[Code of Federal Regulations] [Title 40, Volume 17] [Revised as of July 1, 2008] From the U.S. Government Printing Office via GPO Access [CITE: 40CFR82.3] [Page 452-458] 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. 82.3 Definitions for class I and class II controlled substances. As used in this subpart, the term: Administrator means the Administrator of the United States Environmental Protection Agency or his authorized representative. For purposes of reports and petitions, the Administrator must be written at the following mailing address: EPA (6205J), Global Programs Division, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Applicator means the person who applies methyl bromide. Approved critical use(s) means those uses of methyl bromide listed in Column A of appendix L to this subpart as further clarified in Columns B and C of that appendix. Approved critical user(s) means a person who: (1) For the applicable control period, applied to EPA for a critical use exemption or is a member of a consortium that applied to EPA for a critical use exemption for a use and location of use that was included in the U.S. nomination, authorized by a Decision of the Parties to the Montreal Protocol, and then finally determined by EPA in a notice-and- comment rulemaking to be an approved critical use; and (2) Has an area in the applicable location of use that requires methyl bromide fumigation because the person reasonably expects that the area will be subject to a limiting critical condition during the applicable control period. Article 5 allowances means the allowances apportioned under Sec. 82.9(a), Sec. 82.11(a)(2), and Sec. 82.18(a). Baseline consumption allowances means the consumption allowances apportioned under Sec. 82.6 and Sec. 82.19. Baseline production allowances means the production allowances apportioned under Sec. 82.5 and Sec. 82.17. Beijing Amendments means the Montreal Protocol, as amended at the Eleventh Meeting of the Parties to the Montreal Protocol in Beijing in 1999. Calculated level means the weighted amount of a controlled substance determined by multiplying the amount (in kilograms) of the controlled substance by that substance's ozone depletion potential (ODP) weight listed in appendix A or appendix B to this subpart. Class I refers to the controlled substances listed in appendix A to this subpart. Class II refers to the controlled substances listed in appendix B to this subpart. Commodity Owner, Shipper or their Agent means the person requesting that an applicator use methyl bromide for quarantine or preshipment applications. Completely destroy means to cause the expiration of a controlled substance at a destruction efficiency of 98 percent or greater, using one of the destruction technologies approved by the Parties. Complying with the Protocol, when referring to a foreign state not Party to the 1987 Montreal Protocol, the London Amendments, or the Copenhagen Amendments, means that the non-Party has been determined as complying with the Protocol, as indicated [[Page 453]] in appendix C to this subpart, by a meeting of the Parties as noted in the records of the directorate of the United Nations Secretariat. Confer means to shift the essential-use allowances obtained under Sec. 82.8 from the holder of the unexpended essential-use allowances to a person for the production of a specified controlled substance, or to shift the HCFC-141b exemption allowances granted under Sec. 82.16(h) from the holder of the unexpended HCFC-141b exemption allowances to a person for the production or import of the controlled substance. Consortium means an organization representing a group of methyl bromide users that has collectively submitted an application for a critical use exemption on behalf of all members of the group. The members of a consortium shall be determined on the basis of the rules established by the organization. Members may either be required to formally join the consortium (e.g., by submitting an application or paying dues) or may automatically become members upon meeting particular criteria (e.g., a grower of a specific crop in a particular region). Consumption means the production plus imports minus exports of a controlled substance (other than transhipments, or used controlled substances). Consumption allowances means the privileges granted by this subpart to produce and import controlled substances; however, consumption allowances may be used to produce controlled substances only in conjunction with production allowances. A person's consumption allowances for class I substances are the total of the allowances obtained under Sec. Sec. 82.6 and 82.7 and 82.10, as may be modified under Sec. 82.12 (transfer of allowances). A person's consumption allowances for class II controlled substances are the total of the allowances obtained under Sec. Sec. 82.19 and 82.20, as may be modified under Sec. 82.23. Control period means the period from January 1, 1992 through December 31, 1992, and each twelve-month period from January 1 through December 31, thereafter. Controlled product means a product that contains a controlled substance listed as a Class I, Group I or II substance in appendix A to this subpart. Controlled products include, but are not limited to, those products listed in appendix D to this subpart. Controlled products belong to one or more of the following six categories of products: (1) Automobile and truck air conditioning units (whether incorporated in vehicles or not); (2) Domestic and commercial refrigeration and air-conditioning/heat pump equipment (whether containing controlled substances as a refrigerant and/or in insulating material of the product), e.g. Refrigerators, Freezers, Dehumidifiers, Water coolers, Ice machines, Air-conditioning and heat pump units; (3) Aerosol products, except medical aerosols; (4) Portable fire extinguishers; (5) Insulation boards, panels and pipe covers; (6) Pre-polymers. Controlled substance means any substance listed in appendix A or appendix B to this subpart, whether existing alone or in a mixture, but excluding any such substance or mixture that is in a manufactured product other than a container used for the transportation or storage of the substance or mixture. Thus, any amount of a listed substance in appendix A or appendix B to this subpart that is not part of a use system containing the substance is a controlled substance. If a listed substance or mixture must first be transferred from a bulk container to another container, vessel, or piece of equipment in order to realize its intended use, the listed substance or mixture is a ``controlled substance.'' The inadvertent or coincidental creation of insignificant quantities of a listed substance in appendix A or appendix B to this subpart; during a chemical manufacturing process, resulting from unreacted feedstock, from the listed substance's use as a process agent present as a trace quantity in the chemical substance being manufactured, or as an unintended byproduct of research and development applications, is not deemed a controlled substance. Controlled substances are divided into two classes, Class I in appendix A to this subpart, and Class II listed in appendix B to this subpart. Class I substances are further [[Page 454]] divided into eight groups, Group I, Group II, Group III, Group IV, Group V, Group VI, Group VII, and Group VIII, as set forth in appendix A to this subpart. Copenhagen Amendments means the Montreal Protocol on Substances That Deplete the Ozone Layer, as amended at the Fourth Meeting of the Parties to the Montreal Protocol in Copenhagen in 1992. Critical stock allowance (CSA) means the right granted by this subpart to sell one (1) kilogram of class I, Group VI controlled substances from inventory produced or imported prior to the January 1, 2005 phaseout date for an approved critical use during the specified control period to the extent permitted by federal and state pesticide statutes and regulations other than the Clean Air Act and regulations in this part. A person's critical stock allowances are the total of the allowances obtained under Sec. 82.8(c) as may be modified under Sec. 82.12 (transfer of allowances). Critical stock allowance (CSA) holder means an entity to which EPA allocates a quantity of critical stock allowances as reflected under Sec. 82.8(c), or who receives a quantity of critical stock allowances through a transfer under Sec. 82.12. Critical use means a circumstance in which the following two conditions are satisfied: (1) There are no technically and economically feasible alternatives or substitutes for methyl bromide available that are acceptable from the standpoint of environment and health and are suitable to the crops and circumstances involved, and (2) The lack of availability of methyl bromide for a particular use would result in significant market disruption. Critical use allowance (CUA) means the privilege granted by this subpart to produce or import one (1) kilogram of methyl bromide for an approved critical use during the specified control period. A person's critical use allowances are the total of the allowances obtained under Sec. 82.8(c) as may be modified under Sec. 82.12 (transfer of allowances). Critical use allowance for pre-plant uses means the privilege granted by this subpart to produce or import one (1) kilogram of methyl bromide solely for an approved critical use in pre-plant categories specified in Appendix L to this subpart during the specified control period. A person's critical use allowances for pre-plant uses are the total of the allowances obtained under Sec. 82.8(c) as may be modified under Sec. 82.12 (transfer of allowances). Critical use allowance for post-harvest uses means the privilege granted by this subpart to produce or import one (1) kilogram of methyl bromide solely for an approved critical use in post-harvest categories specified in appendix L to this subpart during the specified control period. A person's critical use allowances for post-harvest uses are the total of the allowances obtained under Sec. 82.8(c) as may be modified under Sec. 82.12 (transfer of allowances). Critical use allowance (CUA) holder means an entity to which EPA allocates a quantity of critical use allowances as reflected in Sec. 82.8(c) or who receives a quantity of critical use allowances through a transfer under Sec. 82.12. Critical use methyl bromide means the class I, Group VI controlled substance produced or imported through expending a critical use allowance or that portion of inventory produced or imported prior to the January 1, 2005 phaseout date that is sold only for approved critical uses through expending a critical stock allowance. Destruction means the expiration of a controlled substance to the destruction efficiency actually achieved, unless considered completely destroyed as defined in this section. Such destruction does not result in a commercially useful end product and uses one of the following controlled processes approved by the Parties to the Protocol: (1) Liquid injection incineration; (2) Reactor cracking; (3) Gaseous/fume oxidation; (4) Rotary kiln incineration; (5) Cement kiln; (6) Radio frequency plasma; or (7) Municipal waste incinerators only for the destruction of foams. Distributor of methyl bromide means the person directly selling a class I, Group VI controlled substance to an applicator. [[Page 455]] Essential Metered Dose Inhaler (Essential MDI) means metered dose inhalers for the treatment of asthma and chronic obstructive pulmonary disease, approved by the Food and Drug Administration or by another Party's analogous health authority before December 31, 2000, and considered to be essential by the Party where the MDI product will eventually be sold. In addition, if the MDI product is to be sold in the U.S., the active moiety contained in the MDI must be listed as essential at 21 CFR 2.125(e). Essential-Use Allowances means the privileges granted by Sec. 82.4(n) to produce class I substances, as determined by allocation decisions made by the Parties to the Montreal Protocol and in accordance with the restrictions delineated in the Clean Air Act Amendments of 1990. Essential-Use Chlorofluorocarbons (Essential-use CFCs) are the CFCs (CFC-11, CFC-12, or CFC-114) produced under the authority of essential- use allowances and not the allowances themselves. Essential-use CFCs include CFCs imported or produced by U.S. entities under the authority of essential-use allowances for use in essential metered dose inhalers, as well as CFCs imported or produced by non-U.S. entities under the authority of privileges granted by the Parties and the national authority of another country for use in essential metered dose inhalers. Essential-Uses means those uses of controlled substances designated by the Parties to the Protocol to be necessary for the health and safety of, or critical for the functioning of, society; and for which there are no available technically and economically feasible alternatives or substitutes that are acceptable from the standpoint of environment and health. Beginning January 1, 2000 (January 1, 2002 for methyl chloroform) the essential use designations for class I substances must be made in accordance with the provisions of the Clean Air Act Amendments of 1990. Export means the transport of virgin or used controlled substances from inside the United States or its territories to persons outside the United States or its territories, excluding United States military bases and ships for on-board use. Export production allowances means the privileges granted by Sec. 82.18(b) to produce HCFC-141b for export following the phaseout of HCFC- 141b on January 1, 2003. Exporter means the person who contracts to sell controlled substances for export or transfers controlled substances to his affiliate in another country. Facility means any process equipment (e.g., reactor, distillation column) used to convert raw materials or feedstock chemicals into controlled substances or consume controlled substances in the production of other chemicals. Foreign state means an entity which is recognized as a sovereign nation or country other than the United States of America. \1\ --------------------------------------------------------------------------- \1\ Taiwan is not considered a foreign state. --------------------------------------------------------------------------- Foreign state not Party to or Non-Party means a foreign state that has not deposited instruments of ratification, acceptance, or other form of approval with the Directorate of the United Nations Secretariat, evidencing the foreign state's ratification of the provisions of the 1987 Montreal Protocol, the London Amendments, or of the Copenhagen Amendments, as specified. Formulator means an entity that distributes a class II controlled substance(s) or blends of a class II controlled substance(s) to persons who use the controlled substance(s) for a specific application identified in the formulator's petition for HCFC-141b exemption allowances. HCFC-141b exemption allowances means the privileges granted to a HCFC-141b formulator; an agency, department, or instrumentality of the U.S.; or a non-governmental space vehicle entity by this subpart to order production of or to import HCFC-141b, as determined in accordance with Sec. 82.16(h). Heel means the amount of a controlled substance that remains in a container after it is discharged or off-loaded (that is no more than ten percent of the volume of the container). Import means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into any [[Page 456]] place subject to the jurisdiction of the United States whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States, with the following exemptions: (1) Off-loading used or excess controlled substances or controlled products from a ship during servicing, (2) Bringing controlled substances into the U.S. from Mexico where the controlled substance had been admitted into Mexico in bond and was of U.S. origin, and (3) Bringing a controlled product into the U.S. when transported in a consignment of personal or household effects or in a similar non- commercial situation normally exempted from U.S. Customs attention. Importer means any person who imports a controlled substance or a controlled product into the United States. ``Importer'' includes the person primarily liable for the payment of any duties on the merchandise or an authorized agent acting on his or her behalf. The term also includes, as appropriate: (1) The consignee; (2) The importer of record (listed on U.S. Customs Service forms for imported controlled substances, used controlled substances or controlled products); (3) The actual owner; or (4) The transferee, if the right to draw merchandise in a bonded warehouse has been transferred. Individual shipment means the kilograms of a used controlled substance for which a person may make one (1) U.S. Customs entry as, as identified in the non-objection letter from the Administrator under Sec. Sec. 82.13(g) and 82.24(c)(4). Limiting critical condition means the regulatory, technical, and economic circumstances listed in Column C of Appendix L to this subpart that establish conditions of critical use for methyl bromide in a fumigation area. Location of use means the geographic area (such as a state, region, or the entire United States) covered by an application for a critical use exemption in which the limiting critical condition may occur. London Amendments means the Montreal Protocol, as amended at the Second Meeting of the Parties to the Montreal Protocol in London in 1990. Montreal Anniversary amendments means the Montreal Protocol, as amended at the Ninth Meeting of the Parties to the Montreal Protocol in Montreal in 1997. Montreal Protocol means the Montreal Protocol on Substances that Deplete the Ozone Layer, a protocol to the Vienna Convention for the Protection of the Ozone Layer, including adjustments adopted by the Parties thereto and amendments that have entered into force. 1987 Montreal Protocol means the Montreal Protocol, as originally adopted by the Parties in 1987. Nations complying with, but not joining, the Protocol means any nation listed in Appendix C, Annex 2, to this subpart. Non-Objection notice means the privilege granted by the Administrator to import a specific individual shipment of used controlled substance in accordance with Sec. Sec. 82.13(g) and 82.24(c)(3) and (4). Party means any foreign state that is listed in Appendix C to this subpart (pursuant to instruments of ratification, acceptance, or approval deposited with the Depositary of the United Nations Secretariat), as having ratified the specified control measure in effect under the Montreal Protocol. Thus, for purposes of the trade bans specified in Sec. 82.4(l)(2) pursuant to the London Amendments, only those foreign states that are listed in Appendix C to this subpart as having ratified both the 1987 Montreal Protocol and the London Amendments shall be deemed to be Parties. Person means any individual or legal entity, including an individual, corporation, partnership, association, state, municipality, political subdivision of a state, Indian tribe; any agency, department, or instrumentality of the United States; and any officer, agent, or employee thereof. Plant means one or more facilities at the same location owned by or under common control of the same person. [[Page 457]] Preshipment applications, with respect to class I, Group VI controlled substances, are those non-quarantine applications applied within 21 days prior to export to meet the official requirements of the importing country or existing official requirements of the exporting country. Official requirements are those which are performed by, or authorized by, a national plant, animal, environmental, health or stored product authority. Production means the manufacture of a controlled substance from any raw material or feedstock chemical, but does not include: (1) The manufacture of a controlled substance that is subsequently transformed; (2) The reuse or recycling of a controlled substance; (3) Amounts that are destroyed by the approved technologies; or (4) Amounts that are spilled or vented unintentionally. Production allowances means the privileges granted by this subpart to produce controlled substances; however, production allowances may be used to produce controlled substances only in conjunction with consumption allowances. A person's production allowances for class I substances are the total of the allowances obtained under Sec. Sec. 82.5, 82.7 and 82.9, and as may be modified under Sec. 82.12 (transfer of allowances). A person's production allowances for class II controlled substances are the total of the allowances obtained under Sec. 82.17 and as may be modified under Sec. Sec. 82.18 and 82.23. Quarantine applications, with respect to class I, Group VI controlled substances, are treatments to prevent the introduction, establishment and/or spread of quarantine pests (including diseases), or to ensure their official control, where: (1) Official control is that performed by, or authorized by, a national (including state, tribal or local) plant, animal or environmental protection or health authority; (2) quarantine pests are pests of potential importance to the areas endangered thereby and not yet present there, or present but not widely distributed and being officially controlled. This definition excludes treatments of commodities not entering or leaving the United States or any State (or political subdivision thereof). Source facility means the location at which a used controlled substance was recovered from a piece of equipment, including the name of the company responsible for, or owning the piece of equipment, a contact person at the location, the mailing address for that specific location, and a phone number and a fax number for the contact person at the location. Space vehicle means a man-made device, either manned or unmanned, designed for operation beyond earth's atmosphere. This definition includes integral equipment such as models, mock-ups, prototypes, molds, jigs, tooling, hardware jackets, and test coupons. Also included is auxiliary equipment associated with tests, transport, and storage, which through contamination can compromise the space vehicle performance. Third party applicator means an applicator of critical use methyl bromide who fumigates or treats commodities, structures, crops, or land on behalf of an approved critical user. Transform means to use and entirely consume (except for trace quantities) a controlled substance in the manufacture of other chemicals for commercial purposes. Transhipment means the continuous shipment of a controlled substance, from a foreign state of origin through the United States or its territories, to a second foreign state of final destination, as long as the shipment does not enter into United States jurisdiction. A transhipment, as it moves through the United States or its territories, cannot be re-packaged, sorted or otherwise changed in condition. Unexpended Article 5 allowances means Article 5 allowances that have not been used. At any time in any control period a person's unexpended Article 5 allowances are the total of the level of Article 5 allowances the person has authorization under this subpart to hold at that time for that control period, minus the level of controlled substances that the person has produced in that control period until that time. Unexpended consumption allowances means consumption allowances that have not been used. At any time in any [[Page 458]] control period a person's unexpended consumption allowances are the total of the level of consumption allowances the person has authorization under this subpart to hold at that time for that control period, minus the level of controlled substances that the person has produced or imported (not including transhipments and used controlled substances) in that control period until that time. Unexpended critical stock allowance (CSA) means critical stock allowances against which methyl bromide has not yet been sold for an approved critical use. Unexpended critical use allowances (CUA) means critical use allowances against which methyl bromide has not yet been produced or imported. At any time in any control period a person's unexpended critical use allowances are the total of the level of critical use allowances the person holds at that time for that control period, minus the level of class I, Group VI controlled substances that the person has produced or has imported solely for approved critical uses in that control period. Unexpended destruction and transformation credits means destruction and transformation credits that have not been used. At any time in any control period a person's unexpended destruction and transformation credits are the total of the level of destruction and transformation credits the person has authorization under this subpart to hold at that time for that control period, minus the level of controlled substances that the person has produced or imported (not including transhipments and used controlled substances) in that control period until that time. Unexpended essential-use allowances means essential-use allowances that have not been used. At any time in any control period a person's unexpended essential-use allowances are the total of the level of essential-use allowances the person has authorization under this subpart to hold at that time for that control period, minus the level of controlled substances that the person has imported or had produced in that control period until that time. Unexpended export production allowances means export production allowances that have not been used. A person's unexpended export production allowances are the total of the quantity of the export production allowances the person has authorization under Sec. 82.18(h) to hold for that control period, minus the quantity of class II controlled substances that the person has produced at that time during the same control period. Unexpended HCFC-141b exemption allowances means HCFC-141b exemption allowances that have not been used. A person's unexpended HCFC-141b exemption allowances are the total of the quantity of the HCFC-141b exemption allowances the person has authorization under Sec. 82.16(h) to hold for that control period, minus the quantity of HCFC-141b that the person has had produced or has had imported at that time during the same control period. Unexpended production allowances means production allowances that have not been used. At any time in any control period a person's unexpended production allowances are the total of the level of production allowances he has authorization under this subpart to hold at that time for that control period, minus the level of controlled substances that the person has produced in that control period until that time. Used controlled substances means controlled substances that have been recovered from their intended use systems (may include controlled substances that have been, or may be subsequently, recycled or reclaimed). [60 FR 24986, May 10, 1995, as amended at 63 FR 41642, Aug. 4, 1998; 66 FR 37767, July 19, 2001; 67 FR 6359, Feb. 11, 2002; 67 FR 79872, Dec. 31, 2002; 67 FR 251, Jan. 2, 2003; 68 FR 2847, Jan. 21, 2003; 68 FR 42891, July 18, 2003; 69 FR 4064, Jan. 28, 2004; 69 FR 77001, Dec. 23, 2004; 70 FR 77047, Dec. 29, 2005; 71 FR 41171, July 20, 2006]