Air programs: Stratospheric ozone protection— Methyl bromide; ban on trade with non-parties to Montreal Protocol,

[Federal Register: July 25, 2003 (Volume 68, Number 143)]

[Proposed Rules]

[Page 43991-43995]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr25jy03-24]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-7529-5]

RIN 2060-AK67

Protection of Stratospheric Ozone: Ban on Trade of Methyl Bromide With Non-Parties to the Montreal Protocol

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rule.

SUMMARY: With this action, EPA is proposing to prohibit the import and export of methyl bromide (class I, Group VI controlled substance) from or to a foreign state that is not a Party to the 1992 Copenhagen Amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer (Protocol). EPA is proposing to ban trade in methyl bromide with non-Parties to the Copenhagen Amendments to the Protocol in order to ensure the United States meets its obligations under the Protocol and associated amendments.

In the ``Rules and Regulations'' section of the Federal Register, we are adopting these prohibitions as a direct final rule without prior proposal because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule. If we receive no relevant adverse comment, we will not take further action on this proposed rule. If we receive relevant adverse comment, we will withdraw the direct final rule and it 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.

DATES: Written comments on the companion direct final rule must be received on or before August 25, 2003, 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 4, 2003. If a hearing is requested it will be held August 19, 2003.

ADDRESSES: Comments on the companion direct final rule may be submitted by mail to Air and Radiation. Send two copies of your comments to: Air and Radiation Docket (6102), Air Docket No. A-92-13, Section XIII, U.S. Environmental Protection Agency, Mailcode 6205J, 1200 Pennsylvania Ave. NW., Washington, DC 20460. The Docket's hours of operation are 8:30 a.m. until 4:30 p.m. Monday through Friday. Comments may also be submitted electronically, through hand delivery or courier. Refer to the companion direct final for detailed instructions on submitting comments electronically, or through hand delivery or courier.

FOR FURTHER INFORMATION CONTACT: For further information about this proposed rule, contact Kate Choban by telephone at (202) 564-3524, or by e-mail at choban.kate@epa.gov, or by mail at Kate Choban, U.S. Environmental Protection Agency, Global Programs Division, Stratospheric Program Implementation Branch (6205J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 202-564-3524. Overnight or courier deliveries should be sent to 501 3rd Street, NW., Washington, DC, 20001. You may also visit the Ozone Depletion Web site of EPA's Global Programs Division at http://www.epa.gov/ozone/index.html for further information about EPA's Stratospheric Ozone Protection

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regulations, the science of ozone layer depletion, and other topics.

SUPPLEMENTARY INFORMATION: This action concerns the import and export of methyl bromide (class I, Group VI controlled substance) from or to a foreign state that is not a Party to the 1992 Copenhagen Amendments to the Montreal Protocol on Substances the Deplete the Ozone Layer (Protocol). EPA is proposing to ban trade in methyl bromide with non- Parties to the Copenhagen Amendments to the Protocol in order to ensure the United States meets its obligations under the Protocol and associated amendments. 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.

Table of Contents

1. General Information

   1. Regulated entities

   2. How Can I Get Copies Of This Document and Other Related Information?

   3. How and To Whom Do I Submit Comments?

   4. How Should I Submit Confidential Business Information (CBI) To the Agency? II. Statutory and Executive Order Reviews

   1. Executive Order 12866: Regulatory Planning and Review

   2. Paperwork Reduction Act

   3. Regulatory Flexibility Act (RFA), As Amended By the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et.seq.

   4. Unfunded Mandates Reform Act

   5. Executive Order 13132: Federalism

   6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

   7. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks

   8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use

   I . National Technology Transfer Advancement Act

1. General Information

   1. Regulated Entities

      Entities potentially regulated by this action are those associated with the import and export of methyl bromide. Potentially regulated categories and entities include:

      Category

      Examples of regulated entities

      Industry............................. Importers and Exporters of methyl bromide

      The above 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 could potentially be regulated by this action. To determine whether your facility, company, business, organization is regulated by this action, you should carefully examine the regulations promulgated at 40 CFR 82, Subpart A. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

   2. How Can I Get Copies of This Document and Other Related Information?

      1. Docket. EPA has established an official public docket for this action under the Office of Air and Radiation Docket & Information Center, Air Docket ID No. A-92-13, Section XIII. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at EPA West, 1301 Constitution Ave. NW., Room B108, Mail Code 6102T, Washington, DC 20460, Phone: (202)-566-1742, Fax: (202)- 566-1741. The materials may be inspected from 8:30 am until 4:30 pm Monday through Friday, excluding legal holidays. A reasonable fee may be charged for copying docket materials.

      2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the ``Federal Register'' listings at http://www.epa.gov/fedrgstr/. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select ``search,'' then key in the appropriate docket identification number.

      Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.

      For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

      Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

   3. How and To Whom Do I Submit Comments?

      You may submit comments electronically, by mail or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of comment period will be marked late. EPA is not required to consider these late comments. If you plan to submit comments, please also notify Kate Choban, U.S. Environmental Protection Agency, Global Programs Division (6205J), 1200 Pennsylvania Ave. NW., Washington, DC 20460, (202)-564-3524.

      Information designated as Confidential Business Information (CBI) under 40 CFR, Part 2, Subpart 2, must be sent directly to the contact person for this notice. However, the Agency is requesting that all respondents submit a non-confidential version of their comments to the docket as well.

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      1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. 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.

         i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA dockets at http://www.epa.gov/edocket , and follow the online instructions for submitting comments.

      2. By Mail. Send two copies of your comments to: Air and Radiation Docket (6102), Air Docket No. A-92-13, Section XIII, U.S. Environmental Protection Agency, Mailcode 6205J, 1200 Pennsylvania Ave. NW., Washington, DC, 20460.

      3. By Hand Delivery or Courier. Deliver your comments to: 501 3rd Street NW., Washington, DC 20001, Attention Docket ID No. A-92-13, Section XIII. Such deliveries are only accepted during the Docket's normal hours of operation as identified under ADDRESSES.

      4. By Facsimile. Fax your comments to: (202) 566-1741, Attention Docket ID No. A-92-13, Section XIII.

   4. How Should I Submit Confidential Business Information (CBI) to the Agency?

      Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. Send or deliver information identified as CBI only to the mail or courier addresses listed in Units C.2 or C.3, as appropriate, to the attention of Air Docket ID No. A-92-13, Section XIII. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

      Summary of Supporting Analysis

2. Statutory and Executive Order Reviews

   1. 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 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 and will be signed by the Administrator only after completion of review by OMB.

   2. Paperwork Reduction Act

      The Office of Management and Budget (OMB) previously approved the information collection requirements that can be used to implement today's proposed rule. The previously approved ICR is assigned OMB control number 2060-0170 (EPA ICR No. 1432.21).

      There is no additional paperwork burden as a result of this rule. Current record keeping will allow EPA to implement the provisions of today's action.

      The information collection previously approved will be used to implement the trade ban in paragraph 1 qua under Article 4 of the Montreal Protocol for methyl bromide. The information collection under this rule is authorized under sections 603(b) and 603(d) 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 this rule 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.

      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

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      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.

   3. Regulatory Flexibility Act (RFA), 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 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 that 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.

      SIC small business size standard (in number of Category

      NAICS Code SIC Code

      employees or millions of dollars)

      1. Chemical and Allied Products, NEC........................

      424690

      5169

      100

      Based on an analysis of the U.S. exports of methyl bromide to specific countries, EPA has determined that only 3 countries of the 50 to whom U.S. producers of methyl bromide have exported over the past three years would be impacted because they have not yet ratified the Copenhagen Amendments to the Protocol. Specifically, the rule would ban the export of 41 metric tonnes to Cyprus, Cote d'Ivoire, and the United Arab Emriates compared to an average export from the entire U.S. of 5,236 metric tonnes. These countries represent less than 1% of all U.S. exports of methyl bromide for the years 2000, 2001, and 2002. So, economic impacts for U.S. producers of methyl bromide would be extremely minimal. The rule will not constrain U.S. farmers' ability to obtain methyl bromide from importers because the major methyl bromide exporting countries have already ratified the Copenhagen Amendments.

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

   4. 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. 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 set forth by Congress in section 614 of the Clean Air Act. 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 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.

   5. 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

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      power and responsibilities among the various levels of government.''

      Under Section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the regulation.

      This 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 rule is expected to primarily affect importers and exporters of methyl bromide. EPA is not aware of any current uses of methyl bromide by public sector entities. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

   6. 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 rule does not significantly or uniquely affect the communities of Indian tribal governments. The rule does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this rule.

   7. Applicability of 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 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 is not such a rule, and therefore E.O. 13045 does not apply. This rule is not subject to E.O. 13045 because it implements specific trade measures adopted under the Montreal Protocol and required by section 614 of the CAA.

   8. 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 a significant regulatory action under Executive Order 12866.

1. The National Technology Transfer and Advancement Act

   Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (``NTTAA''), Pub. L. 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. This rulemaking does not involve technical standards.

   Therefore, EPA is not considering the use of any voluntary consensus standards.

   Dated: July 11, 2003. Linda J. Fisher, Acting Administrator.

   [FR Doc. 03-18855 Filed 7-24-03; 8:45 am]

   BILLING CODE 6560-50-P