[Code of Federal Regulations] [Title 40, Volume 17] [Revised as of July 1, 2006] From the U.S. Government Printing Office via GPO Access [CITE: 40CFR82.4] [Page 459-464] TITLE 40--PROTECTION OF ENVIRONMENT CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED) PART 82_PROTECTION OF STRATOSPHERIC OZONE--Table of Contents Subpart A_Production and Consumption Controls Sec. 82.4 Prohibitions for class I controlled substances. (a)(1) Prior to January 1, 1996, for all Groups of class I controlled substances, and prior to January 1, 2005, for class I, Group VI controlled substances, no person may produce, at any time in any control period, (except that are transformed or destroyed domestically or by a person of another Party) in excess of the amount of unexpended production allowances or unexpended Article 5 allowances for that substance held by that person under the authority of this subpart at that time for that control [[Page 460]] period. Every kilogram of excess production constitutes a separate violation of this subpart. (2) Effective January 1, 2003, production of class I, Group VI controlled substances is not subject to the prohibitions in paragraph (a)(1) of this section if it is solely for quarantine or preshipment applications as defined in this subpart. (b)(1) Effective January 1, 1996, for any Class I, Group I, Group II, Group III, Group IV, Group V or Group VII controlled substances, and effective January 1, 2005 for any Class I, Group VI controlled substances, and effective August 18, 2003, for any Class I, Group VIII controlled substance, no person may produce, at any time in any control period (except that are transformed or destroyed domestically or by a person of another Party) in excess of the amount of conferred unexpended essential use allowances or exemptions, or in excess of the amount of unexpended critical use allowances, or in excess of the amount of unexpended Article 5 allowances as allocated under Sec. 82.9 and Sec. 82.11, as may be modified under Sec. 82.12 (transfer of allowances) for that substance held by that person under the authority of this subpart at that time for that control period. Every kilogram of excess production constitutes a separate violation of this subpart. (2) Effective January 1, 2005, production of class I, Group VI controlled substances is not subject to the prohibitions in paragraph (b)(1) of this section if it is solely for quarantine or preshipment applications as defined in this subpart, or it is solely for export to satisfy critical uses authorized by the Parties for that control period. (c)(1) Prior to January 1, 1996, for all Groups of class I controlled substances, and prior to January 1, 2005, for class I, Group VI controlled substances, no person may produce or (except for transhipments, heels or used controlled substances) import, at any time in any control period, (except for controlled substances that are transformed or destroyed) in excess of the amount of unexpended consumption allowances held by that person under the authority of this subpart at that time for that control period. Every kilogram of excess production or importation (other than transhipments, heels or used controlled substances) constitutes a separate violation of this subpart. (2) Effective January 1, 2003, production and import of class I, Group VI controlled substances is not subject to the prohibitions in paragraph(c)(1) of this section if it is solely for quarantine or preshipment applications as defined in this subpart. (d) Effective January 1, 1996, for any class I, Group I, Group II, Group III, Group IV, Group V, or Group VII controlled substances, and effective January 1, 2005, for any class I, Group VI controlled substance, and effective August 18, 2003, for any class I, Group VIII controlled substance, no person may import (except for transhipments or heels), at any time in any control period, (except for controlled substances that are transformed or destroyed) in excess of the amount of unexpended essential use allowances or exemptions, or in excess of unexpended critical use allowances, for that substance held by that person under the authority of this subpart at that time for that control period. Every kilogram of excess importation (other than transhipments or heels) constitutes a separate violation of this subpart. It is a violation of this subpart to obtain unused class I controlled substances under the general laboratory exemption in excess of actual need and to recycle that material for sale into other markets. (e) Effective January 1, 1996, no person may place an order by conferring essential-use allowances for the production of the class I controlled substance, at any time in any control period, in excess of the amount of unexpended essential-use allowances, held by that person under the authority of this subpart at that time for that control period. Effective January 1, 1996, no person may import a class I controlled substance with essential-use allowances, at any time in any control period, in excess of the amount of unexpended essential-use allowances, held by that person under the authority of this subpart at that time for that control period. No person may import or place an order for the production of a class I controlled substance with essential-use allowances, at any time in any [[Page 461]] control period, other than for the class I controlled substance(s) for which they received essential-use allowances under paragraph (u) of this section. Every kilogram of excess production ordered in excess of the unexpended essential-use allowances conferred to the producer constitutes a separate violation of this subpart. Every kilogram of excess import in excess of the unexpended essential-use allowances held at that time constitutes a separate violation of this subpart. (f) Effective January 1, 1996, no person may place an order by conferring transformation and destruction credits for the production of the class I controlled substance, at any time in any control period, in excess of the amount of transformation and destruction credits, held by that person under the authority of this subpart at that time for that control period. Effective January 1, 1996, no person may import class I controlled substance, at any time in any control period, in excess of the amount of transformation and destruction credits, held by that person under the authority of this subpart at that time for that control period. No person may import or place an order for the production of a class I controlled substance with transformation and destruction credits, at any time in any control period, other than for the class I controlled substance(s) for which they received transformation and destruction credits as under Sec. 82.9(f). Every kilogram of excess production ordered in excess of the unexpended transformation and destruction credits conferred to the producer constitutes a separate violation of this subpart. Every kilogram of excess import in excess of the unexpended transformation and destruction credits held at that time constitutes a separate violation of this subpart. (g) Effective January 1, 1996, the U.S. total production and importation of a class I controlled substance (except Group VI) as allocated under this section for essential-use allowances and exemptions, and as obtained under Sec. 82.9 for destruction and transformation credits, may not, at any time, in any control period until January 1, 2000, exceed the percent limitation of baseline production in appendix H of this subpart, as set forth in the Clean Air Act Amendments of 1990. No person shall cause or contribute to the U.S. exceedance of the national limit for that control period. (h) No person may sell in the U.S. any Class I controlled substance produced explicitly for export to an Article 5 country. (i) Effective January 1, 1995, no person may import, at any time in any control period, a heel of any class I controlled substance that is greater than 10 percent of the volume of the container in excess of the amount of unexpended consumption allowances, or unexpended destruction and transformation credits held by that person under the authority of this subpart at that time for that control period. Every kilogram of excess importation constitutes a separate violation of this subpart. (j) Effective January 1, 1995, no person may import, at any time in any control period, a used class I controlled substance, without having received a non-objection notice from the Administrator in accordance with Sec. 82.13(g)(2) and (3). A person who receives a non-objection notice for the import of an individual shipment of used controlled substances may not transfer or confer the right to import, and may not import any more than the exact quantity, in kilograms, of the used controlled substance cited in the non-objection notice. Every kilogram of importation of used controlled substance in excess of the quantity cited in the non-objection notice issued by the Administrator in accordance with Sec. 82.13(g)(2) and (3) constitutes a separate violation. (k)(1) Prior to January 1, 1996, for all Groups of class I controlled substances, and prior to January 1, 2005, for class I, Group VI controlled substances, a person may not use production allowances to produce a quantity of a class I controlled substance unless that person holds under the authority of this subpart at the same time consumption allowances sufficient to cover that quantity of class I controlled substances nor may a person use consumption allowances to produce a quantity of class I controlled substances unless the person holds under authority of this subpart [[Page 462]] at the same time production allowances sufficient to cover that quantity of class I controlled substances. However, prior to January 1, 1996, for all class I controlled substances, and prior to January 1, 2005, for class I, Group VI controlled substances, only consumption allowances are required to import, with the exception of transhipments, heels, and used controlled substances. Effective January 1, 1996, for all Groups of class I controlled substances, except Group VI, only essential use allowances or exemptions are required to import class I controlled substances, with the exception of transhipments, heels, used controlled substances, and essential use CFCs. (2) Notwithstanding paragraph (k)(1) of this section, effective January 1, 2003, for class I, Group VI controlled substances, consumption allowances are not required to import quantities solely for quarantine or preshipment applications as defined in this subpart. (l) Every kilogram of a controlled substance, and every controlled product, imported or exported in contravention of this subpart constitutes a separate violation of this subpart, thus no person may: (1) Import or export any quantity of a controlled substance listed in Class I, Group I or Group II, in appendix A to this subpart from or to any foreign state not listed as a Party to the 1987 Montreal Protocol unless that foreign state is complying with the 1987 Montreal Protocol (See appendix C, Annex 2 of this subpart); (2) Import or export any quantity of a controlled substance listed in Class I, Group III, Group IV or Group V, in appendix A to this subpart, from or to any foreign state not Party to the London Amendments (as noted in appendix C, Annex l, to this subpart), unless that foreign state is complying with the London Amendments (as noted in appendix C, Annex 2, to this subpart); or (3) Import a controlled product, as noted in appendix D, Annex 1 to this subpart, from any foreign state not Party to the 1987 Montreal Protocol (as noted in appendix C, Annex 1, to this subpart), unless that foreign state is complying with the Protocol (as noted in appendix C, Annex 2, to this subpart). (4) Import or export any quantity of a controlled substance listed in Class I, Group VII, in Appendix A to this subpart, from or to any foreign state not Party to the Copenhagen Amendments (as noted in Appendix C, Annex l, to this subpart), unless that foreign state is complying with the Copenhagen Amendments (as noted in Appendix C, Annex 2, to this subpart. (5) Import or export any quantity of a controlled substance listed in Class I, Group VI, in Appendix A to this subpart, from or to any foreign state not Party to the Copenhagen Amendments (as noted in Appendix C, Annex l, to this subpart), unless that foreign state is complying with the Copenhagen Amendments (as noted in Appendix C, Annex 2, to this subpart). (6) Import or export any quantity of a controlled substance listed in Class I, Group VIII, in appendix A to this subpart, from or to any foreign state not Party to the Beijing Amendments (as noted in appendix C, Annex 1, to this subpart), unless that foreign state is complying with the Beijing Amendments (as noted in appendix C, Annex 2, to this subpart). (m) Effective October 5, 1998, no person may export a controlled product to a Party listed in Appendix J of this subpart in any control period after the control period in which EPA publishes a notice in the Federal Register listing that Party in Appendix J of this subpart. EPA will publish a notice in the Federal Register that lists a Party in Appendix J if the Party formally presents to the U.S. a government document through its embassy in the United States stating that it has established a ban on the import of controlled products and a ban on the manufacture of those same controlled products. (n) No person may use class I controlled substances produced or imported under the essential use exemption for any purpose other than those set forth in this paragraph. Effective January 1, 1996, essential- use allowances are apportioned to a person under Sec. 82.8(a) and (b) for the exempted production or importation of specified class I controlled substances solely for the purposes listed in paragraphs (n)(1)(i) through (iii) of this section. [[Page 463]] (1) Essential-uses for the production or importation of controlled substances as agreed to by the Parties to the Protocol and subject to the periodic revision of the Parties are: (i) Metered dose inhalers (MDIs) for the treatment of asthma and chronic obstructive pulmonary disease that were approved by the Food and Drug Administration before December 31, 2000. (ii) Space Shuttle--solvents. (iii) Essential laboratory and analytical uses (defined in Appendix G of this subpart). (2) Any person acquiring unused class I controlled substances produced or imported under the authority of essential-use allowances or the essential-use exemption granted in Sec. 82.8 to this subpart for use in anything other than an essential-use (i.e., for uses other than those specifically listed in paragraph (n)(1) of this section) is in violation of this subpart. Each kilogram of unused class I controlled substance produced or imported under the authority of essential-use allowances or the essential-use exemption and used for a non-essential use is a separate violation of this subpart. Any person selling unused class I controlled substances produced or imported under authority of essential-use allowances or the essential-use exemption for uses other than an essential-use is in violation of this subpart. Each kilogram of unused class I controlled substances produced or imported under authority of essential-use allowances or the essential-use exemption and sold for a use other than an essential-use is a separate violation of this subpart. It is a violation of this subpart to obtain unused class I controlled substances under the exemption for laboratory and analytical uses in excess of actual need and to recycle that material for sale into other markets. (o) [Reserved] (p) Critical Use Exemption: With respect to class I, Group VI substances (methyl bromide): (1) For critical use allowance holders and critical stock allowance holders: (i) No person shall sell critical use methyl bromide without first receiving a certification from the purchaser that the quantity purchased will be sold or used solely for an approved critical use. Every kilogram of critical use methyl bromide sold without first obtaining such certification constitutes a separate violation of this subpart. (ii) No person shall sell a portion of inventory produced or imported prior to the January 1, 2005 phaseout date as critical use methyl bromide in excess of the number of unexpended critical stock allowances held by that person. (iii) A person who sells methyl bromide produced or imported before the phaseout date of January 1, 2005 for a use identified by the user as a critical use must hold sufficient critical stock allowances (CSA) for the transaction and shall expend one allowance for each kilogram of methyl bromide sold. Every kilogram of critical use methyl bromide produced or imported before the phaseout date of January 1, 2005 that is sold without expending an allowance constitutes a separate violation of this subpart. (2) For approved critical users, each action associated with each 200 kilograms of critical use methyl bromide for the following subparagraphs constitutes a separate violation of this subpart. (i) No person shall take possession of quantities of critical use methyl bromide or acquire fumigation services using quantities of critical use methyl bromide without first completing the appropriate certification in accordance with the requirements in Sec. 82.13. (ii) No person who purchases critical use methyl bromide may use such quantities for a use other than the specified critical use listed in Column A and the specified location of use in Column B of Appendix L to this subpart. (iii) No person who purchases critical use methyl bromide produced or imported with expended critical use allowances for pre-plant uses, may use such quantities for other than the pre-plant uses as specified in Column A and Column B of appendix L to this subpart. (iv) No person who purchases critical use methyl bromide produced or imported with expended critical use allowances for post-harvest uses, may use such quantities for other than the [[Page 464]] post-harvest uses as specified in Column A and Column B of appendix L to this subpart. (v) No person who uses critical use methyl bromide on a specific field or structure may concurrently or subsequently use non-critical use methyl bromide on the same field or structure for the same use (as defined in Column A and Column B of appendix L) in the same control period, excepting methyl bromide used under the quarantine and pre- shipment exemption. (vi) No person who purchases critical use methyl bromide during the control period shall use that methyl bromide on a field or structure for which that person has used non-critical use methyl bromide for the same use (as defined in Columns A and B of Appendix L) in the same control period, excepting methyl bromide used under the quarantine and pre- shipment exemption, unless, subsequent to that person's use of the non- critical use methyl bromide, that person becomes subject to a prohibition on the use of methyl bromide alternatives due to the reaching of a local township limit described in Appendix L of this part, or becomes an approved critical user as a result of rulemaking. (q) Emergency use exemption. [Reserved] [60 FR 24986, May 10, 1995, as amended at 63 FR 4363, Jan. 28, 1998; 63 FR 41642, Aug. 4, 1998; 63 FR 53290, Oct. 5, 1998; 64 FR 1096, Jan. 7, 1999; 65 FR 728, Jan. 6, 2000; 65 FR 40535, June 30, 2000; 65 FR 70803, Nov. 28, 2000; 66 FR 1470, Jan. 8, 2001; 66 FR 14770, Mar. 13, 2001; 66 FR 37767, July 19, 2001; 67 FR 6359, Feb. 11, 2002; 67 FR 79511, Dec. 27, 2002; 67 FR 79872, Dec. 31, 2002; 68 FR 251, Jan. 2, 2003; 68 FR 2848, Jan. 21, 2003; 68 FR 41927, July 16, 2003; 68 FR 42891, July 18, 2003; 68 FR 43936, July 25, 2003; 68 FR 52843, Sept. 8, 2003; 69 FR 4064, Jan. 28, 2004; 69 FR 77002, Dec. 23, 2004; 70 FR 73614, Dec. 13, 2005; 70 FR 77047, Dec. 29, 2005]