42 U.S.C. § 7671d — Phase-out of production and consump-

Page 7455 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671d riod which may not exceed one year. No exemp- tion shall be granted under this paragraph due to lack of appropriation unless the President shall have specifically requested such appropria- tion as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. (g) Fire suppression and explosion prevention (1) Notwithstanding the production phase-out set forth in subsection (a), the Administrator, after notice and opportunity for public com- ment, may, to the extent such action is con- sistent with the Montreal Protocol, authorize the production of limited quantities of halon- 1211, halon-1301, and halon-2402 in excess of the amount otherwise permitted pursuant to the schedule under subsection (a) solely for purposes of fire suppression or explosion prevention if the Administrator, in consultation with the Admin- istrator of the United States Fire Administra- tion, determines that no safe and effective sub- stitute has been developed and that such author- ization is necessary for fire suppression or explo- sion prevention purposes. The Administrator shall not authorize production under this para- graph for purposes of fire safety or explosion prevention training or testing of fire suppres- sion or explosion prevention equipment. In no event shall the Administrator grant an excep- tion under this paragraph that permits produc- tion after December 31, 1999. (2) The Administrator shall periodically mon- itor and assess the status of efforts to obtain substitutes for the substances referred to in paragraph (1) for purposes of fire suppression or explosion prevention and the probability of such substitutes being available by December 31, 1999. The Administrator, as part of such assessment, shall consider any relevant assessments under the Montreal Protocol and the actions of the Parties pursuant to Article 2B of the Montreal Protocol in identifying essential uses and in per- mitting a level of production or consumption that is necessary to satisfy such uses for which no adequate alternatives are available after De- cember 31, 1999. The Administrator shall report to Congress the results of such assessment in 1994 and again in 1998. (3) Notwithstanding the termination of pro- duction set forth in subsection (b), the Adminis- trator, after notice and opportunity for public comment, may, to the extent consistent with the Montreal Protocol, authorize the production of limited quantities of halon-1211, halon-1301, and halon-2402 in the period after December 31, 1999, and before December 31, 2004, solely for pur- poses of fire suppression or explosion prevention in association with domestic production of crude oil and natural gas energy supplies on the North Slope of Alaska, if the Administrator, in con- sultation with the Administrator of the United States Fire Administration, determines that no safe and effective substitute has been developed and that such authorization is necessary for fire suppression and explosion prevention purposes. The Administrator shall not authorize produc- tion under the paragraph for purposes of fire safety or explosion prevention training or test- ing of fire suppression or explosion prevention equipment. In no event shall the Administrator authorize under this paragraph any person to produce any such halon in an amount greater than 3 percent of that produced by such person during the baseline year. (h) Methyl bromide Notwithstanding subsections (b) and (d), the Administrator shall not terminate production of methyl bromide prior to January 1, 2005. The Administrator shall promulgate rules for reduc- tions in, and terminate the production, importa- tion, and consumption of, methyl bromide under a schedule that is in accordance with, but not more stringent than, the phaseout schedule of the Montreal Protocol Treaty as in effect on Oc- tober 21, 1998. (July 14, 1955, ch. 360, title VI, § 604, as added Pub. L. 101–549, title VI, § 602(a), Nov. 15, 1990, 104 Stat. 2655; amended Pub. L. 105–277, div. A, § 101(a) [title VII, § 764], Oct. 21, 1998, 112 Stat. 2681, 2681–36.) Editorial Notes AMENDMENTS 1998—Subsec. (d)(5), (6). Pub. L. 105–277, § 101(a) [title VII, § 764(b)], added pars. (5) and (6). Subsec. (e)(3). Pub. L. 105–277, § 101(a) [title VII, § 764(c)], added par. (3). Subsec. (h). Pub. L. 105–277, § 101(a) [title VII, § 764(a)], added subsec. (h). § 7671d. Phase-out of production and consump- tion of class II substances (a) Restriction of use of class II substances Effective January 1, 2015, it shall be unlawful for any person to introduce into interstate com- merce 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; (3) is used as a refrigerant in appliances manufactured prior to January 1, 2020; or (4) is listed as acceptable for use as a fire suppression agent for nonresidential applica- tions in accordance with section 7671k(c) of this title. As used in this subsection, the term ‘‘refrig- erant’’ means any class II substance used for heat transfer in a refrigerating system. (b) Production phase-out (1) Effective January 1, 2015, it shall be unlaw- ful for any person to produce any class II sub- stance in an annual quantity greater than the quantity of such substance produced by such person during the baseline year. (2) Effective January 1, 2030, it shall be unlaw- ful for any person to produce any class II sub- stance. (c) Regulations regarding production and con- sumption of class II substances By December 31, 1999, the Administrator shall promulgate regulations phasing out the produc- tion, and restricting the use, of class II sub- stances in accordance with this section, subject to any acceleration of the phase-out of produc- tion under section 7671e of this title. The Admin- Page 7456 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7671e istrator shall also promulgate regulations to in- sure that the consumption of class II substances in the United States is phased out and termi- nated in accordance with the same schedule (subject to the same exceptions and other provi- sions) as is applicable to the phase-out and ter- mination of production of class II substances under this subchapter. (d) Exceptions (1) Medical devices (A) In general Notwithstanding the termination of pro- duction required under subsection (b)(2) and the restriction on use referred to in sub- section (a), the Administrator, after notice and opportunity for public comment, shall, to the extent such action is consistent with the Montreal Protocol, authorize the pro- duction and use of limited quantities of class II substances solely for purposes of use in medical devices if such authorization is de- termined by the Commissioner, in consulta- tion with the Administrator, to be necessary for use in medical devices. (B) Cap on exception Under no circumstances may the authority set forth in subparagraph (A) be applied to authorize any person to produce a class II substance in annual quantities greater than 10 percent of that produced by such person during the baseline year. (2) Developing countries (A) In general Notwithstanding the provisions of sub- section (a) or (b), the Administrator, after notice and opportunity for public comment, may authorize the production of limited quantities of a class II substance in excess of the quantities otherwise permitted under such provisions solely for export to and use in developing countries that are Parties to the Montreal Protocol, as determined by the Administrator. Any production authorized under this subsection shall be solely for pur- poses of satisfying the basic domestic needs of such countries. (B) Cap on exception (i) Under no circumstances may the au- thority set forth in subparagraph (A) be ap- plied to authorize any person to produce a class II substance in any year following the effective date of subsection (b)(1) and before the year 2030 in annual quantities greater than 110 percent of the quantity of such sub- stance produced by such person during the baseline year. (ii) Under no circumstances may the au- thority set forth in subparagraph (A) be ap- plied to authorize any person to produce a class II substance in the year 2030, or any year thereafter, in an annual quantity great- er than 15 percent of the quantity of such substance produced by such person during the baseline year. (iii) Each exception authorized under this paragraph shall terminate no later than Jan- uary 1, 2040. (July 14, 1955, ch. 360, title VI, § 605, as added Pub. L. 101–549, title VI, § 602(a), Nov. 15, 1990, 104 Stat. 2658; amended Pub. L. 112–81, div. A, title III, § 320, Dec. 31, 2011, 125 Stat. 1361.) Editorial Notes AMENDMENTS 2011—Subsec. (a)(4). Pub. L. 112–81 added par. (4). § 7671e. Accelerated schedule (a) In general The Administrator shall promulgate regula- tions, after notice and opportunity for public comment, which establish a schedule for phasing out the production and consumption of class I and class II substances (or use of class II sub- stances) that is more stringent than set forth in section 7671c or 7671d of this title, or both, if— (1) based on an assessment of credible cur- rent scientific information (including any as- sessment under the Montreal Protocol) regard- ing harmful effects on the stratospheric ozone layer associated with a class I or class II sub- stance, the Administrator determines that such more stringent schedule may be nec- essary to protect human health and the envi- ronment against such effects, (2) based on the availability of substitutes for listed substances, the Administrator deter- mines that such more stringent schedule is practicable, taking into account technological achievability, safety, and other relevant fac- tors, or (3) the Montreal Protocol is modified to in- clude a schedule to control or reduce produc- tion, consumption, or use of any substance more rapidly than the applicable schedule under this subchapter. In making any determination under paragraphs (1) and (2), the Administrator shall consider the status of the period remaining under the appli- cable schedule under this subchapter. (b) Petition Any person may petition the Administrator to promulgate regulations under this section. The Administrator shall grant or deny the petition within 180 days after receipt of any such peti- tion. If the Administrator denies the petition, the Administrator shall publish an explanation of why the petition was denied. If the Adminis- trator grants such petition, such final regula- tions shall be promulgated within 1 year. Any petition under this subsection shall include a showing by the petitioner that there are data adequate to support the petition. If the Admin- istrator determines that information is not suf- ficient to make a determination under this sub- section, the Administrator shall use any author- ity available to the Administrator, under any law administered by the Administrator, to ac- quire such information. (July 14, 1955, ch. 360, title VI, § 606, as added Pub. L. 101–549, title VI, § 602(a), Nov. 15, 1990, 104 Stat. 2660.) § 7671f. Exchange authority (a) Transfers The Administrator shall, within 10 months after November 15, 1990, promulgate rules under