatory listing threshold was established
with a steady-state ODP concept in mind. Congress itself assigned
steady state ODPs in section 602, Table 1. While the Agency
is authorized to adjust the Table 1 ODPs. The numbers Congress
assigned indicates that the 0.2 threshold was intended to represent
a steady state ODP. Furthermore, Congress explicitly called
on the Agency to use steady state ODPs as the basis for evaluating
impacts instead of using chlorine loading potentials, even though
the concept of chlorine loading was recognized at the time the
legislation was adopted and EPA is required to publish a compound's
chlorine loading potential under section 602(e).
Congress' understanding that ODPs are calculated as a ``steady
state'' is clearly reflected in the legislative history, as
is Congress's intent that chlorine and bromine loading potentials
be published to allow analysis of ``future peaks and rates of
increase or decline.'' See Senate Committee Report, Report No.
101-228, 101st Cong., 1st Sess., at 389 (December 20, 1989)
(hereinafter ``Senate Report'') (``ODPs * * * reflect the relative
chronic ozone destruction * * * of a substance after nearly
constant emissions for a century. ODPs * * * do not clearly
reflect the contribution of different halocarbons to the amount
of chlorine in the atmosphere over the next decade and beyond.'').
The second reason the Agency has elected not to modify the
way it calculates ODPs is that section 602(e) of the CAA requires
that the ODPs used by the Agency be consistent with the Montreal
Protocol. The Agency, therefore, believes the steady state approach
must be used to assign ODPs under the CAA in order to be consistent
with the steady state approach used under the Montreal Protocol's
Copenhagen Amendments, at least when those Amendments to the
Protocol enter into force (likely sometime in 1994). Even before
the Amendments enter into force, the Agency believes it would
be inappropriate for EPA to adopt one set of values now only
to have to change them within the next several months when the
Copenhagen Amendments entered into force for the United States.
Short-term ODPs were discussed as part of the Scientific
Assessment report to the Montreal Protocol Parties and therefore
were before the Parties as an option to be adopted. However,
neither the Scientific Assessment Panel nor the Parties themselves
recommended or even considered any proposal to shift the
calculation
of ODPs from a steady-state to a short-term basis. Despite being
explicitly included in the Scientific Assessment report the
Parties rejected a shift to short-term ODPs primarily because
they view as the objective of the Protocol both the near-term
reduction of risks and the longer-term return of the atmosphere
to pre-Antarctic ozone hole conditions. A shift to short-term
ODPs might compromise the longer-term objective.
EPA believes, for the reasons discussed above, that to adopt
an approach to ODPs that the Scientific Assessment Panel and
the Parties rejected would be ``inconsistent'' with the Montreal
Protocol and therefore in these circumstances in conflict with
section 602(e).
While EPA has rejected IEER's request for modifying the way
it defines and calculates ODPs for assignment under the CAA,
the Agency notes that if it had done so, very little would change
in its regulatory program. Of the three compounds that IEER
requested be shifted to class I status (HCFC-22, -141b, -142b),
only HCFC-141b would appear to exceed 0.2 based on the 10-20
year lifetimes calculated in the scientific literature and based
on the calculations made by IEER using its ``peak'' approach.
Thus, if the Agency were to proceed today to propose listing
HCFC-141b and allowed the full seven years extension time permitted
under section 602(d) based on what is attainable, it would require
a phaseout in 2002, only one year earlier than today's final
action provides. The other compounds (HCFC-22 and -142b) have
short-term ODPs below 0.2 based on the calculation contained
in the scientific literature and therefore would not have to
be added to the class I list based on the assigned ODP alone.
EPA also does not believe that the addition of these HCFCs
to the class I list can be justified independently on the basis
that they ``contribute significantly'' to ozone depletion. EPA
believes that the use of these HCFC compounds will allow for
the accelerated phaseout of CFCs in several important sectors
and therefore facilitates rather than increases reduction in
both short-term and to a greater extent long-term risks of
depletion.
The final request in the IEER petition involves a review
of other partially halogenated substances to determine if they
contribute to ozone depletion and if they should be listed as
class II substances. While EPA has not conducted an exhaustive
review of all other halogenated compounds, it believes that
the limited data available for such high-volume chlorinated
compounds as perchloroethylene and methylene chloride support
the view that these compounds have very short atmospheric lifetimes
(e.g., much shorter lifetime than any of the HCFCs) and therefore
do not contribute in any significant way to ozone depletion.
6. Today's Final Action
HCFC restrictions and the approach included in today's final
rule have not changed from those proposed by the Agency in March.
EPA received comments from several groups on different aspects
of its proposal. In general, these comments supported the general
approach taken by the Agency in implementing the Montreal
Protocol's
restrictions on HCFCs. These comments supported the Agency's
proposal to phase out compounds based on their relative ODPs
with the compounds with higher ODPs phased out earlier than
those with lower ODPs. Comments also generally supported the
decision to phase out consumption in new equipment prior to
that for servicing existing equipment. Comments strongly opposed
using an allowance allocation or auction to more directly implement
the cap approach adopted in the Protocol.
Several commenters, however, argued for earlier phaseout
dates for several of the HCFCs. These commenters argued that
EPA's proposal would allow too long a period for the use of
HCFCs. For example, these comments suggested that HCFC-141b
could be phased out earlier in foam and HCFC-22 could be eliminated
at an earlier date in refrigeration applications. Other commenters
argued that while alternatives might be feasible by the proposed
dates, it was still too early to tell if they would be and that
the Agency should build in additional flexibility to allow use
to continue for a longer period of time in the event alternatives
do not become available. While EPA intends to monitor closely
the development of alternatives, it has decided against either
requiring an earlier phaseout date for these HCFCs or allowing
greater flexibility by extending the dates. The Agency believes
that critical research into alternatives, particularly for HCFC-
141b in foam and in limited solvent applications and HCFC-22
in refrigeration and airconditioning is currently on-going and
should result in the availability of substitutes by the dates
contained in the HCFC phaseout schedule. While promising
alternatives
for these compounds are currently in early stages of evaluation,
considerably more product testing and energy efficiency evaluations
are required. Any conclusions concerning earlier availability
or commercialization of those alternatives would currently be
premature.
Issues related to HCFCs are also undergoing further review
by the Parties to the Protocol. A new scientific and technical
assessment of relevant issues should be available in late 1994
and will be used by the Parties in reviewing its current HCFC
limitations in 1995. EPA believes that any further actions
regarding
HCFCs should await the outcome of that process.
Finally, in the proposed regulation, EPA restricted both
the production and consumption of the specific HCFC compounds
at specified dates. The Agency received comments stating that
the Montreal Protocol provision on HCFCs restricted only
consumption
of HCFCs, defined in the Protocol as the amount produced plus
the amount imported minus the amount exported and that EPA should
similarly restrict only consumption.
Section 602(c) of the Clean Air Act requires that EPA restrict
production and consumption of class II substances on the same
schedule. Furthermore, EPA believes that, even if authorized
by the Act, it could not adopt final rules restricting only
consumption without requesting public comment on the approach
since it would represent a significant departure from the proposal,
which dealt with both production and consumption.
Moreover, EPA notes that, notwithstanding the production
phaseout, section 605(d)(2) of the CAA allows for continued
export of HCFCs to developing countries that are Party to the
Protocol for their basic domestic needs through 2040. While
the section provides a cap on the amount beyond the baseline
permitted for such experts, as noted earlier, EPA is deferring
for now the establishment of any specific baseline levels for
HCFCs.
EPA proposed quarterly reporting of all HCFC production and
use in order to monitor compliance with the Montreal Protocol.
Several commenters objected to quarterly reporting, stating
that such reporting was burdensome. However, EPA continues to
believe that quarterly reporting is necessary. EPA has developed
an approach to limit HCFCs by targeting for phaseout the high
ODP-weighted HCFCs. By accelerating the phaseout of HCFC-141B,
HCFC-142B and HCFC-22, EPA believes it will meet its obligations
to the Montreal Protocol. However, the Agency must receive HCFC
production and consumption data (i.e., imports and exports)
quarterly to ensure U.S. compliance. If it should appear that
the United States is to exceed its limits, EPA may act to ensure
that compliance is maintained. Although there may be several
approaches that EPA may use to control production and consumption
under these circumstances, it is likely that EPA would resort
to rulemaking during this period, including the use, if necessary,
of a direct or interim final rule. For this reason, EPA will
require quarterly reporting of production imports and exports
of HCFCs. With this data EPA can monitor national consumption
of these data. (EPA does note that to date companies have always
significantly underproduced their allowable level).
Although the March 18 Notice stated that EPA proposed to
require use data, the Agency will not require information on
use from the user sectors. EPA believes that only data on
production
imports and exports are required at this time.
IV. Addition of Methyl Bromide to List of Class I Substances
and Phaseout Schedule
A. Summary
Based on recent scientific assessments and the most recent
actions by the Parties to the Montreal Protocol, EPA proposed
on March 18, 1993 to list methyl bromide as a class I substance
under section 602(c)(3) of the Clean Air Act; and to phase out
production and consumption of this substance by the year 2000.
This was in response to a petition filed on December 3, 1991
by Natural Resources Defense Council, Friends of the Earth,
and the Environmental Defense Fund (hereafter referred to as
NRDC/FOE/EDF petition).
As part of that proposal, EPA rejected the more stringent
phaseout schedule proposed by the petitioners, based on the
lack of available substitutes in the near-term. Instead, EPA
proposed a freeze in production and consumption of methyl bromide
beginning on January 1, 1994 at 1991 levels, no interim reductions,
and a phaseout by the year 2000. In addition, the Agency proposed
that ozone depletion warning labels required under section 611
of the Clean Air Act for products ``manufactured with'' ozone-
depleting substances does not apply to agricultural products,
such as fruits and vegetables. See, Response to Comments on
section 611 labeling rulemaking.
EPA received 560 comments on the methyl bromide aspects of
its March 18th proposal. The large majority of comments were
from members of the agricultural community and generally raised
scientific issues regarding the ozone depletion potential (ODP)
of methyl bromide, the lack of alternatives, and the economic
impact of phasing out the production of this compound.
Today's final action examines in detail the issues raised
by these comments, and adopts an approach that, consistent with
the ozone layer protection requirements of the Clean Air Act,
responds to the current state of scientific understanding
concerning
this compound. The regulatory schedule (freeze without interim
reductions followed by the required phaseout of the compound),
fully utilizes the limited flexibility permitted by the statute.
Specifically, today's final action lists methyl bromide as
a class I substance with an ODP of 0.7 as specified in the latest
Montreal Protocol international scientific assessment and as
agreed to by the Parties to the Protocol at their meeting in
Copenhagen in November 1992. The final rule does not require
any interim reductions and provides the longest possible period
(7 years or until January 1, 2001) allowed under section 602
for the phaseout. Finally, for the reasons explained in the
proposal, EPA is interpreting ``manufactured with'' in section
611 to mean ``the mechanical or chemical transformation of
materials
into new products or to assemble component products'' and to
exclude agricultural processes. Agricultural products for which
methyl bromide is used thus need not be labeled under section
611.
B. Legal Authority
1. CAA Legal Authority
Under section 602(a), EPA is to add to the list of class
I substances any substance that the Administrator finds causes
or contributes significantly to harmful effects on the
stratospheric
ozone layer, including all substances that the Administrator
determines have an ozone depletion potential of 0.2 or greater.
Under section 602(e), simultaneously with any addition to
the class I list, the Administrator shall assign to each listed
substance a numerical value representing the substance's ozone
depletion potential. In addition, the Administrator shall publish
the chlorine and bromine loading potential and the atmospheric
lifetime of each listed substance. Section 601(10) of the Act
defines ODP as ``a factor established by the Administrator to
reflect the ozone depletion potential of a substance on a mass
per kilogram basis, as compared to chlorofluorocarbon-11 (CFC-
11),'' and goes on to state that ``such factor shall be based
upon the substance's atmospheric lifetime, the molecular weight
of bromine and chlorine, and the substance's ability to be
photolytically
disassociated, and upon other factors determined to be an accurate
measure of relative ozone depletion potential.''
Section 602(e) also states that ``[w]here the ozone depletion
potential of a substance is specified in the Montreal Protocol,
the ozone depletion potential specified for that substance under
the subsection shall be consistent with the Montreal Protocol.''
When the Copenhagen amendments to the Montreal Protocol, which
include the ODP for methyl bromide as 0.7, enter into force
for the United States, this statutory provision will apply for
methyl bromide.
Under section 602(c)(3), any person may petition the
Administrator
to add a substance to the list of class I substances. Such a
petition is to include a showing by the petitioner that there
are data on the substance adequate to support the petition.
Also, section 604 authorizes EPA to promulgate regulations
phasing out the production of class I substances from baseline
levels, in accordance with the schedule specified in that section.
The ``baseline year'' is defined in section 601(2)(C) to mean
a representative calendar year selected by the Administrator
in the case of substances added to the class I list. Section
607 authorizes EPA to promulgate regulations providing for
production
and consumption allowances of class I substances.
Under section 602(d), for a newly listed class I substance
(such as methyl bromide), the Administrator may extend any schedule
or compliance deadline contained in section 604 if that schedule
is unattainable considering when it is added to the list. But
the provision specifies that no extension under that subsection
may extend the phaseout to a date more than 7 years after January
1 of the year after the year in which the substance is added
to the class I list. As EPA is adding methyl bromide to the
class I list in 1993, the phaseout date may not be extended
beyond January 1, 2001.
2. Public Comments on Legal Issues
While many commenters argued that EPA should delay action
until scientific uncertainties are resolved, the Agency received
few comments specifically questioning its legal authority to
act under title VI of the CAA.
The Methyl Bromide Working Group (MBWG) provided the only
extensive comments questioning the Agency's legal authority
to list methyl bromide. Its comments stated that EPA's only
nondiscretionary action was to respond to the petition by
NRDC/EDF/FOE
and that a more appropriate response would be to deny the petition
on the basis of scientific uncertainty and instead to issue
a ``tentative, non-binding ODP range for methyl bromide-without
listing it as a class I substance''.
In making this argument, the MBWG argued that the ODP listed
in the report issued by the Montreal Protocol assessment panel
(Methyl Bromide: Its Atmospheric Science, Technology and Economics,
Montreal Protocol Assessment Update, June 1992; hereafter referred
to as Assessment Update) should not be the basis for U.S. domestic
regulatory action and that EPA is required to undertake its
own evaluation of this compound's ODP.
EPA has thoroughly reviewed the issue of whether a range
of values for the ODP would be more appropriate than the 0.7
value contained in its proposal. As explained in detail below,
in the context of this review the Agency has considered the
statutory language and treatment of ODPs, the actions taken
by the Parties to the Montreal Protocol, the Scientific Assessment
Update, and other relevant scientific information. Based on
this review, the Agency has determined that a listing of methyl
bromide with an ODP of 0.7 is warranted.
Section 602(e) of the Clean Air Act addresses the impact
of the Protocol's ODP on EPA's regulatory obligations. When
the Protocol enters into force, EPA must assign an ODP ``consistent
with the Montreal Protocol.'' The commenter argued that a range
of values including the one adopted by the Protocol would be
legally valid. The Agency notes, however, that the Parties to
the Montreal Protocol expressly considered adopting a range
of values for the ODP of methyl bromide and rejected this approach.
EPA believes that adoption of such a range would, under these
circumstances, be inconsistent with their action.
The Protocol's Scientific Assessment Update on methyl bromide
also considered a range of values (from .25 to 1.11) for the
ODP but offered in their report a single value for the ozone
depleting potential for methyl bromide. While both the experts
involved in the assessment panel and the Parties to the Protocol
recognize that the calculation of ODPs for all controlled
substances
involves some degree of uncertainty, the Parties have nonetheless
always adopted a single value for each specific compound. This
approach has historically been used because of the need to use
the ``calculated level'' of production and consumption for a
group of compounds, but has also been adopted in the case of
methyl chloroform and carbon tetrachloride, which are single
compounds in distinct groups similar to methyl bromide.
Section 602(e) of the CAA also provides single values for
the ODP of each listed substance in Table 1 and states that
the Agency shall assign ``a numerical value representing the
substance's ozone depletion potential.'' (Emphasis added)
Scientific
uncertainty is inherent in assigning any ODP, and EPA has concluded
that scientific uncertainty in the case of methyl bromide does
not warrant a different approach to assigning ODP.
The Parties to the Protocol will reconsider the ODP of methyl
bromide at their 1995 meeting based on an update by the scientific
assessment panel and could at that time recommend modification.
Should such a change occur, EPA would also reconsider the ODP
assigned to methyl bromide under the Clean Air Act.
EPA's legal obligation under section 602(e) to assign an
ODP to methyl bromide consistent with that specified in the
Montreal Protocol technically will not arise until the Copenhagen
Amendments to the Montreal Protocol enter into force. Those
amendments are to enter into force on January 1, 1994, provided
that twenty Parties have ratified the amendments by that time.
Otherwise, the amendments will enter into force 90 days after
the twentieth instrument of ratification is deposited by a Party.
As of September 1993, seven Parties have deposited their
instruments
of ratification.
EPA also believes that the best scientific evidence currently
available supports assigning methyl bromide an ODP of 0.7. This
evidence is addressed in the Scientific Assessment Panel's updated
assessment report on methyl bromide. The world's leading experts
on this issue prepared and peer reviewed this report, and it
represents the best available scientific analysis for EPA
evaluation
and a sound basis for EPA action. A detailed discussion of the
scientific issues surrounding methyl bromide's ODP is presented
below.
Finally, EPA has also examined closely the scientific issues
raised by the MBWG and others in the comments and addresses
these concerns in detail below. Based on this review and for
the reasons stated above, EPA has rejected the idea of using
a range of value for the ODP of methyl bromide.
The MBWG contends that EPA has failed to demonstrate that
methyl bromide ``contributes significantly to harmful effects
on the stratospheric ozone layer'' under section 602(a). Section
602(a) of the Clean Air Act specifies that the Administrator
shall add to the class I list all substances having an ODP of
0.2 or greater. Since EPA has concluded that methyl bromide's
ODP exceeds this threshold, application of the less objective
``contributes significantly'' standard is unnecessary. In any
case, however, EPA believes the best current scientific evidence
clearly supports adding methyl bromide to the class I list under
this standard, as well. It is noteworthy that, because methyl
bromide has a relatively short atmospheric lifetime relative
to CFC-11, the 0.7 ODP understates the near-term damage methyl
bromide causes in comparison to the CFCs. As explained below,
the 0.7 ODP reflects the comparative damage of methyl bromide
and CFC-11 over a 200-year time period. Over a 10-year time
period, the best estimate of methyl bromide's ODP would be 7.
This short-term ODP is vastly higher than any other substance
not currently on the class I list, and thus supports different
treatment than that accorded such other substances (See discussion
of IEER petition and HCFCs above.) Therefore, methyl bromide's
near-term contribution to ozone depletion over the near-term
is much higher than even the 0.7 ODP suggests. The Protocol's
Assessment Update Report reflects this perspective:
``These model results suggest that anthropogenic emissions
of (methyl bromide) could have accounted for about one-twentieth
to one-tenth of the current observed ozone loss of 4-6%, and
could grow to about one-sixth of the predicted loss by the year
2000 if emissions continue to increase at the present rate of
about 5-6% per year.''
While uncertainties affect this and any model calculations
about ozone depletion, this statement further supports the
conclusion
that, absent steps under the Protocol to limit emissions, man-
made methyl bromide plays a significant role in ozone layer
damage.
The MBWG next contends that ``prior to imposing any ban EPA
is obligated to demonstrate, with a high measure of certainty,
that termination of this product will be attainable,'' but provides
no legal basis for this obligation. As discussed in the preamble
to the March 18 proposal, EPA believes that the Clean Air Act
requires that all substances that the Administrator determines
have an ODP of 0.2 or above be added to the class I list, without
regard to whether a phaseout is attainable. The Clean Air Act
separately allows EPA to extend the phaseout schedule under
section 602(d) for a seven-year limited time if the otherwise
applicable phaseout schedule is unattainable, considering when
the substance is added to the list. Indeed the specific limitation
of the extension authority to seven years confirms that the
issue of whether a phaseout is attainable is not relevant to
EPA's decision whether to add the substance to the class I list.
The MBWG further states that EPA's failure to consider the
availability of substitutes in setting the phaseout date makes
EPA's decision ``legally flawed.'' As discussed extensively
in the preamble to the proposal, the Agency believes that, under
section 602(c), methyl bromide's significant contribution to
stratospheric ozone depletion, and its ozone depletion potential,
constitute a sufficient basis for adding this substance to the
class I list. While the ultimate phaseout of methyl bromide
is a consequence of this listing, the Agency does not believe
it has authority to consider the economic impact of the phaseout
in determining whether to add methyl bromide to the list.
At the same time, however, the Agency believes that economic
impacts are relevant to its decision whether to extend the section
604(a) statutory schedule under section 602(d). As explained
in the proposal, the Agency may extend the section 604(a) phaseout
schedule within specified limits if it is unattainable, considering
when the new substance is added to the class I list. The economic
impact of a phaseout is integral to the question of whether
a phaseout is ``unattainable.'' Based on the unavailability
of substitutes for methyl bromide, EPA has concluded that near-
term reductions are unattainable and that a freeze on production
and consumption is the most stringent interim reduction schedule
that can be established. As section 602(d) specifically limits
EPA's authority to extend the phaseout schedule to seven years
following the year methyl bromide is added to the class I list,
EPA may not extend the phaseout date past January 1, 2001 (assuming
listing in 1993). EPA does not believe it has discretion to
further extend this phaseout date based on economic impacts.
EPA proposed to extend the schedule until January 1, 2000,
rather than January 1, 2001. EPA gave two reasons for this
position.
First, the Agency explained that it did not believe the phaseout
should be extended beyond the January 1, 2000 final termination
date specified in section 604 for class I substances absent
an affirmative basis to believe that termination will be
unattainable
at that time. Second, EPA explained that it would not have had
authority to extend the phaseout beyond January 1, 2000, had
the Agency complied with the statutory schedule for responding
to the petition to add methyl bromide to the class I list.
Several commenters urged the Agency to extend the final phaseout
date until January 1, 2001 as allowed under section 604. These
commenters stated that the additional year is important given
the limited time currently available to develop alternatives
and to have these alternatives approved for use by the required
regulatory agencies. EPA agrees with these commenters that the
Agency cannot now conclude that these considerations will be
any less important in the year 2000 than in the years prior
to that time. Thus, EPA now believes that these considerations
justify extending the freeze until the 2001 phaseout. Of course,
as noted in the proposal, EPA will, in cooperation with the
Office of Pesticide Programs and the USDA, monitor the availability
of substitutes and could accelerate the phaseout or establish
interim reductions, if justifiable based on future information.
The MBWG also stated in its comment that section 612(a) of
the Act ``requires EPA to ensure that its regulatory decisions
under subchapter VI actions do not result in increased risks
to health and the environment.'' Section 612(a) requires EPA
``to the maximum extent practicable'' to take steps to ensure
that more harmful substances are not used to replace class I
and II substances. But the Agency's decision to list a substance
which is to be determined solely based on the criteria specified
in section 602(a), which does not include such a general risk
standard.
C. Background
1. Initial Identification of Risks of Methyl Bromide
Action to list methyl bromide as a class I substance can
be traced back to the international scientific assessment prepared
in 1991 for the Parties to the Montreal Protocol. Article 6
of the Montreal Protocol calls for a periodic assessment of
scientific, economic, technical, and environmental issues related
to ozone depletion. The 1991 Scientific Assessment Report issued
in December 1991 first identified methyl bromide as a potential
significant contributor to ozone depletion and listed the ozone
depletion potential of this compound at 0.6.
2. Petition To List
Following the publication of the assessment, NRDC/FOE/EDF
petitioned EPA on December 3, 1991, requesting among other things
that the Agency add methyl bromide to the list of class I
substances
under section 602(c) and phase out its production and consumption
on an accelerated basis under section 606. It also requested
that the Agency take emergency action under section 303 to reduce
methyl bromide production in 1992 by 50 percent, with a total
phaseout by January 1, 1993.
Because section 602 provides a timetable for responding to
petitions and because no imminent hazard was involved, EPA rejected
the petitioners' request for emergency action under section
303 and otherwise responded to the petition in its March 18,
1993, Federal Register proposal.
Section 602(c)(3) specifies that within 180 days of receiving
a petition, EPA shall either propose to add the substance to
the list of class I or II substances or publish an explanation
of the reason for denying the petition. If the decision is to
propose listing, EPA is given one year after receipt of the
petition to add the substance to the list by rule, or make a
final determination not to add the substance to the list. EPA
proposed to add methyl bromide to the class I list on March
18, 1993 (58 FR 15014). Today's notice constitutes final action
granting the petition to add methyl bromide to the class I list.
3. Montreal Protocol Actions
The Montreal Protocol Parties at the April 1992 meeting of
the Open-Ended Working Group began discussions on possible changes
to the Protocol based on the 1991 assessment reports. At this
meeting, the United States first proposed adding methyl bromide
to the Montreal Protocol based on the concerns raised in the
Scientific Assessment Report. The U.S. proposed to phase out
production and consumption by the year 2000. In an effort to
provide more detailed information for the Parties to consider,
the Open-Ended Working Group called on the Chairman of the
Assessment
Panels to provide additional information on both scientific
and technical/economic issues related to controls on methyl
bromide.
In response to this request, the Panels prepared an update
of the scientific assessment report that focused specifically
on methyl bromide. The report drew extensively from material
presented at a two-day scientific workshop organized by the
Methyl Bromide Global Coalition and held on June 2-3, 1992 in
Washington, DC.
The resulting Protocol Assessment Update report concluded
that, while substantial uncertainties exist, the current best
estimate of the ozone depletion potential of methyl bromide
was 0.7 (revised upward from 0.6 contained in the initial
Scientific
Assessment Report). Furthermore, it concluded that if man-made
emissions continued at current rates of increase, atmospheric
models predict that man-made methyl bromide would account for
5-10 percent of current depletion and one-sixth of depletion
in the year 2000. The report identified as key areas of uncertainty
such factors as the potential for additional sinks for methyl
bromide and the possibility of the compound breaking down in
the atmosphere into less reactive species. These uncertainties
are discussed in the section on scientific issues below.
A workshop to review technical issues concerning the use
and availability of substitutes for methyl bromide was held
from June 16-18, 1992, also in Washington, DC. The workshop
was attended by over 90 experts from 20 countries and included
sessions on each of the key areas of use of this compound. It
concluded that use of methyl bromide could be reduced
substantially,
but that no single alternative exists as a substitute for all
uses of methyl bromide and that alternatives for some important
uses do not currently exist.
A report summarizing the findings of both the scientific
and technical workshops was prepared, thoroughly peer reviewed,
and issued by the Chairman of the Assessment Panels (Dr. Robert
Watson), ``Methyl bromide: Its Atmospheric Science, Technology
and Economics'' in June 1992 (referred to here as Assessment
Update). The report served as the basis for continued discussions
among the Parties to the Protocol concerning the possibility
of action to restrict production and consumption of methyl bromide.
At the Fourth Meeting of the Parties to the Montreal Protocol
held in November 1992 in Copenhagen, the issue of what action,
if any, to take on methyl bromide was widely debated. A number
of nations, including Israel and many developing countries,
maintained the position that the scientific evidence was so
uncertain and the economic impact potentially so great that
any action at this time to add this compound to the Protocol
was premature. They advocated that the Parties should agree
only to undertake additional studies to evaluate the need for
and the nature of any future action. In contrast, the United
States and many developed nations argued that action to restrict
methyl bromide would make a significant contribution to global
efforts to protect the ozone layer and that restrictions now
on the production and consumption of this compound with an
exemption
for essential uses would be the appropriate course of action.
The United States proposed phasing out the compound in the year
2000 while other nations favored either a near-term freeze or
freeze with a reduction step.
The Parties to the Protocol reached a consensus decision
with the adoption of an amendment calling for a freeze on methyl
bromide production and consumption beginning in 1995 at 1991
levels with an exemption for quarantine and preshipment
applications.
The Parties also agreed that in adding methyl bromide to the
list of controlled substances as Annex E, that it should be
listed with an ozone depletion potential of 0.7.
In addition, the Parties unanimously adopted a non-binding
resolution urging nations to take all steps to reduce emissions
of methyl bromide and urging the Parties to take further steps
to agree on reductions and an appropriate phaseout date based
on the next round of Protocol assessments. The scientific and
technical assessments have already been initiated and are due
to be completed in November 1994. They will serve as the basis
for further decisions by the Parties to be taken at their Sixth
Meeting in 1995.
4. Domestic Regulatory Action
As part of its efforts to develop information to respond
to the petition by the environmental groups to list methyl bromide
as a class I substance, on July 27, 1993, EPA issued a request
for information under section 114(a) of the Clean Air Act. This
letter was sent to key industry and government organizations
that potentially had useful information on the uses of methyl
bromide, emissions from those uses, the availability of
alternatives,
and scientific information concerning the ozone depletion potential
and impact of methyl bromide on the ozone layer.
EPA received responses from a broad spectrum of the agricultural
community which provided useful information on the uses of methyl
bromide and the difficulties in identifying viable alternatives.
Many of the respondents also questioned the scientific basis
for linking their use of methyl bromide to ozone depletion and
urged the Agency to delay action pending greater scientific
certainty.
On March 18, 1992, EPA responded to the NRDC/EDF/FOE petition
in the context of its proposed rule. The key elements of that
proposal as it related to methyl bromide are the following:
-Methyl bromide would be added to the list of class I substances
and its ODP would be listed as 0.7.
-Production and consumption of the compound would be frozen
at 1991 levels beginning on January 1, 1994 and phased out
by January 1, 2000.
-No interim reductions in production and consumption were included
in the proposal.
-Methyl bromide was established as the only compound in a newly
created group six within the list of Class I substances.
-The labeling provisions under section 611 would not apply to
agricultural products for which methyl bromide is used need
not be labeled under section 611.
EPA believes that its proposal would minimize the impact
on the agricultural community of listing methyl bromide as a
class I substance. EPA proposed to exercise its authority to
extend the phaseout schedule under section 602(d) to a freeze
as the most stringent schedule for phaseout it could propose
in place of the section 604(a) schedule. This extension would
provide maximum flexibility for the agricultural community to
identify and shift to alternatives.
With regard to the ODP of methyl bromide, the Agency based
its proposal and its evaluation of the ODP on the recommendations
of the Protocol's Scientific Assessment report and its update,
and the action taken by the Parties to the Montreal Protocol.
As stated above, the Protocol's assessment update report represents
the most authoritative review of scientific evidence related
to methyl bromide's impact on the ozone layer. While the report
of that group recognized that important uncertainties related
to the compound's ODP remain, they nonetheless provided an estimate
of the ODP of methyl bromide as 0.7. The Agency evaluated all
the evidence available to it at the time of its proposal and
determined that no new or additional information existed that
was not available and considered at the time of the assessment
and that supported reaching any alternative conclusion. The
Agency believes the ODP provided for by that assessment represents
the best current scientific evaluation of methyl bromide's ODP.
Further discussion of the scientific basis for the 0.7 ODP is
contained below.
In proposing to move forward to regulate methyl bromide based
on the 0.7 ODP, the Agency fully recognizes that uncertainties
remain and that additional information will become available
over the next several years and could alter the ODP contained
in future assessments. To address this issue, EPA clarified
in its proposal that it believes it has the authority under
section 602(c)(1) to delist methyl bromide as a class I substance
in the event that new information or future action taken under
the Montreal Protocol shifts the ODP below 0.2 and other wise
demonstrates that methyl bromide does not contribute significantly
to harmful effects on the stratospheric ozone layer, including
near term effect. EPA explained the rationale behind this position
at length in its proposal (58 FR 15037). Essentially, the Agency
believes that the restriction on delisting class I substances
contained in section 602(c)(4) applies only to substances
explicitly
listed in the Act itself by Congress and contained in section
602(a). EPA is adding methyl bromide to the class I list under
subsection (c) of section 602, and methyl bromide is thus not
explicitly ``referred to'' in subsection (a). EPA believes it
would not be covered under the prohibition, contained in section
602(c)(4), against removing a substance from the list.
The Agency reasons that without the ability to delist a
substance,
EPA would hesitate to add a substance to the class I list until
all uncertainties are resolved, despite much evidence of the
substance's danger. The chilling effect of requiring absolute
certainty prior to listing a substance would appear to run directly
counter to Congressional intent that the Agency take reasonable
steps to safeguard the ozone layer. Several respondents in their
comments support EPA on this interpretation as set out in the
proposal.
With regard to the phaseout schedule, the proposal set January
1, 2000 as the phaseout date for production and consumption
of this compound. This date was based on language in section
602 that requires that any newly listed substance be phased
out no later than seven years after the year in which it is
added to the list of class I substances. The proposal acknowledged
that if methyl bromide were listed in 1993, that the Agency
could postpone its phaseout until 2001. However, for the reasons
explained above, EPA has decided to extend the freeze in this
final rule until January 1, 2001.
The proposal did not require any interim reductions in
production
and consumption of methyl bromide and instead jumps directly
to the required phaseout. In determining the interim schedule
prior to the mandated seven-year phaseout, the Agency is authorized
to extend the schedule in section 604(a) if that schedule is
unattainable. In its proposal, the Agency stated that it believed
the stringent phasedown schedule in 604(a) is, in fact,
unattainable
based on the current availability of substitutes for methyl
bromide. While the Protocol's technology assessment and EPA's
own review have identified potential substitutes for many of
the major uses of methyl bromide, several years or longer will
likely be necessary to resolve possible regulatory and commercial
barriers to the widespread use of these alternatives and to
shift to these substitutes in a reasonably cost-effective manner.
The proposal also stated that a number of near-term steps were
being taken to reduce use and emissions and that these efforts
would effectively allow for the maintenance of baseline production
at 1991 levels without creating any significant economic impact
until the year of the phaseout. Finally, the Agency acknowledged
that should significant technological progress in shifting to
alternatives occur prior to the phaseout, then it would reconsider
the interim dates if it determined that interim reductions would
be achievable. The Agency further recognized citizens' option
under section 606 to petition the Agency to accelerate the
reduction
schedule based on future information.
EPA proposed to place methyl bromide in a newly created sixth
group within the list of class I substances rather than adding
it to a previously existing group. In proposing this approach
to listing methyl bromide, the Agency was following the historical
precedent established both under previous actions under the
Clean Air Act and by the Parties to the Protocol in the Copenhagen
Amendments. In addition, EPA has placed methyl bromide in a
separate group due to its own phaseout schedule.
In a final issue raised in the proposal, the Agency requested
comment on whether the statute allows for any exemptions for
essential uses from the phaseout of methyl bromide. EPA received
comments supporting two different positions on this issue. Some
commenters stated that since Title VI is silent on the grant
of essential use exemptions for newly listed substances, but
allows specified exemptions for currently listed substances,
that the Agency has the authority to grant exemptions beyond
the phaseout date for any newly listed substances. Other commenters
supported the position that since no explicit authority exists
and the exemptions listed in section 604 are narrowly defined,
that EPA lacks the authority to grant essential uses for newly
listed substances such as methyl bromide. EPA's response to
these comments is presented below.
D. Today's Final Action
1. Summary
Today's final rule lists methyl bromide as a class I substance
with an ozone depletion potential of 0.7. While recognizing
that scientific uncertainties remain, EPA believes that the
best available scientific evidence warrants this action. In
listing methyl bromide as a class I substance in a newly
established
Group VI, the Agency is freezing production and consumption
at 1991 levels for the control period beginning on January 1,
1994. The phaseout of production and consumption is scheduled
for January 1, 2001, and no interim reductions in production
or consumption are required during the period prior to the
phaseout.
Consistent with the Agency's interpretation of section 611,
products that utilize methyl bromide as part of an agricultural
process need not be labeled under that section.
In taking final action on the listing of methyl bromide at
this time, the Agency seeks to craft a regulatory approach that
is both consistent with the requirements of the CAA and with
past and possible future action by the Parties to the Montreal
Protocol. The Agency has limited discretion under section 602
to decide when and how to regulate compounds as class I substances.
The Agency is obligated under section 602(a) to list any substance
the Administrator finds ``cause or contributes significantly
to harmful effects on the stratospheric ozone layer'' as well
as ``all substances that the Administrator determines have an
ozone depletion potential of 0.2 or greater.'' Once listed,
the Agency's authority to extend the statutory phaseout schedule
is limited to the situation where that schedule is ``unattainable''
under section 602(d) and in any event cannot extend beyond 7
years. As discussed in the proposal, the Agency believes the
sense of the statutory scheme is that the most stringent attainable
schedule should be applied to the newly listed substance. See
58 FR at 15034. EPA believes that maintaining the freeze level
until 2001 is the most stringent schedule it can promulgate.
EPA cannot now conclude that any faster phaseout schedule is
attainable. EPA has considered the economic impact of a methyl
bromide phaseout in determining the most stringent schedule
of interim reductions it could promulgate.
EPA does not believe further technology forcing through interim
reductions is necessary or appropriate. The Agency believes
that it should allow the agricultural community the maximum
length of time under these circumstances to develop and implement
cost-effective alternatives to methyl bromide. Also, while not
strictly relevant to what is attainable, the Agency notes that
the freeze established today will avoid any unnecessary economic
impact in the unlikely event that the scientific understanding
of methyl bromide's ODP changes significantly so that it is
reduced below 0.2 and otherwise merits reconsideration of the
listing based on its contribution to ozone depletion.
The next Montreal Protocol scientific assessment will be
completed in November 1994 and the Parties to the Montreal Protocol
will again address the issues of methyl bromide limitations
and ODP at their Sixth Meeting in 1995. The Agency will review
its action today in light of future scientific data and
information,
the outcome of the updated scientific assessment, and any relevant
future actions by the Parties to the Protocol.
2. Decision To List
EPA believes that the scientific evidence warrants the Agency's
conclusion that methyl bromide's ODP is greater than 0.2, and
that this is most consistent with action being taken under the
Montreal Protocol to include methyl bromide's ODP as 0.7. Thus,
the statutory requirements for adding methyl bromide to the
class I list, in EPA's judgment, have been satisfied. Based
on the scientific evidence regarding the ODP and also the evidence
that methyl bromide's destructive impact is concentrated in
the near-term, EPA believes this action is both legally supportable
and environmentally appropriate.
As discussed above in the section on ``Legal Authority,''
EPA believes that the reasoning and conclusions of the Montreal
Protocol Scientific Assessment and its update, and actions by
the Parties to the Montreal Protocol form an adequate basis
for the Administrator's judgment that the threshold requirements
for adding methyl bromide to the class I list have been fully
satisfied. In particular, a key conclusion of the scientific
assessment update was the following: ``. . . model results suggest
that anthropogenic emissions of CH3Br (methyl bromide) could
have accounted for one-twentieth to one-tenth of the current
observed ozone loss of four to six percent, and could grow to
about one-sixth of the predicted ozone loss by the year 2000
if emissions continue to increase at the present rate of five
to six percent per year.'' This conclusion reached by the
Scientific
Assessment Panel underscores the potential significant near-
term impact of methyl bromide on ozone depletion in the absence
of actions to restrict emissions.
This international scientific assessment based on the best
scientific evidence available, clearly supports the Agency's
conclusion that man-made methyl bromide represents a significant
risk to the earth's ozone layer. The Agency does not believe
that uncertainty inherent in all ozone depletion model calculations
justifies a different conclusion or a ``wait and see'' approach.
Furthermore, the scientific assessment panel also established
the ODP of methyl bromide at 0.7, recognizing that uncertainties
exist and that other factors could alter the ODP calculation.
This value was adopted by the Parties to the Montreal Protocol
at their Fourth Meeting as part of the Copenhagen amendments
to the Protocol. At the time these amendments enter into force
(likely in 1994), EPA is required by section 602(e) to adopt
an ODP consistent with that contained in the Montreal Protocol.
Prior to that time, EPA believes that, absent a compelling reason
to modify the ODP in favor of a different value, that it is
appropriate to move forward with the same value contained in
both the Protocol's scientific assessment update and adopted
by the Parties. EPA has carefully reviewed the public comments
on the science assessment and newly published information contained
in the scientific literature that relates to the ODP and impact
of methyl bromide on the ozone layer. The Agency does not believe
that a substantial case has been made for discarding or overriding
the conclusions reached in the Protocol's Assessment Update
or to modify on an interim basis the ODP contained in the
Copenhagen
Amendments to the Protocol that are likely to enter into force
next year.
3. Scientific Issues Related to Methyl Bromide
In the preamble to its proposed regulations, EPA discussed
at length the scientific basis for its proposal to list methyl
bromide. Specifically, it presented the key findings of the
Montreal Protocol's Scientific Assessment report and update
that dealt with methyl bromide and that represented the most
authoritative review of these issues. The Agency also cited
the areas of significant scientific uncertainty described in
that report, including the possibility of additional oceanic
and terrestrial sinks for methyl bromide, the potential for
some percentage of atmospheric reactions to lead to the
sequestering
of bromine in less reactive compounds (i.e., referred to as
Hbr branching) or more reactive compounds (i.e., increased HOBr
formation), and the possibility that emissions of methyl bromide
from man-made activities are smaller than estimated and that
natural sources of methyl bromide are larger. EPA received
extensive
comments on each of these issues, primarily from the Methyl
Bromide Working Group (MBWG). These and other related issues
are discussed in the following sections.
a. Faster Formation of HOBr. While discussed at the scientific
assessment workshop in June 1992, the conclusions of the panel
in calculating the ODP of methyl bromide do not take into
consideration
the faster rate constant of the formation of HOBr from BrO plus
HO2. This faster measurement differs from earlier slower estimates
of this rate constant and now provides a measurement basis for
the recommendation found in the compendium of rate constants
published by the Jet Propulsion Laboratory (JPL) in 1992. However,
the 95% confidence limit set forth in this compendium still
encompasses the slower rate.
The effect of including the faster reaction would be to raise
the ODP of methyl bromide, all other things being equal. The
impact of including this faster reaction rate on the ODP of
methyl bromide was included in the public comments submitted
by the MBWG as calculated by Sze et. al. Based on these model
calculations, assuming a 2.1 year atmospheric lifetime of methyl
bromide, the ODP would be increased from 0.64 to 0.85. Assuming
a lifetime of 1.3 years, the ODP would increase from 0.4 to
0.53.
EPA recognizes that the evidence regarding this rate constant
appears to warrant an upward adjustment of the methyl bromide
ODP from 0.7, which was calculated without using this faster
rate constant. However, since the Protocol scientific assessment
addressed this possible faster rate constant as an area of
remaining
uncertainty and did not include it in its calculations, EPA
does not believe it should adopt an upwardly adjusted ODP for
methyl bromide as a regulatory matter at this time. Additional
review of this issue by the scientific community is underway
and will provide a stronger basis for any modifications to the
ODP related to this issue in future years. EPA notes that a
slight increase in methyl bromide's ODP would not alter the
regulatory regime adopted for this compound. Also, the Agency
does not believe it should, as a regulatory matter, continually
adjust the ODP of any compound as scientific investigation yields
preliminary new information that has not been fully accepted
by the international assessment process and that may be further
modified with additional research.
Rather, the Agency believes that, to the extent there is
no regulatory impact, the ODP should be established consistent
with the scientific information presented in the two-year cycle
of scientific assessments under the Montreal Protocol, and thus
correspond to actions taken by the Parties to the Protocol.
The Agency notes the mandate in section 602(e) of the Clean
Air Act that the ODP specified under the Act ``shall be
consistent''
with the ODP specified under the Protocol supports this approach.
b. Hbr Branching. Assuming the faster rate of formation of
HO2 with BrO as discussed above, an important area of uncertainty
is whether and to what extent reaction of HO2 with BrO leads
to the formation of Hbr plus O3. To the extent such reactions
occur in the stratosphere, the ozone depletion potential of
methyl bromine would be decreased.
This issue was examined in detail in the update report from
the Scientific Assessment Panel. It stated that ``a major
uncertainty
in the calculation of bromide-related ozone loss and ODPs is
associated with quantification of the rate of formation of HBr
in the stratosphere.''
While the assessment panel had before it several calculations
assuming different rates of ``HBr branching'' and included one
of these calculations in its report, it nonetheless rejected
including these estimates in its final determination of methyl
bromide's ODP. The panel report stated two factors as arguments
against its inclusion. First, there is no evidence of analogous
chlorine reactions producing HCl. Second, while additional data
on BrO measurements is necessary to draw any firm conclusions,
the assessment report states: ``Although the upper range of
the observed BrO would appear to be in conflict with a significant
HBr source, that lack of definitive data for HBr and the large
scatter in observed BrO made it difficult to rule out this
possibility.''
Comments on these issues were submitted by the Methyl Bromide
Working Group. They argue that no basis exists to believe that
an analogous reaction with HCl would in any way be relevant
to HBr branching; that limited measurements of HCl do exist;
and that HBr branching is consistent with recent atmospheric
measurements.
The MBWG provided limited data to support the contentions
that production of HCl is significant or not relevant to whether
HBr formation occurs. Additional research will be important
to fully resolve this issue, including more data on observed
values of HBr and BrO. Based on the evidence available at the
time of assessment, however, the Panel concluded that the inclusion
of HBr branching was sufficiently speculative that the Panel
excluded it from its best estimate of the ODP of methyl bromide.
The assessment panel report states that the higher ODP values
for inclusion of a faster BrO plus HO2 reaction ``is not
recommended''
and ``neither is the lower value of the ODP obtained when it
is assumed that 10% of the BrO plus HO2 reaction produces HBr.''
The rejection of HBr branching by the Panel was based on
insufficient
data on relevant reaction rates under stratospheric conditions
of temperature and pressure and the need for additional studies
on the formation of HBr by other reaction such as BrO plus OH
and Br plus HO2 to improve the understanding of partitioning
of bromine in the stratosphere. This lack of evidence supporting
HBr partitioning along with the belief that no evidence exists
that analogous chlorine reactions (ClO plus HO2 and ClO plus
OH) produce HCl were the basis for the Panel's decision not
to include HBr branching when they recommended the estimate
of the ODP of methyl bromide. For the reasons discussed below,
EPA fully concurs with this decision and with the Panel's
conclusion.
To evaluate the impact of different degrees of HBr branching
on the ODP of methyl bromide, the MBWG commissioned an analysis
using a state of the art atmospheric chemistry model. The model
calculated the ODP assuming first, an estimated lifetime of
methyl bromide of 2.1 years, and second, assuming a significant
oceanic sink resulted in an atmospheric lifetime of 1.3 years.
Assuming that a 10% branching of HBr occurs, and using the faster
rate constant for BrO plus HO2 (see above), the model calculated
an ODP of 0.24 and 0.15 for an atmospheric lifetime of 2.1 years
and 1.3 years, respectively. If HBr branching occurred at the
rate of 5%, the calculated ODPs are 0.4 and 0.24, for lifetimes
of 2.1 and 1.3 years, respectively. The authors then go on to
compare the model calculated levels of HBr with the limited
data from the field. While stating that 10% HBr branching leads
to a 6-7 parts per trillion by volume (pptv) of HBr at 32 km
compared to an upper limit of 4 pptv measured by Traub, the
authors concluded that despite the inconsistency, branching
of as much as 10% cannot be ruled out given the ``expected temporal
and spatial variability of HBr and the relatively small samples
of data from which the upper limits are derived.'' Finally,
the authors state that their model calculation does not take
into consideration possible losses of methyl bromide to land
surfaces which would further reduce the calculated ODP.
In addressing the basis for the conclusions reached in the
Assessment Update report, the MBWG first argues that branching
to form HCl is consistent with atmospheric measurements. They
cite a paper by Stachnick et al., in Geophysical Research Letters
to support this claim. While the paper provides a number of
possible explanations for the elevated level of HCl, it does
not mention the relevant analogous reaction (HO2 plus ClO) as
a plausible explanation. Furthermore, laboratory studies of
OH plus ClO have produced no direct evidence in support of the
formation of HCl. (Memorandum from NASA to EPA, August 19, 1993.)
The MBWG cites a paper by Lee (J. Chin. Chemical Society) as
containing laboratory evidence that HCl is formed by the reaction
HO2 plus ClO. Concerns have been raised that this paper represents
the only published work demonstrating this reaction, that internal
controls used in the experiment were inadequate, and that efforts
to date in the United States to verify this experiment have
not been successful. (Memorandum from NASA to EPA August 19,
1993.)
Finally, the MBWG's comments argue that since the scientific
community agrees that the possibility of HBr branching cannot
be ruled out, it is improper that ``EPA in effect does just
that, by adopting an ODP value which fails to take this possibility
into account.'' However, when presented with much the same
information,
for the reasons described above, the scientific assessment panel
also deemed it more appropriate to calculate the ODP of methyl
bromide without factoring in any specific value for HBr branching.
The Agency also believes that the evidence provided by the MBWG
is either scientifically flawed or insufficient for the reasons
stated above to include HBr branching in its calculation of
methyl bromide's ODP. While the Agency recognizes that additional
research is necessary to better understand the issue of HBr
branching, the evidence available to date does not merit including
it in its ODP calculations.
It is important to note that the paper submitted by the MBWG
on these issues was also submitted for publication in a scientific
journal and has since been modified and resubmitted for
publication.
(Telephone conversation with author September 23, 1993). It
is also worth noting that key aspects of analysis presented
in the paper that the MBWG relies upon were also reviewed prior
to the issuance of the update report by the Scientific Assessment
Panel. As discussed in detail above, the update report concluded
that the role of HBr branching was sufficiently speculative
that it should not be taken into account in its calculation
of ODP. Based on its review of all of the evidence, EPA concurs
with the view that inclusion of HBr branch, in the calculation
of methyl bromide's ODP is too speculative. Should additional
measurements or modeling provide more conclusive evidence in
support of HBr branching, then the Agency would consider future
changes to reduce the ODP of methyl bromide.
c. Other Sinks for Methyl Bromide. In proposing an ODP of
0.7, EPA stated that this calculation was based only on reactions
with the OH radical and that an important area of uncertainty
was whether other oceanic or landbased sinks for methyl bromide
exist. To the extent significant additional sinks for methyl
bromide exist, they would result in a lower ODP for this compound.
Similarly, in the update of the Protocol's Scientific Assessment
on methyl bromide, the panel concluded that ``possible oceanic
and terrestrial surface removal processes are one of the major
areas of uncertainty in determining the global budget for methyl
bromide.'' EPA received extensive comments from the MBWG and
has reviewed several recent papers published related to the
broader issue of the global ``budget'' of methyl bromide.
The comments from the MBWG point out the possible discrepancy
between the past commercial sales of methyl bromide and
measurements
of atmospheric concentrations of this compound. They cite papers
by Cicerone (1988) and by Khalil (1993) to argue that while
commercial sales increased in the mid-1980s, measured atmospheric
concentrations increased only slightly if at all. From this
possible anomaly, the MBWB argues that an additional important
sink must exist for methyl bromide. The comment fails, however,
to reflect additional data presented by Khalil (1993), which
concludes that atmospheric concentrations did increase from
the period 1988-1992 at the rate of about 3% plus or minus 1%
per year. Because these data on production and concentrations
do not portray a consistent picture, no firm conclusions can
be drawn from them concerning the existence of additional sinks
for methyl bromide. The potential for both additional sources
and sinks for methyl bromide is an important area of uncertainty
and more information should be available in future years.
In order to estimate the potential impact of the oceans as
a substantial sink for methyl bromide, the MBWG included
information
based on modelling performed by Sze as described above. This
analysis showed that, even if the oceans were indeed a major
sink for methyl bromide, the atmospheric lifetime based on this
factor alone would decrease from 2.1 years to 1.3 years, and
decrease the ODP to 0.4, still well above the 0.2 threshold.
EPA also received a paper from a research scientist at NOAA
that examines the potential role of the oceans in regulating
the atmospheric concentrations of methyl bromide (Butler, 1993).
This paper was submitted to the docket at the same time it was
submitted for publication in a scientific journal. Based on
comments received from the journal, this paper has been
substantially
revised and resubmitted for review and possible publication.
(Telephone conversation with author, September 16, 1993). This
original paper suggests that any evaluation of the atmospheric
lifetime and impact on ozone of methyl bromide must include
the role of the oceans. The paper suggests that the oceans are
the largest source of methyl bromide, and that they could act
as a regulator of the atmospheric concentrations of methyl bromide.
Thus, even if man-made emissions of methyl bromide were reduced
through regulatory action, this paper suggests that reductions
in atmospheric concentrations may not be reduced correspondingly.
According to this paper, the oceans could increase their emissions
to the atmosphere, largely or in part offsetting any gains from
reductions in man-made emissions.
However, recent time series data published by Khalil (1993)
suggest that atmospheric concentrations have been slowly increasing
over the past four years. This data appears to contradict the
hypothesis that atmospheric concentrations would not change
if manmade emissions decreased.
To explore his hypothesis, Butler develops a simplified model
combining both oceanic and atmospheric responses. The results
from this model show the relationship between the atmospheric
lifetime of methyl bromide and the saturation anomaly of the
compound. The saturation anomaly is calculated by comparing
the ratio of measurements of atmospheric concentrations with
levels of oceanic concentrations. His analysis suggests that
if the value for the saturation anomaly is 100%, then the
atmospheric
lifetime would be slightly less than 2.0 years. If, however,
the value for the saturation anomaly were 300 percent, then
the atmospheric lifetime of methyl bromide would be reduced
to slightly less than one year.
Only limited and somewhat conflicting data exist of measurements
of the saturation anomaly of methyl bromide. Khalil (1993) reports
on data from two shipboard experiments that occurred in 1983
and 1987. Based on measurements taken on these voyages, he
estimated
a saturation anomaly of 40-80 percent. This value would be
consistent
with an atmospheric lifetime of methyl bromide of just over
2 years. In contrast, a paper by Singh (1993) reports on data
from a different oceanic experiment conducted in 1981-82 which
produced values for the saturation anomaly at 180-240 percent,
which would lead to an atmospheric lifetime of methyl bromide
of 1-1.2 years.
Without additional data, it is impossible to reconcile the
range in values provided by the two limited data sets. However,
in the explanation of his data, Singh (1993) suggests that it
may not be appropriate to generalize to the entire ocean from
the data he collected in the eastern Pacific. He points to
productivity
maps that suggest the sampled area is 2-4 times more productive
than the oceans as a whole. The model developed by Butler is
necessarily simplified (given the paucity of data) and models
the oceans as a whole. Nonetheless, additional data is essential
to narrow the uncertainties raised in Bulter's analysis. Given
the data available to date, the Agency does not believe it is
prudent to modify the current regulatory strategy based on the
hypothesis that the saturation anomaly across the entire oceans
would be substantially greater than that obtained in the
measurements
reported by Khalil.
Finally, the MBWG comments also suggest that terrestrial
sinks could be significant and further reduce the ODP of methyl
bromide. While methyl bromide acts as a strong methylating agent,
no published data exist concerning the possible magnitude of
losses through land-based surface removal. The commenter
essentially
cited information contained in a presentation made on this issue
at the Scientific Workshop on methyl bromide by Kolb. This
presentation
focused primarily on what studies could be done to evaluate
land-based sinks and contained no data specifically demonstrating
that such a sink exists for methyl bromide. Since no additional
information is presented in support of modifying the ODP to
reflect this factor, EPA must reach the same conclusion as the
Scientific Assessment Panel, that an insufficient basis exists
for altering the ODP based on the existence of land-based sinks.
Should additional information be developed demonstrating that
surface losses are an important sink for methyl bromide, the
calculation of its ODP could be modified accordingly in the
future.
d. Natural and Man-Made Emissions. In addition to emissions
from human activities, the oceans also represent a significant
source of emissions of methyl bromide. The relative role of
emissions from natural versus man-made sources of methyl bromide
is one of the key areas of uncertainty and has important
implications
for the effectiveness of measures to safeguard stratospheric
ozone. Also, the total amount of emissions is relevant to the
issue of atmospheric lifetime and therefore the calculation
of ODP.
Based on their review of relevant data on this issue, the
Protocol's Scientific Assessment update concluded that man-made
emissions amounted to 25% percent plus or minus 10% of total
methyl bromide in the atmosphere. This calculation assumes that
the atmospheric lifetime of methyl bromide is two years and
calculates that corresponding total emissions are roughly 75-
110 thousand metric tonnes annually to obtain the measured
atmospheric
abundance of 9-13 pptv. Of this amount, roughly 25 thousand
tonnes would be from man-made sources and the remaining roughly
75 thousand tonnes would be from natural sources.
In their comments, the MBWG pointed out that if a one-year
atmospheric lifetime were assumed instead of two years, that
the percent contribution from man-made sources would be cut
in half. However, if the lifetime of methyl bromide were a year,
annual emissions would have to double to 150-220 thousand metric
tonnes in order to maintain the measured atmospheric abundance
of 9-13 pptv. While that amount cannot be ruled out, Khalil
(1993), in the most extensive review of the methyl bromide budget
published to date, estimated that emissions from the oceans
amount to only 35 thousand metric tonnes. In another paper on
this issue, Singh (1993) estimated that emissions from the oceans
are on the order of 60 (40-80) thousand metric tonnes/year.
While both papers point out the substantial uncertainties and
limited availability of data to calculate the methyl bromide
budget, based on the information available to these investigators,
they calculated that in the absence of other significant sources,
emissions from the oceans appear to be well below the amount
required to support a one-year atmospheric lifetime of methyl
bromide. However, a related area of uncertainty is whether methyl
bromide from the burning of biomass could also represent a
significant
source of man-made emissions. (Khalil, 1993).
Finally, the MBWG's comments discuss a number of possible
alternative explanations for the north-south gradient that exists
in measurements of methyl bromide's atmospheric abundance. The
science assessment update suggests that this gradient reflects
a significant source of methyl bromide from agricultural sources
primarily in the northern hemisphere consistent with commercial
sales and use of this compound. While direct measurements of
emissions of methyl bromide from agricultural applications,
of course, provide clearer evidence of the role of man-made
methyl bromide, the existence of an interhemispheric gradient
with higher concentration in the north may be an indirect
confirmation
that such emissions occur. This evidence tends to counter the
contention by some agricultural groups that methyl bromide injected
into the soil largely breaks down prior to its release into
the atmosphere.
The comments by the MBWG suggested that the gradient could
occur for a number of other reasons including: the fact that
the oceans constitute a far greater percentage of the Southern
hemisphere total mass and, therefore, constitute a larger sink
in that half of the globe; that northern hemispheric oceans
are biologically active and represent a larger natural source
of emissions; that the larger land mass in the northern hemisphere
represents a larger land sink; that the gradient in north to
south of the OH radical is responsible for the gradient in methyl
bromide abundances; and that large emissions of methyl bromide
from biomass burning in the southern hemisphere is the reason
it does not demonstrate a hemispheric gradient. Each of these
hypotheses is presented in the comments as an equally feasible
explanation for the interhemispheric gradient of methyl bromide.
Without presenting any convincing arguments for any of these
alternative hypotheses, the MBWG's comments state that ``it
is unscientific for EPA to simply pick one hypothesis `out of
the hat' and to dismiss all other plausible explanations for
the interhemispheric gradient.'' The possible explanation of
the interhemispheric gradient included in EPA's proposal was
identified by the Protocol's Scientific Assessment Panel as
the most plausible explanation. The panel stated that the
interhemispheric
gradient was clear from the available atmospheric measurements
and ``most probably indicated an excess source in the Northern
Hemisphere.'' It reached this tentative conclusion rather than
the ones preferred by the MBWG because it had data on methyl
bromide use indicating higher emissions in the north than the
south. Either no data, or inconclusive or conflicting data,
was all that was available for each of the alternative hypotheses
presented by the MBWG. While additional data will help clarify
this issue in future assessments, the Agency believes that no
additional information was presented in the comments to justify
disagreeing with the statement on the possible cause of the
interhemispheric gradient contained in the assessment panel
update report.
One final area of uncertainty relates to the burning of leaded
gasoline as another possible source of man-made methyl bromide.
While the use of leaded gasoline is decreasing in favor of unleaded
gasoline, this source may prove to be a significant source of
methyl bromide in the short-term. The source of the methyl bromide
in leaded fuel is ethylene dibromide (EDB), a material that
is added to the fuel as a lead scavenger (0.015g EDB/liter fuel).
Limited data exists suggesting that the exhaust of a vehicle
using leaded fuel may contain some 22-44% organic bromines,
with the portion of this emitted as methyl bromide varying between
54-82%. Additional studies will be required to fully evaluate
the situation. However, in the United States, leaded fuel usage
is only 1 percent or less of total fuel usage, making the
atmospheric
contribution of methyl bromide from this source negligible.
However, to the extent leaded fuel, is still used in other parts
of the world, it is an important issue for calculating the methyl
bromide budget and for possible future international controls.
e. Summary of ODP Discussion. Both the Protocol's Scientific
Assessment Update on methyl bromide and the discussion of methyl
bromide's ODP in the preamble to EPA's proposed action identify
a number of important uncertainties concerning the ODP. EPA
received extensive comments related to these uncertainties and
some commenters suggested that because, in their view, the ODP
is likely to fall below 0.2, the Agency should delay taking
any action.
In reviewing these comments, EPA believes most if not all
of these uncertainties were reviewed by the Scientific Assessment
Panel in their update report. While recognizing that the ODP
may change in the future as additional information becomes
available,
the panel concluded that 0.7 was the current best estimate for
the ODP of methyl bromide. It explicitly rejected both higher
and lower estimates based on the same factors commenters on
EPA's proposal have since raised.
The comments further demonstrate that any single factor alone,
even in an extreme case, is unlikely to reduce the ODP below
0.2. Thus, even the high value for HBr branching (10 percent)
alone would reduce the ODP to only 0.24. To reduce the ODP below
0.2 would require both a substantial oceanic sink and significant
HBr branching.
To put the 0.2 ODP value in context, it is important to note
that compounds with values below 0.2 are also being severely
regulated under both the Montreal Protocol and CAA regulations.
For example, methyl chloroform has an ODP of 0.12 (based on
the latest scientific assessment) and is being phased out by
January 1, 1996 both under the Protocol and CAA regulations.
HCFC-141b has an ODP of 0.11 and is scheduled for phaseout in
today's regulations by 2003. Thus, even if the ODP of methyl
bromide were to drop below 0.2, the compound could still be
regulated in much the same time frame established by today's
rule.
Finally, the above discussion of the ODP has focused exclusively
on steady-state values for the ODP of methyl bromide. The steady-
state value calculates the impact of the compound on ozone relative
to CFC-11 over a period of several hundred years. To the extent
that the greatest concerns about the impact of ozone depletion
will occur over the next ten years after which peak depletion
will be declining, EPA also considers the ODP over that shorter
time period important. Because of its shorter atmospheric lifetime
compared to CFC-11 (2 years compared to 60 years), the short-
term impact of methyl bromide on ozone is substantially greater
than its impact calculated over a much longer period of time.
The scientific assessment update report calculates the ODP of
methyl bromide over a period of 10 years at 7.0. The Agency
believes it is important to consider that short-term reduction
in risks to the ozone layer is an important part of its efforts
under Title VI of the CAA, (See section on HCFCs and IEER petition,
above). EPA believes methyl bromide ``contributes significantly
to harmful efforts on the stratospheric ozone layer'' to an
extent much greater than reflected in its steady-state ODP.
Methyl bromides short-term effect, even if the steady state
ODP is proven to be just below 0.2, would still be much higher
than any substance not currently on the class I list, and could
well still merit listing based on its substantial contribution
to stratospheric ozone depletion.
4. Uses and Substitutes for Methyl Bromide
Methyl bromide is a broad spectrum pesticide which is widely
used as a fumigant in the control of insects, nematodes, weeds,
pathogens, and rodents. It is primarily utilized for soil
fumigation
(80 percent of world-wide use), commodity and quarantine treatment
(15 percent of use), and structural fumigation (5 percent of
use). Because of its relatively low price, and its physical
and chemical attributes, it is used world-wide in many different
situations. Due to the versatility of this chemical, there is
no single alternative treatment that can duplicate the action
of methyl bromide in all its many applications. It is possible,
however, to consider alternative chemicals and production methods
that can replace methyl bromide to a significant degree in numerous
situations.
In the last several months, activities related to several
alternatives have been initiated. While additional research
field tests and regulatory approvals will be necessary to define
efficacy and applicability and may take considerable time, these
initial steps represent an important beginning. Specifically,
carbonyl sulfide has been identified by researchers in Australia
as a potentially effective pest control material for commodity
pests such as beetles, fruit flies, moths, mites and termites,
as well as a soil fumigant for nematodes. Whether or not
registration
is sought for this material in the U.S. remains an important
issue. Enzone has just recently been approved for registration
for use as a pesticide for nematode and disease control on grapes
and citrus in the United States. In addition, new application
methods are currently being field tested for metam sodium which
show significant improvement in coverage and penetration. And
in 1994, Telone will likely be investigated in large scale field
trials in California, with the intention of a possible future
reentry of use in that state. Several researchers have recently
began developing a system utilizing carbon dioxide in combination
with reduced dosages of existing fumigant agents in structural
and commodity applications to achieve control levels better
than what has been seen with methyl bromide alone. In addition,
EPA expects an application to be filled shortly with the EPA
Office of Pesticide Programs for the use of Dazomet as a soil
fumigant for a number of high value applications which now use
methyl bromide. While none of these alternatives are likely
to make significant near-term inroads into the use of methyl
bromide, depending on the outcome of additional efforts, they
could contribute to the transition by 2001.
a. The NAPIAP Study. The United States Department of Agriculture
(USDA) issued a document in April 1993 entitled, ``The Biologic
and Economic Assessment of Methyl Bromide,'' which was prepared
by the National Agriculture Pesticide Impact Assessment Program
(NAPIAP), and which will henceforth be referred to as the NAPIAP
assessment. The NAPIAP assessment was intended to evaluate the
impact on American agriculture from an immediate ban of methyl
bromide.
EPA believes that the report represents a useful analysis
if methyl bromide were banned immediately, but that it was not
designed nor intended to evaluate the proposed phaseout of this
compound in the year 2000. Because it looks at the impact of
an immediate ban, it assures little use of replacement materials
by the agricultural community.
The NAPIAP assessment considered an acceptable alternative
to methyl bromide to be one that duplicates its biocidal actions.
This serves to restrict the range of materials which the NAPIAP
report considered to replace methyl bromide. Methyl bromide
is used to control pests which would otherwise cause crop damage
and economic losses. However, it is not necessary (and probably
not possible) to duplicate methyl bromide's broad spectrum efficacy
to achieve pest control. EPA believes, nonetheless, that it
is possible to manage the pests currently controlled by methyl
bromide with other chemical pest control tools, as well as
nonchemical
and cultural means.
Many years of research have perfected the use of methyl bromide
as a soil and commodity fumigant. It is reasonable to expect
that major research efforts will be needed to improve the
performances
of metam-sodium, dazomet, 1,3-dichloropropene and other alternative
pest control techniques. For example, preplant methyl bromide
fumigation has shaped the way in which research, breeding programs,
and commercial practices are pursued with strawberry cultivation
in California. Strawberry cultures were bred and selected in
soils fumigated with methyl bromide. Under these circumstances,
there has been no need to maintain or improve resistance to
minor root pathogens, let alone major diseases such as
Verticillium.
Very little is known about cultivar resistance to root diseases
because commercial strawberries are grown under ``near axenic''
soil conditions. Researchers are likely to overcome at least
part of the impacts of the methyl bromide phaseout by focusing
on different strawberry cultures and developing appropriate
pest management practices.
b. Comments. Several individuals and groups submitted comments
to EPA on substitutes and alternatives to methyl bromide. In
many cases, those in the agricultural community indicated they
believed that alternatives to this material were extremely
``limited'',
which would result in a situation where pests currently controlled
by methyl bromide would be left uncontrolled, causing severe
economic losses. EPA acknowledges that there is no chemical
currently in existence nor envisioned in the short-term which
will duplicate the broad spectrum biocidal action of methyl
bromide. However, EPA believes that in order to prevent crop
damage, and keep pests below the economic damage threshold,
it is not necessary to duplicate the broad spectrum efficacy
of methyl bromide. There are, in existence and under development,
both chemical and non-chemical pest control tools which can
manage insects, weeds, nematodes, and plant diseases. In pest
management cases where alternatives are not currently available,
EPA supports research, such as that now being spearheaded by
the USDA, to identify and implement good alternative pest control
materials and methods.
EPA agrees with comments that stated that methyl bromide
is a crop protection tool that currently satisfies a number
of important needs. If other tools can satisfy these needs,
however, they will be accepted and utilized by the agricultural
community. In this light, a fumigant with analogous broadspectrum
biocidal characteristics as methyl bromide is not essential
to combat pests which cause crop damage and yield losses. Better
utilization of existing chemical pesticides, together with non-
chemicals and cultural methods, can address a many of the pest
problems now managed by methyl bromide. Therefore, alternatives
to methyl bromide need not be identical to this chemical in
order to manage pests that can cause crop loss.
Comments were raised concerning materials that have potential
to be used in place of methyl bromide and that must be evaluated
on a case-by-case, crop-by-crop basis, appraising efficacy against
the target pest, practical feasibility in a particular crop,
economic viability, health and environmental risks, and regulatory
issues. Several chemical and non-chemical pesticides exist today
that are effective against insects, weeds, nematodes, and plant
diseases. These will need to undergo further research to determine
if they are practical field replacements for pests now controlled
by methyl bromide. These materials are not general biocides
like methyl bromide, but are action-specific to a particular
set of pests. Therefore, it is likely that these materials will
need to be used in combination with each other, and in conjunction
with a good integrated pest management program, to replace the
use of methyl bromide. Research is currently underway on both
the governmental and academic levels, as well as in the private
sector, to ensure that alternative materials and methods will
be viable and available before methyl bromide is phased out.
A number of individuals and associations commented on the
potential negative health effects of increased UV-B radiation,
supporting the phaseout of methyl bromide to ensure protection
of the ozone layer, thereby protecting human health and the
environment in general. EPA agrees with this assessment, believing
that the benefits to be expected with the phaseout of this chemical
are considerably greater than any short-term costs.
Several commenters discussed the health and environmental
problems that increased UV-B radiation would cause, the toxicity
of methyl bromide, especially regarding the potential for worker
exposure. The Physicians for Social Responsibility commented
that methyl bromide appears to produce lasting neural behavioral
deficits that are likely to impair cognitive functions even
when used under conditions currently judged to be acceptable.
They also noted that since this chemical is a potent alkylating
agent and mutagenic, it may be carcinogenic.
Several commenters stated that once methyl bromide has been
listed as a class I ozone depleting substance, EPA should implement
other pertinent sections of the CAA Title VI, notably sections
608 and 610. Section 608 concerns emissions control, which in
the case of methyl bromide would require users to reduce emissions
as much as technologically possible in the interim. Section
610 allows for a ban on non-essential uses of class I substances,
which would require users to immediately implement existing
replacements for aerosol applications of methyl bromide. However,
after careful review and due consideration, EPA believes that
it is premature to consider additional regulations at this time.
Some commenters have raised concerns over regulatory issues,
citing the time and cost involved in processing and registering
pesticides with EPA. It is an EPA requirement to thoroughly
test any material which will be utilized as a pesticide to evaluate
the potential for unreasonable adverse health and environmental.
See, 40 CFR part l (58). This can take many years, depending
upon the type of material and the complexity of testing needed.
However, despite the time involved, pesticides are registered,
and do become commercially available. While this issue may slow
the short-term accessibility of some materials and is one reason
for not requiring interim reductions, it should not be a
significant
long-term barrier to the development of methyl bromide
replacements.
c. Soil Fumigation. One of the most common uses of methyl
bromide is as a soil fumigant. It is utilized to control nematodes,
pathogens, insects, and weeds which reside in the soil and
uncontrolled,
can cause significant crop loss. Methyl bromide, especially
when combined with chloropicrin, can thoroughly eliminate these
pests from the soil. However, since this material will no longer
be available, other pest control means will need to be developed
and utilized to allow farmers to produce consistent and quality
produce. EPA recognizes that this process will involve considerable
research on existing and developing pesticides, as well as the
registration of new pesticides. The process of pesticide
registration
includes both health and environmental testing, and may compromise
the near-term utilization of some of these materials.
Several individual farmers and grower organizations commented
on the potential lack of pest control materials with which to
replace methyl bromide. As discussed above, EPA believes that
alternatives to this chemical should be judged not upon their
ability to duplicate the biocidal action of methyl bromide,
but upon their ability to effectively and economically control
pests currently managed by methyl bromide. In this light, methyl
bromide, while effective, is not the only material registered
with EPA which can control plant pathogens, nematodes, weeds,
and insects. In this light, materials which are currently
registered
on other crops for other uses may have applications for as
alternatives
to methyl bromide.
Several chemical pesticides are currently on the market which
effectively control insects, weeds, nematodes, and plant diseases,
and therefore have good potential to replace methyl bromide
in specific soil pest control situations. Application methods
for many of these materials will need to be modified in order
to manage pests now exclusively controlled by methyl bromide.
EPA recognizes that several years of research will be required
before good alternatives to methyl bromide will be available
to the agricultural community.
Among the existing chemical pesticides that can replace methyl
bromide, the methyl isothiocyanate (MIT) generators (Metam Sodium
and Dazomet), and 1,3-dichloropropene (1,3-D, Telone) have the
greatest potential to manage pests currently controlled by methyl
bromide. These materials are not, and should not be construed
to be equivalent to methyl bromide. In order to achieve full
control of the wide spectrum of soil pests that can decrease
yield, these pesticides will often need to be augmented by other
chemical pesticides, non-chemical materials and cultural practices
(e.g., development of resistant stock, and shift in cropping
practices).
Both the MIT generators and 1,3-D will need to undergo field
research on soil incorporation and general application methods
to ensure that the chemical is well distributed at rates and
depths needed to control target pests. Research will be required
to delineate efficacious dosages, application procedures and
reentry periods. Several commenters noted that these substitutes
need better delivery systems to adequately replace methyl bromide.
These pesticides are undergoing a review of application methods
on both the Federal and state (California and Florida) levels
with regard to worker exposure. It is likely that registration
reinstatement will involve modifications in the use of these
materials to insure safe and efficacious applications. Many
commenters from the agricultural community noted the effectiveness
of replacement materials for specific crop applications (see
Background and Summary Document).
In addition, as numerous comments pointed out, there are
several outstanding regulatory and registration issues regarding
these pesticides. For example, Dazomet is not yet registered
for food crops in the U.S., and Telone is not currently permitted
in California. EPA believes that, given the time allowed before
the phase out of methyl bromide, many of the near-term
developmental
and regulatory hurdles may be overcome and the necessary
adaptations
may be made with these and other materials.
One advantage of the current and potential methyl bromide
replacement materials is that they are, in general, far more
selective than methyl bromide. The broad spectrum activity of
methyl bromide, often considered an advantage, thoroughly
sterilizes
the soil, destroying both the pest organisms, as well as those
that are a beneficial part of the soil ecology. Replacement
pesticides are on the whole more selective since they affect
only specific pest classes, thereby having potentially less
impact on the overall soil fauna and flora. However, several
comments expressed concern regarding the possibility that, in
order to achieve good control of economic pests, replacement
pesticide application rates and frequency of application may
cause secondary environmental problems. EPA believes that through
the use of improved application techniques now under development
(e.g., deeper injections, thicker tarps, use of carrier agents),
it is likely that effectiveness could be increased while dosage,
and thereby risks to ozone depletion, can be reduced.
Other chemicals that are already on the market and may have
potential when combined with other materials and practices include
chloropicrin and carbon disulfide, as well as nonfumigant
nematicides
(carbofuran, oxamyl, fenamiphos, ethoprop, aldicarb, etc.) combined
with fungicides (benomyl, metalaxyl, etc). Chloropicrin, currently
used in combination with methyl bromide, may prove to be
efficacious
when used with other pesticides. Each pest situation and control
method needed will have to be evaluated in relation to the target
pest, the crop grown, the temporal and geographic effects, and
the existing integrated pest management program.
Several pesticides are currently in the developmental stage,
and will need significant laboratory and field research before
reaching the marketplace and before their value as methyl bromide
substitutes can be fully assessed. These include the inorganic
azides, bromonitromethane, nemamort, and carbonyl sulfide, among
others. These materials are currently in the developmental stage,
and will require further evaluation before their potential as
substitutes can be determined.
There are numerous methods for managing soil pests that are
nonchemical in nature. While some of these methods are already
used to manage economic pests, many of these techniques will
need to be field tested on the specific target pests now controlled
by methyl bromide, and therefore are part of a longer-term
solution.
These include crop rotation, the use of organic amendments,
steam, solar heating, biological control agents, various cultural
practices, plant breeding, biotechnology, grafting, and the
physical destruction of pests and their habitat. Although these
pest control methods cannot control all economic pests when
used singly, when part of an overall integrated pest management
program, these and other techniques may be effective in reducing
pest numbers. Research will be needed on these and other methods
to determine their effectiveness in reducing pest numbers.
Since many of the replacement pest control methods may be
new to growers reliant on methyl bromide, an agricultural extension
program will likely be required during the initial stages of
implementation. Several commenters noted existing limitations
for many of the proposed replacements, and noted that cost and
supplemental effort may render some replacements infeasible
in the short-term. While this may seem true in the short-term,
new and better application methods of existing chemicals may
dramatically help both the short- and long-term situation.
Other commenters discussed the process by which methyl bromide
use can increase the amount of soil nitrogen available to plants,
indicating that this will not be possible without the use of
this chemical. However, there are numerous ways to add nitrogen,
as well as other nutrients, to the soil through the use of
commercially
available fertilizers, as well as organic amendments and crop
rotation programs. A program of good soil management can supply
plant nutrients without increased pollution or ground water
contamination, resulting in healthier plants which are more
resistant to pests than those which are stressed due to poor
nourishment.
The issue of seed bed disease protection was raised by
commenters
who perceive that yields would substantially decrease without
methyl bromide. EPA believes that several of the existing
fungicides,
along with those in development, may adequately prevent the
spread of disease and a significant decline in production. While
research will be necessary to define dosages and application
procedures, it is highly probable that efficacious and economically
viable materials will be in place by the phaseout date.
EPA agrees with several comments that cite the beneficial
health effects of fresh fruits and vegetables. However, there
is no evidence to support the assertion that fruits and vegetables
will no longer be available following the phaseout of methyl
bromide. EPA expects that both currently available control
strategies,
and those which are in development, may be utilized to control
pests and minimize crop loss when methyl bromide is no longer
available.
d. Commodity Fumigation. Methyl bromide is currently used
to treat both food and nonfood commodities prior to shipment,
during shipment, and while in storage. It is utilized as an
effective quarantine tool to prevent exotic pest invasions and
to assure that pests specific to a particular area are not carried
to new regions. In this regard, incoming fruits and vegetables,
as well as other commodities, are treated if suspected of harboring
economic pests, or if the commodity origin is an area where
such pests are known to exist. Commodities in storage or in
transport are also treated to ensure that the material is not
destroyed by pests. About five to eight percent of methyl bromide
use is in commodity fumigation and is utilized primarily for
insect pests, but also for disease and rodent control.
EPA received several comments expressing the concern that
a good chemical fumigant does not exist for use in place of
methyl bromide. EPA acknowledges that a single chemical which
duplicates the action of methyl bromide is not now available
for use. However, various chemical and non-chemical treatments
are available today which can effectively control commodity
pests, and promising alternatives appear possible in the future
(e.g., nitrogen). Although many of the transport and storage
systems currently in use will have to be modified to accommodate
the change, EPA believes it is likely that existing and potential
alternatives will prove both efficacious and cost effective
once implemented.
Some comments discussed the potential losses which may occur
in commodities not treated with methyl bromide. This was discussed
especially with regard to fresh fruits and vegetables. EPA believes
that pest control materials and methods exist today, or are
under development, which could potentially replace methyl bromide
in many of the commodity applications. EPA acknowledges that
as of this date, there are some quarantine use areas where
replacements
do not currently exist. As the final phaseout date approaches,
EPA will work with concerned parties to ensure that quarantine
integrity is not compromised.
Several comments were received that discussed the regulatory
issues that will be impacted by the phaseout. The United States
Department of Agriculture, Animal Plant Health Inspection Service
(USDA/APHIS) regulations, which require the use of methyl bromide
on certain imported commodities, was seen as a case in point.
In addition, similar regulations in other countries, most notably
Japan, were also seen as a potential issue. As alternatives
to methyl bromide are established, governmental bodies that
set agricultural quarantine regulations will need to adapt and
change such regulations in a way which best protects domestic
agriculture and imported commodities. Therefore, EPA agrees
that this is an important issue and one that could take many
years to address.
In a related issue, commenters discussed the registration
of pesticides. Several commenters expressed concern regarding
the possibility that pesticides that have important but minor
uses may not be supported for registration or reregistration.
In addition, some comments stated that the EPA pesticide
registration
process is so lengthy and costly that few new pesticides will
be available before methyl bromide is phased out. EPA is aware
of this concern, and understands that the testing needed to
ensure registration of a viable pesticide can appear formidable.
Because of this issue, EPA has set up a special task force in
the Office of Pesticide Programs to coordinate and track methyl
bromide substitution activities, and, if possible, to ease or
accelerate the regulatory process for pesticides that are
considered
alternatives to methyl bromide.
A number of comments were received concerning the prospects
of utilizing irradiation as an alternative to methyl bromide.
Most notably, commenters believed that the capital cost and
time required to irradiate would render this substitute infeasible.
Some considered this option as the replacement for all methyl
bromide commodity treatments. EPA believes this is an unlikely,
and certainly costly scenario. Several comments discussed the
issue of public acceptance, speculating that this pest control
would be widely rejected. While public apprehension to irradiation
currently exists, with additional research and public education,
this option could potentially become more attractive over time.
EPA is aware that significant research is ongoing on other
attractive alternatives for commodity and quarantine applications.
Particular attention is being paid to controlled atmospheres
as a potentially attractive alternative to the use of methyl
bromide. For example, new, less expensive and more flexible
systems for using nitrogen in a controlled atmosphere are now
being marketed. However, for controlled atmosphere to be a viable
quarantine/commodity pest control technique, it will require
approval by the countries to which commodities are being exported
to. In addition, the potential for the recovery and recycling
of methyl bromide is being investigated. EPA supports this effort
as an important short-term solution.
Existing fumigants may also replace methyl bromide in certain
applications. Among the chemical pesticides which may be potential
replacements are phosphine, propylene oxide, hydrogen cyanide,
ethyl formate, and ethylene oxide. Non-chemical pest control
tools such as irradiation, controlled atmosphere, heat and cold
treatments, pest-free zones, physical isolation, microbials,
biological control, and host resistance may be potential integrated
replacement materials as well. Research will be necessary to
define the activity of these materials, as well as what human
or environmental hazards could exist. In addition, research
in basic pest biology, identification, and survey methods will
need to be examined to ensure the availability of management
tools over the long-term.
Many comments received on this use area stated that single
alternatives such as phosphine, temperature treatments, and
controlled atmospheres, among others, could not be used on all
commodities now treated with methyl bromide. EPA understands
and agrees that research must be conducted to define what commodity
can be treated, with what protocol, against what pest, and under
what circumstances. Nevertheless, EPA believes that this is
achievable, and with research commodity pests can be managed
without methyl bromide. Commenters also noted that the aeration
time needed with phosphine and holding time with heat, cold
and controlled atmospheres can be longer than what is needed
with methyl bromide. EPA acknowledges that this will take
considerable
adjustment on the part of shipping and storage firms, but does
not believe this is an insurmountable barrier. Adaptations of
existing technologies (e.g., combinations using heat or carbon
dioxide) might reduce dose and time of exposure requirements.
EPA received comments in support of the phaseout of methyl
bromide, with special regard to worker-exposure issues in commodity
processing facilities. Several examples were given of workers
who had been adversely affected by this material. The commenters
strongly support efforts to strengthen worker-exposure and safety
regulations, and thus requested that EPA accelerate the phaseout
process and require that commodities treated with methyl bromide
be labeled. EPA recognizes that the phaseout of methyl bromide
in order to protect stratospheric ozone could also have collateral
benefits by reducing occupational exposure to this chemical.
Of course, worker exposure to methyl bromide substitutes may
continue to be a concern in some cases. In any event, EPA does
not believe reduction in worker exposure is a basis to accelerate
the phaseout under Title VI. Nor is this a basis to require
labelling under Title VI. As explained below, EPA does not believe
the section 611 labelling requirement applies to agricultural
products fumigated with methyl bromide.
e. Structural Fumigation. Methyl bromide has been utilized
to effectively control wood destroying and boring insects in
buildings, as well as rodents and other pests in food processing
facilities. Although this use accounts for less than five percent
of the total global usage, it has been considered a significant
pest control tool due to its effectiveness.
EPA received comments on the potential for alternatives to
replace methyl bromide for structural treatments. Most of them
compared existing alternatives with methyl bromide. While methyl
bromide is a good biocide, replacements will not necessarily
need to duplicate its effectiveness in order to be good structural
pest control tools. As with other chemical and non-chemical
replacements, pest control tools in this use area will need
to be thoroughly evaluated in regard to pest control efficacy,
practical feasibility, and economic viability. It is essential
that research be done on alternatives to the use of methyl bromide
in the milling industry and the food processing industry to
insure that chemical residue problems are addressed.
Several options exist with regard to pest problems in dwellings,
with sulfuryl fluoride the principal chemical alternative. In
this area, methods to reduce methyl bromide dosage by combining
the pesticide with carbon dioxide, have shown good success.
Contact pesticides which control certain wood boring pests include
diazinon, carbaryl, permethrin, cypermethrin, fenvalerate, propoxur
and borate which is now registered in the United States for
control of termites and other wood destroying insects, and is
currently being successfully utilized on a commercial basis.
Non-chemical treatments include heat and cold treatments and
the use of microwaves. Due to these developments, EPA believes
it is likely that methyl bromide use will decline significantly,
and this sector will not be adversely impacted to a significant
degree by the phaseout.
The principal methyl bromide replacement for commodity storage
warehouses and food production facilities is phosphine. While
this material is not applicable in all situations due to its
ability to corrode certain metals, when it is combined with
carbon dioxide the amount of phosphine needed can be significantly
reduced, which in turn diminishes the potential for phosphine-
induced metal corrosion. As discussed in the proposal (58 FR
15014), other treatments include heat, cold, modified atmospheres,
and inert dust. Additional research will be required in this
area to ensure that all current users of methyl bromide will
have acceptable replacements by 2001. Here, target pests and
control options must be well defined in order to utilize pest
control materials which are specific to the situation.
5. Analysis of Costs and Benefits
EPA received comments that in the March proposal it had not
adequately addressed the costs and benefits of action to phase
out methyl bromide. On the contrary, EPA included extensive
documents in the docket which examined the uses of methyl bromide
and the applicability and costs of various alternatives. (See
for example, Preliminary Use and Substitutes Analysis of Methyl
Bromide in Agricultural and Other Uses (June, 1992) and Montreal
Protocol Assessment Update on Methyl Bromide: Science, Technology
and Economics, UNEP (1993)). In the case of health and
environmental
impacts, the Protocol's assessment update provides significant
information on the likely impact of continued use of methyl
bromide on stratospheric ozone.
In comments received on the proposed rule, the MBWG conducted
its own cost-benefit analysis (``Comparing the Costs and Benefits
of EPA's proposed Phaseout of Methyl Bromide''). This analysis
purports to calculate benefits based on EPA's methodology and
findings used in past regulatory impact analysis. It calculates
costs based primarily on an economic impact study performed
by NAPIAP and discussed in detail in the previous section of
this notice. The MBWG study concludes that the benefits of the
methyl bromide phaseout in 2000 would be $19-29 million dollars
and the costs would be $5-9 billion. This analysis is flawed
for many reasons. The benefits calculations are drawn from an
analysis of the impact of increased emissions of CFC-11. This
scenario completely excludes the impact of bromine on stratospheric
ozone depletion and therefore very substantially understates
the magnitude of depletion. The benefits of avoided ozone depletion
from CFC-11 occur over a period of 200 years, whereas the benefits
from decreased emissions of methyl bromide occur within five
to ten years. This factor is omitted from the MBWG's analysis.
The analysis of the costs of phasing out methyl bromide
dramatically
overstates estimates for the reasons discussed in detail above
in the critique of the NAPIAP study. The cost estimates assume
an immediate phaseout, assume no additional alternatives are
available in 2000, assume that no improvements in the use of
existing alternatives are feasible, and assume that the market
response by farmers is in some cases simply to abandon their
fields.
EPA conducted an extensive review of the costs and benefits
of its final action on methyl bromide (see, ``The Cost and Cost-
Effectiveness of the Proposed Phaseout of Methyl Bromide,''
EPA, 1993). This study includes the latest information on the
costs and effectiveness of potential new alternatives by the
year 2001 and on the costs and benefits of improved utilization
of existing alternatives. The Agency estimates the total costs
of a phaseout from 1994-2010 to be $1.7-2.3 billion. The benefits
analysis contained in this report reflects the key assumptions
about manmade emissions, impact on ozone of bromine, and likely
growth in use absent regulations that are contained in the Protocol
assessment update report. Based on this reasonable set of
assumptions,
EPA calculates the benefits of the final rule phasing out methyl
bromide to be between $244 and $952 billion. (The benefits for
the phaseout of methyl bromide between 1994 and 2010 is between
$14 and 56 billion). These benefits result primarily from avoided
cases of non-melanoma skin cancer. The range in values results
from different estimates for the value associated with a human
life.
6. Group Assignment and Baseline Year
Whenever a substance is added to the list of class I substances,
section 602(c)(1) provides that the Agency assign it to an existing
group or create a new group. The Agency proposed to create a
new group (Group VI) following the historical precedent of actions
both under the Montreal Protocol and the CAA.
Since the Agency did not receive any substantive comments
on this aspect of its proposal, today's final rule adopts that
approach. For the reasons summarized above and elaborated on
in the proposal, methyl bromide will be listed as Group VI within
the list of class I substances.
EPA proposed using 1991 as the base year for determining
the level at which to set the production and consumption cap.
This was chosen because it is the last year prior to discussions
to regulate this compound and therefore avoids the possibility
of companies increasing production in an effort to increase
their baseline. The same reasoning was used in setting the
appropriate
year for other substances covered in both the CAA and the Montreal
Protocol. The baseline established in the Montreal Protocol
for methyl bromide is also 1991.
The only comment on this issue supported this year as the
baseline. For the reasons stated above, today's final rule adopts
1991 as the baseline. In a separate notice (58 FR 40048), EPA
had requested data to support the development of both a 1991
consumption and production baselines for allocating allowances.
EPA published proposed allowances based on 1991 levels on November
9, 1993 in the Federal Register. The Agency intends to publish
final allowances before the end of the calendar year in order
to implement the freeze established in this rule beginning January
1, 1994.
In an important distinction between the Montreal Protocol
and this rule, EPA has not excluded quarantine and preshipment
uses from its baseline and from the coverage of this regulation.
Thus, the Agency intends to maintain records on both the baseline
and annual production and consumption without the exemption
of quarantine and preshipment uses as required under the CAA
and with those exemptions as specified in the Copenhagen Amendments
to the Montreal Protocol.
7. Interim Reductions and Phaseout Schedule
EPA is obligated under the CAA to impose the schedule of
reductions called for in section 604 unless under section 602(d)
it can demonstrate that such a schedule is unattainable. In
its place, the Act appears to require the Agency to adopt the
most stringent attainable phaseout schedule.
The proposed schedule for methyl bromide was to freeze
production
in 1994 and to maintain that level until the 2000 phaseout.
EPA's rationale behind this schedule was that some near-term
alternatives for methyl bromide existed, but for many of these,
additional testing and government approval would be required,
which could take several years. Moreover, additional time is
essential to allow for the testing of newly developed substitutes
and to allow for a comparison of different alternatives to
determine
which would be most beneficial in terms of efficacy and in terms
of impact on the environment.
The Agency received many comments on the issue of interim
reductions. One group of commenters urged the Agency to make
deep reductions in the early years because of the availability
of substitutes and other methods of reducing use. Many other
commenters pointed to the lack of currently available alternatives
and argued against any interim reduction steps.
EPA recognizes that in some cases alternatives are already
available and could be shifted to in the near-term. The Agency
encourages methyl bromide users to make these shifts. Moreover,
recent requirements in California seek to reduce use and emissions
through reduced dosage, deeper injections and thicker tarps
in an effort to reduce ambient exposures and reduce health risks.
These efforts will also reduce use, as much as 10-20% according
to one commenter. However, the Agency expects that such reductions
in use will primarily serve to offset the historic growth rate
in the use of methyl bromide. While EPA encourages these and
other near-term efforts to reduce use and emissions, the Agency
does not believe at this time that an adequate case exists for
relying on these measures as the basis for interim cuts, and
instead believes that they will primarily offset increasing
demand for methyl bromide.
While the Agency believes that several alternative fumigants,
including such compounds as metam sodium, telone, and dazomet
could be widely used as replacements for methyl bromide, it
recognizes that some time will be required for this shift to
occur. Regulatory hurdles, equipment modifications, more extensive
field testing, and improved application techniques are all reasons
why the Agency cannot now conclude that a more stringent near-
term schedule be un is attainable. Furthermore, as discussed,
many non-fumigant alternatives may also be viable options to
replace methyl bromide. These alternatives, including soil
sterilization,
crop rotation, and plant breeding, will take several years or
longer to develop and evaluate. In order to allow for these
alternatives to be fully developed and evaluated, and to provide
adequate time for regulatory approvals through EPA and USDA,
today's final rule does not impose any interim reductions on
production or consumption of methyl bromide prior to the phaseout.
Consistent with the provisions of section 602(d), today's
final action allows the full seven years after January 1 of
the year after the compound is listed for a phaseout. For the
reasons discussed earlier in this notice, the phaseout of methyl
bromide would be required by January 1, 2001 instead of 2000
as proposed.
EPA received many comments calling for EPA to allow the maximum
time permitted under the statute. These comments generally argued
that the additional time is needed to allow for the development
and approval of alternatives. Given the considerable uncertainties
in knowing how long it will take for a full complement of
alternatives
to be developed and implemented, the Agency believes it would
be prudent at this time to permit the additional year prior
to the phaseout. However, the Agency will continue to review
the development and implementation of alternatives and could
decide at some future date that an earlier phaseout is attainable.
8. Labeling
Today's rule does not directly deal with labeling requirements
under section 611; once a compound is listed as class I, then
labeling would be required one year after the designation becomes
effective (see, 40 CFR 82.102). EPA has determined that activities
involved in growing, harvesting, storing and transporting food
are part of an agricultural process that falls outside the intent
of Congress to require labeling on products ``manufactured with''
a class I or II substance. Thus, containers of methyl bromide
would be required to be labeled beginning on January 1, 1995,
but products treated with methyl bromide would not require
labeling.
EPA received comments both supporting this interpretation
of its labeling rule and arguing that labeling of these products
was clearly intended by Congress and that providing this
information
to consumers was precisely the intent of section 611.
EPA recognizes that the general purpose of alerting consumers
that certain goods were produced in a manner that may cause
harm to stratospheric ozone could apply to certain agricultural
products for which methyl bromide is used. Nevertheless, the
Agency believes that the section 611 requirement that products
``manufactured with'' a class I or II substance should reasonably
be interpreted to not apply to agricultural products as such
products are grown and not manufactured.
The ordinary sense of the phrase ``manufactured with'' does
not include agriculture. The dictionary defines ``manufacture''
to mean making something made ``from raw materials by hand or
by machinery.'' (Webster's Ninth New Collegiate Dictionary (1983)).
Fruits and vegetables are generally not made from raw materials
by hand or machinery. EPA further believes that labeling products
raises issues that Congress did not foresee in enacting section
611. For example, applying the labeling provision to agricultural
products for which methyl bromide is used is practically more
difficult than labeling of most manufactured products. Raw
agricultural
products are ordinarily not packaged in the same manner as other
manufactured products. In many if not most cases, consumers
purchase fruits and vegetables without any packaging at all.
Labeling such produce would be particularly difficult.
9. Essential Uses
EPA asked for comment in its proposal on whether it has the
statutory authority under section 604 to grant essential use
exemptions for methyl bromide. EPA received one comment on this
issue suggesting that it has such authority and that limits
on essential uses specified in section 604 deal only with those
compounds already listed and should not in any way restrict
the Agency's flexibility in crafting essential uses for newly
listed substances. Another commenter suggested that the Agency
should go back to Congress for explicit authority to grant
essential
uses.
EPA believes that it is premature at this time to attempt
to resolve this issue. If, as the phaseout date approaches,
it becomes clear that important uses are still without substitutes,
the Agency anticipates it would seek an appropriate remedy.
V. Addition of Hydrobromofluorocarbons (HBFCs) to the List of
Class I Substances and to the Phaseout Schedule
In today's rule, the Agency is adding
hydrobromofluorocarbons(HBFCs)
as group VII, class I controlled substances. These chemicals
have a parallel chemical structure to the HCFCs, with bromine
atoms taking the place of chlorine atoms. Multiple ODPs of these
chemicals were agreed to by the Parties of the Montreal Protocol
as part of the 1992 Amendment which phases out these compounds
by January 1, 1996. As explained in other parts of this rule,
the Agency expects these amendments to enter into force during
the first few months of 1994. The multiple values contained
in the Protocol Amendment on the ODPs of the listed HCFCs do
not reflect scientific uncertainties. The upper value of the
ODP range provided is the estimate for the isomer with the highest
ODP, and the lower value is the estimate of the ODP for the
isomer with the lowest ODP. The Parties to the Protocol at their
meeting in Copenhagen agreed that the ODP for these chemicals
shall be the upper value in the range, and that these chemicals
should be phased out by January 1, 1996. All the upper ODP values
for the HBFCs ODPs exceed 0.2.
As provided under section 602(e) of the Clean Air Act, the
ODP of a substance specified under section 602 shall be consistent
with the ODP specified for that substance under the Protocol.
Also section 602(a) provides that the Administrator shall add
to the class I list all substances that the Administrator
determines
to have an ODP of 0.2 or greater. The Agency is assigning ODPs
to the HBFCs based on the isomers with the highest ODP, consistent
with the approach taken under the protocol. Because such ODPs
are above 0.2, the Agency is adding the HBFCs to the class I
list. The Agency has assigned HBFCs to group VII of the class
I chemicals.
Once listed, these chemicals are subject to the phaseout
schedule specified in section 604 of the Clean Air Act. However,
section 606(a)(3) provides authority for accelerating the phaseout
of class I substances on the grounds that the Montreal Protocol
is modified to include a schedule that is more stringent than
the schedule otherwise applicable under title VI. Section 614
provides that in case of conflict between any provision of title
VI and any provision of the Montreal Protocol, the more stringent
provision shall govern. Therefore, the Agency is adopting the
schedule agreed to by the Parties in Copenhagen to phase out
these chemicals by January 1, 1996.
Furthermore, EPA had proposed, and today makes final, a freeze
on the production and consumption of HBFCs, starting January
1, 1994 at 1991 baseline levels. The Agency is aware of only
one HBFC in production, HBFC-22B1, used as a fire suppressant
with an ODP of 0.74. Use of this chemical is extremely limited,
and it is only manufactured by one company. As a result, EPA
does not anticipate any significant economic consequences from
the phaseout of HBFCs.
EPA published a Federal Register notice requesting data on
1991 production and consumption of HBFCs for the purposes of
establishing baselines and allowances. Based on responses to
that request, EPA published proposed allowances on November
9, 1993, and intends to publish final allowances before the
end of the year to implement the freeze beginning January 1,
1994.
VI. Trade Restrictions
A. Description of Proposed and Final Requirements
In order to implement the requirements of the Clean Air Act,
the decisions of the 4th Meeting of the Parties to the Montreal
Protocol, and the London and Copenhagen Amendments to the Montreal
Protocol, EPA proposed and is today requiring a number of
restrictions
on trade with foreign states that are not Parties to the Protocol
or its amendments. The trade restrictions being promulgated
by this rule add to existing trade restrictions promulgated
in 1990 (see 40 CFR 82.4(d)). Specifically, today's actions
require a ban on bulk exports of controlled substances from
the U.S. of Annex A substances (Class I, Groups I and II) to
foreign states that are not Party to the 1987 Montreal Protocol.
While this provision will not be legally effective until the
effective date of today's rulemaking, EPA had asked U.S. companies
to comply with this trade ban. All indications suggest compliance
has occurred. Today's rule also imposes a ban on bulk imports
and exports of controlled substances listed in Annex B to the
Protocol (Class I, Groups III, IV, and V) from and to foreign
states, respectively, that are non-Parties to the London Amendment.
While this provision also will not be legally effective until
the effective date of today's rulemaking, EPA has asked all
relevant companies to ban the import and export of these chemicals
effective August 10, 1993, the effective date of the relevant
Protocol provision. Finally, today's rulemaking imposes a ban
on imports from foreign states not Party to the 1987 Montreal
Protocol of specified products listed in Annex D to the Protocol
that contain the controlled substances specified in Annex A
(Group I and II, Class I controlled substances). This provision
will become effective January 10, 1994. The EPA proposal notified
all companies of the applicability of these provisions.
The Montreal Protocol provides, and EPA is also allowing
an exception from the trade bans for foreign states that are
not Party to the Protocol, but have been determined by a Meeting
of the Parties to the Protocol to be in compliance with Articles
2A to 2E and 4 of the Protocol. This includes countries that
have complied with the terms of decision IV/17c of the 4th Meeting
of the Parties to the Montreal Protocol, which provisionally
determined compliance until the 5th Meeting of the Parties
(November,
1993 Bangkok) for certain non-Parties that submitted specified
data by March 31, 1993. A list of those qualifying countries
can be found in appendix C, Annex 2 of this rule. An updated
list of countries which are Party to the Protocol and its
amendments
can be found in appendix C, Annex 1. Over the last several months,
the number of Parties to the Protocol has been increasing at
a relatively fast pace. As a consequence, EPA will update the
list of Parties to the Protocol every other month. One commenter
noted that EPA must make this list available as readily and
easily as possible. A dated list of Protocol Parties and Parties
qualifying for an exemption from the Protocol's trade bans can
be obtained by calling EPA's Stratospheric Protection Hotline
at 1-800-296-1996. The Agency will update this list every two
months, and companies may trade with the newly added countries
without EPA rulemaking.
Finally, in the proposed rule, EPA asked for comment on whether
the information requirements currently in place for trade in
bulk chemicals should be applied to the importation of controlled
products. As noted below, one commenter stated that the
recordkeeping
and reporting requirements discussed in the proposal were unduly
burdensome, and that EPA should rely on U.S. Custom's records
for this information. EPA had not formally proposed recordkeeping
and has decided not to impose such information requirements.
Since the publication of the proposed rule, the number of Protocol
Parties has risen from 91 to 126, and there is every indication
that additional Parties will be joining shortly. The current
list of countries complying with the Protocol includes all known
producers, and since all Protocol Parties are under an obligation
to ban the export of controlled substances to non-Parties, the
possibility that non-Parties would be producing and exporting
products which contain controlled substances is narrow. Given
these circumstances, EPA believes that it would be overly
burdensome
to require such information for importation of controlled products.
B. Response to Major Comments
One commenter misunderstood EPA's description of the
relationship
of Taiwan to the Montreal Protocol. In the proposed rule, EPA
affirmed that the trade provisions of the Protocol only apply
to ``a State not party to the Protocol,'' and noted that Taiwan,
which did not fall under this Protocol category as a state,
had nonetheless submitted data to the Protocol secretariat
indicating
that it was in compliance with the control provisions of the
Protocol. The commenter asked for clarification as to what action
EPA would take if Taiwan were found at some future date to be
out of compliance with those provisions. Should that situation
arise, EPA would review its options and would take actions
consistent
with U.S. laws and policies to strongly encourage full and prompt
compliance with the Montreal Protocol.
C. Legal Authority
As discussed in more detail in the proposal, section 615
of the Clean Air Act provides EPA with the authority to promulgate
these trade restrictions. That section authorizes the Agency
to promulgate regulations, if in the Administrator's judgment,
any substance, practice, process, or activity may reasonably
be anticipated to affect the stratosphere and such effect may
reasonably be anticipated to endanger public health or welfare.
These trade bans imposed by this rulemaking would prevent shipments
of ozone depleting substances from the U.S. to countries with
no regulatory infrastructure to control their use. Limiting
access in this way will reduce their release of such substances
into the atmosphere, thereby, reducing effects on public health
and welfare. Moreover, the bans on imports to the U.S. from
non-Party foreign states of controlled substances and products
would help discourage shifts of production to non-Party foreign
states to the Protocol by eliminating the U.S. as a market for
such production.
D. Definitions
As proposed, in this final rule, EPA has further defined
Parties to the Protocol in the regulation to distinguish Parties
complying with the original 1987 Montreal Protocol, the 1990
London Amendments and the 1992 Copenhagen Amendments.
E. Foreign States not Party to the Protocol
Article 4 of the Montreal Protocol provides foreign states
which are not Party to the Protocol with a mechanism to demonstrate
compliance with key Protocol provisions and seek exemption from
the Protocol's trade measures against non-Parties. Specifically,
paragraph 8 of Article 4 states that trade with non-Parties
will be permitted if a meeting of the Parties finds those states
to be in full compliance with Articles 2, 2A to 2E and 4 of
the Protocol. It is anticipated that once granted, such status
will be reviewed by each subsequent meeting of the Parties to
ensure continuing compliance with the relevant Protocol provisions.
At the 4th Meeting of the Parties, the Parties reviewed the
data submission of Colombia, and based on their demonstration
of compliance, decided to suspend measures against that non-
Party. Additionally, by Decision 4/17C, the Parties decided
to determine provisionally, pending a final decision at the
5th Meeting of the Parties, that any foreign state non-Party
to the Protocol which submitted data by March 31, 1993, was
in compliance with the relevant provisions and could be exempt
from the trade restrictions until the 5th Meeting of the Parties
when that data could be reviewed. Fourteen non-Parties to the
Montreal Protocol submitted data based on that decision.
Additionally,
eight non-Parties to the London Amendment to the Protocol submitted
data. Due to the timing of their submissions, EPA was not able
to list in the proposed rule those countries with interim status
as a Foreign State not Party to the Montreal Protocol but complying
with Montreal Protocol and/or the London Amendment.
VII. Changes in Definition of Production
A. Definition of Production
In the March 18 proposal, EPA proposed to define ``production''
as the manufacture of a controlled substance from any raw material
or feedstock chemical, but not to include: ``(1) The manufacture
of a controlled substance that is subsequently transformed;
(2) the reuse or recycling of a controlled substance; or (3)
amounts that are destroyed by the approved technologies.'' The
current definition of ``production'' excludes controlled substances
that are subsequently transformed and the reuse or recycling
of a controlled substance.
In today's rule, in response to a variety of comments to
be discussed in this section, the definition of production is
revised to mean ``the manufacture of a controlled substance
from any raw material or feedstock, but does not include:
(1) The manufacture of a controlled substance that is to
be subsequently transformed;
(2) The reuse or recycling of a controlled substance;
(3) The manufacture of a controlled substance that is
subsequently
destroyed by one of the five approved technologies, to the extent
that destruction is considered to have occurred under this rule;
and
(4) Controlled substances that are vented or spilled
unintentionally.''
Several commenters indicated that after the phaseout, production
allowances would no longer be available to produce controlled
substances intended to be transformed or destroyed, using the
current system of expending production allowances and applying
to EPA to receive allowance reimbursement for controlled substances
that are transformed. In response to those comments, along with
revising the definition of production, EPA is also revising
its approach to requiring production and consumption allowances
in cases where controlled substances are to be transformed or
destroyed.
Under today's rule, production and consumption allowances
are required only for the ``production'' of controlled substances
that will result in emissive uses. As a result, producers of
ozone-depleting chemicals that are to be used as feedstock do
not need to expend allowances to manufacture these chemicals.
That is also true for producers of such substances that are
manufactured for production processes that will result in their
destruction. Similarly, allowances are not required when importing
reused or recycled substances. The changes in the definition
of production will serve to facilitate business operations by
eliminating the need for EPA's paperwork related to refunding
and trading allowances in these limited situations. The Agency
believes that these changes will assist industry in their business
operations, but have no significant impact upon the ozone layer.
1. Transformation
a. Changes in Treatment of Transformation. Under the current
regulations, producers expend production and consumption allowances
when producing and importers expend consumption allowances when
importing controlled ozone-depleting substances (except for
carbon tetrachloride produced as a feedstock). When the chemicals
are sold to a second party and subsequently transformed, new
allowances are provided to that second party transformer upon
request. These allowances are then traded back to the producing
company by the transforming firm.
Several commenters, although agreeing with the proposed
definition
of production, indicated that the current administrative procedures
for dealing with transformation and destruction under the allowance
system should be modified. Since, only after a company transformed
the controlled substance and submitted documentation to EPA
that transformation occurred, would EPA ``refund'' those allowances
expended, commenters indicated that allowances should not be
required for the production of ozone-depleting substances that
are to be transformed or destroyed.
Commenters further indicated that these requirements pose
significant burdens upon industry. The paperwork and staff time,
both for industry and EPA, to grant and trade allowances is
excessive, and it may be months before a producer had allowances
returned. The EPA recognizes that as the number of allowances
becomes smaller with the annual reduction schedule, producers
will become hard pressed for available allowances. It is not
EPA's intent to hinder business operations that are allowed
under the Montreal Protocol (i.e., production for transformation
is not limited). Finally, EPA recognizes that under the current
program, no manufacturer could produce past 1995 except for
essential uses and exports to Article 5 countries, since no
allowances will be available.
Consequently, EPA's procedures of the allowance system for
ozone-depleting substances are now changed. In essence, the
Agency is now extending the system previously applicable only
to carbon tetrachloride transformation to other controlled
substances.
Because controlled substances that are transformed are excluded
from the definition of production, producers that transform
or sell to purchasers that transform do not need allowances
for such production. Companies that buy these chemicals for
transformation purposes will no longer need to request allowance
redemptions once transformation has occurred, and thus will
no longer need to trade those allowances back to the producers.
This change would be imperative once U.S. production and imports
of controlled substances is fully phased out. Without such changes,
companies would be unable to produce controlled substances that
were to be transformed or later destroyed after use.
The Agency does recognize that some production may have been
intended for emissive uses and allowances expended, to produce
those chemicals but they are later transformed. In these cases,
EPA intends to allow persons to redeem those allowances where
persons certify that transformation has occurred (see discussion
on certifications below).
b. Recordkeeping and Reporting Changes Relative to
Transformation.
In addition to the simplification of the program to eliminate
the unnecessary requesting and trading of allowances, EPA will
require only annual reports from companies that transformed
ozone-depleting chemicals. To track transformation on a quarterly
basis, EPA will rely upon producers' quarterly reports which
will record the volume of chemical sold for transformations.
The Agency found tracking transformation between producers'
reports and transformers' reports difficult. Generally, chemicals,
once produced, are sold, used, or put into inventory. In some
cases, companies will stretch out inventory over years. This
makes it difficult for EPA to match production intended for
transformation to when it is actually consumed or transformed.
Consequently, EPA has decided to eliminate the transformer's
quarterly report. However, EPA has not eliminated recordkeeping
by companies that consume these chemicals as feedstock. EPA
will audit transformers to ensure compliance with the requirements
of this regulation. Transformers must maintain the following
records as is currently required under the existing program:
dated records of the quantity and level of each controlled
substance
transformed; copies of the invoices or receipts documenting
the sale or transfer of the controlled substance to the person;
dated records of the names, commercial uses, quantities of the
resulting chemicals, and dated records of shipments to purchasers
of the resulting chemicals; dated records of all shipments of
controlled substances received by the person, and the identity
of the producer or importer of the controlled substances; and
dated records of inventories of controlled substances at each
plant on the first day of each quarter.
Companies that purchase class I controlled substances and
then transform those controlled substances must report the annual
volume transformed within 45 days of the end of the control
period.
In the case where production and/or consumption allowances
are expended and the substance is later transformed, a person
who transforms may receive allowances for transformation of
controlled substances. The person must submit the following
information: the identity and address of the person who transformed
the substance; the quantity and level of controlled substance
transformed; a copy of the invoice or receipt documenting the
sale of the controlled substance; the name, quantity and
verification
of the commercial use of the resulting chemical transformed;
and signature of the certifying party. The person must also
certify that the production of the controlled substance expended
either production and/or consumption allowance. The Agency believes
that this information is necessary to ensure that transformation
has occurred.
2. Destruction
In today's action, the Agency is implementing in its regulation
a recent decision of the Parties in Copenhagen that addressed
destruction (Decision IV/11), removing controlled substances
to be destroyed under certain conditions from the definition
of ``production.'' As will be described below, EPA believes
that the implementation of this decision is consistent with
House-Senate Conference Report that accompanied the Clean Air
Act Amendments of 1990, and will provide more clarity as to
the definition of production and the conditions under which
destruction is allowed. Today's rule eliminates from the definition
of production those ozone-depleting chemicals that are to be
destroyed, similar to the manner in which transformation of
such chemicals falls outside of the definition of production.
The Agency believes that this change poses insignificant
environmental
harm and lessens the administrative burden of the current
regulation.
a. Elimination of Coincidental Unavoidable Byproducts Provision.
As a result of actions by the Parties to the Protocol regarding
destruction, the need for the current coincidental unavoidable
byproducts (CUBP) provision is eliminated. Under the current
regulations, that provision allows for an exemption from production
restrictions for any controlled substance that is a coincidental
unavoidable byproduct and is subsequently contained and destroyed
by the maximum achievable control technology, or MACT. With
today's rule eliminating those quantities of controlled substances
destroyed from the definition of production, the CUBP provision
becomes unnecessary and duplicative. Therefore, as proposed,
today's rule deletes the CUBP provision of the current phaseout
regulations. Commenters supported the striking of the CUBP
provision,
given the treatment to be afforded through the destruction and
insignificant quantities (see discussion below) provisions outlined
in the proposal and followed through in today's final rulemaking.
b. Destruction-Background. Under the existing Protocol,
``production''
of controlled substances is defined as ``the amount of controlled
substances produced, minus the amount destroyed by technologies
to be approved by the Parties.'' At the Fourth Meeting of the
Parties to the Montreal Protocol, the Parties approved five
destruction technologies to be used for destroying controlled
substances.
With the approval of the five destruction technologies-liquid
injection incineration, reactor cracking, gaseous/fume oxidation,
rotary kiln incinerators, and cement kilns, Parties to the Protocol
can now subtract from the definition of production that amount
of controlled substance(s) that is destroyed by these means,
under certain conditions discussed below.
Liquid injection incinerators are typically single-chamber
units with waste burners. They may also include liquid injection
stages of a multiple-chamber incinerator. These incinerators
are used to destroy wastes with a low ash content and can be
used to destroy sludge, slurry, vapor, or combustible liquid.
Liquid wastes are burned in suspension after being injected
through burners and atomized to fine droplets.
A reactor cracking process uses a cylindrical graphite, water-
cooled reactor and an oxygen-hydrogen burner system. Since 1983,
this process has treated waste gases resulting from the production
of CFCs. The gases are converted to hydrofluoric acid, hydrochloric
acid, carbon dioxide, chlorine, and water. The two acids are
usable in-house and/or marketable, and the chlorine is scrubbed,
leaving only water vapor, oxygen, and carbon dioxide as waste
gases.
Gaseous/fume oxidation destroys waste vapor streams, most
often volatile organic compounds. A combustion temperature of
around 1100 degrees centigrade is needed to destroy most ozone-
depleting compounds. Acid gas scrubbers are required for
incineration
of halogenated waste vapors, such as those from controlled
substances.
Fume incinerators can be direct flame incinerators, consisting
of the combustion chamber and a burner, or recuperative fume
incinerators that use heat exchangers to preheat the waste vapor
feed stream or the combustion air. Fume incinerators are usually
found in chemical process or manufacturing plants.
Rotary kiln incinerators can handle a wide variety of both
solid and liquid wastes. Rotary kiln incinerators typically
have at least two combustion chambers, the afterburner ensuring
that complete combustion of exhaust gases takes place. Liquid
wastes can be fed either into the rotary kiln area or directly
into the afterburner chamber. If fed into the afterburner chamber,
the liquid is atomized in the burner or combustion zone.
Cement kilns, under proper operation, can destroy most organic
chemical wastes. Tests have been conducted using CFC-113, with
a destruction efficiency of greater than 99.99 percent
demonstrated.
Destruction of ozone-depleting substances in cement kilns appears
beneficial.
c. Definition of Destruction/Change in Definition of Production.
In today's rulemaking, the Agency defines ``destruction'' as
``the expiration of a controlled substance to the destruction
efficiency actually achieved, unless considered completely
destroyed
as defined by this section. Such destruction does not result
in a commercially useful end product and uses one of the following
controlled processes. . .'' The Agency believes it has the
authority
to develop this definition to be consistent with the Protocol.
While section 601 (11) of the CAA does not require EPA to exclude
quantities of controlled substances that are destroyed from
the definition of ``production,'' EPA believes it has the
discretionary
authority to exclude from the definition of ``production''
controlled
substances that are destroyed through the use of the technologies
approved by the Protocol Parties at the Copenhagen meeting.
Section 601 (11) provides that the terms `produce', `produced',
and `production', refer to the manufacture of a substance from
any raw material or feedstock chemical, but such terms do not
include amounts of substances that are transformed or reused.
EPA notes that the Conference Report of the 1990 Clean Air
Act Amendments stated that the ``conference agreement does not
include a requirement to construe the term `production' in a
manner consistent with the Protocol. The Protocol's exclusion
for manufactured substances that are subsequently destroyed
is too broad and does not include adequate safeguards to preclude
abuse.'' The Conference Report then proceeded to state that
``[i]n the course of implementing this Act, however, EPA shall
consider whether an exclusion will be allowed on a case-by-case
basis for the manufacture of controlled substances that are:
(1) Coincidental, unavoidable byproducts of a manufacturing
process; and (2) immediately contained and destroyed by the
producer using maximum available control technologies.'' EPA
proceeded to establish a process that exempted such production
as CUBP, as discussed above, in the July 30, 1992 final rule
(57 FR 33754).
While section 601 (11) of the CAA does not contain language
requiring EPA to follow the Protocol in terms of excluding
destroyed
controlled substances from production, it also does not contain
language precluding EPA from following the Protocol Parties'
approach to destruction. Moreover, the Conference Report assumes
that EPA has the authority to exclude quantities that are destroyed
from production. Otherwise, Congress could not have directed
EPA to consider excluding only certain types of destroyed
production.
EPA believes that while it is not required to follow the approach
of the Protocol Parties regarding destruction, it has the authority
to do so at this juncture because the approach adopted by the
Parties, in specifically approving the five destruction
technologies,
adequately satisfies the concerns expressed in the Conference
Report. Those concerns were expressed at a time when it was
not known how the Parties would treat destruction; by specifically
approving these five technologies, the Parties have satisfied
the concern of the House-Senate Conference Committee that the
Protocol's exclusion associated with destruction is too broad.
Furthermore, by requiring reliable documentation of the amount
destroyed, EPA's implementing regulations further address the
concerns raised in the conference language.
The Agency believes that with the adoption of this definition
of destruction, a modified definition of production consistent
with the Protocol's decision to approve the five destruction
technologies, and the recordkeeping and reporting requirements
described below, the concern regarding destruction expressed
in the Conference Report language is adequately addressed.
d. Treatment of Destruction. Today's rule, with its definition
of destruction, treats destruction in a manner parallel to the
treatment of transformation in this final rule. Those substances
that are produced for use in production processes that result
in their destruction, using one of the five approved destruction
technologies, are exempt from the definition of production.
Therefore, production and consumption allowances are not required
for production and importation of controlled substances that
are to be destroyed.
It is important to note that EPA modified the method adopted
in this rule for treating transformation and thus, destruction,
from the proposed rule in response to comments. While producers
or importers transforming or destroying carbon tetrachloride
would not have been required to hold allowances to produce or
import under the proposal, producers and importers of other
controlled substances, and non-producers were required to apply
for allowance credits after transformation or destruction had
taken place. EPA made this decision due to the number of comments
it received requesting this treatment. The Agency believes that
as long as there are adequate safeguards to ensure that the
chemical is eventually destroyed, then this administrative change
would have no impact on the environment. The Agency has
acknowledged
that these requirements would have needed amending to implement
the complete phaseout successfully. In today's final rule, in
cases where the producer or an importer knows that any controlled
substance is to be transformed or destroyed by the producer
or importer itself or by a non-producer of the controlled
substance,
that substance will not fall under the definition of ``production''
and ``consumption,'' negating the requirement for production
and/or consumption allowances.
This rule does allow persons other than producers or importers
to receive allowances when they destroy the controlled substance.
Where allowances are expended in producing a substance that
is sold for emissive use and that substance is later destroyed
by one of the five approved technologies, the final rule is
requiring that a certification be submitted to the Agency by
the person requesting the allowances who destroyed the substance
that allowances had been expended for the production or import
of this controlled substance.
The person requesting these allowances should provide the
following information: the identity and address of the person
who destroyed the substance; the name, quantity and volume of
controlled substance destroyed; copy of the invoice or receipt
documenting the sale of the controlled substance to the person;
and the destruction unit's efficiency. Finally, the person shall
submit a certification that allowances had been expended for
the production or import of this controlled substance. The Agency
believes that this information, similar to the information required
for receipt of allowances for transformation, is necessary to
ensure that destruction has occurred.
As will be discussed below, EPA is also requiring that each
person who intends (knowing at the time of purchase) to destroy
controlled substances submit to the producer or importer from
whom they purchase those substances a verification that the
substances they purchase will be destroyed. The purchaser or
importer will keep this verification on file. Also discussed
below, EPA is requiring that a one-time report be submitted
by those who destroy controlled substances, stating the destruction
unit's destruction efficiency and the methods used to record
the volume destroyed and those used to determine destruction
efficiency as well as other federal or state regulations governing
the destruction technology. The combination of these two one-
time (unless information in verification or report changes)
requirements will supply adequate information to EPA and to
the producer/importer, such that destruction can be confirmed.
This will minimize the amount of information the person destroying
will need to submit to the producer/importer after substances
are actually destroyed.
All companies that destroy class I controlled substances
must report volume destroyed during the control period within
45 days of the end of the control period.
As will be explained in greater detail below, a substance
will be considered completely destroyed if it is destroyed by
one of the five technologies at a demonstrable destruction
efficiency
of 98 percent or greater. Substances destroyed by one of the
five technologies at a destruction efficiency of less than 98
percent will be considered destroyed only to that percentage;
thus, only that percentage of the substance that is to be destroyed
will be exempt from the definition of production. The remaining
percentage will fall under the definition of production and
thus require production and/or consumption allowances to produce
or import.
This differs slightly from the treatment of transformation
in this final rulemaking, in that substances transformed, meaning
entirely consumed except for trace quantities, are exempt from
the definition of production. There are no provisions for less
than full transformation, except for trace quantities. A
destruction
exemption can be obtained, however, for whatever percentage
is demonstrated to be destroyed by one of the approved
technologies.
e. Response to Major Comments. EPA received numerous comments
relative to its proposal to grant credits or exempt a controlled
substance from the definition of ``production'' for destruction
of the covered substances. Of those, only one stated that the
Agency should not grant such credits or exemptions. The specific
concern of this commenter centered around the potential ability
of a company to transfer production credits among chemicals.
According to the commenter, if a company had a surplus of one
substance, destroyed that surplus, received credits, then used
those credits to produce another substance, the Agency could
be creating a disincentive to move out of those substances.
In this final rulemaking, EPA allows transfers of allowances
to occur only within a Group (eg., Group I, which includes CFC-
11, -12, -113, -114, and -115). CFC allowances could not be
traded for halon credits, as this commenter suggested. (Indeed,
production of halons will be phased out in 1994, and therefore,
no trades would occur among individual halons.) Additionally,
all transfers of allowances among chemicals within a group must
be adjusted according to the ODP of each substances. The Agency
thus believes that, even in the event of an unlikely scenario
described by the commenter, the implementation of these decisions
will result in no environmental damage, yet will minimize
disruptions
for companies that require controlled substances past the phaseout
date.
Companies will only receive a destruction exemption for the
volume of controlled substances that have been destroyed by
one of these five approved destruction technologies, unless
a 98 percent or greater destruction efficiency is achieved;
only then would a full destruction exemption be granted. Because
the environmental goal of this rule, as well as the whole of
title VI, is to minimize and ultimately eliminate emissions
of ozone-depleting chemicals, treating destruction in the same
manner as transformation is treated in this final rule merely
recognizes a process that destroys potential emissions of these
substances consistent with these environmental goals.
The Agency received comments claiming that it is unreasonable
to exclude from the definition of destruction those processes
where heat or energy that may be commercially useful is produced
as a byproduct of destruction. EPA agrees. The intent of the
destruction process is to destroy the substance, for which a
byproduct in the way of heat or energy may be produced, rather
than production of an end product being the goal of the destruction
activity. Heat or energy are in fact potential byproducts of
the process of destruction, rather than end products of the
substance(s) itself. Therefore, EPA does not consider heat or
energy produced as a byproduct of destruction to be considered
an end product. As a result, the production of heat or energy
as a byproduct of an approved destruction technology under this
section does not preclude the substance or substances from falling
under the definition of destruction.
One commenter suggested that the Agency clarify that any
other destruction process that is later approved by the Parties
to the Protocol and added to this list of five destruction
technologies
should also be deemed an acceptable destruction technology under
this rule. While EPA does not believe it appropriate to authorize
the use of as yet unapproved destruction technologies, it intends
to propose authorizing use of additional destruction technologies
through future rulemakings, as such technologies are approved
by the Parties.
Another commenter pointed out that, although listed properly
in the Preamble, the regulatory text of this rulemaking listed
the destruction technologies incorrectly, splitting out liquid
injection incineration into two technologies-liquid injection
and incineration. The regulatory text has now been corrected
to include liquid injection incineration as one technology.
One commenter stated that controls of emissions of these
substances by product recovery devices should be treated in
the same manner as destruction via one of these five approved
technologies. Another commenter stated that RCRA boilers and
industrial furnaces should also be covered by the exemption.
Both claimed that the end results would be avoidances of emissions.
In keeping with the intent of Congress, where concerns centered
around too broad an exemption of a substance from the definition
of production as a result of destruction, and in maintaining
consistency with the decision reached by the Parties to the
Protocol, the Agency is today allowing destruction exemptions
only for those five destruction technologies approved by the
Parties.
Another commenter requested that EPA clarify that an incidental
use of a substance prior to destruction, adequately contained
so as to prevent any emissions, not disqualify it from receiving
destruction credits/exemptions. EPA expects that these substances
will be used in a production process prior to being sent for
destruction. Consequently, where uses of a substance occur in
a contained environment and that substance is subsequently
destroyed,
the destruction exemption described in this section would apply.
Another commenter requested that the Agency clarify that
off-site disposal is equally acceptable in taking advantage
of this destruction credit. If handled according to applicable
requirements, off-site destruction should ensure the same
environmental
benefits as on-site destruction. Consequently, as long as the
requirements of this section are met, including all reporting
and recordkeeping requirements, off-site destruction will be
treated in the same manner as on-site destruction.
A commenter expressed concern over the manner in which fugitive
emissions are treated and accounted for. EPA has not counted
fugitive emissions of controlled substances in its current
definitions
of ``controlled substance'' or ``production.'' The Agency believes
that, with the accelerated phaseout of these substances, the
higher costs associated, and general operational efficiency
concerns, producers and manufacturers have economic incentives
to reduce fugitive emissions of controlled substances to a minimum.
Additionally, major sources under section 112 of the Clean Air
Act will have requirements imposed that will necessitate minimizing
emissions of covered controlled substances. For these reasons,
in keeping with past practice, fugitive emissions are not included
in today's definitions of ``controlled substance'' or
``production.''
If EPA's expectations turn out to be wrong, and fugitive emissions
are not kept to a minimum, EPA will revisit the matter in a
subsequent rulemaking.
f. Degree of Exemption/Credit Afforded for Destruction.Under
the current regulations, companies could only claim the CUBP
exemption for carbon tetrachloride and methyl chloroform destroyed
at a 99.99 percent efficiency. The Agency had developed this
destruction efficiency for these two chemicals, as well as others,
when they were characterized as hazardous wastes under 40 CFR
343(a) and 40 CFR 266.104, pursuant to the Resource Conservation
and Recovery Act (RCRA, 42 U.S.C. 6901 et seq). In the July
30, 1992 rulemaking for the protection of stratospheric ozone
(57 FR 33754), the Agency adopted this definition of MACT in
82.4(e)(1)(v) to exempt CUBP from production limits. However,
today's rule eliminates the CUBP provision and the Agency has
now focused on developing standards for destruction of controlled
substances in order to exempt those substances from the definition
of ``production,'' making use of the Agency's experiences with
MACT under the CUBP provision, RCRA regulations, and proposed
CAA section 112 regulations.
Under RCRA, the Agency currently requires that industries
that incinerate hazardous waste covered by the RCRA regulations
meet ``at stack'' standards of 99.99 percent, or four nines.
In addition to these ``at stack'' standards, RCRA also establishes
performance standards to control fugitive emissions of hazardous
substances which can occur at other point sources, such as waste
storage facilities ( 264.345(d)). While there are currently
no quantified controls for such emissions, EPA is developing
such standards for point sources under the CAA section 112 rule.
Of the substances regulated by RCRA, the only controlled
substances covered are methyl chloroform and carbon tetrachloride.
The remaining controlled substances are regulated under RCRA
only when they are blended with hazardous waste, such as used
solvents, and incinerated.
The Agency is today making available the granting of full
exemption from production, or full allowance credits, based
on the destruction of controlled substances when they are covered
by, and operated in compliance with, RCRA section 343(a) and
40 CFR 266.104. If the Agency were to exempt from the definition
of production only that volume destroyed, 99.99 percent in the
case of RCRA permitted facilities, the company would never be
able to redeem the full amount of the chemical used, and would
eventually be unable to obtain sufficient volumes to operate
efficiently.
Under some situations, these chemicals are not covered by
RCRA regulations, but will be covered by regulations to be
promulgated
under section 112 of the Clean Air Act. The Agency published
a proposed rule (known as the Hazardous Organic NESHAPS [HON]
rule) on December 31, 1992 (57 FR 62608) to implement section
112, stating that companies are required to control air emissions
occurring in chemical manufacturing processes to the established
MACT levels. The HON proposal covers approximately 400
manufacturing
processes associated with the Synthetic Organic Manufacturing
Industry (SOCMI), as well as seven non-SOCMI source categories.
The Clean Air Act contained a list of 189 hazardous air pollutants
(HAPS) of which a portion are known to be emitted by the above
mentioned industries. Of those listed, the only controlled
substances
are methyl chloroform (MCF), carbon tetrachloride (CCl4) and
methyl bromide (listed as a class I substance in today's
accelerated
phaseout rule).
The HON proposal covers five kinds of emission points within
such facilities where these substances are emitted, including
process vents, wastewater streams, transfer operations, storage
tanks, and equipment leaks. The Agency proposed that each emissions
source would require a ``reference control technology'' with
specific applicability criteria, such as a 98% control efficiency
with vapor incinerators for process vents and 95% for storage
tanks. The HON proposes performance standards for operating
the technologies, as well as criteria for the design of the
control equipment.
The Agency proposed that when organic hazardous air pollutants
are released through process vent sources, companies may route
these emissions to a gaseous/fume oxidation incinerator for
destruction. The Agency has proposed that such incinerators
operate with an efficiency of 98 percent.
For the purposes of this rulemaking, the Agency establishes
that when other regulations apply, such as ones promulgated
under section 112 of the Clean Air Act, rather than RCRA, and
the 98 percent destruction efficiency is achieved by vapor
incinerators
to which emissions of controlled substances are routed, the
Agency will grant the full exemption or allotment of allowances
for substances that are destroyed under these conditions.
Several commenters claimed that there may be situations whereby
a destruction efficiency of at least 98 percent is achieved
through one of the approved destruction technologies, but the
process does not fall under the jurisdiction of RCRA or section
112 regulations. In such cases, the commenters argued, the full
exemption for destruction should be granted. EPA agrees. EPA
recognizes that there may be a situation in which, for example,
a facility in which destruction at or above a 98 percent efficiency
level takes place is not a major source and thus, is not covered
by section 112 regulations-nor is it regulated under RCRA for
the disposal of hazardous wastes. Therefore, if a facility using
one of these approved destruction technologies does not fall
within the jurisdiction of RCRA or section 112 regulations,
but achieves at least a 98 percent destruction efficiency and
fulfills the requirements of this section (which include
documentation
of destruction efficiency and the methods for determining that
efficiency), a full exemption can be granted for destruction.
Another commenter requested that the Agency define ``completely
destroy'' in order to clarify situations in which full credit
will be granted through destruction of these substances.
Consequently,
EPA has added a definition of ``completely destroy'' which covers
destruction of 98 percent or greater of the substance that is
sent for destruction, using one of the five approved destruction
technologies.
The Agency recognizes that these five approved destruction
technologies, although capable under test situations of destroying
controlled substances at a 99.99 percent efficiency rate, may
not be as efficient as is required for carbon tetrachloride
and methyl chloroform covered under either RCRA or the proposed
section 112 regulations. If the destruction efficiency in
destroying
these controlled substances, including carbon tetrachloride
and methyl chloroform, is below 98 percent, then EPA will exempt
from production only those volumes that have indeed been destroyed.
For example, if an approved technology destroys only 80 percent
of the chemical, then the Agency will only exempt the portion
destroyed from the requirement to hold production allowances.
Under such a program, companies that do not completely destroy
their controlled substances would be unable to recoup, through
allowances, their full volume of controlled substances needed
to operate. Once the phaseout occurs, such companies will need
to destroy close to 100 percent of the controlled substance,
depending on technical limitations, in order to continue to
operate at intended capacity.
g. Standards for Destruction. In cases where a destruction
unit falls under the jurisdiction of RCRA or section 112
regulations,
standards are required for those units pertaining to destruction
efficiency, combustion efficiency, flow, monitoring, etc. For
purposes of this rulemaking, those units must fulfill the
requirements
of the relevant regulations under which they are otherwise
regulated;
the Agency finds no rationale for developing additional standards
for the destruction of such controlled substances in these
regulations.
In cases where a destruction unit is not covered by one of
these other regulations, consistent with the decision of the
Parties to the Protocol, the Agency encourages the adoption
of the minimum standards and subsequent recordkeeping requirements
set forth in chapter 5.5 of the Ad-Hoc Technical Advisory Committee
on ODS Destruction Technologies as the minimum requirements
to be met under this section. The Ad-Hoc Technical Advisory
Committee on ODS Destruction Technologies presents a list of
minimum standards for pollutants emitted during destruction
with stack concentrations for hydrochloric acid, hydrofluoric
acid, particulate, and carbon monoxide.
The report entitled, Ad-Hoc Technical Advisory Committee
on ODS Destruction Technologies, also recommends that atmospheric
releases of controlled substances shall be monitored at all
facilities with air emission discharges. For controlled substances,
this report recommends use of flow meters or continuously recording
weighing equipment for individual containers. The Agency recognizes
that flow meters are not always compatible with certain equipment.
However, EPA requires that a means be available with which to
monitor potential releases and actual destruction. Therefore,
where flow meters or continuously recording weighing equipment
is not feasible, at a minimum, containers are to be weighed
``full'' and ``empty'' to establish quantities destroyed.
h. Comments on Reporting and Recordkeeping Associated with
Destruction. The Agency is requiring, consistent with the proposal,
that producers or importers of controlled substances for use
in a production process that will result in destruction, using
one of the approved technologies, maintain dated records of
the quantity of controlled substances produced and sold for
use in processes that result in destruction, and any applicable
verifications from purchasers that the substance is to be
destroyed.
The Agency requires this recordkeeping in order to verify
exemptions
from production due to destruction.
Also consistent with the proposal, producers and importers
of controlled substances must report to the Agency the amount
of that substance sold to each person who then subsequently
destroys the chemical and any applicable certification showing
that the purchaser of the controlled substance intends to destroy
the chemical.
Companies that both produce controlled substances and destroy
those same substances must report the volume destroyed on their
quarterly production report in a manner similar to that required
for transformation. The final rule requires the same recordkeeping
of persons who purchase controlled substances and subsequently
destroy them as those outlined in the proposal.
The Agency received comments expressing concern that IRS
certificates indicating feedstock use do not address the issue
of destruction, making the certificates meaningless as a reporting
requirement for destruction. None of the IRS certificates relating
to controlled substances require information on those substances
intended to be destroyed or actually destroyed. Consequently,
these certificates are useful for substances to be transformed,
but not for those to be destroyed. As a result, EPA is requiring
purchasers who intend to destroy controlled substances to provide
producers or importers from whom they purchase a one-time
verification
(unless any aspect of the information in the verification changes,
thus requiring a revision) that includes the following information:
the identity and address of the person intending to destroy
the substance; indication of whether those controlled substances
will be completely destroyed, as defined in 82.3 of this rule,
or less than completely destroyed, in which case the destruction
efficiency at which such substances will be destroyed must be
included; period of time over which the person intends to destroy
controlled substances; and signature of the certifying party.
The Agency believes that this information, similar to the
information
required for receipt of allowances for transformation, is necessary
to ensure that destruction will occur. Without such verification
information, a determination that the substances are to be
destroyed
and that the producer is thus able to avoid expending production
allowances for such substances would not be possible.
Companies that purchase controlled substances that are
subsequently
destroyed must keep the following records: the identity and
address of the person destroying the substance; the quantity
and level of controlled substance destroyed; a copy of the invoice
or receipt documenting the sale of the controlled substance;
dated records of substance received by the person and the identity
of the person from whom the controlled substance was purchased;
dated records of inventories of controlled substances at each
plant on the first day of each quarter; and a copy of the
certification
of intent to destroy, if applicable.
Several commenters stated that the proposed reporting and
recordkeeping requirements, complemented by the recordkeeping
requirements of other applicable regulatory regimes, would suffice
for purposes of this section, and that more detailed requirements
than what was proposed would be duplicative and unnecessary.
As discussed above, these approved destruction technologies
are often regulated under other statutes, such as RCRA, or are
expected to be regulated under section 112 of the Clean Air
Act. The implementing regulations for these statutes have detailed
recordkeeping and reporting requirements to ensure that destruction
has taken place. The Agency agrees and believes that these regimes
provide adequate standards as well as recordkeeping requirements;
the Agency believes that the recordkeeping information outlined
in the paragraph above would be maintained in response to these
various recordkeeping requirements. At a minimum, regardless
of the regime under which a facility is regulated, the
recordkeeping
and reporting requirements outlined in this section are necessary
in order to determine compliance with this final rule.
The Agency requested comments in the proposal on whether
all companies that intend to destroy controlled substances should
submit a one-time report to the Agency describing their methods
used to record the volume destroyed and to determine destruction
efficiency ratings. Two comments received by the Agency supported
the one-time reporting of these methods. One commenter stated
that the Agency should ask for the volume destroyed but not
the method used in making that determination. EPA believes that
in order to judge adequately whether the reported volume destroyed
is accurate, it must know the destruction efficiency and understand
the method that is used to determine volume and degree of
destruction.
Therefore, EPA will require the one-time report on the unit's
destruction efficiency, and the methods used to record volume
destroyed and to determine destruction efficiency rating.
The Parties to the Protocol in Copenhagen agreed that all
Parties were to submit annual data on ozone-depleting chemicals
destroyed. To comply with this agreement, the Agency requires
an annual reporting requirement that all persons who destroy
Class I and Class II chemicals report to EPA the volume destroyed
if such a report had not been submitted to the Agency by the
end of 120 days after the effective date of this rule.
Another commenter that produces controlled substances only
as CUBPs stated that the recordkeeping required under the
destruction
provision is more burdensome than the recordkeeping for CUBP
production. EPA clarifies in this response that the producer
of coincidentally produced byproducts would fall outside of
the allowance requirements through either the insignificant
quantity exemption of this section or due to the destruction
of that which is produced. EPA believes that the recordkeeping
and reporting requirements associated with the destruction
exemption
are minimal and not overly burdensome to a producer of
coincidentally
produced byproducts. Therefore, EPA, with this rule, establishes
the reporting and recordkeeping requirements as proposed for
controlled substances that are destroyed.
3. Spills. The definition of production in both the current
rule and the proposed regulations accompanying the March 18
proposal includes spilled or vented controlled substances equal
to or in excess of one hundred pounds per event.
The Agency received a number of comments on this aspect of
the definition of production. Allowances are currently required
in cases of a spill or venting that exceeds 100 pounds. Commenters
requested that EPA delete this part of the definition of
production.
Producers of ozone-depleting substances who currently hold
allowances
indicated that this provision may place companies in non-compliance
after the phaseout, since allowances to cover spills would not
be available. Once the phaseout is completed, there will be
no means by which to comply with this requirement. Furthermore,
commenters indicated that this provision does not allow for
unusual circumstances. For example, a company that needs to
quickly and safely shut down a manufacturing process may need
to vent controlled substances. Commenters suggested that the
Agency should rely on emission reduction rules promulgated under
other authority by EPA to deal with venting or spill situations,
rather than the ``zero emission'' program that would be in place
after the phaseout.
The Agency agrees that requiring allowances for vents and
spills over 100 pounds would lead to unintentional noncompliance
following the production phaseout, since allowances will no
longer be available. With this action, EPA is deleting spills
from the definition of production. Therefore, allowances will
not be expended in cases of spills or venting of any amount.
Spills had been included in the definition of production to
limit release of ozone-depleting chemicals. EPA believed that
companies could avoid compliance action by the Agency if they
over-produced and then spilled this excess production. Although
such action is still possible, the Agency is beginning to address
these implementation issues in preparation for the phaseout.
With the phaseout, companies would not be placed in situations
where they would over-produce. Once the phaseout occurs, companies
will only produce for exempted uses. However, the Agency requires
in today's rule that companies keep records of spills in excess
of 100 pounds. EPA will monitor the frequency of spills through
plant inspections and Section 114 information requests when
appropriate.
While the purpose of the definition of production is not
to control vents and spills, but to determine the need for
allowances
for production of controlled substances, EPA agrees with commenters
that other existing and proposed EPA regulations governing controls
of spills and venting are designed to provide control of such
emissions. The Agency believes that the proposed Hazardous Organic
National Emission Standard for Hazardous Air Pollutants (HON)
authorized under section 112(d) of the Clean Air Act will be
an appropriate mechanism for controlling venting of several
of these substances. These regulations are to be published by
EPA in early 1994. Furthermore, current regulations governing
the accidental release of chemicals are designed to require
appropriate action in the event of spills.
B. Imports
In this final rule, EPA is modifying the requirements of
allowances for imports to make them consistent with the
requirements
of production allowances established in this rule. Under the
system currently in place, importers expend consumption allowances
to import controlled substances intended for transformation,
and to import used or recycled controlled substances. However,
under the regulations promulgated with today's notice, importers
will not need to expend consumption allowances for controlled
substances intended for transformation or destruction, or for
ozone-depleting substances that are used or recycled. Several
commenters requested this change to ensure consistency in the
treatment of chemicals that are produced and chemicals that
are imported. In addition, transformers or destroyers of imports
for which consumption allowances were expended may redeem
consumption
allowances and trade them back to the importer.
C. International Issues
1. Exports
Under current regulations, there is no distinction made between
exports for emissive uses and exports for transformation.
Commenters
have noted that under current regulations, these substances
will no longer be able to be produced, despite an intent to
transform or destroy, since there will be no allowances available
after the phaseout. These commenters claim that this situation
could severely affect the U.S. global market for feedstock,
since several class I chemicals are feedstocks in production
of alternatives. Without this change, commenters claim that
many producers would be shut out of the international markets.
Nevertheless, EPA recognizes that industry must ensure that
adequate controls are in place to verify that the export is
indeed transformed or destroyed. Tracking and verifying that
exports are transformed or destroyed proves to be much more
difficult than for imports and domestically produced and sold
controlled substances. Consequently, EPA retains its current
process for handling exports. Allowances will be required for
all exports regardless of whether they are bound for emissive
uses or transformation or destruction. However, EPA recognizes
the problems that this system would impose upon exporters after
the phaseout in 1996. Therefore, the Agency intends to issue
a supplemental rule prior to the phaseout of class I chemicals
scheduled for the end of 1995 under this rule, in order to address
issues involving allowances for exports.
2. Transfers of Production Rights Between Nations
The phaseout regulations currently in effect provide for
the granting of production allowances commensurate with any
production rights transferred by foreign companies to companies
in the United States. However, under the existing regulations,
consumption rights are not also granted as a part of these trades.
Under the existing program, EPA only granted production allowances
because consumption allowances would be redeemed after production
had been exported. The Agency had used this mechanism to ensure
that the production had in fact been exported. This approach
was reasonable prior to the adoption of the phaseout schedule.
However, EPA recognizes that as the United States approaches
the phaseout date, consumption allowances will become more limited
and companies may be unable to wait until consumption allowances
are redeemed for the export. Commenters have indicated that
these provisions make the trading of production rights from
foreign countries to companies in the U.S. of little if any
use, because both production and consumption allowances are
required in order to produce controlled substances for domestic
consumption.
In response to this concern, the Agency will grant consumption
allowances equal to the level of production allowances for a
trade from another Party to the Protocol. The company receiving
these allowances must certify that this production is intended
for export. However, when the United States trades production
to another country, EPA will only lower the production allowances
for the company involved in the trade. The corresponding
consumption
allowances would be retained in order to be used to import the
production transferred abroad.
D. Insignificant Quantities
In today's action, the Agency is implementing in its regulation
a recent decision of the Parties in Copenhagen that addressed
``insignificant quantities'' (Decision IV/12). Today's rule
exempts from the definition of ``controlled substance'' a substance
produced in ``insignificant quantities.'' The Agency believes
that this change poses insignificant environmental harm and
lessens the administrative burden of the current regulation
and thus changes its definition of controlled substance in today's
rule to exempt insignificant quantities.
1. Insignificant Quantities of Substances Other Than Methyl
Bromide
EPA is also implementing the Parties' decision on insignificant
quantities. During the Fourth meeting of the Parties to the
Montreal Protocol held in Copenhagen November 23-25, 1992, the
Parties approved a decision (Decision IV/12) stating that the
definition of ``controlled substance'' will not include
insignificant
quantities of those substances under certain conditions.
Specifically,
it stated that in the following situations, insignificant
quantities
of controlled substances shall not be considered to be covered
by the definition of ``controlled substances'':
insignificant quantities originating from inadvertent or
coincidental production during a manufacturing process; or,
insignificant quantities originating from use of controlled
substances as process agents (including unreacted feedstocks)
which are present in chemical substances or products as trace
impurities.
Since these activities are excluded from the definition of
controlled substances, and thus could not be counted against
production or consumption, production and consumption allowances
are not required in order to produce or import these substances.
In either of these situations, the Parties recognized that
insignificant quantities of controlled substances may result
or remain in a product after processing. In taking this decision,
the Parties understood that the existence or creation of controlled
substances in these contexts were an essential consequence of
continued production of various products (Section 2.10.4, UNEP
report of the Technology and Economic Assessment Panel), were
likely to be insignificant in quantity, and in fact, had not
heretofore been included in the definition of controlled substance,
or taken into account by countries in their implementation of
the current definition. Thus, the decision clarified the fact
that CFCs and other compounds covered by the Montreal Protocol
as controlled substances that are created or found in these
contexts are not included within the scope of the Protocol's
definition of controlled substance. Nevertheless, the Decision
calls on the Parties to endeavor to take steps to minimize such
emissions.
Pursuant to the decision of the Parties and comments received
supporting this proposed action, EPA today is exempting from
the definition of ``controlled substances'' insignificant
quantities
of controlled substances that originate from inadvertent or
coincidental production during a manufacturing process, from
unreacted feedstock, or from their use as process agents and
residual presence in chemical substances or products as trace
impurities. This exemption will apply so long as the substances
produced in this manner are not themselves, as distinct products,
offered for commercial sale.
One commenter asked for clearer language explaining inadvertent
production. EPA interprets inadvertent production to be production
that occurs unintentionally as a result of a chemical reaction
in the production process. Because the production is inadvertent,
the substance itself is neither made for, nor offered for,
commercial
sale. Inadvertent production occurs in small quantities, since
production of inadvertent substances constitutes inefficiencies
in the production process and manufacturers work to keep such
inadvertent production to a minimum.
EPA carefully considered the environmental implications of
this decision and its relationship to current regulations. First,
as it relates to environmental protection, EPA studied available
information, and has determined that the quantities of controlled
substance emissions associated with the above noted situations
are small. Estimates indicate that they are on the order of
500 ODP-weighted metric tons worldwide. In the U.S., in many
cases, these small emissions are reduced even further by regulatory
treatment under other EPA requirements. An example of the size
of related production can be found in trace impurities of carbon
tetrachloride remaining in finished products made in the U.S.
This residual is estimated to amount to 32 metric tons per year.
Levels of inadvertent production of controlled substances are
also very small. For example, some carbon tetrachloride is produced
during the manufacture of chloroethanes. The worldwide estimate
of levels expected to be emitted during these processes are
estimated to be on the order of 100-200 ODP MT. However, carbon
tetrachloride produced in this manner is generally not emitted;
rather it is recycled within the plant, or, as required by RCRA,
destroyed by an appropriate technology. A further factor which
will help to reduce related emissions is the phaseout itself.
By the year 2000, emissions from these situations are expected
to constitute less then .1% of the amount of controlled substances
produced in their baseline year. The realization of the small
quantities involved was a factor in the Parties decision to
exclude the insignificant quantities resulting from these processes
from the definition of controlled substances. (UNEP OzL Pro.
4 CRP 2ter).
Regarding present regulatory treatment, 82.4(e) of EPA's
current regulations provided an exemption from control for Group
IV or V substances, if those substances were produced as a
coincidental
unavoidable byproduct of a manufacturing process, and were
immediately
contained and destroyed. In light of the regulations EPA is
promulgating today concerning incidental production and
destruction,
EPA is today repealing the current requirements of 82.4(e),
effective with the 1994 control period. This action is being
taken to align EPA regulations with Montreal Protocol requirements
that will be adhered to internationally, and to eliminate the
ambiguity of certain situations that may or may not have met
the requirements of 82.4(e).
With this rule, all companies that meet these conditions
are exempt from production and consumption control and do not
need to file exemption requests. Finally, it fashions a more
workable allowance system that will be necessary as the U.S.
moves forward toward a more rapid phaseout.
One commenter expressed concern, given the elimination of
the coincidental unavoidable byproduct provision, that no guidance
is given for what constitutes an insignificant quantity. EPA
clarifies in this response that the producer of coincidentally
produced byproducts would either fall outside of the allowance
requirements through the insignificant quantity exemption of
this section or due to the destruction of that which is produced.
While the Agency believes that a specific number or percentage
that constitutes an insignificant quantity cannot be defined
in terms of volume or concentration for all instances, those
coincidentally produced byproducts that fall outside of the
insignificant quantity realm as determined by the commenter
can be exempted from the definition of production as a result
of destruction of the byproduct.
In taking these actions, EPA is mindful of the portion of
the Parties' decision that urges all Parties to take steps to
minimize emissions associated with inadvertent and trace quantity
production. In this regard, EPA reserves the right to implement
measures to reduce such emissions in the event it finds that
they are or have become significant.
In conclusion, today's rule, in implementing the decision
of the Parties to the Protocol on insignificant quantities,
removes from the definition of ``controlled substance'' those
substances that are:
insignificant quantities originating from inadvertent or
coincidental production during a manufacturing process; or
insignificant quantities originating from use of controlled
substances as process agents (including unreacted feedstocks)
which are present in chemical substances or products as trace
impurities.
2. Insignificant Production of Methyl Bromide
Several commenters noted that in the preamble to the proposed
rulemaking, EPA misstated that methyl bromide was inadvertently
produced in the production of polyethylene. In fact, methyl
bromide is an inadvertent byproduct of the manufacture of
terephthalic
acid (TPA) and dimethyl terapthalate (DMT), feedstocks which
are used in the production of polyethylene terephthalate.
While supporting EPA's proposal to exempt inadvertent production
of methyl bromide from the definition of controlled substances,
one commenter disagreed with EPA's conclusion that ``substantial''
emissions of methyl bromide are inadvertently produced during
the manufacture of TPA/DMT. This commenter noted that emissions
of methyl bromide during the production of these chemicals ranges
from .0001 to .0007 pounds of TPA/DMT produced, making them
non-substantial. On the other hand, one commenter noted that
inadvertent methyl bromide emissions reported to the toxic release
inventory showed that byproduct emissions in 1990, which can
also come from methyl bromide manufacturing, totaled over 1.5
million pounds, and therefore, should not be exempted from control
as an insignificant quantity.
EPA's statement in the proposal regarding the magnitude of
emissions of methyl bromide are produced stemmed from the total
quantity of related emissions. Data provided from the 3 domestic
manufacturers of TPA/DMT which emit methyl bromide estimated
1990 methyl bromide emissions amounted to 2.5 million pounds.
EPA will continue to work with the industry to reduce these
emissions and to monitor these emissions to determine if regulatory
action is needed in the future.
As noted in the comments of several TPA/DMT producers, the
3 domestic producers of TPA/DMT have committed to achieve a
20% plus reduction in their emissions by 1997, and an 85% plus
reduction by 2000. Several commenters noted the cost of requiring
industry to make these reductions using presently available
technology. Given the fact that the rules being promulgated
today do not require any reductions in methyl bromide emissions
until the year 2001, and the industry has committed to make
short term reductions, EPA believes that it is prudent to let
industry investigate new and innovative measures which will
allow it to meet this commitment at the lowest possible costs.
EPA will, however, continue its discussion with this industry
in order to monitor, carefully, progress toward their commitment.
EPA is committed to taking necessary actions to ensure that
related emissions are indeed insignificant.
Several commenters noted that equity dictated that similar
commitments to reduce inadvertent production of methyl bromide
should be made globally to ensure that US manufactures are not
put at a competitive disadvantage for having to comply with
these provisions. The EPA will help to ensure that this matter
is considered by the Parties to the Protocol in a manner which
preserves the lead time which will be useful in the investigation
of technological reduction options.
VIII. Other Issues
A. Definition of Importer
The March 18 Notice proposed a revision to the definition
of ``importer'' to include the actual owner, the consignee,
and the transferee of the import. The Agency proposed this revision
to ensure that requirements imposed on importers affected the
parties most directly responsible for the import.
EPA proposed to define ``Importer'' to mean any person who
imports a controlled substance, or a controlled product into
the United States. ``Importer'' includes the person primarily
liable for the payment of any duties on the merchandise or an
authorized agent acting on his or her behalf. The term could
also include, as appropriate:
(1) The consignee;
(2) The importer of record;
(3) The actual owner; or
(4) The transferee, if the right to draw merchandise in a
bonded warehouse has been transferred.
Several commenters stated that this definition was
unsatisfactory
because it continued to list ``importers of record'' as legally
responsible for conforming to the regulations. The commenters
were concerned that since custom brokers often act as importers
of record, they would be legally liable transactions. The
commenters
believed that brokers, since they act solely for the purpose
of facilitating the entry of goods, should be exempted from
liability in cases where they are acting as an importer of record.
Commenters further suggested that customs brokers, even when
they are ``importers of record,'' are financially uninterested
parties in those instances where they are merely acting as nominal
importers.
The commenters also suggested that, as an alternative, the
proposed regulations be modified to include a hierarchy of persons
to be held responsible for imports. The commenters believed
that such an enforcement hierarchy will indicate that the customs
broker would be held responsible for regulatory compliance only
in those situations where there is no owner/purchaser and no
consignee set forth on the entry form and/or located in the
United States. The following hierarchy was suggested:
(1) Owner;
(2) Purchaser;
(3) Consignee;
(4) Transferee; and
(5) Customs broker (if acting as the importer of record).
In response EPA however, has decided not to change its
definition
of ``importer'' from the one proposed. EPA will consider adopting
a hierarchy, such as the one suggested by the commenters, as
part of its enforcement strategy for this program. EPA does
not agree that all customs brokers listed as ``importers of
record'' are financially uninterested parties. As indicated
by the comments to the proposed rule, customs brokers provide
services which facilitate the entry of merchandise into the
United States. The brokers are a part of the chain of persons
that participate in an import transaction, and fees are charged
for the services that are provided. As a result, EPA views customs
brokers as knowledgeable professionals regarding import matters.
In light of these considerations, EPA has included customs brokers
who act as importers of record in its list of persons responsible
for import of controlled substances.
It should also be noted that only one party to an import
transaction needs to hold consumption allowances for the
importation
of a controlled substance. This issue was raised by a commenter
who is concerned that allowances are frequently held by the
owners or purchasers of controlled substances and not by the
importer of record. Under this regulation, only one of the several
parties included in the definition of importer needs to hold
and expend consumption allowances for a particular transaction.
However, the other parties involved in that transaction need
to be aware of the import requirements promulgated under this
rule. Therefore, while the ``importer of record'' need not hold
consumption allowances, it is a part of its function to determine
that the necessary allowances are being held and expended.
B. Tracking Essential Uses
Several commenters indicated that additional changes may
need to be made in the tracking procedures in order to accommodate
any essential use exemptions that are granted under the Montreal
Protocol. EPA agrees that any granted essential use exemptions
will necessitate changes in the tracking system. Changes such
as these will be proposed and finalized in a rulemaking to be
initiated at a later date when provisions to allow production
for specified essential uses are established.
C. Addition of HCFCs to the EPCRA Section 313 List
The March 18 Notice indicated that the Agency published a
Federal Register action on June 24, 1992 (57 FR 28159) proposing
to add HCFCs to the list of toxic chemicals subject to reporting
under EPCRA section 313. In that proposal EPA also solicited
comments on alternative options for listing the HCFCs, such
as listing those HCFCs known to be in production or commercially
viable individually and providing some mechanism, such as a
Significant New Use Rule, to add HCFCs that come into production
in the future. In this proposal, EPA also identified five HCFCs
as currently in production or commercially available. These
are: HCFC-141b, HCFC-22, HCFC-142b, HCFC-123, and HCFC-124.
Comments regarding this proposed rule are currently being analyzed
and the Agency expects to issue a final rule on this matter
in the near future.
D. Environmental Impact Statement
One commenter stated that EPA is obligated to prepare an
environmental impact statement (EIS) under the National
Environmental
Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., for its action
to regulate methyl bromide. While EPA has extensively considered
the environmental impacts of this action, section 7(c)(1) of
the Energy Supply and Environmental Coordination Act (ESECA),
15 U.S.C. 793(c)(1), exempts EPA from preparing an EIS under
NEPA. That provision states: ``No action taken under the Clean
Air Act shall be deemed a major Federal action significantly
affecting the quality of the human environment within the meaning
of the National Environmental Policy Act of 1069.'' The Agency
further notes that its policy statement published on May 7,
1974 does not obligate the Agency to prepare an EIS. See 39
FR 16186. In that policy statement, EPA recognized, prior to
enactment of section 7(c)(1) of the ESECA, that ``[t]he Federal
Courts of Appeals have held that the Agency need not prepare
environmental impact statements for its environmentally protective
activities.'' Id. While EPA announced that it would voluntarily
prepare EISs for certain major regulatory actions specified
in the policy statement (not including actions under the
subsequently
enacted title VI of the Clean Air Act), the Agency made clear
that ``[t]he voluntary preparation of impact statements in no
way legally subjects the Agency to NEPA's requirements.'' Id.
E. Recycled and Used Controlled Substances
The Agency proposed to exclude recycled and used ozone-depleting
substances when calculating consumption. EPA proposed this change
to conform the U.S.'s treatment of used and recycled controlled
substance with a recent decision (Decision IV/24) in Copenhagen
by the Parties to exclude such chemicals from the calculation
of consumption. EPA received support from three commenters on
this proposed change.
Prior to this Protocol decision and this rulemaking, used
and recycled controlled substances did count as part of a country's
consumption. Within the United States, importers were required
to hold consumption allowances to import used or recycled
controlled
substances. In turn, an exporter could receive additional
consumption
allowances for the export of used or recycled controlled
substances.
With this rule, the importation of used or recycled controlled
substances will not require consumption allowances, and therefore
will be unrestricted. Similarly, the exporters of used or recycled
controlled substances will not receive consumption allowances
for such export.
EPA did not describe specific recordkeeping requirements
in the proposal, but asked for comment on the need for further
revisions ``to effectuate this intent of the Parties.'' One
commenter suggested that importers and exporters make some
certification
that the shipment is ``being done properly and legally''. Although
the commenter did not describe specifics on how this could be
done, the Agency believes that it would be reasonable to require
that importers and exporters state on all bills of lading and
invoices covering shipments of used or recycled controlled
substances
that the ``shipped product is a used or recycled controlled
substance as defined in 40 CFR 82.3''. EPA believes that such
documentation represents a minimal reporting burden and should
provide adequate control to safeguard against fraud.
EPA proposed that importers and exporters of recycled halons
and HCFCs report on an annual basis to EPA. EPA proposed to
require this data in order to report these volumes to UNEP as
required by the Protocol. The Agency received no comments on
this provision and therefore requires such reports within 45
days after the end of each control period.
F. Transhipments
The Agency proposed to exclude transhipments of bulk controlled
substances from the consumption limits for the United States.
EPA proposed this exclusion to implement Decision IV/14 of the
Parties. Transhipments are shipments of bulk chemicals from
one party to another through the United States that are not
repackaged within the United States. The United States serves
only as a shipping corridor for the controlled substances. EPA
did not receive any comments on this issue. With this final
rule, the Agency excludes transhipments from the consumption
limits. Companies that tranship must keep records that the
transhipment
does not enter interstate commerce in the United States.
G. Publication of the Regulatory Text
Some commenters have suggested EPA was obligated to publish
proposed regulatory text. EPA believes its March 18 proposal
that explained the basis and purpose of its intended actions
and notified the public of the availability of the regulatory
text was legally sufficient.
Section 307(d) of the Clean Air Act applies to ``promulgation
or revision of regulations under title VI (relating to stratosphere
and ozone protection)'' to govern the rulemaking procedures
here. See section 307((d)(1)(I). That subsection specifically
provides that: notice of proposed rulemaking shall be published
in the Federal Register, as provided under section 553(b) of
title 5, shall be accompanied by a statement of its basis and
purpose and shall specify the period available for public comment.
* * * The statement of basis and purpose shall include a summary
of-
(A) The factual data on which the proposed rule is based;
(B) The methodology used in obtaining the data and in analyzing
the data; and
(C) The major legal interpretations and policy considerations
underlying the proposed rule.
Section 553(b) of title V (the Administrative Procedure Act,
or APA) provides, in turn, that ``general notice of proposed
rule making shall be published in the Federal Register. * *
* The notice shall include- * * * either the terms or substance
of proposed rule or a description of the subjects and issued
involved.''
Clean Air Act section 307(d) nowhere mentions publication
of the terms of substance of a proposed rule. Furthermore, APA
section 553(b) clearly offers an agency the choice of whether
to include the terms of substance of the proposal or a description
of the subjects and issues involved. EPA's extensive discussion
of the subjects and issues involved in its proposal, published
on March 18, thus satisfies the publication requirements of
the Clear Air Act and APA.
In any case, the published rule provided adequate notice
to apprise interested parties of the subject of the rulemaking
in order to afford them a meaningful opportunity to participate
and comment on the issues involved. See, e.g., Florida Power
& Light Co. v. United States, 846 F.2d 765 (D.C. Cir. 1988);
South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 885 (4th
Cir. 1983); Small Refiners Lead Phase-Down Task Force v. EPA,
705 f.2D 506, 547 (D.C. Cir. 1983) (cases summarizing purpose
of notice to provide opportunity to comment). There is no question
that EPA's published proposal sufficiently alerted interested
parties of the likely alternatives being considered within the
scope of the proceedings for the final rule. See Spartan
Radiocasting
Co. v. FCC. 619 f.2d 314, 321 ((4th Cir. 1980) (proposal must
notify persons of likely alternatives so that they know whether
their interests are at stake); see also Bonney Motor Express,
Inc. v. United States, 640 F.2d 646, 650 (5th Cir. 1981)(final
rule can be substantially different from proposal if proposal
fairly apprised interested parties of subject and issues before
the Agency).
EPA did in fact notify the public in the published proposal
that regulatory language could be obtained through the EPA hotline,
and provided a telephone number for obtaining it. See 58 FR
15014 (March 18, 1993). The regulatory language was available
before the public hearing held on April 2, 1993, and the public
of course also had an opportunity to comment on the proposed
regulatory language by the close of the comment period on May
19.
IX. Changes From the Proposal and Current Program
This section discusses the changes EPA has made in this final
rule and how they differ from the proposed rule and the current
program.
82.1 Purpose and Scope.
This section changes slightly from the current rule to include
the new definition of consumption, and the trade provisions.
There are no changes from the proposal.
82.2 Effective date.
January 1, 1994, is the effective date for this rule, except
for 82.4(d) and 82.3(h) and (l) which are effective January
10, 1994. The effective date for the listing of methyl bromide
as a class I controlled substance is December 10, 1993.
82.3 Definitions.
Section 82.3 contains some modifications to definitions or
additions to definitions. In the final rule, a new subsection
(g) has been inserted, defining ``completely destroy'', which
means to cause the expiration of a controlled substance at a
destruction efficiency of 98 percent or greater, using one of
the destruction technologies approved by the Parties.
A new paragraph (h) was inserted in 82.3 in the proposed
rule and is retained in this final rule, defining ``complying
with the Protocol'' to mean when referring to a foreign state
not Party to the 1987 Montreal Protocol, the London Amendments,
or the Copenhagen Amendments, as indicated in appendix C to
this subpart by a meeting of the Parties as noted in the records
of the Directorate of the United Nations Secretariat to be in
full compliance with the provisions of the Montreal Protocol
specified in Article 4 paragraph 8 of the Montreal Protocol.
A new paragraph (i) was inserted in the proposed rule and
is retained in this final rule, defining ``consumption'' to
mean the production plus imports minus exports of a controlled
substance (other than transhipments, or recycled or used controlled
substances).
A new paragraph (l) was inserted in the proposed rule and
is retained in the final rule, defining ``controlled product''
as a product that contains a controlled substance listed as
a class I, Group I or II substance in appendix A of the rule,
and that belongs to one or more of six categories of products,
which include automobile and truck air-conditioning units, domestic
and commercial refrigeration and air-conditioning/heat pump
equipment, aerosol products (except medical aerosols), portable
fire extinguishers, insulation boards, panels and pipe covers,
and pre-polymers. The definition also states that controlled
products include, but are not limited to, those products listed
in appendix D to this subpart.
Current paragraph (i), defining ``controlled substance,''
was modified in the proposal and in this final rule, with the
modified definition of ``controlled substance'' becoming paragraph
(m). Also added to the new definition is a sentence explaining
that inadvertent or coincidental creation of insignificant
quantities
of listed substances, (1) during a chemical process, (2) resulting
from unreacted feedstock, or (3) from the controlled substance's
use as a process agent present in the chemical as a trace impurity
substance being manufactured are not deemed controlled substances.
Furthermore, the definition is modified to explain that class
I substances are now divided into seven, rather than five groups.
The definition of ``CUBP,'' paragraph (j) in the current
rule, is removed from this final rule.
A new paragraph (o) was inserted in the proposed rule and
in this final rule to define ``destruction'' as the expiration
of a controlled substance that does not result in a commercially
useful end product and that uses one of the five destruction
technologies (listed in the definition) approved by the Parties
to the Protocol. In the final rule, an additional clarification
is added, inserting ``to the destruction efficiency actually
achieved, unless considered completely destroyed under the rule''
after the phrase ``expiration of a controlled substance.''
A new paragraph (t) was inserted in the proposed and final
rules, defining ``foreign state not Party to or Non-Party''
as a foreign state that has not deposited instruments of
ratification,
acceptance, or other form of approval with the Directorate of
the United Nations Secretariat, evidencing the foreign state's
ratification of the provisions of the 1987 Montreal Protocol,
the London Amendments, or of the Copenhagen Amendments, as
specified.
The definition of ``import'', new paragraph (u), was modified
in the proposal to add to the exemptions from the definition,
``bringing a controlled product into the U.S. when transported
in a consignment of personal or household effects or in a similar
non-commercial situation normally exempted from U.S. Customs
attention.''
In the proposal, the current definition of ``importer'' was
stricken, with a revised definition inserted (new paragraph
(v)). The revised definition of importer is any person who imports
a controlled substance or a controlled product into the United
States. The definition elaborates that importer includes the
person primarily liable for the payment of any duties on the
merchandise or an authorized agent acting on his behalf. The
term also includes, as appropriate, the consignee; the importer
of record; the actual owner, if such a declaration and superseding
bond has been filed; or the transferee, if the right to draw
merchandise in a bonded warehouse has been transferred.
A new paragraph (w) was inserted into the proposed and final
rules, defining ``London Amendments'' as the Montreal Protocol,
as amended at the Second Meeting of the Parties to the Montreal
Protocol in London in 1990.
Paragraph (p) of the current rule, defining ``MACT,'' is
stricken from this final rule.
A new paragraph (y) was inserted into the proposed rule and
in the final rule, defining ``1987 Montreal Protocol'' as the
Montreal Protocol, as originally adopted by the Parties in 1987.
The definition of ``Party'' (paragraph (aa)) was expanded
in the proposal and retained as such in the final rule. In the
new definition, ``any foreign state'' is substituted for ``any
nation.'' Added to the end of the current definition is the
following: ``(pursuant to instruments of ratification, acceptance,
or approval deposited with the Depository of the United Nations
Secretariat), as having ratified the specified control measure
in effect under the Montreal Protocol. Thus, for purposes of
the trade bans specified in 82.4(d)(2) pursuant to the London
Amendments, only those foreign states that are listed in Appendix
C to this subpart as having ratified both the 1987 Montreal
Protocol and the London Amendments shall be deemed to be Parties.''
In the proposal, the definition of ``production'' (paragraph
(ee)) was modified to add to exemptions from the definition,
those amounts that are destroyed by the approved technologies.
The final rule additionally exempts those amounts that are spilled
or vented unintentionally, rather than only those amounts less
than 100 pounds per event, as in the current rule and in the
March 18, 1993 proposal.
A new paragraph (hh) was added in the proposal and final,
defining ``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.
The definition of ``unexpended consumption allowances''
(paragraph
(ii)) was modified in the proposed rule and in the final rule
to exclude transhipments in the part of the calculation where
controlled substances that the person has produced or imported
are subtracted from the total level of that person's consumption
allowances held.
The final rule adds paragraph (kk) to define used or recycled
control substances as controlled substances that have seen service
in their intended use systems.
All paragraphs are re-lettered accordingly.
82.4 Prohibitions.
This section of the current rule has been replaced with new
regulatory language. EPA has modified 82.4(a) to exempt the
production of controlled substances that will either be transformed
or destroyed from the production allowance limit. This exemption
is expanded from that proposed in the March 18 notice to include
not only Group IV class I controlled substances, but all class
I controlled substances.
Similarly, 82.4(b) which limits production and importation
through consumption allowances provides for the same expanded
exemptions as 82.4(a).
Section 82.4(c) states the conditions when consumption
allowances
and production allowances are used in conjunction to produce
controlled substances. As with the current program, only
consumption
allowances are needed to import. This section restates the
exemptions
for production and consumption for controlled substances that
are transformed or eventually destroyed, or those for exempted
uses under 82.4(k).
Section 82.4(d) has not changed since the proposal. EPA has
expanded the existing 82.4(d) to include not only the prohibition
on the export or import of a Group I and Group II, class I
controlled
substance to and from a foreign state not party to the Protocol
(or complying with the Protocol), but also the prohibition on
the export or import of Groups III, IV, and V, class I controlled
substances to or from foreign states not party to the London
Amendments (or complying with the London Amendments). Also,
the proposal, and today's final rule, includes the prohibition
on the importation of certain products containing group I and
II, class I controlled substances, from foreign states not party
to the Montreal Protocol (or complying with the Montreal Protocol).
EPA has dropped existing and proposed 82.4(e) from this
final rule. This subparagraph had described the accounting
procedures
that the Agency would perform to calculate the level of
transformation
of Group IV, class I controlled substance done in the proceeding
control period, that would be attributed to the control period.
As already noted, EPA found this accounting procedure cumbersome,
and will no longer require this calculation.
The proceeding subparagraphs that address class II controls
are re-alphabetized. Proposed 82.4(f) becomes (e). The Agency
has further modified the proposed restrictions on production
of HCFC-141b to exempt destruction, transformation, or for
exemptions
stated in 82.4(l) (for medical devices or exports to a developing
countries). The proposal restricted all production. Similarly,
proposed 82.4(g) becomes (f), and provides exemptions to the
prohibition for the import of HCFC-141b effective January 1,
2003. These exemptions include import for the purposes of
transformation,
destruction, or for the exemptions in 82.4(l).
Proposed 82.4(h) becomes (g) with the re-lettering. The
proposal had limited production HCFC-22 and HCFC-142b to the
level of consumption and production baseline allowances allocated
under 82.5(h) (reserved) and 82.6(h) reserved. The Agency
has modified this to allow exemptions under 82.4(l) (medical
devices and exports to developing countries). The final rule
does not allocate either production or consumption allowances
at this time, but states that these HCFCs may only be produced
or imported for the purposes of servicing existing equipment,
and for transformation or destruction.
Proposed 82.4(j) is now 82.4(h) and, which now restricts
the production and consumption of HCFC-22 and HCFC-142b starting
in the year 2020 to only uses that transform or destroy these
chemicals, or for exemptions in 82.4(l).
Proposed 82.4(k) becomes 82.4(i). EPA has modified this
section to restrict production and consumption of any other
class II controlled substance that had not been previously
controlled
to baseline production and consumption allowances defined in
82.5(h) or for feedstock use or transformation, for uses that
eventually destroy the controlled substance, for use as a
refrigerant
in equipment manufactured prior to 2020 or for exemptions in
82.4(l).
Proposed 82.4(l) becomes 82.4(j) and has been substantially
modified. This paragraph prohibits the production or importation
of any class II controlled substance in 2030 and beyond except
for uses as a feedstock, where it is destroyed, or for exemptions
in 82.4(l).
Proposed 82.4(n) becomes (k) and is reserved for exemptions
for essential uses for class I controlled substances.
EPA has added an additional paragraph (l) that will state
exemptions to the class II bans. As allowed under the Clean
Air Act, excess production and consumption may be used for medical
devices or for export to developing countries. These paragraphs
are reserved.
82.5 Apportionment of Baseline Production Allowances.
This section remains as part of the current program but now
includes paragraphs for Groups VI and VII, class I controlled
substances.
82.6 Apportionment of Baseline Consumption Allowances.
This section remains as part of the current program but now
includes paragraphs for Groups VI and VII, class I controlled
substances. These paragraphs are reserved.
82.7 Grant and phased reduction of baseline production and
consumption allowances for class I controlled substances.
This section amends the current program to accelerate the
phaseout in the production and consumption of class I chemicals.
This section has not changed from the proposal except that the
phaseout date for methyl bromide is 2001, not 2000 as proposed.
82.8 Grant and freeze of baseline production and consumption
allowances for class II controlled substances.
This section continues to be reserved. The Agency had proposed
a reduction schedule for the class II chemicals that was tied
to an allowance system. In the development of the final rule,
as described elsewhere, EPA controls class II chemicals under
82.4 of this rule through an allowances program. However,
EPA will most likely amend this rule in the future when the
decision to have an allowance system in place to control class
II controlled substances.
82.9 Availability of production allowances in addition to
baseline production allowances.
The Agency had not proposed changes to 82.9(a). However,
during the comment period, EPA received comments that the dates
cited in this section had not changed to accommodate the
accelerated
phaseout of class I chemicals. EPA has not accelerated these
dates in this final rule but intends to propose such changes
in the near future.
The Agency had not proposed any changes to 82.9(b). However,
in this final rule, EPA will increase consumption allowances
for a company equal to production allowances it would receive
in a trade of production from another Party to the Protocol,
and that such a trade of production allowances now requires
a signed statement from a person that the increased production
is intended for export to the Party trading its production.
The Agency had proposed dropping the provisions of 82.9(c),
and to establish a system where allowances could be redeemed
for controlled substances that were transformed or destroyed.
EPA has further modified this requirement to require persons
requesting additional allowances to certify that allowances
had been expended for the production of the controlled substances
transformed or destroyed. The Agency also stipulates requirements
for ``complete destruction'' of controlled substances.
82.10 Availability of consumption allowances in addition
to baseline allowances.
For 82.10(a), The Agency proposed and makes final today
the ability for exporters to receive additional consumption
allowances for exports, except for controlled substances that
are transhipped. However, EPA has expanded this exclusion to
used or recycled controlled substances. The Agency had not included
this exclusion in the proposed regulatory text, but had discussed
this exclusion in the preamble.
EPA proposed to change 82.10(b) to allow persons who
transformed
or destroyed all class I chemicals, including groups VI and
VII, to receive additional consumption allowances upon proof
that, indeed, the chemicals had been destroyed or transformed.
EPA has modified this provision to require a certification that
production and/or consumption allowances were expended in the
production or import of the destroyed or transformed controlled
substances requirements in 82.10(b)(1) that include the identity
and address of the person, the name, level and quantity of the
volume transformed or destroyed, invoice documenting sale of
the controlled substance and the name of the resulting chemical
of the transformation, and the efficiency of the relevant
destruction
process.
Section 82.10(b)(2) remains as proposed, providing for Agency
review of these transactions. EPA has added further clarification
of ``completely destroyed'', allowing for 100 percent redemption
of allowances for 98 percent destruction of controlled substances.
Finally, the current 82.10(c) is eliminated, and replaced
by another provision that grants persons increased consumption
allowances, when such persons receive production allowances
for trades of production from another Party to the Protocol.
This paragraph complements 82.9(b), and requires identical
information. The Agency assumes that compliance with 82.9(b)
is compliance with 82.10(c).
82.11 Exports to Article 5 Parties.
This section remains as proposed. However, EPA has broadened
the exclusion to used or recycled controlled substances. The
reporting requirements remain the same as the current program.
82.12 Transfers.
This section remains as proposed. EPA has deleted the
requirement
that a statement be included that the trade is for the purposes
of reimbursing a producer or an importer for allowances expended.
82.13 Recordkeeping and Reporting.
Section 82.13(a) changes the effective date to January 1,
1993, from the January 1, 1992 effective date of the current
phaseout rule. Final 82.13(f) differs from the proposal and
only applies to class I substances. Paragraph (f)(2), requiring
reporting on by-products not destroyed is deleted, because the
destruction provisions cover this aspect in other paragraphs.
The newly-numbered paragraph (f)(2) adds dated records of
the quantity of each controlled substance produced at each facility
to the records that producers must maintain. Currently section
(f)(2) refers only to Group IV references and has been eliminated,
because all controlled substances are now being treated in a
similar manner. Requirements for maintaining dated records of
the sale of controlled substances for feedstock or destruction
and copies of certifications that the substance will be transformed
or destroyed are added.
Producers' reporting requirements currently in 82.13(f)(4)
are now found in 82.13(f)(3). They now require production
information for each quarter by company, rather than by plant,
as in the current rule and the March 18, 1993 proposal. New
subparagraph (3)(i) now only requires that production be reported,
specifying the quantity of any controlled substance used for
feedstock purposes; the phrase ``for controlled and noncontrolled
substances for each plant and totaled by class I controlled
substance for all plants owned by the producer'' has been deleted
from that sentence in current subparagraph (4)(i). New subparagraph
(3)(ii) adds ``for use in processes resulting in destruction''
to the requirement in current (4)(ii) that requires that the
amount of production for feedstock use be reported. The phrase
``for each plant, totaled by controlled substance for all plants
for that quarter and for the control period to date'' is deleted
from current subparagraph (4)(iii), and current subparagraph
(4)(iv) is deleted. Current subparagraph (4)(v) becomes (3)(iv).
References to ``at each plant'' are removed. Additionally, ``or
eventual destruction'' is added to current (4)(vii), now the
new (3)(vi). Current (4)(viii), now (3)(vii), adds the requirement
that a purchaser's destruction verification, in the case of
destruction, be submitted, showing that the controlled substance
is to be destroyed.
Paragraph (5) now becomes paragraph (4).
Recordkeeping for importers, paragraph (g), is changed as
follows:
Subparagraph (g)(1)(i) refers only to class I controlled
substances. A new (g)(1)(ii) is added requiring that records
be maintained on the quantity of controlled substances imported
for transformation or destruction, and the quantity sold for
each use. Current subparagraphs (ii), (iii), and (iv) now become
(iii), (iv), and (v). Current subparagraph (v), which asks for
port of exit, is deleted. Destruction was added in the proposal
to the required dated records documenting sale of controlled
substances for feedstock use; the addition is retained in the
final rule. Added to the records to be maintained under (g)(1)
are IRS certifications or destruction verifications that the
controlled substances are to be transformed or destroyed,
respectively.
Paragraph (g)(2) refers now to ``class I controlled substance''
and adds destruction to those reporting requirements that address
substances imported or sold for feedstock and certifications
that transformation is to occur. A new subparagraph (x) is added,
requiring that the quantity of recyclable and recycled controlled
substances imported during the quarter be reported.
Paragraph (h) refers to how the class I controlled substances
modification is retained in this final rule to change references
to class I substances to controlled substances.
Paragraph (i) was modified in the proposal and such modification
is retained in this final rule to include destruction information
to the recordkeeping requirements in this paragraph wherever
transformation is addressed, in a manner parallel to transformation
(i.e., ``transform or destroy''), except where requirements
only apply to transformation; such requirements then specify
as such in the final rule. Any references to ``Group IV'' are
stricken, so that the requirements apply to all controlled
substances,
as specified in this paragraph. A new recordkeeping requirement
has been added to paragraph (i): copy of the relevant
certifications
of intent to transform or destroy, where substances were sold
for transformation or destruction purposes.
Paragraph (j), having been retained in the proposal, is stricken
in the final rule.
Paragraph (k) was stricken in the proposal and remains stricken
in this final rule.
A new paragraph (j) is added in the final rule that requires
those who destroy controlled substances to provide EPA with
a one-time report stating the destruction unit's destruction
efficiency and the methods used to record the volume destroyed
and those used to determine destruction efficiency.
A new paragraph (k) is inserted into the final rule that
requires those who purchase and subsequently destroy class I
controlled substances to provide the producer from whom they
purchase the substances with a one-time (unless circumstances
change) verification that the controlled substances they purchase
will be destroyed. Any changes related to the verification will
require a revised verification.
A new paragraph (l) is added in the final rule that requires
persons who purchase controlled substances intended for
transformation
to provide the producer or importer with the IRS certification
that the controlled substances are to be used in a process
resulting
in transformation.
A new paragraph (m) is added to the final rule requiring
persons who transform or destroy controlled substances to report
annually to EPA the volume of those substances transformed or
destroyed.
A new paragraph (n) requires every person who produces, imports
or exports class II chemicals must report its quarterly level
of production, imports and exports of these chemicals within
45 days of the end of each quarter.
Paragraph (o) contains new requirements that those who import
or export used or recycled controlled substances label their
bill of lading or invoice indicating that the controlled substance
is used or recycled.
A new paragraph (p) requires companies that import or export
used or recycled Group II, class I controlled substances, or
used or recycled class II controlled substances must report
annually.
Finally paragraph (q) requires records for transhipments.
X. Impact of Final Action
The Agency developed a cost-benefit analysis of various possible
phaseout schedules presented in the petitions and in the comments
as well as the schedule for the accelerated phaseout of ozone-
depleting compounds finalized by EPA today. In all the scenarios
analyzing the various reduction schedules, the analysis yielded
net incremental benefits of the same order of magnitude for
all the options with the Alliance schedule yielding the least
net incremental benefits over the current 2000 year phaseout,
and the NRDC and EPA's proposed schedule yielding the most net
incremental benefits, depending on the valuation of benefits.
Given the uncertainties implicit in any cost benefit analysis
of this kind, the net incremental benefits of these scenarios
are approximately equal with the lower bound estimate of $175
billion to a higher bound estimate of $790 billion (at a 2 percent
discount rate).
The analysis includes cost assumptions for HCFC replacements.
However, these costs are only hypothetical, assuming that HCFC
replacements are between 10% and 30% more expensive than the
HCFC themselves. EPA needed to make such assumptions since HCFC
replacements have not been yet been identified for some important
uses. When high replacements costs are used, the net incremental
benefits range from $164 billion to $776 billion (at a 2 percent
discount rate).
As such analysis indicates that various schedules yield
comparable
net benefits, the Agency chose as the schedule that it is
finalizing
today, with limited modifications, the schedule adopted in
Copenhagen
over both the NRDC schedule and the Alliance schedule based
on EPA's judgement on the availability of technologies and
infrastructure
support. Although the cost-benefit analysis suggests that the
NRDC schedule is a possible option, the analysis performed on
that scenario assumes the widespread use of various technologies
that are dependent on a supporting industry infrastructure that
may not be present. It is the Agency's judgement that although
such technologies are available, the deployment of these
technologies
may incur significant but unaccounted for costs, as industry
would need to adopt controls quickly without full knowledge
of possible cost implications of their actions, and full support
of an infrastructure necessary to support that technology.
For example, the RIA analysis indicates that retrofit of
air-conditioning and refrigeration equipment must occur under
all schedules. However, the NRDC schedule requires extensive
retrofitting with total costs approaching $9 billion (at a 2
percent discount rate). The retrofit cost under EPA's proposed
schedule would be substantially lower.
Furthermore, all of the phaseout schedules considered would
require significant recycling and recovery at disposal. Although
this will occur, the infrastructure necessary to provide recycling
services, as well as to establish the bank of halons and CFCs,
is under development, and would be severely strained under any
accelerated phaseout. However, the Agency believes that its
proposed schedule provides sufficient lead time for this
infrastructure
to develop.
The Agency is also finalizing a less stringent schedule for
the phaseout of HCFCs rather than the schedules suggested in
comments by environmental groups for these chemicals. Although
the cost-benefit analysis indicates that the NRDC schedule may
yield higher net benefits, assuming different valuation of
benefits,
the RIA does not calculate the possible adverse effects of the
rapid phaseout of HCFCs required under such a schedule. The
Agency believes that too short a period for the allowable use
of HCFCs would further encourage the continued use of CFCs in
the short-term by making the use of HCFCs as an alternative
unattractive. It could also force the industry to move to untested
alternatives that may pose unknown adverse environmental and
health effects. For this reason the Agency is finalizing today
a less stringent phaseout of HCFCs. The cost of the Alliance
petition and EPA's schedule for HCFCs are comparable.
EPA has also used a discount rate of 4.5% as well as 7% in
valuing future costs and benefits. When such a discount rate
is used, the incremental cost of the accelerated phaseout (over
the Clean Air Act phaseout) is $21 billion, with benefits ranging
from $31 billion to $124 billion. At a 7% discount rate, the
incremental costs are $12 billion, with benefits ranging from
$8 billion to $24 billion.
EPA also examined the cost and benefits for a 2001 phaseout
date for methyl bromide. The Agency has stated that a number
of possible alternatives exist for users of methyl bromide,
but that time is required for commercialization and use. EPA's
cost analysis of these alternatives examined their likely range
of costs, and coupled those assumptions with a monte carlo
analysis,
presenting a set of costs, (median, mean, minimum and maximum
costs) that could be expected with the methyl bromide phaseout.
This analysis indicates that the minimum social cost is
approximately
$7 million while the maximum cost is roughly $16 billion. The
mean cost is a little more than $2 billion while the medium
cost was estimated to be $1.7 billion. These are the total social
costs between 1994 and 2010. These costs were discounted at
2%.
EPA calculated the benefits of phasing out of methyl bromide
by 2001 between the years 1994 and 2011. EPA estimates benefits
for this period to range from $14 billion to 56 billion, at
a 2 percent discount rate. The Agency estimated that costs at
a 4.5% discount rate would be $1.2 billion with benefits ranging
from $4 billion to $16 billion. At a 7% discount rate, the costs
would be $.8 billion with benefits ranging from $1.6 to $6.4
billion.
XI. Additional Information
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)),
the Agency must determine whether the regulatory action is
``significant''
and therefore subject to OMB review and the requirements of
the Executive Order. The Order defines ``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, loan programs or the rights and obligations
of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set
forth in the Executive Order.
Pursuant to the terms of the Executive Order 12866, it has
been determined that this rule is a ``significant regulatory
action'' because the final rule has an annual effect on the
economy of $100 million or more. As such this action was submitted
to OMB for review. Changes made in response to OMB suggestions
or recommendations will be documented in the public record.
B. Regulatory Flexibility Act
In the proposed rulemaking, the EPA certified, pursuant to
section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)),
that the proposal would not have ``a significant impact on a
substantial number of small entities.'' During the public comment
period, the Agency received comments suggesting that this
regulatory
flexibility ``certification'' was not appropriate because the
proposal failed to include a regulatory flexibility analysis
on the impact of methyl bromide phaseout on small businesses
(especially small farmers).
However, a regulatory flexibility analysis is required only
for small entities which are directly regulated by rulemaking.
See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327
(D.C. Cir. 1985) (agency's certification need only consider
the rule's impact on regulated entities and not indirect impact
on small entities not regulated). The current rulemaking directly
regulates only producers and importers of ozone depleting
chemicals,
by limiting the production and importation of such chemicals,
including methyl bromide. As indicated in the proposed rulemaking,
the Agency did analyze which producers and importers would be
directly regulated by the rulemaking: no small entities would
be directly subject to the rulemaking. There are only three
producers and one importer of methyl bromide, and only one producer
and importer of HBFCs. Since none of these entities qualify
as small businesses within the meaning of the Regulatory
Flexibility
Act, no Regulatory Flexibility Act analysis is needed for either
the proposed or final rule. Accordingly pursuant to section
605(b) of the Act, 5 U.S.C. 605(b), this rulemaking will not
have a significant economic impact on a substantial number of
small entities. EPA hereby makes this certification for this
final rule.
Nonetheless, the Agency, in fact, did give consideration
to the impact of the phaseouts on users, both large and small,
even though they will not be directly regulated by the rulemaking.
This is out of concern for user sectors, which will need to
find replacements for controlled substances. For CFCs, EPA has
prepared an analysis to examine specifically the effect on the
phaseout of existing small businesses. (The Agency is not at
this time able to quantify the impact of the long-term phaseout
of class II chemicals.) For these chemicals, EPA examined the
impact of the phaseout on the user communities which may face
increased costs during the phaseout of these chemicals. (All
companies regulated under 40 CFR part 82, subpart A that produce
or import are either not small businesses as defined by the
Small Business Administration, or will simply produce or import
the Class I alternatives, not incurring any additional cost
to their business.) In its analysis of these impacts, EPA believed
that the most affected sectors, household refrigeration, mobile
airconditioners, chillers and process refrigeration, would need
to retire or retrofit existing equipment but that consumers,
rather than business, would bear the final costs. In some cases,
such as industrial process refrigeration or chillers, retrofits
will be such a small cost relative to operation costs that the
impact will be minimal. For the other sectors, sterilization,
solvent cleaning, portable fire extinguisher, and foam blowing,
the alternative technologies are now readily available, and
business closures are not expected in these sectors.
With regard to methyl bromide, the Agency's proposed rulemaking
did not discuss the specific impacts on small businesses per
se. However, the proposal did extensively consider the question
of the impact of phaseout on users with regard to availability
of alternatives. As a result for methyl bromide, EPA believes
it has adopted an approach that mitigates the impact on users,
including small businesses, to the greatest extent permissible,
consistent with our legislative mandates.
As noted on page 15034 of the proposal, and in today's document,
a newly listed class I substance is automatically subject to
the section 604(a) phaseout schedule unless: (1) The Administrator
accelerates that schedule pursuant to section 606; or (2) the
Administrator determines that the 604(a) schedule is unattainable
and extends the schedule pursuant to section 602(d).
Under section 602(d), in the case of any substance added
to the list of class I or II, the Administrator may extend any
schedule or compliance deadline contained in section 604 or
section 605 to a later date than specified in such sections
if such schedule is unattainable, considering when such substance
is added to the list. However, an extension under section 602(d)
may not extend the termination of production date for a class
I substance to a date more than 7 years after January 1 of the
year after the year that it is listed as a class I substance.
With today's notice, the United States will phase out production
and consumption of methyl bromide by January 1, 2001, a full
seven years after the January 1, following listing. As noted
in the proposal as well in today's document, EPA believes this
is the most flexible regulatory program allowable under the
Clean Air Act. Moreover, by not requiring interim reductions
prior to the phaseout, EPA is further minimizing the impact
of this rule on methyl bromide users.
This final rule also notes that the labeling requirements
of section 611 of the Clean Air Act Amendments do not pertain
to the crops and produce that had been fumigated with methyl
bromide. Although products that are manufactured with a class
I substance are required to be labeled, the Agency has interpreted
the phrase ``manufactured with'' as ``the mechanical or chemical
transformation of materials or substances into new products
or to assemble component products''. EPA believes that agricultural
processes are excluded from this definition of ``manufactured'',
and that crops and produce do not need to be labeled under section
611 of the Clean Air Act. This interpretation of the labeling
requirement alleviates further regulatory burden on users of
methyl bromide.
Finally, the Agency states that it will continue to monitor
the development of substitutes over the next seven years, and
that some solution to provide essential use exemptions may be
explored if there are no substitutes, in order to prevent undue
impacts on small businesses.
Given the time frame and restrictions contained in the
regulation
of methyl bromide, an assessment of its impact on small businesses
must look closely at both near-term and long-term impacts. For
the next seven years, production will be frozen at 1991 levels.
Because of on-going efforts to reduce occupational and ambient
levels of methyl bromide, its use in many soil fumigation and
structural applications has recently been decreasing. As a result,
maintaining the 1991 production levels through 2001 should not
have any economic impact on current users of methyl bromide.
Seven years from now, after the production phaseout in 2001,
the impact on users will largely be driven by the costs and
availability of alternatives. It is extremely difficult to quantify
the long-term impact of the phaseout given the existence of
a wide range of potential alternatives either currently available
or potentially available by the year 2001. While the document
prepared by the United States Department of Agriculture (USDA)
entitled, ``The Biologic and Economic Assessment of Methyl
Bromide,''
attempts to calculate the costs of a methyl bromide phaseout,
as discussed earlier, this analysis focused on an immediate
ban and not a phaseout in 2001. Given the number of potential
alternative chemicals and non-chemicals already under review,
the potential exists for additional alternatives to be available
in 2001.
Some alternatives available and used after 2001 may indeed
prove to be more expensive than methyl bromide which may result
in lower profits to users if these costs cannot be passed on
to consumers. However, EPA has found that the impacts from
regulatory
actions which remove pesticides from the market are mitigated
over time as new pest control technologies are introduced and
adjustments are made to compensate for the loss of the pesticide
through alternative pest control practices. It is reasonable
to expect that research efforts already underway to improve
the performance and acceptability of metam sodium, dazomet,
1,3-dichloropropene and other chemical and non-chemical alternative
pest control techniques will result in minimizing the impact
of a methyl bromide phaseout to small entities. When used in
combination, and in conjunction with a good integrated pest
management program, these materials should be able to replace
many if not all of the major uses of methyl bromide. Research
is currently underway on both the governmental and academic
levels, as well as in the private sector, to ensure that
alternative
materials and methods will be viable and available before methyl
bromide is phased out.
EPA has also considered the economic impact that the removal
of methyl bromide may have on the American agricultural community.
To estimate the total social cost of the phaseout, forecasting
must include the incremental cost and likely prevalence of the
various methyl bromide alternatives in each end use. The result
of such an analysis, including the future costs of likely
alternatives,
applications rates, market share, and efficacy of each alternative,
can be extremely variable due to marked differences in the
characteristics
of various crops, soil types, and climatic conditions in various
parts of the country. To reflect the uncertainty associated
with a number of these key factors, EPA's analysis was performed
using a ``monte carlo'' technique. This analysis resulted in
an estimated total social cost of the phaseout of this chemical
(between 1994 and 2010) varies between a low of $24 million,
and a high of $12.2 billion, with a median total cumulative
cost through 2010 of $1.3 billion. EPA believes that all scenarios
except the ``high cost'' case represent acceptable impacts.
Moreover, the high costs case represents a scenario in which
a strong case could be made for pursuing an essential use provision
for those applications where economically viable alternatives
do not exist.
As the agricultural research community and the private sector
explore viable alternative chemicals and growing methods that
can substitute for methyl bromide, it is likely that the majority
of current use areas will find economically viable and
environmentally
sound substitutes prior to the 2001 phaseout. EPA, along with
USDA, intend to continue to work closely with the agricultural
community to support the expedited development and review of
these alternatives. Furthermore, the Agency intends to assess
throughout the period leading up to the phaseout the extent
to which substitutes may not become available for important
uses of methyl bromide and to take timely steps to ensure that,
if necessary, to pursue an appropriate measures to allow for
essential uses.
C. Paperwork Reduction Act
The information collection requirements in this rule have
been approved by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have
been assigned control number 2060-170.
This collection of information has an estimated reporting
burden estimated to vary from 2 to 15 hours per response with
an average of 9 hours per response and an estimated annual
recordkeeping
burden averaging 250 hours per respondent. These estimates include
time for reviewing instruction, searching existing data sources,
gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Send comments regarding the burden estimate or any other
aspect of this collection of information, including suggestions
for reduction of this burden to Chief, Information Policy Branch;
EPA; 401 M Street, SW. (Mail Code 2136); Washington, DC 20460;
and to the Office of Information and Regulatory Affairs, Office
of Management and Budget, Washington, DC 20503, marked ``Attention:
Desk Officer for EPA''.
References
Cicerone, R.J., L.E. Heidt, and W.H. Pollack, ``Measurements
of Atmospheric Bromine'' J. Geophys. Res. 94, 16639, 1989.
Gleason, I., et. al., ``Record Low Global Ozone on 1992''
Science, April 23, 1993.
Khalil, M.A.K., R.A. Rasmussen, and R. Gunawardena,
``Atmospheric
Methyl Bromide: Trends and Global Mass Balance'' J. Geophys.
Res. 98, 2887, 1993.
Singh, H.B. and M. Kanakidou, ``An Investigation of the
Atmospheric
Sources and Sinks of Methyl Bromide'' Geophy Res lett, 20, 133-
136, 1993.
Solomon, S. and D.L. Albritton, ``Time-dependent ozone depletion
potentials for short- and long-term forecasts'' Nature 357,
33, 1992.
United Nations Environment Programme, ``Environmental Effects
of Ozone Depletion'' Nairobi, Kenya, 1991.
United Nations Environment Programme, ``Environmental Effects
Panel Report'', Nairobi, Kenya, 1989.
United Nations Environment Programme, ``Methyl Bromide: Its
Atmospheric Science, Technology, and Economics-Montreal Protocol
Assessment Supplement'', 1992.
United States Environmental Protection Agency, ``Alternatives
to Methyl Bromide'' prepared for the Office of Policy, Planning
and Evaluation, Washington, D.C., 1993.
WMO, UNEP, NASA, NOAA, U.N. DEP, ``Scientific Assessment
of Ozone Depletion: 1989.
WMO, UNEP, NASA, NOAA, U.K. DEP, ``Scientific Assessment
of Ozone Depletion; 1991.''
Lists of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Chlorofluorocarbons, Exports,
Imports, Ozone Layer, Reporting and recordkeeping requirements,
Stratospheric ozone.
Dated: November 30, 1993.
Carol M. Browner,
Administrator.
Part 82, title 40, chapter I of the Code of Federal Regulations
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, 7671-7671q.
2. Part 82 is amended by revising subpart A to read as follows:
Subpart A-Production and Consumption Controls
Sec.
82.1 Purpose and scope.
82.2 Effective date.
82.3 Definitions.
82.4 Prohibitions.
82.5 Apportionment of baseline production allowances.
82.6 Apportionment of baseline consumption allowances.
82.7 Grant and phased reduction of baseline production and
consumption
allowances for class I controlled substances.
82.8 Grant and phased reduction of baseline production and
consumption
allowances for class II controlled substances. [Reserved]
82.9 Availability of production allowances in addition to baseline
production allowances.
82.10 Availability of consumption allowances in addition to
baseline consumption allowances.
82.11 Exports to Article 5 Parties.
82.12 Transfers.
82.13 Recordkeeping and reporting requirements.
Appendix A to Subpart A-Class I Controlled Substances
Appendix B to Subpart A-Class II Controlled Substances
Appendix C to Subpart A-Parties to the Montreal Protocol
Appendix D to Subpart A-Harmonized Tariff Schedule Description
of Products That May Contain Controlled Substances in Appendix
A, Class I, Groups I and II
Appendix E to Subpart A-Article 5 Parties
Appendix F to Subpart A-Listing of Ozone Depleting Chemicals
Subpart A-Production and Consumption Controls
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, 607 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 or recycled controlled substances)
of certain ozone depleting substances, according to specified
schedules. The Protocol also requires each nation that becomes
a Party to the agreement to impose certain restrictions on trade
in ozone depleting substances with non-Parties.
(b) This subpart applies to any person that produces,
transforms,
destroys, imports or exports a controlled substance or imports
a controlled product.
82.2 Effective date.
(a) The regulations under this subpart take effect January
1, 1994, except for 82.3 (h) and (l) and 82.4(d) that are
effective January 10, 1994. The listing of methyl bromide and
HBFCs as a class I controlled substances is effective December
10, 1993.
(b) The regulations under this part that were effective prior
to January 1, 1994 continue to apply for purposes of enforcing
the provisions that were applicable prior to January 1, 1994.
82.3 Definitions.
As used in this subpart, the term:
(a) Administrator means the Administrator of the Environmental
Protection Agency or his authorized representative.
(b) Baseline consumption allowances means the consumption
allowances apportioned under 82.6.
(c) Baseline production allowances means the production
allowances
apportioned under 82.5.
(d) Calculated level means the weighted amount of a controlled
substance determined by multiplying the amount (in kilograms)
of the controlled substance by that substance's ozone depletion
weight listed in appendix A or appendix B of this subpart.
(e) Class I refers to the controlled substances listed in
appendix A of this subpart.
(f) Class II refers to the controlled substances listed in
appendix B of this subpart.
(g) Completely destroy means to cause the expiration of a
controlled substance at a destruction efficiency of 98 percent
or greater, using one of the destruction technologies approved
by the Parties.
(h) Complying with the Protocol, when referring to a foreign
state not Party to the 1987 Montreal Protocol, the London
Amendments,
or the Copenhagen Amendments, means that the non-Party has been
determined as complying with the Protocol, as indicated in appendix
C of this subpart, by a meeting of the Parties as noted in the
records of the directorate of the United Nations Secretariat.
(i) Consumption means the production plus imports minus exports
of a controlled substance (other than transhipments, or recycled
or used controlled substances).
(j) Consumption allowances means the privileges granted by
this subpart to produce and import class I controlled substances;
however, consumption allowances may be used to produce class
I controlled substances only in conjunction with production
allowances. A person's consumption allowances are the total
of the allowances he obtains under 82.7, 82.6 and 82.10,
as may be modified under 82.12 (transfer of allowances).
(k) Control period means the period from January 1, 1992
through December 31, 1992, and each twelve-month period from
January 1 through December 31, thereafter.
(l) (1) Controlled product means a product that contains
a controlled substance listed as a Class I, Group I or II substance
in appendix A of this subpart, and that belongs to one or more
of the following six categories of products:
(i) Automobile and truck air conditioning units (whether
incorporated in vehicles or not);
(ii) Domestic and commercial refrigeration and air
conditioning/heat
pump equipment (whether containing controlled substances as
a refrigerant and/or in insulating material of the product),
e.g. Refrigerators, Freezers, Dehumidifiers, Water coolers,
Ice machines, Air conditioning and heat pump units;
(iii) Aerosol products, except medical aerosols;
(iv) Portable fire extinguishers;
(v) Insulation boards, panels and pipe covers; and
(vi) Pre-polymers.
(2) Controlled products include, but are not limited to,
those products listed in appendix D of this subpart.
(m) Controlled substance means any substance listed in appendix
A or appendix B of this subpart, whether existing alone or in
a mixture, but excluding any such substance or mixture that
is in a manufactured product other than a container used for
the transportation or storage of the substance or mixture. Thus,
any amount of a listed substance in appendix A or appendix B
of this subpart which is not part of a use system containing
the substance is a controlled substance. If a listed substance
or mixture must first be transferred from a bulk container to
another container, vessel, or piece of equipment in order to
realize its intended use, the listed substance or mixture is
a ``controlled substance''. The inadvertent or coincidental
creation of insignificant quantities of a listed substance in
appendix A or appendix B of this subpart: (1) During a chemical
manufacturing process, (2) resulting from unreacted feedstock,
or (3) from the listed substance's use as a process agent present
as a trace quantity in the chemical substance being manufactured,
is not deemed a controlled substance. Controlled substances
are divided into two classes, Class I in appendix A of this
subpart, and Class II listed in appendix B of this subpart.
Class I substances are further divided into seven groups, Group
I, Group II, Group III, Group IV, Group V, Group VI, and Group
VII as set forth in appendix A of this subpart.
(n) Copenhagen Amendments means the Montreal Protocol on
Substances That Deplete the Ozone Layer, as amended at the Fourth
Meeting of the Parties to the Montreal Protocol in Copenhagen
in 1992.
(o) 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; or
(5) Cement kiln.
(p) Export means the transport of virgin, used, or recycled
controlled substances from inside the United States or its
territories
to persons outside the United States or its territories, excluding
United States military bases and ships for on-board use.
(q) Exporter means the person who contracts to sell controlled
substances for export or transfers controlled substances to
his affiliate in another country.
(r) Facility means any process equipment (e.g., reactor,
distillation column) used to convert raw materials or feedstock
chemicals into controlled substances or consume controlled
substances
in the production of other chemicals.
(s) Foreign state means an entity which is recognized as
a sovereign nation or country other than the United States of
America.
(t) Foreign state not Party to or Non-Party means a foreign
state that has not deposited instruments of ratification,
acceptance,
or other form of approval with the Directorate of the United
Nations Secretariat, evidencing the foreign state's ratification
of the provisions of the 1987 Montreal Protocol the London
Amendments,
or of the Copenhagen Amendments, as specified.
(u) Import means to land on, bring into, or introduce into,
or attempt to land on, bring into, or introduce into any place
subject to the jurisdiction of the United States whether or
not such landing, bringing, or introduction constitutes an
importation
within the meaning of the customs laws of the United States,
with the following exemptions:
(1) Off-loading used or excess controlled substances or
controlled
products from a ship during servicing;
(2) Bringing controlled substances into the U.S. from Mexico
where the controlled substance had been admitted into Mexico
in bond and was of U.S. origin; and
(3) Bringing a controlled product into the U.S. when transported
in a consignment of personal or household effects or in a similar
non-commercial situation normally exempted from U.S. Customs
attention.
(v) Importer means any person who imports a controlled substance
or a controlled product into the United States. ``Importer''
includes the person primarily liable for the payment of any
duties on the merchandise or an authorized agent acting on his
or her behalf. The term also includes, as appropriate:
(1) The consignee;
(2) The importer of record;
(3) The actual owner; or
(4) The transferee, if the right to draw merchandise in a
bonded warehouse has been transferred.
(w) London Amendments means the Montreal Protocol, as amended
at the Second Meeting of the Parties to the Montreal Protocol
in London in 1990.
(x) Montreal Protocol means the Montreal Protocol on Substances
that Deplete the Ozone Layer, a protocol to the Vienna Convention
for the Protection of the Ozone Layer, including adjustments
adopted by the Parties thereto and amendments that have entered
into force.
(y) 1987 Montreal Protocol means the Montreal Protocol, as
originally adopted by the Parties in 1987.
(z) Nations complying with, but not joining, the Protocol
means any nation listed in appendix C , Annex 2, of this subpart.
(aa) Party means any foreign state that is listed in appendix
C of this subpart (pursuant to instruments of ratification,
acceptance, or approval deposited with the Depositary of the
United Nations Secretariat), as having ratified the specified
control measure in effect under the Montreal Protocol. Thus,
for purposes of the trade bans specified in 82.4(d)(2) pursuant
to the London Amendments, only those foreign states that are
listed in appendix C of this subpart as having ratified both
the 1987 Montreal Protocol and the London Amendments shall be
deemed to be Parties.
(bb) Person means any individual or legal entity, including
an individual, corporation, partnership, association, state,
municipality, political subdivision of a state, Indian tribe;
any agency, department, or instrumentality of the United States;
and any officer, agent, or employee thereof.
(cc) Plant means one or more facilities at the same location
owned by or under common control of the same person.
(dd) Potential production allowances means the production
allowances obtained under 82.9(a).
(ee) Production means the manufacture of a controlled substance
from any raw material or feedstock chemical, but does not include:
(1) The manufacture of a controlled substance that is
subsequently
transformed;
(2) The reuse or recycling of a controlled substance;
(3) Amounts that are destroyed by the approved technologies;
or
(4) Amounts that are spilled or vented unintentionally.
(ff) Production allowances means the privileges granted by
this subpart to produce controlled substances; however, production
allowances may be used to produce controlled substances only
in conjunction with consumption allowances. A person's production
allowances are the total of the allowances he obtains under
82.7, 82.5 and 82.9 as may be modified under 82.12 (transfer
of allowances).
(gg) Transform means to use and entirely consume (except
for trace quantities) a controlled substance in the manufacture
of other chemicals for commercial purposes.
(hh) 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.
(ii) Unexpended consumption allowances means consumption
allowances that have not been used. At any time in any control
period a person's unexpended consumption allowances are the
total of the level of consumption allowances the person has
authorization under this subpart to hold at that time for that
control period, minus the level of controlled substances that
the person has produced or imported (not including transhipments
and used or recycled controlled substances) in that control
period until that time.
(jj) Unexpended production allowances means production
allowances
that have not been used. At any time in any control period a
person's unexpended production allowances are the total of the
level of production allowances he has authorization under this
subpart to hold at that time for that control period, minus
the level of controlled substances that the person has produced
in that control period until that time.
(kk) Used or recycled controlled substances means controlled
substances that have been recovered from their intended use
systems.
82.4 Prohibitions.
(a) No person may produce, at any time in any control period,
any class I controlled substance (except for controlled substances
that are transformed or destroyed or substances that are produced
pursuant to an exemption as specified in paragraph (k) of this
section) in excess of the amount of unexpended production
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.
(b) No person may produce or (except for transhipments, or
for used or recycled controlled substances) import, at any time
in any control period, any class I controlled substance (except
for controlled substances that are transformed, destroyed, or
substances that are produced or imported pursuant to an exemption
as specified in paragraph (k) of this section) in excess of
the amount of unexpended consumption allowances held by that
person under the authority of this subpart at that time for
that control period. Every kilogram of excess production or
importation (other than transhipments or used and recycled
controlled
substances) constitutes a separate violation of this subpart.
(c) A person may not use production allowances to produce
a quantity of a class I controlled substance (with the exceptions
set forth in paragraph (a) of this section) unless he holds
under the authority of this subpart at the same time consumption
allowances sufficient to cover that quantity of class I controlled
substances nor may a person use consumption allowances to produce
a quantity of class I controlled substances (with the exceptions
set forth in paragraph (a) of this section) unless the person
holds under authority of this subpart at the same time production
allowances sufficient to cover that quantity of class I controlled
substances. However, only consumption allowances are required
to import class I controlled substances with the exceptions
set forth in paragraph (b) of this section.
(d) No person may:
(1) Import or export any quantity of a controlled substance
listed in Class I, Group I or Group II, in appendix A of this
subpart from or to any foreign state not listed as a Party to
the 1987 Montreal Protocol unless that foreign state is complying
with the 1987 Montreal Protocol (As noted in appendix C, Annex
2 of this subpart);
(2) Import or export any quantity of a controlled substance
listed in Class I, Group III, Group IV or Group V, in appendix
A of this subpart, from or to any foreign state not Party to
the London Amendments (as noted in appendix C, Annex 1, of this
subpart), unless that foreign state is complying with the London
Amendments (as noted in appendix C, Annex 2, of this subpart);
or
(3) Import a controlled product from any foreign state not
Party to the 1987 Montreal Protocol (as noted in appendix C,
Annex 1, of this subpart), unless that foreign state is complying
with the Protocol (as noted in appendix C, Annex 2, of this
subpart).
(4) Every kilogram of a controlled substance, and every
controlled
product, imported or exported in contravention of this subpart
constitutes a separate violation of this subpart.
(e) Effective January 1, 2003, no person may produce HCFC-
141b except in a process resulting in its transformation, use
in a process resulting in destruction, or for exceptions stated
in paragraph (l) of this section.
(f) Effective January 1, 2003, no person may import HCFC-
141b except for use in a process resulting in its transformation,
use in a process resulting in destruction, or for exceptions
stated in paragraph (l) of this section.
(g) Effective January 1, 2010, no person may produce or consume
(excluding used or recycled controlled substances, or
transhipments)
HCFC-22 or HCFC-142b for any purpose other than for use in a
process resulting in their transformation, use in a process
resulting in their destruction, for use in equipment manufactured
prior to January 1, 2010, or for exceptions stated in paragraph
(l) of this section in excess of baseline allowances allocated
82.5(h) and 82.6(h).
(h) Effective January 1, 2020, no person may produce or consume
HCFC-22 or HCFC-142b (excluding used or recycled controlled
substances, or transhipments) for any purpose other than for
use in a process resulting in their transformation, use in a
process resulting in their destruction or for exceptions stated
in paragraph (l) of this section.
(i) Effective January 1, 2015, no person may produce or consume
class II substance (excluding used or recycled controlled
substances,
or transhipments) not previously controlled, for any purpose
other than for use in a process resulting in its transformation,
use in a process resulting in their destruction, as a refrigerant
in equipment manufactured before January 1, 2020, or for exceptions
stated in paragraph (l) of this section, in excess of baseline
production and consumption levels defined in 82.5(h) and
82.6(h).
(j) Effective January 1, 2030 no person may produce or import
class II substances, (excluding used or recycled controlled
substances, or transhipments) for any purpose other than for
use in a process resulting in their transformation, use in a
process resulting in their destruction, or for exceptions stated
in paragraph (l) of this section.
(k) The following exemptions apply to the production and
consumption restrictions under paragraphs (a) and (b) of this
section: [Reserved]
(l) The following exemptions apply to the production and
consumption restrictions under paragraphs (e), (f), (g), (h),
(i) and (j) of this section:
(1) Medical Devices [Reserved]
(2) Exports to developing countries [Reserved]
82.5 Apportionment of baseline production allowances.
Persons who produced controlled substances in Group I or
Group II in 1986 are apportioned baseline production allowances
as set forth in paragraphs (a) and (b) of this section. Persons
who produced controlled substances in Group III, IV, or V in
1989 are apportioned baseline production allowances as set forth
in paragraphs (c), (d), and (e) of this section. Persons who
produced controlled substances in Group VI and VII in 1991 are
apportioned baseline allowances as set forth in paragraphs (f)
and (g) of this section.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Controlled Substance Person
Allowances (kg)
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(a) For Group I controlled substances:
CFC-11 ........................... Allied-Signal, Inc
............... 23,082,358
E.I. DuPont de Nemours & Co
...... 33,830,000
Elf Atochem,
N.A.................. 21,821,500
Laroche Chemicals
................ 12,856,364
CFC-12 ........................... Allied-Signal, Inc
............... 35,699,776
E.I. DuPont de Nemours &
Co....... 64,849,000
Elf Atochem, N.A
................. 31,089,807
Laroche Chemicals
................ 15,330,909
CFC-113 .......................... Allied-Signal, Inc
............... 21,788,896
E.I. DuPont de Nemours & Co
...... 58,553,000
CFC-114 .......................... Allied-Signal, Inc
............... 1,488,569
E.I. DuPont de Nemours & Co
...... 4,194,000
CFC-115 .......................... E.I. DuPont de Nemours & Co
...... 4,176,000
(b) For Group II controlled substances:
Halon-1211 ....................... Great Lakes Chemical Corp
........ 826,487
ICI Americas, Inc
................ 2,135,484
Halon-1301 ....................... E.I. DuPont de Nemours & Co
...... 3,220,000
Great Lakes Chemical Corp
........ 1,766,850
Halon-2402 .......................
..................................
(c) For Group III controlled substances:
CFC-13 ........................... Allied-Signal, Inc
............... 127,125
E.I. DuPont de Nemours & Co
...... 187,831
Elf Atochem, N.A
................. 3,992
Great Lakes Chemical Corp
........ 56,381
Laroche Chemicals
................ 29,025
CFC-111 ..........................
..................................
CFC-112 ..........................
..................................
CFC-211 .......................... E.I. DuPont de Nemours & Co
...... 11
CFC-212 .......................... E.I. DuPont de Nemours & Co
...... 11
CFC-213 .......................... E.I. DuPont de Nemours & Co
...... 11
CFC-214 .......................... E.I. DuPont de Nemours & Co
...... 11
CFC-215 .......................... E.I. DuPont de Nemours & Co
...... 511
Halocarbon Products Corp
......... 1,270
CFC-216 ......................... E.I. DuPont de Nemours & Co
...... 170,574
CFC-217 .......................... E.I. DuPont de Nemours & Co
...... 511
(d) For Group IV controlled substances:
CCl4 ............................. Akzo Chemicals, Inc
.............. 7,873,615
Degussa Corporation
.............. 26,546
Dow Chemical Company, USA
........ 18,987,747
E.I. DuPont de Nemours & Co
...... 9,099
Hanlin Chemicals-WV, Inc
......... 219,616
ICI Americas, Inc
................ 853,714
Occidental Chemical Corp
......... 1,059,358
Vulcan Chemicals
................. 21,931,987
(e) For Group V controlled substances:
Methyl chloroform ................ Dow Chemical Company, USA
........ 168,030,117
E.I. DuPont de Nemours & Co
...... 2
PPG Industries, Inc
.............. 57,450,719
Vulcan Chemicals
................. 89,689,064
(f) For Group VI controlled substances:
[Reserved]
(g) For Group VII controlled substances:
[Reserved]
(h) For class II controlled substances:
[Reserved]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
82.6 Apportionment of baseline consumption allowances.
Persons who produced, imported, or produced and imported
controlled substances in Group I or Group II in 1986 are
apportioned
chemical-specific baseline consumption allowances as set forth
in paragraphs (a) and (b) of this section. Persons who produced,
imported, or produced and imported controlled substances in
Group III, Group IV, or Group V in 1989 are apportioned chemical-
specific baseline consumption allowances as set forth in paragraphs
(c), (d), and (e) of this section. Persons who produced, imported,
or produced and imported controlled substances in Group VI or
VII in 1991 are apportioned chemical specific baseline consumption
allowances as set forth in paragraphs (f) and (g) of this section.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Controlled substance Person
Allowances (kg)
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(a) For Group I controlled substances:
CFC-11 ........................... Allied-Signal, Inc
............... 22,683,833
E.I. DuPont de Nemours & Co
...... 32,054,283
Elf Atochem, N.A
................. 21,740,194
Hoechst Celanese Corporation
..... 185,396
ICI Americas, Inc
................ 1,673,436
Kali-Chemie Corporation
.......... 82,500
Laroche Chemicals
................ 12,695,726
National Refrigerants, Inc
....... 693,707
Refricentro, Inc.
................ 160,697
Sumitomo Corporation of America
.. 5,800
CFC-12 ......................... Allied-Signal, Inc
............... 35,236,397
E.I. DuPont de Nemours & Co
...... 61,098,726
Elf Atochem, N.A
................. 32,403,869
Hoechst Celanese Corporation
..... 138,865
ICI Americas, Inc
................ 1,264,980
Kali-Chemie Corporation
.......... 355,440
Laroche Chemicals
................ 15,281,553
National Refrigerants, Inc
....... 2,375,384
Refricentro, Inc
................. 242,526
CFC-113 .......................... Allied-Signal, Inc.18,241,928
....
E.I. DuPont de Nemours & Co
...... 49,602,858
Elf Atochem, N.A
................. 244,908
Holchem
.......................... 265,199
ICI Americas, Inc
................ 2,399,700
Refricentro, Inc
................. 37,385
Sumitomo Corporation of America
.. 280,163
CFC-114 .......................... Allied-Signal, Inc
............... 1,429,582
E.I. DuPont de Nemours & Co
...... 3,686,103
Elf Atochem, N.A
................. 22,880
ICI Americas, Inc
................ 32,930
CFC-115 .......................... E.I. DuPont de Nemours & Co
...... 2,764,109
Elf Atochem, N.A
................. 633,007
Hoechst Celanese Corporation
..... 8,893
ICI Americas, Inc
................ 2,366,351
Laroche Chemicals
................ 135,520
Refricentro, Inc
................. 27,337
(b) For Group II controlled substances:
Halon-1211 ....................... Elf Atochem, N.A
................. 411,292
Great Lakes Chemical Corp
........ 772,775
ICI Americas, Inc
................ 2,116,641
Kali-Chemie Corporation
.......... 330,000
Halon-1301 ....................... E.I. DuPont de Nemours & Co
...... 2,772,917
Elf Atochem, N.A
................. 89,255
Great Lakes Chemical Corp
........ 1,744,132
Kali-Chemie Corporation
.......... 54,380
Halon-2402 ....................... Ausimont
......................... 34,400
Great Lakes Chemical Corp
........ 15,900
(c) For Group III controlled substances:
CFC-13 ........................... Allied-Signal, Inc
............... 127,124
E.I. DuPont de Nemours & Co
...... 158,508
Elf Atochem, N.A
................. 3,992
Great Lakes Chemical Corp
........ 56,239
ICI Americas, Inc
................ 5,855
Laroche Chemicals
................ 29,025
National Refrigerants, Inc
....... 16,665
CFC-111
CFC-112 .......................... Sumitomo Corporation of America
.. 5,912
TG (USA) Corporation
............. 9,253
CFC-211 .......................... E.I. DuPont de Nemours & Co
...... 11
CFC-212 .......................... E.I. DuPont de Nemours & Co
...... 11
CFC-213 .......................... E.I. DuPont de Nemours & Co
...... 11
CFC-214 .......................... E.I. DuPont de Nemours & Co
...... 11
CFC-215 .......................... E.I. DuPont de Nemours & Co
...... 511
Halocarbon Products Corp
......... 1,270
CFC-216 .......................... E.I. DuPont de Nemours & Co
...... 170,574
CFC-217 .......................... E.I. DuPont de Nemours & Co
...... 511
(d)For Group IV controlled substances:
CC14 ............................. Crescent Chemical Co
............. 56
Degussa Corporation
.............. 12,466
Dow Chemical Company, USA
........ 8,170,561
E.I. DuPont de Nemours & Co
...... 26,537
Elf Atochem, N.A
................. 41
Hanlin Chemicals-WV, Inc
......... 103,133
Hoechst Celanese Corporation
..... 3
ICC Chemical Corp
................ 1,173,723
ICI Americas, Inc
................ 855,466
Occidental Chemical Corp
......... 497,478
Sumitomo Corporation of America
.. 9
(e) For Group V controlled substances:
Methyl Chloroform ................ 3V Chemical Corp
................. 3,528
Actex, Inc
....................... 50,171
Atochem North America
............ 74,355
Dow Chemical Company, USA
........ 125,200,200
E.I. DuPont de Nemours & Co
...... 2
IBM
.............................. 2,026
ICI Americas, Inc
................ 14,179,850
Laidlaw
.......................... 420,207
PPG Industries
................... 45,254,115
Sumitomo
......................... 1,954
TG (USA) Corporation
............. 7,073
Unitor Ships Service, Inc
........ 14,746
Vulcan Chemicals
................. 70,765,072
(f) For Group VI controlled substances: [Reserved]
(g) For Group VII controlled substances:
[Reserved]
(h) For Class II controlled substances: [Reserved]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
82.7 Grant and phased reduction of baseline production and
consumption allowances for class I controlled substances.
For each control period specified in the following table,
each person is granted the specified percentage of the baseline
production and consumption allowances apportioned to him under
82.5 and 82.6.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³ Class I ³ Class I ³
Class I ³ Class I ³ Class I ³ Class I
³ substances ³ substances ³
substances ³ substances ³ substances ³ substances
Control period ³ in groups ³ in group ³
in group ³ in group V ³ in group ³ in group
³ I and III ³ II (percent)³ IV
(percent)³ (percent) ³ VI (percent)³ VII
³ (percent) ³ ³
³ ³ ³ (percent)
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³ ³ ³
³ ³ ³
1994 ............. ³ 25 ³ 0 ³
50 ³ 50 ³ 100 ³ 100
1995 ............. ³ 25 ³ 0 ³
15 ³ 30 ³ 100 ³ 100
1996 ............. ³ 0 ³ 0 ³
0 ³ 0 ³ 100 ³ 0
1997 ............. ³ 0 ³ 0 ³
0 ³ 0 ³ 100 ³ 0
1998 ............. ³ 0 ³ 0 ³
0 ³ 0 ³ 100 ³ 0
1999 ............. ³ 0 ³ 0 ³
0 ³ 0 ³ 100 ³ 0
2000 ............. ³ 0 ³ 0 ³
0 ³ 0 ³ 100 ³ 0
2001 ............. ³ 0 ³ 0 ³
0 ³ 0 ³ 0 ³ 0
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
82.8 Grant and phased reduction of baseline production and
consumption allowances for class II controlled substances.
[Reserved]
82.9 Availability of production allowances in addition to
baseline production allowances.
(a) Every person apportioned baseline production allowances
for class I controlled substances under 82.5 (a) through (e)
is also granted potential production allowances equal to:
(1) 10 percent of his apportionment under 82.5 for each
control period ending before January 1, 2000; and
(2) 15 percent of his apportionment under 82.5 for each
control period beginning after December 31, 1999 and ending
before January 1, 2011 (January 1, 2013 in the case of methyl
chloroform).
(3) A person may convert potential production allowances,
either granted under this paragraph (a) or obtained under
82.12 (transfer of allowances), to production allowances only
to the extent authorized by the Administrator under 82.11
(Exports to Article 5 Parties). A person may obtain authorizations
to convert potential production allowances to production allowances
by requesting issuance of a notice under 82.11 or by completing
a transfer of authorizations under 82.12.
(b) A person may also increase or decrease its production
allowances by trading with another Party to the Protocol. A
nation listed in appendix C, Annex 1 of 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. A request for production allowances shall also be
considered
a request for consumption allowances under 82.10(c).
(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
allowances 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) A signed statement by the person that this increased
production is intended as an 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 (b)(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 and specifying the
control periods to which the transfer applies, provided that
the request meets the requirement of paragraph (b)(1) of this
section for trades from Parties and paragraph (b)(2) of this
section for trades to Parties, unless the Administrator has
decided to disapprove the trade under paragraph (b)(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
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 held by the person
under this subpart minus the amount transferred; or
(ii) The unexpended production 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 held by the person
under this subpart minus the amount transferred; or
(ii) The unexpended production 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 held by the person
under this subpart plus the amount by which the United States
average annual production of the controlled substance being
traded for the three years prior to the transfer is less than
the total allowable production under this subpart multiplied
by the amount transferred by that person divided by (the amount
transferred by all of the persons that have traded that controlled
substance in that control period). The change in production
allowances will be effective on the date that the notice is
issued.
(c) A person may obtain production allowances for that
controlled
substance equal to the amount of that controlled substance produced
in the United States that was transformed or destroyed within
the United States in cases where production allowances were
expended to produce such substance in accordance with the
provisions
of this paragraph. A request for production allowances under
this section will be considered a request for consumption
allowances
under 82.10(b).
(1) A person must submit a request for production allowances
that includes the following:
(i) The identity and address of the person;
(ii) The name, quantity, and level of controlled substance
transformed or the name, quantity and volume destroyed;
(iii) A copy of the invoice or receipt documenting the sale
of the controlled substance to the person;
(iv) A certification that production allowances were expended
for the production of the controlled substance;
(v) If the controlled substance is transformed, the name,
quantity, and verification of the commercial use of the resulting
chemical transformed; and
(vi) If the controlled substance is destroyed, the efficiency
of the destruction process.
(2) The Administrator will review the information and
documentation
submitted under paragraph (c)(1) of this section and will assess
the quantity of class I controlled substance that the documentation
and information verifies was transformed or destroyed. The
Administrator
will issue the person production allowances equivalent to the
controlled substances that the Administrator determines were
transformed or destroyed. For controlled substances completely
destroyed under this subpart, the Agency will grant allowances
equal to 100 percent of volume intended for destruction. For
those controlled substances destroyed at less than a 98 percent
destruction efficiency, the Agency will grant allowances
commensurate
with that percent of destruction efficiency that is actually
achieved. The grant of allowances will be effective on the date
that the notice is issued.
(3) If the Administrator determines that the request for
production allowances does not satisfactorily substantiate that
the person transformed or destroyed controlled substances as
claimed, or that modified allowances were not expended, the
Administrator will issue a notice disallowing the request for
additional production allowances. Within ten working days after
receipt of notification, the person may file a notice of appeal,
with supporting reasons, with the Administrator. The Administrator
may affirm the disallowance or grant an allowance, as he finds
appropriate in light of the available evidence. If no appeal
is taken by the tenth day after notification, the disallowance
will be final on that day.
82.10 Availability of consumption allowances in addition
to baseline consumption allowances.
(a) Any person may obtain, in accordance with the provisions
of this section, consumption allowances equivalent to the level
of class I controlled substances (other than used or recycled
controlled substances or a transshipment) that the person has
exported from the United States and its territories to a Party
(as listed in appendix C, Annex 1 of this subpart), other than
a transshipment.
(1) The exporter of the class I controlled substances must
submit to the Administrator a request for consumption allowances
setting forth the following:
(i) The identities and addresses of the exporter and the
recipient of the exports;
(ii) The exporter's Employer Identification Number;
(iii) The names and telephone numbers of contact persons
for the exporter and the recipient;
(iv) The quantity and type of controlled substances exported;
(v) The source of the controlled substance and the date
purchased;
(vi) The date on which and the port from which the controlled
substances were exported from the United States or its territories;
(vii) The country to which the controlled substances were
exported;
(viii) The bill of lading and the invoice indicating the
net quantity of controlled substances shipped and documenting
the sale of the controlled substances to the purchaser; and
(ix) The commodity code of the controlled substance exported.
(2) The Administrator will review the information and
documentation
submitted under paragraph (a)(1) of this section, and will assess
the quantity of controlled substances that the documentation
verifies was exported. The Administrator will issue the exporter
consumption allowances equivalent to the level of controlled
substances that the Administrator determined was exported. The
grant of the consumption allowances will be effective on the
date the notice is issued.
(b) A person may obtain consumption allowances for that
controlled
substance equal to the amount of a controlled substance either
produced in or imported into the United States that was transformed
or destroyed in the United States in the case where consumption
allowance were expended to produce or import such substance
in accordance with the provisions of this paragraph.
(1) A person must submit a request for consumption allowances
that includes the following:
(i) The identity and address of the person;
(ii) The name, quantity, and level of controlled substance
transformed or the name, quantity and volume destroyed;
(iii) A copy of the invoice or receipt documenting the sale
of the controlled substance to the person;
(iv) A certification that production and/or consumption
allowances
were expended for the production and/or import of the controlled
substance;
(v) If the controlled substance is transformed, the name,
quantity, and verification of the commercial use of the resulting
chemical transformed; and
(vi) If the controlled substance is destroyed, the efficiency
of the destruction process.
(2) The Administrator will review the information and
documentation
submitted under paragraph (b)(1) of this section and will assess
the quantity of controlled substance that the documentation
and information verified was transformed or destroyed. The
Administrator
will issue to the person consumption allowances equivalent to
the level of controlled substances that the Administrator
determines
was transformed or destroyed. For controlled substances completely
destroyed under this subpart, the Agency will grant allowances
equal to 100 percent of volume intended for destruction. For
those controlled substances destroyed at less than a 98 percent
destruction efficiency, the Agency will grant allowances
commensurate
with that percent of destruction efficiency that is actually
achieved. The grant of allowances will be effective on the date
that the notice is issued.
(3) If the Administrator determines that the request for
consumption allowances does not satisfactorily substantiate
that the person transformed or destroyed controlled substances
as claimed, or that production or consumption allowances had
not been expended, the Administrator will issue a notice
disallowing
the request for additional consumption allowances. Within ten
working days after receipt of notification, the person may file
a notice of appeal, with supporting reasons, with the
Administrator.
The Administrator may affirm or vacate the disallowance. If
no appeal is taken by the tenth day after notification, the
disallowance will be final on that day.
(c) A person may also increase its consumption allowances
by receiving production from another Party to the Protocol.
A nation listed in appendix C, Annex 1 of this subpart (Parties
to the Montreal Protocol) must agree to transfer to the person
for the current control period some amount of production that
the nation is permitted under the Montreal Protocol. A request
for consumption allowances shall also be considered a request
for production allowances under 82.9(b). 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 allowances
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:
(1) The identity and address of the person;
(2) The identity of the Party;
(3) The names and telephone numbers of contact persons for
the person and for the Party;
(4) The chemical type and level of production being transferred;
(5) The control period(s) to which the transfer applies;
and
(6) A signed statement by the person that this increased
production is intended as an export to the Party.
82.11 Exports to Article 5 Parties.
In accordance with the provisions of this section, any person
may obtain authorizations to convert potential production
allowances
to production allowances by exporting class I controlled substances
(not including transshipments, or used or recycled controlled
substances) to foreign states listed in appendix E to this subpart
(Article 5 Parties). Authorizations obtained under this section
will be valid only during the control period in which the
controlled
substance departed the United States. A request for authorizations
under this section will be considered a request for consumption
allowances under 82.10(a) as well.
(a) The exporter must submit to the Administrator a request
for authority to convert potential production allowance to
production
allowances. That request must set forth the following:
(1) The identities and addresses of the exporter and the
recipient of the exports;
(2) The exporter's Employee Identification Number;
(3) The names and telephone numbers of contact persons for
the exporter and for the recipient;
(4) The quantity and the type of controlled substances exported,
its source and date purchased;
(5) The date on which and the port from which the controlled
substances were exported from the United States or its territories;
(6) The country to which the controlled substances were
exported;
(7) A copy of the bill of lading and invoice indicating the
net quantity shipped and documenting the sale of the controlled
substances to the purchaser;
(8) The commodity code of the controlled substance exported;
and
(9) A copy of the contract covering the sale of the controlled
substances to the recipient that contains provisions forbidding
the reexport of the controlled substance in bulk form and
subjecting
the recipient or any transferee of the recipient to liquidated
damages equal to the resale price of the controlled substances
if they are reexported in bulk form.
(b) The Administrator will review the information and
documentation
submitted under paragraph (a) of this section, and assess the
quantity of controlled substances that the documentation verifies
were exported to an Article 5 Party. Based on that assessment,
the Administrator will issue the exporter a notice authorizing
the conversion of a specified quantity of potential production
allowances to production allowances in a specified control year,
and granting consumption allowances in the same amount for the
same control year. The authorizations may be used to convert
potential production allowances to production allowances as
soon as the date on which the notice is issued.
82.12 Transfers.
(a) Inter-company transfers. Any person (``transferor'')
may transfer to any other person (``transferee'') any amount
of the transferor's consumption allowances, production allowances,
potential production allowances, or authorizations to convert
potential production allowances to production allowances, as
follows:
(1) The transferor must submit to the Administrator a transfer
claim setting forth the following:
(i) The identities and addresses of the transferor and the
transferee;
(ii) The name and telephone numbers of contact persons for
the transferor and the transferee;
(iii) The type of allowances or authorizations being
transferred,
including the names of the controlled substances for which
allowances
are to be transferred;
(iv) The group of controlled substances to which the allowances
or authorizations being transferred pertains;
(v) The amount of allowances or authorizations being
transferred;
(vi) The control period(s) for which the allowances or
authorizations
are being transferred;
(vii) The amount of unexpended allowances or authorizations
of the type and for the control period being transferred that
the transferor holds under authority of this subpart as of the
date the claim is submitted to EPA; and
(viii) The amount of the one-percent offset applied to the
unweighted amount traded that will be deducted from the
transferor's
allowance balance (except for trades of potential production
allowances, authorizations to convert, or trades from transformers
and destroyers to producers or importers for the purpose of
allowance reimbursement).
(2) The Administrator will determine whether the records
maintained by EPA, taking into account any previous transfers
and any production, allowable imports and exports of controlled
substances reported by the transferor, indicate that the transferor
possesses, as of the date the transfer claim is processed,
unexpended
allowances or authorizations sufficient to cover the transfer
claim (i.e., the amount to be transferred plus, in the case
of transferors of production or consumption allowances, one
percent of that amount). Within three working days of receiving
a complete transfer claim, the Administrator will take action
to notify the transferor and transferee as follows:
(i) If EPA's records show that the transferor has sufficient
unexpended allowances or authorizations to cover the transfer
claim or if review of available information is insufficient
to make a determination, the Administrator will issue a notice
indicating that EPA does not object to the transfer and will
reduce the transferor's balance of unexpended allowances or
authorizations by the amount to be transferred plus, in the
case of transfers of production or consumption allowances, one
percent of that amount. When EPA issues a no objection notice,
the transferor and the transferee may proceed with the transfer.
However, if EPA ultimately finds that the transferor did not
have sufficient unexpended allowances or authorizations to cover
the claim, the transferor and transferee will be held liable
for any violations of the regulations of this subpart that occur
as a result of, or in conjunction with, the improper transfer.
(ii) If EPA's records show that the transferor has insufficient
unexpended allowances or authorizations to cover the transfer
claim, or that the transferor has failed to respond to one or
more Agency requests to supply information needed to make a
determination, the Administrator will issue a notice disallowing
the transfer. Within 10 working days after receipt of notification,
either party may file a notice of appeal, with supporting reasons,
with the Administrator. The Administrator may affirm or vacate
the disallowance. If no appeal is taken by the tenth working
day after notification, the disallowance shall be final on that
day.
(3) In the event that the Administrator does not respond
to a transfer claim within the three working days specified
in paragraph (b)(2) of this section, the transferor and transferee
may proceed with the transfer. EPA will reduce the transferor's
balance of unexpended allowances or authorizations by the amount
to be transferred plus, in the case of transfers of production
or consumption allowances, one percent of that amount. However,
if EPA ultimately finds that the transferor did not have sufficient
unexpended allowances or authorizations to cover the claim,
the transferor and transferee will be held liable for any
violations
of the regulations of this subpart that occur as a result of,
or in conjunction with, the improper transfer.
(b) Inter-pollutant conversions. Any person (``convertor'')
may convert consumption allowances, production allowances,
potential
production allowances, or authorizations to convert potential
production allowances to production allowances for one class
I controlled substance to the same type of allowance for another
class I controlled substance within the group of controlled
substances as the first as follows:
(1) The convertor must submit to the Administrator a conversion
claim setting forth the following:
(i) The identity and address of the convertor;
(ii) The name and telephone number of a contact person for
the convertor;
(iii) The type of allowances or authorizations being converted,
including the names of the controlled substances for which
allowances
are to be converted;
(iv) The group of controlled substances to which the allowances
or authorizations being converted pertains;
(v) The amount and type of allowances to be converted;
(vi) The amount of allowances to be subtracted from the
convertor's
unexpended allowances for the first controlled substance, to
be equal to 101 percent of the amount of allowances converted
(except for conversions of authorizations to convert potential
production allowances and conversions of potential production
allowances);
(vii) The amount of allowances or authorizations to be added
to the convertor's unexpended allowances or authorizations for
the second controlled substance, to be equal to the amount of
allowances for the first controlled substance being converted
multiplied by the quotient of the ozone depletion factor of
the first controlled substance divided by the ozone depletion
factor of the second controlled substance, as listed in appendix
A of this subpart;
(viii) The control period(s) for which the allowances or
authorizations are being converted; and
(ix) The amount of unexpended allowances or authorizations
of the type and for the control period being converted that
the convertor holds under authority of this subpart as of the
date the claim is submitted to EPA.
(2) The Administrator will determine whether the records
maintained by EPA, taking into account any previous conversions,
any transfers, and any production, imports (not including
transhipments,
or used and recycled controlled substances), or exports (not
including transhipments, or used and recycled controlled
substances)
of controlled substances reported by the convertor, indicate
that the convertor possesses, as of the date the conversion
claim is processed, unexpended allowances or authorizations
sufficient to cover the conversion claim (i.e., the amount to
be converted plus, in the case of conversions of production
or consumption allowances, one percent of that amount). Within
three working days of receiving a complete conversion claim,
the Administrator will take action to notify the convertor as
follows:
(i) If EPA's records show that the convertor has sufficient
unexpended allowances or authorizations to cover the conversion
claim or if review of available information is insufficient
to make a determination, the Administrator will issue a notice
indicating that EPA does not object to the conversion and will
reduce the convertor's balance of unexpended allowances or
authorizations
by the amount to be converted plus, in the case of conversions
of production or consumption allowances, one percent of that
amount. When EPA issues a no objection notice, the convertor
may proceed with the conversion. However, if EPA ultimately
finds that the convertor did not have sufficient unexpended
allowances or authorizations to cover the claim, the convertor
will be held liable for any violations of the regulations of
this subpart that occur as a result of, or in conjunction with,
the improper conversion.
(ii) If EPA's records show that the convertor has insufficient
unexpended allowances or authorizations to cover the conversion
claim, or that the convertor has failed to respond to one or
more Agency requests to supply information needed to make a
determination, the Administrator will issue a notice disallowing
the conversion. Within 10 working days after receipt of
notification,
the convertor may file a notice of appeal, with supporting reasons,
with the Administrator. The Administrator may affirm or vacate
the disallowance. If no appeal is taken by the tenth working
day after notification, the disallowance shall be final on that
day.
(3) In the event that the Administrator does not respond
to a conversion claim within the three working days specified
in paragraph (b)(2) of this section, the convertor may proceed
with the conversion. EPA will reduce the convertor's balance
of unexpended allowances by the amount to be converted plus,
in the case of conversions of production or consumption allowances,
one percent of that amount. However, if EPA ultimately finds
that the convertor did not have sufficient unexpended allowances
or authorizations to cover the claims, the convertor will be
held liable for any violations of the regulations of this subpart
that occur as a result of, or in conjunction with, the improper
conversion.
(c) Inter-company transfers and Inter-pollutant conversions.
If a person requests an inter-company transfer and an inter-
pollutant conversion simultaneously, the amount subtracted from
the convertor-transferor's unexpended allowances for the first
controlled substance will be equal to 101 percent of the amount
of allowances converted and transferred in the case of transfer-
conversions of production or consumption allowances.
82.13 Record-keeping and reporting requirements.
(a) Unless otherwise specified, the recordkeeping and reporting
requirements set forth in this section take effect on January
1, 1994.
(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.
(c) Unless otherwise specified, reports required by this
section must be mailed to the Administrator within 45 days of
the end of the applicable reporting period.
(d) Records and copies of reports required by this section
must be retained for three years.
(e) In reports required by this section, quantities of
controlled
substances must be stated in terms of kilograms.
(f) Every person (``producer'') who produces class I controlled
substances during a control period must comply with the following
recordkeeping and reporting requirements:
(1) Within 120 days of December 10, 1993, or within 120 days
of the date that a producer first produces a class I controlled
substance, whichever is later, every producer who has not already
done so must submit to the Administrator a report describing:
(i) The method by which the producer in practice measures
daily quantities of controlled substances produced;
(ii) Conversion factors by which the daily records as currently
maintained can be converted into kilograms of controlled substances
produced, including any constants or assumptions used in making
those calculations (e.g., tank specifications, ambient temperature
or pressure, density of the controlled substance);
(iii) Internal accounting procedures for determining plant-
wide production;
(iv) The quantity of any fugitive losses accounted for in
the production figures; and
(v) The estimated percent efficiency of the production process
for the controlled substance.
Within 60 days of any change in the measurement procedures
or the information specified in the report in paragraph (b),
the producer must submit a report specifying the revised data
or procedures to the Administrator.
(2) Every producer of a class I controlled substance during
a control period must maintain the following records:
(i) Dated records of the quantity of each controlled substance
produced at each facility;
(ii) Dated records of the quantity of controlled substances
produced for use in processes that result in their transformation
or for use in processes that result in their destruction and
quantity sold for use in processes that result in their
transformation
or for use in processes that result in their destruction;
(iii) Copies of invoices or receipts documenting sale of
controlled substance for use in processes resulting in their
transformation or for use in processes resulting in destruction;
(iv) Dated records of the quantity of each controlled substance
used at each facility as feedstocks or destroyed in the manufacture
of a controlled substance or in the manufacture of any other
substance, and any controlled substance introduced into the
production process of the same controlled substance at each
facility;
(v) Dated records identifying the quantity of each chemical
not a controlled substance produced within each facility also
producing one or more controlled substances;
(vi) Dated records of the quantity of raw materials and
feedstock
chemicals used at each facility for the production of controlled
substances;
(vii) Dated records of the shipments of each controlled
substance
produced at each plant;
(viii) The quantity of controlled substances, the date received,
and names and addresses of the source of recyclable or recoverable
materials containing controlled substances which are recovered
at each plant;
(ix) Records of the date, the controlled substance, and the
estimated quantity of any spill or release of a controlled
substance
that equals or exceeds 100 pounds; and
(x) Copies of IRS certification that the controlled substance
will be transformed or the verification that it will be destroyed.
(3) For each quarter, each producer of a class I controlled
substance must provide the Administrator with a report containing
the following information:
(i) The production by company in that quarter of each controlled
substance, specifying the quantity of any controlled substance
used in processing, resulting in its transformation by the
producer;
(ii) The amount of production for use in processes resulting
in destruction of controlled substances by the producer;
(iii) The levels of production (expended allowances) for
each controlled substance;
(iv) The producer's total of expended and unexpended consumption
allowances, potential production allowances, production allowances,
and authorizations to convert potential production allowances
to production allowances, as of the end of that quarter;
(v) The quantity, the date received, and names and addresses
of the sources of recyclable and recoverable materials containing
the controlled substances which are recovered;
(vi) The amount of controlled substance sold or transferred
during the quarter to a person other than the producer for use
in processes resulting in its transformation or eventual
destruction;
and
(vii) Internal Revenue Service Certificates in the case of
transformation, or the purchaser's destruction verification
in the case of destruction, showing that the purchaser or recipient
of a controlled substance intends to either transform or destroy
the controlled substance.
(4) For any person who fails to maintain the records required
by this paragraph (f), or to submit the report required by this
paragraph (f), the Administrator may assume that the person
has produced at full capacity during the period for which records
were not kept, for purposes of determining whether the person
has violated the prohibitions at 82.4.
(g) Importers of class I controlled substances during a control
period must comply with recordkeeping and reporting requirements
specified in this section.
(1) Any importer of a class I controlled substance must maintain
the following records:
(i) The quantity of each controlled substance imported, either
alone or in mixtures, including the percentage of each mixture
which consists of a controlled substance;
(ii) The quantity of controlled substances other than
transhipments
or used or recycled substances imported for use in processes
resulting in their transformation or destruction and quantity
sold for use in processes that result in their destruction or
transformation;
(iii) The date on which the controlled substances were imported;
(iv) The port of entry through which the controlled substances
passed;
(v) The country from which the imported controlled substances
were imported;
(vi) The commodity code for the controlled substances shipped;
(vii) The importer number for the shipment;
(viii) A copy of the bill of lading for the import;
(ix) The invoice for the import;
(x) The quantity of imports of used and recycled class I
controlled substances and class II controlled substances;
(xi) The U.S. Customs entry form;
(xii) Dated records documenting the sale or transfer of
controlled
substances for use in process resulting in transformation or
destruction; and
(xiii) Copies of IRS certifications that the controlled
substance
will be transformed or destruction verifications that it will
be destroyed.
(2) Reporting Requirements-Importers. For each quarter, every
importer of a class I controlled substance must submit to the
Administrator a report containing the following information:
(i) Summaries of the records required in paragraphs (g)(1)
(i) through (vii) of this section for the previous quarter;
(ii) The total quantity imported in kilograms of each controlled
substance for that quarter;
(iii) The levels of import (expended consumption allowances)
of controlled substances for that quarter and totaled by chemical
for the control-period-to-date;
(iv) The importer's total sum of expended and unexpended
consumption allowances by chemical as of the end of that quarter;
(v) The amount of controlled substances imported for use
in processes resulting in their transformation or destruction;
(vi) The amount of controlled substances sold or transferred
during the quarter to each person for use in processes resulting
in their transformation or eventual destruction;
(vii) Internal Revenue Service Certificates showing that
the purchaser or recipient of imported controlled substances
intends to transform those substances or destruction verifications
showing that purchaser or recipient intends to destroy the
controlled
substances.
(h) Reporting Requirements-Exporters. For any exports of
class I controlled substances not reported under 82.10 (additional
consumption allowances) or 82.11 (Exports to Parties), the
exporter who exported a class I controlled substances must submit
to the Administrator the following information within 45 days
after the end of the control period in which the unreported
exports left the United States:
(1) The names and addresses of the exporter and the recipient
of the exports;
(2) The exporter's Employee Identification Number;
(3) The type and quantity of each controlled substance exported
and what percentage, if any, of the controlled substance are
recycled or used;
(4) The date on which and the port from which the controlled
substances were exported from the United States or its territories;
(5) The country to which the controlled substances were
exported;
and
(6) The commodity code of the controlled substance shipped.
(i) Every person who has requested additional production
allowances under 82.9(c) or consumption allowances under
82.10(b) or who transforms or destroys class I controlled
substances
not produced by that person must maintain the following:
(1) Dated records of the quantity and level of each controlled
substance transformed or destroyed;
(2) Copies of the invoices or receipts documenting the sale
or transfer of the controlled substance to the person;
(3) In the case where those controlled substances are
transformed,
dated records of the names, commercial use, and quantities of
the resulting chemical(s);
(4) In the case where those controlled substances are
transformed,
dated records of shipments to purchasers of the resulting
chemical(s);
(5) Dated records of all shipments of controlled substances
received by the person, and the identity of the producer or
importer of the controlled substances;
(6) Dated records of inventories of controlled substances
at each plant on the first day of each quarter; and
(7) A copy of the person's IRS certification of intent to
transform or the purchaser's destruction verification of intent
to destroy, in the case where substances were purchased for
transformation or destruction purposes.
(j) Persons who destroy class I controlled substances shall
provide EPA with a one-time report stating the destruction unit's
destruction efficiency and the methods used to record the volume
destroyed and those used to determine destruction efficiency
and the name of other relevant Federal or state regulations
that may apply to the destruction process. Any changes to the
unit's destruction efficiency or methods used to record volume
destroyed and to determine destruction efficiency must be reflected
in a revision to this report to be submitted to EPA within 60
days of the change.
(k) Persons who purchase and subsequently destroy controlled
class I substances shall provide the producer or importer from
whom they purchase controlled substances to be destroyed with
a verification that controlled substances will be used in processes
that result in their destruction.
(1) The verification shall include the following:
(i) Identity and address of the person intending to destroy
controlled substances;
(ii) Indication of whether those controlled substances will
be completely destroyed, as defined in 82.3, or less than
completely destroyed, in which case the destruction efficiency
at which such substances will be destroyed must be included;
(iii) Period of time over which the person intends to destroy
controlled substances; and
(iv) Signature of the verifying person.
(2) If, at any time, any aspects of this verification change,
the person must submit a revised verification reflecting such
changes to the producer from whom that person purchases controlled
substances intended for destruction.
(l) Persons who purchase class I controlled substances and
who subsequently transform such controlled substances shall
provide the producer or importer with the IRS certification
that the controlled substances are to be used in processes
resulting
in their transformation.
(m) Any person who transforms or destroys class I controlled
substances must report the names and quantities of class I
controlled
substances transformed and destroyed for each control period
within 45 days of the end of such control period.
(n) Every person who produces, imports, or exports class
II chemicals must report its quarterly level of production,
imports, and exports of these chemicals within 45 days of the
end of each quarter.
(o) Persons who import or export used or recycled controlled
substances must label their bill of lading or invoice indicating
that the controlled substance is used or recycled.
(p) Every person who imports or exports used or recycled
group II, class I controlled substances, or class II controlled
substances must report its annual level within 45 days of the
end of the control period.
(q) Every person who transships a controlled substance must
maintain records that indicate that the controlled substance
shipment originated in one country destined for another country,
and does not enter interstate commerce with the United States.
Appendix A to Subpart A-Class 1 Controlled Substances
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³
ODP
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³
A. Group I: ³
CFC-13-Trichlorofluoromethane ³
(CFC-11) ........................................... ³
1.0
CF2C12-Dichlorodifluoromethane ³
(CFC-12) ........................................... ³
1.0
C2F3C13-Trichlorotrifluoroethane ³
(CFC-113) .......................................... ³
0.8
C2F4C12-Dichlorotetrafluoroethane ³
(CFC-114) ³
1.0
C2F5C1-Monochloropentaf luoroethane ³
(CFC-115) .......................................... ³
0.6
C2F5C1-Monochloropentafluoroethane ³
All isomers of the above chemicals ³
B. Group II: ³
CF2C1Br-Bromochlorodifluoromethane ³
(Halon-1211) ....................................... ³
3.0
CF3Br-Bromotrifluoromethane ³
(Halon-1301) ....................................... ³
10.0
C2F4Br2-Dibromotetrafluoroethane ³
(Halon-2402) ....................................... ³
6.0
All isomers of the above chemicals ³
C. Group III: ³
CF3C1-Chlorotrifluoromethane ³
(CFC-13) ........................................... ³
1.0
C2FC15- ³
(CFC-111) .......................................... ³
1.0
C2F2C14- ³
(CFC-112) .......................................... ³
1.0
C3FC17- ³
(CFC-211) .......................................... ³
1.0
C3F2C16- ³
(CFC-212) .......................................... ³
1.0
C3F3C15- ³
(CFC-213) .......................................... ³
1.0
C3F4C14- ³
(CFC-214) .......................................... ³
1.0
C3F5C13- ³
(CFC-215) .......................................... ³
1.0
C3F6C12- ³
(CFC-216) .......................................... ³
1.0
C3F7C1- ³
(CFC-217) .......................................... ³
1.0
All isomers of the above chemicals ³
D. Group IV: ³
CC14-Carbon Tetrachloride ............................ ³
1.1
E. Group V: ³
C2H3C13-1,1,1 Trichloroethane ........................ ³
(Methyl chloroform) ................................ ³
0.1
All isomers of the above chemical except l,l,2- ³
trichloromethane ³
F. Group VI: ³
CH3Br-Bromomethane ³
(Methyl Bromide) ................................... ³
0.7
G. Group VII: ³
CHFBR2 ............................................... ³
1.00
CHF2Br (HBFC-22B1) ................................... ³
0.74
CH2FBr ............................................... ³
0.73
C2HFBr4 .............................................. ³
0.3-0.8
C2HF2Br3 ............................................. ³
0.5-1.8
C2HF3Br2 ............................................. ³
0.4-1.6
C2HF4Br .............................................. ³
0.7-1.2
C2H2FBr3 ............................................. ³
0.1-1.1
C2H2F2Br2 ............................................ ³
0.2-1.5
C2H2F3Br ............................................. ³
0.7-1.6
C2H3FBr2 ............................................. ³
0.1-1.7
C2H3F2Br ............................................. ³
0.2-1.1
C2H4FBr .............................................. ³
0.07-0.1
C3HFBr6 .............................................. ³
0.3-1.5
C3HF2Br5 ............................................. ³
0.2-1.9
C3HF3Br4 ............................................. ³
0.3-1.8
C3HF4Br3 ............................................. ³
0.5-2.2
C3HF5Br2 ............................................. ³
0.9-2.0
C3HF6Br .............................................. ³
0.7-3.3
C3H2FBR5 ............................................. ³
0.1-1.9
C3H2F2BR4 ............................................ ³
0.2-2.1
C3H2F3Br3 ............................................ ³
0.2-5.6
C3H2F4Br2 ............................................ ³
0.3-7.5
C3H2F5BR ............................................. ³
0.9-1.4
C3H3FBR4 ............................................. ³
0.08-1.9
C3H3F2Br3 ............................................ ³
0.1-3.1
C3H3F3Br2 ............................................ ³
0.1-2.5
C3H3F4Br ............................................. ³
0.3-4.4
C3H4FBr3 ............................................. ³
0.03-0.3
C3H4F2Br2 ............................................ ³
0.1-1.0
C3H4F3Br ............................................. ³
0.07-0.8
C3H5FBr2 ............................................. ³
0.04-0.4
C3H5F2Br ............................................. ³
0.07-0.8
C3H6FB ............................................... ³
0.02-0.7
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Appendix B to Subpart A-Class II Controlled Substances
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
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ODP
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³
CHFC12-Dichlorofluoromethane ³
(HCFC-21) ............................................ ³
[res.]
CHF2C1-Chlorodifluoromethane ³
(HCFC-22) ............................................ ³
0.05
CH2FC1-Chlorofluoromethane ³
(HCFC-31) ............................................ ³
[res.]
C2HFC14- ³
(HCFC-121) ........................................... ³
[res.]
C2HF2C13- ³
(HCFC-122) ........................................... ³
[res.]
C2HF3C12- ³
(HCFC-123) ........................................... ³
0.02
C2HF4C1- ³
(HCFC-124) ........................................... ³
0.02
C2H2FC13- ³
(HCFC-131) ........................................... ³
[res.]
C2H2F2C12- ³
(HCFC-132b) .......................................... ³
[res.]
C2H2F3C1- ³
(HCFC-133a) .......................................... ³
[res.]
C2H3FC12- ³
(HCFC-141b) .......................................... ³
0.12
C2H3F2C1- ³
(HCFC-142b) .......................................... ³
0.06
C3HFC16- ³
(HCFC-221) ........................................... ³
[res.]
C3HF2C15- ³
(HCFC-222) ........................................... ³
[res.]
C3HF3C14- ³
(HCFC-223) ........................................... ³
[res.]
C3HF4C13- ³
(HCFC-224) ........................................... ³
[res.]
C3HF5C12- ³
(HCFC-225ca) ......................................... ³
[res.]
C3HF5C12 ³
(HCFC-225cb) ......................................... ³
[res.]
C3HF6C1- ³
(HCFC-226) ........................................... ³
[res.]
C3H2FC15- ³
(HCFC-231) ........................................... ³
[res.]
C3H2F2C14- ³
(HCFC-232) ........................................... ³
[res.]
C3H2F3C13- ³
(HCFC-233) ........................................... ³
[res.]
C3H2F4C12- ³
(HCFC-234) ........................................... ³
[res.]
C3H2F5C1- ³
(HCFC-235) ........................................... ³
[res.]
C3H3FC14- ³
(HCFC-241) ........................................... ³
[res.]
C3H3F2C13- ³
(HCFC-242) ........................................... ³
[res.]
C3H3F3C12- ³
(HCFC-243) ........................................... ³
[res.]
C3H3F4C1- ³
(HCFC-244) ........................................... ³
[res.]
C3H4FC13- ³
(HCFC-251) ........................................... ³
[res.]
C3H4F2C12- ³
(HCFC-252) ........................................... ³
[res.]
C3H4F3C1- ³
(HCFC-253) ........................................... ³
[res.]
C3H5FC12- ³
(HCFC-261) ........................................... ³
[res.]
C3H5F2C1- ³
(HCFC-262) ........................................... ³
[res.]
C3H6FC1- ³
(HCFC-271) ........................................... ³
[res.]
All isomers of the above chemicals ³
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Appendix C to Subpart A-Annex 1-Parties to the Montreal Protocol:
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Foreign state ³ Montreal ³ London
³ Copenhagen
³ protocol ³ amendments
³ amendments
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³ ³
³
Algeria ................ ³ X ³ X
³
Antigua and Barbuda .... ³ X ³ X
³ X
Argentina .............. ³ X ³ X
³
Australia .............. ³ X ³ X
³
Austria ................ ³ X ³ X
³
Bahamas ................ ³ X ³ X
³ X
Bahrain ................ ³ X ³ X
³
Bangladesh ............. ³ X ³
³
Barbados ............... ³ X ³
³
Belarus ................ ³ X ³
³
Belgium ................ ³ X ³ X
³
Benin .................. ³ X ³
³
Bosnia and Herzegovina . ³ X ³
³
Botswana ............... ³ X ³
³
Brazil ................. ³ X ³ X
³
Burnei ................. ³ X ³
³
Bulgaria ............... ³ X ³
³
Burkina Faso ........... ³ X ³
³
Cameroon ............... ³ X ³ X
³
Canada ................. ³ X ³ X
³
Central African Republic ³ X ³
³
Chile .................. ³ X ³ X
³
China .................. ³ X ³ X
³
Costa Rica ............. ³ X ³
³
Cote Ivoire ............ ³ X ³
³
Croatia ................ ³ X ³
³
Cuba ................... ³ X ³
³
Cyprus ................. ³ X ³
³
Czech Republic ......... ³ X ³
³
Denmark ................ ³ X ³ X
³
Dominica ............... ³ X ³ X
³
Dominican Republic ..... ³ X ³
³
Ecuador ................ ³ X ³ X
³
Egypt .................. ³ X ³ X
³
El Salvador ............ ³ X ³
³
European E.C. .......... ³ X ³ X
³
Fiji ................... ³ X ³
³
Finland ................ ³ X ³ X
³
France ................. ³ X ³ X
³
Gambia ................. ³ X ³
³
Germany ................ ³ X ³ X
³
Ghana .................. ³ X ³ X
³
Greece ................. ³ X ³ X
³
Grenada ................ ³ X ³
³
Guatemala .............. ³ X ³
³
Guinea ................. ³ X ³ X
³
Hungary ................ ³ X ³
³
Iceland ................ ³ X ³ X
³
India .................. ³ X ³ X
³
Indonesia .............. ³ X ³ X
³
Iran ................... ³ X ³
³
Ireland ................ ³ X ³ X
³
Israel ................. ³ X ³ X
³
Italy .................. ³ X ³ X
³
Jamaica ................ ³ X ³ X
³
Japan .................. ³ X ³ X
³
Jordan ................. ³ X ³
³
Kenya .................. ³ X ³
³
Kiribati ............... ³ X ³
³
Korea, Republic of ..... ³ X ³ X
³
Kuwait ................. ³ X ³
³
Lebanon ................ ³ X ³ X
³
Libya .................. ³ X ³
³
Liechtenstein .......... ³ X ³
³
Luxembourg ............. ³ X ³ X
³
Malawi ................. ³ X ³
³
Malaysia ............... ³ X ³ X
³ X
Maldives ............... ³ X ³ X
³
Malta .................. ³ X ³
³
Marshall Islands ....... ³ X ³ X
³ X
Mauritius .............. ³ X ³ X
³
Mexico ................. ³ X ³ X
³
Monaco ................. ³ X ³ X
³
Namibia ................ ³ X ³
³
Netherlands ............ ³ X ³ X
³
New Zealand ............ ³ X ³ X
³ X
Nicaragua .............. ³ X ³
³
Niger .................. ³ X ³
³
Nigeria ................ ³ X ³
³
Norway ................. ³ X ³ X
³ X
Pakistan ............... ³ X ³ X
³
Panama ................. ³ X ³
³
Papua New Guinea ....... ³ X ³ X
³
Paraguay ............... ³ X ³ X
³
Peru ................... ³ X ³ X
³
Philippines ............ ³ X ³ X
³
Poland ................. ³ X ³
³
Portugal ............... ³ X ³ X
³
Romania ................ ³ X ³ X
³
Russian Federation ..... ³ X ³ X
³
Saint Kitts and Nevis .. ³ X ³
³
Samoa .................. ³ X ³
³
Saudi Arabia ........... ³ X ³ X
³
Senegal ................ ³ X ³ X
³
Seychelles ............. ³ X ³ X
³
Singapore .............. ³ X ³ X
³
Slovenia ............... ³ X ³ X
³
Solomon Islands ........ ³ X ³ X
³
South Africa ........... ³ X ³ X
³
Spain .................. ³ X ³ X
³
Sri Lanka .............. ³ X ³ X
³
Sudan .................. ³ X ³
³
Swaziland .............. ³ X ³
³
Sweden ................. ³ X ³ X
³ X
Switzerland ............ ³ X ³ X
³
Syrian Arab Republic ... ³ X ³
³
Tanzania ............... ³ X ³ X
³
Thailand ............... ³ X ³ X
³
Togo ................... ³ X ³
³
Trinidad and Tobago .... ³ X ³
³
Tunisia ................ ³ X ³ X
³
Turkey ................. ³ X ³
³
Tuvalu ................. ³ X ³
³
Uganda ................. ³ X ³
³
Ukranian SSR ........... ³ X ³
³
United Arab Emirates ... ³ X ³
³
United Kingdom ......... ³ X ³ X
³
United States .......... ³ X ³ X
³
Uruguay ................ ³ X ³
³
Uzbekistan ............. ³ X ³
³
Venezuela .............. ³ X ³ X
³
Zambia ................. ³ X ³
³
Zimbabwe ............... ³ X ³
³
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Appendix C to Subpart A, {1}-Annex 2-Nations Complying With,
but not Parties to, the Protocol: Colombia
³ {1} Regarding Taiwan, see preamble discussion VI
(Trade
³Restrictions)
Appendix D to Subpart A-Harmonized Tariff Schedule
Description of Products that May Contain Controlled Substances
in Appendix A, Class I Groups I and II
This Appendix is based on information provided by the Ozone
Secretariat of the United Nations Ozone Environment Programme.
The Appendix lists available U.S. harmonized tariff schedule
codes identifying headings and subheadings for Annex D products
that may contain controlled substances.
The Harmonized Tariff Schedule of the United States uses
a enumeration system to identify products imported and exported
to and from the U.S. This system relies on a four digit heading,
a four digit subheading and additional two digit statistical
suffix to characterize products. The United States uses the
suffix for its own statistical records and analyses. This Appendix
lists only headings and subheadings.
While some can be readily associated with harmonized system
codes, many products cannot be tied to HS classifications unless
their exact composition and the presentation are known. It should
be noted that the specified HS classifications represent the
most likely headings and subheadings which may contain substances
controlled by the Montreal Protocol. The codes given should
only be used as a starting point; further verification is needed
to ascertain whether or not the products actually contain
controlled
substances.
Category 1. Automobile and Truck Air Conditioning Units-(Whether
Incorporated in Vehicles or Not)
There are no separate code numbers for air conditioning units
specially used in automobiles and trucks. Although a code has
been proposed for car air conditioners, it is not yet officially
listed in the Harmonized Tariff Schedule (see category 2). The
following codes apply to the vehicles potentially containing
air conditioning units.
Heading/Subheading and Article Description
8701.(10, 20, 30, 90) {2}-Tractors
³ {2} At this time vehicle air conditioning units are
³considered components of vehicles or are classified
under
³the general category for air conditioning and
refrigeration
³equipment. Vehicles containing air conditioners are
therefore
³considered products containing controlled substances.
8702-Public-transport type passenger motor vehicles.
8702.10-With compression-ignition internal-combustion piston
engine (diesel or semi-diesel).
8702.90-Other.
8703-Motor cars and other motor vehicles principally designed
for the transport of persons (other than those of heading
8702), including station wagons and racing cars.
8703.10-Vehicles specially designed for traveling on snow; golf
carts and similar vehicles; includes subheading 10.10 and
10.50.
8703.(21, 22, 23, 24)-Other vehicles, with spark-ignition internal
combustion reciprocating engines.
8703.(31, 32, 33, 90)-Other vehicles, with compression-ignition
internal combustion piston engine (diesel or semi-diesel).
8704-Motor vehicles for the transport of goods.
8704.10.(10, 50)-Dumpers designed for off-highway use.
8704.(21, 22, 23)-Other, with compression-ignition internal
combustion piston engine (diesel or semi-diesel).
8704.(31, 32, 90)-Other, with compression-ignition internal
combustion piston engine.
8705-Special purpose motor vehicles, other than those principally
designed for the transport of persons or goods (for example,
wreckers, mobile cranes, fire fighting vehicles, concrete
mixers, road sweepers, spraying vehicles, mobile workshops,
mobile radiological units).
8705.10-Crane lorries.
8705.20-Mobile drilling derricks.
8705.30-Fire fighting vehicles.
8705.90-Other.
Category 2. Domestic and Commercial Refrigeration and Air
Conditioning/Heat
Pump Equipment
Domestic and commercial air conditioning and refrigeration
equipment fall primarily under headings 8415 and 8418.
Heading/Subheading and Article Description
8415-Air conditioning machines, comprising a motor-driven fan
and elements for changing the temperature and humidity, including
those machines in which the humidity cannot be separately
regulated.
8415.20-Proposed code for air conditioning of a kind used for
persons, in motor vehicles.
8415.10.00-A/C window or wall types, self-contained.
8415.81.00-Other, except parts, incorporating a refrigerating
unit and a valve for reversal of the cooling/heat cycle.
8415.82.00-Other, incorporating a refrigerating unit;
Self-contained
machines and remote condenser type air conditioners (not for
year-round use); Year-round units (for heating and cooling);
Air Conditioning evaporator coils; Dehumidifiers; and other
air conditioning machines incorporating a refrigerating unit.
8415.83-Automotive air conditioners.
8418-Refrigerators, freezers and other refrigerating or freezing
equipment, electric or other; heat pumps, other than air
conditioning
machines of heading 8415; parts thereof.
8418.10.00-Combined refrigerator-freezers, fitted with separate
external doors.
8418.21.00-Refrigerators, household type, compression type.
8418.22.00-Absorption type, electrical.
8418.29.00-Other.
8418.30.00-Freezers of the chest type.
8418.40-Freezers of the upright type.
8418.50.0040-Other refrigerating or freezing chests, cabinets,
display counters, showcases and similar refrigerating or freezing
furniture.
8418.61.00-Other refrigerating or freezing equipment; heat pumps.
8418.69-Other Icemaking machines; drinking water coolers, self-
contained; soda fountain and beer dispensing equipment;
centrifugal
liquid chilling refrigerating units; absorption liquid chilling
units; reciprocating liquid chilling units; and other
refrigerating
or freezing equipment (household or other).
8479.89.10-Dehumidifiers (other than those under 8415 or 8424
classified as ``machines and mechanical appliances having
individual functions, not specified or included elsewhere'').
Category 3. Aerosol Products
An array of different products use controlled substances
as aerosols and in aerosol applications. Not all aerosol
applications
use controlled substances, however. The codes given below represent
the most likely classifications for products containing controlled
substances. The product codes listed include:{3}
³ {3} Other categories of products that may contain
³controlled substances are listed below. EPA is
currently
³working to match them with appropriate codes. They
include:
³coatings and electronic equipment (e.g., electrical
motors),
³coatings or cleaning fluids for aircraft maintenance,
³mold release agents (e.g. for production of plastic or
³elastomeric materials), water and oil repellant
(potentially
³under HS 3402), spray undercoats (potentially under
``paints
³and varnishes''), spot removers, brake cleaners, safety
³sprays (e.g., mace cans), animal repellant, noise horns
³(e.g., for use on boats), weld inspection developers,
³freezants, gum removers, intruder alarms, tire
inflators,
³dusters (for electronic and non-electronic
applications),
³spray shoe polish, and suede protectors.
Varnishes.
Perfumes.
Preparations for use on hair.
Preparations for oral and dental hygiene.
Shaving preparations.
Personal deodorants, bath preparations.
Prepared room deodorizers.
Soaps.
Lubricants.
Polishes and creams.
Explosives.
Insecticides, fungicides, herbicides, disinfectants.
Arms and ammunition.
Household products such as footwear or leather polishes.
Other miscellaneous products.
Heading/Subheading and Article Description
3208-Paints and varnishes {4} (including enamels and lacquers)
based on synthetic polymers of chemically modified natural
polymers, dispersed or dissolved in a non-aqueous medium.
³ {4} Although paints do not generally use contain
controlled
³substances, some varnishes use CFC 113 and 1,1,1,
trichlorethane
³as solvents.
3208.10-Based on polyesters.
3208.20-Based on acrylic or vinyl polymers.
3208.90-Other.
3209-Paints and varnishes (including enamels and lacquers) based
on synthetic polymers or chemically modified natural polymers,
dispersed or dissolved in a an aqueous medium.
3209.10-Based on acrylic or vinyl polymers.
3209.90-Other.
3210.00-Other paints and varnishes (including enamels, lacquers
and distempers) and prepared water pigments of a kind used
for finishing leather.
3212.90-Dyes and other coloring matter put up in forms or packings
for retail sale.
3303.00-Perfumes and toilet waters.
3304.30-Manicure or pedicure preparations.
3305.10-Shampoos.
3305.20-Preparations for permanent waving or straightening.
3305.30-Hair lacquers.
3305.90-Other hair preparations.
3306.10-Dentrifices.
3306.90-Other dental (this may include breath sprays).
3307.10-Pre-shave, shaving or aftershave preparations.
3307.20-Personal deodorants and antiperspirants.
3307.30-Perfumed bath salts and other bath preparations.
3307.49 Other (this may include preparations for perfuming or
deodorizing rooms, including odoriferous preparations used
during religious rites, whether or not perfumed or having
disinfectant properties).
3307.90-Other (this may include depilatory products and other
perfumery, cosmetic or toilet preparations, not elsewhere
specified or included).
3403-Lubricating preparations (including cuttingoil preparations,
bolt or nut release preparations, anti-rust or anti-corrosion
preparations and mould release preparations, based on
lubricants),
and preparations of a kind used for the oil or grease treatment
of textile materials, leather, fur skins or other materials,
but excluding preparations containing, as basic constituents,
70 percent or more by weight of petroleum oils or of oils
obtained from bituminous minerals.
3402-Organic surface-active agents (other than soap); surface-
active preparations, washing preparations and cleaning
operations,
whether or not containing soap, other than those of 3401.
3402.20-Preparations put up for retail sale.
3402.19-Other preparations containing petroleum oils or oils
obtained from bituminous minerals.
3403-Lubricating preparations consisting of mixtures containing
silicone greases or oils, as the case may be.
2710.00-Preparations not elsewhere specified or included,
containing
by weight 70 percent or more of petroleum oils or of oils
obtained from bituminous minerals, these oils being the basic
constituents of the preparations.
3403.11-Lubricants containing petroleum oils or oils obtained
from bituminous minerals used for preparations from the treatment
of textile materials, leather, fur skins or other materials.
3403.19-Other preparations containing petroleum oils or oils
obtained from bituminous minerals.
3405-Polishes and creams, for footwear, furniture, floors,
coachwork,
glass or metal, scouring pastes and powders and similar
preparations
excluding waxes of heading 3404.
3405.10-Polishes and creams for footwear or leather.
3405.20-Polishes for wooden furniture, floors or other woodwork.
36-Explosives.
3808-Insecticides, rodenticides, fungicides, herbicides, anti-
sprouting products and plant-growth regulators, disinfectants
and similar products, put up in forms or packings for retail
sale or as preparations or articles (for example, sulphur-
treated bands, wicks and candles, and fly papers).
3808.10-Insecticides.
3808.20-Fungicides.
3808.30-Herbicides, anti-sprouting products and plant growth
regulators.
3808.40-Disinfectants.
3808.90-Other insecticides, fungicides.
3809.10-Finishing agents, dye carriers to accelerate the dyeing
or fixing of dye-stuffs and other products and preparations
(for example, dressings and mordants) of a kind used in the
textile, paper, leather or like industries, not elsewhere
specified or included, with a basis of amylaceous substances.
3814-Organic composite solvents and thinners (not elsewhere
specified or included) and the prepared paint or varnish
removers.
3910-Silicones in primary forms.
9304-Other arms (for example, spring, air or gas guns and pistols,
truncheons), excluding those of heading No. 93.07. Thus, aerosol
spray cans containing tear gas may be classified under this
subheading.
0404.90-Products consisting of natural milk constituents, whether
or not containing added sugar or other sweetening matter,
not elsewhere specified or included.
1517.90-Edible mixtures or preparations of animal or vegetable
fats or oils or of fractions of different fats or oils of
this chapter, other than edible fats or oils or their fractions
of heading No. 15.16.
2106.90-Food preparations not elsewhere specified or included.
Category 4. Portable Fire Extinguishers
Heading/Subheading and Article Description
8424-Mechanical appliances (whether or not hand operated) for
projecting, dispersing, or spraying liquids or powders; fire
extinguishers whether or not charged, spray guns and similar
appliances; steam or sand blasting machines and similar jet
projecting machines.
8424.10-Fire extinguishers, whether or not charged.
Category 5. Insulation Boards, Panels and Pipe Covers
These goods have to be classified according to their composition
and presentation. For example, if the insulation materials are
made of polyurethane, polystyrene, polyolefin and phenolic
plastics,
then they may be classified Chapter 39, for ``Plastics and articles
thereof''. The exact description of the products at issue is
necessary before a classification can be given.{5}
³ {5} This category may include insulating board for
³building panels and windows and doors. It also includes
³rigid appliance insulation for pipes, tanks, trucks,
³trailers, containers, train cars & ships,
refrigerators,
³freezers, beverage vending machines, bulk beverage
dispensers,
³water coolers and heaters and ice machines.
Heading/Subheading and Article Description
3917.21 to 3917.39-Tubes, pipes and hoses of plastics.
3920.10 to 3920.99-Plates, sheets, film, foil and strip made
of plastics, noncellular and not reinforced, laminated, supported
or similarly combine with other materials.
3921.11 to 3921.90-Other plates, sheets, film, foil and strip,
made of plastics.
3925.90-Builders' ware made of plastics, not elsewhere specified
or included.
3926.90-Articles made of plastics, not elsewhere specified or
included.
Category 6. Pre-Polymers
According to the Explanatory Notes to the Harmonized Commodity
Description and Coding System, ``prepolymers are products which
are characterized by some repetition of monomer units although
they may contain unreacted monomers. Prepolymers are not normally
used as such but are intended to be transformed into higher
molecular weight polymers by further polymerization. Therefore
the term does not cover finished products, such as di-isobutylenes
or mixed polyethylene glycols with very low molecular weight.
Examples are epoxides based with epichlorohydrin, and polymeric
isocyanates.''
Heading/Subheading and Article Description
3901-Pre-polymers based on ethylene (in primary forms).
3902-Pre-polymers based on propylene or other olefins (in primary
forms).
3903, 3907, 3909-Pre-polymers based on styrene (in primary forms),
epoxide and phenols.
Appendix E to Subpart A-Article 5 Parties
Algeria, Antigua and Barbuda, Argentina, Bahrain, Bangladesh,
Barbados, Benin, Botswana, Brazil, Burkina Faso, Cameroon, Central
African Republic, Chile, China, Costa Rica, Cote Ivoire, Croatia,
Cuba, Cyprus, Dominica, Dominican Republic, Ecuador, Egypt,
El Salvador, Fiji, Gambia, Ghana, Grenada, Guatemala, Guinea,
India, Indonesia, Iran, Jamaica, Jordan, Kenya, Kiribati, Lebanon,
Libya, Malawi, Malasia, Maldives, Marshall Islands, Mauritius,
Mexico, Namibia, Nicaragua, Niger, Nigeria, Pakistan, Panama,
Papua New Guinea, Paraguay, Peru, Philippines, Romania, Saint
Kitts and Nevis, Samoa, Senegal, Seychelles, Slovenia, Sri Lanka,
Sudan, Swaziland, Syrian Arab Republic, Tanzania, Thailand,
Togo, Trinidad and Tobago, Tunisia, Turkey, Tuvalu, Uganda,
Uruguay, Venezuela, Zambia, Zimbabwe.
Appendix F to Subpart A-Listing of Ozone Depleting Chemicals
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÂÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Controlled substance ³ ODP ³ AT
L ³ CLP ³ BLP
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÅÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
³ ³
³ ³
A. Class I 1. Group I: ³ ³
³ ³
CFC13-Trichlorofluoromethane ³ 1.0 ³
60.0 ³ 1.0 ³ 0.00
(CFC-11). ³ ³
³ ³
CF2C12-Dichlorodifluoromethane ³ 1.0 ³
120.0 ³ 1.5 ³ 0.00
(CFC-12). ³ ³
³ ³
C2F3C13-Trichlorotrifluoroethane ³ 0.8 ³
90.0 ³ 1.11 ³ 0.00
(CFC-113). ³ ³
³ ³
C2F4C12- ³ 1.0 ³
200.00 ³ 1.8 ³ 0.00
Dichlorotetrafluoroethane (CFC- ³ ³
³ ³
114). ³ ³
³ ³
C2F5- ³ 0.6 ³
400.0 ³ 2.0 ³ 0.00
C1Monochloropentafluoroethane ³ ³
³ ³
(CFC-115). ³ ³
³ ³
All isomers of the above chemicals ³ ³
³ ³
[reserved] ³ ³
³ ³
2. Group II: ³ ³
³ ³
CF2 C1Br- ³ 3.0 ³
12 ³ 0.06 ³ 0.13
Bromochlorodifluoromethane ³ ³
³ ³
(Halon-1211). ³ ³
³ ³
³ -18 ³
-.08 ³ -.03 ³
CF3 Br-Bromotrifluoromethane ³ 10.0 ³
72 ³ 0.00 ³ 1.00
(Halon-1301). ³ ³
³ ³
³ -107 ³
³ ³
C2F4 Br2 ³ 6.0 ³
23 ³ 0.00 ³ 0.30
Dibromotetrafluoroethane (Halon ³ ³
³ ³
-2402). ³ ³
³ ³
³ -28 ³
³ -.37 ³
All isomers of the above chemicals ³ ³
³ ³
[reserved] ³ ³
³ ³
3. Group III: ³ ³
³ ³
CF3C1-Chlorotrifluoromethane ³ 1.0 ³
120 ³ 0.88 ³ 0.00
(CFC-13). ³ ³
³ ³
³ -250 ³
-1.83 ³ ³
C2FC15-(CFC-111) ............... ³ 1.0 ³
60 ³ 1.04 ³ 0.00
³ -90 ³
-1.56 ³ ³
C2F2C14-(CFC-112) .............. ³ 1.0 ³
60 ³ 0.90 ³ 0.00
³ -90 ³
-1.35 ³ ³
C3FC17-(CFC-211) ............... ³ 1.0 ³
100 ³ 1.76 ³ 0.00
³ -500 ³
-8.81 ³ ³
C3F2C16-(CFC-212) .............. ³ 1.0 ³
100 ³ 1.60 ³ 0.00
³ -500 ³
-7.98 ³ ³
C3F3C15-(CFC-213) .............. ³ 1.0 ³
100 ³ 1.41 ³ 0.00
³ -500 ³
-7.06 ³ ³
C3F4C14-(CFC-214) .............. ³ 1.0 ³
100 ³ 1.20 ³ 0.00
³ -500 ³
-6.01 ³ ³
C3F5C13-(CFC-215) .............. ³ 1.0 ³
100 ³ 0.96 ³ 0.00
³ -500 ³
-4.82 ³ ³
C3F6C12-(CFC-216) .............. ³ 1.0 ³
100 ³ 0.69 ³ 0.00
³ -500 ³
-3.45 ³ ³
C3F7C1-(CFC-217) ............... ³ 1.0 ³
100 ³ 0.37 ³ 0.00
³ -500 ³
-1.87 ³ ³
All isomers of the above chemicals ³ ³
³ ³
[reserved] ³ ³
³ ³
4. Group IV: ³ ³
³ ³
CC14-Carbon Tetrachloride ...... ³ 1.1 ³
50.0 ³ 1.0 ³ 0.00
5. Group V: ³ ³
³ ³
C2H3C13-1,1,1 Trichloroethane ³ 0.1 ³
6.3 ³ 0.11 ³ 0.00
(Methyl chloroform). ³ ³
³ ³
All isomers of the above chemical ³ ³
³ ³
except 1,1,2-trichloroethane [ ³ ³
³ ³
reserved] ³ ³
³ ³
6. Group VI: ³ ³
³ ³
CH3Br-Bromomethane (Methyl ³ 0.7 ³
³ [reserved] ³
Bromide). ³ ³
³ ³
7. Group VII: ³ ³
³ ³
CHFBR2- ........................ ³ 1.00 ³
³ [reserved] ³
CHF2Br(HBFC-22B1) .............. ³ 0.74 ³
³ [reserved] ³
CH2FBr ......................... ³ 0.73 ³
³ [reserved] ³
C2HFBr4 ........................ ³ 0.3 - 0.8 ³
³ [reserved] ³
C2HF2Br3 ....................... ³ 0.5 - 1.8 ³
³ [reserved] ³
C2HF3Br2 ....................... ³ 0.4 - 1.6 ³
³ [reserved] ³
C2HF4Br ........................ ³ 0.7 - 1.2 ³
³ [reserved] ³
C2H2FBr3 ....................... ³ 0.1 - 1.1 ³
³ [reserved] ³
C2H2F2Br2 ...................... ³ 0.2 - 1.5 ³
³ [reserved] ³
C2H2F3Br ....................... ³ 0.7 - 1.6 ³
³ [reserved] ³
C2H3FBr2 ....................... ³ 0.1 - 1.7 ³
³ [reserved] ³
C2H3F2Br ....................... ³ 0.2 - 1.1 ³
³ [reserved] ³
C2H4 Br ........................ ³ 0.07 - 0.1 ³
³ [reserved] ³
C3HFBr6 ........................ ³ 0.3 - 1.5 ³
³ [reserved] ³
C3HF2Br5 ....................... ³ 0.2 - 1.9 ³
³ [reserved] ³
C3HF3Br4 ....................... ³ 0.3 - 1.8 ³
³ [reserved] ³
C3HF4Br3 ....................... ³ 0.5 - 2.2 ³
³ [reserved] ³
C3HF5Br2 ....................... ³ 0.9 - 2.0 ³
³ [reserved] ³
C3HF6Br ........................ ³ 0.7 - 3.3 ³
³ [reserved] ³
C3H2FBR5 ....................... ³ 0.1 - 1.9 ³
³ [reserved] ³
C3H2F2BR4 ...................... ³ 0.2 - 2.1 ³
³ [reserved] ³
C3H2F3Br3 ...................... ³ 0.2 - 5.6 ³
³ [reserved] ³
C3H2F4Br2 ...................... ³ 0.3 - 7.5 ³
³ [reserved] ³
C3H2F5BR ....................... ³ 0.9 - 1.4 ³
³ [reserved] ³
C3H3FBR4 ....................... ³ 0.08 - 1.9 ³
³ [reserved] ³
C3H3F2Br3 ...................... ³ 0.1 - 3.1 ³
³ [reserved] ³
C3H3F3Br2 ...................... ³ 0.1 - 2.5 ³
³ [reserved] ³
C3H3F4Br ....................... ³ 0.3 - 4.4 ³
³ [reserved] ³
C3H4FBr3 ....................... ³ 0.03 - 0.3 ³
³ [reserved] ³
C3H4F2Br2 ...................... ³ 0.1 - 1.0 ³
³ [reserved] ³
C3H4F3Br ....................... ³ 0.07 - 0.8 ³
³ [reserved] ³
C3H5FBr2 ....................... ³ 0.04 - 0.4 ³
³ [reserved] ³
C3H5F2Br ....................... ³ 0.07 - 0.8 ³
³ [reserved] ³
C3H6FB ......................... ³ 0.02 - 0.7 ³
³ [reserved] ³
B. Class II: ³ ³
³ ³
CHFC12-DiChlorofluoromethane ³ [res.] ³
2.1 ³ 0.03 ³ 0.00
(HCFC-21). ³ ³
³ ³
CHF2C1-Chlorodifluoromethane ³ 0.05 ³
15.3 ³ 0.14 ³ 0.00
(HCFC-22). ³ ³
³ ³
CH2FC1-Chlorofluoromethane (HCFC ³ [res.] ³
1.44 ³ 0.02 ³ 0.00
-31). ³ ³
³ ³
C2HFC14-(HCFC-121) ............. ³ [res.] ³
0.6 ³ 0.01 ³ 0.00
C2HF2C13-(HCFC-122) ............ ³ [res.] ³
1.4 ³ 0.02 ³ 0.00
C2HF3C12-(HCFC-123) ............ ³ 0.02 ³
1.6 ³ 0.016 ³ 0.00
C2HF4C1-(HCFC-124) ............. ³ 0.02 ³
6.6 ³ 0.04 ³ 0.00
C2H2FC13-(HCFC-131) ............ ³ [res.] ³
4.0 ³ 0.06 ³ 0.00
C2H2F2C12-(HCFC-132b) .......... ³ [res.] ³
4.2 ³ 0.05 ³ 0.00
C2H2F3C1-(HCFC-133a) ........... ³ [res.] ³
4.8 ³ 0.03 ³ 0.00
C2H3FC12-(HCFC-141b) ........... ³ 0.12 ³
10.0 ³ 0.10 ³ 0.00
C2H3F2C1-(HCFC-142b) ........... ³ 0.06 ³
19.1 ³ 0.14 ³ 0.00
C3HFC16-(HCFC-221) ............. ³ [reserved] ³
³ ³ 0.00
C3HF2C15-(HCFC-222) ............ ³ [reserved] ³
³ ³ 0.00
C3HF3C14-(HCFC-223) ............ ³ [reserved] ³
³ ³ 0.00
C3HF4C13-(HCFC-224) ............ ³ [reserved] ³
³ ³ 0.00
C3HF5C12-(HCFC-225ca) .......... ³ [res.] ³
1.5 ³ 0.01 ³ 0.00
³ -1.7 ³
³ ³
(HCFC-225Cb) ................. ³ [res.] ³
5.1 ³ 0.04 ³ 0.00
C3HF6C1-(HCFC-226) ............. ³ [reserved] ³
³ ³ 0.00
C3H2FC15-(HCFC-231) ............ ³ [reserved] ³
³ ³ 0.00
C3H2F2C14-(HCFC-232) ........... ³ [reserved] ³
³ ³ 0.00
C3H2F3C13-(HCFC-233) ........... ³ [reserved] ³
³ ³ 0.00
C3H2F4C12-(HCFC-234) ........... ³ [reserved] ³
³ ³ 0.00
C3H2F5C1-(HCFC-235) ............ ³ [reserved] ³
³ ³ 0.00
C3H3FC14-(HCFC-241) ............ ³ [reserved] ³
³ ³ 0.00
C3H3F2C13-(HCFC-242) ........... ³ [reserved] ³
³ ³ 0.00
C3H3F3C12-(HCFC-243) ........... ³ [reserved] ³
³ ³ 0.00
C3H3F4C1-(HCFC-244) ............ ³ [reserved] ³
³ ³ 0.00
C3H4FC13-(HCFC-251) ............ ³ [reserved] ³
³ ³ 0.00
C3H4F2C12-(HCFC-252) ........... ³ [reserved] ³
³ ³ 0.00
C3H4F3C1-(HCFC-253) ............ ³ [reserved] ³
³ ³ 0.00
C3H5FC12-(HCFC-261) ............ ³ [reserved] ³
³ ³ 0.00
C2H5F2C1-(HCFC-262) ............ ³ [reserved] ³
³ ³ 0.00
C3H6FC1-(HCFC-271) ............. ³ [reserved] ³
³ ³ 0.00
All isomers of the above chemicals ³ ³
³ ³
[reserved] ³ ³
³ ³
[FR Doc. 93-29886 Filed 12-3-93; 4:29 pm]
BILLING CODE 6560-50-P
The Contents entry for this article reads as follows:
Air programs:
Stratospheric ozone protection-
Ozone-depleting substances; accelerated phase-out schedule,
65018
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Ozone Layer Depletion - Regulatory Programs
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