[Federal Register Volume 70, Number 167 (Tuesday, August 30, 2005)]
[Proposed Rules]
[Pages 51317-51321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17190]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-7962-3]
RIN 2060-AN13


Protection of Stratospheric Ozone: Process for Exempting Critical 
Uses of Methyl Bromide for the 2005 Supplemental Request

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: With this action EPA is proposing to authorize use of 610,665 
kilograms of methyl bromide for supplemental critical uses in 2005 
through the allocation of additional critical stock allowances (CSAs). 
This allocation would supplement the critical use allowances (CUAs) and 
CSAs previously allocated for 2005, as published in the Federal 
Register on December 23, 2004 (69 FR 76982). Further, EPA is proposing 
to amend the existing list of exempted critical uses. With today's 
action EPA is proposing to exempt methyl bromide for critical uses 
beyond the phaseout under the authority of the Clean Air Act (CAA or 
the Act) and in accordance with the Montreal Protocol on Substances 
that Deplete the Ozone Layer (Protocol). In the ``Rules and 
Regulations'' section of today's Federal Register, we are authorizing 
these CSAs and critical uses as a direct final rule without prior 
proposal because we view this as a noncontroversial action and expect 
no adverse comment. We have explained our reasons for this 
authorization 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 it will not take effect. We will address all public comments 
in the 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.

DATES: Written comments on the companion direct final rule must be 
received on or before September 29, 2005, or October 14, 2005 if a 
hearing is requested. Any party requesting a public hearing must notify 
the contact person listed below by 5 p.m. Eastern Standard Time on 
September 9, 2005. If a hearing is requested it will be held September 
14, 2005. Persons interested in attending a public hearing should 
consult with the contact person below regarding the location and time 
of the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0506, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected]
     Fax: 202-343-2337 attn: Marta Montoro
     Mail: Air Docket, Environmental Protection Agency, 
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In 
addition, please mail a copy of your comments on the information 
collection provisions to the Office of Information and Regulatory 
Affairs, Office of Management and

[[Page 51318]]

Budget (OMB), Attn: Desk Officer for EPA, 725 17th St. NW., Washington, 
DC 20503.
     Hand Delivery: EPA Air Docket, 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. OAR-2004-0506. 
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.epa.gov/edocket, 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 EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal regulations.gov websites are 
``anonymous access'' systems, 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 EDOCKET or 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 EDOCKET on-line or see the Federal Register of May 31, 
2002 (67 FR 38102).
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution 
Ave., NW., Washington, DC 20460. This Docket Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For further information about this 
proposed rule, contact Marta Montoro by telephone at (202) 343-9321, or 
by e-mail at [email protected], or by mail at Marta Montoro, U.S. 
Environmental Protection Agency, Stratospheric Protection Division, 
(6205J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Overnight 
or courier deliveries should be sent to 1310 L St. NW., Washington, DC 
20005, attn: Marta Montoro. You may also visit the Ozone Depletion Web 
site of EPA's Stratospheric Protection Division at http://www.epa.gov/ozone/index.html for further information about EPA's Stratospheric 
Ozone Protection regulations, the science of ozone layer depletion, and 
other topics.

SUPPLEMENTARY INFORMATION: This document concerns the authorization of 
an additional 610,655 kilograms of methyl bromide for approved critical 
uses during 2005, through the allocation of CSAs. It also concerns 
additions to the list of approved critical uses for this control 
period. 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.
    This action concerns regulation of methyl bromide pursuant to the 
CAA as a class I, Group VI ozone-depleting substance. Under the CAA, 
methyl bromide production and consumption (defined as production plus 
imports minus exports) were phased out on January 1, 2005, apart from 
certain exemptions, including the critical use exemption, which is the 
subject of today's rule. In a final rule published December 23, 2004 
(69 FR 76982), EPA established the framework for the critical use 
exemption; set forth a list of approved critical uses for 2005; and 
specified the amount of methyl bromide that could be supplied in 2005 
from stocks and new production or import to meet approved critical 
uses. As part of that rule, EPA issued critical use allowances (CUAs) 
for new production and import and critical stock allowances (CSAs) for 
sale of methyl bromide stocks. In today's action, EPA is proposing to 
add uses of methyl bromide to the list of approved critical uses and to 
issue additional CSAs for the 2005 control period. These actions are in 
accordance with Decision XVI/2 of the countries that have ratified the 
Montreal Protocol (the ``Parties''), taken at their November 2004 
meeting.

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 the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``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 a ``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 will be 
documented in the public record.
    This proposed action will likely have a minor cost savings 
associated with its implementation, but the Agency did not conduct a 
formal analysis of savings given that such an analysis would have 
resulted in negligible savings. This proposed action represents the 
authorization only 2.5% of 1991 consumption baseline of methyl bromide 
to be made available for critical uses.

B. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number

[[Page 51319]]

1432.28 and OMB Control Number 2060-0170. This rule supplements the 
rule published in the Federal Register on December 23, 2004 (69 FR 
76982). The information collection under these rules is authorized 
under Sections 603(b), 603(d) and 614(b) of the Clean Air Act (CAA).
    The mandatory reporting requirements included in these rules are 
intended to:
    (1) 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;
    (2) Fulfill statutory obligations under Section 603(b) of Title VI 
of the Clean Air Act Amendments of 1990 (CAA) for reporting and 
monitoring;
    (3) Provide information to report to Congress on the production, 
use and consumption of class I controlled substances as statutorily 
required in Section 603(d) of Title VI of the CAA.
    In this rule, EPA is proposing to amend the Reporting and 
Recordkeeping Requirements in 40 CFR part 82 to require that entities 
report the amount of pre-phaseout methyl bromide inventory, held for 
sale or for transfer to another entity, to the Agency on an annual 
basis. Pre-phaseout refers to inventories of methyl bromide produced or 
imported prior to January 1, 2005. This additional requirement will 
allow EPA to track the drawdown of pre-phaseout inventories.

----------------------------------------------------------------------------------------------------------------
                                                     Number of     Total number      Hours per
               Collection activity                  respondents    of responses      response       Total hours
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Rule Familiarization............................              54              54              .5              27
Data Compilation (annual basis).................              54              54              .5              27
Data Reporting (annual basis)...................              54              54              .5              27
                                                 -----------------
    Total Burden Hours..........................  ..............             162  ..............              81
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    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 to the extent, and by means of 
the procedures, set forth in that subpart. 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).
    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; process and maintain information; disclose and 
provide 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.
    When this ICR is approved by OMB, the Agency will publish a 
technical amendment to 40 CFR part 9 in the Federal Register to display 
the OMB control number for the approved information collection 
requirements contained in these rules.
    To obtain comment on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden, including the use of automated 
collection techniques. EPA has established a public docket for this 
rule, which includes this ICR, under Electronic Docket ID number OAR-
2004-0506. Submit any comments related to the rule ICR for this 
proposed rule to EPA and OMB. See ``Addresses'' Section at the 
beginning of this notice for where to submit comments to EPA. Send 
comments to OMB at the Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725 17th Street NW., Washington DC 
20503 attn: Desk Officer for EPA. Include the EPA ICR number 1432.28 in 
correspondence related to this ICR.
    Since OMB is required to make a decision concerning the ICR between 
30 and 60 days after August 30, 2005, a comment to OMB is best assured 
of having its full effect if OMB receives it by September 29, 2005. The 
final rule will respond to any OMB or public concerns on the 
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act (RFA)

    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 rule on small entities, small entity is defined as: (1) A small 
business that is identified by the North American Industry 
Classification System (NAICS) Code in the Table 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.

[[Page 51320]]



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                                                                                                    NAICS small
                                                                                                   business size
                                                                                                   standard  (in
                Category                          NAICS code                   SIC code              number of
                                                                                                   employees or
                                                                                                    millions of
                                                                                                     dollars)
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Agricultural Production.................  1112--Vegetable and Melon   0171--Berry...............           $0.75
                                           farming.                   0171--Berry Crops.........
                                          1114--Greenhouse, Nursery,  0181--Ornamental
                                           and Floriculture            Floriculture and Nursery
                                           Production.                 products.
Storage Uses............................  115114--Postharvest crop    4221--Farm Product                   $21.5
                                           activities (except Cotton   Warehousing and Storage.
                                           Ginning).
                                          493110--General             4225--General Warehousing
                                           Warehousing and Storage.    and Storage.
                                          493130--Farm product
                                           Warehousing Storage.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This rule only affects entities that applied to 
EPA for a de-regulatory exemption. In most cases, EPA received 
aggregated requests for exemptions from industry consortia. On the 
exemption application, EPA asked consortia to describe the number and 
size distribution of entities their application covered. Based on the 
data provided, EPA estimates that there are 3,218 entities that 
petitioned EPA for an exemption. Since many applicants did not provide 
information on the distribution of sizes of entities covered in their 
applications, EPA estimated that between \1/4\ to \1/3\ of the entities 
may be small businesses based on the definition given above. In 
addition, other categories of affected entities do not contain small 
businesses based on the above description.
    After considering the economic impacts of today's proposed rule on 
small entities, EPA certifies that this action will not have a 
significant economic impact on a substantial number of small entities. 
The small entities directly regulated by this proposed rule are 
primarily agricultural entities, producers, importers, and distributors 
of methyl bromide, as well as any entities holding inventory of methyl 
bromide.
    In determining whether a rule has a significant economic impact on 
a substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' (5 U.S.C. 
Sec. Sec.  603-604). Thus, an Agency may certify that a rule will not 
have a significant economic impact on a substantial number of small 
entities if the rule relieves a regulatory burden, or otherwise has a 
positive economic effect on all of the small entities subject to the 
rule. Since this rule will make additional methyl bromide available for 
approved critical uses after the phaseout date of January 1, 2005, this 
is a de-regulatory action which will confer a benefit to users of 
methyl bromide. EPA believes the estimated de-regulatory value for 
users of methyl bromide is between $20 million to $30 million annually, 
as a result of the entire critical use exemption program over its 
projected duration. We have therefore concluded that today's proposed 
rule will relieve regulatory burden for all small entities. We continue 
to be interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

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 
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. 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 of 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 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.
    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. Today's proposed rule contains only 
one new mandate, which is the reporting requirement for the drawdown of 
pre-phaseout inventories. Today's amendment does 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 proposed rule is not subject to the 
requirements of Sections 202 and 205 of the UMRA.
    EPA has also determined that this proposed 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.

[[Page 51321]]

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 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 Executive Order 13132. Today's proposed rule is 
expected to primarily affect producers, suppliers, importers and 
exporters and users of methyl bromide. Thus, Executive Order 13132 does 
not apply to this proposed 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 proposed rule does not 
have tribal implications, as specified in Executive Order 13175. 
Today's proposed rule does not significantly or uniquely affect the 
communities of Indian tribal governments. The proposed rule does not 
impose any enforceable duties on communities of Indian tribal 
governments. Thus, Executive Order 13175 does not apply to this 
proposed rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and 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 E.O. 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 E.O. 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 proposed rule is not subject to E.O. 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

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

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This rule does 
not pertain to any segment of the energy production economy nor does it 
regulate any manner of energy use. Further, we have concluded that this 
rule is not likely to have any adverse energy effects.

I. The National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub. L. 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 is not 
considering the use of any voluntary consensus standards.

    Dated: August 23, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-17190 Filed 8-29-05; 8:45 am]
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