Protection of Stratospheric Ozone

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-5518-1]

Protection of Stratospheric Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of extension of stay.

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SUMMARY: This action temporarily extends a stay of the effectiveness of

a certain reporting requirement in the petition process for the import

of used class I controlled substances, but only extends the stay to the

extent necessary to complete reconsideration (including any appropriate

regulatory action) of the requirement. In the Federal Register

published January 31, 1996, EPA announced, pursuant to Clean Air Act

section 307(d)(7)(B), a three-month administrative stay and

reconsideration of this reporting requirement (61 FR 3316). The

provision at issue is 40 CFR 82.13(g)(2)(viii), promulgated under

sections 604 and 606 of the Clean Air Act, which requires the importer

of a used class I controlled substance to certify that the purchaser of

the controlled substance is liable for the tax.

In the same Federal Register published January 31, 1996, pursuant

to Clean Air Act section 301(a)(1), EPA proposed an extension of the

stay beyond the three-month administrative stay, but only to the extent

necessary to complete reconsideration (including any appropriate

regulatory action) of the rule in question (61 FR 3361). This action

finalizes the proposed extension. Sufficient concerns have been raised

regarding this provision that EPA believes it is appropriate not only

to reconsider the provision, but also to stay the requirement during

the period of reconsideration, which will extend beyond the three-month

period provided under the administrative stay.

EFFECTIVE DATE: July 11, 1996.

FOR FURTHER INFORMATION CONTACT: Tom Land, Stratospheric Protection

Division, Office of Air and Radiation, U.S. Environmental Protection

Agency (6205-J), 401 M Street, SW., Washington, DC 20460, (202) 233-

9185. The Stratospheric Ozone Information Hotline at 1-800-296-1996 can

also be contacted for further information.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this action are those that wish

to import used class I controlled ozone-depleting substances. Class I

controlled ozone-depleting substances are listed in Appendix A of the

Federal Register published May 10, 1995 (60 FR 4970). Regulated

categories and entities include:

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Category Examples of regulated entities

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Industry............................ Importers of used class I ozone-

depleting substances.

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This 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. Other types of entities

not listed in the table could also be regulated. To determine whether

your company is regulated by this action, you should carefully examine

the applicability criteria in Sec. 82.13(g)(2) of the rule and/or

applicability criteria in Sec. 82.13(g)(2) of title 40 of the Code of

[[Page 29486]]

Federal Regulations. 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.

I. Background

In the Federal Register published January 31, 1996, EPA announced

that, pursuant to Clean Air Act section 307(d)(7)(B), 42 U.S.C.

7607(d)(7)(B), the Agency was convening a proceeding for

reconsideration of 40 CFR 82.13(g)(2)(viii), which requires an importer

petitioning to import used class I controlled substances to certify

that the purchaser of the controlled substance is liable for the tax

(61 FR 3316). EPA had promulgated this provision as a final federal

rule on May 10, 1995, under sections 604 and 606 of the Clean Air Act

(60 FR 24970). Readers should refer to the notice of reconsideration

for a complete discussion of the background and provision affected. In

the notice of reconsideration EPA also announced a three-month

administrative stay of the effectiveness of 40 CFR 82.13(g)(2)(viii)

during reconsideration, pursuant to Clean Air Act section 307(d)(7)(B),

42 U.S.C. 7607(d)(7)(B). In an accompanying notice, EPA proposed to

extend the stay beyond the three-month administrative stay, pursuant to

Clean Air Act section 301(a)(1), 42 U.S.C. 7601(a)(1), but only to the

extent necessary to complete reconsideration (including any appropriate

regulatory action) of the rule in question (61 FR 3361). EPA received

one comment on this proposal, which is addressed below.

EPA did not complete reconsideration (including appropriate

regulatory action) within the three-month period of the administrative

stay, and is now extending the stay of this provision until the Agency

completes reconsideration. The stay will extend until the effective

date of EPA's final action following reconsideration of this rule.

EPA is staying the reporting requirement contained in 40 CFR

82.13(g)(2)(viii) and associated compliance dates in order to complete

reconsideration of this provision, and take appropriate action,

following the notice and comment procedures of section 307(d) of the

Clean Air Act. If, after reconsideration of this provision, EPA

determines that it is appropriate to impose new requirements that are

stricter than the existing rules, EPA will propose an adequate

compliance period from the date of final action on reconsideration. EPA

will seek to ensure that the affected parties are not unduly prejudiced

by the Agency's reconsideration. EPA expects that any EPA proposal

regarding changes to the tax liability certification requirement for a

petition for the import of used class I controlled substances would be

subject to the notice and comment procedures of Clean Air Act section

307(d).

II. Comments

EPA received only one comment on the proposed extension of the

stay. The commenter stated that further reconsideration of the

reporting requirement is unnecessary because ``the Internal Revenue

Service (IRS) has subsequently clarified that the tax is, indeed, due

upon first sale or use after import.'' The commenter also stated that

it supports EPA's petition process requiring all importers of used

Class I substances to supply information to the Agency, including the

certification of liability for the tax. The commenter was concerned

that delay in imposing the full petition requirements could result in

additional illegal CFCs entering the U.S.

EPA believes that a stay of the provision is appropriate to ensure

that the Agency meets the procedural requirements for rulemaking and

because a temporary stay should not unduly hinder EPA's enforcement of

the requirements for imports of used Class I substances. On May 31,

1995, PAACO International, Inc., an importer of used class I controlled

ozone-depleting substances, petitioned EPA for reconsideration of the

certification provision at issue. The petitioner asserted that EPA did

not give the public notice of the requirement and therefore it was

``impracticable to raise objections'' to the provision during the

public comment period. The petitioner also claimed that the objections

are of central relevance to the rule because it believes that

``purchasers'' are not liable for the tax, it could not certify

liability, and it could not conduct its business under the rule. EPA

granted the request for reconsideration and stay of the provision,

recognizing that the proposed rule did not discuss the possibility of a

certification of liability for taxes. EPA believes it would not be

appropriate to reimpose the provision prior to conducting a notice and

comment rulemaking on such provision.

Moreover, EPA believes the stay does not unduly hinder the Agency's

ability to control illegal imports of used class I controlled

substances. The stay only applies to the one certification requirement

in Sec. 82.13(g)(2)(viii), and the remainder of the petition

requirement remains intact. In addition, the stay is temporary, and

through the process of reconsidering the requirement, EPA will

determine whether to conduct a rulemaking to reimpose the certification

requirement or a variant thereof. To the extent that the comment urges

EPA to retain the certification requirement as is, EPA will take the

comment into account in reconsidering the certification requirement.

Thus, with today's action, EPA temporarily extends the stay of 40

CFR 82.13(g)(2)(viii) until EPA has completed final reconsideration

(including any appropriate regulatory action) of the rule in question.

List of Subjects in 40 CFR Part 82

Environmental protection, Administrative practice and procedure,

Air pollution control, Chemicals, Chlorofluorocarbons, Exports,

Hydrochlorofluorocarbons, Imports, Interstate commerce, Nonessential

products, Reporting and recordkeeping requirements, Stratospheric ozone

layer.

Dated: June 3, 1996.

Carol M. Browner,

Administrator.

Part 82, chapter I, title 40, of the Code of Federal Regulations,

is amended to read as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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

2. Section 82.13 is amended by adding paragraph (g)(2)(xi) to read

as follows:

Sec. 82.13 Recordkeeping and reporting.

* * * * *

(g) * * *

(2) (xi) Rules stayed for reconsideration. Notwithstanding any

other provisions of this subpart, the effectiveness of 40 CFR

82.13(g)(2)(viii) is stayed from July 11, 1996 until the completion of

the reconsideration of 40 CFR 82.13(g)(2)(viii).

* * * * *

[FR Doc. 96-14764 Filed 6-10-96; 8:45 am]

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