[Federal Register: July 20, 2006 (Volume 71, Number 139)]
[Rules and Regulations]
[Page 41163-41172]
[DOCID:fr20jy06-13]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2003-0130-FRL-8199-9]
RIN 2060-AL90

Protection of Stratospheric Ozone: Minor Amendments to the
Regulations Implementing the Allowance System for Controlling HCFC
Production, Import and Export

AGENCY: Environmental Protection Agency [EPA].

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to amend the current
regulations governing the production and trade of certain ozone-
depleting substances to address issues concerning the export of
previously imported material, heels, the exemption allowance petition
process for HCFC-141b for military and space vehicle applications, and
the definition for ``importer.'' We are making these minor adjustments
to our regulations in response to requests from the regulated
community, to ensure equitable treatment of stakeholders, and to reduce
burden where the integrity of the requirements can still be
sufficiently maintained.

DATES: This direct final rule is effective on October 18, 2006 without
further notice unless EPA receives adverse comment by August 21, 2006,
or by September 5, 2006 if a hearing is requested. If we receive
adverse comment we will publish a timely withdrawal in the Federal
Register informing the public that this rule, or an amendment paragraph
or section of this rule, will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2003-0130, by one of the following methods:
     http://www.regulations.gov: Follow the on-line instructions for

submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.

     Mail: Docket , Air and Radiation Docket and
Information Center, U.S. Environmental Protection Agency, Mail code:
6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: Docket EPA-HQ-OAR-2003-0130, Air
and Radiation Docket at EPA West, 1301 Constitution Avenue, NW., Room
B108, Mail Code 6102T, Washington, DC 20460. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2003-0130. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.

The http://www.regulations.gov Web site is an ``anonymous access'' system,

which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov

your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: Cindy Axinn Newberg, EPA,
Stratospheric Protection Division, Office of Atmospheric Programs,
Office of Air and Radiation (6205J), 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: (1) Under the Montreal Protocol on
Substances that Deplete the Ozone Layer (Protocol), as amended, the
U.S. and other industrialized countries that are Parties to the
Protocol have agreed to limit production and consumption of
hydrochlorofluorocarbons (HCFCs) and to phase out consumption in a
step-wise fashion over time, culminating in a complete phaseout in
2030. Title VI of the Clean Air Act Amendments of 1990 (CAAA)
authorizes EPA to promulgate regulations to manage the consumption and
production of HCFCs until the total phaseout in 2030. EPA promulgated
final regulations establishing an allowance tracking system for HCFCs
on January 21, 2003 (68 FR 2820). These regulations were amended on
June 17, 2004 (69 FR 34024) to ensure U.S. compliance with the Montreal
Protocol. This action amends aspects of the regulations that relate to
exports of previously imported material, the import of HCFC heels, the
HCFC-141b exemption allowance petition process, the definition of
``importer,'' and other aspects of the regulations.
    EPA is publishing this rule without prior proposal because we view
this as a non-controversial action and anticipate no adverse comment.
However, in the ``Proposed Rules'' section of this Federal Register, we
are publishing a separate document that will serve as the proposal to
amend the current regulations if we receive adverse comment. This
direct final rule will be effective on October 18, 2006 without further
notice unless we receive adverse comment by August 21, 2006, or by
September 5, 2006 if a hearing is requested. If we receive adverse
comment, we will publish a timely withdrawal in the Federal Register
informing the public that the rule, or particular provisions of the
rule, will not take effect. We would address public comments in any
subsequent final rule based on the proposed rule. We will not institute
a second comment period on this action. Any parties interested in
commenting must do so at this time.

(2) Abbreviations and Acronyms Used in This Document

Act--Clean Air Act Amendments of 1990
Article 2 countries--industrialized countries that are not parties
operating under paragraph 1 of Article 5 of the Montreal Protocol
Article 5 countries--developing countries that satisfy certain
conditions laid out in paragraph 1 of Article 5 of the Montreal
Protocol
CAAA--Clean Air Act Amendments of 1990
Cap--limitation in level of production or consumption
CFC--chlorofluorocarbon
CFR--Code of Federal Regulations
EPA--Environmental Protection Agency
FDA--Food and Drug Administration
FR--Federal Register
HCFC--hydrochlorofluorocarbon
NASA--National Aeronautics and Space Administration
NODA--Notice of Data Availability
NPRM--Notice of Proposed Rulemaking
ODP--ozone depletion potential
ODS--ozone-depleting substance
Party--States and regional economic integration organizations that have
consented to be bound by the Montreal Protocol on Substances that
Deplete the Ozone Layer
Protocol--Montreal Protocol on Substances that Deplete the Ozone Layer
SBREFA--Small Business Regulatory Enforcement Fairness Act
SNAP--Significant New Alternatives Policy
UNEP--United Nations Environment Programme
U.S.--United States.

(3) Tips for Preparing Your Comments

    When submitting comments, remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.

Table of Contents

I. Regulated Entities
II. Background
III. Direct Final Action
    A. Exports of Previously Imported HCFCs
    B. Heels
    C. HCFC-141b Exemption Allowance Petition Process
    D. Definition of Importer
    E. Minor Regulatory Corrections

    1. Allowance Requirements for Class II Controlled Substances
with Lower Ozone Depletion Potentials
    2. Removal of Class II Controlled Substances From Sec.
82.13(f)(2)
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Regulated Entities

    These minor amendments to the HCFC allowance allocation system will
affect the following categories:

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                  Category                     NAICS code       SIC code        Examples of regulated entities
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Chlorofluorocarbon gas manufacturing.......          325120            2869  Chlorodifluoromethane
                                                                              manufacturers;
                                                                              Dichlorofluoroethane
                                                                              manufacturers;
                                                                              Chlorodifluoroethane
                                                                              manufacturers.
Chlorofluorocarbon gas importers...........          325120            2869  Chlorodifluoromethane importers;
                                                                              Dichlorofluoroethane importers;
                                                                              Chlorodifluoroethane importers.
Chlorofluorocarbon gas exporters...........          325120            2869  Chlorodifluoromethane exporters;
                                                                              Dichlorofluoroethane exporters;
                                                                              Chlorodifluoroethane exporters.
Polystyrene Foam Product Manufacturing.....          326140            3086  Plastics foam Products (Polystyrene
                                                                              Foam Products).
Urethane and Other Foam Product (Except              326150            3086  Insulation and cushioning, foam
 Polystyrene) Manufacturing.                                                  plastics (except polystyrene)
                                                                              manufacturing.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
potentially could be regulated by this action. Other types of entities
not listed in this table could also be affected. To determine whether
your facility, company, business organization, or other entity is
regulated by this action, you should carefully examine these
regulations. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the FOR
FURTHER INFORMATION CONTACT section.

II. Background

    In 1990, as part of a resolution on ozone-depleting substances, the
Parties to the Protocol identified hydrochlorofluorocarbons (HCFCs) as
transitional substitutes for chlorofluorocarbons (CFCs) and other more
destructive ozone-depleting substances (ODSs). In 1992, the Parties
negotiated amendments to the Protocol (the ``Copenhagen Amendments'')
that created a detailed phaseout schedule for HCFCs, with a cap on
consumption for Article 2 (industrialized) countries like the U.S. The
Protocol defines consumption as production plus imports minus exports.
The consumption cap is derived from the formula of 2.8 percent of the
Party's CFC consumption in 1989, plus the Party's consumption of HCFCs
in 1989. Based on this formula, the consumption cap for the U.S. is
15,240 ODP-weighted metric tons, effective January 1, 1996.
    In the Copenhagen Amendments, the Parties created a schedule with
graduated reductions and the eventual phaseout of the consumption of
HCFCs. The schedule calls for a 35 percent reduction of the cap on
January 1, 2004, followed by a 65 percent reduction on January 1, 2010,
a 90 percent reduction on January 1, 2015, a 99.5 percent reduction on
January 1, 2020, and a total phaseout on January 1, 2030. As a
signatory to the Copenhagen Amendments (the U.S. deposited its
instrument of ratification on March 2, 1994), the U.S. must comply with
this phaseout schedule under the Protocol.
    In 1992, EPA received petitions from environmental groups and
industry asking the Agency to implement the phaseout by eliminating the
most ozone-depleting substances first. Based on the available data at
the time, EPA believed that the U.S. could meet, and possibly exceed,
the Protocol schedule through a chemical-by-chemical phaseout. In 1993,
as authorized by sections 605 and 606 of the CAAA, EPA established a
regulatory phaseout schedule that links the phaseout of particular
HCFCs to the phaseout steps under the Protocol (58 FR 65018, December
10, 1993; 58 FR 15014, March 18, 1993). For example, under that
schedule, HCFC-141b production and import ceased on January 1, 2003,
apart from a few minor exceptions.
    In 1999, the Parties negotiated another amendment to the Protocol
(the ``Beijing Amendment''), where they agreed to a cap on HCFC
production for industrialized countries, effective January 1, 2004.
This cap was derived from the average of the Party's consumption cap
(2.8 percent of the Party's CFC consumption in 1989, plus the Party's
HCFC consumption in 1989) and the result of the same formula for
production (2.8 percent of the Party's CFC production in 1989, plus the
Party's HCFC production in 1989). This formula results in a U.S.
production cap of 15,537 ODP-weighted metric tons. The U.S. ratified
the Beijing Amendment on October 1, 2003.
    To implement the Protocol, as amended by the Copenhagen and Beijing
Amendments, EPA established an allowance system under Title VI of the
CAAA to ensure that U.S. production and consumption of HCFCs would
continue to stay under the production cap and conform to the
consumption phaseout steps. This allowance system was published in the
Federal Register on January 21, 2003 (68 FR 2820). The HCFC allowance
system is part of EPA's program to phase out the production and
consumption, and restrict the use, of HCFCs in accordance with section
605 of the CAAA. EPA has accelerated certain aspects of the schedule
contained in section 605 as authorized under section 606 of the CAAA.

III. Direct Final Action

    EPA is taking direct final action to promulgate various minor
amendments to the existing regulations implementing the HCFC phaseout.
The following sections discuss these changes individually and
specifically.

A. Exports of Previously Imported HCFCs

    In accordance with 40 CFR 82.20(a), producers of class II
controlled substances can request a ``refund'' of consumption
allowances by submitting documentation demonstrating the export of
controlled substances and complying with the recordkeeping and
reporting requirements of Sec.  82.24. This provision, as it currently
is promulgated, only explicitly addresses the ``refund'' of consumption
allowances to producers of class II substances and does not address
scenarios concerning importers of controlled substances choosing to
request a similar refund. The current applicable provisions refer
solely to class II controlled substances produced in the United States.
EPA has received requests from importers seeking to export previously
imported class II controlled substances and obtain refunds of
consumption allowances in a manner similar to companies that have
produced class II substances. These importers are concerned that
domestic manufacturers have inadvertently been given an unfair
advantage over importers.
    EPA does not believe there was any reason for limiting the refund
of consumption allowances solely to companies that produce class II
controlled substances in the United States. EPA notes that the current
codified language does not prohibit the refund of consumption
allowances to importers, but instead fails to address that particular
scenario while addressing the scenario of domestically manufactured
class II controlled substances. EPA has made a practice of considering
importers' requests for refunds of consumption allowances consistently
with requests from producers.\1\ To reflect this practice of equal
treatment, EPA is amending Sec.  82.20(a) to refer to class II
controlled substances that are both produced in and imported into the
United States. EPA is also amending Sec. Sec.  82.20(a)(1)(x) and
82.20(a)(2)(i)(B) to refer to importers as well as producers.
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    \1\ Docket EPA-OAR 2003-0130 contains letters issued by EPA.
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B. Heels

    As currently defined at Sec.  82.3, a Heel is:

    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) and that the person owning
or operating the container certifies the residual amount will remain
the container and be included in a future shipment, or be recovered
for transformation, destruction or a non-emissive purpose.

As part of a larger discussion concerning heels in the January 21, 2003
final rule (68 FR 2843), EPA received and addressed comments concerning
whether the definition of heels applies to small containers or only to
bulk shipments in larger containers, including but not limited to, rail
cars. The comments received during the public comment period were
placed in public docket A-98-33 which has been incorporated into OAR-
2003-0130. In the January 21, 2003 final rule, EPA clarified that the
definition of heel did apply to small containers.
    Based on a review of these comments and subsequent information
brought to EPA's attention, EPA no longer believes it is necessary to
require that owners or operators of small containers and cylinders
comply with the recordkeeping and reporting provisions. However, EPA
currently does not limit the applicability of either the definition of
heels or the recordkeeping and reporting provisions at Sec.  82.24(f)
to larger bulk shipments. Neither the definition of heels nor the
recordkeeping and reporting requirements refers to the size or type of
the containers. The recordkeeping and reporting requirements state that
any person who brings into the U.S. a container with a heel must
indicate on a bill of lading that the class II controlled substance is
a heel. Further, the person is required to report quarterly the
quantity in kilograms brought into the U.S. and certify that the
quantity is truly a heel by certifying it is no more than 10 percent
the total volume of the container. In addition, the person must certify
that the heel will either remain in the container and be included in a
future shipment, be recovered and transformed, be recovered and
destroyed, or be recovered for a non-emissive use. Any person who
brings a container with a heel into the U.S. also must report on the
final disposition of each shipment within 45 days of the end of the
control period.
    Since the promulgation of the January 21, 2003 final rule, EPA has
received new and compelling information regarding the general business
practices for handling heels and also information concerning which
containers are generally considered to carry heels of sufficient size
to necessitate recordkeeping and reporting. In particular, EPA received
and reviewed information from multiple sources regarding whether the
heel recordkeeping and reporting (Sec.  82.24(f)) should apply to all
sizes and types of containers and whether annual reports would be
sufficient. EPA specifically reviewed information regarding business
practices for managing heels from rail cars, tank trucks, ISO tanks,
2,000-lb cylinders, and 125-lb cylinders. Based on the information that
EPA has reviewed, it seems that generally smaller containers, including
2,000-lb cylinders and 125-lb cylinders, are presumed empty and then
refilled. The assumptions and practices for smaller containers differ
from those for larger containers, such as rail cars, which are
routinely weighed, after which any residual controlled substance that
is still within the rail car is accounted. After extensive
consideration, EPA stated in a letter contained in the docket for this
rulemaking that ``EPA has decided to reduce the reporting burden by
modifying the requirements for reporting of heels. These modifications
will follow the normal rulemaking process * * * [and] will include a
change in frequency of reporting and a limit in the types of containers
subject to reporting.'' \2\ Therefore, consistent with previous
communication, through this action, EPA is revising the recordkeeping
and reporting burden by modifying the requirements for heels.
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    \2\ Letter signed by Drusilla Hufford, Director, Global Programs
Division, May 10, 2004.
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    EPA is limiting the type of containers affected by the requirements
and therefore subject to the recordkeeping and reporting requirements
for heels. EPA is amending Sec.  82.24(f) to state that any person who
brings into the U.S. rail cars, tank trucks, and ISO tanks containing a
class II controlled substance that is a heel as defined in Sec. 82.3,
must comply with recordkeeping and reporting requirements at Sec.
82.24(f). EPA has determined that the recordkeeping and reporting
requirements are unnecessary for smaller containers such as 2,000-lb
and 125-lb cylinders because it would be impractical to recover heels
from these smaller containers for emissive use. Such heels would be
included in future shipments with or without a certification. For the
same reason, it is unnecessary to require a report on the final
disposition of such heels.
    EPA is also changing the reporting frequency for heels that are
subject to the recordkeeping and reporting requirements. Section
82.24(f)(2) currently requires quarterly reports of the quantity of
heels brought into the U.S. and certification that the heels are truly
heels, and that they will either remain in the container to be included
in a future shipment, be recovered and

transformed, be recovered and destroyed, or be recovered for a non-
emissive use. In addition, under Sec.  82.24(f)(3), any person who
brings a container with a heel into the U.S. must report on the final
disposition of each shipment within 45 days of the end of the control
period--thus on an annual basis. Since these regulations took effect
EPA has received new and compelling information from several sources
regarding the practical implementation of these requirements. After
reviewing information with regard to the management of heels, EPA has
concluded that decreasing the reporting frequency will lessen the
burden to the regulated community while still maintaining the integrity
of the allowance system. By changing the regulations to require a
single annual report, EPA is eliminating the need for four separate
quarterly reports followed by an annual report. Furthermore, EPA is
establishing the same date for the annual report requirements under
paragraphs (f)(2) and (f)(3) to permit companies to file this
information together, thus lessening the overall regulatory burden.
    EPA is also amending the definition of Heel at Sec.  82.3, to now
read that a Heel is:

    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).

    EPA believes it is necessary to amend the definition to decouple
the definition of a Heel from the recordkeeping and reporting
requirements.
    EPA is amending the requirements so that companies that will
continue to be subject to the provisions will report the same
information currently required under Sec.  82.24(f) and in particular,
the information required under paragraphs (f)(2) and (f)(3) on an
annual basis, within 30 days after the end of the control period,
rather than reporting the information required under (f)(2) on a
quarterly basis and information required under (f)(3) on an annual
basis. EPA is modifying the date of submission of the annual report
from 45 days after the end of the control period to 30 days after the
end of the control period to be consistent with other annual reporting
requirements required under Sec.  82.24. EPA believes a consistent
requirement will ease the burden to those that must submit annual
reports. EPA believes that the removal of the quarterly reporting
requirements and the change to 30 days after the end of the control
period will result in a net reduction of burden to the regulated
entities that are required to submit annual reports for heels.

C. HCFC-141b Exemption Allowance Petition Process

    The final rule published on January 21, 2003 (68 FR 2820)
established the HCFC-141b exemption allowance petition process for all
formulators \3\ of HCFC-141b. The July 20, 2001 notice of proposed
rulemaking (66 FR 38063) proposed a petition process solely for space
vehicle \4\ and defense applications requiring new production of HCFC-
141b after 2003. In response to comments received from spray foam
formulators, the final rule opened this process up to all formulators
of HCFC-141b. At the time of the final rule, those spray foam
formulators, citing technical constraints with alternatives to HCFC-
141b, suggested that those constraints could impede their transition
from HCFC-141b to non-ODS alternatives. Two commenters recommended that
EPA allow any entity to petition the Agency for HCFC-141b allowances
beyond January 1, 2003. EPA could then, on a case-by-case basis,
evaluate the petitioner's assertions that no viable alternatives are
available to meet the needs of that specific petitioner. As stated
above, EPA agreed with those commenters and established a petition
process for all formulators of HCFC-141b to provide relief to any
entity that did not have access to HCFC-141b while it was developing
alternatives. Since the petition process was established in 2003, the
majority of the initial petitioners (spray foam formulators) achieved
significant progress in their transition to alternatives. Most firms
now market foam systems containing non-ODS alternatives. Acknowledging
this progress, in a separate but related rulemaking EPA published a
final rule on September 30, 2004, stating that under the Significant
New Alternatives Policy (SNAP) program, HCFC-141b would be unacceptable
for use as a foam blowing agent starting January 1, 2005, with some
minor exceptions (69 FR 58269). EPA did not receive any petitions for
HCFC-141b from spray foam formulators for the 2005 control period and
does not expect to receive any in the future.
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    \3\ According to 40 CFR 82.3, a formulator is an entity that
distributes a class II controlled substance or blends of a class II
controlled substance to persons who use the controlled substance for
a specific application identified in the formulator's petition for
HCFC-141b exemption allowances.
    \4\ Section 82.3 defines a space vehicle as 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.''
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    Since 2003, EPA has received and approved petitions for space
vehicle and defense applications (the approval letters can be found in
Air Docket A-98-33, IV-G-26-34). As in the comments on the July 20,
2001, NPRM, information in petitions from the National Aeronautics and
Space Administration (NASA) and Department of Defense (DOD) contractors
(including contractors for the U.S. Air Force and the U.S. Department
of the Navy) suggests that specific foam applications will continue to
require new production of HCFC-141b due to their highly specialized
technical nature and the unavailability of qualified alternatives.
Depending on the length and/or the technical requirements of the
applications, those petitioners expect to require new production of
HCFC-141b until at least 2009, if not until 2015, when use of class II
controlled substances (which include HCFC-141b) will be largely
prohibited in accordance with section 605 of the Clean Air Act \5\.
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    \5\ Section 605(a) of the Clean Air Act states that ``Effective
January 1, 2015, it shall be unlawful for any person to introduce
into interstate commerce or use any class II substance unless such
substance--
    (1) Has been used, recovered, and recycled;
    (2) Is used and entirely consumed (except for trace quantities)
in the production of other chemicals; or
    (3) Is used as a refrigerant in appliances manufactured prior to
January 1, 2020.''
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    EPA is eliminating the requirement that space vehicle and defense
entities with previously approved HCFC-141b exemptions submit an annual
renewal petition for HCFC-141b exemption allowances as long as the
needed amounts do not increase significantly. The Agency has sufficient
information from the petitioners mentioned above whose requests were
approved regarding the quantities of HCFC-141b required, the technical
constraints associated with alternatives, and the scope of the
projects/applications potentially employing HCFC-141b until 2015 (see
the documents cited above from A-98-33 as well as IV-D-12, IV-D-16 and
IV-D-28). Because of this, it is reasonable to eliminate the
requirement to submit annual petitions for space vehicle and defense
applications under Sec.  82.16(h), while retaining the petition process
for new petitioners who believe they meet the criteria for an
exemption, and for those instances where an entity's space vehicle or
defense needs will exceed that entity's previously approved amount by
greater than ten percent. If

the entity's needs exceed that threshold, then the entity must submit a
new petition in accordance with the requirements at Sec.  82.16(h)(1).
Given the relatively small quantities of HCFC-141b that have been
approved on an annual basis under the exemption program, ten percent
represents an extremely small fraction of the HCFC-141b baseline (less
than 0.01 percent).
    In order to effectively manage and address U.S. space vehicle and
defense needs, the Agency requests that any users of HCFC-141b in those
applications that have not previously petitioned for HCFC-141b
exemption allowances but that plan to seek new production of HCFC-141b
in 2007 and beyond under this provision notify EPA of their
application, technical constraints, and required quantities of HCFC-
141b. We further clarify that the entity's previously approved amount,
for the purposes of determining an amount that is ten percent greater,
refers solely to amounts for which the entity did submit a petition in
accordance with Sec.  82.16(h)(1)-(4).
    Furthermore, in order to ensure that the regulations continue to
conform to section 603 of the Clean Air Act and to monitor U.S.
compliance with the Montreal Protocol production and consumption caps,
EPA will maintain the reporting and recordkeeping requirements as
detailed in Sec.  82.24. These include the requirement in Sec.
82.24(g)(1) that entities allocated HCFC-141b exemption allowances
report biannually the quantity of HCFC-141b that was received as well
as the requirements in Sec.  82.24(b)(1)(xi) and Sec.  82.24(c)(1)(xi)
that producers and importers report for each quarter the quantity of
HCFC-141b that was produced and/or imported for these exempted
applications.
    In 2005, EPA also received and approved a petition for HCFC-141b
exemption allowances where the HCFC-141b was to be used for baseline
comparison in a laboratory during product development for HCFC-141b
foam for comparative analysis of all new alternative formulations. If
EPA develops a separate proposal to address continued production of
HCFC-141b for this type of laboratory and product development use, as
part of that proposed rulemaking, EPA will request and consider
comments concerning the potential need for ongoing exemption allowances
for comparative analysis. Since this action pertains only to use of
HCFC-141b for space vehicle and military applications, EPA will not
consider comments on use of HCFC-141b for comparative analysis during
product development to be within the scope of this direct final rule.

D. Definition of Importer

    The current definition of ``importer'' at Sec.  82.3, as published
in the Federal Register on August 4, 1998 (63 FR 41625), reads:

    Importer means the importer of record listed on U.S. Customs
Service forms for imported controlled substances, used controlled
substances or controlled products.

In the August 4, 1998 Federal Register notice, EPA stated that it was
simplifying the definition of ``importer'' ``for enforcement purposes''
and that work with an inter-agency taskforce of other federal agencies
to enforce against the illegal import of banned class I controlled
substances was a factor in the decision to amend the definition. EPA
was responding to members of the taskforce that had ``discovered
difficulties in working with the definition of importer listed in the
May 10, 1995 final rule (60 FR 24988) in building cases against illegal
importers due to ambiguities about who ultimately is responsible.'' In
an effort to eliminate ambiguity EPA promulgated the definition above
amending the May 10, 1995, definition. However, as a practical matter,
given the enforcement experience since the promulgation of the 1998
definition above, EPA believes it is better to return to the more
encompassing previous definition, modified to indicate that the
importer of record is, as stated in the 1998 definition, the person
listed on U.S. Customs documentation. Therefore, through this action,
EPA is promulgating a revised definition for ``importer'' that is based
on the May 10, 1995, definition with clarifying language regarding what
is meant by ``importer of record.'' With this change, the ``importer''
of a controlled substance includes, but is not limited to, the
``importer of record.'' The revised definition will read:

    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.

Returning to the May 10, 1995, definition with the additional text
clarifying ``importer of record'' better defines the universe of those
that could be considered to be the ``importer'' of controlled
substances.

E. Minor Regulatory Corrections

1. Allowance Requirements for Class II Substances With Lower Ozone
Depleting Potentials
    The regulations published on January 21, 2003 (68 FR 2820)
establish an allowance system for class II controlled substances. The
regulations include mechanisms for distribution and tracking of
allowances for HCFC-22, HCFC-142b, and HCFC-141b. EPA recognizes there
are many other class II controlled substances that are subject to
regulations promulgated under 40 CFR part 82. However, at this time
manufacturers, importers and exporters of these other class II
controlled substances, including but not limited to HCFC-225ca and
HCFC-252, are not required to hold allowances to produce, import, or
export these substances. The reasons for this appear in the preamble to
the January 21, 2003 rule (68 FR 2823). When EPA apportions baseline
production and consumption allowances for these other class II
controlled substances, EPA intends to also establish a process under
which the Agency would approve petitions for import of used class II
controlled substances, similar to the petition process that currently
exists for those class II controlled substances for which baseline
production and consumption allowances have been apportioned.
    As currently written, the prohibitions on production and import at
Sec.  82.15(a) and (b) do not specifically limit themselves to those
class II controlled substances for which allowances have been
distributed. While restricting trade in these other HCFCs was not the
intent of the January 21, 2003, final rule, and the allowance
requirements have not been interpreted by EPA to extend to these other
class II substances, EPA is concerned that it is possible for such an
interpretation to be made. Therefore, through this action, EPA is
amending the affected paragraphs in Sec.  82.15 to clarify that the
prohibitions apply only to those class II controlled substances for
which EPA has distributed production and consumption allowances.
2. Removal of Class II Controlled Substances From Sec.  82.13(f)(2)
    Prior to the promulgation of the January 21, 2003 requirements for
recordkeeping and reporting for class II substances at Sec.  82.24 (68
FR 2820), EPA regulations already contained a select

number of requirements for class II recordkeeping and reporting at
Sec.  82.13. As a result of the reorganization of the recordkeeping and
reporting requirements that occurred in the January 21, 2003
rulemaking, Sec.  82.13 generally houses the recordkeeping and
reporting requirements for class I substances while Sec.  82.24 houses
the recordkeeping and reporting requirements for class II substances.
The January 21, 2003 rulemaking moved most of the recordkeeping and
reporting provisions pertaining to class II substances from Sec.  82.13
to Sec.  82.24, and established additional recordkeeping and reporting
requirements specifically for the class II allowance system at Sec.
82.24. Through an oversight, however, Sec.  82.13(f)(2), which is a
recordkeeping provision for producers, continued to refer to class II
substances. The recordkeeping provisions at Sec.  82.24(b)(2) render
the provisions concerning class II substances at Sec.  82.13(f)(2)
duplicative. Therefore, this action removes class II substances from
Sec.  82.13(f)(2).

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This action includes only minor changes in the information
collection burden. While some minor additional requirements exist, EPA
is relieving the industry of other burdens and streamlining
requirements. The Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulations under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-
0498 (EPA ICR No. 2014.02). A copy of the OMB approved Information
Collection Request (ICR) may be obtained from The Collection Strategies
Division; U.S. Environmental Protection Agency (2822T); 1200
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672. Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An agency may not
conduct or sponsor, and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations in 40 CFR
are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the NAICS codes below (2) a small governmental jurisdiction that is
a government of a city, county, town, school district or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.

----------------------------------------------------------------------------------------------------------------
                                                                                NAICS small
                                                                                business size
                                                                                standard  (in
                            Category                                NAICS code       SIC code        number of
                                                                                employees or
                                                                                millions of
                                                                                dollars)
----------------------------------------------------------------------------------------------------------------
1. Chemical and Allied Products, NEC............................          424690            5169             100
2. Chlorofluorocarbon gas exporters.............................          325120            2869             100
----------------------------------------------------------------------------------------------------------------

    After considering the economic impacts of today's direct final rule
on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
This direct final rule will not impose any requirements on small
entities. None of the entities affected by this rule are considered
small as defined by the size standards listed above.

D. Unfunded Mandates Reform Act

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

or more in any one year. If a written statement is required under
section 202, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule, unless the Agency explains
why this alternative is not selected or the selection of this
alternative is inconsistent with law.
    Section 203 of the UMRA requires the Agency to establish a plan for
obtaining input from and informing, educating, and advising any small
governments that may be significantly or uniquely affected by the rule.
Section 204 of the UMRA requires the Agency to develop a process to
allow elected state, local, and tribal government officials to provide
input in the development of any proposal containing a significant
Federal intergovernmental mandate.
    EPA has determined that this direct final rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
by State, local and tribal governments, in the aggregate, or by the
private sector, in any one year. Viewed as a whole, all of today's
amendments do not create a Federal mandate resulting in costs of $100
million or more in any one year for State, local and tribal
governments, in the aggregate, or for the private sector. Thus, today's
direct final rule is not subject to the requirements of sections 202
and 205 of the UMRA. EPA has also determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments; therefore, EPA is not required to develop a plan
with regard to small governments under section 203. Finally, because
this direct final rule does not contain a significant intergovernmental
mandate, the Agency is not required to develop a process to obtain
input from elected state, local, and tribal officials under section
204.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This direct final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. Today's action is
expected to primarily affect producers, importers and exporters of
HCFCs. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This rule does not have
tribal implications, as specified in Executive Order 13175. Today's
direct final rule does not significantly or uniquely affect the
communities of Indian tribal governments. It does not impose any
enforceable duties on communities of Indian tribal governments. Thus,
Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    While this direct final rule is not subject to the Executive Order
because it is not economically significant as defined in E.O. 12866, we
nonetheless have reason to believe that the environmental health or
safety risk addressed by the underlying regulations may have a
disproportionate effect on children. Depletion of stratospheric ozone
results in greater transmission of the sun's ultraviolet (UV) radiation
to the earth's surface. The following studies describe the effects on
children of excessive exposure to UV radiation: (1) Westerdahl J,
Olsson H, Ingvar C. ``At what age do sunburn episodes play a crucial
role for the development of malignant melanoma,'' Eur J Cancer 1994:
30A: 1647-54; (2) Elwood JM Japson J. ``Melanoma and sun exposure: an
overview of published studies,'' Int J Cancer 1997; 73:198-203; (3)
Armstrong BK, ``Melanoma: childhood or lifelong sun exposure,'' In:
Grobb JJ, Stern RS Mackie RM, Weinstock WA, eds. ``Epidemiology, causes
and prevention of skin diseases,'' 1st ed. London, England: Blackwell
Science, 1997: 63-6; (4) Whieman D., Green A. ``Melanoma and Sunburn,''
Cancer Causes Control, 1994: 5:564-72; (5) Heenan, PJ. ``Does
intermittent sun exposure cause basal cell carcinoma? A case control
study in Western Australia,'' Int J Cancer 1995; 60: 489-94; (6)
Gallagher, RP, Hill, GB, Bajdik, CD, et al. ``Sunlight exposure,
pigmentary factors, and risk of nonmelanocytic skin cancer I, Basal
cell carcinoma.'' Arch Dermatol 1995; 131: 157-63; (7) Armstrong, DK.
``How sun exposure causes skin cancer: an epidemiological
perspective,'' Prevention of Skin Cancer. 2004. 89-116.
    This direct final rule is making minor changes to the existing
regulatory regime for the class II controlled substances. Theses minor
changes are not expected to increase the impacts on children's health
from stratospheric ozone depletion.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 F.R. 28355 (May 22, 2001)) because it is not
a significant regulatory action under Executive Order 12866.

I. The National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs

EPA to provide Congress, through OMB, explanations when the Agency
decides not to use available and applicable voluntary consensus
standards. This rulemaking does not involve technical standards.
Therefore, EPA did not consider the use of any voluntary consensus
standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective October 18, 2006.

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Chlorofluorocarbons, Exports,
Hydrochlorofluorocarbons, Imports, Reporting and recordkeeping
requirements.

    Dated: July 13, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, 40 CFR part 82 is amended as
follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

0
1. The authority citation for part 82 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

Subpart A--Production and Consumption Controls

0
2. Amend Sec.  82.3 by revising the definitions of ``Heel'' and
``Importer'' to read as follows:

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

* * * * *
    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).
* * * * *
    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.
* * * * *

0
3. Amend Sec.  82.13 by revising paragraph (f)(2) introductory text to
read as follows:

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

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

0
4. Amend Sec.  82.15 by revising paragraphs (a)(1) and (b) to read as
follows:

Sec.  82.15  Prohibitions for class II controlled substances.

    (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.
* * * * *
    (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 Sec.  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
Sec.  82.24(c)(3) and (4) constitutes a separate violation of this
subpart.
* * * * *

0
5. Amend Sec.  82.16 by revising paragraph (h)(1) introductory text and
by adding paragraphs (h)(7) and (h)(8) to read as follows:

Sec.  82.16  Phaseout schedule of class II controlled substances.

* * * * *
    (h) * * *
    (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:
* * * * *
    (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.

0
6. Amend Sec.  82.20 by revising paragraphs (a) introductory text,
(a)(1)(x), and (a)(2)(i)(B) to read as follows:

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

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

0
7. Amend Sec.  82.24 as follows:
0
a. Revise paragraphs (c)(1)(vi), (c)(2)(ii), (c)(3) introductory text.
0
b. Revise paragraphs (f) introductory text, (f)(1), (f)(2) introductory
text, and (f)(3).

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

* * * * *
    (c) * * *
    (1) * * *
    (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;
* * * * *
    (2) * * *
    (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;
* * * * *
    (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 Sec.  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:
* * * * *
    (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 Sec.  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:
* * * * *
    (3) Report on the final disposition of each shipment within 30 days
of the end of the control period.
* * * * *
 [FR Doc. E6-11532 Filed 7-19-06; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 80, Number 164 (Tuesday, August 25, 2015)]
[Notices]
[Pages 51641-51642]
[FR Doc No: 2015-20932]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75735; File No. SR-MIAX-2015-52]

Self-Regulatory Organizations; Miami International Securities
Exchange LLC; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Amend Its Fee Schedule

August 19, 2015.
    Pursuant to the provisions of Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice
is hereby given that on August 11, 2015, Miami International Securities
Exchange LLC (``MIAX'' or ``Exchange'') filed with the Securities and
Exchange Commission (``Commission'') a proposed rule change as
described in Items I and II below, which Items have been prepared by
the Exchange. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing a proposal to amend the MIAX Options Fee
Schedule (the ``Fee Schedule'') to establish fees for the MIAX
Financial Information Exchange (``FIX'') Drop Copy Port.
    While changes to the Fee Schedule pursuant to this proposal are
effective upon filing, the Exchange has designated these changes to be
operative on September 1, 2015.
    The text of the proposed rule change is available on the Exchange's
Web site at http://www.miaxoptions.com/filter/wotitle/rule_filing, at
MIAX's principal office, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of the proposed rule change is to establish a monthly
port fee of $500 per port for the use of the new MIAX FIX Drop Copy
Port.
    Currently, the Exchange assesses fees for the use of its FIX Ports.
A FIX Port is an interface with MIAX systems that enables the Port user
(typically an Electronic Exchange Member (``EEM'') \3\ or a Market
Maker \4\) to submit orders electronically to MIAX.
---------------------------------------------------------------------------

    \3\ The term ``Electronic Exchange Member'' means the holder of
a Trading Permit who is not a Market Maker. Electronic Exchange
Members are deemed ``members'' under the Exchange Act. See Exchange
Rule 100.
    \4\ The term ``Market Makers'' refers to ``Lead Market Makers,''
``Primary Lead Market Makers'' and ``Registered Market Makers''
collectively. A Lead Market Maker is a Member registered with the
Exchange for the purpose of making markets in securities traded on
the Exchange and that is vested with the rights and responsibilities
specified in Chapter VI of these Rules with respect to Lead Market
Makers. A Primary Lead Market Maker is a Lead Market Maker appointed
by the Exchange to act as the Primary Lead Market Maker for the
purpose of making markets in securities traded on the Exchange. A
Registered Market Maker is a Member registered with the Exchange for
the purpose of making markets in securities traded on the Exchange,
who is not a Lead Market Maker. See Exchange Rule 100.
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    The proposed FIX Drop Copy Port is a messaging interface that will
provide a copy of real-time trade execution information to FIX Drop
Copy Port users who subscribe to the service. FIX Drop Copy Port users
are those users who are designated by an EEM to receive the information
and the information is restricted for use by the EEM only. The Exchange
proposes to assess a monthly per port fee to users of the FIX Drop Copy
Ports.
    MIAX currently assesses fees for Exchange connectivity and services
used by Members. Such Exchange connectivity is gained through various
ports. MIAX currently assesses monthly per port fees for FIX Ports.
Similarly, the Exchange is proposing to establish a monthly per port
fee for the use of the FIX Drop Copy Port.
    The FIX Drop Copy Port provides the user with a copy of real-time
trade execution updates. The updates contain a copy of trade execution
messages on a low latency, real-time basis. A FIX Drop Copy Port can be
configured to monitor any number of FIX Ports used by that EEM and a
FIX Port user can have any number of FIX Drop Copy Ports. The FIX Drop
Copy Port will send messages containing reports of order executions to
the user based upon the group of FIX Ports that it is configured to
monitor. Other order related messages will not be sent via the FIX Drop
Copy port.
    MIAX will assess a FIX Drop Copy Port fee of $500 per port per
month. Similar to the FIX Port Fees, the FIX Drop Copy Port Fee will be
based on the number of FIX Drop Copy Ports to which a user subscribes
and the fee includes connectivity to the Exchange's primary, secondary
and disaster recovery data centers at no additional cost. The Exchange
intends to assess the fee on a per port basis for the data and
information used in trading options contracts and ongoing entitlement
management and configuration. The Exchange believes that this should
enable it to remain competitive with other exchanges with respect to
fees charged for similar ports.\5\
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    \5\ See NYSE Arca Options Fees and Charges, p. 12 [sic]; NYSE
Amex Options Fee Schedule, p. 24. Both NYSE Arca Options and NYSE
Amex Options charge $500 per port per month for a drop copy port and
do not charge for a drop copy port which is connected to their
respective backup datacenters if it is configured such that it is
duplicative of other drop copy ports.
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    The Exchange is also proposing to amend the Fee Schedule's Table of
Contents to reflect the addition of the FIX Drop Copy Port Fee in new
Section (5)(d)(iv).
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule
is consistent with Section 6(b) of the Act \6\ in general, and furthers
the objectives of Section 6(b)(4) of the Act \7\ in particular, in that
it is an equitable allocation of reasonable fees and other charges.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(4).

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    The Exchange believes that this amendment is equitable and not
unfairly discriminatory because the Exchange is uniformly assessing the
FIX Drop Copy Port Fees on all users that wish to subscribe to it.
    The Exchange further believes that the proposed FIX Drop Copy Port
Fee is reasonable because it is within the range of similar fees
charged by other exchanges, and because the FIX Drop Copy Port is
offered as an optional service for those users who wish to subscribe to
it.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended. The
proposed fees for services provided to its Members and others using its
facilities will not have an impact on competition. In fact, MIAX's
proposed FIX Drop Copy Port Fee is comparable to fees charged by other
options exchanges for the same or similar services.\8\
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    \8\ See supra note 5.
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    The FIX Drop Copy Port is offered as an additional service for
users at a price that is within the range of prices for similar ports
offered by other exchanges, and therefore the Exchange believes that
the price of the port fee does not impose a burden on competition.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act \9\ and subparagraph (f)(2) of Rule 19b-4
thereunder.\10\ At any time within 60 days of the filing of the
proposed rule change, the Commission summarily may temporarily suspend
such rule change if it appears to the Commission that such action is
necessary or appropriate in the public interest, for the protection of
investors, or otherwise in furtherance of the purposes of the Act. If
the Commission takes such action, the Commission shall institute
proceedings to determine whether the proposed rule should be approved
or disapproved.
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    \9\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \10\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-MIAX-2015-52 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-MIAX-2015-52. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-MIAX-2015-52, and should be
submitted on or before September 15, 2015.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
Jill M. Peterson,
Assistant Secretary.
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    \11\ 17 CFR 200.30-3(a)(12).
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[FR Doc. 2015-20932 Filed 8-24-15; 8:45 am]
 BILLING CODE 8011-01-P