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Rule

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

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Information about this document as published in the Federal Register.

Published Document

This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

With this action, EPA is taking direct final action on the regulations that govern the production, import, and export of substances that deplete the ozone layer under the authority of Title VI of the Clean Air Act (CAA or the Act) and in accordance with U.S. obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer (Protocol). Specifically, today's amendments reflect the Montreal Amendments to the Protocol, which ban the import or export of methyl bromide (class I, Group VI controlled substance) from or to countries that are not Parties to the 1992 Copenhagen Amendments.

DATES:

This rule is effective on October 23, 2003 without further notice, unless EPA receives adverse comment by August 25, 2003, or, if a public hearing is requested, by September 18, 2003. If we receive such comment, we will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

Written comments on this 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 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. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving Start Printed Page 43931comments. Go directly to EPA dockets at http://www.epa.gov/​edocket, and follow the online instructions for submitting comments. For hand delivery or courier, deliver your comments to: 501 3rd Street NW., Washington, DC 20001, Attention Docket ID No. A-92-13, Section XIII.

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FOR FURTHER INFORMATION CONTACT:

Kate Choban, U.S. Environmental Protection Agency, Global Programs Division, Stratospheric Programs 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 regulations, the science of ozone layer depletion, and other topics.

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SUPPLEMENTARY INFORMATION:

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comment. No adverse comment is expected due to the fact that the U.S. Senate gave its advice and consent to ratification of the Montreal Amendment on October 9, 2002, and this rule simply adopts one of the provisions contained in that Amendment. However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposal to implement the methyl bromide trade bans if adverse comments are filed. This rule will be effective on October 23, 2003 without further notice unless we receive adverse comment by August 25, 2003 (or, if a public hearing is requested, by September 18, 2003). If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any persons interested in commenting must do so at this time.

Table of Contents

I. General Information

A. Regulated Entities

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

C. How and To Whom Do I Submit Comments?

D. How Should I Submit CBI To the Agency?

II. What is the Legislative and Regulatory Background of the Phaseout Regulations for Ozone-Depleting Substances?

III. What is Methyl Bromide?

IV. What is the Regulatory Background Relating Specifically to Methyl Bromide?

V. What is the Ban on Trade of Methyl Bromide with non-Parties to the Protocol?

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

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

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

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

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

I . National Technology Transfer Advancement Act

VII. Congressional Review

A. Submission to Congress and the Comptroller General

I. General Information

A. 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:

CategoryExamples of regulated entities
IndustryImporters 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, or organization is regulated by this action, you should carefully examine the regulations promulgated at 40 CFR part 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.

B. 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 a.m. until 4:30 p.m. 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 Start Printed Page 43932entire 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.

C. 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.

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.

D. How Should I Submit 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.

II. What Is the Legislative and Regulatory Background of the Phaseout Regulations for Ozone-Depleting Substances?

The Clean Air Act Amendments of 1990 direct the Environmental Protection Agency (EPA) to issue regulations to implement the provisions of the Protocol within the United States through a system of controls on production and consumption of ozone-depleting substances. The current regulatory requirements of the Stratospheric Ozone Protection Program are codified at subpart A to Part 82 of Volume 40 of the Code of Federal Regulations (40 CFR part 82, subpart A). As the control measures of the Protocol have been amended or adjusted, and in consideration of other factors, subpart A has also been amended. For example, the amendments to the Protocol made at the Fourth Meeting of the Parties in Copenhagen in 1992 included an accelerated phaseout of ODS production and consumption. EPA published a final regulation in December of 1993, implementing the United States' accelerated phaseout obligation under the Copenhagen amendments (58 FR 65018).

The requirements contained in the final rules published in the Federal Register on December 20, 1994 and May 10, 1995 establish an Allowance Program. The Allowance Program and its history are described in the notice of proposed rulemaking published in the Federal Register on November 10, 1994 (59 FR 56276). The control and the phaseout of the production and consumption of class I ozone-depleting substances as required under the Protocol and the CAA are accomplished through the Allowance Program.

In developing the Allowance Program, we collected information on the amounts of ozone-depleting substances produced, imported, exported, transformed and destroyed within the U.S. for specific baseline years for specific chemicals. This information was used to establish the U.S. production and consumption ceilings for these chemicals. The data were also used to assign company-specific production and import rights to companies that were in most cases producing or importing during the specific year of data collection. These production or import rights are called “allowances.” Due to the complete phaseout of many of the ozone-depleting chemicals, the quantities of allowances granted to companies for those chemicals were gradually reduced and eventually eliminated. Production allowances and consumption Start Printed Page 43933allowances continue to exist for only one specific class I controlled ozone-depleting substance—methyl bromide. All other production or consumption of class I controlled substances is prohibited under the Protocol and the CAA, but for a few narrow exemptions.

In the context of the regulatory program, the use of the term consumption may be misleading. Consumption does not mean the “use” of a controlled substance, but rather is defined as the formula: production + imports − exports, of controlled substances (Article 1 of the Protocol and Section 601 of the CAA). Class I controlled substances that were produced or imported through the expenditure of allowances prior to their phaseout date can continue to be used by industry and the public after that specific chemical's phaseout under these regulations, unless otherwise precluded under separate regulations.

The specific names and chemical formulas for the class I controlled ozone-depleting substances are in appendix A and appendix F in subpart A of 40 CFR part 82. The specific names and chemical formulas for the class II controlled ozone-depleting substances are in appendix B and appendix F in subpart A.

III. What Is Methyl Bromide?

Methyl bromide is an odorless and colorless gas used in the U.S. and throughout the world as a fumigant. Methyl bromide, which is toxic to living things, is used in many different situations to control a variety of pests, such as insects, weeds, pathogens, and nematodes. Additional characteristics and details about the uses of methyl bromide, as well as information on the basis for listing methyl bromide as a class I substance, can be found in the proposed rule published in the Federal Register on March 18, 1993 (58 FR 15014) and the final rule published in the Federal Register on December 10, 1993 (58 FR 65018). Updated information on methyl bromide can be found at the following sites of the World Wide Web: http://www.epa.gov/​ozone/​mbr/​ and http://www.teap.org or by contacting the Stratospheric Ozone Protection Hotline at 1-800-296-1996.

IV. What Is the Regulatory Background Relating Specifically to Methyl Bromide?

The Parties to the Protocol established a freeze in the level of methyl bromide production and consumption for industrialized countries at the 1992 Meeting in Copenhagen. The Parties agreed that each industrialized country's level of methyl bromide production and consumption in 1991 should be the baseline for establishing the freeze. EPA published a final rule in the Federal Register on December 10, 1993, listing methyl bromide as a class I, Group VI controlled substance, freezing U.S. production and consumption at this 1991 level, and, in § 82.7 of the rule, setting forth the percentage of baseline allowances for methyl bromide granted to companies in each control period (each calendar year) until the year 2001 (58 FR 65018). Consistent with the CAA requirements for newly listed class I ozone-depleting substances, this rule established a 2001 phaseout for methyl bromide. In the rule published in the Federal Register on December 30, 1993 (58 FR 69235), we established baseline methyl bromide production and consumption allowances for specific companies in § 82.5 and § 82.6.

At their 1997 meeting, the Parties agreed to establish the phaseout schedule for methyl bromide in industrialized countries. The U.S. Congress followed by amending the CAA (in Oct. 1998) to direct EPA to promulgate regulations reflecting the Protocol phaseout date of 2005, with interim phasedown steps in 1999, 2001, and 2003. EPA promulgated a regulation that was published in the Federal Register on June 1, 1999 (64 FR 29240), instituting the initial interim reduction of 25 percent in the production and import [1] of methyl bromide for the 1999 and 2000 control periods. In a subsequent rule, published in the Federal Register on November 28, 2000 (65 FR 70795), EPA implemented reductions in the production and consumption of methyl bromide for 2001 and beyond, 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 methyl bromide.

V. What Is the Ban on Trade of Methyl Bromide With non-Parties to the Protocol?

With today's 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 Protocol. EPA is banning 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. Article 4, paragraph 1 qua of the Protocol bans the import of methyl bromide (Annex E substances) from any country not a Party to the Protocol amendments creating control obligations for methyl bromide (Copenhagen Amendments). Later refinements made to the methyl bromide phaseout schedule were in the form of adjustments, not amendments, and any Party that has ratified the Copenhagen Amendments is subject to those adjustments. Article 4, paragraph 2 qua of the Protocol bans exports of methyl bromide to any Party that has not ratified the Copenhagen Amendments to the Protocol. These bans were added as part of the 1997 Montreal Amendments to the Protocol. Section 614 of the CAA states, “This title as added by the Clean Air Act Amendments of 1990 shall be construed, interpreted, and applied as a supplement to the terms and conditions of the Montreal Protocol, as provided in Article 2, paragraph 11 thereof, and shall not be construed, interpreted, or applied to abrogate the responsibilities or obligations of the United States to implement fully the provisions of the Montreal Protocol. In the case of conflict between any provision of this title and any provision of the Montreal Protocol, the more stringent provision shall govern. Nothing in this title shall be construed, interpreted, or applied to affect the authority or responsibility of the Administrator to implement Article 4 of the Montreal Protocol with other appropriate agencies.” Pursuant to section 614, today's action fulfills the U.S. obligation to implement the methyl bromide trade ban provisions of the Montreal Protocol.

Current regulations (60 FR 24970; 40 CFR 82.4(l)(2)) prohibit the import and export of certain class I controlled substances from or to foreign states not Parties to the Montreal Protocol or specific amendment packages to the Protocol (e.g., the London Amendments). These bans on imports from and exports to non-Parties to amendment packages reflect an agreed strategy by the Parties to the Montreal Protocol to encourage ratification of each successive amendment package to the Protocol and to ensure that controlled ozone-depleting substances are not provided to countries that have not agreed to control measures.

A list of Parties that have ratified the Montreal Protocol and that have ratified successive amendments to the Protocol is published with today's action in appendix C. For the purposes of today's Start Printed Page 43934methyl bromide trade ban, companies should refer to appendix C to subpart A of part 82 to identify nations that have not yet ratified the Copenhagen Amendments. Today's action prohibits imports of methyl bromide from, or exports of methyl bromide to, these nations that have not ratified the Copenhagen Amendments. EPA will publish notices on a periodic basis to update this list (appendix C) to reflect when Parties ratify the Montreal Protocol and its amendments. For additional information on countries that have ratified the Protocol and its amendments, you may want to visit the website of the United Nations Environmental Program (UNEP) Ozone Secretariat at http://www.unep.org/​ozone/​ and look for the “Status of Ratification”.

Article 4, paragraph 8 of the Protocol recognizes that countries may actually be complying with relevant control measures without having officially ratified the Protocol or its relevant Amendments and permits the Parties to meet and determine that imports from and exports to these countries are permitted. Therefore, EPA is reserving Annex 2 of appendix C for any country determined by the Parties to be complying with the relevant control measures.

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comment. No adverse comment is expected due to the fact that the U.S. Senate gave its advice and consent to ratification of the Montreal Amendment on October 9, 2002, and this rule simply adopts one of the provisions contained in that Amendment. The regulated producers, importers and exporters attended both meetings of the Parties to the Montreal Protocol the year that the trade ban provisions were agreed through an amendment. EPA did not hear from the producers, importers and exporters when this provision was up for consideration by the Parties. Therefore, we do not anticipate any adverse comments on this action. Establishing such a trade ban is now standard practice under the Protocol for controlled ozone-depleting substances. However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposal to implement the methyl bromide trade bans if adverse comments are filed. This rule will be effective on October 23, 2003 without further notice unless we receive adverse comment by August 25, 2003 (or, if a public hearing is requested, by September 18, 2003). If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any persons interested in commenting must do so at this time.

VI. 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 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.

B. Paperwork Reduction Act

The Office of Management and Budget (OMB) previously approved the information collection requirements that can be used to implement today's direct final 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 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. Start Printed Page 43935

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

EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities. For purposes of assessing the impact of today's rule on small entities, small entities are 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.

CategoryNAICS codeSIC codeNAICS small business size standard (in number of employees or millions of dollars)
1. Chemical and Allied Products, NEC4246905169100

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 final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. This final 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.

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. 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.

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.”

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. Start Printed Page 43936

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 final rule does not have tribal implications, as specified in Executive Order 13175. Today's final rule does not significantly or uniquely affect the communities of Indian tribal governments. It does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this rule.

G. 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 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 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.

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 a significant regulatory action under Executive Order 12866.

I. The National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 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 did not consider the use of any voluntary consensus standards.

VII. Congressional Review

A. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective October 23, 2003.

Start List of Subjects

List of Subjects in 40 CFR Part 82

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Dated: July 11, 2003.

Linda J. Fisher,

Acting Administrator.

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For reasons set out in the preamble, title 40 chapter I of the Code of Federal Regulations is amended as follows:

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PART 82—PROTECTION OF STRATOSPHERIC OZONE

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1. The authority citation for subpart 82 continues to read as follows:

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Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

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Subpart A—Production and Consumption Controls

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2. Section 82.4 is amended by adding paragraph (l)(5).

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Prohibitions for Class I Controlled Substances.
* * * * *

(1) * * *

(5) Import or export any quantity of a controlled substance listed in Class I, Group VI, in Appendix A to this subpart, from or to any foreign state not Party to the Copenhagen Amendments (as noted in Appendix C, Annex l, to this subpart), unless that foreign state is complying with the Copenhagen Amendments (as noted in Appendix C, Annex 2, to this subpart).

* * * * *
Start Amendment Part

5. Appendix C to Subpart A is revised to read as follows:

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Appendix C to Subpart A of Part 82—Parties to the Montreal Protocol, and Nations Complying With, But Not Parties To, The Protocol

Annex 1 to Appendix C of Subpart A—Parties to the Montreal Protocol (as of January 29, 2003)

The check mark [✓] means the particular country ratified the Protocol or the specific Amendment package. Amendment packages are identified by the name of the city where the amendment package was negotiated and agreed. Updated lists of Parties to the Protocol and the Amendments can be located at: http://www.unep.org/​ozone/​ratif.shtml.

Foreign stateMontreal protocolLondon amendmentsCopenhagen amendmentsMontreal amendmentsBeijing amendments
Albania
Algeria
Angola
Antigua and Barbuda
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Argentina
Armenia
Australia
Austria
Azerbaijan
Bahamas
Bahrain
Bangladesh
Barbados
Belarus
Belgium
Belize
Benin
Bolivia
Bosnia and Herzegovina
Botswana
Brazil
Brunei Darussalam
Bulgaria
Burkina Faso
Burundi
Cambodia
Cameroon
Canada
Cape Verde
Central African Republic
Chad
Chile
China
Colombia
Comoros
Congo
Congo, Democratic Republic of
Costa Rica
Cote d'Ivoire
Croatia
Cuba
Cyprus
Czech Republic
Denmark
Djibouti
Dominica
Dominican Republic
Ecuador
Egypt
El Salvador
Estonia
Ethiopia
European Community
Federated States of Micronesia
Fiji
Finland
France
Gabon
Gambia
Georgia
Germany
Ghana
Greece
Grenada
Guatemala
Guinea
Guinea Bissau
Guyana
Haiti
Honduras
Hungary
Iceland
India
Indonesia
Iran, Islamic
Ireland
Israel
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Italy
Jamaica
Japan
Jordan
Kazakhstan
Kenya
Kiribati
Korea, Democratic People's Republic of
Korea, Republic of
Kuwait
Kyrgyzstan
Lao, People's Democratic Republic
Latvia
Lebanon
Lesotho
Liberia
Libyan Arab Jamahiriya
Liechtenstein
Lithuania
Luxembourg
Madagascar
Malawi
Malaysia
Maldives
Mali
Malta
Marshall Islands
Mauritania
Mauritius
Mexico
Moldova
Monaco
Mongolia
Morocco
Mozambique
Myanmar
Namibia
Nauru
Nepal
Netherlands
New Zealand
Nicaragua
Niger
Nigeria
Norway
Oman
Pakistan
Palau
Panama
Papua New Guinea
Paraguay
Peru
Philippines
Poland
Portugal
Qatar
Romania
Russian Federation
Rwanda
Saint Kitts & Nevis
Saint Lucia
Saint Vincent and the Grenadines
Samoa
Sao Tome and Principe
Saudi Arabia
Senegal
Seychelles
Sierra Leone
Singapore
Slovakia
Slovenia
Solomon Island
Somalia
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South Africa
Spain
Sri Lanka
Sudan
Suriname
Swaziland
Sweden
Switzerland
Syrian Arab Republic
Tajikistan
Tanzania, United Republic of
Thailand
The Former Yugoslav Republic of Macedonia
Togo
Tonga
Trinidad and Tobago
Tunisia
Turkey
Turkmenistan
Tuvalu
Uganda
Ukraine
United Arab Emirates
United Kingdom
United States of America
Uruguay
Uzbekistan
Vanuatu
Venezuela
Viet Nam
Yemen
Yugoslavia
Zambia

Annex 2 to Appendix C of Subpart A—Nations Complying with, But Not Parties to, the Protocol [Reserved]

End Supplemental Information

Footnotes

1.  The formula for “consumption” is production + import − export. Because “consumption” encompasses “production and import”, production and import controls also have the effect of controlling consumption.

Back to Citation

[FR Doc. 03-18856 Filed 7-24-03; 8:45 am]

BILLING CODE 6560-50-P