[Federal Register Volume 71, Number 69 (Tuesday, April 11, 2006)]
[Rules and Regulations]
[Pages 18219-18227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3461]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2005-0131; FRL-8157-5]
RIN 2060-AM46


Protection of Stratospheric Ozone: Recordkeeping and Reporting 
Requirements for the Import of Halon-1301 Aircraft Fire Extinguishing 
Vessels

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to exempt entities that import aircraft fire extinguishing 
spherical pressure vessels containing halon-1301 (``aircraft halon 
bottles'') for hydrostatic testing from the import petitioning 
requirements for used controlled substances. The petitioning 
requirements compel importers to submit detailed information to the 
Administrator concerning the origins of the substance at least forty 
working days before a shipment is to leave a foreign port of export. 
This direct final rule reduces the administrative burden on entities 
that are importing aircraft halon bottles for the purpose of 
maintaining these bottles to commercial safety specifications and 
standards set forth in Federal Aviation Administration airworthiness 
directives. This direct final rule does not exempt entities that wish 
to import bulk quantities of halon-1301 in containers that are not 
being imported for purposes of hydrostatic testing.

DATES: The direct final rule is effective on June 12, 2006 without 
further notice, unless EPA receives adverse comments by May 11, 2006, 
or by May 26, 2006 if a hearing is requested. If adverse comments are 
received, EPA will publish a timely withdrawal in the Federal Register 
informing the public that this rule will not take effect. If anyone 
contacts the EPA requesting to speak at a public hearing by April 21, 
2006, a public hearing will be held on April 25, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2005-
0131, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: 202-343-2337, attn: Hodayah Finman.
     Mail: Air Docket, Environmental Protection Agency, 
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery or Courier. Deliver your comments to: EPA 
Air Docket, EPA West, 1301 Constitution Avenue, NW., Room B108, Mail 
Code 6102T, Washington, DC 20004. Such deliveries are only accepted 
during the Docket's normal hours of operation, and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2005-0131. EPA's policy is that all comments received will be included 
in the public

[[Page 18220]]

docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-
mail. The http://www.regulations.gov Web site is an ``anonymous 
access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Docket, EPA/
DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. 
This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Hodayah Finman, EPA, Stratospheric 
Protection Division, Office of Atmospheric Programs, Office of Air and 
Radiation (6205J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
(202) 343-9246.

SUPPLEMENTARY INFORMATION: EPA is publishing this amendment without 
prior proposal because the Agency views this as a noncontroversial 
action and anticipates no adverse comment. The Agency does not 
anticipate any adverse comment because of the importance of testing 
aircraft halon bottles for safety purposes and the environmental 
benefit resulting from the preventative maintenance of these 
containers. If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. Should EPA receive adverse comments, the Agency 
would consider and address all public comments received on this direct 
final rulemaking in any subsequent final rule. EPA will not institute a 
second comment period on this action. Any parties interested in 
commenting must do so at this time.

Table of Contents

I. General Information
    A. Regulated Entities
    B. What Should I Consider When Preparing My Comments?
II. Background
    A. Stratospheric Protection
    B. Halons
    C. Statutory Authority
    D. Summary of Direct Final Rule
III. Aircraft Halon Bottle Exemption from the Import Petitioning 
Process
    A. Import of Aircraft Halon Bottles for Hydrostatic Testing
    B. Import Petition Requirements for Used Controlled Substances
    C. Exemption to the Import Petition Requirements
    D. Reporting Requirements for Importers and Exporters
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. General Information

A. Regulated Entities

    The aircraft halon bottle exemption will affect the following 
categories:

------------------------------------------------------------------------
                                        NAICS     Examples of regulated
              Category                   code            entities
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Hydrostatic testing laboratories or      541380  Halon aircraft bottle
 services.                                        testing facilities.
------------------------------------------------------------------------

    This 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 believes could 
potentially be regulated by this action. Other types of entities not 
listed in this table could also be affected. To determine whether your 
facility, company, business organization, or other entity is regulated 
by this action, you should carefully examine these regulations. If you 
have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the FOR FURTHER 
INFORMATION CONTACT section.

B. What Should I Consider When Preparing My Comments?

    1. Confidential Business Information. Do not submit this 
information to EPA through http://www.regulations.gov or e-mail. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark 
the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is claimed as CBI). In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at

[[Page 18221]]

your estimate in sufficient detail to allow for it to be reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. Stratospheric Protection

    The stratospheric ozone layer protects the Earth from penetration 
of harmful ultraviolet (UV-B) radiation. International consensus exists 
that releases of certain man-made halocarbons, including 
chlorofluorocarbons (CFCs), halons, carbon tetrachloride, methyl 
chloroform, and methyl bromide, contribute to the depletion of the 
stratospheric ozone layer and should be controlled. Ozone depletion 
harms human health and the environment through increased incidence of 
certain skin cancers and cataracts, suppression of the immune system, 
damage to plants including crops and aquatic organisms, increased 
formation of ground-level ozone, and increased weathering of outdoor 
plastics. Under the Clean Air Act Amendments of 1990 (CAAA of 1990), 
the domestic implementing legislation for ozone layer protection, 
ozone-depleting substances (ODSs) have been designated as either class 
I or class II controlled substances (see 40 CFR part 82, appendices A 
and B to subpart A). Class I controlled substances are CFCs, halons, 
carbon tetrachloride, methyl chloroform, methyl bromide, 
hydrobromofluorocarbons and chlorobromomethane; class II controlled 
substances are hydrochlorofluorocarbons (HCFCs).

B. Halons

    Halons are gaseous or easily vaporized halocarbons used primarily 
for extinguishing fires, and for explosion protection. The two halons 
most widely used in the United States are halon-1211 and halon-1301. 
Halon-1211 is used primarily in streaming applications while halon-1301 
is typically used in total flooding applications. Some limited use of 
halon-2402 also exists in the United States, but only as an 
extinguishant in engine nacelles (the streamlined enclosure surrounding 
the engine) on older aircraft and in the guidance system of Minuteman 
missiles. The action in this direct final rule is not expected to 
affect the supply of unblended halons for these uses.
    Halons are used in a wide range of fire protection applications 
because they combine four characteristics. First, they are highly 
effective against solid, liquid/gaseous, and electrical fires (referred 
to as Class A, B, and C fires, respectively). Second, they dissipate 
rapidly, leaving no residue, and thereby avoid secondary damage to the 
property they are protecting. Third, halons do not conduct electricity 
and can be used in areas containing live electrical equipment where 
they can penetrate to and around physical objects to extinguish fires 
in otherwise inaccessible areas. Finally, halons are generally safe for 
limited human exposure when used with proper exposure controls.
    Despite these advantages, halons have a significant drawback; they 
are among the most ozone-depleting substances in use today. With an 
ozone depleting potential (ODP) of 0.2 representing the threshold for 
classification as a class I substance, halon-1301 has an estimated ODP 
of 10.0 and an atmospheric lifetime of 65 years. Halon-1211 has an 
estimated ODP of 3.0 and an atmospheric lifetime of 16 years. As an 
illustration of the significance of halons as ODSs, while total halon 
production (measured in metric tons) consisted of just 2 percent of the 
total production of class I substances in 1986, halons represented 23 
percent of the total estimated ozone depletion attributable to class I 
substances produced during that year. Prior to the early 1990s, the 
greatest releases of halon into the atmosphere occurred not in 
extinguishing fires, but during testing and training, service and 
repair, and accidental discharges. Data generated as part of the 
Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal 
Protocol) technology assessment indicated that only 15 percent of 
annual halon-1211 emissions and 18 percent of annual halon-1301 
emissions occur as a result of use to extinguish actual fires. These 
figures indicated that significant gains could be made in protecting 
the ozone layer by revising testing and training procedures and by 
limiting unnecessary discharges through better detection and dispensing 
systems for halon and halon alternatives.
    The fire protection community began to conserve halon reserves in 
response to the impending ban of the production and consumption of 
halons 1211, 1301, and 2402, which became effective January 1, 1994. In 
the context of the regulatory program, the use of the term consumption 
may be misleading. Consumption does not mean the ``use'' of a 
controlled substance, but rather is defined as production plus imports 
minus export of controlled substances (Article I of the Protocol and 
Section 601 of the CAAA of 1990).

C. Statutory Authority

    The current regulatory requirements of the Stratospheric Ozone 
Protection Program that limit production and consumption of ODSs can be 
found at 40 CFR part 82. The regulatory program was originally 
published in the Federal Register on August 12, 1988 (53 FR 30566), in 
response to the 1987 signing and subsequent ratification of the 
Montreal Protocol. 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 
CAAA of 1990, which included Title VI on Stratospheric Ozone 
Protection, codified as 42 U.S.C. Chapter 85, to ensure that the United 
States could satisfy its obligations under the Protocol. EPA issued new 
regulations to implement this legislation and has made several 
amendments to the regulations since that time.
    Since January 1, 1994, in accordance with the Montreal Protocol and 
the CAAA of 1990's accelerated phaseout provision, U.S. production and 
consumption of halon-1301 has been prohibited (40 CFR 82.4(c)(1), 58 FR 
65018). The Montreal Protocol mandated a freeze in the production and 
consumption of halon-1211, halon-1301, and halon-2402 in 1992 at the 
1986 baseline levels and, as subsequent adjustments adopted by the 
Parties at their Fourth Meeting in 1992, required a 100 percent 
phaseout by January 1, 1994. EPA issued regulations under authority of 
sections 604 and 606 of the CAAA of 1990 reflecting this phaseout 
schedule. Section 604 of the CAAA of 1990 sets forth initial phaseout 
dates for certain Class I substances, including halons, while section 
606 states that EPA shall promulgate an accelerated phaseout schedule 
if the Agency determines that it may be necessary to protect human 
health and the environment; if the Agency determines that is 
practicable based on the availability of substitutes; or if the 
Montreal Protocol is modified to include a more stringent schedule. EPA 
found that all of these criteria were met with respect to the 
accelerations adopted at the Parties' Fourth Meeting (58 FR 65024).
    Although the regulations phased out the production and consumption 
of class I, Group II substances (halons) on January 1, 1994, most other 
class I controlled substances on January 1,

[[Page 18222]]

1996, and methyl bromide on January 1, 2005, a very limited number of 
exemptions exist, consistent with U.S. obligations under the Protocol. 
The regulations allow for the manufacture of phased-out class I 
controlled substances, provided the substances are either transformed 
or destroyed (40 CFR 82.4(b)). They also allow limited manufacture if 
the substances are (1) exported to developing countries listed under 
Article 5 of the Protocol to meet basic domestic needs, or (2) produced 
for essential or critical uses as authorized by the Protocol and the 
regulations (40 CFR 82.4 (b)).
    The regulations allow for the import of phased-out class I 
controlled substances provided the substances are either transformed or 
destroyed (40 CFR 82.4(d)). Limited exceptions to the ban on the import 
of phased-out class I controlled substances also exist if the 
substances are: (1) Previously used, recycled, or reclaimed and the 
importer files a petition and receives a non-objection notice from the 
Administrator (40 CFR 82.4(j)); (2) imported for essential or critical 
uses as authorized by the Protocol and the regulations, or (3) a 
transhipment or a heel (40 CFR 82.4(d)).
    When the Stratospheric Ozone Protection Program was first 
implemented in the U.S., EPA did not make a distinction between the 
import of new and used controlled substances. In 1992, Decision IV/24 
taken by the Parties to the Montreal Protocol interpreted Article 2 of 
the treaty as allowing a country to import a used ODS beyond the 
phaseout date of that substance. Specifically, the decision indicates 
the Parties' interpretation that import of a ``used'' substance does 
not constitute ``consumption'' of a substance. The Parties took this 
decision to promote the use of banks of ODS and thus facilitate the 
transition to ozone-safe alternatives. Following Decision IV/24, EPA 
added a regulatory provision to allow for the import of previously used 
or recycled controlled substances without allowances (December 10, 
1993, 58 FR 65018). Prior to that time, all imports of controlled 
substances, whether new or used, could only occur if the importing 
entity held and expended sufficient allowances for the transaction 
(July 30, 1992, 57 FR 33754).
    The Agency found, however, that the December 1993 rule was too 
permissive and that containers of virgin ODS could be, and in fact 
were, easily imported as fraudulently labeled used material. Other 
countries also experienced a rise in the illegal shipment of 
fraudulently labeled ODS following the reclassification of used ODS in 
Decision IV/24. Therefore, in 1994, EPA proposed to revise its 
regulations and require all importers to petition the Agency prior to 
importing a used ODS (November 10, 1994, 59 FR 56275). This petition 
process would allow the Agency to verify that a shipment in fact 
contained a used controlled substance and thus reduce, although not 
eliminate, the potential for illegal trade. In addition, the Agency 
also proposed to amend the definition of ``used and recycled controlled 
substances'' to include only the term ``used.'' In its description of 
the proposed changes to the definition of used controlled substances, 
the Agency further stated that: ``[i]n this manner, a controlled 
substance is defined as used if it was recovered from a use system, 
regardless of whether it was subsequently recycled or reclaimed'' (59 
FR 56285). These proposed changes, with minor adjustments based on 
comments, were finalized by the Agency and the petition process for the 
import of used ODS was codified into EPA regulation (May 10, 1995, 60 
FR 24970).
    The Agency later addressed the petition process in a direct final 
rulemaking (August 4, 1998, 63 FR 41626). This rule made several 
modifications to the petition process including changing the amount of 
time the Administrator has to review transactions and reducing the de 
minimis threshold for the petition process from 150 pounds of ODS to 5 
pounds. Some of the changes associated with the import petition process 
received adverse comment and were withdrawn (October 5, 1998, 63 FR 
53290). A subsequent final rule issued by the Agency established the 
requirements that are currently in effect for the import petition 
process (December 31, 2002, 67 FR 79861).
    Additional authority for the amendments in this direct final rule 
is found in section 608(a)(2) of the CAAA of 1990, which directs EPA to 
establish standards and requirements regarding use and disposal of 
class I and II substances other than refrigerants. The goal of section 
608(a) is to reduce the use and emission of ODS to the lowest 
achievable level and maximize the recapture and recycling of such 
substances. EPA previously issued a rule implementing this provision 
with respect to halon use generally. 63 FR 11084 (March 5, 1998); 40 
CFR part 82, subpart H.
    In the instance of aircraft halon bottles, EPA believes that this 
direct final rule will create a further incentive for industry to 
minimize emissions of halons by exempting certain importers from the 
up-front petition process in order to facilitate proper maintenance of 
the bottles and thereby minimize the potential for fissures and leaking 
of ODS from these bottles.

D. Summary of Direct Final Rule

    In this action, EPA is further amending its regulations to exempt 
the import of aircraft halon bottles for hydrostatic testing from the 
import petition process.
    EPA classifies halon-1301 contained in aircraft halon bottles 
removed from an on-board fire suppression system as used controlled 
substances. EPA regulations define ``used controlled substances'' as 
``controlled substances that have been recovered from their intended 
use systems (may include controlled substances that have been, or may 
be subsequently, recycled or reclaimed)'' (40 CFR 82.3). Halon-1301 is 
placed into aircraft bottles and the bottles are then inserted into a 
fire suppression system. When the system is dismantled or the bottles 
are removed from the system, the halon-1301 contained in the bottles is 
considered used since it was removed from a use system.
    In the history of the program, the mechanisms that govern the 
import of used ODS have ranged from no controls to a detailed up-front 
petition process. The Agency, to a significant extent, selected 
implementation mechanisms based on parameters such as practicability 
and protection of the ozone layer. When EPA believed it was to the 
benefit of the environment to encourage the import of used ODS, the 
Agency implemented a nonrestrictive import mechanism. When the Agency 
discovered a rise in illegal trade of ODS, EPA instituted a thorough 
petition process to curb the traffic of illicit material.
    EPA does not believe that it is economically feasible to illegally 
import halon-1301 in aircraft bottles due to the size, costs, and 
uniqueness of the bottles. Thus, part of the basis for EPA's action to 
establish a rigorous petition process does not apply in this instance. 
Furthermore, EPA believes that a narrow exemption for aircraft halon 
bottles is appropriate because it will remove impediments to the proper 
maintenance of these halon-1301 containing bottles. In the United 
States and abroad the exclusion of these aircraft bottles from the 
import petition process will cause transit and testing to occur in a 
more expeditious fashion, thus promoting proper maintenance of these 
five suppression devises. Proper maintenance of these bottles is 
crucial, not only from a safety perspective as described in the 
following section of this preamble, but from an

[[Page 18223]]

environmental point of view as well. Halon-1301 has a high ODP and the 
Agency supports prevention of accidental emissions through proper 
maintenance of the storage vessels.

III. Aircraft Halon Bottle Exemption from the Import Petitioning 
Process

A. Import of Aircraft Halon Bottles for Hydrostatic Testing

    Halon-1301 is a gaseous compound used in fire suppression systems 
and devices. The chemical is used in aircraft halon bottles that are 
components of larger fire suppression systems used on aircraft. Halon 
bottles are pressurized containers that typically contain from one to 
one hundred pounds of a halon-1301/nitrogen mixture. As halon bottles 
are under high pressure in severe environments, they are at risk of 
leakage and their effectiveness may decrease over time. Hydrostatic 
testing of the bottles detects such leakage and determines whether the 
bottles are functioning properly.
    The halon bottles must be tested routinely under Federal Aviation 
Administration (FAA) and United States Department of Transportation 
(DOT) regulations. Federal Aviation Regulations (FAR) section 
25.851(a)(6) (14 CFR part 25) requires the presence of halon bottles 
aboard transport category aircraft. The FAA Flight Standards Handbook 
Bulletin for Airworthiness 02-01B (effective July 16, 2002 and amended 
February 10, 2003) provides guidance on the maintenance and inspection 
of the halon bottles and states in paragraph 3(b) that ``pressure 
cylinders that are installed as aircraft equipment will be maintained 
and inspected in accordance with manufacturer's requirements.'' 
Manufacturer's requirements specify periodic testing of aircraft halon 
bottles.
    Halon bottles may be serviced by an on-site facility at an airport 
or may be removed from the aircraft, shipped to a testing facility at a 
location in the U.S. or abroad, and then returned to the airline. Once 
a hydrostatic testing company receives the halon bottles, the used 
halon-1301 is removed and recovered for future reclamation. The bottles 
are then hydrostatically tested to ensure durability and effectiveness, 
after which they are re-filled with halon-1301 and returned to the 
customer.
    EPA is aware of two major service companies and about 15 other 
companies that provide hydrostatic testing services to the airline 
industry. Industry experts estimate that approximately 60,000 bottles 
are in service globally, some portion of which are serviced in U.S. 
testing facilities. Information provided to the Agency from the two 
major U.S. companies indicates that each year those companies service 
about 5,000 bottles, some portion of which are imported. The amount of 
halon in the aircraft bottles can range from 1 to 100 pounds of halon-
1301, although most bottles contain between 5 to 25 pounds. If EPA were 
to assume that, in total, the smaller companies service half as many 
bottles as the two major companies do together, and EPA were to assume 
that each of those bottles contained 25 pounds of halon, that would 
mean that in a given year the U.S. is servicing bottles containing 
187,500 pounds of halon-1301 per year, which is equivalent to 850 ODP 
weighted metric tons. However, EPA understands that not all aircraft 
bottles are imported with complete charges, meaning that a bottle 
capable of holding 25 pounds of halon-1301 may in fact contain less. It 
is industry practice, however, to export the bottles back to the 
country of origin with a full charge of halon-1301. Thus, the U.S. is 
likely a net exporter of used halon in aircraft bottles.
    A recent industry estimate on the amount of halon-1301 imported 
into the U.S. in aircraft bottles indicated that some 2,700 bottles are 
imported for testing on an annual basis. These bottles are imported 
containing 24,000 pounds of halon and exported containing 28,000 pounds 
of halon. These estimates are based on data from seven companies which 
the industry believes represents 90 percent of the market. This data 
confirms EPA's understanding of the relatively small amount of halon 
imported for the purpose of testing aircraft bottles and the practice 
of exporting more halon than is imported in the process of such routine 
servicing.

B. Import Petition Requirements for Used Controlled Substances

    The final rule published in the Federal Register on May 10, 1995 
(60 FR 24970), established a petitioning system for the import of class 
I controlled substances. The system required a person to submit a 
petition to import used class I controlled substances prior to the 
import of each shipment over a de minimis amount. A de minimis amount 
of 150 pounds was initially established in the May 10, 1995 final rule 
to allow companies to import small samples of material for testing or 
lab analysis without the requirement to submit a petition to EPA prior 
to import of the controlled substance; that amount was later lowered to 
5 pounds.
    As explained in the preamble to the May 10, 1995, final rule, the 
intent of the petition process is to allow EPA to independently verify 
whether a class I controlled substance is, in fact, previously used. 
EPA established the petition process because quantities of class I 
controlled substances were entering the U.S. mis-identified as ``used'' 
when they were, in fact, newly produced. Under the Montreal Protocol, 
trade in of previously used controlled substances is permitted even 
after the phaseout dates. To independently verify that a quantity of 
class I controlled substance was previously used, EPA needs detailed 
information about the source facility from which the material was 
recovered.
    On August 4, 1998 (63 FR 41625), EPA finalized changes to the 
petitioning process that included a more comprehensive and detailed 
list of required information for petitions to import used class I 
controlled substances, including a requirement to provide information 
documenting the custody chain of the controlled substance starting from 
the point of origin and continuing throughout the entire custody chain. 
Most of these changes were intended to make the regulatory text more 
explicit regarding the type of information that EPA needs to 
independently verify the previous use of the controlled substance. One 
of the amendments affecting importers of halon-1301 bottles was the 
change in the de minimis amount to five pounds. The de minimis 
provision was intended to allow companies to import samples of material 
for laboratory analysis. The de minimis amount was lowered because EPA 
learned that such samples are generally taken from large tanks in 
special cylinders that weigh less than 2 pounds.
    The import petition requirements are specified at 40 CFR 
82.13(g)(2). They state, in part, that 40 days prior to shipment from 
the foreign port of export, the importer must provide information to 
the Administrator including, but not limited to the following: Name and 
quantity of controlled substance to be imported; name and address of 
the importer along with information for a contact person; name and 
address of source facility along with information for a contact person; 
detailed description of the previous use providing documents where 
possible; a list of the name, make and model of the equipment from 
which the ODS was recovered; name and address of exporter along with 
contact information; the U.S. port of entry and expected date of 
shipment; a description of the intended use of the controlled 
substance; and the name and address of the U.S. reclamation facility 
where applicable. EPA may issue an objection

[[Page 18224]]

to the petition if the information submitted by the importer lacks or 
appears to lack any of the information required under 40 CFR 
82.13(g)(2). The Agency recognizes that this level of detail is not 
necessary to control the import of halon-1301 contained in aircraft 
halon bottles destined for service and is therefore amending its 
regulations as described in the following section of this preamble.

C. Exemption to the Import Petition Requirements

    This direct final rule exempts importers of halon-1301 shipped in 
aircraft halon bottles from the petition import requirements under 40 
CFR 82.13(g)(2), as described in the previous section of this preamble. 
An importer or exporter of halon-1301 contained in aircraft halon 
bottles is typically a maintenance and testing facility that is a 
certified repair station under 14 CFR part 145 or an aircraft halon 
bottle manufacturer that imports and exports aircraft fire 
extinguishing pressure vessels for servicing, maintenance, and 
hydrostatic testing. Under this direct final rule, importers of 
aircraft halon bottles are no longer required to submit petition data 
to, and seek approval from, the Administrator prior to individual 
imports.

D. Reporting and Recordkeeping Requirements for Importers and Exporters

    The Agency tracks the amount of used halon-1301 imported and 
exported annually in aircraft bottles because such movement of halon 
across U.S. borders constitute import and export as characterized under 
40 CFR part 82. EPA reminds importers that they are still required to 
maintain import records, as set forth in 40 CFR 82.13(g)(1), including 
but not limited to the following: (i) The quantity of each controlled 
substance imported, either alone or in mixtures, including the 
percentage of each mixture which consists of a controlled substance; 
(ii) The quantity of those controlled substances imported that are used 
(including recycled or reclaimed) and the information provided with the 
petition as under Sec.  82.13(g)(2), where applicable; (iii) The 
quantity of controlled substances other than transhipments or used, 
recycled or reclaimed substances imported for use in processes 
resulting in their transformation or destruction and quantity sold for 
use in processes that result in their destruction or transformation; 
(iv) The date on which the controlled substances were imported; (v) The 
port of entry through which the controlled substances passed; (vi) The 
country from which the imported controlled substances were imported; 
(vii) The commodity code for the controlled substances shipped, which 
must be one of those listed in Appendix K to 40 CFR part 82, subpart A; 
(viii) The importer number for the shipment; (ix) A copy of the bill of 
lading for the import; (x) The invoice for the import; (xi) The 
quantity of imports of used, recycled or reclaimed class I controlled 
substances; and (xii) The U.S. Customs entry form.
    EPA is amending the recordkeeping requirement at 40 CFR 82.13(g)(1) 
to state that information provided through the petition process is only 
to be maintained ``where applicable.'' No such information will have 
been provided in the case of aircraft halon bottles. EPA is not 
amending the remaining reporting and recordkeeping requirements for 
importers and exporters, found at 40 CFR 82.13(g)(4) and (h)(1) 
respectively, but is restating them in this preamble for convenience of 
the public.
    EPA reminds importers of aircraft halon bottles that they are 
required to submit quarterly reports within 45 days of the end of the 
applicable quarter, in accordance with 40 CFR 82.13(g)(4), that include 
but are not limited to the following information: (i) A summary of the 
records required in paragraphs 40 CFR 82(g)(1) (i) through (xvi) for 
the previous quarter; (ii) the total quantity imported in kilograms of 
each controlled substance for that quarter; and (iii) the quantity of 
those controlled substances imported that are used controlled 
substances.
    EPA reminds persons that may test aircraft halon bottles and 
subsequently export them that they must submit an annual report (45 
days after the end of the calendar year, in accordance with 40 CFR 
82.13(h). The annual report must includes but is not limited to the 
following information: (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.
    EPA has provided guidance on the reporting and recordkeeping 
requirements. The importer quarterly report form and the annual 
exporter report form may be found on EPA's Web site at http://www.epa.gov/ozone/record/index.html. This information is also available 
via the Ozone Hotline at (800) 296-1996.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether this regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines a 
``significant'' regulatory action as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal government or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this is 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 will be documented in the public record.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
Current recordkeeping and reporting requirements under 40 CFR 82.13 
allow EPA to implement the provisions of this direct final rule. This 
action will reduce the reporting burden that would otherwise be 
required under 40 CFR 82.13 (g) by removing the requirement to submit 
information to EPA prior to each import of aircraft halon bottles. OMB 
has previously approved the information collection requirements 
contained in the existing regulations under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

[[Page 18225]]

and has assigned OMB control number 2060-0170, EPA ICR number 1432.25. 
A copy of the OMB approved Information Collection Request (ICR) may be 
obtained from Susan Auby, Collection Strategies Division; U.S. 
Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., 
Washington, DC 20460 or by calling (202) 566-1672. Burden means the 
total time, effort, or financial resources expended by persons to 
generate, maintain, retain, or disclose or provide information to or 
for a Federal agency. This includes the time needed to review 
instructions; develop, acquire, install, and utilize technology and 
systems for the purposes of collecting, validating, and verifying 
information, processing and maintaining information, and disclosing and 
providing information; adjust the existing ways to comply with any 
previously applicable instructions and requirements; train personnel to 
be able to respond to a collection of information; search data sources; 
complete and review the collection of information; and transmit or 
otherwise disclose the information. An agency may not conduct or 
sponsor, and a person is not required to respond to a collection of 
information unless it displays a currently valid OMB control number. 
The OMB control numbers for EPA's regulations in 40 CFR are listed in 
40 CFR part 9.

C. Regulatory Flexibility Act

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule. For purposes 
of assessing the impacts of this direct final rule on small entities, 
small entity is defined as: (1) A small business that is primarily 
engaged in the hydrostatic testing of aircraft halon bottles as defined 
in NAIC code 541380 with annual receipts less than $10,000,000 (based 
on Small Business Administration size standards); (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.
    After considering the economic impacts of this 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. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may conclude that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    This final rule will reduce the administrative burden on all 
entities who import aircraft halon bottles. We have therefore concluded 
that this direct final rule will relieve regulatory burden for all 
affected small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most 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 applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Section 203 of UMRA requires the Agency to establish a plan for 
obtaining input from and informing, educating, and advising any small 
governments that may be significantly or uniquely affected by the rule. 
Section 204 requires the Agency to develop a process to allow elected 
state, local, and tribal government officials to provide input in the 
development of any proposal containing a significant Federal 
intergovernmental mandate.
    This direct final rule contains no Federal mandates (under the 
regulatory provision of Title II of the UMRA) for State, local, or 
tribal governments or the private sector. This rule imposes no 
enforceable duty on any State, local or tribal government or the 
private sector. Thus, this direct final rule is not subject to the 
requirements of sections 202 and 205 of UMRA. EPA has also determined 
that this rule contains no regulatory requirements that might 
significantly or uniquely affect small governments; therefore, EPA is 
not required to develop a plan with regard to small governments under 
section 203. Finally, because this rule does not contain a significant 
intergovernmental mandate, the Agency is not required to develop a 
process to obtain input from elected state, local, and tribal officials 
under section 204.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This direct final rule is expected 
to primarily affect importers and exporters of halons. Thus, Executive 
Order 13132 does not apply to this rule.

[[Page 18226]]

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 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. It does not 
impose any enforceable duties on communities of Indian tribal 
governments. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
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.
    While this final rule is not subject to the Executive Order because 
it is not economically significant as defined in E.O. 12866, we 
nonetheless have reason to believe that the environmental, health, or 
safety risk addressed by this action may have a disproportionate effect 
on children. Depletion of stratospheric ozone results in greater 
transmission of the sun's ultraviolet (UV) radiation to the earth's 
surface. The following studies describe the effects on children of 
excessive exposure to UV radiation: (1) Westerdahl J, Olsson H, Ingvar 
C. ``At what age do sunburn episodes play a crucial role for the 
development of malignant melanoma,'' Eur J Cancer 1994; 30A: 1647-54; 
(2) Elwood JM, Jopson J. ``Melanoma and sun exposure: an overview of 
published studies,'' Int J Cancer 1997; 73:198-203; (3) Armstrong BK. 
``Melanoma: childhood or lifelong sun exposure'' In: Grobb JJ, Stern 
RS, Mackie RM, Weinstock WA, eds. ``Epidemiology, causes and prevention 
of skin diseases,'' 1st ed. London, England: Blackwell Science, 1997: 
63-6; (4) Whiteman D., Green A. ``Melanoma and Sunburn,'' Cancer Causes 
Control, 1994: 5:564-72; (5) Kricker A, Armstrong, BK, English, DR, 
Heenan, PJ. ``Does intermittent sun exposure cause basal cell 
carcinoma? A case control study in Western Australia,'' Int J Cancer 
1995; 60: 489-94; (6) Gallagher, RP, Hill, GB, Bajdik, CD, et. al. 
``Sunlight exposure, pigmentary factors, and risk of nonmelanocytic 
skin cancer I, Basal cell carcinoma,'' Arch Dermatol 1995; 131: 157-63; 
(7) Armstrong, BK. ``How sun exposure causes skin cancer: an 
epidemiological perspective,'' Prevention of Skin Cancer. 2004. 89-116.
    EPA anticipates that this rule will have a positive impact on the 
environment and human health by removing a disincentive to preventive 
maintenance of aircraft halon bottles and reducing the likelihood of 
accidental emissions. Thus, this rule is not expected to increase the 
impacts on children's health from stratospheric ozone depletion.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    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.

I. The National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 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.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a 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 action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 12, 2006.

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedure, 
Chemicals, Exports, Halon, Imports, Ozone Layer, Reporting and 
recordkeeping requirements.

    Dated: April 5, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, 40 CFR part 82 is amended as 
follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

0
1. The authority citation for part 82 continues to read as follows:


    Authority: 42 U.S.C. 7414, 7601, 7671-7671q.


0
2. Section 82.3 is amended by adding a definition for ``Aircraft halon 
bottle'' to read as follows:


Sec.  82.3  Definitions for class I and class II controlled substances.

* * * * *
    Aircraft halon bottle means a vessel used as a component of an 
aircraft fire suppression system containing halon-1301 approved under 
FAA rules for installation in a certificated aircraft.
* * * * *

0
3. Section 82.4 is amended by revising paragraph (j) to read as 
follows:


Sec.  82.4  Prohibitions for class I controlled substances.

* * * * *
    (j) Effective January 1, 1995, no person may import, at any time in 
any control period, a used class I controlled substance, except for 
Group II used controlled substances shipped in

[[Page 18227]]

aircraft halon bottles, without having received a non-objection notice 
from the Administrator in accordance with Sec.  82.13(g)(2) and (3).
* * * * *

0
4. Section 82.13 is amended by revising paragraphs (g)(1)(ii) and 
(g)(2) introductory text to read as follows:


Sec.  82.13  Recordkeeping and reporting requirements for class I 
controlled substances.

* * * * *
    (g) * * *
    (1) * * *
    (ii) The quantity of those controlled substances imported that are 
used (including recycled or reclaimed) and, where applicable, the 
information provided with the petition as under paragraph (g)(2) of 
this section;
* * * * *
    (2) Petitioning--Importers of Used, Recycled or Reclaimed 
Controlled Substances. For each individual shipment over 5 pounds of a 
used controlled substance as defined in Sec.  82.3, except for Group II 
used controlled substances shipped in aircraft halon bottles, an 
importer must submit directly to the Administrator, at least 40 working 
days before the shipment is to leave the foreign port of export, the 
following information in a petition:
* * * * *
[FR Doc. 06-3461 Filed 4-10-06; 8:45 am]
BILLING CODE 6560-50-P