[Federal Register Volume 65, Number 229 (Tuesday, November 28, 2000)]
[Proposed Rules]
[Pages 70825-70828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30110]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-6906-5]
RIN 2060-AI41


Protection of Stratospheric Ozone: Incorporation of Clean Air Act 
Amendments for Reductions in Class I, Group VI Controlled Substances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: With this action, EPA is proposing revisions to the 
accelerated phaseout regulations that govern the

[[Page 70826]]

production, import, export, transformation and destruction of 
substances that deplete the ozone layer under the authority of Title VI 
of the Clean Air Act Amendments of 1990 (CAA or the Act). We are 
proposing these revisions to implement recent changes to the CAA (Oct. 
21, 1998), which direct EPA to conform the U.S. methyl bromide 
phasedown schedule to the schedule for industrialized nations under the 
Montreal Protocol on Substances that Deplete the Ozone Layer 
(Protocol). Specifically, today's proposed amendments reflect the 
Protocol's reductions in the production and consumption of class I, 
Group VI controlled substances (methyl bromide) for the 2001 calendar 
year and subsequent calendar years, as follows: beginning January 1, 
2001, a 50 percent reduction in baseline levels; beginning January 1, 
2003, a 70 percent reduction in baseline levels; and, beginning January 
1, 2005, the complete phaseout of class I, Group VI controlled 
substances.
    In the ``Rules and Regulations'' section of today's Federal 
Register, we are amending the phaseout schedule as a direct final rule 
without prior proposal because we view this as a noncontroversial 
revision and anticipate no adverse comment. We have explained our 
reasons for this approval in the preamble to the direct final rule. If 
we receive no adverse comment, we will not take further action on this 
proposed rule. If we receive adverse comment, we will withdraw the 
direct final rule and the rule will not take effect. We will address 
all public comments in a subsequent final rule based on this proposed 
rule. We will not institute a second comment period on this action. Any 
parties interested in commenting must do so at this time. EPA 
reiterates that the phasedown and phaseout levels and dates are 
statutorily required, and that it therefore has no discretion to alter 
the schedule.

DATES: Written comments must be received on or before December 28, 
2000, unless a public hearing is requested. If a public hearing takes 
place, it will be scheduled for December 13, 2000, after which comments 
must be received on or before 45 days after the hearing. Any party 
requesting a public hearing must notify the contact person listed below 
by 5 p.m. Eastern Standard Time on December 5, 2000. After that time, 
interested parties may call EPA's Stratospheric Ozone Information 
Hotline at 1-800-296-1996 to inquire with regard to whether a hearing 
will be held, as well as the time and place of such a hearing.

ADDRESSES: Comments should be submitted in duplicate (two copies) to: 
Air Docket No. A-2000-24, U.S. Environmental Protection Agency, 2000 
Pennsylvania Ave., NW., Room M-1500, Washington, D.C. 20460. Inquiries 
regarding a public hearing should be directed to the Stratospheric 
Ozone Protection Information Hotline at 1-800-296-1996.
    Materials relevant to this proposed rulemaking are contained in 
Public Docket No. A-2000-24. The docket is located in room M-1500, 
Waterside Mall (Ground Floor), at the above address. The materials may 
be inspected from 8 a.m. until 5:30 p.m., Monday through Friday. We may 
charge a reasonable fee for copying docket materials.

FOR FURTHER INFORMATION CONTACT: The Stratospheric Ozone Information 
Hotline at 1-800-296-1996 between the hours of 10 a.m. and 4 p.m. 
Eastern Standard Time, or Amber Moreen, U.S. Environmental Protection 
Agency, Stratospheric Protection Division (6205J), 401 M Street, S.W., 
Washington, D.C., 20460, (202) 564-9295.

SUPPLEMENTARY INFORMATION: We are proposing these revisions to reflect 
changes directly mandated by the statutory language established by 
Congress in response to the methyl bromide phaseout schedule in the 
Montreal Protocol on Substances that Deplete the Ozone Layer 
(Protocol). For further information, please see the information 
provided in the direct final action that is located in the ``Rules and 
Regulations'' section of this Federal Register publication.

What Are the Supporting Analyses?

a. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's proposed rule contains federal mandates (under the 
regulatory provisions of the Title II of the UMRA) for the private 
sector. However, the rule proposes to implement mandates specifically 
and explicitly set forth by the Congress in section 604(h) of the CAA, 
as added by Section 764 of the 1999 Omnibus Consolidated Emergency 
Supplemental Appropriations Act (Public Law No. 105-277), without the 
exercise of any policy discretion by EPA. Specifically, this rule 
proposes to implement the directive in section 604(h) of the CAA to 
promulgate a methyl bromide phaseout schedule that is in accordance 
with the schedule under the Montreal Protocol. EPA has determined that 
this proposed rule does not contain a Federal mandate that may result 
in expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
Because this rule proposes to extend the current phaseout, the rule 
reduces costs. Thus, today's proposed rule is not subject to the 
requirements of sections 202 or 205 of the UMRA.
    We determined that this proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments; therefore, we are not required to develop a plan with 
regard to small governments under section 203. Finally, because this 
proposed 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.

[[Page 70827]]

b. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The 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 proposed rule on 
small entities, small entity is defined as: (1) A small business that 
is identified by the Standard Industrial Classification (SIC) Code in 
the Table below. The size standards described in this section apply to 
all Small Business Administration (SBA) programs unless otherwise 
specified. The size standards themselves are expressed either in number 
of employees or annual receipts in millions of dollars, unless 
otherwise specified. The number of employees or annual receipts 
indicates the maximum allowed for a concern and its affiliates to be 
considered small.

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                                                                  Size
         Type of  enterprise              SIC code/ division    standard
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Industrial Organic Chemicals.........  2813...................     1,000
Wholesale Trade......................  Division F.............       100
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    (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.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. Today's proposed rule 
will not impose any requirements on small entities, as it proposes to 
regulate large, multinational corporations that either produce, import 
or export class I, group VI ozone-depleting substances.

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.
    Pursuant to the terms of Executive Order 12866, OMB has notified 
EPA that it considers this an ``economically significant regulatory 
action'' within the meaning of the Executive Order. EPA has submitted 
this action to OMB for review. Changes made in response to OMB 
suggestions or recommendations will be documented in the public record.

d. Applicability of Executive Order 13045--Children's Health Protection

    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.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This rule is not subject to 
Executive Order 13045 because it implements a Congressional directive 
to phase out production and import \1\ of methyl bromide in accordance 
with the schedule under the Protocol.
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    \1\ Because the formula for ``consumption'' is production + 
import-export, the phrase ``production and import'', in effect, also 
includes consumption.
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e. Paperwork Reduction Act

    This action does not add any information collection requirements or 
increase burden under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. The Office of Management and Budget (OMB) 
previously approved the information collection requirements contained 
in the final rule promulgated on May 10, 1995, and assigned OMB control 
number 2060-0170 (EPA ICR No. 1432.17).
    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.

f. 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 proposed 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

[[Page 70828]]

Executive Order 13132. This rule regulates large, multinational 
corporations that either produce, import or export class I, group VI 
ozone-depleting substances. It implements mandates specifically and 
explicitly set forth by the Congress in section 604(h) of the CAA, as 
added by Section 764 of the 1999 Omnibus Consolidated Emergency 
Supplemental Appropriations Act (Public Law No. 105-277), without the 
exercise of any policy discretion by EPA. Thus, Executive Order 13132 
does not apply to this proposed rule.

g. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies or matters 
that significantly or uniquely affect their communities.''
    Today's rule proposes to implement requirements specifically set 
forth by Congress in section 604(h) of the CAA, as added by Section 764 
of the 1999 Omnibus Consolidated Emergency Supplemental Appropriations 
Act (Public Law No. 105-277), without the exercise of any discretion by 
EPA. Accordingly, the requirements of section 3(b) of Executive Order 
13084 do not apply to this rule.

h. The National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 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.

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Chemicals, Exports, Imports, Methyl bromide, 
Ozone layer.

    Dated: November 17, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-30110 Filed 11-27-00; 8:45 am]
BILLING CODE 6560-50-P