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Electronic Code of Federal Regulations

e-CFR Data is current as of December 18, 2014

Title 40Chapter ISubchapter CPart 82 → Subpart A


Title 40: Protection of Environment
PART 82—PROTECTION OF STRATOSPHERIC OZONE


Subpart A—Production and Consumption Controls


Contents
§82.1   Purpose and scope.
§82.2   [Reserved]
§82.3   Definitions for class I and class II controlled substances.
§82.4   Prohibitions for class I controlled substances.
§82.5   Apportionment of baseline production allowances for class I controlled substances.
§82.6   Apportionment of baseline consumption allowances for class I controlled substances.
§82.7   Grant and phase reduction of baseline production and consumption allowances for class I controlled substances.
§82.8   Grant of essential use allowances and critical use allowances.
§82.9   Availability of production allowances in addition to baseline production allowances for class I controlled substances.
§82.10   Availability of consumption allowances in addition to baseline consumption allowances for class I controlled substances.
§82.11   Exports of class I controlled substances to Article 5 Parties.
§82.12   Transfers of allowances for class I controlled substances.
§82.13   Recordkeeping and reporting requirements for class I controlled substances.
§82.15   Prohibitions for class II controlled substances.
§82.16   Phaseout schedule of class II controlled substances.
§82.17   Apportionment of baseline production allowances for class II controlled substances.
§82.18   Availability of production in addition to baseline production allowances for class II controlled substances.
§82.19   Apportionment of baseline consumption allowances for class II controlled substances.
§82.20   Availability of consumption allowances in addition to baseline consumption allowances for class II controlled substances.
§§82.21-82.22   [Reserved]
§82.23   Transfers of allowances of class II controlled substances.
§82.24   Recordkeeping and reporting requirements for class II controlled substances.
Appendix A to Subpart A of Part 82—Class I Controlled Substances
Appendix B to Subpart A of Part 82—Class II Controlled Substances
Appendix C to Subpart A of Part 82 [Reserved]
Appendix D to Subpart A of Part 82—Harmonized Tariff Schedule Description of Products That May Contain Controlled Substances in Appendix A, Class I, Groups I and II
Appendix E to Subpart A OF Part 82—Article 5 Parties
Appendix F to Subpart A of Part 82—Listing of Ozone-Depleting Chemicals
Appendix G to Subpart A of Part 82—UNEP Recommendations for Conditions Applied to Exemption for Essential Laboratory and Analytical Uses
Appendix H to Subpart A of Part 82—Clean Air Act Amendments of 1990 Phaseout Schedule for Production of Ozone-Depleting Substances
Appendix I to Subpart A of Part 82—Global Warming Potentials (Mass Basis), Referenced to the Absolute GWP for the Adopted Carbon Cycle Model CO2 Decay Response and Future CO2 Atmospheric Concentrations Held Constant at Current Levels. (Only Direct Effects Are Considered.)
Appendix J to Subpart A of Part 82—Parties to the Montreal Protocol Classied Under Article 5(1) That Have Banned the Import of Controlled Products That Rely on Class I Controlled Substances for Their Continuing Functioning [Reserved]
Appendix K To Subpart A Of Part 82—Commodity Codes From the Harmonized Tariff Schedule for Controlled Substances and Used Controlled Substances
Appendix L to Subpart A of Part 82—Approved Critical Uses and Limiting Critical Conditions for Those Uses for the 2014 and 2015 Control Periods

Source: 60 FR 24986, May 10, 1995, unless otherwise noted.

§82.1   Purpose and scope.

(a) The purpose of the regulations in this subpart is to implement the Montreal Protocol on Substances that Deplete the Ozone Layer and sections 602, 603, 604, 605, 606, 607, 614 and 616 of the Clean Air Act Amendments of 1990, Public Law 101-549. The Protocol and section 604 impose limits on the production and consumption (defined as production plus imports minus exports, excluding transhipments and used controlled substances) of certain ozone-depleting substances, according to specified schedules. The Protocol also requires each nation that becomes a Party to the agreement to impose certain restrictions on trade in ozone-depleting substances with non-Parties.

(b) This subpart applies to any person that produces, transforms, destroys, imports or exports a controlled substance or imports or exports a controlled product.

[63 FR 41642, Aug. 4, 1998]

§82.2   [Reserved]

§82.3   Definitions for class I and class II controlled substances.

Link to an amendment published at 79 FR 64286, Oct. 28, 2014.

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.

Aircraft halon bottle means a vessel used as a component of an aircraft fire suppression system containing halon-1301 approved under FAA rules for installation in a certificated aircraft.

Appliance means any device which contains and uses a refrigerant and which is used for household or commercial purposes, including any air conditioner, refrigerator, chiller, or freezer.

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 §§82.9(a), 82.11(a)(2), and 82.18(a).

Baseline consumption allowances means the consumption allowances apportioned under §§82.6 and 82.19.

Baseline production allowances means the production allowances apportioned under §§82.5 and 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.

Confer means to shift the essential-use allowances obtained under §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 §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 §§82.6 and 82.7 and 82.10, as may be modified under §82.12 (transfer of allowances). A person's consumption allowances for class II controlled substances are the total of the allowances obtained under §§82.19 and 82.20, as may be modified under §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 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 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 §82.8(c) as may be modified under §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 §82.8(c) as may be modified under §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 §82.8(c) as may be modified under §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 §82.8(c) or who receives a quantity of critical use allowances through a transfer under §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.

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.

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 §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 §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

1Taiwan is not considered a foreign state.

Foreign state complying with, when referring to a foreign state not Party to the 1987 Montreal Protocol, the London Amendment, the Copenhagen Amendment, or the Beijing Amendment, means any foreign state that has been determined to be complying with the 1987 Montreal Protocol or the specified amendments by a Meeting of the Parties.

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 Amendment, the Copenhagen Amendment, or the Beijing Amendment, 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 §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).

Hydrostatic testing means checking a gas pressure vessel for leaks or flaws. The vessel is filled with a nearly incompressible liquid—usually water or oil—and examined for leaks or permanent changes in shape.

Import means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into any 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 §§82.13(g) and 82.24(c)(4).

Interstate commerce means the distribution or transportation of any controlled substance between one state, territory, possession or the District of Columbia, and another state, territory, possession or the District of Columbia, or the sale, use or manufacture of any controlled substance in more than one state, territory, possession or District of Columbia. The entry points for which a controlled substance is introduced into interstate commerce are the release of a controlled substance from the facility in which the controlled substance was manufactured, the entry into a warehouse from which the domestic manufacturer releases the controlled substance for sale or distribution, and at the site of United States customs clearance.

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.

Manufactured, for an appliance, means the date upon which the appliance's refrigerant circuit is complete, the appliance can function, the appliance holds a full refrigerant charge, and the appliance is ready for use for its intended purposes; and for a pre-charged appliance component, means the date that such component is completely produced by the original equipment manufacture, charged with refrigerant, and is ready for initial sale or distribution in interstate commerce.

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.

Non-Objection notice means the privilege granted by the Administrator to import a specific individual shipment of used controlled substance in accordance with §§82.13(g) and 82.24(c)(3) and (4).

Party means a foreign state that has 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 Amendment, the Copenhagen Amendment, or the Beijing Amendment, as specified. (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php.)

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.

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 §§82.5, 82.7 and 82.9, and as may be modified under §82.12 (transfer of allowances). A person's production allowances for class II controlled substances are the total of the allowances obtained under §82.17 and as may be modified under §§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 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 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 §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 §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; 74 FR 10188, Mar. 10, 2009; 74 FR 66445, Dec. 15, 2009; 78 FR 43807, July 22, 2013; 79 FR 16686, Mar. 26, 2014; 79 FR 44311, July 31, 2014]

§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 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 §82.9 and §82.11, as may be modified under §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 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 §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 §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, except for Group II used controlled substances shipped in aircraft halon bottles for hydrostatic testing, without having received a non-objection notice from the Administrator in accordance with §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 §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 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. 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 Party to the 1987 Montreal Protocol unless that foreign state is complying with the 1987 Montreal Protocol (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php);

(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 Amendment, unless that foreign state is complying with the London Amendment (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php); 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, unless that foreign state is complying with the 1987 Montreal Protocol (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php).

(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 Amendment, unless that foreign state is complying with the Copenhagen Amendment (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php).

(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 Amendment unless that foreign state is complying with the Copenhagen Amendment (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php).

(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 Amendment, unless that foreign state is complying with the Beijing Amendment (For ratification status, see: http://ozone.unep.org/new_site/en/treaty_ratification_status.php).

(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 §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.

(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 §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) 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.

(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 §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 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]

Editorial Note: For Federal Register citations affecting §82.4, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

§82.5   Apportionment of baseline production allowances for class I controlled substances.

Persons who produced controlled substances in Group I or Group II in 1986 are apportioned baseline production allowances as set forth in paragraphs (a) and (b) of this section. Persons who produced controlled substances in Group III, IV, or V in 1989 are apportioned baseline production allowances as set forth in paragraphs (c), (d), and (e) of this section. Persons who produced controlled substances in Group VI and VII in 1991 are apportioned baseline allowances as set forth in paragraphs (f) and (g) of this section.

Controlled substancePersonAllowances
(kg)
(a) For Group I controlled substances:
CFC-11Allied-Signal, Inc23,082,358
  E.I. DuPont de Nemours & Co33,830,000
   Elf Atochem, N.A21,821,500
CFC-12Laroche Chemicals12,856,364
   Allied-Signal, Inc35,699,776
   E.I. DuPont de Nemours & Co64,849,000
   Elf Atochem, N.A31,089,807
CFC-113Laroche Chemicals15,330,909
   Allied-Signal, Inc21,788,896
CFC-114E.I. DuPont de Nemours & Co58,553,000
   Allied-Signal, Inc1,488,569
CFC-115E.I. DuPont de Nemours & Co4,194,000
   E.I. DuPont de Nemours & Co4,176,000
(b) For Group II controlled substances:
Halon-1211Great Lakes Chemical Corp826,487
   ICI Americas, Inc2,135,484
Halon-1301E.I. DuPont de Nemours & Co3,220,000
   Great Lakes Chemical Corp1,766,850
Halon-2402
(c) For Group III controlled substances:
CFC-13Allied-Signal, Inc127,125
   E.I. DuPont de Nemours & Co187,831
   Elf Atochem, N.A3,992
   Great Lakes Chemical Corp56,381
   Laroche Chemicals29,025
CFC-111
CFC-112
CFC-211E.I. DuPont de Nemours & Co11
CFC-212E.I. DuPont de Nemours & Co11
CFC-213E.I. DuPont de Nemours & Co11
CFC-214E.I. DuPont de Nemours & Co11
CFC-215E.I. DuPont de Nemours & Co511
   Halocarbon Products Corp1,270
CFC-216E.I. DuPont de Nemours & Co170,574
CFC-217E.I. DuPont de Nemours & Co511
(d) For Group IV controlled substances:
CCl4Akzo Chemicals, Inc7,873,615
   Degussa Corporation26,546
   Dow Chemical Company, USA18,987,747
   E.I. DuPont de Nemours & Co9,099
   Hanlin Chemicals-WV, Inc219,616
   ICI Americas, Inc853,714
   Occidental Chemical Corp1,059,358
   Vulcan Chemicals21,931,987
(e) For Group V controlled substances:
Methyl ChloroformDow Chemical Company, USA168,030,117
   E.I. DuPont de Nemours & Co2
   PPG Industries, Inc57,450,719
   Vulcan Chemicals89,689,064
(f) For Group VI controlled substances:
Methyl BromideGreat Lakes Chemical Corporation19,945,788
   Ethyl Corporation8,233,894
(g) For Group VII controlled substances:
HBFC 22B1-1Great Lakes Chemical Corporation46,211

[60 FR 24986, May 10, 1995, as amended at 68 FR 2848, Jan. 21, 2003]

§82.6   Apportionment of baseline consumption allowances for class I controlled substances.

Persons who produced, imported, or produced and imported controlled substances in Group I or Group II in 1986 are apportioned chemical-specific baseline consumption allowances as set forth in paragraphs (a) and (b) of this section. Persons who produced, imported, or produced and imported controlled substances in Group III, Group IV, or Group V in 1989 are apportioned chemical-specific baseline consumption allowances as set forth in paragraphs (c), (d) and (e) of this section. Persons who produced, imported, or produced and imported controlled substances in Group VI or VII in 1991 are apportioned chemical specific baseline consumption allowances as set forth in paragraphs (f) and (g) of this section.

Controlled substancePersonAllowances
   (kg)
(a) For Group I controlled substances:
CFC-11Allied-Signal, Inc22,683,833
   E.I. DuPont de Nemours & Co32,054,283
   Elf Atochem, N.A21,740,194
   Hoechst Celanese Corporation185,396
   ICI Americas, Inc1,673,436
   Kali-Chemie Corporation82,500
   Laroche Chemicals12,695,726
   National Refrigerants, Inc693,707
   Refricentro, Inc160,697
   Sumitomo Corporation of America5,800
CFC-12Allied-Signal, Inc35,236,397
   E.I. DuPont de Nemours & Co61,098,726
   Elf Atochem, N.A32,403,869
   Hoechst Celanese Corporation138,865
   ICI Americas, Inc1,264,980
   Kali-Chemie Corporation355,440
   Laroche Chemicals15,281,553
   National Refrigerants, Inc2,375,384
   Refricentro, Inc242,526
CFC-113Allied-Signal, Inc18,241,928
   E.I. DuPont de Nemours & Co49,602,858
   Elf Atochem, N.A244,908
   Holchem265,199
   ICI Americas, Inc2,399,700
   Refricentro, Inc37,385
   Sumitomo Corp. of America280,163
CFC-114Allied-Signal, Inc1,429,582
   E.I. DuPont de Nemours & Co3,686,103
   Elf Atochem, N.A22,880
   ICI Americas, Inc32,930
CFC-115E.I. DuPont de Nemours & Co2,764,109
   Elf Atochem, N.A633,007
   Hoechst Celanese Corporation8,893
   ICI Americas, Inc2,366,351
   Laroche Chemicals135,520
   Refricentro, Inc27,337
(b) For Group II controlled substances:
Halon-1211Elf Atochem, N.A411,292
   Great Lakes Chemical Corp772,775
   ICI Americas, Inc2,116,641
   Kali-Chemie Corporation330,000
Halon-1301E.I. DuPont de Nemours & Co2,772,917
   Elf Atochem, N.A89,255
   Great Lakes Chemical Corp1,744,132
   Kali-Chemie Corporation54,380
Halon-2402Ausimont34,400
   Great Lakes Chemical Corp15,900
(c) For Group III controlled substances:
CFC-13Allied-Signal, Inc127,124
   E.I. DuPont de Nemours & Co158,508
   Elf Atochem, N.A3,992
   Great Lakes Chemical Corp56,239
   ICI Americas, Inc5,855
   Laroche Chemicals29,025
   National Refrigerants, Inc16,665
CFC-111
CFC-112Sumitomo Corp of America5,912
   TG (USA) Corporation9,253
CFC-211E.I. DuPont de Nemours & Co11
CFC-212E.I. DuPont de Nemours & Co11
CFC-213E.I. DuPont de Nemours & Co11
CFC-214E.I. DuPont de Nemours & Co11
CFC-215E.I. DuPont de Nemours & Co511
   Halocarbon Products Corp1,270
CFC-216E.I. DuPont de Nemours & Co170,574
CFC-217E.I. DuPont de Nemours & Co511
(d) For Group IV controlled substances:
CCl4Crescent Chemical Co56
   Degussa Corporation12,466
   Dow Chemical Company, USA8,170,561
   E.I. DuPont de Nemours & Co26,537
   Elf Atochem, N.A41
   Hanlin Chemicals-WV, Inc103,133
   Hoechst Celanese Corporation3
   ICC Chemical Corp1,173,723
   ICI Americas, Inc855,466
   Occidental Chemical Corp497,478
   Sumitomo Corporation of America9
(e) For Group V controlled substances:
Methyl Chloroform3V Chemical Corp3,528
   Actex, Inc50,171
   Atochem North America74,355
   Dow Chemical Company, USA125,200,200
   E.I. DuPont de Nemours & Co2
   IBM2,026
   ICI Americas, Inc14,179,850
   Laidlaw420,207
   PPG Industries45,254,115
   Sumitomo1,954
   TG (USA) Corporation7,073
   Unitor Ships Service, Inc14,746
   Vulcan Chemicals70,765,072
(f) For Group VI controlled substances:
Methyl BromideGreat Lakes Chemical Corporation15,514,746
   Ethyl Corporation6,379,906
   AmeriBrom, Inc3,524,393
   TriCal, Inc109,225
(g) For Group VII controlled substances:
HBFC 22B1-1Great Lakes Chemical Corporation40,110

[60 FR 24986, May 10, 1995, as amended at 68 FR 2848, Jan. 21, 2003]

§82.7   Grant and phase reduction of baseline production and consumption allowances for class I controlled substances.

For each control period specified in the following table, each person is granted the specified percentage of the baseline production and consumption allowances apportioned to him under §§82.5 and 82.6 of this subpart.

Control period Class I substances in groups I and III,
(In percent)
Class I substances in group II,
(In percent)
Class I substances in group IV
(In percent)
Class I substances in group V
(In percent)
Class I substances in group VI
(In percent)
Class I substances in group VII
(In percent)
19942505050100100
19952501530100100
199600001000
199700001000
199800001000
19990000750
20000000750
200150
200250
200330
200430
20050

[65 FR 70803, Nov. 28, 2000]

§82.8   Grant of essential use allowances and critical use allowances.

(a) Effective January 1, 1996, persons in the following list are allocated essential-use allowances or exemptions for quantities of a specific class I controlled substance for a specific essential-use (the Administrator reserves the right to revise the allocations based on future decisions of the Parties).

Table I—Essential Use Allowances for Calendar Year 2010

(i) Metered Dose Inhalers (for oral inhalation) for Treatment of Asthma and Chronic Obstructive Pulmonary Disease
CompanyChemical2010 Quantity
(metric tons)
ArmstrongCFC-11 or CFC-12 or CFC-114.30.0

(b) A global exemption for class I controlled substances for essential laboratory and analytical uses shall be in effect through December 31, 2014, subject to the restrictions in appendix G of this subpart, and subject to the recordkeeping and reporting requirements at §82.13(u) through (x). There is no amount specified for this exemption.

(c) Effective January 1, 2005, critical use allowances are apportioned as set forth in paragraph (c)(1) of this section for the exempted production and import of class I, Group VI controlled substances specifically for those approved critical uses listed in appendix L to this subpart for the applicable control period. Every kilogram of production and import in excess of the total number and type of unexpended critical use allowances held for a particular type of use constitutes a separate violation of this subpart.

(1) Allocated critical use allowances granted for specified control period.

Company2014 Critical use allowances for pre-plant uses* (kilograms)2014 Critical use allowances for post-harvest uses* (kilograms)2015 Critical use allowances for pre-plant uses* (kilograms)2015 Critical use allowances for post-harvest uses* (kilograms)
Great Lakes Chemical Corp. A Chemtura Company252,23616,572227,0731,969
Albemarle Corp103,7256,81593,378810
ICL-IP America57,3213,76651,602447
TriCal, Inc1,7851171,60714
Total415,06727,270373,6603,240

*For production or import of Class I, Group VI controlled substance exclusively for the Pre-Plant or Post-Harvest uses specified in appendix L to this subpart for the appropriate control period.

(2) [Reserved]

[69 FR 77003, Dec. 23, 2004]

Editorial Note: For Federal Register citations affecting §82.8, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

§82.9   Availability of production allowances in addition to baseline production allowances for class I controlled substances.

(a) Every person apportioned baseline production allowances for class I controlled substances under §82.5 (a) through (f) of this subpart is also granted Article 5 allowances equal to:

(1) 10 percent of their baseline production allowances listed for class I, Group I, Group III, Group IV, and Group V controlled substances listed under §82.5 of this subpart for each control period ending before January 1, 1996;

(2) 15 percent of their baseline production allowances for class I, Group VI controlled substances listed under §82.5 of this subpart for each control period ending before January 1, 2005;

(3) 15 percent of their baseline production allowances for class I, Group II controlled substances listed under §82.5 of this subpart for each control period beginning January 1, 1994, until January 1, 2003;

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

(b) Effective January 1, 1995, a person allocated Article 5 allowances may produce class I controlled substances for export to Article 5 countries as under §82.11 and transfer Article 5 allowances as under §82.12.

(c) A company may increase or decrease its production allowances, its Article 5 allowances by trading with another Party to the Protocol according to the provision under this paragraph (c). A company may increase or decrease its essential-use allowances for CFCs for use in essential MDIs according to the provisions under this paragraph (c). A nation listed in appendix C to this subpart (Parties to the Montreal Protocol) must agree either to transfer to the person for the current control period some amount of production or import that the nation is permitted under the Montreal Protocol or to receive from the person for the current control period some amount of production or import that the person is permitted under this subpart. If the controlled substance is produced under the authority of production allowances and is to be returned to the Party from whom production allowances are received, the request for production allowances shall also be considered a request for consumption allowances under §82.10(c). If the controlled substance is produced under the authority of production allowances and is to be sold in the United States or to another Party (not the Party from whom the allowances are received), the U.S. company must expend its consumption allowances allocated under §82.6 and §82.7 in order to produce with the additional production allowances.

(1) For trades from a Party, the person must obtain from the principal diplomatic representative in that nation's embassy in the United States a signed document stating that the appropriate authority within that nation has established or revised production limits or essential-use allowance limits for the nation to equal the lesser of the maximum production that the nation is allowed under the Protocol minus the amount transferred, the maximum production or essential-use allowances that are allowed under the nation's applicable domestic law minus the amount transferred, or the average of the nation's actual national production level for the three years prior to the transfer minus the production transferred. The person must submit to the Administrator a transfer request that includes a true copy of this document and that sets forth the following:

(i) The identity and address of the person;

(ii) The identity of the Party;

(iii) The names and telephone numbers of contact persons for the person and for the Party;

(iv) The chemical type, type of allowance being transferred, and the level of allowances being transferred;

(v) The control period(s) to which the transfer applies; and

(vi) For increased production intended for export to the Party from whom the allowances would be received, a signed statement of intent to export to the Party.

(vii) In the case of transferring essential-use allowances, the transferor must include a signed document from the transferee identifying the CFC MDI products that will be produced using the essential-use allowances.

(2) For trades to a Party, a person must submit a transfer request that sets forth the following:

(i) The identity and address of the person;

(ii) The identity of the Party;

(iii) The names and telephone numbers of contact persons for the person and for the Party;

(iv) The chemical type, type of allowance being transferred, and the level of allowances being transferred; and

(v) The control period(s) to which the transfer applies.

(3) After receiving a transfer request that meets the requirements of paragraph (c)(2) of this section, the Administrator may, at his discretion, consider the following factors in deciding whether to approve such a transfer:

(i) Possible creation of economic hardship;

(ii) Possible effects on trade;

(iii) Potential environmental implications; and

(iv) The total amount of unexpended production or essential-use allowances held by a U.S. entity.

(v) In the case of transfer of essential-use allowances the Administrator may consider whether the CFCs will be used for production of essential MDIs.

(4) The Administrator will issue the person a notice either granting or deducting production allowances, Article 5 allowances, or essential-use allowances, and specifying the control period to which the transfer applies, provided that the request meets the requirement of paragraph (c)(1) of this sections for trades from Parties and paragraph (c)(2) of this section for trades to Parties, unless the Administrator has decided to disapprove the trade under paragraph (c)(3) of this section. For a trade from a Party, the Administrator will issue a notice that revises the allowances held by the person to equal the unexpended production, Article 5, or essential-use allowances held by the person under this subpart plus the level of allowable production transferred from the Party. For a trade to a Party, the Administrator will issue a notice that revises the production limit for the person to equal the lesser of:

(i) The unexpended production allowances, essential-use allowances, or Article 5 allowances held by the person under this subpart minus the amount transferred; or

(ii) The unexpended production allowances, essential-use allowances, or Article 5 allowances held by the person under this subpart minus the amount by which the United States average annual production of the controlled substance being traded for the three years prior to the transfer is less than the total production allowable for that substance under this subpart minus the amount transferred. The change in allowances will be effective on the date that the notice is issued.

(5) If after one person obtains approval for a trade of allowable production of a controlled substance to a Party, one or more other persons obtain approval for trades involving the same controlled substance and the same control period, the Administrator will issue notices revising the production limits for each of the other persons trading that controlled substance in that control period to equal the lesser of:

(i) The unexpended production allowances or Article 5 allowances held by the person under this subpart minus the amount transferred; or

(ii) The unexpended production allowances or Article 5 allowances held by the person under this subpart minus the amount by which the United States average annual production of the controlled substance being traded for the three years prior to the transfer is less than the total allowable production for that substance under this subpart multiplied by the amount transferred divided by the total amount transferred by all the other persons trading the same controlled substance in the same control period minus the amount transferred by that person.

(iii) The Administrator will also issue a notice revising the production limit for each person who previously obtained approval of a trade of that substance in that control period to equal the unexpended production allowances or unexpended Article 5 allowances held by the person under this subpart plus the amount by which the United States average annual production of the controlled substance being traded for the three years prior to the transfer is less than the total allowable production under this subpart multiplied by the amount transferred by that person divided by the amount transferred by all of the persons who have traded that controlled substance in that control period. The change in production allowances or Article 5 allowances will be effective on the date that the notice is issued.

(d) Effective January 1, 1996, there will be no trade in production or consumption allowances with other Parties to the Protocol for class I controlled substances, except for class I, Group VI, methyl bromide.

(e) Until January 1, 1996 for all class I controlled substances, except Group VI, and until January 1, 2005 for class I, Group VI, a person may obtain production allowances for that controlled substance equal to the amount of that controlled substance produced in the United States that was transformed or destroyed within the United States, or transformed or destroyed by a person of another Party, in the cases where production allowances were expended to produce such substance in the U.S. in accordance with the provisions of this paragraph. A request for production allowances under this section will be considered a request for consumption allowances under §82.10(b).

(1) Until January 1, 1996, for all class I controlled substances, except Group VI, and until January 1, 2005, for class I, Group VI, a person must submit a request for production allowances that includes the following:

(i) The name, address, and telephone number of the person requesting the allowances, and the Employer Identification Number if the controlled substance is being exported;

(ii) The name, quantity, and level of controlled substance transformed or the name, quantity and volume destroyed, and the commodity code if the substance was exported;

(iii) A copy of the invoice or receipt documenting the sale of the controlled substance, including the name, address, contact person and telephone number of the transformer or destroyer;

(iv) A certification that production allowances were expended for the production of the controlled substance, and the date of purchase, if applicable;

(v) If the controlled substance is transformed, the name, quantity, and verification of the commercial use of the resulting chemical and a copy of the IRS certificate of intent to use the controlled substance as a feedstock; and,

(vi) If the controlled substance is destroyed, the verification of the destruction efficiency.

(2) Until January 1, 1996 for all class I controlled substances, except Group VI, and until January 1, 2005, for class I, Group VI, the Administrator will review the information and documentation submitted under paragraph (e)(1) of this section and will assess the quantity of class I controlled substance that the documentation and information verifies was transformed or destroyed. The Administrator will issue the person production allowances equivalent to the controlled substances that the Administrator determines were transformed or destroyed. For controlled substances completely destroyed under this rule, the Agency will grant allowances equal to 100 percent of volume intended for destruction. For those controlled substances destroyed at less than a 98 percent destruction efficiency, the Agency will grant allowances commensurate with that percentage of destruction efficiency that is actually achieved. The grant of allowances will be effective on the date that the notice is issued.

(3) Until January 1, 1996 for all class I controlled substances, except Group VI, and until January 1, 2005, for class I, Group VI, if the Administrator determines that the request for production allowances does not satisfactorily substantiate that the person transformed or destroyed controlled substances as claimed, or that modified allowances were not expended, the Administrator will issue a notice disallowing the request for additional production allowances. Within ten working days after receipt of notification, the person may file a notice of appeal, with supporting reasons, with the Administrator. The Administrator may affirm the disallowance or grant an allowance, as she/he finds appropriate in light of the available evidence. If no appeal is taken by the tenth day after notification, the disallowance will be final on that day.

(f) Effective January 1, 1996, and until January 1, 2000, a person who was nominated by the United States to the Secretariat of the Montreal Protocol for an essential use exemption may obtain destruction and transformation credits for a class I controlled substance (except class I, Group VI) equal to the amount of that controlled substance produced in the United States that was destroyed or transformed within the United States in cases where the controlled substance was produced for other than destruction or transformation in accordance with the provisions of this subpart, subtracting an offset of 15 percent.

(1) Effective January 1, 1996, and until January 1, 2000, a person must submit a request for destruction and transformation credits that includes the following:

(i) The identity and address of the person and the essential-use exemption and years for which the person was nominated to the Secretariat of the Montreal Protocol;

(ii) The name, quantity and volume of controlled substance destroyed or transformed;

(iii) A copy of the invoice or receipt documenting the sale or transfer of the controlled substance to the person;

(iv) A certification of the previous use of the controlled substance;

(v) For destruction credits, a certification that the controlled substance was destroyed and a certification of the efficiency of the destruction process; and

(vi) For transformation credits, an IRS certificate of feedstock use or transformation of the controlled substance.

(2) Effective January 1, 1996, and until January 1, 2000, the Administrator will issue the person destruction and transformation credits equivalent to the class I controlled substance (except class I, Group VI) recovered from a use system in the United States, that the Administrator determines were destroyed or transformed, subtracting the offset of 15 percent. For controlled substances completely destroyed under this rule, the Agency will grant destruction credits equal to 100 percent of volume destroyed minus the offset. For those controlled substances destroyed at less than a 98 percent destruction efficiency, the Agency will grant destruction credits commensurate with that percentage of destruction efficiency that is actually achieved minus the offset. The grant of credits will be effective on the date that the notice is issued.

(3) Effective January 1, 1996, and until January 1, 2000, if the Administrator determines that the request for destruction and transformation credits does not satisfactorily substantiate that the person was nominated for an essential-use exemption by the United States to the Secretariat for the Montreal Protocol for the control period, or that the person destroyed or transformed a class I controlled substance as claimed, or that the controlled substance was not recovered from a U.S. use system the Administrator will issue a notice disallowing the request for additional destruction and transformation credits. Within ten working days after receipt of notification, the person may file a notice of appeal, with supporting reasons, with the Administrator. The Administrator may affirm the disallowance or grant an allowance, as she/he finds appropriate in light of the available evidence. If no appeal is taken by the tenth day after notification, the disallowance will be final on that day.

(g) International transfer of essential-use CFCs. (1) For trades of essential-use CFCs where the transferee or the transferor is a person in another nation (Party), the persons involved in the transfer must submit the information requested in §82.12(d)(2) and (d)(3), along with a signed document from the principal diplomatic representative in the Party's embassy in the United States stating that the appropriate authority within that nation has approved the transfer of the essential-use CFCs.

(2) If the transfer claim is complete, and EPA does not object to the transfer, then EPA will issue letters to the transferor and the transferee indicating that the transfer may proceed. EPA reserves the right to disallow a transfer if the transfer request is incomplete, or if it has reason to believe that the transferee plans to produce MDIs that are not essential MDIs. If EPA objects to the transfer, EPA will issue letters to the transferor and transferee stating the basis for disallowing the transfer. The burden of proof is placed on the transferee to retain sufficient records to prove that the transferred essential-use CFCs are used only for production of essential MDIs. If EPA ultimately finds that the transferee did not use the essential-use CFCs for production of essential MDIs then the transferee is in violation of this subpart.

[60 FR 24986, May 10, 1995, as amended at 63 FR 41643, Aug. 4, 1998; 63 FR 53290, Oct. 5, 1998; 65 FR 70804, Nov. 28, 2000; 67 FR 6360, Feb. 11, 2002; 67 FR 21134, Apr. 29, 2002; 70 FR 77047, Dec. 29, 2005]

§82.10   Availability of consumption allowances in addition to baseline consumption allowances for class I controlled substances.

(a) Until January 1, 1996 for all class I controlled substances, except Group VI, and until January 1, 2005, for class I, Group VI, any person may obtain, in accordance with the provisions of this subsection, consumption allowances equivalent to the level of class I controlled substances (other than used controlled substances or transhipments) that the person has exported from the United States and its territories to a Party (as listed in appendix C to this subpart).

(1) Until January 1, 1996 for all class I controlled substances, except Group VI, and until January 1, 2005, for class I, Group VI, to receive consumption allowances in addition to baseline consumption allowances, the exporter of the class I controlled substances must submit to the Administrator a request for consumption allowances setting forth the following:

(i) The identities and addresses of the exporter and the recipient of the exports;

(ii) The exporter's Employer Identification Number;

(iii) The names and telephone numbers of contact persons for the exporter and the recipient;

(iv) The quantity and type of controlled substances exported;

(v) The source of the controlled substance and the date purchased;

(vi) The date on which, and the port from which, the controlled substances were exported from the United States or its territories;

(vii) The country to which the controlled substances were exported;

(viii) A copy of the bill of lading and the invoice indicating the net quantity of controlled substances shipped and documenting the sale of the controlled substances to the purchaser.

(ix) The commodity code of the controlled substance exported; and

(x) Written statement from the producer that the controlled substance was produced with expended allowances.

(2) The Administrator will review the information and documentation submitted under paragraph (a)(1) of this section and will assess the quantity of controlled substances that the documentation verifies was exported. The Administrator will issue the exporter consumption allowances equivalent to the level of controlled substances that the Administrator determined were exported. The grant of the consumption allowances will be effective on the date the notice is issued. If the Administrator determines that the information and documentation does not satisfactorily substantiate that the person exported controlled substances as claimed the Administrator will issue a notice that the consumption allowances are not granted.

(b) Until January 1, 1996, a person may obtain consumption allowances for a class I controlled substance (and until January 1, 2005 for class I, Group VI) equal to the amount of a controlled substance either produced in, or imported into, the United States that was transformed or destroyed in the case where consumption allowances were expended to produce or import such substance in accordance with the provisions of this paragraph. However, a person producing or importing a controlled substance (except class I, Group VI) that was transformed or destroyed must submit to the Administrator the information described under §82.13 (f)(3) (i) and (ii).

(c) A company may also increase its consumption allowances by receiving production from another Party to the Protocol for class I, Group I through Group V and Group VII controlled substances until January 1, 1996 and for class I, Group VI controlled substances until January 1, 2005. A nation listed in appendix C to this subpart (Parties to the Montreal Protocol) must agree to transfer to the person for the current control period some amount of production that the nation is permitted under the Montreal Protocol. If the controlled substance is to be returned to the Party from whom allowances are received, the request for consumption allowances shall also be considered a request for production allowances under §82.9(c). For trades from a Party, the person must obtain from the principal diplomatic representative in that nation's embassy in the United States a signed document stating that the appropriate authority within that nation has established or revised production limits for the nation to equal the lesser of the maximum production that the nation is allowed under the Protocol minus the amount transferred, the maximum production that is allowed under the nation's applicable domestic law minus the amount transferred, or the average of the nation's actual national production level for the three years prior to the transfer minus the production allowances transferred. The person must submit to the Administrator a transfer request that includes a true copy of this document and that sets forth the following:

(1) The identity and address of the person;

(2) The identity of the Party;

(3) The names and telephone numbers of contact persons for the person and for the Party;

(4) The chemical type and level of production being transferred;

(5) The control period(s) to which the transfer applies; and

(6) For increased production intended for export to the Party from whom allowances would be received, a signed statement of intent to export to this Party.

(d) On the first day of each control period, until January 1, 1996, the Agency will grant consumption allowances to any person that produced and exported a Group IV controlled substance in the baseline year and that was not granted baseline consumption allowances under §82.5.

(1) The number of consumption allowances any such person will be granted for each control period will be equal to the number of production allowances granted to that person under §82.7 for that control period.

(2) Any person granted allowances under this paragraph must hold the same number of unexpended consumption allowances for the control period for which the allowances were granted by February 15 of the following control period. Every kilogram by which the person's unexpended consumption allowances fall short of the amount the person was granted under this paragraph constitutes a separate violation.

[60 FR 24986, May 10, 1995, as amended at 65 FR 70804, Nov. 28, 2000]

§82.11   Exports of class I controlled substances to Article 5 Parties.

(a) If apportioned Article 5 allowances under §82.9(a) or §82.11(a)(2), a person may produce Class I controlled substances, in accordance with the prohibitions in §82.4 and the reduction schedule in §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).

(1) A person must submit a notice to the Administrator of exports to Article 5 countries (except exports resulting in transformation or destruction, or used controlled substances) at the end of the quarter that includes the following:

(i) The identities and addresses of the exporter and the Article 5 country recipient of the exports;

(ii) The exporter's Employee Identification Number;

(iii) The names and telephone numbers of contact persons for the exporter and for the recipient;

(iv) The quantity and the type of controlled substances exported, its source and date purchased;

(v) The date on which, and the port from which, the controlled substances were exported from the United States or its territories;

(vi) The Article 5 country to which the controlled substances were exported;

(vii) A copy of the bill of lading and invoice indicating the net quantity shipped and documenting the sale of the controlled substances to the Article 5 purchaser;

(viii) The commodity code of the controlled substance exported; and

(ix) A copy of the invoice or sales agreement covering the sale of the controlled substances to the recipient Article 5 country that contains provisions forbidding the reexport of the controlled substance in bulk form and subjecting the recipient or any transferee of the recipient to liquidated damages equal to the resale price of the controlled substances if they are reexported in bulk form.

(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 §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 §82.11(a)(2)(ii)).

(i) For Group I Controlled Substances

Controlled Substance Person Allowances (kg)
CFC-11Honeywell7,150
   Sigma Aldrich1
CFC-113Fisher Scientific5
   Honeywell313,686
   Sigma Aldrich48
CFC-114Honeywell24,798
   Sigma Aldrich1

(ii) For Group VI Controlled Substances

Controlled Substance Person Allowances (kg)
Methyl BromideAlbemarle1,152,714
   Ameribrom176,903
   Great Lakes Chemical Corporation3,825,846

(3) Phased Reduction Schedule for Article 5 Allowances allocated in §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 §82.11.

Control Period Class I substances in group I
(In
percent)
Class I substances in group VI
(In
percent)
20065080
20071580
20081580
20091580
2010080
2011080
2012080
2013080
2014080
201500

(2) [Reserved]

(b) [Reserved]

[60 FR 24986, May 10, 1995, as amended at 70 FR 77047, Dec. 29, 2005]

§82.12   Transfers of allowances for class I controlled substances.

(a) Inter-company transfers. (1) Until January 1, 1996, for all class I controlled substances, except for Group VI, and until January 1, 2005, for Group VI, any person (“transferor”) may transfer to any other person (“transferee”) any amount of the transferor's consumption allowances or production allowances, and effective January 1, 1995, for all class I controlled substances any person (“transferor”) may transfer to any other person (“transferee”) any amount of the transferor's Article 5 allowances. After January 1, 2002, any essential-use allowance holder (including those persons that hold essential-use allowances issued by a Party other than the United States) (“transferor”) may transfer essential-use allowances for CFCs to a metered dose inhaler company solely for the manufacture of essential MDIs. After January 1, 2005, any critical use allowance holder (“transferor”) may transfer critical use allowances to any other person (“transferee”).

(i) The transferor must submit to the Administrator a transfer claim setting forth the following:

(A) The identities and addresses of the transferor and the transferee;

(B) The name and telephone numbers of contact persons for the transferor and the transferee;

(C) The type of allowances being transferred, including the names of the controlled substances for which allowances are to be transferred;

(D) The group of controlled substances to which the allowances being transferred pertains;

(E) The amount of allowances being transferred;

(F) The control period(s) for which the allowances are being transferred;

(G) The amount of unexpended allowances of the type and for the control period being transferred that the transferor holds under authority of this subpart as of the date the claim is submitted to EPA; and

(H) The one percent offset applied to the unweighted amount traded will be deducted from the transferor's production or consumption allowance balance (except for trades from transformers and destroyers to producers or importers for the purpose of allowance reimbursement). In the case of transferring essential use allowances, the amount of one tenth of one percent of the amount traded will be deducted from the transferor's allowance balance. In the case of transferring critical use allowances, the amount of one tenth of one percent of the amount traded will be deducted from the transferor's critical use allowance balance.

(I) The transferor must include a signed document from the transferee identifying the CFC MDI products that will be produced using the essential-use allowances.

(ii) The Administrator will determine whether the records maintained by EPA, taking into account any previous transfers and any production, allowable imports and exports of controlled substances reported by the transferor, indicate that the transferor possesses, as of the date the transfer claim is processed, unexpended allowances sufficient to cover the transfer claim (i.e., the amount to be transferred plus, in the case of transferors of essential use allowances and critical use allowances, one tenth of one percent of the transferred amount). Within three working days of receiving a complete transfer claim, the Administrator will take action to notify the transferor and transferee as follows:

(A) If EPA's records show that the transferor has sufficient unexpended allowances to cover the transfer claim, the Administrator will issue a notice indicating that EPA does not object to the transfer and will reduce the transferor's balance of unexpended allowances by the amount to be transferred plus, in the case of transfers of production or consumption allowances, one percent of that amount, or in the case of transfers of essential use allowances, one tenth of one percent of that amount. When EPA issues a no objection notice, the transferor and the transferee may proceed with the transfer. However, if EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor and transferee will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.

(B) If EPA's records show that the transferor has insufficient unexpended allowances to cover the transfer claim, or that the transferor has failed to respond to one or more Agency requests to supply information needed to make a determination, the Administrator will issue a notice disallowing the transfer. Within 10 working days after receipt of notification, either party may file a notice of appeal, with supporting reasons, with the Administrator. The Administrator may affirm or vacate the disallowance. If no appeal is taken by the tenth working day after notification, the disallowance shall be final on that day.

(iii) In the event that the Administrator does not respond to a transfer claim within the three working days specified in paragraph (a)(1)(ii) of this section the transferor and transferee may proceed with the transfer. EPA will reduce the transferor's balance of unexpended allowances by the amount to be transferred plus, in the case of transfers of production or consumption allowances, one percent of that amount, and in the case of essential use allowances and critical use allowances, one tenth of one percent of that amount. However if EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor and transferee will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.

(2) Effective January 1, 1996, any person (“transferor”) may transfer to an eligible person (“transferee”) as defined in §82.9 any amount of the transferor's destruction and transformation credits. The transfer proceeds as follows:

(i) The transferor must submit to the Administrator a transfer claim setting forth the following:

(A) The identities and addresses of the transferor and the transferee;

(B) The name and telephone numbers of contact persons for the transferor and the transferee;

(C) The type of credits being transferred, including the names of the controlled substances for which credits are to be transferred;

(D) The group of controlled substances to which the credits being transferred pertains;

(E) The amount of destruction and transformation credits being transferred;

(F) The control period(s) for which the destruction and transformation credits are being transferred;

(G) The amount of unexpended destruction and transformation credits for the control period being transferred that the transferor holds under authority of this subpart as of the date the claim is submitted to EPA; and

(H) The amount of the one-percent offset applied to the unweighted amount traded that will be deducted from the transferor's balance.

(ii) The Administrator will determine whether the records maintained by EPA, taking into account any previous transfers and any production of controlled substances reported by the transferor, indicate that the transferor possesses, as of the date the transfer claim is processed, unexpended destruction and transformation credits sufficient to cover the transfer claim (i.e., the amount to be transferred plus one percent of that amount). Within three working days of receiving a complete transfer claim, the Administrator will take action to notify the transferor and transferee as follows:

(A) If EPA's records show that the transferor has sufficient unexpended destruction and transformation credits to cover the transfer claim, the Administrator will issue a notice indicating that EPA does not object to the transfer and will reduce the transferor's balance of unexpended or credits by the amount to be transferred plus one percent of that amount. When EPA issues a no objection notice, the transferor and the transferee may proceed with the transfer. However, if EPA ultimately finds that the transferor did not have sufficient unexpended credits to cover the claim, the transferor and transferee will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.

(B) If EPA's records show that the transferor has insufficient unexpended destruction and transformation credits to cover the transfer claim, or that the transferor has failed to respond to one or more Agency requests to supply information needed to make a determination, the Administrator will issue a notice disallowing the transfer. Within 10 working days after receipt of notification, either party may file a notice of appeal, with supporting reasons, with the Administrator. The Administrator may affirm or vacate the disallowance. If no appeal is taken by the tenth working day after notification, the disallowance shall be final on that day.

(iii) In the event that the Administrator does not respond to a transfer claim within the three working days specified in paragraph (a)(2)(ii) of this section, the transferor and transferee may proceed with the transfer. EPA will reduce the transferor's balance of unexpended destruction and transformation credits by the amount to be transferred plus one percent of that amount. However, if EPA ultimately finds that the transferor did not have sufficient unexpended credits to cover the claim, the transferor and transferee will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.

(b) Inter-pollutant conversions.

(1) Until January 1, 1996, for all class I controlled substances, except Group VI, and until January 1, 2005 for Group VI, any person (“convertor”) may convert consumption allowances or production allowances for one class I controlled substance to the same type of allowance for another class I controlled substance within the same Group as the first as listed in appendix A of this subpart, following the procedures described in paragraph (b)(4) of this section.

(2) Effective January 1, 1995, any person (“convertor”) may convert Article 5 allowances for one class I controlled substance to the same type of allowance for another class I controlled substance within the same Group of controlled substances as the first as listed in appendix A of this subpart, following the procedures described in paragraph (b)(4) of this section.

(3) Effective January 1, 1996, any person (“convertor”) may convert destruction and/or transformation credits for one class I controlled substance to the same type of credits for another class I controlled substance within the same Group of controlled substances as the first as listed in appendix A of this subpart, following the procedures in paragraph (b)(4) of this section.

(4) The convertor must submit to the Administrator a conversion claim.

(i) The conversion claim would include the following:

(A) The identity and address of the convertor;

(B) The name and telephone number of a contact person for the convertor;

(C) The type of allowances or credits being converted, including the names of the controlled substances for which allowances or credits are to be converted;

(D) The group of controlled substances to which the allowances or credits being converted pertains;

(E) The amount and type of allowances or credits to be converted;

(F) The amount of allowances or credits to be subtracted from the convertor's unexpended allowances or credits for the first controlled substance, to be equal to 101 percent of the amount of allowances or credits converted;

(G) The amount of allowances or credits to be added to the convertor's unexpended allowances or credits for the second controlled substance, to be equal to the amount of allowances or credits for the first controlled substance being converted multiplied by the quotient of the ozone depletion factor of the first controlled substance divided by the ozone depletion factor of the second controlled substance, as listed in appendix A to this subpart;

(H) The control period(s) for which the allowances or credits are being converted; and

(I) The amount of unexpended allowances or credits of the type and for the control period being converted that the convertor holds under authority of this subpart as of the date the claim is submitted to EPA.

(ii) The Administrator will determine whether the records maintained by EPA, taking into account any previous conversions, any transfers, any credits, and any production, imports (not including transhipments or used controlled substances), or exports (not including transhipments or used controlled substances) of controlled substances reported by the convertor, indicate that the convertor possesses, as of the date the conversion claim is processed, unexpended allowances or credits sufficient to cover the conversion claim (i.e., the amount to be converted plus one percent of that amount). Within three working days of receiving a complete conversion claim, the Administrator will take action to notify the convertor as follows:

(A) If EPA's records show that the convertor has sufficient unexpended allowances or credits to cover the conversion claim, the Administrator will issue a notice indicating that EPA does not object to the conversion and will reduce the convertor's balance of unexpended allowances or credits by the amount to be converted plus one percent of that amount. When EPA issues a no objection notice, the convertor may proceed with the conversion. However, if EPA ultimately finds that the convertor did not have sufficient unexpended allowances or credits to cover the claim, the convertor will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper conversion.

(B) If EPA's records show that the convertor has insufficient unexpended allowances or credits to cover the conversion claim, or that the convertor has failed to respond to one or more Agency requests to supply information needed to make a determination, the Administrator will issue a notice disallowing the conversion. Within 10 working days after receipt of notification, the convertor may file a notice of appeal, with supporting reasons, with the Administrator. The Administrator may affirm or vacate the disallowance. If no appeal is taken by the tenth working day after notification, the disallowance shall be final on that day.

(iii) In the event that the Administrator does not respond to a conversion claim within the three working days specified in paragraph (b)(4)(ii) of this section, the convertor may proceed with the conversion. EPA will reduce the convertor's balance of unexpended allowances or credits by the amount to be converted plus one percent of that amount. However, if EPA ultimately finds that the convertor did not have sufficient unexpended allowances or credits to cover the claims, the convertor will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper conversion.

(5) Effective January 1, 1995, and for every control period thereafter, inter-pollutant trades will be permitted during the 45 days after the end of a control period.

(c) Inter-company transfers and Inter-pollutant conversions.

(1) Until January 1, 1996, for production and consumption allowances; effective January 1, 1995, for Article 5 allowances; and effective January 1, 1996, for destruction and/or transformation credits; if a person requests an inter-company transfer and an inter-pollutant conversion simultaneously, the amount subtracted from the convertor-transferor's unexpended allowances or unexpended credits for the first controlled substance will be equal to 101 percent of the amount of allowances or credits that are being converted and transferred.

(2) [Reserved]

(d) Transfers of essential-use CFCs. (1) Effective January 1, 2002, any metered dose inhaler company (transferor) may transfer essential-use CFCs to another metered dose inhaler company (transferee) provided that the Administrator approves the transfer.

(2) The transferee must submit a transfer claim to the Administrator for approval before the transfer can take place. The transfer claim must set forth the following:

(i) The identities and addresses of the transferor and the transferee; and

(ii) The name and telephone numbers of contact persons for the transferor and the transferee; and

(iii) The amount of each controlled substance (CFC-11, CFC-12, or CFC-114) being transferred; and

(iv) The specific metered dose inhaler products (i.e. the MDI drug product or active moiety) that the transferee plans to produce with the transferred CFCs; and

(v) The country(ies) where the CFC metered dose inhalers produced with the transferred essential-use CFCs will be sold if other than in the United States; and

(vi) Certification that the essential-use CFCs will be used in the production of essential MDIs. If the MDIs are to be sold in the United States, the certification must state that MDIs produced with the transferred essential-use CFCs are listed as essential at 21 CFR 2.125, and were approved by the Food and Drug Administration before December 31, 2000. If the MDIs produced with the essential-use CFCs are to be sold outside the United States, the transferee must certify that the metered dose inhalers produced with the essential-use CFCs are considered essential by the importing country.

(3) The transferor must submit a letter stating that it concurs with the terms of the transfer as requested by the transferee.

(4) Once the transfer claim is complete, and if EPA does not object to the transfer, then EPA will issue letters to the transferor and the transferee within 10 business days indicating that the transfer may proceed. EPA reserves the right to disallow a transfer if the transfer request is incomplete, or if it has reason to believe that the transferee plans use the essential-use CFCs in anything other than essential MDIs. If EPA objects to the transfer, within EPA will issue letters to the transferor and transferee stating the basis for disallowing the transfer. The burden of proof is placed on the transferee to retain sufficient records to prove that the transferred essential-use CFCs are used only for production of essential MDIs. If EPA ultimately finds that the transferee did not use the essential-use CFCs for production of essential MDIs then the transferee is in violation of this subpart.

[60 FR 24986, May 10, 1995, as amended at 65 FR 70804, Nov. 28, 2000; 66 FR 1471, Jan. 8, 2001; 67 FR 6361, Feb. 11, 2002; 69 FR 77004, Dec. 23, 2004; 79 FR 44311, July, 31, 2014]

§82.13   Recordkeeping and reporting requirements for class I controlled substances.

(a) Unless otherwise specified, the recordkeeping and reporting requirements set forth in this section take effect on January 1, 1995. For class I, Group VIII controlled substances, the recordkeeping and reporting requirements set forth in this section take effect on August 18, 2003. For class I, Group VI critical use methyl bromide, the recordkeeping and reporting requirements set forth in this section take effect January 1, 2005.

(b) Reports and records required by this section may be used for purposes of compliance determinations. These requirements are not intended as a limitation on the use of other evidence admissible under the Federal Rules of Evidence. Failure to provide the reports, petitions and records required by this section, and to certify the accuracy of the information in the reports, petitions and records required by this section, will be considered a violation of this subpart. False statements made in reports, petitions and records will be considered violations of Section 113 of the Clean Air Act.

(c) Unless otherwise specified, reports required by this section must be mailed to the Administrator within 45 days of the end of the applicable reporting period.

(d) Records and copies of reports required by this section must be retained for three years.

(e) In reports required by this section, quantities of controlled substances must be stated in terms of kilograms.

(f) Every person (“producer”) who produces class I controlled substances during a control period must comply with the following recordkeeping and reporting requirements:

(1) Within 120 days of May 10, 1995, or within 120 days of the date that a producer first produces a class I controlled substance, whichever is later, and within 120 days of July 18, 2003 for class I, Group VIII controlled substances, every producer who has not already done so must submit to the Administrator a report describing:

(i) The method by which the producer in practice measures daily quantities of controlled substances produced;

(ii) Conversion factors by which the daily records as currently maintained can be converted into kilograms of controlled substances produced, including any constants or assumptions used in making those calculations (e.g., tank specifications, ambient temperature or pressure, density of the controlled substance);

(iii) Internal accounting procedures for determining plant-wide production;

(iv) The quantity of any fugitive losses accounted for in the production figures; and

(v) The estimated percent efficiency of the production process for the controlled substance. Within 60 days of any change in the measurement procedures or the information specified in the above report, the producer must submit a report specifying the revised data or procedures to the Administrator.

(2) Every producer of a class I controlled substance during a control period must maintain the following records:

(i) Dated records of the quantity of each controlled substance produced at each facility;

(ii) Dated records of the quantity of controlled substances produced for use in processes that result in their transformation or for use in processes that result in their destruction and quantity sold for use in processes that result in their transformation or for use in processes that result in their destruction;

(iii) Dated records of the quantity of controlled substances produced for an essential-use and quantity sold for use in an essential-use process;

(iv) Dated records of the quantity of controlled substances produced with expended destruction and/or transformation credits;

(v) Dated records of the quantity of controlled substances produced with Article 5 allowances;

(vi) Copies of invoices or receipts documenting sale of controlled substance for use in processes resulting in their transformation or for use in processes resulting in destruction;

(vii) Dated records of the quantity of each controlled substance used at each facility as feedstocks or destroyed in the manufacture of a controlled substance or in the manufacture of any other substance, and any controlled substance introduced into the production process of the same controlled substance at each facility;

(viii) Dated records identifying the quantity of each chemical not a controlled substance produced within each facility also producing one or more controlled substances;

(ix) Dated records of the quantity of raw materials and feedstock chemicals used at each facility for the production of controlled substances;

(x) Dated records of the shipments of each controlled substance produced at each plant;

(xi) The quantity of controlled substances, the date received, and names and addresses of the source of used materials containing controlled substances which are recycled or reclaimed at each plant;

(xii) Records of the date, the controlled substance, and the estimated quantity of any spill or release of a controlled substance that equals or exceeds 100 pounds;

(xiii) Internal Revenue Service Certificates in the case of transformation, or the destruction verification in the case of destruction (as in §82.13(k)), showing that the purchaser or recipient of a controlled substance, in the United States or in another country that is a Party, certifies the intent to either transform or destroy the controlled substance, or sell the controlled substance for transformation or destruction in cases when production and consumption allowances were not expended;

(xiv) Written verifications that essential-use allowances were conveyed to the producer for the production of specified quantities of a specific controlled substance that will only be used for the named essential-use and not resold or used in any other manufacturing process.

(xv) Written certifications that quantities of controlled substances, meeting the purity criteria in appendix G of this subpart, were purchased by distributors of laboratory supplies or by laboratory customers to be used only in essential laboratory and analytical uses as defined by appendix G, and not to be resold or used in manufacturing.

(xvi) Written verifications from a U.S. purchaser that the controlled substance was exported to an Article 5 country in cases when Article 5 allowances were expended during production; and

(xvii) For class I, Group VI controlled substances, dated records of the quantity of controlled substances produced for quarantine and preshipment applications and quantity sold for quarantine and preshipment applications;

(xviii) Written certifications that quantities of class I, Group VI controlled substances produced solely for quarantine and preshipment applications were purchased by distributors or applicators to be used only for quarantine and preshipment applications in accordance with the definitions in this subpart; and

(xix) Written verifications from a U.S. purchaser that class I, Group VI controlled substances produced solely for quarantine and preshipment applications, if exported, will be exported solely for quarantine and preshipment applications upon receipt of a certification in accordance with the definitions of this subpart and requirements in paragraph (h) of this section.

(xx) For class I, Group VI controlled substances, dated records such as invoices and order forms, and a log of the quantity of controlled substances produced for critical use, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, and the quantity sold for critical use, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use;

(xxi) Written certifications that quantities of class I, Group VI controlled substances produced for critical use were purchased by distributors, applicators, or approved critical users to be used or sold only for critical use in accordance with the definitions and prohibitions in this subpart. Certifications must be maintained by the producer for a minimum of three years and;

(xxii) For class I, Group VI controlled substances, dated records such as invoices and order forms, and a log of the quantity of controlled substances produced solely for export to satisfy critical uses authorized by the Parties for that control period, and the quantity sold solely for export to satisfy critical uses authorized by the Parties for that control period.

(3) Reporting Requirements—Producers. For each quarter, except as specified below, each producer of a class I controlled substance must provide the Administrator with a report containing the following information:

(i) The production by company in that quarter of each controlled substance, specifying the quantity of any controlled substance used in processing, resulting in its transformation by the producer;

(ii) The amount of production for use in processes resulting in destruction of controlled substances by the producer;

(iii) The levels of production (expended allowances and credits) for each controlled substance;

(iv) The producer's total of expended and unexpended production allowances, consumption allowances, Article 5 allowances, critical use allowances (pre-plant), critical use allowances (post-harvest), and amount of essential-use allowances and destruction and transformation credits conferred at the end of that quarter;

(v) The amount of controlled substance sold or transferred during the quarter to a person other than the producer for use in processes resulting in its transformation or eventual destruction;

(vi) A list of the quantities and names of controlled substances exported, by the producer and or by other U.S. companies, to a Party to the Protocol that will be transformed or destroyed and therefore were not produced expending production or consumption allowances;

(vii) For transformation in the United States or by a person of another Party, one copy of an IRS certification of intent to transform the same controlled substance for a particular transformer and a list of additional quantities shipped to that same transformer for the quarter;

(viii) For destruction in the United States or by a person of another Party, one copy of a destruction verification (as under §82.13(k)) for a particular destroyer, destroying the same controlled substance, and a list of additional quantities shipped to that same destroyer for the quarter;

(ix) A list of U.S. purchasers of controlled substances that exported to an Article 5 country in cases when Article 5 allowances were expended during production;

(x) A list of the essential-use allowance holders, distributors of laboratory supplies and laboratory customers from whom orders were placed and the quantity of specific essential-use controlled substances requested and produced;

(xi) The certifications from essential-use allowance holders stating that the controlled substances were purchased solely for specified essential uses and will not be resold or used in any other manufacturing process;

(xii) In the case of laboratory essential-uses, certifications from distributors of laboratory supplies that controlled substances were purchased for sale to laboratory customers who certify that the substances will only be used for essential laboratory and analytical uses as defined by appendix G of this subpart, and will not be resold or used in manufacturing; or, if sales are made directly to laboratories, certification from laboratories that the controlled substances will only be used for essential laboratory and analytical uses (defined at appendix G of this subpart) and will not be resold or used in manufacturing.

(xiii) The amount of class I, Group VI controlled substances sold or transferred during the quarter to a person other than the producer solely for quarantine and preshipment applications;

(xiv) A list of the quantities of class I, Group VI controlled substances produced by the producer and exported by the producer and/or by other U.S. companies, to a Party to the Protocol that will be used solely for quarantine and preshipment applications and therefore were not produced expending production or consumption allowances; and

(xv) For quarantine and preshipment applications of class I, Group VI controlled substances in the United States or by a person of another Party, one copy of a certification that the material will be used only for quarantine and preshipment applications in accordance with the definitions in this subpart from each recipient of the material and a list of additional quantities shipped to that same person for the quarter.

(xvi) For critical uses of class I, Group VI controlled substances, producers shall report annually the amount of critical use methyl bromide owned by the reporting entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, as well as quantities held by the reporting entity on behalf of another entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use along with the name of the entity on whose behalf the material is held; and

(xvii) A list of the quantities of class I, Group VI controlled substances produced by the producer and exported by the producer and/or by other U.S. companies in that control period, solely to satisfy the critical uses authorized by the Parties for that control period; and

(xviii) On an annual basis, the amount of methyl bromide produced or imported prior to the January 1, 2005, phaseout date owned by the reporting entity, as well as quantities held by the reporting entity on behalf of another entity, specifying the name of the entity on whose behalf the material is held.

(4) For any person who fails to maintain the records required by this paragraph, or to submit the report required by this paragraph, the Administrator may assume that the person has produced at full capacity during the period for which records were not kept, for purposes of determining whether the person has violated the prohibitions at §82.4.

(g) Importers of class I controlled substances during a control period must comply with record-keeping and reporting requirements specified in this paragraph (g).

(1) Recordkeeping—Importers. Any importer of a class I controlled substance (including used, recycled and reclaimed controlled substances) must maintain the following records:

(i) The quantity of each controlled substance imported, either alone or in mixtures, including the percentage of each mixture which consists of a controlled substance;

(ii) The quantity of those controlled substances imported that are used (including recycled or reclaimed) and, where applicable, the information provided with the petition as under paragraph (g)(2) of this section;

(iii) The quantity of controlled substances other than transhipments or used, recycled or reclaimed substances imported for use in processes resulting in their transformation or destruction and quantity sold for use in processes that result in their destruction or transformation;

(iv) The date on which the controlled substances were imported;

(v) The port of entry through which the controlled substances passed;

(vi) The country from which the imported controlled substances were imported;

(vii) The commodity code for the controlled substances shipped, which must be one of those listed in Appendix K to this subpart;

(viii) The importer number for the shipment;

(ix) A copy of the bill of lading for the import;

(x) The invoice for the import;

(xi) The quantity of imports of used, recycled or reclaimed class I controlled substances and class II controlled substances;

(xii) The U.S. Customs entry form;

(xiii) Dated records documenting the sale or transfer of controlled substances for use in processes resulting in transformation or destruction;

(xiv) Copies of IRS certifications that the controlled substance will be transformed or destruction verifications that it will be destroyed (as in §82.13(k));

(xv) Dated records of the quantity of controlled substances imported for an essential-use or imported with destruction and transformation credits; and

(xvi) Copies of certifications that imported controlled substances are being purchased for essential laboratory and analytical uses (defined at appendix G of this subpart) or being purchased for eventual sale to laboratories that certify that controlled substances are for essential laboratory and analytical uses (defined at appendix G of this subpart).

(xvii) For class I, Group VI controlled substances, dated records of the quantity of controlled substances imported for quarantine and preshipment applications and quantity sold for quarantine and preshipment applications;

(xviii) Written certifications that quantities of class I, Group VI controlled substances imported solely for quarantine and preshipment applications were purchased by distributors or applicators to be used only for quarantine and preshipment applications in accordance with the definitions in this subpart; and

(xix) Written verifications from a U.S. purchaser that class I, Group VI controlled substances imported solely for quarantine and preshipment applications, if exported, will be exported solely for quarantine and preshipment applications upon receipt of a certification in accordance with the definitions of this Subpart and requirements in paragraph (h) of this section.

(xx) For class I, Group VI controlled substances, dated records such as invoices and order forms, of the quantity of controlled substances imported for critical use, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, and the quantity sold for critical use, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, and;

(xxi) Written certifications that quantities of class I, Group VI controlled substances imported for critical use were purchased by distributors, applicators, or approved critical users to be used or sold only for critical use in accordance with the definitions and prohibitions in this subpart. Certifications must be maintained by an importer for a minimum of three years.

(2) Petitioning—Importers of Used, Recycled or Reclaimed Controlled Substances. For each individual shipment over 5 pounds of a used controlled substance as defined in §82.3, except for Group II used controlled substances shipped in aircraft halon bottles for hydrostatic testing, an importer must submit directly to the Administrator, at least 40 working days before the shipment is to leave the foreign port of export, the following information in a petition:

(i) Name and quantity in kilograms of the used controlled substance to be imported;

(ii) Name and address of the importer, the importer ID number, the contact person, and the phone and fax numbers;

(iii) Name, address, contact person, phone number and fax number of all previous source facilities from which the used controlled substance was recovered;

(iv) A detailed description of the previous use of the controlled substance at each source facility and a best estimate of when the specific controlled substance was put into the equipment at each source facility, and, when possible, documents indicating the date the material was put into the equipment;

(v) A list of the name, make and model number of the equipment from which the material was recovered at each source facility;

(vi) Name, address, contact person, phone number and fax number of the exporter and of all persons to whom the material was transferred or sold after it was recovered from the source facility;

(vii) The U.S. port of entry for the import, the expected date of shipment and the vessel transporting the chemical. If at the time of submitting a petition the importer does not know the U.S. port of entry, the expected date of shipment and the vessel transporting the chemical, and the importer receives a non-objection notice for the individual shipment in the petition, the importer is required to notify the Administrator of this information prior to the actual U.S. Customs entry of the individual shipment;

(viii) A description of the intended use of the used controlled substance, and, when possible, the name, address, contact person, phone number and fax number of the ultimate purchaser in the United States;

(ix) Name, address, contact person, phone number and fax number of the U.S. reclamation facility, where applicable;

(x) If someone at the source facility recovered the controlled substance from the equipment, the name and phone and fax numbers of that person;

(xi) If the imported controlled substance was reclaimed in a foreign Party, the name, address, contact person, phone number and fax number of any or all foreign reclamation facility(ies) responsible for reclaiming the cited shipment;

(xii) An export license from the appropriate government agency in the country of export and, if recovered in another country, the export license from the appropriate government agency in that country;

(xiii) If the imported used controlled substance is intended to be sold as a refrigerant in the U.S., the name and address of the U.S. reclaimer who will bring the material to the standard required under section 608 (§82.152(g)) of the CAA, if not already reclaimed to those specifications; and

(xiv) A certification of accuracy of the information submitted in the petition.

(3) Starting on the first working day following receipt by the Administrator of a petition to import a used class I controlled substance, the Administrator will initiate a review of the information submitted under paragraph (g)(2) of this section and take action within 40 working days to issue either an objection-notice or a non-objection notice for the individual shipment to the person who submitted the petition to import the used class I controlled substance.

(i) For the following reasons, the Administrator may issue an objection notice to a petition:

(A) If the Administrator determines that the information is insufficient, that is, if the petition lacks or appears to lack any of the information required under §82.13(g)(2);

(B) If the Administrator determines that any portion of the petition contains false or misleading information, or the Administrator has information from other U.S. or foreign government agencies indicating that the petition contains false or misleading information;

(C) If the importer wishes to import a used class I controlled substance from a country which is, for that particular controlled substance, out of compliance regarding its phaseout obligations under the Protocol or the transaction in the petition is contrary to other provisions in the Vienna Convention or the Montreal Protocol;

(D) If the appropriate government agency in the exporting country has not agreed to issue an export license for the cited individual shipment of used controlled substance;

(E) If allowing the import of the used class I controlled substance would run counter to government restrictions from either the country of recovery or export regarding controlled ozone-depleting substances;

(F) If reclamation capacity is installed or is being installed for that specific controlled substance in the country of recovery or country of export and the capacity is funded in full or in part through the Multilateral Fund.

(ii) Within ten (10) working days after receipt of the objection notice, the importer may re-petition the Administrator, only if the Administrator indicated “insufficient information” as the basis for the objection notice. If no appeal is taken by the tenth working day after the date on the objection notice, the objection shall become final. Only one appeal of re-petition will be accepted for any petition received by EPA.

(iii) Any information contained in the re-petition which is inconsistent with the original petition must be identified and a description of the reason for the inconsistency must accompany the re-petition.

(iv) In cases where the Administrator does not object to the petition based on the criteria listed in paragraph (g)(3)(i) of this section, the Administrator will issue a non-objection notice.

(v) To pass the approved used class I controlled substances through U.S. Customs, the petition and the non-objection notice issued by EPA must accompany the shipment through U.S. Customs.

(vi) If for some reason, following EPA's issuance of a non-objection notice, new information is brought to EPA's attention which shows that the non-objection notice was issued based on false information, then EPA has the right to:

(A) Revoke the non-objection notice;

(B) Pursue all means to ensure that the controlled substance is not imported into the United States; and

(C) Take appropriate enforcement actions.

(vii) Once the Administrator issues a non-objection notice, the person receiving the non-objection notice is required to import the individual shipment of used class I controlled substance within the same control period as the date stamped on the non-objection notice.

(viii) A person receiving a non-objection notice from the Administrator for a petition to import used class I controlled substances must maintain the following records:

(A) a copy of the petition;

(B) the EPA non-objection notice;

(C) the bill of lading for the import; and

(D) U.S. Customs entry documents for the import that must include one of the commodity codes from Appendix K to this subpart.

(4) Reporting Requirements—Importers. For each quarter, except as specified below, every importer of a class I controlled substance (including importers of used, recycled or reclaimed controlled substances) must submit to the Administrator a report containing the following information:

(i) Summaries of the records required in paragraphs (g)(1) (i) through (xvi) of this section for the previous quarter;

(ii) The total quantity imported in kilograms of each controlled substance for that quarter;

(iii) The quantity of those controlled substances imported that are used controlled substances.

(iv) The levels of import (expended consumption allowances before January 1, 1996) of controlled substances for that quarter and totaled by chemical for the control-period-to-date;

(vii) The importer's total sum of expended and unexpended consumption allowances by chemical as of the end of that quarter and the total sum of expended and unexpended critical use allowances (pre-plant) and unexpended critical use allowances (post-harvest);

(viii) The amount of controlled substances imported for use in processes resulting in their transformation or destruction;

(ix) The amount of controlled substances sold or transferred during the quarter to each person for use in processes resulting in their transformation or eventual destruction;

(x) The amount of controlled substances sold or transferred during the quarter to each person for an essential use;

(xi) The amount of controlled substances imported with destruction and transformation credits;

(xii) Internal Revenue Service Certificates showing that the purchaser or recipient of imported controlled substances intends to transform those substances or destruction verifications (as in §82.13(k)) showing that purchaser or recipient intends to destroy the controlled substances; and

(xiii) The certifications from essential-use allowance holders stating that the controlled substances were purchased solely for specified essential-uses and will not be resold or used in manufacturing; and the certifications from distributors of laboratory supplies that the controlled substances were purchased solely for eventual sale to laboratories that certify the controlled substances are for essential laboratory and analytical uses (defined at appendix G of this subpart), or if sales are made directly to laboratories, certifications from laboratories that the controlled substances will only be used for essential laboratory and analytical uses (defined at appendix G of this subpart) and will not be resold or used in manufacturing.

(xiv) In the case of laboratory essential uses, a certification from distributors of laboratory supplies that controlled substances were purchased for sale to laboratory customers who certify that the substances will only be used for laboratory applications and will not be resold or used in manufacturing; and

(xv) The amount of class I, Group VI controlled substance sold or transferred during the quarter to a person other than the importer solely for quarantine and preshipment applications;

(xvi) A list of the quantities of class I, Group VI controlled substances exported by the importer and or by other U.S. companies, to a Party to the Protocol that will be used solely for quarantine and preshipment applications and therefore were not imported expending consumption allowances; and

(xvii) For quarantine and preshipment applications of class I, Group VI controlled substances in the United States or by a person of another Party, one copy of a certification that the material will be used only for quarantine and preshipment applications in accordance with the definitions in this subpart from each recipient of the material and a list of additional quantities shipped to that same person for the quarter.

(xviii) For critical uses of class I, Group VI controlled substances, importers shall report annually the amount of critical use methyl bromide owned by the reporting entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, as well as quantities held by the reporting entity on behalf of another entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use along with the name of the entity on whose behalf the material is held.

(xix) Importers shall report annually the amount of methyl bromide produced or imported prior to the January 1, 2005, phaseout date owned by the reporting entity, as well as quantities held by the reporting entity on behalf of another entity, specifying the name of the entity on whose behalf the material is held.

(h) Reporting Requirements—Exporters. (1) For any exports of class I controlled substances (except Group VI) not reported under §82.10 of this subpart (additional consumption allowances), or under paragraph (f)(3) of this section (reporting for producers of controlled substances), the exporter who exported a class I controlled substance (except Group VI) must submit to the Administrator the following information within 45 days after the end of the control period in which the unreported exports left the United States:

(i) The names and addresses of the exporter and the recipient of the exports;

(ii) The exporter's Employee Identification Number;

(iii) The type and quantity of each controlled substance exported and what percentage, if any, of the controlled substance is used, recycled or reclaimed;

(iv) The date on which, and the port from which, the controlled substances were exported from the United States or its territories;

(v) The country to which the controlled substances were exported;

(vi) The amount exported to each Article 5 country;

(vii) The commodity code of the controlled substance shipped; and

(viii) The invoice or sales agreement containing language similar to the Internal Revenue Service Certificate that the purchaser or recipient of imported controlled substances intends to transform those substances, or destruction verifications (as in paragraph (k) of this section) showing that the purchaser or recipient intends to destroy the controlled substances.

(2) For any exports of class I, Group VI controlled substances not reported under §82.10 of this subpart (additional consumption allowances), or under paragraph (f)(3) of this section (reporting for producers of controlled substances), the exporter who exported a class I, Group VI controlled substance must submit to the Administrator the following information within 45 days after the end of each quarter in which the unreported exports left the United States:

(i) The names and addresses of the exporter and the recipient of the exports;

(ii) The exporter's Employee Identification Number;

(iii) The type and quantity of each controlled substance exported and what percentage, if any, of the controlled substance is used, recycled or reclaimed;

(iv) The date on which, and the port from which, the controlled substances were exported from the United States or its territories;

(v) The country to which the controlled substances were exported;

(vi) The amount exported to each Article 5 country;

(vii) The commodity code of the controlled substance shipped; and

(viii) The invoice or sales agreement containing language similar to the Internal Revenue Service Certificate that the purchaser or recipient of imported controlled substances intends to transform those substances, the destruction verifications (as in paragraph (k) of this section) showing that the purchaser or recipient intends to destroy the controlled substances, or the certification that the purchaser or recipient and the eventual applicator will only use the material for quarantine and preshipment applications in accordance with the definitions in this subpart.

(i) Every person who has requested additional production allowances under §82.9(e) of this subpart or destruction and transformation credits under §82.9(f) of this subpart or consumption allowances under §82.10(b) of this subpart or who transforms or destroys class I controlled substances not produced or imported by that person must maintain the following:

(1) Dated records of the quantity and level of each controlled substance transformed or destroyed;

(2) Copies of the invoices or receipts documenting the sale or transfer of the controlled substance to the person;

(3) In the case where those controlled substances are transformed, dated records of the names, commercial use, and quantities of the resulting chemical(s);

(4) In the case where those controlled substances are transformed, dated records of shipments to purchasers of the resulting chemical(s);

(5) Dated records of all shipments of controlled substances received by the person, and the identity of the producer or importer of the controlled substances;

(6) Dated records of inventories of controlled substances at each plant on the first day of each quarter; and

(7) A copy of the person's IRS certification of intent to transform or the purchaser's or recipient's destruction verification of intent to destroy (as under §82.13(k)), in the case where substances were purchased or transferred for transformation or destruction purposes.

(j) Persons who destroy class I controlled substances shall, following promulgation of this rule, provide EPA with a one-time report stating the destruction unit's destruction efficiency and the methods used to record the volume destroyed and those used to determine destruction efficiency and the name of other relevant federal or state regulations that may apply to the destruction process. Any changes to the unit's destruction efficiency or methods used to record volume destroyed and to determine destruction efficiency must be reflected in a revision to this report to be submitted to EPA within 60 days of the change.

(k) Persons who purchase or receive and subsequently destroy controlled class I substances that were originally produced without expending allowances shall provide the producer or importer from whom they purchased or received the controlled substances with a verification that controlled substances will be used in processes that result in their destruction.

(1) The destruction verification shall include the following:

(i) Identity and address of the person intending to destroy controlled substances;

(ii) Indication of whether those controlled substances will be completely destroyed, as defined in §82.3 of this rule, or less than completely destroyed, in which case the destruction efficiency at which such substances will be destroyed must be included;

(iii) Period of time over which the person intends to destroy controlled substances; and

(iv) Signature of the verifying person.

(2) If, at any time, any aspects of this verification change, the person must submit a revised verification reflecting such changes to the producer from whom that person purchases controlled substances intended for destruction.

(l) Persons who purchase class I controlled substances and who subsequently transform such controlled substances shall provide the producer or importer with the IRS certification that the controlled substances are to be used in processes resulting in their transformation.

(m) Any person who transforms or destroys class I controlled substances who has submitted an IRS certificate of intent to transform or a destruction verification (as under paragraph (k) of this sectioin) to the producer or importer of the controlled substance, must report the names and quantities of class I controlled substances transformed and destroyed for each control period within 45 days of the end of such control period.

(n) Persons who import or export used controlled substances (including recycled or reclaimed) must label their bill of lading or invoice indicating that the controlled substance is used, recycled or reclaimed.

(o) Persons who import heels of controlled substances must label their bill of lading or invoice indicating that the controlled substance in the container is a heel.

(p) Every person who brings back a container with a heel to the United States, as defined in §82.3, must report quarterly the amount brought into the United States certifying that the residual amount in each shipment is less than 10 percent of the volume of the container and will either:

(1) Remain in the container and be included in a future shipment;

(2) Be recovered and transformed;

(3) Be recovered and destroyed; or

(4) Be recovered for a non-emissive use.

(q) Every person who brings a container with a heel into the United States must report on the final disposition of each shipment within 45 days of the end of the control period.

(r) Every person who transships a controlled substance must maintain records that indicate that the controlled substance shipment originated in a foreign country destined for another foreign country, and does not enter interstate commerce with the United States.

(s) Any person allocated essential-use allowances who submits an order to a producer or importer for a controlled substance must report the quarterly quantity received from each producer or importer.

(t) Any distributor of laboratory supplies receiving controlled substances under the global laboratory essential-use exemption for sale to laboratory customers must report quarterly the quantity received of each controlled substance from each producer or importer.

(u) Holders of Essential-Use Allowances—Reporting.

(1) Within 30 days of the end of every quarter, any person allocated essential-use allowances must submit to the Administrator a report containing the quantity of each controlled substance, in kilograms, purchased and received from each producer and each importer during that quarter as well as from which country the controlled substance was imported.

(2) Any person allocated essential-use allowances must submit to the Administrator a report containing the following information within 30 days of the end of the control period, and, if possible, within 20 days of the end of the control period:

(i) The gross quantity of each controlled substance, in kilograms, that was used for the essential use during the control period; and

(ii) The quantity of each controlled substance, in kilograms, contained in exported products during the control period; and

(iii) The quantity of each controlled substance, in kilograms, that was destroyed or recycled during the control period; and

(iv) The quantity of each controlled substance, in kilograms, held in inventory as of the last day of the control period, that was acquired with essential use allowances in all control periods (i.e. quantity on hand at the end of the year); and

(v) The quantity of each controlled substance, in kilograms, in a stockpile that is owned by the company or is being held on behalf of the company under contract, and was produced or imported through the use of production allowances and consumption allowances prior to the phaseout (i.e. class I ODSs produced before their phaseout dates); and

(vi) For essential use allowances for metered-dose inhalers only, the allowance holder must report the total number of marketable units of each specific metered-dose inhaler product manufactured in the control period.

(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.

(1) The identity and address of the laboratory customer;

(2) The name and phone number of a contact person for the laboratory customer;

(3) The name and quantity of each controlled substance purchased, and the estimated percent of the controlled substance that will be used for each listed type of laboratory application.

(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 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.

(y) Every distributor of methyl bromide (class I, Group VI controlled substances) who purchases or receives a quantity produced or imported solely for quarantine or preshipment applications under the exemptions in this subpart must comply with recordkeeping and reporting requirements specified in this paragraph (aa) of this section.

(1) Every distributor of methyl bromide must certify to the producer or importer that quantities received that were produced or imported solely for quarantine and preshipment applications under the exemptions in this subpart will be used only for quarantine applications or preshipment applications in accordance with the definitions in this subpart.

(2) Every distributor of a quantity of methyl bromide that was produced or imported solely for quarantine or preshipment applications under the exemptions in this subpart must receive from an applicator a certification of the quantity of class I, Group VI controlled substances ordered, prior to delivery of the quantity, stating that the quantity will be used solely for quarantine or preshipment applications in accordance with definitions in this subpart.

(3) Every distributor of methyl bromide who receives a certification from an applicator that the quantity ordered and delivered will be used solely for quarantine and preshipment applications in accordance with definitions in this subpart must maintain the certifications as records for 3 years.

(4) Every distributor of methyl bromide who receives a certification from an applicator that the quantity ordered and delivered will be used solely for quarantine and preshipment applications in accordance with definitions in this subpart must report to the Administrator within 45 days after the end of each quarter, the total quantity delivered for which certifications were received that stated the class I, Group VI controlled substance would be used solely for quarantine and preshipment applications in accordance with definitions in this Subpart.

(z) Every applicator of class I, Group VI controlled substances who purchases or receives a quantity produced or imported solely for quarantine and preshipment applications under the exemptions in this subpart must comply with recordkeeping and reporting requirements specified in this paragraph (bb) of this section.

(1) Recordkeeping—Applicators. Every applicator of class I, Group VI controlled substances produced or imported solely for quarantine and preshipment applications under the exemptions of this subpart must maintain, for every application, a document from the commodity owner, shipper or their agent requesting the use of class I, Group VI controlled substances citing the regulatory requirement that justifies its use in accordance with definitions in this subpart. These documents shall be retained for 3 years.

(2) Reporting—Applicators. Every applicator of class I, Group VI controlled substances who purchases or receives a quantity of class I, Group VI controlled substance that was produced or imported solely for quarantine and preshipment applications under the exemptions in this subpart shall provide the distributor of the methyl bromide, prior to shipment of the class I, Group VI controlled substance, with a certification that the quantity of controlled substances will be used only for quarantine and preshipment applications as defined in this subpart.

(aa) Every commodity owner, shipper or their agent requesting an applicator to use a quantity of class I, Group VI controlled substance that was produced or imported solely for quarantine and preshipment applications under the exemptions of this subpart must maintain a record for 3 years, for each request, certifying knowledge of the requirements associated with the exemption for quarantine and preshipment applications in this subpart and citing the regulatory requirement that justifies the use of the class I, Group VI controlled substance in accordance with definitions in this subpart. The record must include the following statement: “I certify knowledge of the requirements associated with the exempted quarantine and preshipment applications published in 40 CFR part 82, including the requirement that this letter cite the treatments or official controls for quarantine applications or the official requirements for preshipment requirements.”

(bb) Every distributor of methyl bromide (class I, Group VI controlled substances) who purchases or receives a quantity of critical use methyl bromide must comply with recordkeeping and reporting requirements specified in this paragraph (bb).

(1) Recordkeeping—Every distributor of critical use methyl bromide must certify to the producer or importer or other entity from which they are acquiring quantities of critical use methyl bromide that such quantities received will be sold or used only for approved critical use(s) in accordance with the definitions and prohibitions in this subpart.

(i) Every distributor of a quantity of critical use methyl bromide must receive from an applicator, or any other entity to whom they sell critical use methyl bromide, a certification of the quantity of critical use methyl bromide ordered, prior to delivery of the quantity, stating that the quantity will be sold or used only for approved critical uses in accordance with definitions and prohibitions in this subpart.

(ii) Every distributor of methyl bromide who receives a certification from an applicator or any other entity to which they sell critical use methyl bromide must maintain the certifications as records for 3 years.

(iii) Every distributor of a quantity of critical use methyl bromide must maintain invoice and order records related to the sale of such material for 3 years.

(2) Reporting—Every distributor of critical use methyl bromide must report to the Administrator annually, the following items:

(i) For critical uses of class I, Group VI controlled substances, an annual list of the amount of critical use methyl bromide bought;

(ii) For critical uses of class I, Group VI controlled substances, an annual list of the amount of critical use methyl bromide sold for each specified critical use in Appendix L of this subpart;

(iii) For critical uses of class I, Group VI controlled substances, report the amount of critical use methyl bromide owned by the reporting entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, as well as quantities held by the reporting entity on behalf of another entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, along with the name of the entity on whose behalf the material is held;

(iv) [Reserved]

(v) The amount of methyl bromide produced or imported prior to the January 1, 2005, phaseout date owned by the reporting entity, as well as quantities held by the reporting entity on behalf of another entity, specifying the name of the entity on whose behalf the material is held.

(cc) Every third party applicator of methyl bromide (class I, Group VI controlled substances) that purchases or receives critical use methyl bromide must comply with recordkeeping and reporting requirements specified in this paragraph (cc).

(1) Recordkeeping—Every third party applicator of critical use methyl bromide must certify to the producer or importer or other entity from which they are acquiring quantities of critical use methyl bromide that such quantities received will be sold or used only for approved critical use(s) in accordance with the definitions and prohibitions in this subpart.

(i) Every third party applicator of a quantity of critical use methyl bromide must receive from any entity to whom they sell critical use methyl bromide, a certification of the quantity of critical use methyl bromide ordered, prior to delivery of the quantity, stating that the quantity will be sold or used only for approved critical uses in accordance with definitions and prohibitions in this subpart.

(ii) Every third party applicator of methyl bromide who receives a certification from an entity to which they sell critical use methyl bromide must maintain the certifications as records for 3 years.

(iii) Every third party applicator of a quantity of critical use methyl bromide must maintain invoice and order records related to the sale of such material for 3 years.

(2) Reporting—Every third party applicator of critical use methyl bromide must report to the Administrator annually, the following items:

(i) For critical uses of class I, Group VI controlled substances, an annual list of the amount of critical use methyl bromide bought;

(ii) For critical uses of class I, Group VI controlled substances, an annual list of the amount of critical use methyl bromide sold for each specified critical use in Appendix L of this subpart;

(iii) For critical uses of class I, Group VI controlled substances, report annually the amount of critical use methyl bromide owned by the reporting entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, as well as quantities held by the reporting entity on behalf of another entity, specifying quantities dedicated for pre-plant use and quantities dedicated for post-harvest use, along with the name of the entity on whose behalf the material is held;

(iv) [Reserved]

(v) The amount of methyl bromide produced or imported prior to the January 1, 2005 phaseout date owned by the reporting entity, as well as quantities held by the reporting entity on behalf of another entity, specifying the name of the entity on whose behalf the material is held.

(dd) Every approved critical user purchasing an amount of critical use methyl bromide or purchasing fumigation services with critical use methyl bromide must, for each request, identify the use as a critical use and certify being an approved critical user. The approved critical user certification will state, in part: “I certify, under penalty of law, I am an approved critical user and I will use this quantity of methyl bromide for an approved critical use. My action conforms to the requirements associated with the critical use exemption published in 40 CFR part 82. I am aware that any agricultural commodity within a treatment chamber, facility or field I fumigate with critical use methyl bromide cannot subsequently or concurrently be fumigated with non-critical use methyl bromide during the same control period, excepting a QPS treatment or a treatment for a different use (e.g., a different crop or commodity). I will not use this quantity of methyl bromide for a treatment chamber, facility, or field that I previously fumigated with non-critical use methyl bromide during the same control period, excepting a QPS treatment or a treatment for a different use (e.g., a different crop or commodity), unless a local township limit now prevents me from using methyl bromide alternatives or I have now become an approved critical user as a result of rulemaking.” The certification will also identify the type of critical use methyl bromide purchased, the location of the treatment, the crop or commodity treated, the quantity of critical use methyl bromide purchased, and the acreage/square footage treated, and will be signed and dated by the approved critical user.

[60 FR 24986, May 10, 1995]

Editorial Note: For Federal Register citations affecting §82.13 see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

§82.15   Prohibitions for class II controlled substances.

Link to an amendment published at 79 FR 64286, Oct. 28, 2014.

(a) Production. (1) Effective January 21, 2003, no person may produce class II controlled substances for which EPA has apportioned baseline production and consumption allowances, in excess of the quantity of unexpended production allowances, unexpended Article 5 allowances, unexpended export production allowances, or conferred unexpended HCFC-141b exemption allowances held by that person for that substance under the authority of this subpart at that time in that control period, unless the substances are transformed or destroyed domestically or by a person of another Party, or unless they are produced using an exemption granted in paragraph (f) of this section. Every kilogram of excess production constitutes a separate violation of this subpart.

(2) Effective January 21, 2003, no person may use production allowances to produce a quantity of class II 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 II controlled substances. No person may use consumption allowances to produce a quantity of class II controlled substances unless the person holds under authority of this subpart at the same time production allowances sufficient to cover that quantity of class II controlled substances.

(b) Import. (1) Effective January 21, 2003, no person may import class II controlled substances (other than transhipments, heels or used class II controlled substances) for which EPA has apportioned baseline production and consumption allowances , in excess of the quantity of unexpended consumption allowances, or conferred unexpended HCFC-141b exemption allowances held by that person under the authority of this subpart at that time in that control period, unless the substances are for use in a process resulting in their transformation or their destruction, or unless they are produced using an exemption granted in paragraph (f) of this section. Every kilogram of excess import constitutes a separate violation of this subpart.

(2) Effective January 21, 2003, no person may import, at any time in any control period, a used class II controlled substance for which EPA has apportioned baseline production and consumption allowances, without having submitted a petition to the Administrator and received a non-objection notice in accordance with §82.24(c)(3) and (4). A person issued a non-objection notice for the import of an individual shipment of used class II 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 class II controlled substance stated in the non-objection notice. Every kilogram of import of used class II controlled substance in excess of the quantity stated in the non-objection notice issued by the Administrator in accordance with §82.24(c)(3) and (4) constitutes a separate violation of this subpart.

(c) Production with Article 5 allowances. No person may introduce into U.S. interstate commerce any class II controlled substance produced with Article 5 allowances, except for export to an Article 5 Party as listed in Appendix E of this subpart. Every kilogram of a class II controlled substance produced with Article 5 allowances that is introduced into interstate commerce other than for export to an Article 5 Party constitutes a separate violation under this subpart. No person may export any class II controlled substance produced with Article 5 allowances to a non-Article 5 Party. Every kilogram of a class II controlled substance that was produced with Article 5 allowances that is exported to a non-Article 5 Party constitutes a separate violation under this subpart.

(d) Production with export production allowances. No person may introduce into U.S. interstate commerce any class II controlled substance produced with export production allowances. Every kilogram of a class II controlled substance that was produced with export production allowances that is introduced into U.S. interstate commerce constitutes a separate violation under this subpart.

(e) Trade with Parties. No person may import or export any quantity of a class II controlled substance listed in Appendix A to this subpart, from or to any foreign state that is not either:

(1) A Party to the Beijing Amendment. As of March 14, 2014, the following foreign states had not ratified the Beijing Amendment: Kazakhstan, Libya, and Mauritania. For updates on ratification status, see the Ozone Secretariat's Web site at: http://ozone.unep.org/new_site/en/treaty_ratification_status.php. Or,

(2) A foreign state not party to the Beijing Amendment that is complying with the Beijing Amendment as defined in this subpart.

(f) Exemptions. (1) Medical Devices [Reserved]

(g) Introduction into interstate commerce or use. (1) Effective January 1, 2010, no person may introduce into interstate commerce or use HCFC-141b (unless used, recovered, and recycled) for any purpose except for use in a process resulting in its transformation or its destruction; for export to Article 5 Parties under §82.18(a); for HCFC-141b exemption needs; as a transhipment or heel; or for exemptions permitted in paragraph (f) of this section.

(2)(i) Effective January 1, 2010, no person may introduce into interstate commerce or use HCFC-22 or HCFC-142b (unless used, recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for use as a refrigerant in equipment manufactured before January 1, 2010; for export to Article 5 Parties under §82.18(a); as a transhipment or heel; or for exemptions permitted in paragraph (f) of this section.

(ii) Introduction into interstate commerce and use of HCFC-22 is not subject to the prohibitions in paragraph (g)(2)(i) of this section if the HCFC-22 is for use in medical equipment prior to January 1, 2015; for use in thermostatic expansion valves prior to January 1, 2015; or for use as a refrigerant in appliances manufactured before January 1, 2012, provided that the components are manufactured prior to January 1, 2010, and are specified in a building permit or a contract dated before January 1, 2010, for use on a particular project.

(3) Effective January 1, 2015, no person may introduce into interstate commerce or use HCFC-141b (unless used, recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for export to Article 5 Parties under §82.18(a), as a transhipment or heel; or for exemptions permitted in paragraph (f) of this section.

(4) Effective January 1, 2015, no person may introduce into interstate commerce or use any class II controlled substance not governed by paragraphs (g)(1) through (3) of this section (unless used, recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for use as a refrigerant in equipment manufactured before January 1, 2020; for export to Article 5 Parties under §82.18(a); as a transhipment or heel; or for exemptions permitted in paragraph (f) of this section.

(5) Effective January 1, 2030, no person may introduce into interstate commerce or use any class II controlled substance (unless used, recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction; for export to Article 5 Parties under §82.18(a); as a transhipment or heel; or for exemptions permitted in paragraph (f) of this section.

(6) Effective January 1, 2040, no person may introduce into interstate commerce or use any class II controlled substance (unless used, recovered, and recycled) for any purpose other than for use in a process resulting in its transformation or its destruction, as a transhipment or heel, or for exemptions permitted in paragraph (f) of this section.

[68 FR 2848, Jan. 21, 2003, as amended at 69 FR 34031, June 17, 2004; 71 FR 41171, July 20, 2006; 74 FR 66445, Dec. 15, 2009; 79 FR 16686, Mar. 26, 2014]

§82.16   Phaseout schedule of class II controlled substances.

Link to an amendment published at 79 FR 64286, Oct. 28, 2014.

(a) Calendar-year allowances. (1) In each control period as indicated in the following tables, each person is granted the specified percentage of baseline production allowances and baseline consumption allowances for the specified class II controlled substances apportioned under §§82.17 and 82.19:

Calendar-Year HCFC Production Allowances

Control periodPercent of HCFC-141bPercent of HCFC-22Percent of HCFC-142bPercent of HCFC-123Percent of HCFC-124Percent of HCFC-225caPercent of HCFC-225cb
20030100100
20040100100
20050100100
20060100100
20070100100
20080100100
20090100100
2010041.90.47125125125125
2011032.04.9125125125125
2012017.74.9125125125125
2013030.14.9125125125125
2014026.14.9125125125125

Calendar-Year HCFC Consumption Allowances

Control periodPercent of HCFC-141bPercent of HCFC-22Percent of HCFC-142bPercent of HCFC-123Percent of HCFC-124Percent of HCFC-225caPercent of HCFC-225cb
20030100100
20040100100
20050100100
20060100100
20070100100
20080100100
20090100100
2010041.90.47125125125125
2011032.04.9125125125125
2012017.74.9125125125125
2013018.04.9125125125125
2014014.24.9125125125125

(2) Recoupment allowances. In the control period beginning January 1, 2013 and ending December 31, 2013, and again in the control period beginning January 1, 2014 and ending December 31, 2014, certain companies are granted HCFC consumption and production allowances in addition to the percentage of baseline listed in the table at paragraph (a)(1) of this section. The following companies will receive the amounts listed below in both 2013 and 2014: 2,374,846 kg of HCFC-22 consumption allowances and 2,305,924 kg of HCFC-22 production allowances to Arkema; 1,170 kg of HCFC-142b consumption allowances to DuPont; 29,146 kg of HCFC-142b consumption allowances and 53,549 kg of HCFC-142b production allowances to Honeywell; 578,948 kg of HCFC-22 consumption allowances to Solvay Fluorides; and 144,900 kg of HCFC-142b production allowances to Solvay Solexis.

(b) Effective January 1, 2003, no person may produce HCFC-141b except for use in a process resulting in its transformation or its destruction, for export under §82.18(a) using unexpended Article 5 allowances, for export under §82.18(b) using unexpended export production allowances, for HCFC-141b exemption needs using unexpended HCFC-141b exemption allowances, or for exemptions permitted in §82.15(f). Effective January 1, 2003, no person may import HCFC-141b (other than transhipments, heels or used class II controlled substances) in excess of the quantity of unexpended HCFC-141b exemption allowances held by that person except for use in a process resulting in its transformation or its destruction, or for exemptions permitted in §82.15(f).

(c) Effective January 1, 2010, no person may produce HCFC-22 or HCFC-142b for any purpose other than for use in a process resulting in their transformation or their destruction, for use in equipment manufactured before January 1, 2010, for export under §82.18(a) using unexpended Article 5 allowances, or for export under §82.18(b) using unexpended export production allowances, or for exemptions permitted in §82.15(f). Effective January 1, 2010, no person may import HCFC-22 or HCFC-142b (other than transhipments, heels or used class II controlled substances) for any purpose other than for use in a process resulting in their transformation or their destruction, for exemptions permitted in §82.15(f), or for use in equipment manufactured prior to January 1, 2010.

(d) Effective January 1, 2015, no person may produce class II controlled substances not previously controlled, for any purpose other than for use in a process resulting in their transformation or their destruction, for use as a refrigerant in equipment manufactured before January 1, 2020, for export under §82.18(a) using unexpended Article 5 allowances, or for export under §82.18(b) using unexpended export production allowances, or for exemptions permitted in §82.15(f). Effective January 1, 2015, no person may import class II controlled substances not subject to the requirements of paragraph (b) or (c) of this section (other than transhipments, heels or used class II controlled substances) for any purpose other than for use in a process resulting in their transformation or their destruction, for exemptions permitted in §82.15(f), or for use as a refrigerant in equipment manufactured prior to January 1, 2020.

(e) Effective January 1, 2020, no person may produce HCFC-22 or HCFC-142b for any purpose other than for use in a process resulting in their transformation or their destruction, for export under §82.18(a) using unexpended Article 5 allowances, or for export under §82.18(b) using unexpended export production allowances, or for exemptions permitted in §82.15(f). Effective January 1, 2020, no person may import HCFC-22 or HCFC-142b for any purpose other than for use in a process resulting in their transformation or their destruction, or for exemptions permitted in §82.15(f).

(f) Effective January 1, 2030, no person may produce class II controlled substances, for any purpose other than for use in a process resulting in their transformation or their destruction, for export under §82.18(a) using unexpended Article 5 allowances, or for exemptions permitted in §82.15(f). Effective January 1, 2030, no person may import class II controlled substances for any purpose other than for use in a process resulting in their transformation or their destruction, or for exemptions permitted in §82.15(f).

(g) Effective January 1, 2040, no person may produce class II controlled substances for any purpose other than for use in a process resulting in their transformation or their destruction, or for exemptions permitted in §82.15(f).

(h) Petition for HCFC-141b exemption allowances.

(1) Effective January 21, 2003, a formulator of HCFC-141b, an agency, department, or instrumentality of the U.S., or a non-governmental space vehicle entity, may petition EPA for HCFC-141b exemption allowances for the production or import of HCFC-141b after the phaseout date, in accordance with this section. Except as provided in paragraphs (h)(4) and (7) of this section, a petitioner must submit the following information to the Director of EPA's Office of Atmospheric Programs no later than April 21, 2003, for the 2003 control period; and, for any subsequent control period, no later than October 31st of the year preceding the control period for which the HCFC-141b exemption allowances are requested:

(i) Name and address of the HCFC-141b formulator, U.S. government entity or non-governmental space vehicle entity;

(ii) Name of contact person, phone number, fax number and e-mail address;

(iii) Quantity (in kilograms) of HCFC-141b needed for each relevant calendar year, supported by documentation about past use for at least the previous three years;

(iv) Quantities of HCFC-141b, if any, contained in systems that were sold to other systems houses for at least the previous three years;

(v) Description of the markets and applications served by the use of HCFC-141b or systems based on HCFC-141b;

(vi) Technical description of processes in which HCFC-141b is being used;

(vii) Technical description of the specific conditions under which the product will be applied;

(viii) Technical description of why alternatives and substitutes are not sufficient to eliminate the use of HCFC-141b;

(ix) Amount of stockpiled HCFC-141b (on-hand, taken title to, or available from a supplier) along with a detailed analysis showing why stockpiled, recovered or recycled quantities are deemed to be unavailable, or technically or commercially infeasible for use (for example, taking into consideration undue costs for storage and transportation);

(x) An estimate of the number of control periods over which such an exemption would be necessary;

(xi) A detailed description of continuing investigations into and progress on possible alternatives and substitutes;

(xii) A list of alternatives considered, purchased or sampled, including dates and copies of receipts for verification;

(xiii) A summary of the petitioner's in-house development program including summaries of all relevant test results and their significance to subsequent decision-making and technology selection. Full supporting test data must be available on request including alternative tested and date on which it was tested;

(xiv) A clear statement of the preferred technical option(s) being pursued at the time of the petition and the reasoning for this selection;

(xv) A summary of product test results conducted on the preferred technical option(s) by accredited organizations in order to determine whether products meet applicable codes. Relevant test reports and certifications must be made available on request; and

(xvi) A description of the further development testing to be carried out over the number of control periods identified under paragraph (h)(1)(x) of this section.

(2) Within 21 business days of receipt of the petition, the Director of EPA's Office of Atmospheric Programs will issue to a HCFC-141b formulator, agency, department, or instrumentality of the U.S., or non-governmental space vehicle entity that has petitioned for HCFC-141b exemption allowances, based on information received in accordance with paragraph (h)(1) of this section, a notice indicating one of the following:

(i) A determination by the Director of EPA's Office of Atmospheric Programs to grant a specific quantity of HCFC-141b exemption allowances (in kilograms) for the production or import of HCFC-141b in a specified control period based on an assessment that HCFC-141b is necessary to maintain either safety, or operational or technical viability;

(ii) A determination by the Director of EPA's Office of Atmospheric Programs to request additional information because the information received in accordance with paragraph (h)(1) of this section is not sufficient to decide whether to grant or deny HCFC-141b exemption allowances. The Director of EPA's Office of Atmospheric Programs will decide whether to grant or deny HCFC-141b exemption allowances within 30 days of receipt of the additional information. However, if the petitioner fails to submit the additional information within 20 days of the request, such failure constitutes a basis for denying the petition for HCFC-141b exemption allowances.

(iii) A determination by the Director of EPA's Office of Atmospheric Programs to deny a grant of HCFC-141b exemption allowances due to one or more of the following reasons:

(A) The needs can be met by the use of a substance other than HCFC-141b;

(B) The needs can be met by the use of existing supplies of HCFC-141b;

(C) There is evidence of fraud or misrepresentation;

(D) Approval of the HCFC-141b exemption allowances would be inconsistent with U.S. obligations under the provisions of the Montreal Protocol (including Decisions agreed by the Parties);

(E) Approval of the HCFC-141b exemption allowances would be inconsistent with the Clean Air Act;

(F) There is an inadequate demonstration of efforts undertaken to research and implement alternatives; or

(G) Granting the HCFC-141b exemption allowances may reasonably be expected to endanger human health or the environment.

(3) Within ten working days after receipt of a notice outlining a determination by the Director of EPA's Office of Atmospheric Programs to deny a grant of HCFC-141b exemption allowances due to one or more of the reasons in paragraph (h)(2)(iii) of this section, the petitioner may file with the Director of EPA's Office of Atmospheric Programs a one-time appeal with elaborated information. The Director of EPA's Office of Atmospheric Programs may affirm the determination to deny a grant of HCFC-141b exemption allowances or make a determination to grant HCFC-141b exemption allowance, in light of the available evidence submitted with the appeal. If no appeal is submitted by the tenth day after receipt of the notice outlining a determination by the Director of EPA's Office of Atmospheric Programs to deny a grant of HCFC-141b exemption allowances, the denial will be final on that day.

(4) Any entity that has previously petitioned for HCFC-141b exemption allowances under paragraph (h)(1) of this section may file a petition for renewal for a subsequent control period by October 31st of the year preceding that control period. The petition for renewal must contain the following information:

(i) Name and address of the HCFC-141b formulator, U.S. government entity or non-governmental space vehicle entity;

(ii) Name of contact person, phone number, fax number and e-mail address;

(iii) Quantity (in kilograms) of HCFC-141b needed for the control period;

(iv) Description of markets and applications being served by the use of HCFC-141b;

(v) A technical description of the process in which HCFC-141b is still being used;

(vi) A technical description of the specific conditions under which the product is still being applied;

(vii) Technical description of why alternatives and substitutes are still not sufficient to eliminate the use of HCFC-141b;

(viii) Amount of stockpiled HCFC-141b (on-hand, taken title to, or available from a supplier) along with a detailed analysis showing why stockpiled, recovered or recycled quantities are deemed to be technically or economically infeasible for use; and

(ix) A detailed description of continuing investigations into and progress on possible alternatives and substitutes and how this activity differs from information given in the previous request.

(5) A person granted HCFC-141b exemption allowances by the Director of EPA's Office of Atmospheric Programs under paragraph (h)(2)(i) or (h)(3) of this section may request a quantity of HCFC-141b be produced or imported in the specified control period listed in the notice by conferring the rights to produce or import to a producer or importer.

(6) The HCFC-141b exemption allowances held by one entity do not automatically transfer to an acquiring entity. Any entity acquiring another company holding HCFC-141b exemption allowances must submit a renewal application in accordance with paragraph (h)(4) of this section at the time of the acquisition in order to qualify for the HCFC-141b exemption allowances.

(7) A formulator for, or an agency, department, or instrumentality of the U.S., or a non-governmental space vehicle entity that has previously petitioned for and been granted HCFC-141b exemption allowances under paragraphs (h)(1) through (4) of this section is granted, on January 1 of each control period beginning January 1, 2007, HCFC-141b exemption allowances equivalent to 10% more than the highest amount previously granted under paragraphs (h)(1) through (4) of this section to that petitioner for space vehicle uses or defense applications.

(8) A formulator for, or an agency, department, or instrumentality of the U.S.; or a non-governmental space vehicle entity that has previously petitioned for and been granted HCFC-141b exemption allowances under paragraphs (h)(1) through (4) of this section but now seeks to obtain allowances in addition to those granted under paragraph (h)(7) of this section must submit a new petition in accordance with paragraph (h)(1) of this section.

[68 FR 2848, Jan. 21, 2003, as amended at 71 FR 41171, July 20, 2006; 74 FR 66446, Dec. 15, 2009; 76 FR 47467, Aug. 5, 2011; 78 FR 20027, Apr. 3, 2013]

§82.17   Apportionment of baseline production allowances for class II controlled substances.

Link to an amendment published at 79 FR 64287, Oct. 28, 2014.

The following persons are apportioned baseline production allowances for HCFC-22, HCFC-141b, HCFC-142b, HCFC-123, HCFC-124, HCFC-225ca, and HCFC-225cb, as set forth in the following table:

PersonControlled substanceAllowances
(kg)
AGC Chemicals AmericasHCFC-225ca266,608
   HCFC-225cb373,952
ArkemaHCFC-2246,692,336
   HCFC-141b24,647,925
   HCFC-142b484,369
DuPontHCFC-2242,638,049
   HCFC-1242,269,210
HoneywellHCFC-2237,378,252
   HCFC-141b28,705,200
   HCFC-142b2,417,534
   HCFC-1241,759,681
MDA ManufacturingHCFC-222,383,835
Solvay SolexisHCFC-142b6,541,764

[76 FR 47467, Aug. 5, 2011]

§82.18   Availability of production in addition to baseline production allowances for class II controlled substances.

(a) Article 5 allowances. (1) Effective January 1, 2003, a person apportioned baseline production allowances for HCFC-141b, HCFC-22, or HCFC-142b under §82.17 is also apportioned Article 5 allowances, equal to 15 percent of their baseline production allowances, for the specified HCFC for each control period up until December 31, 2009, to be used for the production of the specified HCFC for export only to foreign states listed in Appendix E to this subpart.

(2) Effective January 1, 2010, a person apportioned baseline production allowances under §82.17 for HCFC-141b, HCFC-22, or HCFC-142b is also apportioned Article 5 allowances, equal to 10 percent of their baseline production allowances, for the specified HCFC for each control period up until December 31, 2019, to be used for the production of the specified HCFC for export only to foreign states listed in Appendix E to this subpart.

(3) Effective January 1, 2015, a person apportioned baseline production allowances under §82.17 for HCFC-123, HCFC-124, HCFC-225ca, and HCFC-225cb is also apportioned Article 5 allowances, equal to 10 percent of their baseline production allowances, for the specified HCFC for each control period up until December 31, 2019, to be used for the production of the specified HCFC for export only to foreign states listed in Appendix E to this subpart.

(b) Export Production Allowances. (1) Effective January 1, 2003, a person apportioned baseline production allowances for HCFC-141b under §82.17 is also apportioned export production allowances, equal to 100 percent of their baseline production allowances, for HCFC-141b for each control period up until December 31, 2009, to be used for the production of HCFC-141b for export only, in accordance with this section.

(2) [Reserved]

(c) International trades of production allowances, export production allowances and Article 5 allowances. (1) A person may increase or decrease their production allowances, export production allowances, or Article 5 allowances, for a specified control period through trades with a foreign state that is Party to the Beijing Amendment or is complying with the Beijing Amendment as defined in this subpart. The foreign state must agree either to trade to the person for the current control period some quantity of production that the foreign state is permitted under the Montreal Protocol or to receive from the person for the current control period some quantity of production that the person is permitted under this subpart. The person must expend their consumption allowances allocated under §82.19, or obtained under §82.20 in order to produce with the additional production allowances.

(2) Trade from a Party—Information requirements. (i) A person requesting a trade from a Party must submit to the Administrator a signed document from the principal diplomatic representative in that nation's embassy in the U.S. stating that the appropriate authority within that nation will establish or revise production limits for the nation to equal the lowest of the following three production quantities:

(A) The maximum production that the nation is allowed under the Protocol minus the quantity (in kilograms) to be traded;

(B) The maximum production that is allowed under the nation's applicable domestic law minus the quantity (in kilograms) to be traded; or

(C) The average of the nation's actual national production level for the three years prior to the trade minus the production to be traded.

(ii) A person requesting a trade from a Party must also submit to the Administrator a true copy of the document that sets forth the following:

(A) The identity and address of the person;

(B) The identity of the Party;

(C) The names and telephone numbers of contact persons for the person and for the Party;

(D) The chemical type and quantity (in kilograms) of production being traded;

(E) Documentation that the Party possesses the necessary quantity of unexpended production rights;

(F) The control period(s) to which the trade applies; and

(G) For increased production intended for export to the Party from whom the allowances would be received, a signed statement of intent to export to the Party.

(3) Trade to a Party—Information requirements. A person requesting a trade to a Party must submit a request that sets forth the following information to the Administrator:

(i) The identity and address of the person;

(ii) The identity of the Party;

(iii) The names and telephone numbers of contact persons for the person and for the Party;

(iv) The chemical type and quantity (in kilograms) of allowable production being traded; and

(v) The control period(s) to which the trade applies.

(4) Review of international trade request to a Party. After receiving a trade request that meets the requirements of paragraph (c)(3) of this section, the Administrator may, at his/her discretion, consider the following factors by seeking concurrence from the Department of Commerce, the United States Trade Representative, and the Department of State, where appropriate, in deciding whether to approve such a trade:

(i) Possible creation of domestic economic hardship;

(ii) Possible effects on trade;

(iii) Potential environmental implications; and

(iv) The total quantity of unexpended production allowances held by U.S. entities.

(5) Notice of trade. If the request meets the requirement of paragraph (c)(2) of this section for trades from Parties and paragraphs (c)(3) and (4) of this section for trades to Parties, the Administrator will issue the person a notice. The notice will either grant or deduct production allowances or export production allowances or Article 5 allowances and specify the control period to which the trade applies. The Administrator may disapprove the trade request contingent on the consideration of factors listed in paragraph (c)(4) of this section for trades to Parties.

(i) For trades from a Party, the Administrator will issue a notice revising the allowances held by the recipient of the trade to equal the unexpended production allowances, unexpended export production allowances, or unexpended Article 5 allowances held by the recipient of the trade under this subpart plus the quantity of allowable production traded from the Party.

(ii) For trades to a Party, the Administrator will issue a notice revising the production limit for the trader to equal the lesser of:

(A) The unexpended production allowances, unexpended export production allowances or unexpended Article 5 allowances held by the trade or minus the quantity traded; or

(B) The unexpended production allowances held by the trader minus the amount by which the U.S. average annual production of the class II controlled substance being traded for the three years prior to the trade is less than the total allowable production of that class II controlled substance under this subpart minus the amount traded; or

(C) The total U.S. allowable production of the class II controlled substance being traded minus the three-year average of the actual annual U.S. production of the class II controlled substance prior to the control period of the trade.

(6) Revised notices of production limits for subsequent traders. If after one person obtains approval of a trade of allowable production of a class II controlled substance to a Party and other persons obtain approval for trades of the same class II controlled substance during the same control period, the Administrator will issue revised notices. The notices will revise the production limits for each of the other persons trading to equal the lesser of:

(i) The unexpended production allowances, unexpended export production allowances or unexpended Article 5 allowances held by the trader under this subpart minus the quantity traded; or

(ii) The result of the following set of calculations:

(A) The total U.S. allowable production of the class II controlled substance minus the three-year average of the actual annual U.S. production of the class II controlled substance prior to the control period of the trade;

(B) The quantity traded divided by the total quantity traded by all the other persons trading the same class II controlled substance in the same control period;

(C) The result of paragraph (c)(6)(ii)(A) of this section multiplied by the result of paragraph (c)(6)(ii)(B) of this section;

(D) The quantity derived in paragraph (c)(6)(i) of this section, minus the result of paragraph (c)(6)(ii)(C) of this section;

(7) Production limit for previous traders. The Administrator will also issue a notice revising the production limit for each trader who previously obtained approval of a trade of the class II controlled substance to a Party in the same control period to equal the result of the following set of calculations:

(i) The total U.S. allowable production of the class II controlled substance minus the three-year average of the actual annual U.S. production of the class II controlled substance prior to the control period of the trade;

(ii) The quantity traded by the person divided by the quantity traded by all the persons who have traded that class II controlled substance in that control period;

(iii) The result of paragraph (c)(7)(i) of this section multiplied by the result of paragraph (c)(7)(ii) of this section.

(iv) The unexpended production allowances, unexpended export production allowances or unexpended Article 5 allowances held by the person plus the result of paragraph (c)(7)(iii) of this section;

(8) Effective date of revised production limits. The change in production allowances, export production allowances or Article 5 allowances will be effective on the date that the notice is issued.

[68 FR 2848, Jan. 21, 2003, as amended at 74 FR 66446, Dec. 15, 2009; 79 FR 16687, Mar. 26, 2014]

§82.19   Apportionment of baseline consumption allowances for class II controlled substances.

Link to an amendment published at 79 FR 64288, Oct. 28, 2014.

The following persons are apportioned baseline consumption allowances for HCFC-22, HCFC-141b, HCFC-142b, HCFC-123, HCFC-124, HCFC-225ca, and HCFC-225cb, as set forth in the following table:

PersonControlled substanceAllowances (kg)
ABCO Refrigeration SupplyHCFC-22279,366
AGC Chemicals AmericasHCFC-225ca285,328
   HCFC-225cb286,832
Altair PartnersHCFC-22302,011
ArkemaHCFC-2248,637,642
   HCFC-141b25,405,570
   HCFC-142b483,827
   HCFC-1243,719
CarrierHCFC-2254,088
Continental Industrial GroupHCFC-141b20,315
Coolgas, IncHCFC-141b16,097,869
Coolgas Investment PropertyHCFC-221,040,458
   HCFC-12319,980
   HCFC-1243,742
Discount RefrigerantsHCFC-141b994
DuPontHCFC-2238,814,862
   HCFC-141b9,049
   HCFC-142b52,797
   HCFC-1231,877,042
   HCFC-124743,312
H.G. Refrigeration SupplyHCFC-2240,068
HoneywellHCFC-2235,392,492
   HCFC-141b20,749,489
   HCFC-142b1,315,819
   HCFC-1241,284,265
ICC Chemical CorpHCFC-141b81,225
ICORHCFC-12481,220
Mexichem Fluor IncHCFC-222,546,305
Kivlan & CompanyHCFC-222,081,018
MDA ManufacturingHCFC-222,541,545
Mondy GlobalHCFC-22281,824
National RefrigerantsHCFC-225,528,316
   HCFC-12372,600
   HCFC-12450,380
Perfect Technology Center, LPHCFC-1239,100
Refricenter of MiamiHCFC-22381,293
RefricentroHCFC-2245,979
R-LinesHCFC-2263,172
Saez DistributorsHCFC-2237,936
Solvay FluoridesHCFC-223,781,691
   HCFC-141b3,940,115
Solvay SolexisHCFC-142b194,536
Tulstar ProductsHCFC-141b89,913
   HCFC-12334,800
   HCFC-124229,582
USA RefrigerantsHCFC-2214,865

[76 FR 47468, Aug. 5, 2011]

§82.20   Availability of consumption allowances in addition to baseline consumption allowances for class II controlled substances.

Link to an amendment published at 79 FR 64288, Oct. 28, 2014.

(a) A person may obtain at any time during the control period, in accordance with the provisions of this section, consumption allowances equivalent to the quantity of class II controlled substances that the person exported from the U.S. and its territories to a foreign state, in accordance with this section, when that quantity of class II controlled substance was produced in the U.S. or imported into the U.S. with expended consumption allowances.

(1) The exporter must submit to the Administrator a request for consumption allowances setting forth the following:

(i) The identities and addresses of the exporter and the recipient of the exports;

(ii) The exporter's Employer Identification Number;

(iii) The names and telephone numbers of contact persons for the exporter and the recipient;

(iv) The quantity (in kilograms) and type of class II controlled substances reported;

(v) The source of the class II controlled substances and the date purchased;

(vi) The date on which, and the port from which, the class II controlled substances were exported from the U.S. or its territories;

(vii) The country to which the class II controlled substances were exported;

(viii) A copy of the bill of lading and the invoice indicating the net quantity (in kilograms) of class II controlled substances shipped and documenting the sale of the class II controlled substances to the purchaser;

(ix) The commodity codes of the class II controlled substances reported; and

(x) A written statement from the producer that the class II controlled substances were produced with expended allowances or a written statement from the importer that the class II controlled substances were imported with expended allowances.

(2) The Administrator will review the information and documentation submitted under paragraph (a)(1) of this section and will issue a notice.

(i) The Administrator will determine the quantity of class II controlled substances that the documentation verifies was exported and issue consumption allowances equivalent to the quantity of class II controlled substances that were exported.

(A) The grant of the consumption allowances will be effective on the date the notice is issued.

(B) The consumption allowances will be granted to the person the exporter indicates, whether it is the producer, the importer, or the exporter.

(ii) The Administrator will issue a notice that the consumption allowances are not granted if the Administrator determines that the information and documentation do not satisfactorily substantiate the exporter's claims.

(b) International trades of consumption allowances. (1) A person may increase its consumption allowances for a specified control period through trades with another Party to the Protocol as set forth in this paragraph (b). A person may only receive consumption from Poland or Norway, or both, and only if the nation agrees to trade to the person for the current control period some quantity of consumption that the nation is permitted under the Montreal Protocol.

(2) Trade from a Party—Information requirements. A person must submit the following information to the Administrator:

(i) A signed document from the principal diplomatic representative in the Polish or Norwegian embassy in the U.S. stating that the appropriate authority within that nation will establish or revise consumption limits for the nation to equal the lowest of the following three consumption quantities:

(A) The maximum consumption that the nation is allowed under the Protocol minus the quantity (in kilograms) traded;

(B) The maximum consumption that is allowed under the nation's applicable domestic law minus the quantity (in kilograms) traded; or

(C) The average of the nation's actual consumption level for the three years prior to the trade minus the consumption traded.

(ii) A person requesting a consumption trade from Poland or Norway must also submit to the Administrator a true copy of the document that sets forth the following:

(A) The identity and address of the person;

(B) The identity of the Party;

(C) The names and telephone numbers of contact persons for the person and for the Party;

(D) The chemical type and quantity (in kilograms) of consumption being traded;

(E) Documentation that the Party possesses the necessary quantity of unexpended consumption rights;

(F) The control period(s) to which the trade applies; and

(3) Notice of trade. If the request meets the requirement of paragraph (b)(2) of this section for trades from Parties, the Administrator will issue the person a notice. The notice will grant consumption allowances and specify the control period to which the trade applies. The Administrator may disapprove the trade request if it does not meet the requirements of paragraph (b)(2) of this section.

(4) Trade from a Party. The Administrator will issue a notice revising the allowances held by the recipient of the trade to equal the unexpended consumption allowances held by the recipient of the trade under this subpart plus the quantity of allowable consumption traded from the Party.

(5) Effective date of revised consumption limits. The change in consumption allowances will be effective on the date that the notice is issued.

[68 FR 2848, Jan. 21, 2003, as amended at 71 FR 41172, July 20, 2006]

§§82.21-82.22   [Reserved]

§82.23   Transfers of allowances of class II controlled substances.

(a) Inter-company transfers. Effective January 1, 2003, a person (“transferor”) may transfer to any other person (“transferee”) any quantity of the transferor's class II consumption allowances, production allowances, export production allowances, or Article 5 allowances for the same type of allowance as follows:

(i) The transferor must submit to the Administrator a transfer claim setting forth the following:

(A) The identities and addresses of the transferor and the transferee;

(B) The name and telephone numbers of contact persons for the transferor and the transferee;

(C) The type of allowances being transferred, including the names of the class II controlled substances for which allowances are to be transferred;

(D) The quantity (in kilograms) of allowances being transferred;

(E) The control period(s) for which the allowances are being transferred;

(F) The quantity of unexpended allowances of the type and for the control period being transferred that the transferor holds under authority of this subpart on the date the claim is submitted to EPA; and

(G) For trades of consumption allowances, production allowances, export production allowances, or Article 5 allowances, the quantity of the 0.1 percent offset applied to the unweighted quantity traded that will be deducted from the transferor's allowance balance.

(ii) The Administrator will determine whether the records maintained by EPA indicate that the transferor possesses unexpended allowances sufficient to cover the transfer claim on the date the transfer claim is processed. The transfer claim is the quantity (in kilograms) to be transferred plus 0.1 percent of that quantity. The Administrator will take into account any previous transfers, any production, and allowable imports and exports of class II controlled substances reported by the transferor. Within three working days of receiving a complete transfer claim, the Administrator will take action to notify the transferor and transferee as follows:

(A) The Administrator will issue a notice indicating that EPA does not object to the transfer if EPA's records show that the transferor has sufficient unexpended allowances to cover the transfer claim. In the case of transfers of production or consumption allowances, EPA will reduce the transferor's balance of unexpended allowances by the quantity to be transferred plus 0.1 percent of that quantity. In the case of transfers of export production or Article 5 allowances, EPA will reduce the transferor's balance of unexpended allowances, respectively, by the quantity to be transferred plus 0.1 percent of that quantity. The transferor and the transferee may proceed with the transfer when EPA issues a no objection notice. However, if EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor and transferee, where applicable, will be held liable for any knowing violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.

(B) The Administrator will issue a notice disallowing the transfer if EPA's records show that the transferor has insufficient unexpended allowances to cover the transfer claim, or that the transferor has failed to respond to one or more Agency requests to supply information needed to make a determination. Either party may file a notice of appeal, with supporting reasons, with the Administrator within 10 working days after receipt of notification. The Administrator may affirm or vacate the disallowance. If no appeal is taken by the tenth working day after notification, the disallowance shall be final on that day.

(iii) The transferor and transferee may proceed with the transfer if the Administrator does not respond to a transfer claim within the three working days specified in paragraph (a)(1)(ii) of this section. In the case of transfers of production or consumption allowances, EPA will reduce the transferor's balance of unexpended allowances by the quantity to be transferred plus 0.1 percent of that quantity. In the case of transfers of export production allowances or Article 5 allowances, EPA will reduce the transferor's balance of unexpended allowances by the quantity to be transferred plus 0.1 percent of that quantity. If EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor and/or the transferee, where applicable, will be held liable for any knowing violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.

(b) Inter-pollutant transfers. (1) Effective January 1, 2003, a person (transferor) may convert consumption allowances, production allowances or Article 5 allowances for one class II controlled substance to the same type of allowance for another class II controlled substance listed in appendix B of this subpart, following the procedures described in paragraph (b)(3) of this section.

(2) Inter-pollutant transfers will be permitted at any time during the control period and during the 30 days after the end of a control period.

(3) The transferor must submit to the Administrator a transfer claim that includes the following:

(i) The identity and address of the transferor;

(ii) The name and telephone number of a contact person for the transferor;

(iii) The type of allowances being converted, including the names of the class II controlled substances for which allowances are to be converted;

(iv) The quantity (in kilograms) and type of allowances to be converted;

(v) The quantity (in kilograms) of allowances to be subtracted from the transferor's unexpended allowances for the first class II controlled substance, to be equal to 100.1 percent of the quantity of allowances converted;

(vi) The quantity (in kilograms) of allowances to be added to the transferee's unexpended allowances for the second class II controlled substance, to be equal to the quantity (in kilograms) of allowances for the first class II controlled substance being converted multiplied by the quotient of the ozone depletion potential of the first class II controlled substance divided by the ozone depletion potential of the second class II controlled substance, as listed in Appendix B to this subpart;

(vii) The control period(s) for which the allowances are being converted; and

(viii) The quantity (in kilograms) of unexpended allowances of the type and for the control period being converted that the transferor holds under authority of this subpart as of the date the claim is submitted to EPA.

(4) The Administrator will determine whether the records maintained by EPA indicate that the convertor possesses unexpended allowances sufficient to cover the transfer claim on the date the transfer claim is processed (i.e., the quantity (in kilograms) to be converted plus 0.1 percent of that quantity (in kilograms)). EPA will take into account any previous transfers, and any production, imports (not including transshipments or used class II controlled substances), or exports (not including transhipments or used class II controlled substances) of class II controlled substances reported by the convertor. Within three working days of receiving a complete transfer claim, the Administrator will take action to notify the convertor as follows:

(i) The Administrator will issue a notice indicating that EPA does not object to the transfer if EPA's records show that the convertor has sufficient unexpended allowances to cover the transfer claim. EPA will reduce the transferor's balance of unexpended allowances by the quantity to be converted plus 0.1 percent of that quantity (in kilograms). When EPA issues a no objection notice, the transferor may proceed with the transfer. However, if EPA ultimately finds that the transferor did not have sufficient unexpended allowances to cover the claim, the transferor will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer.

(ii) The Administrator will issue a notice disallowing the transfer if EPA's records show that the transferor has insufficient unexpended allowances to cover the transfer claim, or that the transferor has failed to respond to one or more Agency requests to supply information needed to make a determination. The transferor may file a notice of appeal, with supporting reasons, with the Administrator within 10 working days after receipt of notification. The Administrator may affirm or vacate the disallowance. If no appeal is taken by the tenth working day after notification, the disallowance shall be final on that day.

(iii) The transferor may proceed with the transfer if the Administrator does not respond to a transfer claim within the three working days specified in paragraph (b)(4) of this section. EPA will reduce the transferor's balance of unexpended allowances by the quantity (in kilograms) to be converted plus 0.1 percent of that quantity (in kilograms). The transferor will be held liable for any violations of the regulations of this subpart that occur as a result of, or in conjunction with, the improper transfer if EPA ultimately finds that the transferor did not have sufficient unexpended allowances or credits to cover the claim.

(c) Inter-company transfers and Inter-pollutant transfers. If a person requests an inter-company transfer and an inter-pollutant transfer simultaneously, the quantity (in kilograms) subtracted from the transferor's unexpended production or consumption allowances for the first class II controlled substance will be equal to 100.1 percent of the quantity (in kilograms) of allowances that are being converted and transferred.

(d) Permanent transfers. The procedures in paragraph (a) of this section apply to permanent inter-company transfers of baseline production allowances or baseline consumption allowances. A person receiving a permanent transfer of baseline production allowances or baseline consumption allowances (the transferee) for a specific class II controlled substance will be the person who has their baseline allowances adjusted in accordance with phaseout schedules in this subpart. No person may conduct permanent inter-pollutant transfers of baseline production allowances or baseline consumption allowances.

[68 FR 2848, Jan. 21, 2003, as amended at 78 FR 20028, Apr. 3, 2013]

§82.24   Recordkeeping and reporting requirements for class II controlled substances.

(a) Recordkeeping and reporting. Any person who produces, imports, exports, transforms, or destroys class II controlled substances must comply with the following recordkeeping and reporting requirements:

(1) Reports required by this section must be mailed to the Administrator within 30 days of the end of the applicable reporting period, unless otherwise specified.

(2) Revisions of reports that are required by this section must be mailed to the Administrator within 180 days of the end of the applicable reporting period, unless otherwise specified.

(3) Records and copies of reports required by this section must be retained for three years.

(4) Quantities of class II controlled substances must be stated in terms of kilograms in reports required by this section.

(5) Reports and records required by this section may be used for purposes of compliance determinations. These requirements are not intended as a limitation on the use of other evidence admissible under the Federal Rules of Evidence. Failure to provide the reports, petitions and records required by this section and to certify the accuracy of the information in the reports, petitions and records required by this section, will be considered a violation of this subpart. False statements made in reports, petitions and records will be considered violations of Section 113 of the Clean Air Act and under 18 U.S.C. 1001.

(b) Producers. Persons (“producers”) who produce class II controlled substances during a control period must comply with the following recordkeeping and reporting requirements:

(1) Reporting—Producers. For each quarter, each producer of a class II controlled substance must provide the Administrator with a report containing the following information:

(i) The quantity (in kilograms) of production of each class II controlled substance used in processes resulting in their transformation by the producer and the quantity (in kilograms) intended for transformation by a second party;

(ii) The quantity (in kilograms) of production of each class II controlled substance used in processes resulting in their destruction by the producer and the quantity (in kilograms) intended for destruction by a second party;

(iii) The expended allowances for each class II controlled substance;

(iv) The producer's total of expended and unexpended production allowances, consumption allowances, export production allowances, and Article 5 allowances at the end of that quarter;

(v) The quantity (in kilograms) of class II controlled substances sold or transferred during the quarter to a person other than the producer for use in processes resulting in their transformation or eventual destruction;

(vi) A list of the quantities and names of class II controlled substances, exported by the producer to a Party to the Protocol, that will be transformed or destroyed and therefore were not produced expending production or consumption allowances;

(vii) For transformation in the U.S. or by a person of another Party, one copy of a transformation verification from the transformer for a specific class II controlled substance and a list of additional quantities shipped to that same transformer for the quarter;

(viii) For destruction in the U.S. or by a person of another Party, one copy of a destruction verification as required in paragraph (e) of this section for a particular destroyer, destroying the same class II controlled substance, and a list of additional quantities shipped to that same destroyer for the quarter;

(ix) In cases where the producer produced class II controlled substances using export production allowances, a list of U.S. entities that purchased those class II controlled substances and exported them to a Party to the Protocol;

(x) In cases where the producer produced class II controlled substances using Article 5 allowances, a list of U.S. entities that purchased those class II controlled substances and exported them to Article 5 countries; and

(xi) A list of the HCFC 141b-exemption allowance holders from whom orders were received and the quantity (in kilograms) of HCFC-141b requested and produced.

(2) Recordkeeping—Producers. Every producer of a class II controlled substance during a control period must maintain the following records:

(i) Dated records of the quantity (in kilograms) of each class II controlled substance produced at each facility;

(ii) Dated records of the quantity (in kilograms) of class II controlled substances produced for use in processes that result in their transformation or for use in processes that result in their destruction;

(iii) Dated records of the quantity (in kilograms) of class II controlled substances sold for use in processes that result in their transformation or for use in processes that result in their destruction;

(iv) Dated records of the quantity (in kilograms) of class II controlled substances produced with export production allowances or Article 5 allowances;

(v) Copies of invoices or receipts documenting sale of class II controlled substances for use in processes that result in their transformation or for use in processes that result in their destruction;

(vi) Dated records of the quantity (in kilograms) of each class II controlled substance used at each facility as feedstocks or destroyed in the manufacture of a class II controlled substance or in the manufacture of any other substance, and any class II controlled substance introduced into the production process of the same class II controlled substance at each facility;

(vii) Dated records of the quantity (in kilograms) of raw materials and feedstock chemicals used at each facility for the production of class II controlled substances;

(viii) Dated records of the shipments of each class II controlled substance produced at each plant;

(ix) The quantity (in kilograms) of class II controlled substances, the date received, and names and addresses of the source of used materials containing class II controlled substances which are recycled or reclaimed at each plant;

(x) Records of the date, the class II controlled substance, and the estimated quantity of any spill or release of a class II controlled substance that equals or exceeds 100 pounds;

(xi) Transformation verification in the case of transformation, or the destruction verification in the case of destruction as required in paragraph (e) of this section showing that the purchaser or recipient of a class II controlled substance, in the U.S. or in another country that is a Party, certifies the intent to either transform or destroy the class II controlled substance, or sell the class II controlled substance for transformation or destruction in cases when allowances were not expended;

(xii) Written verifications from a U.S. purchaser that the class II controlled substance was exported to a Party in accordance with the requirements in this section, in cases where export production allowances were expended to produce the class II controlled substance;

(xiii) Written verifications from a U.S. purchaser that the class II controlled substance was exported to an Article 5 country in cases where Article 5 allowances were expended to produce the class II controlled substance;

(xiv) Written verifications from a U.S. purchaser that HCFC-141b was manufactured for the express purpose of meeting HCFC-141b exemption needs in accordance with information submitted under §82.16(h), in cases where HCFC-141b exemption allowances were expended to produce the HCFC-141b.

(3) For any person who fails to maintain the records required by this paragraph, or to submit the report required by this paragraph, the Administrator may assume that the person has produced at full capacity during the period for which records were not kept, for purposes of determining whether the person has violated the prohibitions at §82.15.

(c) Importers. Persons (“importers”) who import class II controlled substances during a control period must comply with the following recordkeeping and reporting requirements:

(1) Reporting—Importers. For each quarter, an importer of a class II controlled substance (including importers of used class II controlled substances) must submit to the Administrator a report containing the following information:

(i) Summaries of the records required in paragraphs (c)(2)(i) through (xvi) of this section for the previous quarter;

(ii) The total quantity (in kilograms) imported of each class II controlled substance for that quarter;

(iii) The commodity code for the class II controlled substances imported, which must be one of those listed in Appendix K to this subpart;

(iv) The quantity (in kilograms) of those class II controlled substances imported that are used class II controlled substances;

(v) The quantity (in kilograms) of class II controlled substances imported for that quarter and totaled by chemical for the control period to date;

(vi) For substances for which EPA has apportioned baseline production and consumption allowances, the importer's total sum of expended and unexpended consumption allowances by chemical as of the end of that quarter;

(vii) The quantity (in kilograms) of class II controlled substances imported for use in processes resulting in their transformation or destruction;

(viii) The quantity (in kilograms) of class II controlled substances sold or transferred during that quarter to each person for use in processes resulting in their transformation or eventual destruction; and

(ix) Transformation verifications showing that the purchaser or recipient of imported class II controlled substances intends to transform those substances or destruction verifications showing that the purchaser or recipient intends to destroy the class II controlled substances (as provided in paragraph (e) of this section).

(x) [Reserved]

(xi) A list of the HCFC 141b-exemption allowance holders from whom orders were received and the quantity (in kilograms) of HCFC-141b requested and imported.

(2) Recordkeeping—Importers. An importer of a class II controlled substance (including used class II controlled substances) must maintain the following records:

(i) The quantity (in kilograms) of each class II controlled substance imported, either alone or in mixtures, including the percentage of each mixture which consists of a class II controlled substance;

(ii) The quantity (in kilograms) of those class II controlled substances imported that are used and the information provided with the petition where a petition is required under paragraph (c)(3) of this section;

(iii) The quantity (in kilograms) of class II controlled substances other than transhipments or used substances imported for use in processes resulting in their transformation or destruction;

(iv) The quantity (in kilograms) of class II controlled substances other than transhipments or used substances imported and sold for use in processes that result in their destruction or transformation;

(v) The date on which the class II controlled substances were imported;

(vi) The port of entry through which the class II controlled substances passed;

(vii) The country from which the imported class II controlled substances were imported;

(viii) The commodity code for the class II controlled substances shipped, which must be one of those listed in Appendix K to this subpart;

(ix) The importer number for the shipment;

(x) A copy of the bill of lading for the import;

(xi) The invoice for the import;

(xii) The quantity (in kilograms) of imports of used class II controlled substances;

(xiii) The U.S. Customs entry form;

(xiv) Dated records documenting the sale or transfer of class II controlled substances for use in processes resulting in their transformation or destruction;

(xv) Copies of transformation verifications or destruction verifications indicating that the class II controlled substances will be transformed or destroyed (as provided in paragraph (e) of this section).

(xvi) Written verifications from a U.S. purchaser that HCFC-141b was imported for the express purpose of meeting HCFC-141b exemption needs in accordance with information submitted under §82.16(h), and that the quantity will not be resold, in cases where HCFC-141b exemption allowances were expended to import the HCFC-141b.

(3) Petition to import used class II controlled substances and transhipment-Importers. For each individual shipment over 5 pounds of a used class II controlled substance as defined in §82.3 for which EPA has apportioned baseline production and consumption allowances, an importer must submit directly to the Administrator, at least 40 working days before the shipment is to leave the foreign port of export, the following information in a petition:

(i) The name and quantity (in kilograms) of the used class II controlled substance to be imported;

(ii) The name and address of the importer, the importer ID number, the contact person, and the phone and fax numbers;

(iii) Name, address, contact person, phone number and fax number of all previous source facilities from which the used class II controlled substance was recovered;

(iv) A detailed description of the previous use of the class II controlled substance at each source facility and a best estimate of when the specific controlled substance was put into the equipment at each source facility, and, when possible, documents indicating the date the material was put into the equipment;

(v) A list of the name, make and model number of the equipment from which the material was recovered at each source facility;

(vi) Name, address, contact person, phone number and fax number of the exporter and of all persons to whom the material was transferred or sold after it was recovered from the source facility;

(vii) The U.S. port of entry for the import, the expected date of shipment and the vessel transporting the chemical. If at the time of submitting a petition the importer does not know the U.S. port of entry, the expected date of shipment and the vessel transporting the chemical, and the importer receives a non-objection notice for the individual shipment in the petition, the importer is required to notify the Administrator of this information prior to the actual U.S. Customs entry of the individual shipment;

(viii) A description of the intended use of the used class II controlled substance, and, when possible, the name, address, contact person, phone number and fax number of the ultimate purchaser in the United States;

(ix) The name, address, contact person, phone number and fax number of the U.S. reclamation facility, where applicable;

(x) If someone at the source facility recovered the class II controlled substance from the equipment, the name and phone and fax numbers of that person;

(xi) If the imported class II controlled substance was reclaimed in a foreign Party, the name, address, contact person, phone number and fax number of any or all foreign reclamation facility(ies) responsible for reclaiming the cited shipment;

(xii) An export license from the appropriate government agency in the country of export and, if recovered in another country, the export license from the appropriate government agency in that country;

(xiii) If the imported used class II controlled substance is intended to be sold as a refrigerant in the U.S., the name and address of the U.S. reclaimer who will bring the material to the standard required under subpart F of this part, if not already reclaimed to those specifications; and

(xiv) A certification of accuracy of the information submitted in the petition.

(4) Review of petition to import used class II controlled substances and transhipments—Importers. Starting on the first working day following receipt by the Administrator of a petition to import a used class II controlled substance, the Administrator will initiate a review of the information submitted under paragraph (c)(3) of this section and take action within 40 working days to issue either an objection-notice or a non-objection notice for the individual shipment to the person who submitted the petition to import the used class II controlled substance.

(i) The Administrator may issue an objection notice to a petition for the following reasons:

(A) If the Administrator determines that the information is insufficient, that is, if the petition lacks or appears to lack any of the information required under paragraph (c)(3) of this section;

(B) If the Administrator determines that any portion of the petition contains false or misleading information, or the Administrator has information from other U.S. or foreign government agencies indicating that the petition contains false or misleading information;

(C) If the transaction appears to be contrary to provisions of the Vienna Convention on Substances that Deplete the Ozone Layer, the Montreal Protocol and Decisions by the Parties, or the non-compliance procedures outlined and instituted by the Implementation Committee of the Montreal Protocol;

(D) If the appropriate government agency in the exporting country has not agreed to issue an export license for the cited individual shipment of used class II controlled substance;

(E) If reclamation capacity is installed or is being installed for that specific class II controlled substance in the country of recovery or country of export and the capacity is funded in full or in part through the Multilateral Fund.

(ii) Within ten (10) working days after receipt of the objection notice, the importer may re-petition the Administrator, only if the Administrator indicated “insufficient information” as the basis for the objection notice. If no appeal is taken by the tenth working day after the date on the objection notice, the objection shall become final. Only one re-petition will be accepted for any original petition received by EPA.

(iii) Any information contained in the re-petition which is inconsistent with the original petition must be identified and a description of the reason for the inconsistency must accompany the re-petition.

(iv) In cases where the Administrator does not object to the petition based on the criteria listed in paragraph (c)(4)(i) of this section, the Administrator will issue a non-objection notice.

(v) To pass the approved used class II controlled substances through U.S. Customs, the petition and the non-objection notice issued by EPA must accompany the shipment through U.S. Customs.

(vi) If for some reason, following EPA's issuance of a non-objection notice, new information is brought to EPA's attention which shows that the non-objection notice was issued based on false information, then EPA has the right to:

(A) Revoke the non-objection notice;

(B) Pursue all means to ensure that the class II controlled substance is not imported into the U.S.; and

(C) Take appropriate enforcement actions.

(vii) Once the Administrator issues a non-objection notice, the person receiving the non-objection notice is permitted to import the individual shipment of used class II controlled substance only within the same control period as the date stamped on the non-objection notice.

(viii) A person receiving a non-objection notice from the Administrator for a petition to import used class II controlled substances must maintain the following records:

(A) A copy of the petition;

(B) The EPA non-objection notice;

(C) The bill of lading for the import; and

(D) U.S. Customs entry documents for the import that must include one of the commodity codes from Appendix K to this subpart.

(5) Recordkeeping for transhipments—Importers. Any person who tranships a class II controlled substance must maintain records that indicate:

(i) That the class II controlled substance shipment originated in a foreign country;

(ii) That the class II controlled substance shipment is destined for another foreign country; and

(iii) That the class II controlled substance shipment will not enter interstate commerce within the U.S.

(d) Exporters. Persons (“exporters”) who export class II controlled substances during a control period must comply with the following reporting requirements:

(1) Reporting—Exporters. For any exports of class II controlled substances not reported under §82.20 (additional consumption allowances), or under paragraph (b)(2) of this section (reporting for producers of class II controlled substances), each exporter who exported a class II controlled substance must submit to the Administrator the following information within 30 days after the end of each quarter in which the unreported exports left the U.S.:

(i) The names and addresses of the exporter and the recipient of the exports;

(ii) The exporter's Employer Identification Number;

(iii) The type and quantity (in kilograms) of each class II controlled substance exported and what percentage, if any of the class II controlled substance is used;

(iv) The date on which, and the port from which, the class II controlled substances were exported from the U.S. or its territories;

(v) The country to which the class II controlled substances were exported;

(vi) The quantity (in kilograms) exported to each Article 5 country;

(vii) The commodity code for the class II controlled substances shipped, which must be one of those listed in Appendix K to this subpart;

(viii) For persons reporting transformation or destruction, the invoice or sales agreement containing language similar to the transformation verifications that the purchaser or recipient of imported class II controlled substances intends to transform those substances, or destruction verifications showing that the purchaser or recipient intends to destroy the class II controlled substances (as provided in paragraph (e) of this section).

(2) Reporting export production allowances—Exporters. In addition to the information required in paragraph (d)(1) of this section, any exporter using export production allowances must also provide the following to the Administrator:

(i) The Employer Identification Number on the Shipper's Export Declaration Form or Employer Identification Number of the shipping agent shown on the U.S. Customs Form 7525;

(ii) The exporting vessel on which the class II controlled substances were shipped; and

(iii) The quantity (in kilograms) exported to each Party.

(3) Reporting Article 5 allowances—Exporters. In addition to the information required in paragraph (d)(1) of this section, any exporter using Article 5 allowances must also provide the following to the Administrator:

(i) The Employer Identification Number on the Shipper's Export Declaration Form or Employer Identification Number of the shipping agent shown on the U.S. Customs Form 7525; and

(ii) The exporting vessel on which the class II controlled substances were shipped.

(4) Reporting used class II controlled substances—Exporters. Any exporter of used class II controlled substances must indicate on the bill of lading or invoice that the class II controlled substance is used, as defined in §82.3.

(e) Transformation and destruction. Any person who transforms or destroys class II controlled substances must comply with the following recordkeeping and reporting requirements:

(1) Recordkeeping—Transformation and destruction. Any person who transforms or destroys class II controlled substances produced or imported by another person must maintain the following:

(i) Copies of the invoices or receipts documenting the sale or transfer of the class II controlled substances to the person;

(ii) Records identifying the producer or importer of the class II controlled substances received by the person;

(iii) Dated records of inventories of class II controlled substances at each plant on the first day of each quarter;

(iv) Dated records of the quantity (in kilograms) of each class II controlled substance transformed or destroyed;

(v) In the case where class II controlled substances were purchased or transferred for transformation purposes, a copy of the person's transformation verification as provided under paragraph (e)(3)of this section.

(vi) Dated records of the names, commercial use, and quantities (in kilograms) of the resulting chemical(s) when the class II controlled substances are transformed; and

(vii) Dated records of shipments to purchasers of the resulting chemical(s) when the class II controlled substances are transformed.

(viii) In the case where class II controlled substances were purchased or transferred for destruction purposes, a copy of the person's destruction verification, as provided under paragraph (e)(5) of this section.

(2) Reporting—Transformation and destruction. Any person who transforms or destroys class II controlled substances and who has submitted a transformation verification ((paragraph (e)(3) of this section) or a destruction verification (paragraph (e)(5) of this section) to the producer or importer of the class II controlled substances, must report the following:

(i) The names and quantities (in kilograms) of the class II controlled substances transformed for each control period within 45 days of the end of such control period; and

(ii) The names and quantities (in kilograms) of the class II controlled substances destroyed for each control period within 45 days of the end of such control period.

(3) Reporting—Transformation. Any person who purchases class II controlled substances for purposes of transformation must provide the producer or importer with a transformation verification that the class II controlled substances are to be used in processes that result in their transformation.

(i) The transformation verification shall include the following:

(A) Identity and address of the person intending to transform the class II controlled substances;

(B) The quantity (in kilograms) of class II controlled substances intended for transformation;

(C) Identity of shipments by purchase order number(s), purchaser account number(s), by location(s), or other means of identification;

(D) Period of time over which the person intends to transform the class II controlled substances; and

(E) Signature of the verifying person.

(ii) [Reserved]

(4) Reporting—Destruction. Any person who destroys class II controlled substances shall provide EPA with a one-time report containing the following information:

(i) The destruction unit's destruction efficiency;

(ii) The methods used to record the volume destroyed;

(iii) The methods used to determine destruction efficiency;

(iv) The name of other relevant federal or state regulations that may apply to the destruction process;

(v) Any changes to the information in paragraphs (e)(4)(i), (ii), and (iii) of this section must be reflected in a revision to be submitted to EPA within 60 days of the change(s).

(5) Reporting—Destruction. Any person who purchases or receives and subsequently destroys class II controlled substances that were originally produced without expending allowances shall provide the producer or importer from whom it purchased or received the class II controlled substances with a verification that the class II controlled substances will be used in processes that result in their destruction.

(i) The destruction verification shall include the following:

(A) Identity and address of the person intending to destroy class II controlled substances;

(B) Indication of whether those class II controlled substances will be completely destroyed, as defined in §82.3, or less than completely destroyed, in which case the destruction efficiency at which such substances will be destroyed must be included;

(C) Period of time over which the person intends to destroy class II controlled substances; and

(D) Signature of the verifying person.

(ii) [Reserved]

(f) Heels-Recordkeeping and reporting. Any person who brings into the U.S. a rail car, tank truck, or ISO tank containing a heel, as defined in §82.3, of class II controlled substances, must take the following actions:

(1) Indicate on the bill of lading or invoice that the class II controlled substance in the container is a heel.

(2) Report within 30 days of the end of the control period the quantity (in kilograms) brought into the U.S. and certify:

(i) That the residual quantity (in kilograms) in each shipment is no more than 10 percent of the volume of the container;

(ii) That the residual quantity (in kilograms) in each shipment will either:

(A) Remain in the container and be included in a future shipment;

(B) Be recovered and transformed;

(C) Be recovered and destroyed; or

(D) Be recovered for a non-emissive use.

(3) Report on the final disposition of each shipment within 30 days of the end of the control period.

(g) HCFC 141b exemption allowances—Reporting and recordkeeping. (1) Any person allocated HCFC-141b exemption allowances who confers a quantity of the HCFC-141b exemption allowances to a producer or import and places an order for the production or import of HCFC-141b with a verification that the HCFC-141b will only be used for the exempted purpose and not be resold must submit semi-annual reports, due 30 days after the end of the second and fourth respectively, to the Administrator containing the following information:

(i) Total quantity (in kilograms) HCFC-141b received during the 6 month period; and

(ii) The identity of the supplier of HCFC-141b on a shipment-by-shipment basis during the 6 month period.

(2) Any person allocated HCFC-141b exemption allowances must keep records of letters to producers and importers conferring unexpended HCFC-141b exemption allowances for the specified control period in the notice, orders for the production or import of HCFC-141b under those letters and written verifications that the HCFC-141b was produced or imported for the express purpose of meeting HCFC-141b exemption needs in accordance with information submitted under §82.16(h), and that the quantity will not be resold.

[68 FR 2848, Jan. 21, 2003, as amended at 71 FR 41172, July 20, 2006]

Appendix A to Subpart A of Part 82—Class I Controlled Substances

Class 1 controlled substances ODP
A. Group I:
CFCl3-Trichlorofluoromethane (CFC-ll)1.0
CF2 Cl2-Dichlorofifluoromethane (CFC-12)1.0
C2 F3 Cl3-Trichlorotrifluoroethane (CFC-113)0.8
C2 F4 Cl2-Dichlorotetrafluoroethane (CFC-114)1.0
C2 F5 Cl-Monochloropentafluoroethane (CFC-115)0.6
All isomers of the above chemicals
B. Group II:
CF2 ClBr-Bromochlorodifluoromethane (Halon-1211)3.0
CF3 Br-Bromotrifluoromethane (Halon-1301)10.0
C2 F4 Br2-Dibromotetrafluoroethane (Halon-2402)6.0
All isomers of the above chemicals
C. Group III:
CF3 Cl-Chlorotrifluoromethane (CFC-13)1.0
C2 FCl5-(CFC-111)1.0
C2 F2 Cl4-(CFC-112)1.0
C3 FCl7-(CFC-211)1.0
C3 F2 Cl6-(CFC-212)1.0
C3 F3 Cl5-(CFC-213)1.0
C3 F4 Cl4-(CFC-214)1.0
C3 F5 Cl3-(CFC-215)1.0
C3 F6 Cl2-(CFC-216)1.0
C3 F7 Cl-(CFC-217)1.0
All isomers of the above chemicals
D. Group IV: CCl4-Carbon Tetrachloride1.1
E. Group V:
C2 H3 Cl3-1,1,1 Trichloroethane (Methyl chloroform)0.1
All isomers of the above chemical except 1,1,2-trichloroethane
F. Group VI: CH3 Br—Bromomethane (Methyl Bromide)0.7
G. Group VII:
CHFBR21.00
CHF2 Br (HBFC-2201)0.74
CH2 FBr0.73
C2 HFBr40.3-0.8
C2 HF2 Br30.5-1.8
C2 HF3 Br20.4-1.6
C2 HF4 Br0.7-1.2
C2 H2 FBr30.1-1.1
C2 H2 F2 Br20.2-1.5
C2 H2 F3 Br0.7-1.6
C2 H2 FBr20.1-1.7
C2 H3 F2 Br0.2-1.1
C2 H4 FBr0.07-0.1
C3 HFBr60.3-1.5
C3 HF2 Br50.2-1.9
C3 HF3 Br40.3-1.8
C3 HF4 Br30.5-2.2
C3 HF5 Br20.9-2.0
C3 HF6 Br0.7-3.3
C3 H2 FBR50.1-1.9
C3 H2 F2 BR40.2-2.1
C3 H2 F3 Br30.2-5.6
C3 H2 F4 Br20.3-7.5
C3 H2 F5 BR0.9-14
C3 H3 FBR40.08-1.9
C3 H3 F2 Br30.1-3.1
C3 H3 F3 Br20.1-2.5
C3 H3 F4 Br0.3-4.4
C3 H4 FBr30.03-0.3
C3 H4 F2 Br20.1-1.0
C3 H4 F3 Br0.07-0.8
C3 H5 FBr20.04-0.4
C3 H5 F2 Br0.07-0.8
C3 H6 FB0.02-0.7
H. Group VIII:
CH2BrCl (Chlorobromomethane      0.12

[60 FR 24986, May 10, 1995, as amended at 68 FR 42892, July 18, 2003]

Appendix B to Subpart A of Part 82—Class II Controlled Substancesa

Link to an amendment published at 79 FR 64288, Oct. 28, 2014.

Controlled SubstanceODP
1. Dichlorofluoromethane (HCFC-21)0.04
2. Monochlorodifluoromethane (HCFC-22)0.055
3. Monochlorofluoromethane (HCFC-31)0.02
4. Tetrachlorofluoroethane (HCFC-121)0.01-0.04
5. Trichlorodifluoroethane (HCFC-122)0.02-0.08
6. Dichlorotrifluoroethane (HCFC-123)0.02
7. Monochlorotetrafluoroethane (HCFC-124)0.022
8. Trichlorofluoroethane (HCFC-131)0.007-0.05
9. Dichlorodifluoroethane (HCFC-132)0.008-0.05
10. Monochlorotrifluoroethane (HCFC-133)0.02-0.06
11. Dichlorofluoroethane (HCFC-141b)0.11
12. Monochlorodifluoroethane (HCFC-142b)0.065
13. Chlorofluoroethane (HCFC-151)0.003-0.005
14. Hexachlorofluoropropane (HCFC-221)0.015-0.07
15. Pentachlorodifluoropropane (HCFC-222)0.01-0.09
16. Tetrachlorotrifluoropropane (HCFC-223)0.01-0.08
17. Trichlorotetrafluoropropane (HCFC-224)0.01-0.09
18. Dichloropentafluoropropane (HCFC-225ca)0.025
19. Dichloropentafluoropropane (HCFC-225cb)0.033
20. Monochlorohexafluoropropane (HCFC-226)0.02-0.10
21. Pentachlorofluoropropane (HCFC-231)0.05-0.09
22. Tetrachlorodifluoropropane (HCFC-232)0.008-0.10
23. Trichlorotrifluoropropane (HCFC-233)0.007-0.23
24. Dichlorotetrafluoropropane (HCFC-234)0.01-0.28
25. Monochloropentafluoropropane (HCFC-235)0.03-0.52
26. Tetrachlorofluoropropane (HCFC-241)0.004-0.09
27. Trichlorodifluoropropane (HCFC-242)0.005-0.13
28. Dichlorotrifluoropropane (HCFC-243)0.007-0.12
29. Monochlorotetrafluoropropane (HCFC-244)0.009-0.14
30. Trichlorofluoropropane (HCFC-251)0.001-0.01
31. Dichlorodifluoropropane (HCFC-252)0.005-0.04
32. Monochlorotrifluoropropane (HCFC-253)0.003-0.03
33. Dichlorofluoropropane (HCFC-261)0.002-0.02
34. Monochlorodifluoropropane (HCFC-262)0.002-0.02
35. Monochlorofluoropropane (HCFC-271)0.001-0.03

aAccording to Annex C of the Montreal Protocol, “Where a range of ODPs is indicated, the highest value in that range shall be used for the purposes of the Protocol. The ODPs listed as a single value have been determined from calculations based on laboratory measurements. Those listed as a range are based on estimates and are less certain. The range pertains to an isomeric group. The upper value is the estimate of the ODP of the isomer with the highest ODP, and the lower value is the estimate of the ODP of the isomer with the lowest ODP.”

[68 FR 2859, Jan. 21, 2003]

Appendix C to Subpart A of Part 82 [Reserved]

Appendix D to Subpart A of Part 82—Harmonized Tariff Schedule Description of Products That May Contain Controlled Substances in Appendix A, Class I, Groups I and II

This appendix is based on information provided by the Ozone Secretariat of the United Nations Ozone Environment Programme.** The Appendix lists available U.S. harmonized tariff schedule codes identifying headings and subheadings for Annex D products that may contain controlled substances.

**“A Note Regarding the Harmonized System Code Numbers for the Products Listed in Annex D.” Adopted by Decision IV/15 paragraph 3, of the Fourth Meeting of the Parties in Copenhagen, 23-25 November, 1992.

The Harmonized Tariff Schedule of the United States uses an enumeration system to identify products imported and exported to and from the U.S. This system relies on a four digit heading, a four digit subheading and additional two digit statistical suffix to characterize products. The United States uses the suffix for its own statistical records and analyses. This Appendix lists only headings and subheadings.

While some can be readily associated with harmonized system codes, many products cannot be tied to HS classifications unless their exact composition and the presentation are known. It should be noted that the specified HS classifications represent the most likely headings and subheadings which may contain substances controlled by the Montreal Protocol. The codes given should only be used as a starting point; further verfication is needed to ascertain whether or not the products actually contain controlled substances.

Category 1. Automobile and Truck Air Conditioning Units (whether incorporated in vehicles or not)

There are no separate code numbers for air conditioning units specially used in automobiles and trucks. Although a code has been proposed for car air conditioners, it is not yet officially listed in the Harmonized Tariff Schedule (see category 2). The following codes apply to the vehicles potentially containing air conditioning units.

Heading/Subheading Article Description
8701.(10, 20, 30, 90)***Tractors.
8702Public-transport type passenger motor vehicles.
8702.10With compression-ignition internal-combustion piston engine (diesel or semi-diesel).
8702.90Other.
8703Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars.
8703.10Vehicles specially designed for traveling on snow; golf carts and similar vehicles; includes subheading 10.10 and 10.50.
8703.(21, 22, 23, 24)Other vehicles, with spark-ignition internal combustion reciprocating engines.
8703.(31, 32, 33, 90)Other vehicles, with compression-ignition internal combustion piston engine (diesel or semi-diesel).
8704Motor vehicles for the transport of goods.
8704.10.(10, 50)Dumpers designed for off-highway use.
8704.(21, 22, 23)Other, with compression-ignition internal combustion piston engine (diesel or semi-diesel).
8704.(31, 32, 90)Other, with compression-ignition internal combustion piston engine.
8705Special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, wreckers, mobile cranes, fire fighting vehicles, concrete mixers, road sweepers, spraying vehicles, mobile workshops, mobile radiological units).
8705.10Crane lorries.
8705.20Mobile drilling derricks.
8705.30Fire fighting vehicles.
8705.90Other.

***At this time vehicle air conditioning units are considered components of vehicles or are classified under the general category for air conditioning and refrigeration equipment. Vehicles containing air conditioners are therefore considered products containing controlled substances.

Category 2. Domestic and Commercial Refrigeration and Air Conditioning/Heat Pump Equipment

Domestic and commercial air conditioning and refrigeration equipment fall primarily under headings 8415 and 8418.

Heading/Subheading Article Description
8415Air conditioning machines, comprising a motor-driven fan and elements for changing the temperature and humidity, including those machines in which the humidity cannot be separately regulated.
8415.20Proposed code for air conditioning of a kind used for persons, in motor vehicles.
8415.10.00A/C window or wall types, self-contained.
8415.81.00Other, except parts, incorporating a refrigerating unit and a valve for reversal of the cooling/heat cycle.
8415.82.00Other, incorporating a refrigerating unit—
   Self-contained machines and remote condenser type air conditioners (not for year-round use).
   Year-round units (for heating and cooling).
   Air Conditioning evaporator coils.
   Dehumidifiers.
   Other air conditioning machines incorporating a refrigerating unit.
8415.83Automotive air conditioners.
8418Refrigerators, freezers and other refrigerating or freezing equipment, electric or other; heat pumps, other than air conditioning machines of heading 8415; parts thereof.
8418.10.00Combined refrigerator-freezers, fitted with separate external doors.
8418.21.00Refrigerators, household type, Compression type.
8418.22.00Absorption type, electrical.
8418.29.00Other.
8418.30.00Freezers of the chest type.
8418.40Freezers of the upright type.
8418.50.0040Other refrigerating or freezing chests, cabinets, display counters, showcases and similar refrigerating or freezing furniture.
8418.61.00Other refrigerating or freezing equipment; heat pumps.
8418.69Other—
   Icemaking machines.
   Drinking water coolers, self-contained.
   Soda fountain and beer dispensing equipment.
   Centrifugal liquid chilling refrigerating units.
   Absorption liquid chilling units.
   Reciprocating liquid chilling units.
   Other refrigerating or freezing equipment (household or other).
8479.89.10Dehumidifiers (other than those under 8415 or 8424 classified as “machines and mechanical appliances having individual functions, not specified or included elsewhere”).

Category 3. Aerosol Products

An array of different products use controlled substances as aerosols and in aerosol applications. Not all aerosol applications use controlled substances, however. The codes given below represent the most likely classifications for products containing controlled substances. The product codes listed include****:

****Other categories of products that may contain controlled substances are listed below. EPA is currently working to match them with appropriate codes. They include: coatings and electronic equipment (e.g., electrical motors), coatings or cleaning fluids for aircraft maintenance, mold release agents (e.g. for production of plastic or elastomeric materials), water and oil repellant (potentially under HS 3402), spray undercoats (potentially under “paints and varnishes”), spot removers, brake cleaners, safety sprays (e.g., mace cans), animal repellant, noise horns (e.g., for use on boats), weld inspection developers, freezants, gum removers, intruder alarms, tire inflators, dusters (for electronic and non-electronic applications), spray shoe polish, and suede protectors.

  varnishes

  perfumes

  preparations for use on hair

  preparations for oral and dental hygiene

  shaving preparations

  personal deodorants, bath preparations

  prepared room deodorizers

  soaps

  lubricants

  polishes and creams

  explosives

  insecticides, fungicides, herbicides, disinfectants

  arms and ammunition

  household products such as footwear or leather polishes

  other miscellaneous products

Heading/Subheading Article Description
3208Paints and varnishes***** (including enamels and lacquers) based on synthetic polymers of chemically modified natural polymers, dispersed or dissolved in a non-aqueous medium.
3208.10Based on polyesters.
3208.20Based on acrylic or vinyl polymers.
3208.90Other.
3209Paints and varnishes (including enamels and lacquers) based on synthetic polymers or chemically modified natural polymers, dispersed or dissolved in an aqueous medium.
3209.10Based on acrylic or vinyl polymers.
3209.90Other.
3210.00Other paints and varnishes (including enamels, lacquers and distempers) and prepared water pigments of a kind used for finishing leather.
3212.90Dyes and other coloring matter put up in forms or packings for retail sale.
3303.00Perfumes and toilet waters.
3304.30Manicure or pedicure preparations.
3305.10Shampoos.
3305.20Preparations for permanent waving or straightening.
3305.30Hair lacquers.
3305.90Other hair preparations.
3306.10Dentrifices.
3306.90Other dental (this may include breath sprays).
3307.10Pre-shave, shaving or after-shave preparations.
3307.20Personal deodorants and antiperspirants.
3307.30Perfumed bath salts and other bath preparations.
3307.49Other (this may include preparations for perfuming or deodorizing rooms, including odoriferous preparations used during religious rites, whether or not perfumed or having disinfectant properties).
3307.90Other (this may include depilatory products and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included)
3403Lubricating preparations (including cutting-oil preparations, bolt or nut release preparations, anti-rust or anti-corrosion preparations and mould release preparations, based on lubricants), and preparations of a kind used for the oil or grease treatment of textile materials, leather, fur skins or other materials, but excluding preparations containing, as basic constituents, 70 percent or more by weight of petroleum oils or of oils obtained from bituminous minerals.
3402Organic surface-active agents (other than soap); surface-active preparations, washing preparations and cleaning operations, whether or not containing soap, other than those of 3401.
3402.20Preparations put up for retail sale.
3402.19Other preparations containing petroleum oils or oils obtained from bituminous minerals.
3403Lubricating preparations consisting of mixtures containing silicone greases or oils, as the case may be.
2710.00Preparations not elsewhere specified or included, containing by weight 70 percent or more of petroleum oils or of oils obtained from bituminous minerals, these oils being the basic constituents of the preparations.
3403.11Lubricants containing petroleum oils or oils obtained from bituminous minerals used for preparations from the treatment of textile materials, leather, fur skins or other materials.
3403.19Other preparations containing petroleum oils or oils obtained from bituminous minerals.
3405Polishes and creams, for footwear, furniture, floors, coachwork, glass or metal, scouring pastes and powders and similar preparations excluding waxes of heading 3404.
3405.10Polishes and creams for footwear or leather.
3405.20Polishes for wooden furniture, floors or other woodwork.
36Explosives.
3808Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulphur-treated bands, wicks and candles, and fly papers).
3808.10Insecticides.
3808.20Fungicides.
3808.30Herbicides, anti-sprouting products and plant growth regulators.
3808.40Disinfectants.
3808.90Other insecticides, fungicides.
3809.10Finishing agents, dye carriers to accelerate the dyeing or fixing of dye-stuffs and other products and preparations (for example, dressings and mordants) of a kind used in the textile, paper, leather or like industries, not elsewhere specified or included, with a basis of amylaceous substances.
3814Organic composite solvents and thinners (not elsewhere specified or included) and the prepared paint or varnish removers.
3910Silicones in primary forms.
9304Other arms (for example, spring, air or gas guns and pistols, truncheons), excluding those of heading No. 93.07. Thus, aerosol spray cans containing tear gas may be classified under this subheading.
0404.90Products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included.
1517.90Edible mixtures or preparations of animal or vegetable fats or oils or of fractions of different fats or oils of this chapter, other than edible fats or oils or their fractions of heading No. 15.16.
2106.90Food preparations not elsewhere specified or included.

*****Although paints do not generally use contain controlled substances, some varnishes use CFC 113 and 1,1,1,trichlorethane as solvents.

Category 4. Portable Fire Extinguishers

Heading/Subheading Article Description
8424Mechanical appliances (whether or not hand operated) for projecting, dispersing, or spraying liquids or powders; fire extinguishers whether or not charged, spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines.
8424.10Fire extinguishers, whether or not charged.

Category 5. Insulation Boards, Panels and Pipe Covers

These goods have to be classified according to their composition and presentation. For example, if the insulation materials are made of polyurethane, polystyrene, polyolefin and phenolic plastics, then they may be classified Chapter 39, for “Plastics and articles thereof”. The exact description of the products at issue is necessary before a classification can be given.******

******This category may include insulating board for building panels and windows and doors. It also includes rigid appliance insulation for pipes, tanks, trucks, trailers, containers, train cars & ships, refrigerators, freezers, beverage vending machines, bulk beverage dispensers, water coolers and heaters and ice machines.

Heading/Subheading Article Description
3917.21 to 3917.39Tubes, pipes and hoses of plastics.
3920.10 to 3920.99Plates, sheets, film, foil and strip made of plastics, non-cellular and not reinforced, laminated, supported or similarly combined with other materials.
3921.11 to 3921.90Other plates, sheets, film, foil and strip, made of plastics.
3925.90Builders' ware made of plastics, not elsewhere specified or included.
3926.90Articles made of plastics, not elsewhere specified or included.

Category 6. Pre-Polymers

According to the Explanatory Notes to the Harmonized Commodity Description and Coding System, “prepolymers are products which are characterized by some repetition of monomer units although they may contain unreacted monomers. Prepolymers are not normally used as such but are intended to be transformed into higher molecular weight polymers by further polymerization. Therefore the term does not cover finished products, such as di-isobutylenes or mixed polyethylene glycols with very low molecular weight. Examples are epoxides based with epichlorohydrin, and polymeric isocyanates.”

Heading/Subheading Article Description
3901Pre-polymers based on ethylene (in primary forms).
3902Pre-polymers based on propylene or other olefins (in primary forms).
3903, 3907, 3909Pre-polymers based on styrene (in primary forms), epoxide and phenols.

Appendix E to Subpart A OF Part 82—Article 5 Parties

Parties operating under Article 5 of the Montreal Protocol as of March 26, 2014 are listed below. An updated list can be located at: http://ozone.unep.org/new_site/en/parties_under_article5_para1.php.

Afghanistan, Albania, Algeria, Angola, Antigua & Barbuda, Argentina, Armenia, Bahamas, Bahrain, Bangladesh, Barbados, Belize, Benin, Bhutan, Bolivia (Plurinational State of), Bosnia and Herzegovina, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cambodia, Cameroon, Cape Verde, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Congo (Democratic Republic of), Cook Islands, Cost Rica, Côte d'Ivoire, Cuba, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Eritrea, Ethiopia, Fiji, Gabon, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Guinea Bissau, Guyana, Haiti, Honduras, India, Indonesia, Iran (Islamic Republic of), Iraq, Jamaica, Jordan, Kenya, Kiribati, Korea (Democratic People's Republic of), Korea (Republic of), Kuwait, Kyrgyzstan, Lao (People's Democratic Republic), Lebanon, Lesotho, Liberia, Libya, Madagascar, Malawi, Malaysia, Maldives, Mali, Marshall Islands Mauritania, Mauritius, Mexico, Micronesia (Federal States of), Moldova (Republic of), Mongolia, Montenegro, Morocco, Mozambique, Myanmar, Namibia, Nauru, Nepal, Nicaragua, Niger, Nigeria, Niue, Oman, Pakistan, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Qatar, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent & the Grenadines, Samoa, Sao Tome and Principe, Saudi Arabia, Senegal, Serbia, Seychelles, Sierra Leone, Singapore, Solomon Islands, Somalia, South Africa, South Sudan*, Sri Lanka, Sudan, Suriname, Swaziland, Syrian Arab Republic, Tanzania (United Republic of), Thailand, The Former Yugoslav Republic of Macedonia, Timor-Leste, Togo, Tonga, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Tuvalu, Uganda, United Arab Emirates, Uruguay, Vanuatu, Venezuela (Bolivarian Republic of), Viet Nam, Yemen, Zambia, Zimbabwe.

*temporarily categorized as Article 5 pending submission of ODS consumption data

[79 FR 16687, Mar. 26, 2014]

Appendix F to Subpart A of Part 82—Listing of Ozone-Depleting Chemicals

Controlled substance ODP AT L CLP BLP
A. Class I:
1. Group I:
CFCl3-Trichlorofluoromethane (CFC-11)1.060.01.00.00
CF2 Cl2-Dichlorodifluoromethane (CFC-12)1.0120.01.50.00
C2 F3 Cl3-Trichlorotrifluoroethane (CFC-113)0.890.01.110.00
C2 F4 Cl2-Dichlorotetrafluoroethane (CFC-114)1.0200.001.80.00
C2 F5 Cl-Monochloropentafluoroethane (CFC-115)0.6400.02.00.00
All isomers of the above chemicals[Reserved]
2. Group II:
CF2 ClBr-Bromochlorodifluoromethane (Halon-1211)3.0120.060.13
   −18−.08−.03
CF3 Br-Bromotrifluoromethane (Halon-1301)10.0720.001.00
   −107
C2 F4 Br2-Dibromotetrafluoroethane (Halon-2402)6.0230.000.30
   −28−.37
All isomers of the above chemicals[Reserved]
3. Group III:
CF3 Cl-Chlorotrifluoromethane (CFC-13)1.01200.880.00
   −250−1.83
C2 FCl5- (CFC-111)1.0601.040.00
   −90−1.56
C2 F2 Cl4- (CFC-112)1.0600.900.00
   −90−1.35
C3 FCl7- (CFC-211)1.01001.760.00
   −500−8.81
C3 F2 Cl6- (CFC-212)1.01001.600.00
   −500−7.98
C3 F3 Cl5- (CFC-213)1.01001.410.00
   −500−7.06
C3 F4 Cl4- (CFC-214)1.01001.200.00
   −500−6.01
C3 F5 Cl3 -(CFC-215)1.01000.960.00
   −500−4.82
C3 F6 Cl2- (CFC-216)1.01000.690.00
   −500−3.45
C3 F7 Cl- (CFC-217)1.01000.370.00
   −500−1.87
All isomers of the above chemicals[Reserved]
4. Group IV:
CCl4 -Carbon Tetrachloride1.150.01.00.00
5. Group V:
C2 H3 Cl3-1,1,1 Trichloroethane (Methyl chloroform)0.16.30.110.00
All isomers of the above chemical except 1,1,2-trichloroethane[Reserved]
6. Group VI:
CH3Br-Bromomethane (Methyl Bromide)0.7[Reserved]
7. Group VII:
CHFBr2-1.00[Reserved]
CHF2Br-(HBFC-22B1)0.74[Reserved]
CH2FBr0.73[Reserved]
C2HFBr40.3-0.8[Reserved]
C2HF2Br30.5-1.8[Reserved]
C2HF3Br20.4-16[Reserved]
C2HF4Br0.7-1.2[Reserved]
C2H2FBr30.1-1.1[Reserved]
C2H2F2Br20.2-1.5[Reserved]
C2H2F3Br0.7-1.6[Reserved]
C2H3FBr20.1-1.7[Reserved]
C2H3F2Br0.2-1.1[Reserved]
C2H4FBr0.07-0.1[Reserved]
C3HFBr60.3-1.5[Reserved]
C3HF2Br50.2-1.9[Reserved]
C3HF3Br40.3-1.8[Reserved]
C3HF4Br30.5-2.2[Reserved]
C3HF5Br20.9-2.0[Reserved]
C3HF6Br0.7-3.3[Reserved]
C3H2FBr50.1-1.9[Reserved]
C3H2F2Br40.2-2.1[Reserved]
C3H2F3Br30.2-5.6[Reserved]
C3H2F4Br20.3-7.5[Reserved]
C3H2F5Br0.9-1.4[Reserved]
C3H3FBR40.08-1.9[Reserved]
C3H3F2Br30.1-3.1[Reserved]
C3H3F3Br20.1-2.5[Reserved]
C3H3F4Br0.3-4.4[Reserved]
C3H4FBr30.03-0.3[Reserved]
C3H4F2Br20.1-1.0[Reserved]
C3H4F3Br0.07-0.8[Reserved]
C3H5FBr20.04-0.4[Reserved]
C3H5F2Br0.07-0.8[Reserved]
C3H6FB0.02-0.7[Reserved]
8. Group VIII:
CH2BrCl (Chlorobromomethane)0.12[Reserved]
B. Class II:
CHFCl2-Dichlorofluoromethane (HCFC-21)[Reserved]2.10.030.00
CHF2 Cl-Chlorodifluoromethane (HCFC-22)0.0515.30.140.00
CH2 FCl-Chlorofluoromethane (HCFC-31)[Reserved]1.440.020.00
C2 HFCl4- (HCFC-121)[Reserved]0.60.010.00
C2 HF2 Cl3- (HCFC-122)[Reserved]1.40.020.00
C2 HF3 Cl2- (HCFC-123)0.021.60.0160.00
C2 HF4 Cl- (HCFC-124)0.026.60.040.00
C2 H2 FCl3- (HCFC-131)[Reserved]4.00.060.00
C2 H2 F2 Cl2- (HCFC-132b)[Reserved]4.20.050.00
C2 H2 F3 Cl- (HCFC-133a)[Reserved]4.80.030.00
C2 H3 FCl2- (HCFC-141b)0.127.80.100.00
C2 H3 F2 Cl- (HCFC-142b)0.0619.10.140.00
C3 HFCl6- (HCFC-221)[Reserved]0.00
C3 HF2 Cl5- (HCFC-222)[Reserved]0.00
C3 HF3 Cl4- (HCFC-223)[Reserved]0.00
C3 HF4 Cl3- (HCFC-224)[Reserved]0.00
C3 HF5 Cl2- (HCFC-225ca)[Reserved]1.50.010.00
   −1.7
(HCFC-225cb)[Reserved]5.10.040.00
C3 HF6 Cl- (HCFC-226)[Reserved]0.00
C3 H2 FCl5- (HCFC-231)[Reserved]0.00
C3 H2 F24- (HCFC-232)[Reserved]0.00
C3 H2 F3 Cl3- (HCFC-233)[Reserved]0.00
C3 H2 F4 Cl2- (HCFC-234)[Reserved]0.00
C3 H2 F5 Cl- (HCFC-235)[Reserved]0.00
C3 H3 FCl4- (HCFC-241)[Reserved]0.00
C3 H3 F2 Cl3- (HCFC-242)[Reserved]0.00
C3 H3 F3 Cl2- (HCFC-243)[Reserved]0.00
C3 H3 F4 Cl- (HCFC-244)[Reserved]0.00
C3 H4 FCl3- (HCFC-251)[Reserved]0.00
C3 H4 F2 Cl2- (HCFC-252)[Reserved]0.00
C3 H4 F3 Cl- (HCFC-253)[Reserved]0.00
C3 H5 FCl2- (HCFC-261)[Reserved]0.00
C2 H5 F2 Cl- (HCFC-262)[Reserved]0.00
C3 H6 FCl- (HCFC-271)[Reserved]0.00
All isomers of the above chemicals[Reserved]

[60 FR 24986, May 10, 1995, as amended at 68 FR 42894, July 18, 2003]

Appendix G to Subpart A of Part 82—UNEP Recommendations for Conditions Applied to Exemption for Essential Laboratory and Analytical Uses

1. Essential laboratory and analytical uses are identified at this time to include equipment calibration; use as extraction solvents, diluents, or carriers for chemical analysis; biochemical research; inert solvents for chemical reactions, as a carrier or laboratory chemical and other critical analytical and laboratory purposes. Pursuant to Decision XI/15 of the Parties to the Montreal Protocol, effective January 1, 2002 the following uses of class I controlled substances are not considered essential under the global laboratory exemption:

a. Testing of oil and grease and total petroleum hydrocarbons in water;

b. Testing of tar in road-paving materials; and

c. Forensic finger printing.

Production for essential laboratory and analytical purposes is authorized provided that these laboratory and analytical chemicals shall contain only controlled substances manufactured to the following purities:

CTC (reagent grade)—99.5

1,1,1,-trichloroethane—99.5

CFC-11—99.5

CFC-13—99.5

CFC-12—99.5

CFC-113—99.5

CFC-114—99.5

Other w/ Boiling P>20 degrees C—99.5

Other w/ Boiling P<20 degrees C—99.0

d. Testing of organic matter in coal.

2. These pure, controlled substances can be subsequently mixed by manufacturers, agents or distributors with other chemicals controlled or not controlled by the Montreal Protocol as is customary for laboratory and analytical uses.

3. These high purity substances and mixtures containing controlled substances shall be supplied only in re-closable containers or high pressure cylinders smaller than three litres or in 10 millilitre or smaller glass ampoules, marked clearly as substances that deplete the ozone layer, restricted to laboratory use and analytical purposes and specifying that used or surplus substances should be collected and recycled, if practical. The material should be destroyed if recycling is not practical.

4. Parties shall annually report for each controlled substance produced: the purity; the quantity; the application, specific test standard, or procedure requiring its uses; and the status of efforts to eliminate its use in each application. Parties shall also submit copies of published instructions, standards, specifications, and regulations requiring the use of the controlled substance.

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.

[60 FR 24986, May 10, 1995, as amended at 67 FR 6362, Feb. 11, 2002; 72 FR 73269, Dec. 27, 2007]

Appendix H to Subpart A of Part 82—Clean Air Act Amendments of 1990 Phaseout Schedule for Production of Ozone-Depleting Substances

Date Carbon tetrachloride (percent) Methyl chloroform (percent) Other class substances (percent)
1994708565
1995157050
1996155040
1997155015
1998155015
1999155015
200020
200120

Appendix I to Subpart A of Part 82—Global Warming Potentials (Mass Basis), Referenced to the Absolute GWP for the Adopted Carbon Cycle Model CO2 Decay Response and Future CO2 Atmospheric Concentrations Held Constant at Current Levels. (Only Direct Effects Are Considered.)

Species (chemical) Chemical formula Global warming potential (time horizon)
20 years 100 years 500 years
CFC-11CFCl3500040001400
CFC-12CF2 Cl2790085004200
CFC-13CClF381001170013600
CFC-113C2 F3 Cl3500050002300
CFC-114C2 F4 Cl2690093008300
CFC-115C2 F5 Cl6200930013000
H-1301CF3 Br620056002200
Carbon TetCCl420001400500
Methyl ChlCH3 CCl336011035
HCFC-22CF2 HCl43001700520
HCFC-141bC2 FH3 Cl21800630200
HCFC-142bC2 F2 H3 Cl42002000630
HCFC-123C2 F3 HCl23009329
HCFC-124C2 F4 HCl1500480150
HCFC-225caC3 F5 HCl255017052
HCFC-225cbC3 F5 HCl21700530170

AUnited Nations Environment Programme (UNEP), February 1995, Scientific Assessment of Ozone Depletion: 1994, Chapter 13, “Ozone Depleting Potentials, Global Warming Potentials and Future Chlorine/Bromine Loading,” and do not reflect review of scientific documents published after that date.

[61 FR 1285, Jan. 19, 1996]

Appendix J to Subpart A of Part 82—Parties to the Montreal Protocol Classied Under Article 5(1) That Have Banned the Import of Controlled Products That Rely on Class I Controlled Substances for Their Continuing Functioning [Reserved]

Appendix K To Subpart A Of Part 82—Commodity Codes From the Harmonized Tariff Schedule for Controlled Substances and Used Controlled Substances

Description of commodity or chemicalCommodity code from harmonized tariff schedule
Class II:
HCFC-22 (Chlorodifluoromethane)2903.71.0000
HCFC-123 (Dichlorotrifluoroethane)2903.79.9020
HCFC-124 (Monochlorotetrafluoroethane)2903.79.9020
HCFC-141b (Dichlorofluoroethane)2903.73.0000
HCFC-142b (Chlorodifluoroethane)2903.74.0000
HCFC-225ca, HCFC-225cb (Dichloropentafluoropropanes)2903.75.0000
HCFC-21, HCFC-31, HCFC-133, and other HCFCs2903.79.9070
HCFC Mixtures (R-401A, R-402A, etc.)3824.74.0000
Class I:
CFC-11 (Trichlorofluoromethane)2903.77.0010
CFC-12 (Dichlorodifluoromethane)2903.77.0050
CFC-113 (Trichlorotrifluoroethane)2903.77.0020
CFC-114 (Dichlorotetrafluoroethane)2903.77.0030
CFC-115 (Monochloropentafluoroethane)2903.77.0040
CFC-13, CFC-111, CFC-112, CFC-211, CFC-212, CFC-213, CFC-214, CFC-215, CFC-216, CFC-217, and other CFCs2903.77.0080
CFC Mixtures (R-500, R-502, etc.)3824.71.0100
Carbon Tetrachloride2903.14.0000
Halon 1301 (Bromotrifluoromethane)2903.76.0010
Halon, other2903.76.0050
Methyl Bromide2903.39.1520
Methyl Chloroform2903.19.6010

[79 FR 16687, Mar. 26, 2014]

Appendix L to Subpart A of Part 82—Approved Critical Uses and Limiting Critical Conditions for Those Uses for the 2014 and 2015 Control Periods

Column AColumn BColumn C
Approved Critical UsesApproved Critical User, Location of Use, and Control PeriodLimiting Critical Conditions that exist, or that the approved critical user reasonably expects could arise without methyl bromide fumigation.
PRE-PLANT USES:
Strawberry FruitCalifornia growers. Control periods 2014 and 2015Moderate to severe black root rot or crown rot.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-dichloropropene.
POST-HARVEST USES:
Food Processing(a) Rice millers in the U.S. who are members of the USA Rice Millers' Association. Control period 2014Moderate to severe beetle, weevil, or moth infestation.
Presence of sensitive electronic equipment subject to corrosion.
   (b) Pet food manufacturing facilities in the U.S. who are members of the Pet Food Institute. Control period 2014Moderate to severe beetle, moth, or cockroach infestation.
Presence of sensitive electronic equipment subject to corrosion.
   (c) Members of the North American Millers' Association in the U.S. Control period 2014Moderate to severe beetle infestation.
Presence of sensitive electronic equipment subject to corrosion.
CommoditiesCalifornia entities storing walnuts, dried plums, figs, raisins, and dates (in Riverside county only) in California. Control period 2014Rapid fumigation required to meet a critical market window, such as during the holiday season.
Dry Cured Pork ProductsMembers of the National Country Ham Association and the American Association of Meat Processors, Nahunta Pork Center (North Carolina), and Gwaltney of Smithfield Inc. Control periods 2014 and 2015Red legged ham beetle infestation.
Cheese/ham skipper infestation.
Dermestid beetle infestation.
Ham mite infestation.

[79 FR 44312, July 31, 2014]



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