25010 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 82

[FRL–5199–2]

Protection of Stratospheric Ozone:

Amendment to Transshipment

Provision in Final Rule Accelerating

the Phaseout of Ozone-Depleting

Substances

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of proposed rulemaking.

SUMMARY: EPA is proposing stricter

requirements for transshipments of

substances that deplete stratospheric

ozone from foreign countries through

the United States to foreign

destinations. The proposed amendment

would require a person to petition the

Environmental Protection Agency (EPA)

prior to the export of a controlled ozonedepleting substance to the United States

for transshipment. EPA is proposing the

amendment due to new information that

the current regulation is being abused to

illegally introduce controlled substances

into U.S. commerce. The proposed

amendment, at the request of industry,

will protect the economic interests of

legitimate businesses by deterring the

illegal diversion of transshipments of

controlled substances into U.S.

commerce.

DATES: Written comments on this

proposal must be received by June 9,

1995, at the address below. A public

hearing, if requested, will be held in

Washington, D.C. If such a hearing is

requested, it will be held on May 25,

1995, and the comment period would

then be extended to June 26, 1995.

Anyone who wishes to request a hearing

should call Tom Land at 202/233–9185

by May 17, 1995. Interested persons

may contact the Stratospheric Ozone

Protection Hotline at 1–800–296–1996

to see if a hearing will be held and to

obtain the date and location of any

hearing. Any hearing will be strictly

limited to the subject matter of this

proposal, the scope of which is

discussed below.

ADDRESSES: Comments on this proposal

must be submitted to the Air Docket

Office, Public Docket No. A–92–13,

Room M–1500, Environmental

Protection Agency, 401 M St., SW,

Washington, DC 20406. Additional

comments and materials supporting this

rulemaking are contained in Docket No.

A–92–13. The Docket may be inspected

from 8 a.m. until 5:30 p.m., Monday

through Friday, at the address above. A

reasonable fee may be charged for

copying Docket materials.

FOR FURTHER INFORMATION CONTACT: Tom

Land, Environmental Protection

Agency, Office of Atmospheric

Programs, Stratospheric Protection

Division, (6205–J), 401 M St., SW,

Washington, DC 20460, (202) 233–9185.

The Stratospheric Ozone Protection

Hotline at 1–(800)–296–1996 can also be

contacted for further information of a

copy of this rule.

SUPPLEMENTARY INFORMATION:

I. Background

Under the current regulatory

requirements, published in the Federal

Register on December 10, 1993, a person

who transships a controlled substance

from one foreign country through the

United States to another foreign

destination does not need allowances.

The Environmental Protection Agency

(EPA) implements a program of

allowances to limit and monitor the

production, import and export of

controlled substances in the United

States.

In the proposed rulemaking published

in the Federal Register on November 10,

1994 (59 FR 56275), EPA proposed

clarifications to the definition of

transshipment. In response to that

proposal several companies suggested

EPA create a permitting process for

transshipments to combat the known

use of transshipment as a means of

illegally importing controlled

substances. Since that time, EPA has

confirmed that transshipments are a

large and common loophole for the

illegal entry of controlled substances

into U.S. commerce. EPA and U.S.

Customs criminal investigators have

identified transshipment as one of the

most likely schemes for the illegal

import of controlled substances into the

United States. As recently as January

1995, three men were arrested for

conspiracy to divert material into U.S.

interstate commerce that they alleged

was being transshipped. Legitimate U.S.

companies that are worldwide leaders

in the transition to alternatives are being

adversely affected by illegal imports,

and have requested such a change to

discourage this activity.

II. Amendment to the Transhipment

Requirements

To eliminate the use of transhipments

as a loophole for the illegal import of

controlled substances, EPA is proposing

that a person must petition the Agency

to tranship class I substances. The

proposed petition process for

transhipments would parallel the

petition process created to combat the

illegal imports of used, recycled and

reclaimed controlled substances.

The proposed petition process for

transhipments would require a person

to submit a petition to EPA to tranship

each shipment through the United

States at least 15 working days prior to

the date the ship is to leave the foreign

country prior to arriving in the U.S. to

tranship. The petition must include the

following information:

• The name and quantity of the

controlled substance to be transhipped,

• The name and address of the

importer, the importer I.D. number, the

contact person, and the phone and fax

numbers,

• Name and address of the exporter

and/or foreign owner of the material,

• The U.S. port of entry for the

import, the expected date of shipment

and the vessel transporting the

chemical,

• The intended foreign destination of

the transhipped material, the

anticipated date of export from the U.S.,

U.S. port of export, and, when practical,

the anticipated vessel that will transport

the chemical.

As with petitions to import used

controlled substances, EPA will have 15

working days to review the petition to

tranship. If during the 15 working days,

EPA decides to object to the petition or

to request additional information, the

person submitting the petition will be

notified. If EPA needs additional

information, the importer may re-submit

the petition with the requested

information. If EPA does not object to

the particular petition within the 15

working days, the person may proceed

with the transhipment and assume it is

permitted. EPA will then notify the U.S.

Customs Service of the anticipated

arrival of the shipments that will be

transhipped to another foreign

destination.

EPA believes that a shipment-byshipment petition process for

transhipments will most effectively

counter illegal imports and restore

market-based incentives for the

transition to alternatives to controlled

ozone-depleting substances. Shipments

to the United States considered

Transportation and Export (T&E) are not

subject to the proposed petition

requirements.

III. Summary of Supporting Analysis

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency

must determine whether this regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Proposed Rules 25011

The Order defines ‘‘significant’’

regulatory action as one that is likely to

lead to a rule that may:

(1) Have an annual effect on the

economy of $100 million or more, or

adversely and materially affect 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 entitlement, 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 OMB and

EPA that this amendment to the final

rule is not a ‘‘significant regulatory

action’’ under the terms of Executive

Order 12866 and is therefore not subject

to OMB review under the Executive

Order.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5

U.S.C. 601–602, requires that Federal

agencies examine the impacts of their

regulations on small entities. Under 5

U.S.C. 604(a), whenever an agency is

required to publish a general notice of

proposed rulemaking, it must prepare

and make available for public comment

an initial regulatory flexibility analysis

(RFA). Such an analysis is not required

if the head of an agency certifies that a

rule will not have a significant

economic impact on a substantial

number of small entities, pursuant to 5

U.S.C. 605(b).

The Agency originally published an

RFA to accompany the August 12, 1998

final rule (53 FR 30566) that placed the

initial limits on the production and

consumption of CFCs and halons. The

RFA was also updated as Appendix G

of the Regulatory Impact Analysis for

the regulations implementing the

phaseout schedule of section 604 of the

Clean Air Act Amendments of 1990.

The Addendum to the Regulatory

Impact Analysis was further updated in

1993 to examine the impact of the

acceleration of the phaseout and the

phaseout of HCFCs on small businesses.

The analysis in the Addendum

indicated that the actions were not

expected to have a substantial impact on

small entities.

EPA believes that any impact that

today’s proposed amendment will have

on the regulated community will serve

only to provide relief from otherwise

applicable regulations, and will

therefore limit the negative economic

impact associated with the regulations

previously promulgated under Section

604 and 606. Although almost all

businesses participants in the phaseout

program for ozone-depleting substances

are large businesses, today’s proposed

amendment reduces reporting or

recordkeeping burdens that might

possibly impact small businesses.

Therefore, the proposed amendment is

expected to have minimal if any impact

on small entities.

Under section 605 of the Regulatory

Flexibility Act, 5 U.S.C. 605, I certify

that the regulation promulgated in this

notice of proposed rulemaking will not

have any additional negative economic

impacts on any small entities.

C. Paperwork Reduction Act

The information collection

requirements in this proposed rule have

been approved by the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act, 44 U.S.C.

3501 et. seq. and assigned control

number, OMB 2060–0170. An

Information Collection Request

document has been prepared by EPA

(ICR No. 1432.15) and a copy may be

obtained from Sandy Farmer,

Information Policy Branch, U.S. EPA,

401 M St. SW. (2136), Washington, DC

20460 or by calling (202)–260–2740.

The information collection

requirements for this final rule has an

estimated reporting burden averaging

23.3 hours per response. This estimate

includes time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed and completing the

collection of information.

Send comments regarding the burden

estimate of any other aspect of this

collection of information, including

suggestions for reducing this burden to

Chief, Information Policy Branch, U.S.

EPA, 401 M St., SW., (2136),

Washington, DC 20460; and to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, Washington, DC 20503, marked

‘‘Attention: Desk Officer for EPA.’’ The

final rule will respond to any OMB or

public comments on the information

collection requirements contained in

this proposal.

D. Enhancing the Intergovernmental

Partnership Under Executive Order

12875

In compliance with Executive Order

12875 we have involved state, local, and

tribal governments in the development

of this rule to the extent they are

affected by these requirements. EPA is

conducting an outreach program to

facilitate the transition for state, local

and tribal governments to ozonefriendly alternatives.

E. Unfunded Mandate Act

Section 202 of the Unfunded

Mandates Reform Act of 1995 requires

EPA to prepare a budgetary impact

statement before promulgating a rule

that includes a Federal mandate that

may result in expenditure by state, local

and tribal governments, in aggregate, or

by the private sector, of $100 million or

more in any one year. Section 203

requires the Agency to establish a plan

for obtaining input from and informing

any small governments that may be

significantly or uniquely affected by the

rule. Section 250 requires that

regulatory alternatives be considered

before promulgating a rule for which a

budgetary impact statement is prepared.

The Agency must select the least costly,

most cost-effective, or least burdensome

alternative that achieves the rule’s

objectives, unless there is an

explanation why this alternative is not

selected or this alternative is

inconsistent with law.

The net effect of all the amendments

to the accelerated phaseout rule is a

reduction in regulatory burden for

regulated entities. This proposed

amendment is designed to confront

illegal activities which are costing

legitimate U.S. businesses and the

government millions of dollars in lost

revenue. Because this proposed

amendment to the rule is estimated to

result in the expenditure of less than

$100 million in any one year by state,

local, and tribal governments, or the

private section, the Agency has neither

prepared a budgetary impact statement

nor addressed the selection of the least

costly, most cost-effective, or least

burdensome alternative. Because small

government will not be significantly or

uniquely affected by this rule, the

Agency is not required to develop a plan

with regard to small governments.

List of Subjects in 40 CFR Part 82

Environmental protection,

Administrative practice and procedure,

Air pollution control, Chemicals,

Chlorofluorocarbons, Exports,

Hydrochlorofluorocarbons, Imports,

Ozone layer, Reporting and

recordkeeping requirements,

Stratospheric ozone layer.

Dated: April 19, 1995.

Carol Browner,

Administrator.

Part 82 is proposed to be amended as

follows:
25012 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Proposed Rules

PART 82—PROTECTION OF

STRATOSPHERIC OZONE

1. The authority citation for part 82

continues to read as follows:

Authority: 42 U.S.C. 7414, 7671–671q.

Subpart A—Production and

Consumption Controls

2. Section 82.4 is amended by adding

paragraph (g), to read as follows:

§ 82.4 Prohibitions.

* * * * *

(g) Effective January 1, 1995, no

person may import, at any time in any

control period, a used class I controlled

substance, or tranship a controlled

substance through the United States,

without petitioning the Administrator as

under § 82.13(g)(2) for authorization.

* * * * *

3. Section 82.13 is amended by

adding paragraph (g)(2) to read as

follows:

§ 82.13 Record-keeping and reporting

requirements.

* * * * *

(g) * * *

(1) * * *

(2) Petitioning—Importers of Used

Controlled Substances and

Transhipments. For each shipment of a

used controlled substance

(contaminated, recycled or reclaimed

material), or each transhipment of a

class I controlled substance, an importer

must submit to the Administrator, at

least 15 working days before the

shipment is to leave the port of export,

the following information in a petition:

(i) The name and quantity of the used

controlled substance to be imported

(including material that has been

recycled or reclaimed) or of the

controlled substance to be transhipped;

(ii) The name and address of the

importer, the importer ID number, the

contact person, and the phone and fax

numbers;

(iii) Name and address of the source(s)

of the used controlled substance,

including a description of the previous

use(s), when possible;

(iv) Name and address of the exporter

and/or foreign owner of the material,

(v) The U.S. port of entry for the

import, the expected date of arrival of

the shipment and the vessel

transporting the chemical;

(vi) The intended use of the used

controlled substance;

(vii) The intended foreign destination

of the transhipped material, the

anticipated date of export from the U.S.,

U.S. port of export, and, when practical,

the anticipated vessel that will transport

the chemical.

* * * * *

[FR Doc. 95–10615 Filed 5–9–95; 8:45 am]

BILLING CODE 6560–50–M