[Federal Register Volume 68, Number 1 (Thursday, January 2, 2003)]
[Rules and Regulations]
[Pages 238-254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32986]
[[Page 237]]
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Part VI
Environmental Protection Agency
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40 CFR Part 82
Protection of Stratospheric Ozone: Process for Exempting Quarantine and
Preshipment Applications of Methyl Bromide; Final Rule
Federal Register / Vol. 68, No. 1 / Thursday, January 2, 2003 / Rules
and Regulations
[[Page 238]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-7434-1]
Protection of Stratospheric Ozone: Process for Exempting
Quarantine and Preshipment Applications of Methyl Bromide
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: With this rulemaking, EPA is taking final action to amend the
accelerated phaseout regulations that govern the production, import,
export, transformation and destruction of substances that deplete the
ozone layer under the authority of Title VI of the Clean Air Act
Amendments of 1990 (CAA or the Act). Today's amendments incorporate an
exemption permitted under the Montreal Protocol on Substances that
Deplete the Ozone Layer (Protocol) and required by changes in Title VI
of the CAA. Specifically, EPA is creating an exemption from the
consumption and production phaseout for quantities of Class I, Group VI
controlled substances (methyl bromide) that are used for quarantine and
preshipment.
DATES: This rule is effective January 1, 2003.
ADDRESSES: Materials relevant to this rulemaking are contained in
Docket No. A-2000-24. The Docket is located at EPA West, 1301
Constitution Avenue NW., Room B108, Mail Code 6102T, Washington, DC
20460, Phone: (202)-566-1742, Fax: (202)-566-1741. The materials may be
inspected from 8:30 a.m. until 4:30 p.m. Monday through Friday. A
reasonable fee may be charged by EPA for copying docket materials.
FOR FURTHER INFORMATION CONTACT: Kate Choban, U.S. Environmental
Protection Agency, Global Programs Division (6205J), 1200 Pennsylvania
Ave., NW., Washington, DC, 20460, 202-564-3524.
Table of Contents
I. What is the Background of the Phaseout Regulations for Ozone-
Depleting Substances?
II. What is the Background for Today's Action?
III. What is Methyl Bromide?
IV. What are Examples of Quarantine and Preshipment Uses of Methyl
Bromide?
V. What is the Legal Authority for Exempting the Production and
Import of Methyl Bromide for Use in Quarantine and Preshipment
Applications?
VI. What are the Definitions of Quarantine and Preshipment
Applications?
A. Are there clarifications regarding trade within the U.S.?
B. Are there additional qualifiers associated with the
definition of preshipment applications?
C. Are there additional qualifiers associated with the
definition of quarantine applications?
D. How does the exemption of quarantine applications apply to
commodities issued ``phytosanitary certificates''?
E. How do these definitions of preshipment and quarantine
applications apply to food sanitation?
F. How do these definitions apply to ``propagative material''?
G. How do these definitions apply to in-transit applications?
VII. What is the Process for Exempting Methyl Bromide for Use in
Quarantine and Preshipment Applications?
A. What recordkeeping and reporting must producers and importers
perform?
B. Are methyl bromide applicators required to report?
C. Are distributors required to report?
D. What about methyl bromide exported for quarantine and
preshipment applications?
E. Will there be a FIFRA pesticide label change?
VIII. What were Other Considerations and Situations on which EPA
Sought or Received Comment?
A. Methyl bromide is the only feasible treatment option.
B. Has the Agency Considered Definitions Under the International
Plant Protection Convention (IPPC)?
C. What Action is the Agency Taking Regarding Prophylactic
Fumigation of U.S. Exports When the Fumigation Is Not Mandated by
Import Regulations?
D. What Action is the Agency Taking Regarding the Exclusion of
Specific Quarantine and Preshipment Applications From the Exemption
at Some Future Time?
IX. What are the Steps to Conform the U.S. Methyl Bromide Phaseout
Schedule and Exemptions to the Montreal Protocol and Amended Clean
Air Act?
X. Administrative Requirements
XI. Congressional Review
Entities potentially regulated by this action are those
associated with methyl bromide that is used for quarantine and
preshipment applications. In addition, this action potentially
regulates entities importing and exporting methyl bromide.
Potentially regulated categories and entities include:
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Category Examples of regulated entities
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Industry.......................... Producers, Importers and Exporters
of methyl bromide.
Distributors of methyl bromide used
for quarantine and preshipment.
Applicators of methyl bromide used
for quarantine and preshipment.
Commodity Owners or Shippers of
Goods that request the quarantine
or preshipment application of
methyl bromide in accordance with
official controls or requirements.
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The above table is not intended to be exhaustive, but rather
provides a guide for readers regarding entities likely to be regulated
by this action. This table lists the types of entities that EPA is now
aware could potentially be regulated by this action. Other types of
entities not listed in the table could also be regulated. To determine
whether your facility, company, business, organization, etc. is
regulated by this action, you should carefully examine the regulations
promulgated at 40 CFR part 82, subpart A. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
000000CONTACT section.
I. What Is the Background of the Phaseout Regulations for Ozone-
Depleting Substances?
The current regulatory requirements of the Stratospheric Ozone
Protection Program that limit production and consumption of ozone-
depleting substances were promulgated by the Environmental Protection
Agency (EPA or the Agency) in the Federal Register on December 20, 1994
(59 FR 65478), May 10, 1995 (60 FR 24970), August 4, 1998 (63 FR
41625), and October 5, 1998 (63 FR 53290). The regulatory program was
originally published in the Federal Register on August 12, 1988 (53 FR
30566), in response to the 1987 signing of the Montreal Protocol on
Substances that Deplete the Ozone Layer (Protocol).\1\ The U.S. was one
of the original signatories to the 1987 Montreal Protocol and the U.S.
ratified the Protocol on April 21, 1988. Congress then enacted, and
President Bush signed into law, the Clean Air Act Amendments of 1990
(CAA or the Act) that included Title VI on Stratospheric Ozone
Protection.
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\1\ Several revisions to the original 1988 rule were issued on
the following February 9, 1989 (54 FR 6376), April 3, 1989 (54 FR
13502), July 5, 1989 (54 FR 28062), July 12, 1989 (54 FR 29337),
February 13, 1990 (55 FR 5005), June 15, 1990 (55 FR 24490) and June
22, 1990 (55 FR 25812) July 30, 1992 (57 FR 33754), December 10,
1993 (58 FR 65018).
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Today's action amends the existing EPA regulations published under
Title VI of the CAA that govern the production and consumption of
ozone-depleting substances. Today's action establishes an exemption
from the methyl bromide production and import reduction and phaseout
schedule for quantities to be used for quarantine and preshipment
applications. Today's amendments are intended to implement requirements
of the Protocol and the CAA, including amendments to Title VI as
created by Section 764 of the 1999 Omnibus Consolidated and Emergency
[[Page 239]]
Supplemental Appropriations Act (Public Law 105-277, October 21, 1998)
(section 604(d)(5) of the Clean Air Act).
The requirements contained in the final rules published in the
Federal Register on December 20, 1994 and May 10, 1995 establish an
Allowance Program. The Allowance Program and its history are described
in the notice of proposed rulemaking (NPRM) published in the Federal
Register on November 10, 1994 (59 FR 56276). The control and the
phaseout of production and consumption of ozone-depleting substances,
as required under the Protocol and CAA, are accomplished through the
Allowance Program.
In developing the Allowance Program, EPA collected information on
the amounts of ozone-depleting substances produced, imported, exported,
transformed and destroyed within the United States for specific
baseline years for specific chemicals. This information was used to
establish the U.S. production and consumption ceilings for these
chemicals. The data were also used to assign company-specific
production and import rights to companies that were in most cases
producing or importing during the specific year of data collection. For
methyl bromide, 1991 was the baseline year used to establish the
ceiling and assign company-specific production and import rights.
Production or import rights are called ``allowances.'' Production
allowances and consumption allowances continue to exist for only one
specific class I controlled ozone-depleting substance--methyl bromide.
All other production or consumption of class I controlled substances is
prohibited under the Protocol and the CAA, save for a few exemptions.
For methyl bromide, the remaining schedule for the phaseout of
production and consumption allowances is as follows: 50 percent
reduction of baseline beginning January 29, 2001, 70 percent reduction
of baseline beginning January 1, 2003, and a 100 percent reduction of
baseline beginning January 1, 2005, with narrow exemptions for critical
uses and emergencies, as well as for quarantine and preshipment uses.
In the context of the regulatory program, the use of the term
consumption may be misleading. Consumption does not mean the ``use'' of
a controlled substance, but rather is defined as the formula:
consumption = production + imports--exports, of controlled substances
(Article 1 of the Protocol and section 601 of the CAA). Class I
controlled substances that were produced or imported through the
expenditure of allowances prior to their phaseout date can continue to
be used by industry and the public after that specific chemical's
phaseout under these regulations, unless otherwise precluded under
separate regulations.
The specific names and chemical formulas for the controlled ozone-
depleting substances in Groups of class I controlled substances are in
appendix A and appendix F in subpart A of 40 CFR part 82. The specific
names and chemical formulas for the class II controlled ozone-depleting
substances are in appendix B and appendix F in subpart A.
II. What Is the Background for Today's Action?
EPA published an interim final rule in the Federal Register on July
19, 2001 (66 FR 37752) to provide methyl bromide users in the United
States with an exemption to the phaseout of methyl bromide for
quarantine and preshipment applications. The interim final rule
solicited public comment on a number of issues related to EPA's
implementation of the Quarantine and Preshipment Exemption. Today's
action responds to public comment and finalizes the specifications for
the exemption.
III. What Is Methyl Bromide?
Methyl bromide is an odorless, colorless, toxic gas, which is used
as a broad-spectrum pesticide. Methyl bromide is used in the United
States and throughout the world as a fumigant to control a variety of
pests, such as insects, weeds, rodents, pathogens, and nematodes.
Additional characteristics and details about the uses of methyl bromide
can be found in the proposed rule published in the Federal Register on
March 18, 1993 (58 FR 15014) and the final rule published in the
Federal Register on December 10, 1993 (58 FR 65018). Information on
methyl bromide can be found at the following sites of the World Wide
Web: http://www.epa.gov/ozone/mbr/ and http://www.teap.org or by
contacting the Stratospheric Ozone Protection Hotline at 1-800-296-
1996.
IV. What Are Examples of Quarantine and Preshipment Uses of Methyl
Bromide?
An example of a quarantine application of methyl bromide is the
fumigation of a commodity, such as rice and spices, which are subject
to infestation by a specific and officially recognized quarantine pest,
such as the khapra beetle (Trogoderma granarium Everts) when the
fumigation is conducted before transport of the commodity to meet
official quarantine requirements (see discussion in part VI below). The
purpose of quarantine fumigation is to prevent the introduction of
specific quarantine pest(s) into a defined geographical area, such as
an importing country. An example of a preshipment use of methyl bromide
is the application to wheat immediately before shipment (see discussion
in part VI below) because of official phytosanitary requirements of the
destination country.
In 1998, the Methyl Bromide Technical Options Committee (MBTOC), a
sub-group under the independent advisory body of the Technical and
Economic Assessment Panel (TEAP) to the Montreal Protocol, published an
assessment that gives further details about uses of methyl bromide and
possible alternatives and substitutes for controlling pests. The MBTOC
and TEAP assessments can be found on the web at http://www.teap.org/html/methyl_bromide_reports.html and http://www.teap.org/.
V. What Is the Legal Authority for Exempting the Production and Import
of Methyl Bromide for Use in Quarantine and Preshipment Applications?
In Article 2H of the Montreal Protocol, which establishes the
phaseout schedule for methyl bromide for developed countries, paragraph
6 states that, ``[t]he calculated levels of consumption and production
under this Article shall not include the amounts used by the Party for
quarantine and pre-shipment applications.'' EPA notes that paragraph 6,
of Article 2H indicates that the exemption is to exclude from the
U.S.'s calculation of methyl bromide consumption and production the
amounts used by the U.S. for quarantine and preshipment applications.
In addition, Article 7 requires each Party to report on, ``the annual
amount used for quarantine and preshipment applications.'' Beyond the
critical uses allowed in Article 2H, Paragraph 5, quarantine and
preshipment uses are the only exemptions explicitly allowed for under
the Montreal Protocol.
In 1998 Congress added several provisions to the Clean Air Act
regarding methyl bromide including a provision title ``Sanitation and
Food Protection,'' which is related to the Protocol exemption for
quarantine and preshipment. This provision, which was codified as
section 604(d)(5) of the CAA, was added by section 764(b) of the 1999
Omnibus Consolidated and Emergency Supplemental Appropriations Act
(Public Law 105-277). Section 604(d)(5) says, ``To the extent
consistent with the Montreal Protocol's quarantine and
[[Page 240]]
preshipment provisions, the Administrator shall exempt the production,
importation, and consumption of methyl bromide to fumigate commodities
entering or leaving the United States or any State (or political
subdivision thereof) for purposes of compliance with Animal and Plant
Health Inspection Service requirements or with any international,
Federal, State or local sanitation or food protection standard.'' Prior
to Congressional passage of section 604(d)(5), the CAA did not provide
authority for creating such an exemption to the methyl bromide phaseout
schedule. In today's final regulation, EPA is implementing the express
language provided in Article 2H, paragraph 6, of the Protocol under the
authority provided by section 604(d)(5) of the CAA. EPA is also acting
in a manner consistent with, and to fulfill the obligations of, section
614(b) of the CAA. Section 614(b) of the CAA states that, ``[t]his
title as added by the Clean Air Act Amendments of 1990 shall be
construed, interpreted, and applied as a supplement to the terms and
conditions of the Montreal protocol, as provided in Article 2,
paragraph 11 thereof, and shall not be construed, interpreted, or
applied to abrogate the responsibilities or obligations of the United
States to implement fully the provisions of the Montreal Protocol. In
the case of a conflict between any provision of this title and any
provision of the Montreal Protocol, the more stringent provision shall
govern.''
EPA's interim final rule related to the process for exempting
quarantine and preshipment applications of methyl bromide, published in
the Federal Register on July 19, 2001 (66 FR 37752), defined quarantine
and preshipment applications as agreed by the Parties to the Montreal
Protocol in Decisions VII/5 and XI/12, respectively. EPA received ten
comments regarding our decision to adhere to the language of the
Parties' Decisions. All commenters stated that Decisions of the Parties
do not have the same force of law as the Protocol itself, its
amendments, or adjustments adopted by the Parties and, as such, EPA is
not bound to their language. The comments submitted to EPA in response
to the interim final rule echo a legal memorandum submitted to EPA by
the legal counsel of the Methyl Bromide Industry Panel at a July 1999
meeting. A more detailed discussion of the arguments made in this
memorandum can be found in the interim final rule published in the
Federal Register on July 19, 2001 (66 FR 37752).
EPA responded directly to the legal memorandum submitted by the
Methyl Bromide Industry Panel in the interim final rule. EPA has
reconsidered the issue as it was raised by the comments submitted in
response to the interim final rule and has concluded that its approach
reflects widely accepted principles of customary international law. The
provisions of the Vienna Convention on the Law of Treaties (VCLT), 8
International Legal Materials 679 (1969), that concern treaty
interpretation generally reflect customary international law. Paragraph
1 of Article 31 of the VCLT provides that a treaty ``shall be
interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of
its object and purpose.'' Paragraph 3 of Article 31 of the VCLT states,
``[t]here shall be taken into account, together with any context: * * *
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions.''
Decisions VI/11, VII/5, XI/12 and XI/13 constitute subsequent consensus
agreements among the Parties to the Montreal Protocol (including the
United States) regarding the interpretation and application of the
quarantine and preshipment provision of Article 2H. Therefore it is
appropriate for EPA, when determining what is consistent with the
``Montreal Protocol's quarantine and preshipment provisions,'' to take
into account the Decisions of the Parties.
Furthermore, in amending the CAA, Congress specifically cited the
plural ``quarantine and preshipment provisions.'' If Congress intended
for this phrase to be limited to the single provision in the Protocol
referencing quarantine and preshipment in Article 2H, and not the
subsequent Decisions between the Parties regarding interpretation or
application of the treaty, Congress would have presumably directed the
Agency to be consistent with the singular provision.
Precedents within the current regulations (40 CFR part 82)
demonstrate that the United States has routinely considered Decisions
that clarify and interpret obligations under the Montreal Protocol to
be authoritative and that such Decisions of the Parties are currently
implemented through regulations under the CAA. Examples of such
regulatory implementation of Decisions of the Parties include the
current U.S. definitions of ``controlled substance'' (based on Decision
IV/12) and ``essential use''. Additional examples of how U.S.
regulations incorporate Decisions by the Parties to the Protocol can be
found in the preamble of the interim final rule published in the
Federal Register on July 19, 2001 (66 FR 37752) and in 40 CFR part 82,
subpart A.
VI. What Are the Definitions of Quarantine and Preshipment
Applications?
In today's final action, EPA is defining quarantine applications
and preshipment applications, as agreed by the Parties to the Montreal
Protocol. The Parties to the Protocol agreed to the following
definition of ``quarantine applications'' in Decision VII/5:
``quarantine applications, with respect to methyl bromide, are
treatments to prevent the introduction, establishment and/or spread of
quarantine pests (including diseases), or to ensure their official
control, where: (i) Official control is that performed by, or
authorized by, a national plant, animal, or environmental protection or
health authority; (ii) quarantine pests are pests of potential
importance to the areas endangered thereby and not yet present there,
or present by not widely distributed and being officially controlled.''
The Parties to the Protocol first agreed to the following
definition for preshipment applications of methyl bromide in Decision
VI/11 and VII/5: ``preshipment applications are those treatments
applied directly preceding and in relation to export, to meet the
phytosanitary or sanitary requirements of the importing country or
existing phytosanitary or sanitary requirements of the exporting
country.'' At the 11th Meeting of the Parties in December 1999, the
Parties further clarified the intent of the term preshipment by
agreeing to the following definition in Decision XI/12: ``* * *
preshipment applications are those non-quarantine applications within
21 days prior to export to meet the official requirements of the
importing country or the existing official requirements of the
exporting country. Official requirements are those which are performed
by, or authorized by, a national plant, animal, environmental, health
or stored product authority.''
EPA adopted the above definition of preshipment applications in the
interim final rule and received nine related comments. All of the
commenters raised the concern that the 21-day limitation on treatments
to qualify as a preshipment application is unduly restrictive and
arbitrary. One commenter stated that the time restriction is unrelated
to the purpose of the preshipment exemption and that so long as a
treatment is done to meet the official non-quarantine requirements of
[[Page 241]]
the importing or exporting country it ought to qualify as a preshipment
application.
EPA believes that the incorporation of a time restriction within
the definition of preshipment application is necessary to meet the
purpose of this exemption as intended by the Parties to the Montreal
Protocol. The preshipment exemption applies to treatments of
commodities near the time of export to meet the official non-quarantine
requirements of the exporting or importing country. Eliminating the
time requirement would invite misuse of the exemption. With no
established time window, the argument could be made that a pre-plant
soil application of methyl bromide qualifies as a preshipment
application because the crop being cultivated would eventually be
exported from U.S. soil. By imposing a time restriction, Decision XI/12
of the Parties demonstrates that their intent was not to imbue the
preshipment exemption with a lifecycle-wide scope. The 21-day
restriction was agreed upon by the Parties (based on the advice of
global experts) as a reasonable time limitation for the preshipment
exemption. EPA has received no comment indicating that another time
limitation would be better justified and meet the intent of the Parties
in implementing the preshipment exemption.
In addition to the above, the definition of quarantine applications
is qualified by the scope of the exemption as stated in the CAA. As
passed by Congress, the CAA specifically applies the quarantine and
preshipment exemption to quantities of methyl bromide used to
``fumigate commodities entering or leaving the United States or any
State (or political subdivision thereof)* * *''(CAA section 504(d)(5)).
This language makes clear Congress's intent to apply the exemption only
where there is the transport of goods from one distinct locality to
another, and thus to prevent the potential for the geographic spread of
pests. As a result, today's action adds the following sentence to the
definition of quarantine applications: ``This definition excludes
treatments of commodities not entering or leaving the United States or
any State (or political subdivision thereof).'' Section III.D. further
discusses the uses of methyl bromide that are excluded from today's
exemption for quarantine applications.
With today's final action, EPA is defining quarantine applications
and preshipment applications as follows:
Quarantine applications, with respect to class I, Group VI
controlled substances, are treatments to prevent the introduction,
establishment and/or spread of quarantine pests (including diseases),
or to ensure their official control, where: (i) Official control is
that performed by, or authorized by, a national (including state,
tribal or local) plant, animal or environmental protection or health
authority; (ii) quarantine pests are pests of potential importance to
the areas endangered thereby and not yet present there, or present but
not widely distributed and being officially controlled. This definition
excludes treatments of commodities not entering or leaving the United
States or any State (or political subdivision thereof).
Preshipment applications, with respect to class I, Group VI
controlled substances, are those non-quarantine applications within 21
days prior to export to meet the official requirements of the importing
country or existing official requirements of the exporting country.
Official requirements are those which are performed by, or authorized
by, a national plant, animal, environmental, health or stored product
authority.
As specified in the above definitions, a quarantine application of
methyl bromide must be ``performed by, or authorized by, a national
(including state, tribal or local) plant, animal or environmental
protection, or health authority.'' In addition, as delineated in the
above definition, quarantine applications must be directed at
quarantine pests. Today's definition of preshipment applications is
limited to applications ``to meet the official requirements of the
importing country or existing official requirements of the exporting
country.'' The definition of preshipment applications specifies that
the phrase ``official requirements'' means ``those which are preformed
by, or authorized by, a national plant, animal, environmental, health
or stored product authority.''
A. Are There Clarifications Regarding Trade Within the U.S.?
The interim final rule interpreted ``quarantine applications'' as
including interstate and inter-county treatments required to control
quarantine pests. This interpretation is consistent with the Technical
and Economic Assessment Panel's (TEAP) recommendation that the Parties
of the Protocol interpret Decision VII/5 to include officially required
treatments for intra-country trade within the territory of the Party
and reconciles the language of the Montreal Protocol with section
604(d)(5) of the CAA on Sanitation and Food Protection, which refers to
international, Federal, state and local requirements.
In recognizing official state, county, tribal, and local quarantine
requirements, EPA's final rulemaking interprets the definition of
quarantine applications such that an intra-country quarantine treatment
required by state, county, tribal, or local plant, animal,
environmental, or health government authorities constitutes an official
control. Today's action adds parenthetically that ``national'' is meant
to include state, tribal or local authorities for purposes of the
definition of quarantine applications.
In contrast to the definition of quarantine applications, which
accommodates intra-country trade, the Protocol definition of
preshipment applications is specific to trade between countries because
of the phrase ``applications within 21 days prior to export.'' This
distinction was noted in the interim final rule and EPA received no
comment. Therefore, for the purposes of today's final action, the
exemption for preshipment applications remains limited to the movement
of goods from the U.S. to another country, and does not include
movement of goods within the U.S.
B. Are There Additional Qualifiers Associated With the Definition of
Preshipment Applications?
The interim final rule noted, in agreement with the 1998 TEAP
interim explanatory notes for the Parties, the focus within the
definition of ``preshipment applications'' on applications to meet
``official requirements'' and not ``informal or purely contractual or
commercial arrangements not required under official regulations''
(April 1998 TEAP Report, page 145). EPA is continuing to stress the
importance of this limitation in the scope of the preshipment
exemption. The definition of preshipment applications specifies that
the phrase ``official requirements'' means, ``those which are performed
by, or authorized by, a national plant, animal, environmental, health,
or stored product authority.''
The interim final rule's definition of preshipment applications
further qualifies the term ``official requirements'' as it relates to
exporting countries to include only ``existing official requirements''.
EPA interpreted this phrase to imply the need to establish a cutoff
date. EPA asked for comment on four possible interpretations for the
term ``existing official requirements of the exporting country''. The
options listed were to exempt applications pursuant to official
[[Page 242]]
preshipment requirements of the exporting country that were: (1) In
effect prior to the date the Parties to the Protocol adopted Decision
XI/12, which was December 3, 1999, (2) in effect at the time the
interim final rule was published in the Federal Register, which was
July 19, 2001, (3) in place at the time this final rule on the
quarantine and preshipment exemption is published in the Federal
Register, or (4) existing at the time of the methyl bromide application
(since it would be an ``existing'' requirement of the exporting country
upon going into effect).
EPA received eight comments related to the interpretation of
``existing official requirements.'' All commenters supported the fourth
option, which is to exempt applications pursuant to official
preshipment requirements of the exporting country that exist at the
time of the methyl bromide application. Commenters noted that this
interpretation recognizes the possibility of future outbreaks of new
pests requiring official action. EPA notes the value to such
flexibility within the rule and believes that this interpretation is
consistent with the intended purpose of the exemption.
It should be noted that the qualifier ``existing'', as used within
the preshipment application definition, applies only to the official
requirement of the exporting country (the U.S.) and not to the
preshipment requirements of importing countries. Thus, if an importing
country were to establish a new official requirement for the
preshipment application of methyl bromide, nothing in this rule would
prevent a U.S. exporter from using methyl bromide to meet the new
requirement of the importing country.
C. Are There Additional Qualifiers Associated With the Definition of
Quarantine Applications?
With today's final action EPA is establishing the following
parameters for the quarantine exemption. For commodities imported to,
exported from, and transported within the U.S., the exemption for
quarantine applications will apply when: (1) Methyl bromide is
identified within quarantine regulations as the unique treatment option
for specific quarantine pests; (2) methyl bromide is identified within
quarantine regulations as one among a list of treatment options for
specific quarantine pests; and (3) methyl bromide is required for an
emergency quarantine application. Under section 3, section 18, and
section 24a of the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA), EPA is notified of emergency quarantine applications of methyl
bromide in accordance with specific requirements published under FIFRA.
In addition to the above, for commodities being exported from the U.S.
to a foreign nation, the exemption applies to quarantine applications
when there is a broad performance-based quarantine requirement. In
other words, the exemption applies when an importing country has
quarantine regulations which broadly require U.S. exported commodities
to be free of quarantine pests without specifying the types of
treatments.
The above follows EPA's decision in the interim final rule. The
Agency received 12 comments on the scope of the quarantine exemption.
Every commenter said that the broadest possible option should be
implemented by the Agency. EPA believes that the scope of the exemption
described above is the broadest interpretation that it can reasonably
adopt for each given type of commodity. For example, for imports, USDA/
APHIS requirements are explicit regarding treatment options acceptable
for the control of specific crop/pest combinations. EPA considered
limiting the scope of the quarantine exemption to only those instances
where APHIS lists methyl bromide as the only acceptable treatment
option for a given pest. However, as many commenters noted, variations
in climate, etc. can affect the level of efficacy of treatment options
in different regions. Thus, EPA chose to adopt a broader definition of
the quarantine exemption which applies to quantities of methyl bromide
used to meet quarantine requirements where fumigation with methyl
bromide is the listed, or one of the listed, treatment options.
While EPA believes that such an interpretation is sufficiently
broad for the purposes of imported and domestically traded commodities
given the applicable U.S. regulations, the Agency recognizes that some
foreign countries lack such specificity within their quarantine
regulations for imported commodities. EPA chose to create even greater
flexibility within the quarantine exemption in order to accommodate the
broad, performance-based quarantine requirements of these foreign trade
partners.
D. How Does the Exemption for Quarantine Applications Apply to
Commodities Issued ``Phytosanitary Certificates''?
Today's final action exempts methyl bromide in situations when a
foreign country's regulations require a certification that U.S.
commodities be exported free of quarantine pests. EPA understands that
both USDA/APHIS and State agencies issue ``phytosanitary certificates''
that accompany U.S. commodities exported to foreign countries. These
phytosanitary certificates are often required by importing foreign
countries to ensure that U.S. exports are free of quarantine pests. To
the extent that methyl bromide is used by a U.S. exporter to meet a
foreign quarantine requirement, the phytosanitary certificates (PPQ
Form 577, PPQ Form 578, and PPQ Form 579) issued by USDA/APHIS or an
authorized State agency will be an additional means for EPA to cross-
check quarantine applications of methyl bromide under today's
exemption.
As was noted in the interim final rule, and for this final action,
EPA is not exempting methyl bromide used for non-quarantine
applications, even if the foreign country requires the U.S. exporter to
obtain a phytosanitary certificate. Today's exemption applies to the
use of methyl bromide to meet an official foreign quarantine
requirement. If PPQ Forms or other types of certificates are issued for
commodities meeting state or local quarantine requirements then methyl
bromide used in these cases is considered exempt under today's action,
provided that methyl bromide is one of the listed treatment options.
E. How Do the Definitions of Preshipment and Quarantine Applications
Apply to Food Sanitation?
The language of the Clean Air Act related to the quarantine and
preshipment exemption explicitly limits the exemption to quantities of
methyl bromide used ``to fumigate commodities entering or leaving the
United States or any State (or political division thereof) for purposes
of compliance with Animal and Plant Health Inspection Service
requirements * * *'' (emphasis added). By applying the quarantine and
preshipment exemption only to quantities of methyl bromide used to
fumigate commodities being transported from one geographical location
to another, Congress imposed limitations on how the definitions of
preshipment and quarantine applications apply to food sanitation.
As defined in today's action, preshipment applications are those
non-quarantine applications within 21 days prior to export to meet the
official requirements of the importing country or existing official
requirements of the exporting country. Official requirements are those
which are performed by, or authorized by, a national plant, animal,
environmental, health or stored product
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authority. Methyl bromide used any time within 21 days prior to export
of a commodity to meet ``official requirements'' related to food
sanitation would qualify under the preshipment exemption. Any treatment
performed outside of this 21 day window, by definition, does not
qualify for the preshipment exemption.
The exemption of methyl bromide for quarantine applications, as
defined by the interim final action, did not apply to preventative
treatments to meet food sanitation standards. EPA received 4 comments
about the interaction between food sanitation standards and the
quarantine exemption. All commenters asserted that preventative
treatments of commodities with methyl bromide to meet food sanitation
requirements should qualify as ``quarantine applications'' because
``such standards are geared to preventing the dissemination of pests,
although admittedly for human health and food sanitation purposes.''
EPA's final action is bound by the limitations imposed on the
quarantine exemption by the definitions and determination of scope
agreed upon by the Parties to the Montreal Protocol and adopted by
Congress in the Clean Air Act. EPA understands that certain industries
often use methyl bromide as a prophylactic treatment for periodic
quality control fumigations associated with food sanitation. Stored
commodities, such as dried fruits, nuts, and cocoa beans, as well as
grain mills and pasta manufacturing facilities are often fumigated
periodically with methyl bromide to prevent populations of pests, such
as insects and rodents, from increasing to a point where they would
adversely affect food quality. Such in situ population control measures
do not qualify as quarantine applications since they are not performed
on ``commodities entering or leaving the United States or any state (or
political subdivision thereof) * * *''
Additionally, food sanitation requirements that are directed at
controlling population levels of pests endemic to the region would not
qualify under the definition of ``quarantine applications''. The
quarantine definition, as established in today's final action, stresses
that exempt applications of methyl bromide are ``to prevent the
introduction, establishment and/or spread of quarantine pests
(including diseases).'' Quarantine pests are defined as ``pests of
potential importance to the areas endangered thereby and not yet
present there, or present but not widely distributed and being
officially controlled.'' Endemic pests are not quarantine pests.
The above limitations were noted in the interim final version of
this rule. Likewise, the Agency noted in that publication its interest
in comments related to prophylactic uses of methyl bromide to meet food
sanitation standards in order to use this information in the Agency's
development of the Critical Use Exemption to the phaseout of methyl
bromide. Please see the discussion below (Section VIIIA) related to the
Critical Use Exemption.
F. How Do These Definitions Apply to ``Propagative Material''?
The use of methyl bromide to fumigate the soil for growing
propagative material, such as strawberry rhizomes, differs from many
quarantine applications of methyl bromide. The Agency sought comment on
the use of methyl bromide for propagative materials and received a
variety of information on relevant quarantine regulations, planting and
fumigating practices, and propagative materials (other than strawberry
rhizomes) that use methyl bromide to meet quarantine requirements.
With today's final action, the exemption for quarantine
applications applies to methyl bromide used for growing propagative
material if the methyl bromide is being used to grow propagative
material to meet official quarantine requirements of the destination to
which the propagative material will be transported. Although the
interim final rule only cited strawberry rhizomes in the discussion of
the exemption for propagative material, with today's action EPA wishes
to clarify that the exemption also covers other propagative material,
including tree seedlings, when the methyl bromide is used to meet an
official quarantine requirement of the destination to which the
propagative material will be transported.
EPA notes the following qualifiers in the application of the
quarantine exemption to methyl bromide used to grow propagative
material (also referred to as ``plants for planting''). First, as noted
above (see discussion in part VI.C.), the Clean Air Act language
specifies that the scope of the quarantine exemption is limited to use
of methyl bromide for fumigation of goods for transport from one
distinct locality to another. Thus, the exemption for propagative
materials only applies for use with ``plants for planting'' that are to
be transported (complete with rootstock) from one distinct locality to
another. Second, today's action only exempts the use of methyl bromide
for pre-plant fumigation of soil to meet official quarantine
requirements specifying that the underground portions of the
propagative material are to be free from quarantine pests. The purpose
of such regulations is ensuring that quarantine pests are not spread to
the region where the regulated rootstock will be replanted. This
exemption does not apply to pre-plant soil treatment for commodities
transported without their attached rootstock, or commodities
transported for any purpose other than for replant.
Finally, with this action, EPA is only exempting quantities of
methyl bromide used to grow propagative material to meet official
quarantine requirements of the destination to which such material will
be transported. If the material is transported to a destination that
has no applicable official quarantine requirements, then the methyl
bromide used does not qualify for this exemption. This is true even in
an instance where a farmer legitimately justified using exempted methyl
bromide to meet a quarantine requirement for propagative materials, yet
due to economic or market conditions the farmer does not send the
seedlings to the planned destination, and instead sends the seedlings
to a region without relevant quarantine requirements. EPA recognizes
that many of the propagative materials for which this exemption applies
are planted far in advance of their trade and transplant and that
farmers face some difficulty in accurately predicting their
commodities' ultimate destination. The Agency reminds methyl bromide
users that non-exempted quantities will be available until the January
1, 2005 phaseout date and that the Critical Use Exemption will become
available after the phaseout (see discussion in part VIII.A. below).
The use of exempted methyl bromide to grow propagative material
that the grower planned to ship to a destination with a propagative
material quarantine requirement, but which the grower ultimately
shipped to a destination without such a requirement, may raise
compliance issues for the United States under the Protocol. Such
quantities of methyl bromide would count against the U.S. cap for
domestic methyl bromide consumption. The U.S. could exceed its control
obligations under the Protocol if all U.S. production and consumption
allowances for methyl bromide were expended in a particular control
period (calendar year) and some methyl bromide in the same control
period was mistakenly exempted for quarantine applications when, in
fact, the propagative material was sent to a place without quarantine
requirements. With this action, EPA is implementing the
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following options for rectifying such discrepancies. The methyl bromide
user found to be incorrectly using exempt quantities of methyl bromide
for propagative uses as described above may choose either of the
following options to rectify their actions. First, a methyl bromide
user in the above situation may choose to buy an equivalent amount of
production allowances for any ozone-depleting substance, on an ozone-
depleting potential (ODP) weighted basis, and retire those allowances,
thus rendering them unable to be expended for new production in
accordance with subpart A of 40 CFR part 82. Alternatively, a person
who uses exempted methyl bromide to meet a propagative material
quarantine requirement, and who ultimately changes the material's
destination to one without a quarantine requirement, can choose to
destroy an amount of any ozone-depleting substance that is equivalent
on an ODP-weighted basis to the amount of methyl bromide used. This
approach differs from the first option, in that it requires the person
to physically destroy an existing quantity of an ozone-depleting
chemical rather than reduce the overall quantity produced in the
future.
Those users of methyl bromide required to perform one of the
compensatory measures described above to rectify a non-compliance
situation must submit to EPA a letter of certification detailing the
following information: (1) The quantity of exempt methyl bromide used
on propagative materials that were shipped to a destination lacking a
quarantine requirement; (2) the compensatory option chosen (see
discussion above); (3) the ozone-depleting substance destroyed or the
type of production allowance obtained; and (4) the quantity of ozone-
depleting substance destroyed or production allowances retired. See the
section above entitled FOR FURTHER INFORMATION CONTACT for submittal
information.
Monitoring and compliance issues are a concern associated with the
use of methyl bromide for pre-plant propagative material uses. EPA
expressed a concern in the interim final rule about situations where
propagative materials are grown in proximity to crops that do not
qualify for quarantine and preshipment exemption. EPA believed that it
would be difficult to ensure that exempted quantities of methyl bromide
were being properly used. However, the Agency received input from 3
commenters that state that propagative material is rarely, if ever,
grown in proximity to other crops, which alleviates the Agency's
concern. The Agency will continue to monitor this possibility.
G. How Do These Definitions Apply to In-Transit Applications?
EPA understands that some users of methyl bromide may be testing
and/or using ``on-ship'' fumigation of commodities while they are ``in-
transit.'' With today's final action, EPA is interpreting the
definition of quarantine application to apply to these quantities of
methyl bromide used ``in-transit'' when the use is to meet an official
U.S. quarantine requirement and is in accordance with other U.S.
regulations for commodities being imported into the U.S., (see
discussion in part VI.C. above for more information on what is
considered an official quarantine requirement for an imported
commodity) or for commodities moving from one location to another
within the U.S. However, today's action does not exempt quantities of
methyl bromide used outside of U.S. jurisdiction on U.S. exported
commodities to meet the importing country's official quarantine
requirements while the commodities are ``in-transit.'' Today's action,
likewise, does not exempt quantities of methyl bromide used on U.S.
exported commodities when they are being transshipped through a foreign
country en route to the destination importing country. Finally, today's
action does not exempt quantities of methyl bromide used to meet an
importing country's requirements when a commodity is simply being
transshipped through the U.S. from the exporting foreign country en
route to the importing foreign country.
It should be noted that use of methyl bromide after a shipment
leaves the Unites States is not an exempt preshipment application
because the application did not occur ``within 21 days prior to
export'' from the U.S., where the word ``export'' is interpreted to
mean the departure of a commodity from the Unites States.
VII. What Is the Process for Exempting Methyl Bromide for Use in
Quarantine and Preshipment Applications?
With this action, EPA is establishing a process to exempt methyl
bromide used for quarantine and preshipment applications from the
Allowance Program's control measures that phase out production and
consumption of methyl bromide (described in Part I. Background above).
Today's action exempts quantities of methyl bromide used for quarantine
and preshipment applications from the production and consumption
reduction steps between now and 2005, as well as beyond the final
phaseout of production and consumption under the Montreal Protocol and
Clean Air Act on January 1, 2005.
EPA is creating a recordkeeping and reporting process that is
flexible enough to respond to demands arising when commodities need to
be protected from infestations by quarantine pests and when commodities
need to be treated immediately prior to shipment in accordance with
official requirements. Such flexibility needs to be balanced with the
U.S. Government's reporting requirements under the Montreal Protocol.
Today's action includes a certification and reporting procedure under
authority of the Clean Air Act (CAA) for exempted production and
consumption of methyl bromide for quarantine and preshipment
applications.
A. What Recordkeeping and Reporting Must Producers and Importers
Perform?
Until the January 1, 2005 phaseout date for methyl bromide, U.S.
companies will continue to hold production and consumption allowances,
calculated as a percentage of their baseline production and
consumption. After January 1, 2005, there will not be production
allowances and consumption allowances for methyl bromide. The
relationship between each company's baseline production allowance and
baseline consumption allowances and the reduction steps in these
allowances is in accordance with the control measures under the
Montreal Protocol and the Clean Air Act as described in part I of
today's rule and in the direct final rule published in the Federal
Register on November 28, 2000 (65 FR 70795).
Because quarantine and preshipment applications are exempted from
the phaseout, the total quantities of methyl bromide produced and
imported that are specifically designated for quarantine and
preshipment will not be counted as net production or net import for the
purposes of the Allowance Program. In order for EPA to ensure that
qualifying quarantine and preshipment quantities of methyl bromide are
being properly exempted from companies' total allowed production/
import, the Agency must have a record of those exempted quantities.
Currently, Sec. 82.13 requires producers and importers to submit
quarterly reports to EPA with information on the gross quantity of
methyl bromide produced or imported in that quarter. In that same
report, producers and importers indicate the quantity specifically
designated for transformation and for destruction and,
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thus, exempted from the reduction steps and phaseout of methyl bromide.
EPA subtracts these quantities for transformation and for destruction
from the gross quantity reported to obtain the company's net production
or import. The interim final rule required producers and importers to
include the quantities of methyl bromide specifically designated for
quarantine and preshipment applications on these same quarterly
reports. Quantities of methyl bromide used for quarantine and
preshipment applications are also subtracted from the gross quantity of
production or import because of their exempted status and, thus, are
not counted against a company's production and consumption allowances.
In addition to the reporting requirements outlined above, the
interim final rule established the following recordkeeping requirements
for producers and importers. Domestic purchasers (distributors or
customers) must provide producers and importers with certifications
that a designated quantity is being purchased solely for quarantine and
preshipment applications (discussion of requirements for foreign
purchasers appears below in part VII.D.) Certifications from
distributors will attest that the material will be sold only for
quarantine and preshipment applications, and certifications from
applicators purchasing directly from a producer or importer will attest
that the material will be used only for quarantine and preshipment
applications.
While EPA received no comments on the specific recordkeeping and
reporting procedures described in the interim final rule, several
commenters submitted general feedback. All comments on this topic
focused on the burden of recordkeeping and reporting and suggested that
the creation of a FIFRA label specific to quarantine and preshipment
would help to ease that burden. EPA recognizes the potential utility of
a quarantine and preshipment specific FIFRA label (see full discussion
below in part VII.E.). However, until such a label can be established,
EPA must rely on another means of obtaining the information it needs to
meet the U.S.'s reporting obligations under the Montreal Protocol and
to ensure domestic compliance with the phasedown and phaseout schedule
for production and import. The requirements created by the interim
final rule were discussed with many industry representatives and
represent one of the least burdensome options available. Thus, with
this final action EPA is continuing the recordkeeping and reporting
requirements for producers and importers established by the interim
final rule and described in the above text.
B. Are Methyl Bromide Applicators Required To Report?
Today's action includes a certification requirement for purchases
of methyl bromide by applicators. Applicators must submit a
certification to the seller of the methyl bromide when they want to
purchase a specific quantity of methyl bromide explicitly for
quarantine and preshipment applications. The applicator will certify
that the quantity purchased will be used solely for quarantine and
preshipment applications. The applicator must send the certification to
the company selling the methyl bromide before the seller ships the
cylinders of methyl bromide (i.e., certification before shipment).
The applicator can obtain the certification form at EPA's Web site
at http://www.epa.gov/ozone/mbr or from their methyl bromide
distributor. The applicator must check the box indicating that the
particular quantity being ordered is solely for quarantine and
preshipment applications as defined on the form (see the definition
above in Part VI) and will neither be sold nor used for any other
purpose. The applicator must sign the form certifying, under penalty of
law, that the quantity of methyl bromide purchased will be used solely
for quarantine and preshipment applications in accordance with the
definitions. The applicator must return the completed and signed form
to the distributor. The distributor retains the certification form in
order to compile data that they will submit to EPA on the quantity of
methyl bromide sold under the exemption for quarantine and preshipment
applications. The certification form ensures that quantities of methyl
bromide produced or imported under the exemption for quarantine and
preshipment applications are used only in accordance with the strict
requirements of the exemption. It is important to note that the
applicator will also be able to purchase non-exempt methyl bromide
until the phaseout date for methyl bromide.
For quarantine applications, the applicator must collect
documentation citing the regulatory requirement or other official
requirement that justifies the use of exempted methyl bromide.
Acceptable documentation for a quarantine application includes the
forms provided directly to the applicator by an official from a
national plant, animal, environmental protection or health authority
(e.g. USDA/APHIS) requesting the treatment of commodities to control
quarantine pests. In the absence of official documentation from a
plant, animal, environmental protection or health authority, the
commodity owner, shipper or their agent must provide a letter to the
methyl bromide applicator requesting the use of methyl bromide that
explicitly cites the regulation requiring a quarantine treatment or
quarantine official control. Likewise, the applicator must collect
documentation citing the official requirement calling for a preshipment
application. The commodity owner, shipper or their agent must provide a
letter to the methyl bromide applicator requesting the use of methyl
bromide that explicitly cites the official requirement for a
preshipment application. The letter that the commodity owner, shipper
or their agent presents to the applicator must include the following
statement: ``I certify knowledge of the requirements associated with
the exempted quarantine and preshipment applications published in 40
CFR part 82, including the requirement that this letter cite the
treatments or official controls for quarantine applications or the
official requirements for preshipment requirements.'' Both the
commodity owner, shipper or their agent and the applicator must
maintain this letter for three years in accordance with current
recordkeeping requirements in 40 CFR part 82, subpart A. Neither the
applicator nor the commodity owner, shipper or their agents are
required to submit the letter to EPA.
The requirements established by today's final action exactly match
the requirements of the interim final rule. EPA received one comment
related to these reporting requirements. The commenter raised the
concern that requiring distributors to send and recover Certification
Forms prior to every sale could cause supply delays and backlog of
commodities needing fumigation at ports. EPA does not believe that the
above requirements will cause such a backlog if efficiently managed.
While the above protocol explicitly requires that distributors must
receive completed Certification Forms prior to distributing the order
of methyl bromide, there is flexibility regarding when distributors
must provide the blank forms to their customers. In fact, a distributor
may send a blank Certification Form to every applicator with
instructions to make many copies of the blank form, so each applicator
is ready to place immediate, ``rush'' orders for methyl bromide for
quarantine and preshipment applications. However, in
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situations when an applicator needs to have methyl bromide on-hand to
fumigate a shipment hours after it arrives, EPA understands applicators
strive to anticipate these busy seasons and accordingly place large
orders well in advance. Under today's exemption, when an applicator
places a large order in anticipation of future needs for methyl bromide
for quarantine and preshipment applications, the applicator can and
must submit the Certification Form for the quantity that will be stored
to be used solely for quarantine and preshipment applications in the
future.
C. Are Distributors Required To Report?
With today's action, EPA is requiring that a person who distributes
methyl bromide to applicators (the distributor) compile all the
information from applicator certifications (as described in part VII.B
above) on a quarterly basis and submit the summary data to EPA. In
administering other parts of the stratospheric ozone protection program
over the past decade, regulated companies have often expressed an
appreciation for the submission of smaller, quarterly reports, rather
than one large, end-of-year report. EPA also believes that regular,
quarterly tracking by distributors will increase the accuracy of
reporting. Since EPA received no comments objecting to the submission
of quarterly reports, we are requiring distributors to submit quarterly
reports that summarize the total quantity of methyl bromide sold over a
quarter to applicators who submitted certifications described in part
VII.B above.
The collection of information on the quantity of methyl bromide
sold and certified for quarantine and preshipment applications is
needed so that the U.S. can respond to a recent amendment to the
Protocol. The amendment, to which the Parties agreed at their Eleventh
Meeting in Beijing in 1999, adds a provision to Article 7 (Reporting of
Data), requiring Parties to submit information on the amounts of methyl
bromide used for quarantine and preshipment applications. Reporting by
the distributors will allow a comparison between the quantities of
methyl bromide sold and certified for quarantine and preshipment
applications with the amount of methyl bromide produced and imported
for quarantine and preshipment applications, as reported in the
producers'/importers' report as described in part VII.A above.
D. What About Methyl Bromide Exported for Quarantine and Preshipment
Applications?
With today's action, producers and others that export methyl
bromide must report the total quantity of methyl bromide explicitly
exported to individual foreign countries for quarantine and preshipment
applications on a quarterly basis. Under Sec. 82.13, producers and
exporters already distinguish other exempted quantities of methyl
bromide explicitly exported for transformation or destruction. For each
export of methyl bromide for quarantine and preshipment applications,
as for exports for transformation or destruction, the exporter must
obtain a certification from the foreign person (entity) importing the
methyl bromide stating that the material will be used only for
quarantine and preshipment applications. These certifications must be
submitted with the quarterly reports. These certifications will then be
shared with the appropriate foreign government officials in the
importing country and the compiled data will be shared with UNEP
advisory bodies to the Protocol. Certifications must accompany the
reporting on quantities exported for quarantine and preshipment
applications because of a concern that the U.S., as one of the largest
worldwide producers of methyl bromide, could potentially contribute to
the creation of a loophole for non-exempt uses of methyl bromide around
the globe. EPA feels it will be important to closely monitor and track
production of methyl bromide that is exported for quarantine and
preshipment applications because these uses are exempt from Protocol
control measures.
The above requirements are consistent with those created by the
interim final rule. EPA received no comments related to this issue.
E. Will There Be a FIFRA Pesticide Label Change?
The interim final rule introduced the possibility of EPA's Office
of Pesticide Programs developing, under the authority of the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA), a unique label for
methyl bromide specifically designated for quarantine and preshipment
use. The Agency received five comments in support of such an action.
Commenters advocated that EPA replace the record keeping and reporting
requirements established by the interim rule (and continued with
today's action) with such a label in order to reduce the burden on
users associated with the Quarantine and Preshipment Exemption.
EPA recognizes the potential burden reduction that creating a new
QPS-specific FIFRA label could offer, however, the Agency also remains
cognizant of the need to retain access to the information it needs to
meet the U.S. government's own international reporting requirements as
established by the Montreal Protocol. Thus, after the Office of
Pesticide Programs finishes the process of making changes that create a
new QPS-specific FIFRA label for methyl bromide, the Office of Air and
Radiation will consider ways to simplify today's recordkeeping and
reporting requirements but likely retain some of these requirements to
ensure the accurate submission of data in accordance with U.S.
obligations under the Montreal Protocol.
A registration/label change would designate individual cylinders of
methyl bromide specifically for quarantine and preshipment applications
and it would be illegal to use the material in these cylinders for
other uses. Under an approved registration/label change there would be
unique registration numbers for the new labels that would accompany
each cylinder through the chain of commerce from producers or importers
to the end-user (the applicator). As currently required under FIFRA,
establishments would report total quantities of methyl bromide under
this new quarantine and preshipment registration/label to EPA's Office
of Pesticide Programs on an annual basis. Following a change in the
FIFRA authorized registration/label, it would be possible for the
Agency to reconcile the total quantity of methyl bromide certified to
be solely for quarantine and preshipment applications under procedures
described in parts VII.B and VII.C above, the total quantity of methyl
bromide produced or imported for quarantine and preshipment
applications under today's part VII.A above, and the annual FIFRA
establishment reports on methyl bromide, which reference specific
products by registration number.
EPA's Office of Pesticide Programs is continuing to work with the
Methyl Bromide Industry Panel to develop a registration and label
change for methyl bromide products. EPA reserves the ability to
reevaluate the record keeping and reporting requirements established in
today's action if and when such a label is created.
VIII. What Were Other Considerations and Situations on Which EPA Sought
or Received Comment?
In the interim final rule, EPA sought comment on a number of
possible variations on the exemption that were
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not incorporated into the interim rule as it was published. The Agency
received comment on some of these items, as well as on other topics for
which comment was not expressly sought.
EPA recognizes that additional questions may arise regarding
aspects of today's final action. If a person has a question about
whether a certain aspect of today's final action applies to their
situation, EPA is encouraging the submissions of written questions
accompanied by a detailed description of how methyl bromide relates to
the person's particular enterprise. The Agency will consider questions
about whether aspects of today's final action apply in the context of
EPA's regular process for issuing written determinations.
A. Methyl Bromide Is the Only Feasible Treatment Option
EPA received 31 comments in response to the interim final rule that
addressed the lack of feasible alternatives available for specific uses
of methyl bromide and the economic impact of the phaseout on sectors of
the agricultural industry. In response to such comments, EPA notes that
there is no ``critical need'' requirement associated with the
Quarantine and Preshipment Exemption at this juncture. The exemption
applies only to uses of methyl bromide that qualify as a quarantine or
preshipment application, as defined by this final action, regardless of
the availability of alternatives.
The Montreal Protocol and the CAA created two distinct exemptions
to the methyl bromide phaseout: (1) The Quarantine and Preshipment
Exemption, and (2) the Critical Use Exemption. The Critical Use
Exemption was created by the Parties to the Protocol to address the
possibility that substitutes and alternatives may not be available for
all methyl bromide uses by the January 1, 2005 phaseout date. The term
``critical use'' is defined, in part, by the lack of technically or
economically feasible alternatives. For more information about the
Critical Use Exemption please consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section or visit http://www.epa.gov/ozone/mbr/cueqa.html.
B. Has the Agency Considered Definitions Under the International Plant
Protection Convention (IPPC)?
Under the International Standards for Phytosanitary Measures
(ISPMs) adopted by members of the International Plant Protection
Convention (IPPC) on April 22, 2001, the definition of ``official
control'' is different than the definition that was agreed to by the
Parties to the Montreal Protocol and adopted by EPA in the interim
final rule. The IPPC definition of the phrase ``official control'' is,
``the active enforcement of mandatory phytosanitary regulations and the
applications of mandatory phytosanitary procedures with the objective
of eradication or containment of quarantine pests or the management of
regulated non-quarantine pests.'' The IPPC glossary of phytosanitary
terms defines ``official'' as ``established, authorized or performed by
a National plant protection Organization (NPPO).'' In the United
States, the NPPO is the USDA Animal and Plant Health Inspection Service
(APHIS), Plant Protection and Quarantine (PPQ) Program.
Further, under the ISPMs adopted by the IPPC, the phrase
``regulated non-quarantine pests'' is defined as, ``a non-quarantine
pest whose presence in plants for planting affects the intended use of
those plants with an economically unacceptable impact and which is
therefore regulated within the territory of the importing contacting
party.''
EPA sought comment in the interim final rule on this IPPC
definition of ``official control'' and received 3 comments. All
commenters stated that EPA ought to adopt the IPPC definition because
it is broader than that adopted in the interim final rule.
In this final action, EPA is adopting the definition of ``official
control'' found in the interim final rule and agreed upon by the
Parties to the Montreal Protocol. The IPPC definition is broader,
insofar as includes within its scope not only regulated quarantine
pests but also regulated ``non-quarantine pests'', an addition not
found in EPA's definition. However, IPPC defines the phrase ``non-
quarantine pests'' as being applicable only to ``plants for planting''.
[With this final action, EPA explicitly applies the quarantine
exemption to use of methyl bromide for growing propagative material if
it is being used to meet official quarantine requirements of the
destination to which the propagative materials are being transported.
However, the IPPC's definition is much narrower than the Protocol's,
because the word ``official'' under the IPPC is limited only to
national plant protection organization, and the Protocol's quarantine
definition refers to ``plant, animal or environmental protection or
health authority'' and the preshipment definition refers to ``national
plant, animal, environmental, health or stored product authority''.
Additionally, in 1998, the TEAP explicitly laid out the differences
between the IPPC's and the Montreal Protocol's definitions of
``official control'' for consideration by the Parties. The Parties
rejected making any changes to the Protocol's definition of ``official
control'' even when presented with the IPPC language (See discussion in
section IV above). The Agency is acting in conformity with customary
international law by adhering to the decision of the Parties on this
matter.
C. What Action Is the Agency Taking Regarding Prophylactic Fumigation
of U.S. Exports When the Fumigation Is Not Mandated by Import
Regulations?
U.S. businesses sometimes use methyl bromide against non-quarantine
pests for a commodity that is being exported because it is known that
the importing country will treat with methyl bromide at the port of
entry if the detected level of these non-quarantine pests during port-
of-entry inspection exceeds that country's standards. Some U.S.
exporters give their commodities a prophylactic treatment in the U.S.
to prevent a much more damaging treatment in the receiving country that
could occur if non-quarantine pests were found, possibly reducing the
quality of the commodity. In cases where an official foreign Party
requirement is specific to quarantine pests, or there is a general
performance-based quarantine requirement, the use of methyl bromide
under the exemption for quarantine applications would be appropriate.
In addition, fumigation with methyl bromide to meet U.S. government or
foreign non-quarantine requirements 21 days prior to export of the
commodity would also be exempt under the definition of preshipment
applications. The Agency reminds methyl bromide users that non-exempted
quantities will be available until the January 1, 2005 phaseout date
and that the Critical Use Exemption will become available after the
phaseout (see section VII.A. above).
D. What Action is the Agency Taking Regarding the Exclusion of Specific
Quarantine and Preshipment Applications From the Exemption at Some
Future Time?
The Parties to the Protocol in Decision XI/13 request Parties to
``review their national plant, animal, environmental, health an stored
product regulations with a view to removing the requirement for the use
of methyl bromide for quarantine and preshipment where technically and
economically feasible alternatives exist.'' The reason for a review
process
[[Page 248]]
would be to limit the production and import of methyl bromide to only
those cases where no other ``technologically and economically feasible
alternatives exist.'' Through time, it is likely that the use of methyl
bromide will be less and less necessary for quarantine and preshipment
applications. When technically and economically feasible alternatives
to methyl bromide are available, a process will be devised that will
allow the U.S. to limit the use of this ozone-depleting substance while
taking into account the need to protect international trade. In the
years beyond the methyl bromide production and consumption phaseout,
there will continue to be an exemption for quarantine and preshipment
applications but there may no longer be price pressures for moving away
from these quarantine and preshipment applications of methyl bromide.
Therefore, the Parties to the Protocol emphasize the importance of
reviewing quarantine and preshipment applications and identifying when
technically and economically feasible alternatives exist, and removing
these applications from the exemption.
EPA offered several options for implementing such a review process
in the interim final rule. The Agency received 5 comments related to
this issue. All commenters asserted that the option to eliminate the
Quarantine and Preshipment Exemption after the phaseout and ask users
to apply for critical-use exemptions where no technically or
economically feasible alternatives exist offered by EPA in the interim
final rule was contrary to the provisions of the Montreal Protocol and
could not be pursued without an amendment to the agreement. Given the
request by the Parties for a future contraction of the Quarantine and
Preshipment Exemption, EPA does not agree that the Protocol prohibits
such a course of action. However, the Agency agrees that this option
may impose the burden of completing a Critical Use Exemption
Application on users where it may not be necessary. Thus, with this
action, EPA sets forth its intent to meet the Parties' request for a
domestic review process for quarantine and preshipment applications of
methyl bromide by establishing a procedure for excluding specific
quarantine and preshipment applications from the exemption when EPA
determines by notice and comment rulemaking that alternatives are in
significant international use for the specific applications. In
undertaking the process of notice and comment rulemaking, EPA will
consult with USDA/APHIS regarding alternatives that are efficacious for
quarantine and preshipment and are in significant international use for
specific quarantine and preshipment applications. Such a notice and
comment rulemaking process will allow U.S. users of methyl bromide for
quarantine and preshipment applications to make the case that although
alternative(s) are in significant international use, the specific
circumstances of their U.S. applications are unique (e.g., the
alternatives are not feasible or commercially available in the U.S.)
and continue to warrant the use of methyl bromide.
EPA considered relying on market prices to guide methyl bromide use
as an alternative to the formal review process described above.
However, the Agency was unable to gather adequate information to
determine whether the price of methyl bromide would be sufficiently
likely to provide an incentive for the development and use of
alternatives. Without adequate economic analysis, the Agency is unable
to rely on market forces to meet the U.S.'s international commitment.
IX. What Are the Steps To Conform the U.S. Methyl Bromide Phaseout
Schedule and Exemptions to the Montreal Protocol and Amended Clean Air
Act?
During stakeholder meetings, and in the proposed and final rules
that established the 25 percent reduction in methyl bromide baseline
allowances beginning in 1999 (64 FR 9290, 64 FR 29240), EPA described
its intention to follow with separate rulemakings that would include
the additional phaseout steps for methyl bromide and establish
additional exemptions in accordance with the Protocol and the CAA. The
rule establishing the remaining reduction and phaseout schedule for
methyl bromide was published November 28, 2000 (65 FR 70795). The
reduction and phaseout schedule is listed above at the end of part I.
After the phaseout on January 1, 2005, critical-use exemptions are
permitted under the Montreal Protocol and the Clean Air Act when
nominated by the United States and approved by the Parties. In
addition, an emergency use exemption of no more than 20 metric tonnes
is available after the phaseout on January 1, 2005. In 2001, EPA
initiated stakeholder meetings to develop a process for an emergency
use exemption and for critical use exemptions, which is designed to
ensure that the U.S. meets its obligations under the Montreal Protocol
consistent with statutory requirements in the Clean Air Act. On May 10,
2002 EPA published a Federal Register document (67 FR 31798) asking for
people to submit Critical Use Exemption Applications. At this time no
final decision has been published regarding what uses will be exempted
as ``critical.'' Sometime in advance of 2005, EPA will establish a
process for an emergency use exemption through notice and comment
rulemaking.
X. Administrative Requirements
A. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with the applicable law.
Moreover, section 205 allows EPA to adopt an alternative other than the
least costly, most cost-effective of least burdensome alternatives if
the Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. The rule imposes no enforceable duty on any
[[Page 249]]
State, local, or tribal government. The recordkeeping and reporting
requirements are the only mandates imposed on those members of the
private sector that choose to take advantage of the exemption to the
methyl bromide phaseout established by this rulemaking, which EPA
calculated to be under $100 million per year. Thus, today's rule is not
subject to the requirements of sections 202 and 205 of the UMRA. EPA
has also determined that this rule contains no requirements that might
significantly or uniquely affect small governments. Thus, today's rule
is not subject to the requirements of section 203 of the UMRA.
B. Regulatory Flexibility Analysis
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. EPA has also
determined that this rule will not have a significant economic impact
on a substantial number of small entities. For purposes of assessing
the impacts of today's rule on small entities, small entity is defined
as: (1) A small business that is identified by the North American
Industry Classification System code (NAICS) in the Table below; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
----------------------------------------------------------------------------------------------------------------
Size standard Size standard
Type of enterprise NAICS Code (number of (millions of
employees) dollars)
----------------------------------------------------------------------------------------------------------------
Pesticide and Other Agricultural Chemical Manufacturing......... 32532 500 ..............
Support Activities for Agriculture and Forestry................. 115 .............. $6.0
Exterminating and Pest Control Services......................... 56171 .............. $6.0
----------------------------------------------------------------------------------------------------------------
After considering the economic impacts of today's final rule on
small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
We have determined that although some small percentage of distributors
may be small entities and many of the applicators are too, that all
entities regulated by today's action receive a benefit through the
exemption, which allows them to continue to obtain quantities of methyl
bromide outside of the reduction schedule and phaseout controls. We
estimate that these benefits are equal to approximately 7 to 10% of the
U.S. baseline of methyl bromide, annually, or about 1,787 to 2,552
metric tonnes, which at current prices for methyl bromide of
approximately $3.00/pound would be equal to an estimated annual benefit
of $12 to $17 million. The costs of this exemption arise from the
limited recordkeeping and reporting requirements which are estimated to
be less than $53 thousand per year for the entire industry that uses
methyl bromide for quarantine and preshipment applications.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities. EPA held
several stakeholder meetings to explore options for establishing a
reasonable record keeping and reporting system that would allow the
Agency to monitor and collect information for the U.S. reporting
obligations to the Montreal Protocol. One option considered would have
asked for certifications from applicators to be submitted to producers
or importers prior to exempted production or import. This and other
options were not only administratively too burdensome, but would also
be too disruptive of normal commerce. In today's action, for each level
in the methyl bromide market chain, the Agency chose the least
burdensome method for collecting the minimum amount of information that
would allow the U.S. to accurately fulfill its Protocol reporting
requirements.
C. Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)), the
Agency must determine whether this regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more, or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal mandates,
the President's priorities, or the principles set forth in the
Executive Order.
Pursuant to the terms of Executive Order 12866, OMB has notified
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive Order. EPA has submitted this action to
OMB for review. Changes made in response to OMB suggestions or
recommendations on the original rule submitted to them will be
documented in the public record.
D. Applicability of Executive Order 13045 (Children's Health
Protection)
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885 (April 23, 1997)) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it implements a specific exemption set
forth by Congress in section 604(d)(5) of the Clean Air Act.
E. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule for three
years under the provisions of the Paperwork Reduction
[[Page 250]]
Act, 44 U.S.C. 3501 et seq. The OMB control number is 2060-0170.
In relation to the expected benefits of today's exemption from the
phaseout schedule for methyl bromide, this action is maintaining the
additional reporting and record keeping requirements required in the
interim final rule. This action requires reporting by distributors of
methyl bromide regarding the total quantity sold that is certified to
be solely for quarantine and preshipment applications. This action also
requires applicators of methyl bromide to certify that specified
quantities purchased will be used solely for quarantine and preshipment
applications. Producers and importers of methyl bromide must include
additional information in existing quarterly reports. As in the interim
final rule, producers that export and third-party exporters must submit
additional information regarding quantities of methyl bromide exported
for quarantine and preshipment applications. Today's action also
maintains the record keeping requirements of the interim final rule
associated with the reporting listed above and for commodity owners or
shippers who must formally request methyl bromide use citing the
official control or official requirement for the quarantine and
preshipment application.
EPA is making the reporting forms associated with this rule
available electronically, as a first step. In addition, EPA is working
to make it possible for people to complete the forms electronically
with special guidance on a ``file naming protocol.'' EPA wants to
create this ``file naming protocol'' so forms completed electronically
by producers and importers can be saved with similar nomenclature for
transmission to EPA by email. For example, the company, Acme Ltd.,
might complete the third-quarter importer's report electronically and
save the document with the name 3Q--ImpR--Acme and send it, by email,
to EPA. The Agency believes guidance on a ``file naming protocol'' will
ease the process for electronically filing, searching and identifying
forms for both the Agency and companies, and be especially helpful if a
question arises about information in a specific form. EPA will strive
to have forms available that can be completed electronically by the
regulatory deadline for submission of the first-quarter reports (30
days after the end of the quarter in 2003), and will make every effort
to have them available no later than for submission of second-quarter
reports. Concurrent with the process for making it possible to
electronically complete forms for submission by email, EPA is pursuing
technical and logistical questions about creating a secure Web-based
system for direct electronic reporting of data. If EPA deems that it is
feasible and efficient to create a secure Web-based database for direct
electronic reporting, then EPA will work to bring such a system online
by 2004.
The information collection under this action is designed to
implement the exemption in paragraph 6 under article 2H of the Montreal
Protocol for quantities of methyl bromide used for quarantine and
preshipment applications as well as the exemption under 604(d)(5) of
the CAA. The information collection under this rule is authorized under
section 603(b) and 603(d) of the CAA. This information collection is
conducted to meet U.S. obligations under Article 7, Reporting
Requirements, of the Montreal Protocol on Substances that Deplete the
Ozone Layer (Protocol); and to carry out the requirements of Title VI
of the CAA, including sections 603 and 614. The reporting requirements
included in this rule are intended to: (1) Allow exempted production
and import for a specific exemption and the consequent tracking of that
production and import; (2) respond to industry comments on the
functioning of the program to streamline reporting and eliminate
administrative inefficiencies; (3) satisfy U.S. obligations under the
international treaty, The Montreal Protocol on Substances that Deplete
the Ozone Layer (Protocol), to report data under Article 7; (4) fulfill
statutory obligations under Section 603(b) of Title VI of the Clean Air
Act Amendments of 1990 for reporting and monitoring; and (5) provide
information to report to Congress on the production, use and
consumption of class I controlled substances as statutorily required in
section 603(d) of Title VI of the CAA.
EPA informs respondents that they may assert claims of business
confidentiality for any of the information they submit. Information
claimed confidential will be treated in accordance with the procedures
for handling information claimed as confidential under 40 CFR part 2,
Subpart B, and will be disclosed only to the extent, and by means of
the procedures, set forth in that subpart. If no claim of
confidentiality is asserted when EPA receives the information it may be
made available to the public without further notice to the respondents
(40 CFR 2.203).
The information collection requirements for this action have an
estimated reporting burden averaging 1.38 hours per response. This
estimate includes time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed and completing
the collection of information. The estimate includes the time needed to
comply with EPA's reporting requirements, as well as that used for the
completion of reports.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
----------------------------------------------------------------------------------------------------------------
No. of Responses/ Total Hours per
Collection activity respondents respondent responses response Total hours
----------------------------------------------------------------------------------------------------------------
Producers & Importers Report.... 4 4 16 1 16
Exporters Report................ 2 4 8 8 64
Applicator Certification........ 15 6 90 0.5 45
Distributor Report.............. 15 4 60 4 240
Commodity Owner, Shipper or 500 10 500 1 500
Agent Record keeping...........
-----------------
Total burden hrs............ .............. .............. .............. .............. 865
----------------------------------------------------------------------------------------------------------------
[[Page 251]]
F. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national governmental and the States, or on the distribution of
power and responsibilities among the various levels of government, as
specified in Executive Order 13132. This rule does not in any way
restrict States from continuing to operate their plant, animal,
environmental, health or stored product protection programs associated
with quarantine and preshipment applications. Thus, Executive Order
13132 does not apply to this rule.
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249 (November 9, 2000)),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. There is no
enforceable mandate imposed on tribal governments within this
regulation. Thus, Executive Order 13175 does not apply to this rule.
H. The National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g. materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rulemaking does not involve technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.
I. Executive Order 13211 (Energy Effects)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. Further,
we have concluded that this rule is not likely to have any adverse
energy effects.
XI. Congressional Review
A. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
that rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a major rule as defined by 5 U.S.C. 804(2).
This rule will be effective January 1, 2003.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Exports, Imports, Reporting and
recordkeeping requirements.
Dated: December 23, 2002.
Christine Todd Whitman,
Administrator.
For reasons set out in the preamble, 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 subpart 82 continues to read as
follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
Subpart A--Production and Consumption Controls
2. Section 82.3 is amended by adding new definitions in
alphabetical order for the terms, ``Applicator,'' ``Commodity Owner,
Shipper or their Agent,'' ``Distributor of methyl bromide,''
``Preshipment applications,'' and ``Quarantine applications.''
Sec. 82.3 Definitions.
As used in this subpart, the term:
Applicator means the person who applies methyl bromide.
* * * * *
Commodity Owner, Shipper or their Agent means the person requesting
that an applicator use methyl bromide for quarantine or preshipment
applications.
* * * * *
Distributor of methyl bromide means the person directly selling a
class I, Group VI controlled substance to an applicator.
* * * * *
Preshipment applications, with respect to class I, Group VI
controlled substances, are those non-quarantine applications applied
within 21 days prior to export to meet the official requirements of the
importing country or existing official requirements of the exporting
country. Official requirements are those which are performed by, or
authorized by, a national plant, animal, environmental, health or
stored product authority.
* * * * *
Quarantine applications, with respect to class I, Group VI
controlled substances, are treatments to prevent the introduction,
establishment and/or spread of quarantine pests (including diseases),
or to ensure their official control, where: (1) Official control is
that performed by, or authorized by, a national (including state,
tribal or local) plant, animal or environmental protection or health
authority; (2) quarantine pests are pests of potential importance to
the areas endangered thereby and not yet present there, or present but
not widely distributed and being officially controlled. This definition
excludes treatments of commodities not entering or leaving the United
States or any State (or political subdivision thereof).
* * * * *
3. Section 82.4 is amended by redesignating paragraphs (a) as
(a)(1) and republishing the text, adding (a)(2), redesignating
paragraphs (c) as (c)(1) and republishing the text, adding (c)(2),
[[Page 252]]
redesignating (k) as (k)(1) and republishing the text, and adding
(k)(2) as follows:
Sec. 82.4 Prohibitions.
(a)(1) Prior to January 1, 1996, for all Groups of class I
controlled substances, and prior to January 1, 2005, for class I, Group
VI controlled substances, no person may produce, at any time in any
control period, (except that are transformed or destroyed domestically
or by a person of another Party) in excess of the amount of unexpended
production allowances or unexpended Article 5 allowances for that
substance held by that person under the authority of this subpart at
that time for that control period. Every kilogram of excess production
constitutes a separate violation of this subpart.
(2) Effective January 1, 2003, production of class I, Group VI
controlled substances is not subject to the prohibitions in paragraph
(a)(1) of this section if it is solely for quarantine or preshipment
applications as defined in this subpart.
* * * * *
(c)(1) Prior to January 1, 1996, for all Groups of class I
controlled substances, and prior to January 1, 2005, for class I, Group
VI controlled substances, no person may produce or (except for
transhipments, heels or used controlled substances) import, at any time
in any control period, (except for controlled substances that are
transformed or destroyed) in excess of the amount of unexpended
consumption allowances held by that person under the authority of this
subpart at that time for that control period. Every kilogram of excess
production or importation (other than transhipments, heels or used
controlled substances) constitutes a separate violation of this
subpart.
(2) Effective January 1, 2003, production and import of class I,
Group VI controlled substances is not subject to the prohibitions in
paragraph(c)(1) of this section if it is solely for quarantine or
preshipment applications as defined in this subpart.
* * * * *
(k)(1) Prior to January 1, 1996, for all Groups of class I
controlled substances, and prior to January 1, 2005, for class I, Group
VI controlled substances, a person may not use production allowances to
produce a quantity of a class I controlled substance unless that person
holds under the authority of this subpart at the same time consumption
allowances sufficient to cover that quantity of class I controlled
substances nor may a person use consumption allowances to produce a
quantity of class I controlled substances unless the person holds under
authority of this subpart at the same time production allowances
sufficient to cover that quantity of class I controlled substances.
However, prior to January 1, 1996, for all class I controlled
substances, and prior to January 1, 2005, for class I, Group VI
controlled substances, only consumption allowances are required to
import, with the exception of transhipments, heels, and used controlled
substances. Effective January 1, 1996, for all Groups of class I
controlled substances, except Group VI, only essential-use allowances
or exemptions are required to import class I controlled substances,
with the exception of transhipments, heels and used controlled
substances.
(2) Notwithstanding paragraph (k)(1) of this section, effective
January 1, 2003, for class I, Group VI controlled substances,
consumption allowances are not required to import quantities solely for
quarantine or preshipment applications as defined in this subpart.
* * * * *
4. Section 82.13 is amended by:
a. Adding paragraphs (f)(2)(xvii) through (f)(2)(xix), and
(f)(3)(xiii) through (f)(3)(xv),
b. Adding paragraphs (g)(1)(xvii) through (g)(1)(xix), and
(g)(4)(xv) through (g)(4)(xvii),
c. Revising paragraph (h),
d. Adding paragraphs (aa), (bb), and (cc).
The revisions and additions read as follows:
Sec. 82.13 Recordkeeping and reporting requirements.
* * * * *
(f) * * *
(2) * * *
(xvii) For class I, Group VI controlled substances, dated records
of the quantity of controlled substances produced for quarantine and
preshipment applications and quantity sold for quarantine and
preshipment applications;
(xviii) Written certifications that quantities of class I, Group VI
controlled substances produced solely for quarantine and preshipment
applications were purchased by distributors or applicators to be used
only for quarantine and preshipment applications in accordance with the
definitions in this subpart; and
(xix) Written verifications from a U.S. purchaser that class I,
Group VI controlled substances produced solely for quarantine and
preshipment applications, if exported, will be exported solely for
quarantine and preshipment applications upon receipt of a certification
in accordance with the definitions of this subpart and requirements in
paragraph (h) of this section.
(3) * * *
(xiii) The amount of class I, Group VI controlled substances sold
or transferred during the quarter to a person other than the producer
solely for quarantine and preshipment applications;
(xiv) A list of the quantities of class I, Group VI controlled
substances produced by the producer and exported by the producer and/or
by other U.S. companies, to a Party to the Protocol that will be used
solely for quarantine and preshipment applications and therefore were
not produced expending production or consumption allowances; and
(xv) For quarantine and preshipment applications of class I, Group
VI controlled substances in the United States or by a person of another
Party, one copy of a certification that the material will be used only
for quarantine and preshipment applications in accordance with the
definitions in this subpart from each recipient of the material and a
list of additional quantities shipped to that same person for the
quarter.
* * * * *
(g) * * *
(1) * * *
(xvii) For class I, Group VI controlled substances, dated records
of the quantity of controlled substances imported for quarantine and
preshipment applications and quantity sold for quarantine and
preshipment applications;
(xviii) Written certifications that quantities of class I, Group VI
controlled substances imported solely for quarantine and preshipment
applications were purchased by distributors or applicators to be used
only for quarantine and preshipment applications in accordance with the
definitions in this subpart; and
(xix) Written verifications from a U.S. purchaser that class I,
Group VI controlled substances imported solely for quarantine and
preshipment applications, if exported, will be exported solely for
quarantine and preshipment applications upon receipt of a certification
in accordance with the definitions of this Subpart and requirements in
paragraph (h) of this section.
* * * * *
(4) * * *
(xv) The amount of class I, Group VI controlled substance sold or
transferred during the quarter to a person other than the importer
solely for quarantine and preshipment applications;
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(xvi) A list of the quantities of class I, Group VI controlled
substances exported by the importer and or by other U.S. companies, to
a Party to the Protocol that will be used solely for quarantine and
preshipment applications and therefore were not imported expending
consumption allowances; and
(xvii) For quarantine and preshipment applications of class I,
Group VI controlled substances in the United States or by a person of
another Party, one copy of a certification that the material will be
used only for quarantine and preshipment applications in accordance
with the definitions in this subpart from each recipient of the
material and a list of additional quantities shipped to that same
person for the quarter.
(h) Reporting Requirements--Exporters.
(1) For any exports of class I controlled substances (except Group
VI) not reported under Sec. 82.10 of this subpart (additional
consumption allowances), or under paragraph (f)(3) of this section
(reporting for producers of controlled substances), the exporter who
exported a class I controlled substance (except Group VI) must submit
to the Administrator the following information within 45 days after the
end of the control period in which the unreported exports left the
United States:
(i) The names and addresses of the exporter and the recipient of
the exports;
(ii) The exporter's Employee Identification Number;
(iii) The type and quantity of each controlled substance exported
and what percentage, if any, of the controlled substance is used,
recycled or reclaimed;
(iv) The date on which, and the port from which, the controlled
substances were exported from the United States or its territories;
(v) The country to which the controlled substances were exported;
(vi) The amount exported to each Article 5 country;
(vii) The commodity code of the controlled substance shipped; and
(viii) The invoice or sales agreement containing language similar
to the Internal Revenue Service Certificate that the purchaser or
recipient of imported controlled substances intends to transform those
substances, or destruction verifications (as in paragraph(k) of this
section) showing that the purchaser or recipient intends to destroy the
controlled substances.
(2) For any exports of class I, Group VI controlled substances not
reported under Sec. 82.10 of this subpart (additional consumption
allowances), or under paragraph (f)(3) of this section (reporting for
producers of controlled substances), the exporter who exported a class
I, Group VI controlled substance must submit to the Administrator the
following information within 45 days after the end of each quarter in
which the unreported exports left the United States:
(i) The names and addresses of the exporter and the recipient of
the exports;
(ii) The exporter's Employee Identification Number;
(iii) The type and quantity of each controlled substance exported
and what percentage, if any, of the controlled substance is used,
recycled or reclaimed;
(iv) The date on which, and the port from which, the controlled
substances were exported from the United States or its territories;
(v) The country to which the controlled substances were exported;
(vi) The amount exported to each Article 5 country;
(vii) The commodity code of the controlled substance shipped; and
(viii) The invoice or sales agreement containing language similar
to the Internal Revenue Service Certificate that the purchaser or
recipient of imported controlled substances intends to transform those
substances, the destruction verifications (as in paragraph (k) of this
section) showing that the purchaser or recipient intends to destroy the
controlled substances, or the certification that the purchaser or
recipient and the eventual applicator will only use the material for
quarantine and preshipment applications in accordance with the
definitions in this subpart.
* * * * *
(aa) Every distributor of methyl bromide (class I, Group VI
controlled substances) who purchases or receives a quantity produced or
imported solely for quarantine or preshipment applications under the
exemptions in this subpart must comply with recordkeeping and reporting
requirements specified in this paragraph (aa) of this section.
(1) Every distributor of methyl bromide must certify to the
producer or importer that quantities received that were produced or
imported solely for quarantine and preshipment applications under the
exemptions in this subpart will be used only for quarantine
applications or preshipment applications in accordance with the
definitions in this subpart.
(2) Every distributor of a quantity of methyl bromide that was
produced or imported solely for quarantine or preshipment applications
under the exemptions in this subpart must receive from an applicator a
certification of the quantity of class I, Group VI controlled
substances ordered, prior to delivery of the quantity, stating that the
quantity will be used solely for quarantine or preshipment applications
in accordance with definitions in this subpart.
(3) Every distributor of methyl bromide who receives a
certification from an applicator that the quantity ordered and
delivered will be used solely for quarantine and preshipment
applications in accordance with definitions in this subpart must
maintain the certifications as records for 3 years.
(4) Every distributor of methyl bromide who receives a
certification from an applicator that the quantity ordered and
delivered will be used solely for quarantine and preshipment
applications in accordance with definitions in this subpart must report
to the Administrator within 45 days after the end of each quarter, the
total quantity delivered for which certifications were received that
stated the class I, Group VI controlled substance would be used solely
for quarantine and preshipment applications in accordance with
definitions in this Subpart.
(bb) Every applicator of class I, Group VI controlled substances
who purchases or receives a quantity produced or imported solely for
quarantine and preshipment applications under the exemptions in this
subpart must comply with recordkeeping and reporting requirements
specified in this paragraph (bb) of this section.
(1) Recordkeeping--Applicators. Every applicator of class I, Group
VI controlled substances produced or imported solely for quarantine and
preshipment applications under the exemptions of this subpart must
maintain, for every application, a document from the commodity owner,
shipper or their agent requesting the use of class I, Group VI
controlled substances citing the regulatory requirement that justifies
its use in accordance with definitions in this subpart. These documents
shall be retained for 3 years.
(2) Reporting--Applicators. Every applicator of class I, Group VI
controlled substances who purchases or receives a quantity of class I,
Group VI controlled substance that was produced or imported solely for
quarantine and preshipment applications under the exemptions in this
subpart shall provide the distributor of the methyl bromide, prior to
shipment of the class I, Group
[[Page 254]]
VI controlled substance, with a certification that the quantity of
controlled substances will be used only for quarantine and preshipment
applications as defined in this subpart.
(cc) Every commodity owner, shipper or their agent requesting an
applicator to use a quantity of class I, Group VI controlled substance
that was produced or imported solely for quarantine and preshipment
applications under the exemptions of this subpart must maintain a
record for 3 years, for each request, certifying knowledge of the
requirements associated with the exemption for quarantine and
preshipment applications in this subpart and citing the regulatory
requirement that justifies the use of the class I, Group VI controlled
substance in accordance with definitions in this subpart. The record
must include the following statement: ``I certify knowledge of the
requirements associated with the exempted quarantine and preshipment
applications published in 40 CFR part 82, including the requirement
that this letter cite the treatments or official controls for
quarantine applications or the official requirements for preshipment
requirements.''
[FR Doc. 02-32986 Filed 12-31-02; 8:45 am]
BILLING CODE 6560-50-P