Protection of Stratospheric Ozone: Adjusting Allowances for Class I Substances for Export to Article 5 Countries, 77042-77048 [05-24606]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 249 (Thursday, December 29, 2005)]
[Rules and Regulations]
[Pages 77042-77048]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-24606]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-8017-2]
RIN 2060-AK45


Protection of Stratospheric Ozone: Adjusting Allowances for Class 
I Substances for Export to Article 5 Countries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action finalizes adjustments to allocations of Article 5 
allowances that permit production of Class I ozone-depleting substances 
(ODSs) solely for export to developing countries to meet those 
countries' basic domestic needs. This action adjusts the baseline 
Article 5 allowances for companies for specific Class I controlled 
substances and establishes a schedule for reductions in the Article 5 
allowances for these Class I controlled substances in accordance with 
the Montreal Protocol on Substances that Deplete the Ozone Layer 
(Montreal Protocol) and the Clean Air Act (CAA). This action also 
extends the allocation of Article 5 allowances for the manufacture of 
methyl bromide solely for export to developing countries beyond January 
1, 2005, in accordance with the Montreal Protocol and the CAA.

EFFECTIVE DATE: This final rule is effective on December 29, 2005.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. OAR-2004-0506. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., 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 either electronically through 
www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The Public Reading Room is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.

FOR FURTHER INFORMATION CONTACT: Hodayah Finman, U.S. Environmental 
Protection Agency, Office of Air and Radiation, Stratospheric 
Protection Division (6205J), 1200 Pennsylvania Avenue, NW., Washington, 
DC, 20460; telephone number: (202) 343-9246; fax number: (202) 343-
2338; finman.hodayah@epa.gov. You may also visit the EPA's Ozone 
Depletion Web site at www.epa.gov/ozone for further information about 
EPA's Stratospheric Ozone Protection regulations, the science of ozone 
layer depletion, and other related topics.

SUPPLEMENTARY INFORMATION: This action establishes a new Article 5 
allowance baseline for specified Class I

[[Page 77043]]

substances, establishes a schedule for phased reductions in such 
production, and extends the time allowed for Article 5 production for 
methyl bromide. Article 5 allowances are solely for production to meet 
the basic domestic needs of developing countries referred to in the 
Protocol as ``Article V'' parties.
    Section 533(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. This 
final rule is issued under section 307(d) of the CAA, which states: 
``The provisions of section 553 through 557 * * * of Title 5 shall not, 
except as expressly provided in this subsection, 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 nevertheless is 
acting consistently with the policies underlying APA section 553(d) in 
making this rule effective on December 29, 2005. APA section 553(d) 
provides an exception for any action that grants or recognizes an 
exemption or relieves a restriction. This final rule extends the grant 
of an exemption from the phaseout of methyl bromide to producers of 
this Class I ozone depleting substance (ODS) for the manufacture of 
methyl bromide to meet the basic domestic needs of developing 
countries. In addition, EPA finds that there is good cause to make the 
new Article 5 allowances baselines and phased reduction schedules 
effective without 30 days' prior notice. These new baselines and phased 
reduction schedules will make EPA regulations consistent with the 
adjustments to the Montreal Protocol agreed to at the Meeting of the 
Parties in Beijing in 1999. Those adjustments are already in effect. In 
addition, the new baselines and allowance allocations conform to 
current industry levels of production for export. Therefore, producers 
do not require advance notice to comply with today's regulatory 
amendment.

Table of Contents

I. What Is the Legislative and Regulatory Background of the Phaseout 
Regulations for Ozone-Depleting Substances?
II. How Did the Beijing Adjustments to the Montreal Protocol Change 
the Levels and Schedules of ODS Production To Meet the Basic 
Domestic Needs of Developing Countries?
III. Today's Action
IV. Statutory and Executive Order Reviews
    A. Executive Order No. 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order No. 13132: Federalism
    F. Executive Order No. 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order No. 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order No. 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. What Is the Legislative and Regulatory Background of the Phaseout 
Regulations for Ozone-Depleting Substances?

    The current regulatory requirements of the Stratospheric Ozone 
Protection Program that limit production and consumption of ozone-
depleting substances can be found at 40 CFR part 82, subpart A. The 
regulatory program was originally published in the Federal Register on 
August 12, 1988 (53 FR 30566), in response to the 1987 signing and 
subsequent ratification of the Montreal Protocol on Substances that 
Deplete the Ozone Layer (Protocol). The U.S. was one of the original 
signatories to the 1987 Montreal Protocol and the U.S. ratified the 
Protocol on April 21, 1988. Congress then enacted, and President Bush 
signed into law, the Clean Air Act Amendments of 1990 (CAAA of 1990), 
which included Title VI on Stratospheric Ozone Protection, codified as 
42 U.S.C. Chapter 85, Subchapter VI, to ensure that the United States 
could satisfy its obligations under the Protocol. EPA issued 
regulations to implement this legislation and has made several 
amendments to the regulations since.
    The requirements contained in the final rules published in the 
Federal Register on December 20, 1994 (59 FR 65478) and May 10, 1995 
(60 FR 24970) establish an Allowance Program. The Allowance Program and 
its history are described in the notice of proposed rulemaking 
published in the Federal Register on November 10, 1994 (59 FR 56276). 
The control and the phaseout of the production and consumption of Class 
I ODSs as required under the Protocol and the CAA are accomplished 
through the Allowance Program.
    In developing the Allowance Program, we collected information on 
the amounts of ODSs produced, imported, exported, transformed and 
destroyed within the U.S. for specific baseline years for specific 
chemicals. This information was used to establish the U.S. production 
and consumption ceilings for these chemicals. The data were also used 
to assign company-specific production and import rights to companies 
that were in most cases producing or importing during the specific year 
of data collection. These production or import rights are called 
``allowances.'' During the complete phaseout of many ODSs, the 
quantities of allowances granted to companies for those chemicals were 
gradually reduced and eventually eliminated. Production allowances and 
consumption allowances no longer exist for any Class I ODSs. All 
production and consumption of Class I controlled substances is 
prohibited under the Protocol and the CAA, except for a few narrow 
exemptions.
    In the context of the regulatory program, the use of the term 
``consumption'' may be misleading. Consumption does not mean the 
``use'' of a controlled substance, but rather is defined as the 
formula: production + imports - exports, of controlled substances 
(Article 1 of the Protocol and Section 601 of the CAA). Class I 
controlled substances that were produced or imported through the 
expenditure of allowances prior to their phaseout date may continue to 
be used by industry and the public after that specific chemical's 
phaseout except where the regulations include explicit use 
restrictions. Use of such substances may be subject to other regulatory 
limitations.
    The specific names and chemical formulas for the Class I ODSs are 
in Appendix A and Appendix F in Subpart A of 40 CFR part 82. The 
specific names and chemical formulas for the Class II ODSs are in 
Appendix B and Appendix F in Subpart A.
    Although the regulations phased out the production and consumption 
of Class I controlled substances, a very limited number of exemptions 
exist, consistent with U.S. obligations under the Protocol. The 
regulations allow for the production of phased-out Class I controlled 
substances provided the substances are either transformed or destroyed. 
They also allow limited production if the substances are (1) exported 
to countries operating under Article 5 of the Protocol or (2) produced 
for essential or critical uses as authorized by the Protocol and the 
regulations. Limited exceptions to the ban on the import of phased-out 
Class I controlled substances exist if the substances are: (1) 
Previously used, (2) imported for essential or critical uses as 
authorized by the Protocol and the regulations, (3) imported for 
destruction or transformation only, or (4) a transhipment or a heel (a 
small amount of controlled substance remaining in a container after 
discharge) (40 CFR 82.4).

[[Page 77044]]

II. How Did the Beijing Adjustments to the Montreal Protocol Change the 
Levels and Schedules of ODS Production To Meet the Basic Domestic Needs 
of Developing Countries?

    Under the Montreal Protocol, industrialized countries and 
developing countries have different schedules for phasing out the 
production and import of ODSs. Developing countries operating under 
Article 5, paragraph 1 of the Protocol in most cases have additional 
time in which to phase out ODSs. The Parties to the Protocol recognized 
that it would be inadvisable for developing countries to spend their 
scarce resources to build new ODS manufacturing facilities to meet 
their basic domestic needs as industrialized countries phase out. The 
Parties therefore decided to permit a small amount of production in 
industrialized countries, above and beyond the amounts permitted under 
those countries' phaseout schedules, to meet the basic domestic needs 
of developing countries.
    The original Montreal Protocol schedule for industrialized country 
production of ODSs to meet the basic domestic needs of developing 
countries was based on a percentage of each producing country's 
baseline. The initial level was set at 10 percent of the baseline and 
this level changed to 15 percent upon phaseout of each specific ODS or 
group of chemicals. EPA regulations prior to today's action reflect 
this approach.
    The adjustments to the Montreal Protocol adopted by the Parties at 
their 11th meeting in Beijing change the basis for calculating 
production by industrialized countries to meet the basic domestic needs 
of developing countries for specific ODSs or groups of ODSs. Instead of 
being calculated as a percentage of total production of the ODS in a 
given year, the new baselines for basic domestic need production are 
calculated based on the average quantity of the ODS exported to Article 
5 countries over a specified range of years. The new baseline 
calculation agreed to in Beijing reflects the Parties' concern, which 
EPA shares, that global oversupply of certain Class I ODSs is 
interfering with the transition to alternatives. The oversupply of 
these ODSs results in low prices that make it difficult for non-ozone-
depleting alternatives to compete in the marketplace. Businesses and 
individuals thus lack an economic incentive to transition to 
alternatives. The new baseline calculation is designed to overcome this 
problem with respect to Article 5 countries by reducing supply to those 
countries. The price of these ODSs should rise to reflect the decrease 
in supply.
    The adjustments agreed to in Beijing also establish reduction 
schedules for the manufacture of ODSs by industrialized countries to 
meet the basic domestic needs of developing countries. Article 5 
countries are subject to periodic step-downs in the amount of ODSs they 
may consume. If industrialized countries' production for export to 
Article 5 countries were not adjusted to take into account these step-
downs, the problem of oversupply likely would recur. Therefore, the 
Parties agreed at Beijing to reduction schedules that would mirror each 
step-down in Article 5 consumption. The schedules also reflect the 
complete consumption phaseouts in Article 5 countries. Under these 
schedules, industrialized countries must cease production for export to 
developing countries of CFCs by January 1, 2010, and of methyl bromide 
by January 1, 2015.
    To ensure consistency with the Montreal Protocol, EPA proposed to 
adopt new baselines and reduction schedules at 40 CFR part 82, subpart 
A (70 FR 55480). Under that proposed rule, the amount of ODSs that 
could be produced to meet the basic domestic needs of developing 
countries would be reduced by a certain percentage of the baseline in 
accordance with the step-down schedule for Article 5 developing 
countries for those chemicals until they are completely phased out. In 
today's action, EPA is finalizing the proposed provisions described in 
this paragraph.

III. Today's Action

    EPA published a proposed rule on September 21, 2005 in the Federal 
Register (70 FR 55480) to amend regulations found at 40 CFR part 82 by 
establishing new baselines for companies that manufacture Class I ODS 
to meet the basic domestic needs of so-called ``Article 5'' developing 
countries, issuing Article 5 allowances in accordance with the revised 
baselines, and creating a phasedown schedule for these allowances to 
reflect the phasedown schedules of developing countries as specified in 
the Montreal Protocol and the Adjustment adopted at the 11th Meeting of 
the Parties in Beijing.
    Specifically, EPA proposed new baselines for the CFCs subject to 
the earliest controls on production and import, other halogenated CFCs, 
and methyl bromide to reflect changes to the Montreal Protocol. As a 
result of the Beijing Adjustments to the Protocol, Article 2A, 
paragraphs 4-7 state that an industrialized Party's allowable 
production of CFCs 11, 12, 113, 114, and 115, referred to under the 
Clean Air Act as Class I, Group I substances, to meet the basic 
domestic needs of Article 5 Parties shall be measured against ``the 
annual average of its production of [these substances] for basic 
domestic needs for the period 1995 to 1997 inclusive.''
    In regard to other halogenated CFCs, referred to in the Clean Air 
Act as Class I, Group III ODS, the Beijing Adjustments state that the 
new baseline for Article 5 production should be ``the annual average of 
its production of [these substances] for basic domestic needs for the 
period 1998-2000 inclusive.''
    EPA proposed using more recent export data from the years 2000-2003 
to establish the baselines for these two groups of chemicals. The 
Agency believes that the use of more recent export data represents a 
truer picture of the actual basic domestic needs for these chemicals in 
developing countries and addresses the concerns regarding oversupply of 
CFCs as discussed in section I of this preamble.
    EPA would like to note that for Class I, Group III substances the 
new baseline years provide the U.S. with a baseline that is nearly 
zero. Since the baseline for Class I, Group III substances is 
negligible, EPA proposed a baseline of zero for these substances.
    In addition to proposing new baselines, EPA also proposed phasedown 
schedules for Article 5 allowances consistent with the schedule set 
forth in the Beijing adjustments to the Montreal Protocol. While the 
baseline proposed by EPA was different, and more stringent, than the 
baselines agreed to in the Beijing adjustment for CFCs, the phasedown 
schedule proposed by the Agency followed the Beijing adjustment 
exactly. Hence, the proposed Article 5 allowance reduction schedule for 
production of the Class I, Group I controlled substances was as 
follows: 50% of the Article 5 allowance baseline for the 2006 control 
period; 15% of baseline for each of the control periods from January 1, 
2007, to December 31, 2009; and 0% (complete phaseout) for the control 
periods beginning January 1, 2010, and thereafter.
    The proposed Article 5 allowance reduction schedule for production 
of the Class I, Group III controlled substances was 80% of baseline for 
the 2006 control period; 15% of baseline for each of the control 
periods from January 1, 2007 to December 31, 2009; and 0% (complete 
phaseout) for the control periods beginning January 1, 2010 and 
thereafter. However, under EPA's preferred option of a zero baseline 
based

[[Page 77045]]

on 2000-2003 data, this reduction schedule would be unnecessary.
    In regard to methyl bromide production for the basic domestic needs 
of developing countries, EPA proposed establishing the same baseline 
and the same phasedown schedule as that agreed to under the Beijing 
adjustments. The Beijing adjustments state that a country's baseline 
for Article 5 production of methyl bromide is ``the annual average of 
its production of [methyl bromide] for basic domestic needs for the 
period 1995 to 1998 inclusive.'' The reduction schedule for the 
production of methyl bromide (Class I, Group VI controlled substances) 
proposed by EPA is 80% of the Article 5 allowance baseline for each of 
the control periods from January 1, 2006 to December 31, 2014; 0% 
(complete phaseout) starting January 1, 2015 and thereafter.
    As noted in the proposal, Article 5 production for Class I Group IV 
and Group V chemicals was not altered under the Beijing Amendments and 
EPA did not propose to take any action to change the baselines or 
reduction schedules for these substances.
    EPA did not receive any comments on the proposed revisions to the 
baselines or reduction schedules for Article 5 allowances. Nor did EPA 
receive any comments on extending the availability of Article V 
allowances for methyl bromide. Therefore, with today's action, EPA is 
finalizing the amendments to the Agency's regulations as proposed. The 
revised baseline and the percentage of baseline allocated in each 
control period beginning with 2006 are located in section 82.11 of the 
regulations.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether this regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines a ``significant'' regulatory action 
as one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more, or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order. It has been determined 
by OMB and EPA that this final action is not a ``significant regulatory 
action'' under the terms of Executive Order 12866, and is therefore not 
subject to OMB review under the Executive Order.

B. Paperwork Reduction Act

    This final action does not add any information collection 
requirements or increase burden under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. The OMB has previously approved 
the information collection requirements contained in the existing 
regulations, 40 CFR part 82, 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. A copy of the OMB-approved 
Information Collection Request (ICR) may be obtained from Susan Auby, 
Collection Strategies Division; U.S. Environmental Protection Agency 
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by 
calling (202) 566-1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

C. Regulatory Flexibility Act

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule. For purposes 
of assessing the impacts of today's rule on small entities, small 
entity is defined as: (1) A small business that is identified by the 
North American Industry Classification System (NAICS) Code in the Table 
below; (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.

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                                                                                                   SIC small
                                                                                                 business size
                        Category                             NAICS Code          SIC Code        standard  (in
                                                                                                   number of
                                                                                                   employees)
----------------------------------------------------------------------------------------------------------------
1. Chemical and Allied Products, NEC...................             424690               5169                100
----------------------------------------------------------------------------------------------------------------

    After considering the economic impacts of today's rule on small 
entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
This final rule will not impose any requirements on small entities, as 
it regulates large corporations that produce Class I ODSs. There are no 
small entities in this regulated industry.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million

[[Page 77046]]

or more in any one year. Before EPA may promulgate a 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 under section 203 of the UMRA a small government 
agency plan. 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.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA. Further, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments because it 
does not impose any requirements on any State, local, or tribal 
government.

E. Executive Order No. 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. Today's rule is expected to 
primarily affect producers and exporters of CFCs and methyl bromide. 
Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order No. 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order No. 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 No. 13175. Today's 
final rule does not significantly or uniquely affect the communities of 
Indian tribal governments. The final rule does not impose any 
enforceable duties on communities of Indian tribal governments. Thus, 
Executive Order No. 13175 does not apply to this final rule.

G. Executive Order No. 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
under E.O. 12866, and (2) concerns an environmental health or safety 
risk that EPA has reason to believe may have a disproportionate effect 
on children. If the regulatory action meets both criteria, the Agency 
must evaluate the environmental health or safety effects of the planned 
rule on children, and explain why the planned regulation is preferable 
to other potentially effective and reasonably feasible alternatives 
considered by the Agency.
    While this final rule is not subject to the Executive Order because 
it is not economically significant as defined in E.O. 12866, we 
nonetheless have reason to believe that the environmental health or 
safety risk addressed by this action may have a disproportionate effect 
on children. Depletion of stratospheric ozone results in greater 
transmission of the sun's ultraviolet (UV) radiation to the earth's 
surface. The following studies describe the effects on children of 
excessive exposure to UV radiation: (1) Westerdahl J, Olsson H, Ingvar 
C. ``At what age do sunburn episodes play a crucial role for the 
development of malignant melanoma,'' Eur J Cancer 1994; 30A: 1647-54; 
(2) Elwood JM, Jopson J. ``Melanoma and sun exposure: an overview of 
published studies,'' Int J Cancer 1997; 73:198-203; (3) Armstrong BK. 
``Melanoma: childhood or lifelong sun exposure,'' In: Grobb JJ, Stern 
RS, Mackie RM, Weinstock WA, eds. ``Epidemiology, causes and prevention 
of skin diseases,'' 1st ed. London, England: Blackwell Science, 1997: 
63-6; (4) Whiteman D., Green A. ``Melanoma and Sunburn,'' Cancer Causes 
Control, 1994: 5:564-72; (5) Kricker A, Armstrong, BK, English, DR, 
Heenan, PJ. ``Does intermittent sun exposure cause basal cell 
carcinoma? A case control study in Western Australia,'' Int J Cancer 
1995; 60: 489-94; (6) Gallagher, RP, Hill, GB, Bajdik, CD, et. al. 
``Sunlight exposure, pigmentary factors, and risk of nonmelanocytic 
skin cancer I, Basal cell carcinoma,'' Arch Dermatol 1995; 131: 157-63; 
(7) Armstrong, BK. ``How sun exposure causes skin cancer: an 
epidemiological perspective,'' Prevention of Skin Cancer. 2004. 89-116.
    The methyl bromide phaseout date for Article 5 countries is 2015 
and allowing continuing U.S. production to meet such countries' basic 
domestic needs avoids the need for those countries to install new ODS 
manufacturing facilities. The effect of extending the availability of 
Article 5 allowances for methyl bromide should be that methyl bromide 
that would otherwise be produced at new facilities in developing 
countries will instead be produced in the U.S. for export to those 
countries. The amount of methyl bromide that will be released to the 
atmosphere should remain the same regardless of the manufacturing 
location. In addition, avoiding the installation of new capacity is one 
means of ensuring that production levels continue to decline. Thus, 
this rule is not expected to increase the impacts on children's health 
from stratospheric ozone depletion.

H. Executive Order No. 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This final rule is not a ``significant energy action'' as defined 
in Executive Order No. 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.

[[Page 77047]]

I. National Technology Transfer Advancement Act

    As noted in the proposed rule, 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 action does not involve 
technical standards. Therefore, EPA did not consider the use of any 
voluntary consensus standards.

J. 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 on December 29, 2005.

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Chemicals, Exports, Imports, Ozone, Production, 
Reporting and recordkeeping requirements, Treaties.

    Dated: December 22, 2005.
Stephen L. Johnson,
Administrator.


0
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.

0
2. Section 82.3 is amended by revising the entry for ``Article 5 
allowance'' to read as follows:


Sec.  82.3  Definitions for class I and class controlled substances.

* * * * *
    Article 5 allowances means the allowances apportioned under Sec.  
82.9(a), Sec.  82.11(a)(2), and Sec.  82.18(a).
* * * * *

0
3. Section 82.4 is amended by revising paragraphs (b)(1) and (h) to 
read as follows:


Sec.  82.4  Prohibitions for class I controlled substances.

* * * * *
    (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.
* * * * *
    (h) No person may sell in the U.S. any Class I controlled substance 
produced explicitly for export to an Article 5 country.
* * * * *

0
4. Section 82.9 is amended by revising paragraph (a)(4) to read as 
follows:


Sec.  82.9  Availability of production allowances in addition to 
baseline production allowances for Class I controlled substances.

    (a) * * *
    (4) 15 percent of their baseline production allowances for Class I, 
Group IV and Group V controlled substances listed under Sec.  82.5 of 
this subpart for each control period beginning January 1, 1996 until 
January 1, 2010;
* * * * *

0
5. Section 82.11 is amended by revising paragraph (a) introductory text 
and adding a new paragraph (a)(2) and (a)(3) to read as follows:


Sec.  82.11  Exports of Class I controlled substances to Article 5 
Parties.

    (a) If apportioned Article 5 allowances under Sec.  82.9(a) or 
Sec.  82.11(a)(2), a person may produce Class I controlled substances, 
in accordance with the prohibitions in Sec.  82.4 and the reduction 
schedule in Sec.  82.11(a)(3), to be exported (not including exports 
resulting in transformation or destruction, or exports of used 
controlled substances) to foreign states listed in appendix E to this 
subpart (Article 5 countries).
* * * * *
    (2) Persons who reported exports of Class I, Group I controlled 
substances to Article 5 countries in 2000-2003 are apportioned baseline 
Article 5 allowances as set forth in Sec.  82.11(a)(2)(i). Persons who 
reported exports of Class I, Group VI controlled substances to Article 
5 countries in 1995-1998 are apportioned baseline Article 5 allowances 
as set forth in Sec.  82.11(a)(2)(ii)).
(i) For Group I Controlled Substances

------------------------------------------------------------------------
                                                              Allowances
        Controlled Substance                 Person              (kg)
------------------------------------------------------------------------
CFC-11.............................  Honeywell.............        7,150
                                     Sigma Aldrich.........            1
CFC-113............................  Fisher Scientific.....            5
                                     Honeywell.............      313,686
                                     Sigma Aldrich.........           48
CFC-114............................  Honeywell.............       24,798
                                     Sigma Aldrich.........            1
------------------------------------------------------------------------

(ii) For Group VI Controlled Substances

------------------------------------------------------------------------
                                                              Allowances
        Controlled Substance                 Person              (kg)
------------------------------------------------------------------------
Methyl Bromide.....................  Albemarle.............    1,152,714
                                     Ameribrom.............      176,903
                                     Great Lakes Chemical      3,825,846
                                      Corporation.
------------------------------------------------------------------------

    (3) Phased Reduction Schedule for Article 5 Allowances allocated in 
Sec.  82.11. For each control period specified in the following table, 
each person is granted the specified percentage of the baseline Article 
5 allowances apportioned under Sec.  82.11.

------------------------------------------------------------------------
                                                  Class I      Class I
                                                 substances   substances
                Control Period                   in group I  in group VI
                                                    (In           (In
                                                  percent)     percent)
------------------------------------------------------------------------
2006..........................................           50           80
2007..........................................           15           80
2008..........................................           15           80
2009..........................................           15           80

[[Page 77048]]

 
2010..........................................            0           80
2011..........................................            0           80
2012..........................................            0           80
2013..........................................            0           80
2014..........................................            0           80
2015..........................................            0            0
------------------------------------------------------------------------

* * * * *

[FR Doc. 05-24606 Filed 12-28-05; 8:45 am]
BILLING CODE 6560-50-P