[Federal Register Volume 76, Number 136 (Friday, July 15, 2011)]
[Proposed Rules]
[Pages 41747-41751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17905]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2010-0672; FRL-9439-3]
RIN 2060-AQ39
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.
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SUMMARY: EPA is proposing to extend the global laboratory and
analytical use exemption for the production and import of Class I
ozone-depleting substances through December 31, 2014, consistent with
the recent actions by the
[[Page 41748]]
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 is also
seeking comment on adding to the list of procedures that are excluded
from the exemption uses that are noted in Decision XXI/6 (from the
21\st\ Meeting of the Parties [MOP] to the Montreal Protocol). EPA is
not proposing to add these procedures at this time.
DATES: Written comments on this proposed rule must be received by the
EPA Docket on or before September 13, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0672, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: 202-566-1741.
Mail: Docket EPA-HQ-OAR-2010-0672, Air and Radiation
Docket and Information Center, U.S. Environmental Protection Agency,
Mail code: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: Docket EPA-HQ-OAR-2010-0672, Air and
Radiation Docket at EPA West, 1301 Constitution Avenue, NW., Room B108,
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-
2010-0672. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.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 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.
FOR FURTHER INFORMATION CONTACT: Ifeyinwa Davis 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., Workstation
1027N, Washington, DC 20005; by telephone: 202-343-9234; or by e-mail:
[email protected]. You may also visit the EPA's Ozone Protection
Web site at http://www.epa.gov/ozone/strathome.html for further
information about EPA's Stratospheric Ozone Protection regulations, the
science of ozone layer depletion, and other related topics.
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. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory 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
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 confidential
business information (CBI) 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 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 ozone-
[[Page 41749]]
depleting substances (ODS). The elimination of production and
consumption of ODSs is accomplished through adherence to phaseout
schedules for specific controlled substances. Section 604 of the Clean
Air Act requires EPA to promulgate regulations phasing out production
and consumption of Class I ODS according to a prescribed schedule. EPA
has accelerated this phaseout schedule pursuant to Section 606 of the
Clean Air Act, which requires the Agency to promulgate an accelerated
phaseout schedule in response to Montreal Protocol modifications that
accelerate the international phaseout. EPA's phaseout regulations for
ODS are codified at 40 CFR part 82, subpart A. As of January 1, 1996,
production and import of most Class I controlled substances--including
chlorofluorocarbons (CFCs), halons, carbon tetrachloride, and methyl
chloroform\2\--were phased out in developed countries, including the
United States.
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\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 from the United States to
other Parties to the Montreal Protocol (see Section 601(6) of the
Clean Air Act).
\2\ Class I controlled substances are listed at 40 CFR part 82,
subpart A, Appendix A.
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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
ODS 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
codified this exemption 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).
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 laboratory and analytical 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).
At the 18th 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 outlined specific uses and
exclusions for methyl bromide under the exemption. EPA incorporated
specific uses of methyl bromide in the essential laboratory and
analytical use exemption at Appendix G to subpart A of 40 CFR part 82
on December 27, 2007 (72 FR 73264).
In November 2009, at the 21st MOP, the Parties in Decision XXI/6
extended the global laboratory and analytical use exemption through
December 31, 2014. Decision XXI/6 lists laboratory and analytical uses
of ODSs for which the TEAP and its Chemicals Technical Options
Committee (CTOC), determined that alternative procedures exist.
However, the Parties did not exclude any additional procedures from the
exemption for laboratory and analytical uses. The Parties asked the
TEAP and the CTOC to continue to consider possible alternatives and
report back to the Parties.
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, 2011, subject to the restrictions in appendix G of this
subpart, and subject to the recordkeeping 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 the Parties, via Decision XXI/6, extended this
exemption through December 31, 2014, EPA is proposing to revise 40 CFR
82.8(b) to reflect the extension of the exemption to December 31, 2014.
For a more detailed discussion of the reasons for the exemption, refer
to the March 13, 2001, final rule (66 FR 14760). As discussed in the
March 2001 rule, 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.
EPA is seeking comment on adding to the list of procedures that are
excluded from the exemption under 40 CFR part 82, appendix G. EPA is
not proposing to add these procedures at this time. The following uses
are noted in Decision XXI/6 as being laboratory and analytical
procedures for which the TEAP and its CTOC have concluded that
alternatives exist.
(a) Analyses in which the ODS is used as a solvent for spectroscopic
measurements:
(i) of hydrocarbons (oil and grease) in water or soil
(ii) of simethicone (polydimethylsiloxane)
(iii) when recording infrared and nuclear magnetic resonance
(NMR) spectra, including hydroxyl index
(b) Analyses in which the ODS is used as a solvent for
electrochemical methods of analysis of:
(i) cyanocobalamin
(ii) bromine index
(c) Analyses involving selective solubility in the ODS of:
(i) cascarosides
(ii) thyroid extracts
(iii) polymers
(d) Analyses in which the ODS is used to preconcentrate the analyte,
for:
(i) liquid chromatography (HPLC) of drugs and pesticides
(ii) gas chromatography of organic chemicals such as steroids
(iii) adsorption chromatography of organic chemicals
(e) Titration of iodine with thiosulfate (iodometric analyses) for
determination of:
(i) iodine
(ii) copper
(iii) arsenic
(iv) sulphur
(f) Iodine and bromine index measurements (titrations)
(g) Miscellaneous analyses, namely
(i) stiffness of leather
(ii) jellification point
(iii) specific weight of cement
[[Page 41750]]
(iv) gas mask cartridge breakthrough
(h) Use of ODS as a solvent in organic chemical reactions
(i) O- and N-difluoromethylation
(i) General use as laboratory solvent, namely
(i) washing of NMR tubes
(ii) removal of greases from glassware
EPA is seeking comment on whether alternative procedures exist in the
United States for each of these laboratory applications. EPA notes that
unlike the procedures already listed in Appendix G to 40 CFR part 82,
the list developed by the TEAP and its CTOC has not been adopted by the
Parties to the Montreal Protocol. Commenters should be aware that if
EPA were to add these procedures to the list of procedures that are
excluded from the exemption in Appendix G, then no further production
or import of ODS for these laboratory procedures would be permitted. In
the supply chain, ODS distributors would not be able to obtain
quantities for those purposes.
EPA is seeking comments on today's proposal and the alternative
approach described above, noting that the path forward for the general
exemption for laboratory and analytical procedures under the Montreal
Protocol is not clear. The Parties to the Montreal Protocol could
decide between now and December 31, 2014, to exclude additional
procedures from the general exemption; to replace the general exemption
with a list of specifically approved procedures; or not to extend the
exemption beyond December 31, 2014.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory 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 Executive Order 12866 and
13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This action extends the existing global laboratory and analytical use
exemption allowing the production and import of Class I ozone-depleting
substances until December 31, 2014. 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. The OMB control numbers for
EPA's regulations in 40 CFR part 82 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
fewer 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 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.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
tribal governments or the private sector. This action merely extends
the essential laboratory and analytical use exemption from the 1996 and
2005 phaseouts of Class I ODS until December 31, 2014. Therefore, this
action is not subject to the requirements of sections 202 or 205 of the
UMRA. This action is also not subject to the requirements of section
203 of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
This action 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 action merely extends the
essential laboratory and analytical use exemption from the 1996 and
2005 phaseouts of Class I ODS until December 31, 2014. Thus, Executive
Order 13132 does not apply to this action. In the spirit of Executive
Order 13132, and consistent with EPA policy to promote communications
between EPA and State and local governments, EPA specifically solicits
comment on this proposed action from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule does
not significantly or uniquely affect the communities of Indian tribal
governments, nor does it impose any enforceable duties on communities
of Indian tribal governments. This action merely extends the essential
laboratory and analytical use exemption from the 1996 and 2005
phaseouts of Class I ODS until December 31, 2014. Thus, Executive Order
13175 does not apply to this action. EPA specifically solicits
additional comment on this proposed action from tribal officials.
[[Page 41751]]
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. This proposed
rule does not pertain to any segment of the energy production economy
nor does it regulate any manner of energy use. Therefore, we have
concluded that this proposed rule is not likely to have any adverse
energy effects.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
proposed rule does not involve technical standards. Therefore, EPA is
not considering 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 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 will 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
impact will result from the handling and disposal of the small amounts
of Class I ODS used in such applications.
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: July 8, 2011.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, 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.
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, 2014, subject to the restrictions in appendix G of this
subpart, and subject to the recordkeeping and reporting requirements at
Sec. 82.13(u) through (x). There is no amount specified for this
exemption.
* * * * *
[FR Doc. 2011-17905 Filed 7-14-11; 8:45 am]
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