[Federal Register Volume 63, Number 149 (Tuesday, August 4, 1998)]
[Proposed Rules]
[Pages 41652-41655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20151]



  Federal Register / Vol. 63, No. 149 / Tuesday, August 4, 1998 / 
Proposed Rules  

[[Page 41652]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-6129-3]
RIN 2060-AG48


Protection of Stratospheric Ozone: Reconsideration of Petition 
Criteria and Incorporation of Montreal Protocol Decisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: With this action, EPA is proposing revisions to the 
accelerated phaseout regulation that governs the production, import and 
export of substances that deplete the ozone layer under the authority 
of sections 602, 604, 605, 606, and 614 of the Clean Air Act Amendments 
of 1990 (CAA). Today's proposed amendments are made to reflect changes 
in U.S. obligations under the Montreal Protocol on Substances that 
Deplete the Ozone Layer (Protocol) due to recent decisions by signatory 
countries to this international agreement. Additionally, in response to 
a petition submitted to EPA, the Agency is proposing to remove the 
requirement in the petition process for imports of used class I 
controlled substances that a person must certify knowledge of tax 
liability. Other proposed amendments are made to ease the burden on 
affected companies while continuing to ensure compliance with Title VI 
of the CAA and meet U.S. obligations under the Protocol.
    Elsewhere in this issue of the Federal Register, EPA is amending 
the accelerated phaseout regulation as a direct final rule without 
prior proposal because the Agency views many of these distinct 
revisions as noncontroversial and anticipates no relevant adverse 
comments. A detailed list of the many distinct revisions is set forth 
in the direct final rule. If no relevant adverse comments are received 
on the direct final rule, no further activity is contemplated in 
relation to this proposed rule. The EPA believes that many of the 
distinct revisions are noncontroversial because they address various 
implementation issues without major changes in policy.

DATES: Written comments must be received by September 3, 1998, unless a 
public hearing is requested. Comments must then be received on or 
before 30 days following the public hearing. Any party requesting a 
public hearing must notify the contact person listed below by 5 p.m. 
Eastern Standard Time on August 14, 1998. If a hearing is requested it 
will be held September 1, 1998, and EPA will publish a document in the 
Federal Register announcing the hearing information and the extended 
comment period.

ADDRESSES: Comments on the companion to the direct final rule should be 
submitted in duplicate (two copies) to: Air Docket No. A-92-13, U.S. 
Environmental Protection Agency, 401 M Street, SW, Room M-1500, 
Washington, DC, 20460. Comments must be identified with Docket No. A-
92-13 . Inquiries regarding a public hearing should be directed to the 
Stratospheric Ozone Protection Hotline at 1-800-269-1996.
    Materials relevant to this proposed rulemaking are contained in 
Docket No. A-92-13. The Docket is located in room M-1500, First Floor, 
Waterside Mall at the address above. The materials may be inspected 
from 8 a.m. until 4 p.m. Monday through Friday. A reasonable fee may be 
charged by EPA for copying docket materials.

FOR FURTHER INFORMATION CONTACT: Tom Land, U.S. Environmental 
Protection Agency, Stratospheric Protection Division, Office of 
Atmospheric Programs, 6205J, 401 M Street, SW., Washington, DC, 20460, 
(202) 564-9185.

SUPPLEMENTARY INFORMATION: The EPA believes that many of the distinct 
revisions in the direct final rule published in today's Federal 
Register are noncontroversial; however, should the Agency receive 
relevant adverse comment on the companion direct final rule, it will 
publish a timely withdrawal informing the public that the rule will not 
take effect. All relevant adverse comments received will be addressed 
in a subsequent final rule based on this proposed rule. The EPA will 
not institute a second comment period on this document. For additional 
information, see the direct final rule published in the Final Rules 
section of this Federal Register.
    For ease of reference to the distinct revisions, the table of 
contents for the direct final rule published in the Final Rules section 
of this Federal Register is as follows:

Table of Contents

I. Background
II. Revisions to the Stratospheric Ozone Protection Program
    A. Amendments to Sec. 82.3--Definitions
    1. Adding a Definition for the Term ``Confer'' that Pertains to 
Essential-Use Allowances
    2. Adding Destruction Technologies to the List of Those Approved 
in the Definition of Destruction
    3. Simplifying the Definition of ``Importer''
    4. Adding a Definition for the Phrase ``Source Facility'' that 
Pertains to the Petition Process for Imports of Used Controlled 
Substances
    5. Clarifying the Definition of Transhipment
    B. Amendments to Sec. 82.4--Prohibitions
    1. Licensing System for Imports and Exports of Listed Controlled 
Substances--both Newly Manufactured and Previously Used
    2. Control of Exported Products that Rely on Class I Controlled 
Substances for their Continuing Functioning to Article 5 Parties
    3. Prohibit Imports and Exports of HBFCs from or to Non-Parties 
to the Protocol
    4. Application Process for Exemptions to the HCFC Phaseout for 
Specific National Security Uses.
    5. Simplify Procedure for Apportioning Essential-Use Allowances 
and Essential-Use Exemptions through a Notice
    6. Prohibit Import of Class I Controlled Substances for 
Essential-Uses Except by Companies Allocated Essential-Use 
Allowances
    C. Amendments to Sec. 82.9--Availability of Production 
Allowances in Addition to Baseline Production Allowances
    1. Clarification of Increases or Decreases of Article 5 
Allowances due to International Transfers
    D. Amendments to Sec. 82.12--Transfers
    1. Increases or Decreases of Essential-Use Allowances due to 
Emergency International Transfers
    E. Amendments to Sec. 82.13--Recordkeeping and Reporting 
Requirements
    1. Removal of Producer Requirement to Report the Quantity of 
Used Material Received that Contains Recycled or Reclaimed 
Controlled Substances
    2. Add to the Producer Recordkeeping and Reporting Requirements 
the Need to Maintain and Submit a Certification that a Quantity of 
Class I Controlled Substance will be used as a Process Agent.
    3. Clarify the Need for Letters that Confer Essential-Use 
Allowances and Destruction and Transformation Credits to Producers 
and that these Letters be Submitted with Producer's Quarterly 
Reports
    4. Changes to the Petition Process for Importing Used Class I 
Controlled Substances
    a. Clarification that a Petition to Import Used Class I 
Controlled Substances is Submitted for One Individual Shipment
    b. Changing the de minimis Quantity for an Individual Shipment 
for which a Person is Required to Submit a Petition to Import Used 
Class I Controlled Substances
    c. Revised and Expanded Information Requirements for a Petition 
to Import Used Class I Controlled Substances
    d. Removal of the Information Requirement regarding the Tax for 
People Petitioning to Import Used Class I Controlled Substances
    e. Clarification of the Timing for EPA Review of a Petition f. 
Clarification of Reasons for Disallowing Petitions to

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Import Used Class I Controlled Substances
    g. Requirement that the Petition and the Non-Objection Letter 
from EPA for the Import of Used Class I Controlled Substances 
Accompany the Shipment through U.S. Customs Clearance
    5. Requirement that Importers of Controlled Substances and Used 
Controlled Substances use the Harmonized Commodity Codes in this 
Regulation in completing Customs Entry Documents
    6. Modify the Requirement for a Sales Contract that Certifies 
Exported Controlled Substances will be Transformed or Destroyed
    7. Applying the Recordkeeping and Reporting Requirements to 
Material obtained from Importers as well as Producers for a Person 
that Transforms or Destroys Class I Controlled Substances
    8. Changes to the Recordkeeping and Reporting Requirements for 
Entities Allocated Essential-Use Allowances
    9. Changes to the Reporting Requirement for Distributors of 
Laboratory Supplies under the Global Laboratory Essential Use 
Exemption
III. Miscellaneous Additional Changes

Summary of Supporting Analysis

A. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures 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 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. Most of the provisions in today's rule 
fulfill the obligations of the United States under the international 
treaty, The Montreal Protocol on Substances that Deplete the Ozone 
Layer, as well as those requirements specifically set forth by Congress 
in sections 604, 606 and 614 of the Clean Air Act Amendments of 1990. 
The remainder merely serve to clarify existing regulatory text and 
therefore impose no new additional enforceable duties on governmental 
entities or the private sector. The majority of the amendments do not 
create significant additional costs for either the public or the 
private sector because they address various implementation issues 
without major changes in policy. Viewed as a whole, 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 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 proposal 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.

B. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements 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 not-for-profit enterprises, and small governmental 
jurisdictions.
    The Agency performed an initial screening analysis and determined 
that this regulation does not have a significant economic impact on a 
substantial number of small entities. EPA characterized the regulated 
community by identifying the SIC codes of the companies affected by 
this rule. The Agency determined that the members of the regulated 
community affected by today's rule are generally not small businesses. 
Small governments and small not-for-profit organizations are not 
subject to the provisions of today's rule. The provisions in the 
accelerated phaseout rule and today's action regulate large, 
multinational corporations that either produce, import, export, 
transform or destroy ozone-depleting chemicals controlled by this rule. 
To the extent that today's actions affect entities other than large, 
multinational corporations, there are few that are small entities and 
the economic impact is negligible. Thus, today's rule will not have a 
significant economic impact on a substantial number of small entities. 
The rule includes changes to recordkeeping or reporting requirements. 
Those changes included in today's rule that increase reporting burden 
only apply to large companies (pharmaceutical companies holding 
essential-use allowances). In general, for small entities, the changes 
in today's action reduce reporting and recordkeeping.
    EPA concluded that this proposed rule would not have a significant 
impact on a substantial number of small entities, therefore, I hereby 
certify that this action will not have a significant economic impact on 
a substantial number of small entities. This rule, therefore, does not 
require a regulatory flexibility analysis.

C. Executive Order 12866

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

[[Page 41654]]

D. Applicability of E.O. 13045--Children's Health Protection

    This proposed rule is not subject to E.O. 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it does not involve 
decisions on environmental health risks or safety risks that may 
disproportionately affect children.

E. Paperwork Reduction Act

    The revised information collection requirements in these amendments 
have been submitted for approval to OMB under the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) 
document has been prepared by EPA (ICR No. 1432.17) and a copy may be 
obtained from Sandy Farmer by mail at OPPE Regulatory Information 
Division; U.S. Environmental Protection Agency (2137); 401 M St., SW; 
Washington, DC 20460, by email at [email protected], or by 
calling (202) 260-2740. A copy may also be downloaded off the internet 
at http://www.epa.gov/icr. The additional information requirements in 
these amendments are not effective until OMB approves them.
    The information collection under this rule is authorized under 
sections 603(b) and 114 of the Clean Air Act Amendments of 1990 (CAA). 
This information collection is conducted to meet U.S. obligations under 
Article 7, Reporting Requirements, of the Montreal Protocol on 
Substances that Deplete the Ozone Layer (Protocol); and to carry out 
the requirements of Title VI of the CAA, including sections 603 and 
614.
    The reporting requirements included in the amendments to the 
current rule are designed to:
    (1) Ensure compliance with the restrictions on production, import 
and export of controlled ozone-depleting substances after the phaseout 
of class I substances (except methyl bromide) after January 1, 1996;
    (2) Allow exempted production and import for certain essential uses 
and the consequent tracking of that production and import;
    (3) Address industry and Federal concerns regarding the illegal 
import of mislabelled used controlled substances that are claimed to be 
undercutting U.S. markets;
    (4) Respond to industry comments on the functioning of the program 
to streamline reporting and eliminate administrative inefficiencies;
    (5) Satisfy U.S. obligations under the international treaty, the 
Montreal Protocol on Substances that Deplete the Ozone Layer 
(Protocol), to report data under Article 7;
    (6) Fulfill statutory obligations under Section 603(b) of Title VI 
of the Clean Air Act Amendments of 1990 (CAA) for reporting and 
monitoring;
    (7) Provide information to report to Congress on the production, 
use and consumption of class I and class II controlled substances as 
statutorily required in Section 603(d) of Title VI of the CAA.
    EPA informs respondents that they may assert claims of business 
confidentiality for any of the information they submit. Information 
claimed confidential will be treated in accordance with the procedures 
for handling information claimed as confidential under 40 CFR Part 2, 
Subpart B, and will be disclosed only if EPA determines that the 
information is not entitled to confidential treatment. If no claim of 
confidentiality is asserted when the information is received by EPA, it 
may be made available to the public without further notice to the 
respondents (40 CFR 2.203).
    The information collection requirements for this action have an 
estimated reporting burden averaging 23.3 hours per response. This 
estimate includes time for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed and completing 
the collection of information.
    The estimate includes the time needed to comply with EPA's 
reporting requirements, as well as that used for the completion of the 
reports under the amended regulations.

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                                                  Number of    Responses/     Total      Hours per              
              Collection activity                respondents   respondent   responses     response   Total hours
----------------------------------------------------------------------------------------------------------------
Producer's Report..............................            8            4           32           16          512
Importer's Report..............................           12            4           48           16          768
Notification of Trade..........................            2            1            2            2            4
Export Report..................................           10            1           10           80          800
Lab Certification..............................         1000            1         1000            1         1000
Class II Report................................           14            4           56           16          896
Transformation & Destruction...................           15            1           15           80         1200
Essential Use Allowance Holders................           12            4           48           32         1536
Lab Suppliers..................................            4            4           16           24          384
Lab Suppliers--Reference Standards.............           10            1           10           16          160
                                                ----------------------------------------------------------------
      Total burden hours.......................  ...........  ...........  ...........  ...........         7260
----------------------------------------------------------------------------------------------------------------

    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
    Send comments on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden, including through the use of 
automated collection techniques to the Director, OPPE Regulatory 
Information Division; U.S. Environmental Protection Agency (2137); 401 
M St., SW; Washington, DC 20460; and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th St., NW, 
Washington, DC 20503, marked

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``Attention: Desk Officer for EPA.'' Include the ICR number in any 
correspondence.

F. Executive Order 12875

    Today's action does not impose any unfunded mandate upon any State, 
local, or tribal government; therefore, Executive Order 12875 does not 
apply to this rulemaking.

List of Subjects in 40 CFR Part 82

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

    Dated: July 17, 1998.
Carol M. Browner,
Administrator.
[FR Doc. 98-20151 Filed 8-3-98; 8:45 am]
BILLING CODE 6560-50-P