[Federal Register: December 27, 2007 (Volume 72, Number 247)]
[Rules and Regulations]
[Page 73264-73269]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de07-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2007-0384; FRL-8510-9 ]
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: Final rule.
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SUMMARY: EPA is taking final action to extend the global laboratory and
analytical use exemption for the production and import of class I
ozone-depleting substances through December 31, 2011, consistent with
the recent 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. The final rule also extends the applicability of
the global laboratory and analytical use exemption to the production
and import of methyl bromide for specific laboratory uses. Finally,
this action eliminates the testing of organic matter in coal from the
global laboratory and analytical use exemption.
DATES: This final rule is effective on December 27, 2007.
ADDRESSES: EPA has established a docket for this action identified
under Docket ID No. EPA-HQ-OAR-2007-0384. All documents in the docket
are listed on the http://www.regulations.gov site. 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, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available only through
http://www.regulations.gov or in hard copy. To obtain copies of materials in
hard copy, please call the EPA Docket Center at (202) 564-1744 between
the hours of 8:30 a.m.-4:30 p.m. E.S.T., Monday-Friday, excluding legal
holidays, to schedule an appointment. The EPA Docket Center's Public
Reading Room address is EPA/DC, EPA West, Room 3334, 1301 Constitution
Ave., NW., Washington, DC 20004.
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:
gatica.staci@epa.gov. You may also visit the EPA's Ozone Depletion 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: Section 553(d) of the Administrative
Procedure Act (APA), 5 U.S.C. Chapter 5, generally provides that rules
may not take effect earlier than 30 days after they are published in
the Federal Register. EPA is issuing this final rule under section
307(d) of the Clean Air Act, which states: ``The provisions of section
553 through 557 * * * of Title 5 shall not, except as expressly
provided in this section, apply to actions to which this subsection
applies.'' CAA section 307(d)(1). Thus, section 553(d) of the APA does
not apply to this rule. EPA is nevertheless acting consistently with
the policies underlying APA section 553(d) in making this rule
effective on January 1, 2008. APA section 553(d) authorizes an earlier
effective date ``as otherwise provided by the agency upon good cause
found and published with the rule.'' Because, absent today's action,
the exemption from the phaseout of Class I substances used for
laboratory and analytical uses will expire as of the end of 2007, it is
important to assure that today's action will take effect at the
beginning of 2008.
Table of Contents
I. Background on the Montreal Protocol and the Global Laboratory and
Analytical Use Exemption
II. This Action
A. Extension of the Global Laboratory and Analytical Use
Exemption
B. Applicability of the Global Laboratory and Analytical Use
Exemption to Methyl Bromide
C. Eliminating the Testing of Organic Matter in Coal From the
Global Exemption for Laboratory and Analytical Use
D. Minor Technical Corrections
III. 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
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
K. Congressional Review Act
I. Background on the Montreal Protocol and 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 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.
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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 to Parties to the Montreal
Protocol (see Section 601(6) of the Clean Air Act). 1
\2\ Class I ozone depleting 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
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,
[[Page 73265]]
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 14760-14770).
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).
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 outlines specific uses and
exclusions for methyl bromide under the exemption. Section II. B of
this preamble provides further discussion of the inclusion of methyl
bromide in the essential laboratory and analytical use exemption.
Most recently in September 2007, at the 19th MOP, the Parties in
Decision XIX/18 extended the global laboratory and analytical use
exemption through December 31, 2011. Decision XIX/18 also eliminates
the testing of organic matter in coal from the global exemption for
laboratory and analytical uses of controlled substances and requests
the Technology and Economic Assessment Panel (TEAP) and its Chemical
Technical Options Committee (CTOC) to provide, by the Twenty-first
Meeting of the Parties, a list of laboratory analytical uses of ozone-
depleting substances, indicating those for which alternatives exist and
therefore no longer need exemption for use of class I ODS (p. 43, Air
Docket EPA-HQ-OAR-2007-0384).
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 the Parties, via Decision XIX/18, extended this
exemption through December 31, 2011, EPA is revising 40 CFR 82.8(b) to
reflect the extension of the exemption to December 31, 2011. 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. 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).
EPA proposed to extend the date through December 31, 2015 but
clearly explained that at the time the proposed rule was issued the
Parties had not yet taken a decision regarding extension of the global
laboratory and analytical use exemption and that the final rule would
reflect the date decided by the Parties at the 18th MOP.
II. This Action
Today, EPA takes final action to (1) extend the laboratory and
analytical use exemption from December 31, 2007, to December 31, 2011,
for specific laboratory uses, (2) apply the laboratory and analytical
use exemption to the production and import of methyl bromide, (3)
eliminate the testing of organic matter in coal from the laboratory and
analytical use exemption, and (4) make technical corrections to
regulatory text.
A. Extension of the Global Laboratory and Analytical Use Exemption
EPA received three comments on the proposed rule (72 FR 52332). Two
comments supported the proposal. A third commenter provided general
comments stating that chemicals that deplete the ozone should not be
used any longer and questioned whether any use of such chemicals is
essential. As discussed above, the Montreal Protocol specifically
provides for exemptions for essential uses, and Decisions of the
Parties--including Decision XIX/18 taken in 2007, specifically provide
for an exemption for global laboratory and analytical uses. EPA notes
that uses addressed under this exemption are typically for niche
applications or for experimental work of importance to society. For
example, some Federal and State laws, including regulations issued
under the Clean Air Act and the Clean Water Act, require testing of
water, soil, or air to measure compliance with environmental standards.
A pure sample of an ODS may be necessary to properly calibrate the
testing equipment and effectively monitor the presence of chemicals of
interest in the environment. A fuller description of laboratory and
analytical uses may be found in EPA's March 2001 final rule (66 FR
14760).
B. 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 phased out 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
76982, December 23, 2004). This critical use 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 December 23, 2004 final
rule.
Methyl bromide (also known as bromomethane) has laboratory uses,
for example, as a chemical intermediate and methylating agent. EPA
regulations allow for methyl bromide to be
[[Page 73266]]
produced after the January 1, 2005, phaseout date if production is
covered by ``unexpended critical use allowances'' (40 CFR 82.4(b)(1)).
The regulations also provide for a ``global exemption for class I
controlled substances for essential laboratory and analytical uses,''
subject to the restrictions in Appendix G (40 CFR 82.4(n)(1)(iii),
82.8(b)). EPA did not address the issue of whether the lab use
exemption should apply to methyl bromide when promulgating the initial
exemption, 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 18th 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, Decision XVIII/15 allows methyl bromide to 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; and (4) as a laboratory agent which is destroyed in a
chemical reaction in the manner of feedstock. Furthermore, Decision
XVIII/15 specifically notes that the Montreal Protocol's technical
review bodies were not in favor of classifying field trials using
methyl bromide as essential laboratory and analytical uses and
indicates that Parties wishing to carry out such field trials could
submit critical use nominations for that purpose (p. 43, EPA-HQ-OAR-
2007-0384).
EPA sought comment on whether the global laboratory and analytical
use exemption should specifically include methyl bromide. The three
comments received were general in nature and did not discuss methyl
bromide specifically. Because EPA did not receive any adverse comment
regarding the inclusion of methyl bromide in the laboratory and
analytical use exemption, the Agency is extending the exemption to the
methyl bromide uses listed in the proposed rule.
C. Eliminating the Testing of Organic Matter in Coal From the Global
Exemption for Laboratory and Analytical Use
Decision X/19, paragraph 2, requests the Technology and Economic
Assessment Panel (TEAP), a group of technical experts from various
Parties, to report annually on the development and availability of
laboratory and analytical procedures that can be performed without
using class I controlled substances and that Parties, in subsequent
decisions, would decide whether such procedures would no longer be
eligible for exemptions. Decision XIX/18 eliminates the testing of
organic matter in coal from the global laboratory and analytical use
exemption.
In the proposed rule, EPA indicated its overall intention to mirror
in this final rule, the decisions taken at the 19th MOP in September of
2007. Therefore, this action eliminates the testing of organic matter
in coal from the global laboratory and analytical use exemption. EPA
highly regards technical recommendations made by the TEAP and routinely
amends domestic regulations to mirror decisions taken by the Parties
based on TEAP recommendations.
D. Minor Technical Corrections
EPA proposed to revise three paragraphs in the reporting
requirements at 40 CFR 82.13 to correct two sets of minor typographical
errors. EPA received no specific comments on these corrections, and is
finalizing them today.
The first set addresses incorrect paragraph references. Under 40
CFR 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 instead be a reference to paragraph (w),
which describes annual certifications provided by laboratory customers.
Paragraph (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
instead 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 is replacing the
reference to ``global laboratory essential-use exemption'' with the
term ``global essential laboratory and analytical use exemption,'' in
Sec. 82.13(v), (w), and (x). EPA received no specific comments on
these corrections.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This final 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 final 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 analysis and this action does not propose any changes that would
affect the burden. 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
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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 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 final 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 final 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 provides an otherwise unavailable benefit to those
companies that obtain ozone-depleting substances under the essential
laboratory and analytical use exemption. Therefore today's action will
relieve regulatory burden for all small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.L.
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 final 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 phaseouts 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 final 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 final rule does not have
tribal implications, as specified in Executive Order 13175 as it merely
provides an essential laboratory and analytical use exemption from the
1996 and 2005 phaseouts of class I ODSs (including methyl bromide).
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
[[Page 73268]]
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 final rule is not subject to E.O. 13045
as it merely provides an essential laboratory and analytical use
exemption from the 1996 and 2005 phaseouts of class I ODSs (including
methyl bromide).
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This final rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866. The rule
merely provides an essential laboratory and analytical use exemption
from the 1996 and 2005 phaseouts of class I ODSs (including methyl
bromide).
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
final 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 environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final 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
impact 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.
K. 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 December 27, 2007.
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: December 19, 2007.
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.
Subpart A--Production and Consumption Controls
0
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, 2011, 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.
* * * * *
0
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.
* * * * *
(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
[[Page 73269]]
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.
* * * * *
0
4. Appendix G to subpart A of part 82 is amended by adding item
paragraph 1. (d) and 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
1. * * *
d. Testing of organic matter in coal.
* * * * *
5. Pursuant to Decision XVIII/15 of the Parties to the Montreal
Protocol, methyl bromide is exempted for the following approved
essential laboratory and analytical purposes listed in following
items (a) through (d). 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.
a. Methyl bromide is exempted as an approved essential
laboratory and analytical use as a reference or standard to
calibrate equipment which uses methyl bromide, to monitor methyl
bromide emission levels, or to determine methyl bromide residue
levels in goods, plants and commodities;
b. Methyl bromide is exempted as an approved essential
laboratory and analytical when used in laboratory toxicological
studies;
c. Methyl bromide is exempted as an approved essential
laboratory and analytical use to compare the efficacy of methyl
bromide and its alternatives inside a laboratory; and
d. Methyl bromide is exempted as an approved essential
laboratory and analytical use as a laboratory agent which is
destroyed in a chemical reaction in the manner of feedstock.
[FR Doc. E7-25091 Filed 12-26-07; 8:45 am]
BILLING CODE 6560-50-P