[Federal Register Volume 72, Number 177 (Thursday, September 13, 2007)]
[Proposed Rules]
[Pages 52332-52337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18095]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2007-0384; FRL-8467-3]
RIN 2060-AO28


Protection of Stratospheric Ozone: Extension of Global Laboratory 
and Analytical Use Exemption for Essential Class I Ozone-Depleting 
Substances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to extend the global laboratory and 
analytical use exemption for production and import of class I ozone-
depleting substances beyond December 31, 2007, contingent upon and 
consistent with future anticipated actions by the Parties to the 
Montreal Protocol on Substances that Deplete the Ozone Layer. The 
exemption allows persons in the United States to produce and import 
controlled substances for laboratory and analytical uses that have not 
been already identified by EPA as nonessential. EPA also is proposing 
to add, for specific laboratory uses, the applicability of the 
laboratory and analytical use exemption to production and import of 
methyl bromide.

DATES: Written comments on this proposed rule must be received by the 
EPA Docket on or before November 13, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2007-0384, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: 202-343-2338, attn: Staci Gatica.
     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 20460. Such deliveries are only accepted 
during the Docket's normal hours of operation, and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR -
2007-0384. EPA's policy is that all comments received by the docket 
will be included in the public docket without change and may be made 
available online at 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 
through www.regulations.gov or e-mail that you consider to be CBI or 
otherwise protected. If you would like the Agency to consider comments 
that include CBI, EPA recommends that you submit the comments to the 
docket that exclude the CBI portion but that you provide a complete 
version of your comments, including the CBI, to the person listed under 
ADDRESSES above. The 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 
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 
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 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: Staci Gatica by regular mail: U.S. 
Environmental Protection Agency, Stratospheric Protection Division 
(6205J), 1200 Pennsylvania Avenue, NW., Washington, DC, 20460; by 
courier service or overnight express: 1301 L Street, NW., Washington, 
DC 20005, Workstation 1047B, by telephone: 202-343-9469; or by e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
    A. What should I consider when preparing my comments?
II. Extension of the Global Laboratory and Analytical Use Exemption
III. Applicability of the Global Laboratory and Analytical Use 
Exemption to Methyl Bromide
IV. Minor Technical Corrections
V. 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 Risks and Safety Risks

[[Page 52333]]

    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. What should I consider when preparing my comments?

    1. Confidential Business Information. Do not submit this 
information to EPA through 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 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. Extension of the Global Laboratory and Analytical Use Exemption

    The Montreal Protocol on Substances that Deplete the Ozone Layer 
(Montreal Protocol) is the international agreement to reduce and 
eventually eliminate the production and consumption \1\ of all 
stratospheric ozone-depleting substances (ODSs). The elimination of 
production and consumption of ODSs has been accomplished through 
adherence to phaseout schedules for specific ODSs. Section 604 of the 
Clean Air Act, as amended in 1990 and 1998, requires EPA to promulgate 
regulations implementing the Montreal Protocol's phaseout schedules in 
the United States. Those regulations are codified at 40 CFR part 82 
Subpart A. As of January 1, 1996, production and import of most class I 
ODSs--including chlorofluorocarbons (CFCs), halons, carbon 
tetrachloride, and methyl chloroform \2\--were phased out in developed 
countries, including the United States.
---------------------------------------------------------------------------

    \1\ ``Consumption'' is defined as the amount of a substance 
produced in the United States, plus the amount imported into the 
United States, minus the amount exported to Parties to the Montreal 
Protocol (see Section 601(6) of the Clean Air Act).
    \2\ Class I ozone depleting substances are listed at 40 CFR part 
82 subpart A, appendix A.
---------------------------------------------------------------------------

    However, the Montreal Protocol provides exemptions that allow for 
the continued import and/or production of ODSs for specific uses. Under 
the Montreal Protocol, for most class I ODSs, the Parties may 
collectively grant exemptions to the ban on production and import of 
ODSs for uses that they determine to be ``essential.'' For example, 
with respect to CFCs, Article 2A(4) provides that the phaseout will 
apply ``save to the extent that the Parties decide to permit the level 
of production or consumption that is necessary to satisfy uses agreed 
by them to be essential.'' Similar language appears in the control 
provisions for halons (Art. 2B), carbon tetrachloride (Art. 2D), methyl 
chloroform (Art. 2E), hydrobromofluorocarbons (Art. 2G), and 
chlorobromomethane (Art. 2I). As defined by Decision IV/25 of the 
Parties, use of a controlled substance is essential only if (1) it is 
necessary for the health, safety or is critical for the functioning of 
society (encompassing cultural and intellectual aspects), and (2) there 
are no available technically and economically feasible alternatives or 
substitutes that are acceptable from the standpoint of environment and 
health.
    Decision X/19 (taken in 1998) allowed a general exemption for 
essential laboratory and analytical uses through December 31, 2005. EPA 
included this exemption in our regulations at 40 CFR part 82, subpart 
A. While the Clean Air Act does not specifically provide for this 
exemption, EPA determined that an exemption for essential laboratory 
and analytical uses was allowable under the Act as a de minimis 
exemption. EPA addressed the de minimis exemption in the final rule of 
March 13, 2001 (66 FR 14760-14770).
    Decision X/19 also requested the Montreal Protocol's Technology and 
Economic Assessment Panel (TEAP), a group of technical experts from 
various Parties, to report annually to the Parties to the Montreal 
Protocol on procedures that could be performed without the use of 
controlled substances. It further stated that at future Meetings of the 
Parties (MOPs), the Parties would decide whether such procedures should 
no longer be eligible for exemptions. Based on the TEAP's 
recommendation, the Parties to the Montreal Protocol decided in 1999 
(Decision XI/15) that the general exemption no longer applied to the 
following uses: Testing of oil and grease and total petroleum 
hydrocarbons in water; testing of tar in road-paving materials; and 
forensic finger-printing. EPA incorporated this exclusion at Appendix G 
to Subpart A of 40 CFR part 82 on February 11, 2002 (67 FR 6352).
    Most recently, in its 2006 Assessment Report, the Chemicals 
Technical Options Committee (CTOC) (a subgroup that reports to the 
TEAP), explained that while it was brought to their attention that some 
opportunities for substitution exist, there has been only slow progress 
in replacing ODSs that are being used in laboratory and analytical 
procedures with substances that are less harmful to the ozone layer (p. 
31, Air Docket EPA-HQ-OAR-2007-0384). The TEAP has not recommended any 
additional procedures to exclude from the exemption for existing 
approved ODSs. Members of the CTOC will continue to monitor possible 
alternatives and report back to the Parties.
    However, at the Eighteenth MOP the Parties acknowledged the need 
for methyl bromide for laboratory and analytical procedures, and added 
methyl bromide to the approved ODSs under the essential laboratory and 
analytical use exemption. Decision XVIII/15 outlines specific uses and 
exclusions for methyl bromide under the exemption. Section III of this 
preamble provides further discussion of the inclusion of methyl bromide 
in the essential laboratory and analytical use exemption.
    Based on (1) The CTOC's recognition that new non-ODS methods are 
not available for existing exempted laboratory and analytical uses and 
(2) the recent decision by the Parties to include methyl bromide under 
the exemption, EPA believes it is very likely that the Parties plan to 
extend the

[[Page 52334]]

existing exemption, which is currently set to expire on December 31, 
2007. EPA expects this decision to be made during the nineteenth MOP in 
September 2007, as the current agenda includes the discussion to extend 
the essential laboratory and analytical use exemption.
    Anticipating extension of the essential laboratory and analytical 
use exemption, EPA is proposing in this rulemaking to extend the 
applicability of the exemption beyond December 31, 2007. Specifically, 
EPA is proposing to extend the exemption through December 31, 2015; 
however, based on comments and the anticipated Decision by the Parties 
to the Protocol, EPA would amend the date in the final rule to be 
consistent with the Parties' Decision if a date other than December 31, 
2015 is chosen. Until a Decision is adopted by the Parties the Agency 
does not know exactly what date will be decided upon by the Parties. 
EPA considered proposing an extension date of 2009, since the previous 
extension for this exemption was two years, from December 31, 2005 
through December 31, 2007. But based on recent discussions by technical 
experts, such as the CTOC (p. 31, Air Docket EPA-HQ-OAR-2007-0384), EPA 
believes that the exemption for essential laboratory and analytical 
uses will be necessary for some time longer than two years and that the 
Parties may decide upon an extension beyond two years. Therefore, EPA 
is proposing to extend the exemption through December 31, 2015 based on 
when it may be reasonable to assume that an exemption would no longer 
be necessary. EPA intends to finalize this rulemaking using the actual 
extension date decided upon by the Parties to ensure consistency, 
noting that the Parties will have considered the most recent technical 
review and analysis conducted by the CTOC and the TEAP. Furthermore, 
the overall finalization of the rule is contingent upon the Parties' 
extension of the exemption under the Montreal Protocol. EPA is 
interested in any comments the public may have on the proposed 
extension date, including our rationale for finalizing a date different 
from the proposed date of December 31, 2015, based on the anticipated 
future decision by the Parties of the Montreal Protocol.
    EPA's regulations regarding this exemption at 40 CFR 82.8(b) 
currently state, ``A global exemption for class I controlled substances 
for essential laboratory and analytical uses shall be in effect through 
December 31, 2007 subject to the restrictions in appendix G of this 
subpart, and subject to the record keeping and reporting requirements 
at Sec. 82.13(u) through (x). There is no amount specified for this 
exemption.'' Because certain laboratory procedures continue to require 
the use of class I substances in the United States, because non-ODS 
replacements for the class I substances have not been identified for 
all uses, and because EPA anticipates the Parties will extend this 
exemption under the Montreal Protocol, EPA is proposing to revise 40 
CFR 82.8(b) to reflect the extension of the exemption to December 31, 
2015. For a more detailed discussion of the reasons for the exemption, 
refer to the March 13, 2001, Federal Register notice. As discussed in 
the March 2001 notice, the controls in place for laboratory and 
analytical uses provide adequate assurance that very little, if any, 
environmental damage will result from the handling and disposal of the 
small amounts of class I ODS used in such applications. In addition, 
the 2006 CTOC Assessment Report shows a general decrease from 2002 
through 2005 in the amount of phased-out class I substances being 
supplied to laboratories under this exemption (p. 33, EPA-HQ-OAR-2007-
0384).

III. Applicability of the Global Laboratory and Analytical Use 
Exemption to Methyl Bromide

    As of January 1, 2005, production and import of methyl bromide has 
been disallowed in the United States, except for limited exemptions (40 
CFR 82.4(d)). Methyl bromide is a class I controlled substance used 
chiefly as a fumigant for soil treatment and pest control. EPA created 
a system of allowances to permit continued production and import of 
methyl bromide for critical uses after January 1, 2005 (see 69 FR 
76981, December 23, 2004). This exemption does not include provisions 
for continued production of methyl bromide to supply laboratories. 
However, the phaseout of methyl bromide production and import does not 
currently restrict inventories of methyl bromide produced prior to 
January 1, 2005, from being used for laboratory and analytical 
applications, as described in the Framework rule (69 FR 76982).
    Methyl bromide (also known as bromomethane) does have laboratory 
uses, for example, as a chemical intermediate and methylating agent. 
EPA regulations allow for methyl bromide to be produced after the 
January 1, 2005, phaseout date if production is covered by ``essential 
use allowances or exemptions.'' (40 CFR 82.4(b)(1)) The regulations 
list the laboratory and analytical use exemption as a ``global 
exemption for class I controlled substances,'' subject to the 
restrictions in appendix G (40 CFR 82.4(n)(1)(iii), 82.8(b)). EPA did 
not originally address the issue of whether the exemption should apply 
to methyl bromide, but EPA did propose to include methyl bromide in the 
2005 rulemaking that extended the exemption through December 31, 2007 
(see 70 FR 25727). EPA received one comment on the proposed inclusion 
of methyl bromide, and it was general in nature. Nonetheless, EPA 
recognized that further discussion of whether the global laboratory 
exemption should include methyl bromide might occur at a future MOP and 
deferred final action on the issue.
    In November of 2006, during the meeting of the Parties to the 
Montreal Protocol, the Parties included methyl bromide in the essential 
laboratory and analytical use exemption via Decision XVIII/15. 
Specifically, the Decision XVIII/15 allows methyl bromide be used: (1) 
As a reference or standard (a) to calibrate equipment which uses methyl 
bromide; (b) to monitor methyl bromide emission levels; (c) to 
determine methyl bromide residue levels in goods, plants, and 
commodities; (2) in laboratory toxicological studies; (3) to compare 
the efficacy of methyl bromide and its alternatives inside a 
laboratory; (4) as a laboratory agent which is destroyed in a chemical 
reaction in the manner of feedstock. Furthermore, Decision XVIII/15 
specifically disallows classifying field trials using methyl bromide as 
essential laboratory and analytical uses and indicates that entities 
wishing to carry out such field trials could submit critical use 
nominations for that purpose (p. 43, EPA-HQ-OAR-2007-0384).
    Furthermore, we believe that extending the essential laboratory and 
analytical uses exemption to include methyl bromide is fully consistent 
with allowing this exemption under the Clean Air Act as a de minimis 
exemption. EPA addressed the de minimis exemption in a final rule dated 
March 13, 2001 (66 FR 14760-14770). EPA believes only a very small 
amount of methyl bromide will produced under the laboratory and 
analytical use exemption. To date, very few companies have approached 
EPA about extending the laboratory and analytical use exemption to 
include methyl bromide. EPA does not believe that there is a large 
demand for methyl bromide for laboratory and analytical uses, and there 
is no indication that there has been significant use of the pre-
phaseout inventories (that is, methyl bromide

[[Page 52335]]

produced prior to January 1, 2005) for such uses.
    One interested company provided EPA with an estimate of annual 
methyl bromide sales for laboratory and analytical use, if allowed 
under the current exemption. That company anticipated only 0.14 metric 
tons in sales. Considering that 27 metric tons of ODSs were produced in 
2005 and reported to the UNEP under the current laboratory and 
analytical use exemption, and considering that EPA has no reason to 
believe that large amounts of methyl bromide will be demanded and 
produced under the laboratory and analytical exemption, EPA, in 
accordance with Decision XVIII/15, proposes to add language regarding 
methyl bromide inclusion under the global laboratory exemption rule in 
Appendix G to Subpart A of Part 82. EPA is seeking public comment on 
the proposed inclusion of methyl bromide in the essential laboratory 
and analytical use exemption.

IV. Minor Technical Correction

    EPA is proposing to revise three paragraphs in the reporting 
requirements at Sec.  82.13 to correct two sets of minor typographical 
errors. The first set addresses incorrect paragraph references. Under 
Sec.  82.13(v), distributors of laboratory supplies who purchased 
controlled substances under the essential global laboratory and 
analytical use exemption must report on a quarterly basis the quantity 
of each controlled substance purchased by each laboratory customer 
whose certification was previously provided to the distributor, and 
refers to the provisions of paragraph (y). The reference to paragraph 
(y) is erroneous and should be a reference to paragraph (w), which 
describes annual certifications provided by laboratory customers. The 
same paragraph (Sec.  82.13(v)) also refers to Sec.  82.4(z), but 
should actually reference Sec.  82.13(x).
    Similarly, Sec.  82.13(x) (applicable to distributors who only sell 
controlled substances as reference standards for calibrating laboratory 
analytical equipment) incorrectly refers to paragraph (y) and should 
refer to paragraph (w). Further, the reference to reports required 
under paragraph (x) should be corrected to refer to reports required 
under (v).
    The second set of corrections addresses the inaccurate terminology 
that is used to refer to the essential laboratory and analytical use 
exemption. In Sec.  82.13(v), (w), and (x), the exemption is referred 
to as the ``global laboratory essential-use exemption.'' This is not 
consistent with the rest of the regulation. EPA proposes to replace the 
reference to ``global laboratory essential-use exemption'' with 
``global essential laboratory and analytical use exemption'' found in 
Sec.  82.13(v), (w), and (x).
    EPA seeks comment on these proposed corrections.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not propose any new information collection burden. 
The recordkeeping and reporting requirements included in this action 
are already included in an existing information collection burden and 
this action does not propose any changes that would affect the burden. 
However, the Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in the 
existing regulations at 40 CFR 82.8(a) under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2060-0170, EPA ICR number 1432.25. 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

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impact of today's proposed rule on 
small entities, small entity is defined as: (1) Pharmaceutical 
preparations manufacturing businesses (NAICS code 325412) that have 
less than 750 employees; (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 today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. 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 certify 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 action, once finalized, will provide an otherwise unavailable 
benefit to those companies that obtain ozone-depleting substances under 
the essential laboratory and analytical use exemption. We have 
therefore concluded that today's proposed rule will relieve regulatory 
burden for all small entities. We continue to be interested in the 
potential impact of the proposed rule on small entities and welcome 
comments on issues related to such impacts.

[[Page 52336]]

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 a small government agency plan 
under section 203 of the UMRA. 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.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
tribal governments or the private sector, since it merely provides an 
essential laboratory and analytical use exemption from the 1996 and 
2005 phase outs of Class I ODSs (including methyl bromide). Similarly, 
EPA has determined that this rule contains no regulatory requirements 
that might significantly or uniquely affect small governments, because 
this rule merely extends the essential laboratory and analytical use 
exemption.

E. Executive Order 13132: Federalism

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

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 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 proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 
Today's proposed rule affects only the companies that requested 
essential use allowances. Thus, Executive Order 13175 does not apply to 
this rule.

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

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
under E.O. 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 E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such as the analysis 
required under section 5-501 of the Order has the potential to 
influence the regulation. This proposed rule is not subject to E.O. 
13045 because it implements Section 604(d)(2) of the Clean Air Act 
which states that the Agency shall authorize essential use exemptions 
should the Food and Drug Administration determine that such exemptions 
are necessary.

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

    This proposed rule is not subject to Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (66 Fed. Reg. 28355, May 22, 2001) because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. The rule affects only the 
pharmaceutical companies that requested essential use allowances.

I. 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 
proposed rule does not involve technical standards. Therefore, EPA did 
not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or

[[Page 52337]]

environmental effects of their programs, policies, and activities on 
minority populations and low-income populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The controls in place for laboratory and analytical uses 
provide adequate assurance that very little, if any, environmental 
damage will result from the handling and disposal of the small amounts 
of class I ODS used in such applications. Furthermore, the 2006 CTOC 
Assessment Report shows a general decrease from 2002 through 2005 in 
the amount of phased-out class I substances being supplied to 
laboratories under this exemption.

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Chemicals, Chlorofluorocarbons, Imports, Methyl 
chloroform, Ozone, Reporting and recordkeeping requirements.

    Dated: September 7, 2007.
Stephen L. Johnson,
Administrator.
    40 CFR part 82 is proposed to be amended as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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

Subpart A--Production and Consumption Controls

    2. Section 82.8 is amended by revising paragraph (b) to read as 
follows:


Sec.  82.8  Grant of essential use allowances and critical use 
allowances.

* * * * *
    (b) A global exemption for class I controlled substances for 
essential laboratory and analytical uses shall be in effect through 
December 31, 2015, subject to the restrictions in appendix G of this 
subpart, and subject to the record keeping and reporting requirements 
at Sec.  82.13(u) through (x). There is no amount specified for this 
exemption.
* * * * *
    3. Section 82.13 is amended by revising paragraphs (v), (w) 
introductory text, and (x) to read as follows:


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

* * * * *
    (v) Any distributor of laboratory supplies who purchased controlled 
substances under the global essential laboratory and analytical use 
exemption must submit quarterly (except distributors following 
procedures in paragraph (x) of this section) the quantity of each 
controlled substance purchased by each laboratory customer whose 
certification was previously provided to the distributor pursuant to 
paragraph (w) of this section.
    (w) A laboratory customer purchasing a controlled substance under 
the global essential laboratory and analytical use exemption must 
provide the producer, importer or distributor with a one-time-per-year 
certification for each controlled substance that the substance will 
only be used for essential laboratory and analytical uses (defined at 
appendix G of this subpart) and not be resold or used in manufacturing. 
The certification must also include:
* * * * *
    (x) Any distributor of laboratory supplies, who purchased class I 
controlled substances under the global essential laboratory and 
analytical use exemption, and who only sells the class I controlled 
substances as reference standards for calibrating laboratory analytical 
equipment, may write a letter to the Administrator requesting 
permission to submit the reports required under paragraph (v) of this 
section annually rather than quarterly. The Administrator will review 
the request and issue a notification of permission to file annual 
reports if, in the Administrator's judgment, the distributor meets the 
requirements of this paragraph. Upon receipt of a notification of 
extension from the Administrator, the distributor must submit annually 
the quantity of each controlled substance purchased by each laboratory 
customer whose certification was previously provided to the distributor 
pursuant to paragraph (w) of this section.
* * * * *
    4. Appendix G to Subpart A of Part 82 is amended by adding 
paragraph 5 to read as follows:

Appendix G to Subpart A of Part 82--UNEP Recommendations for Conditions 
Applied to Exemptions and Essential Laboratory and Analytical Uses

* * * * *
    5. Pursuant to Decision XVIII/15 of the Parties to the Montreal 
Protocol, effective November 2006, Methyl Bromide is exempted for 
the following approved essential laboratory and analytical purposes:
    a. As a reference standard to calibrate equipment which uses 
methyl bromide, to monitor methyl bromide emission levels, to 
determine methyl bromide residue levels in goods, plants and 
commodities;
    b. In laboratory toxicological studies;
    c. To compare the efficacy of methyl bromide and its 
alternatives inside a laboratory; and
    d. As a laboratory agent which is destroyed in a chemical 
reaction in the manner of feedstock.
    Use of methyl bromide for field trials is not an approved use 
under the global laboratory and analytical use exemption. The 
provisions of Appendix G, paragraphs (1), (2), (3), and (4), 
regarding purity, mixing, container, and reporting requirements for 
other exempt ODSs, also apply to the use of methyl bromide under 
this exemption.

[FR Doc. E7-18095 Filed 9-12-07; 8:45 am]
BILLING CODE 6560-50-P