81 FR 6765 - Protection of Stratospheric Ozone: Revisions To Reporting and Recordkeeping for Imports and Exports

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 26 (February 9, 2016)

EPA is taking direct final action on minor conforming edits to the stratospheric protection regulations to implement the International Trade Data System. This system allows businesses to transmit the transactional data required by multiple Federal agencies for the import and export of cargo through a single ``window.'' As businesses currently must submit trade data to multiple agencies, in multiple ways, and often on paper, the transition to electronic filing is expected to save businesses time and money. Specifically, this rule removes the requirement that the petition for used ozone-depleting substances accompany the shipment through U.S. Customs and removes references to Customs forms that are obsolete under the new system.

[Federal Register Volume 81, Number 26 (Tuesday, February 9, 2016)]
[Rules and Regulations]
[Pages 6765-6768]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-02321]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2015-0309; FRL-9941-82-OAR]
RIN 2060-AS68


Protection of Stratospheric Ozone: Revisions To Reporting and 
Recordkeeping for Imports and Exports

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on minor conforming edits to 
the stratospheric protection regulations to implement the International 
Trade Data System. This system allows businesses to transmit the 
transactional data required by multiple Federal agencies for the import 
and export of cargo through a single ``window.'' As businesses 
currently must submit trade data to multiple agencies, in multiple 
ways, and often on paper, the transition to electronic filing is 
expected to save businesses time and money. Specifically, this rule 
removes the requirement that the petition for used ozone-depleting 
substances accompany the shipment through U.S. Customs and removes 
references to Customs forms that are obsolete under the new system.

DATES: This rule is effective on May 9, 2016 without further notice, 
unless EPA receives adverse comment by March 10, 2016. 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.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2015-0309, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Jeremy Arling by regular mail: U.S. 
Environmental Protection Agency, Stratospheric Protection Division 
(6205T), 1200 Pennsylvania Avenue NW., Washington, DC, 20460; by 
telephone: (202) 343-9055; or by email: [email protected]. You may 
also visit the EPA's Ozone Protection Web site at www.epa.gov/ozone/strathome.html for further information about EPA's Stratospheric Ozone 
Protection regulations, the science of ozone layer depletion, and other 
related topics.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Why is EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment. This rule is intended to make minor changes like the removal 
of references to U.S. Customs forms that will no longer be available 
when the electronic International Trade Data System is implemented. 
However, in the ``Proposed Rules'' section of today's Federal Register, 
we are publishing a separate document that will serve as the proposed 
rule to make these edits if adverse comments are received on this 
direct final rule. We will not institute a

[[Page 6766]]

second comment period on this action. Any parties interested in 
commenting must do so at this time. For further information about 
commenting on this rule, see the ADDRESSES section of this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

B. Does this action apply to me?

    This rule may affect the following categories: Industrial Gas 
Manufacturing entities (NAICS code 325120), including fluorinated 
hydrocarbon gas manufacturers, importers, and exporters; Other Chemical 
and Allied Products Merchant Wholesalers (NAICS code 424690), including 
chemical gases and compressed gases merchant importers and exporters; 
and refrigerant reclaimers or other such entities that might import 
virgin, recovered, or reclaimed refrigerant gas.
    This list is not intended to be exhaustive, but rather to provide a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether your facility, company, business, or 
organization could be 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 section.

C. Overview of the International Trade Data System

    In 2006, U.S. Customs and Border Protection (CBP) began automating 
processes for the import and export of goods to improve the control of 
what enters and leaves the U.S., as well as to improve efficiency. 
Launched under the Security and Accountability for Every Port Act of 
2006 (SAFE Port Act, Pub. L. 109-347) and the 2007 Import Safety 
Executive Order 13439, the multi-agency program called the 
International Trade Data System (the ITDS) assists 48 Federal agencies 
with import/export responsibilities in their efforts to integrate 
import and export cargo processing with CBP's Automated Commercial 
Environment (ACE) for imports, and the Automated Export System (AES) 
for exports.
    On February 19, 2014, the White House issued E.O. 13659 titled 
``Streamlining the Export/Import Process for America's Businesses.'' 
Under E.O. 13659, participating agencies must have all requirements in 
place and in effect to utilize the ITDS, which includes the ACE and the 
AES systems for receiving documentation required for the release of 
imported cargo and the clearance of cargo for export, no later than 
December 31, 2016.
    Under the ITDS, agencies with existing paper-based import and 
export clearance procedures at the port of exit or entry are working 
with CBP to enable electronic filing and processing of the import or 
export shipments based on one set of submitted data that can then be 
checked against all relevant U.S. agency requirements.

D. Overview of Import Requirements Under the Stratospheric Protection 
Program

    The Montreal Protocol on Substances that Deplete the Ozone Layer 
(Montreal Protocol, or Protocol) is the international agreement to 
reduce and eventually eliminate the global production and consumption 
\1\ of ozone-depleting substances (ODS). This goal is accomplished 
through adherence by each Party to the Protocol to phaseout schedules 
for specific controlled substances. The Montreal Protocol is 
implemented in the United States through Title VI of the Clean Air Act. 
EPA issues allowances for the production and consumption of ODS under 
sections 604 and 605 of the Clean Air Act. An allowance represents the 
privilege granted to a company to produce or import one kilogram of the 
specific substance in a given year. EPA establishes the number of 
allowances issued to companies through rulemaking. EPA maintains a 
balance of unexpended allowances through the ODS Tracking System based 
on production, import, and export data reported to the Agency 
quarterly.
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    \1\ ``Consumption'' is defined as the amount of a substance 
produced in the United States, plus the amount imported into the 
United States, minus the amount exported from the United States to 
other Parties to the Montreal Protocol (see section 601(6) of the 
Clean Air Act).
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    At the present time, allowances are required for the import of 
class II controlled substances, all of which are hydrofluorocarbons 
(HCFCs), and for the import of methyl bromide for critical uses. 
Allowances are not required, however, for the import of used controlled 
substances. Used controlled substances are defined as ``substances that 
have been recovered from their intended use systems (may include 
controlled substances that have been, or may be subsequently, recycled 
or reclaimed)'' (40 CFR 82.3). Imports of used controlled substances 
are regulated under Sec.  82.13(g)(2) (for imports of used Class I 
controlled substances) and Sec.  82.24(c)(3) (for imports of used Class 
II controlled substances). Persons seeking to import used controlled 
substances are required to submit a petition to the Agency. The 
petition to import a used controlled substance must contain detailed 
information such as the previous use of the substance, including the 
identity of all previous source facilities from which the material was 
recovered. After review, EPA issues either a ``non-objection notice'' 
allowing the import to proceed or an ``objection notice'' prohibiting 
the import.

II. How is EPA integrating ODS import and export requirements with the 
ITDS?

    For purposes of the ITDS, there are three pathways for the import 
of ozone depleting substances: Imports that require allowances; Imports 
that require a ``non-objection'' notice issued by EPA; and imports that 
do not require any documentation to be reviewed by CBP officers. The 
distinctions between these three categories relate to the type of 
documentation reviewed by CBP upon entry of the shipment. In all 
instances the recordkeeping and quarterly and/or annual reporting 
requirements under 40 CFR part 82, subpart A continue to apply.

A. Imports That Require Allowances

    Importers are not required to present documentation of allowances 
to CBP upon import. Some companies choose to include allowance balance 
statements provided by EPA with documentation accompanying the import. 
This is not a requirement of EPA's regulations but is done by the 
importer to facilitate the entry of the shipment. Under the ITDS, 
providing a paper copy of an allowance statement will be unnecessary as 
information being provided for the CBP entry and TSCA certification 
parts of the filing allow EPA to verify whether the importer has an 
allowance for the import.
    EPA is not changing the reporting and recordkeeping requirements in 
40 CFR part 82, subpart A to integrate these ODS imports into the ITDS. 
Importers are not required to provide a statement of allowances to CBP 
and this would not change under the ITDS.

B. Imports That Require a Non-Objection Notice

    For imports of used controlled substances, current regulations 
require that the petition and non-objection notice ``accompany the 
shipment through U.S. Customs.'' EPA is removing the requirement that 
the petition accompany the shipment through U.S. Customs. EPA does not

[[Page 6767]]

believe that the detailed information in a petition to import used ODS 
is necessary for CBP to make a determination about whether the import 
should enter the U.S. EPA's decision to allow an import of used ODS is 
stated in the non-objection notice. Therefore, EPA would still require 
that the non-objection notice accompany the shipment through Customs.
    One component of the ITDS is the Document Image System (DIS) which 
allows the importer or their broker to file and an agency to view the 
image of a document, as it appears on paper, without paper needing to 
physically be provided. Under the ITDS, the non-objection notice would 
be filed to the DIS. Because this document would be available to CBP, 
EPA finds that filing a non-objection notice to the DIS meets the 
requirements in Sec.  82.13(g)(3)(v) and Sec.  82.24(c)(4)(v) that the 
non-objection notice ``accompany the shipment.'' Therefore, the only 
change EPA is making to the recordkeeping and reporting requirements in 
40 CFR part 82, subpart A to implement the ITDS is to remove the 
requirement that the petition accompany the shipment.

C. Imports Without CBP Documentation

    A third category of ODS imports do not require verification by CBP. 
These include ODS that fall under the following exemptions: Imports for 
purposes of transformation or destruction; imports for laboratory and 
analytical uses; heels or transshipments; and methyl bromide imported 
under the quarantine and preshipment exemption. EPA is not making any 
changes to the reporting and recordkeeping requirements in 40 CFR part 
82, subpart A to integrate these ODS imports into the ITDS.

D. Other Changes To Conform to the ITDS

    EPA is making minor changes to the stratospheric protection 
regulations at 40 CFR part 82, subpart A, to remove references to U.S. 
Customs Service forms that will no longer exist when the ITDS is 
implemented.
Definition of Importer
    The definition of importer at 40 CFR 82.3 and 82.104 includes the 
importer of record ``listed on U.S. Customs Service forms'' for the 
import. The definition of importer would still include the importer of 
record but because CBP will no longer be maintaining forms, EPA is 
removing the clause referencing the Customs Service forms. This change 
does not affect the scope of who would be considered an importer for 
the purposes of 40 CFR part 82.
Recordkeeping and Reporting Requirements
    The recordkeeping and reporting requirements at 40 CFR 82.13(g)(1) 
and 82.24(c)(2) state that an importer of Class I and Class II 
controlled substances, respectively, must maintain the U.S. Customs 
entry form. Under the ITDS, the entry form will no longer exist. EPA 
uses the Customs entry form to verify that a shipment of ODS has been 
properly imported into the United States. EPA believes that some type 
of verifying information is necessary and to the benefit of the 
importer if the origin of the controlled substance is ever in question. 
In order for the Agency to identify an individual shipment within the 
ITDS, EPA is replacing the requirement to keep a record of the Customs 
form with the requirement to keep a record of the entry number. This 
will still be generated by the ITDS and will help EPA to identify the 
specific shipment within the ITDS.
    Similarly, the recordkeeping and reporting requirements at 40 CFR 
82.13(g)(3)(viii) and 82.24(c)(4)(viii) state that an importer of used 
Class I and Class II controlled substances, respectively, must maintain 
the U.S. Customs entry documents for the import. For the reasons 
discussed above, EPA is removing the recordkeeping requirements for the 
U.S. Customs entry documents but is substituting the requirement to 
maintain the entry number for the shipment of used ODS.
    In addition, reporting requirements for exporters of class II 
substances under Sec.  82.24(d)(2) (related to export production 
allowances) or Sec.  82.24(d)(3) (related to Article 5 allowances) 
reference the Shipper's Export Declaration Form and U.S. Customs Form 
7525 as locations for the Employer Identification Number (EIN) of the 
shipper or their agent. EPA is removing references to these two forms 
but is maintaining the requirement that the EIN be provided.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA because the requirements to maintain entry numbers and 
EINs are a subset of the previous requirements to maintain forms 
containing this information. OMB has previously approved the 
information collection activities contained in the existing regulations 
and has assigned OMB control number 2060-0170 and 2060-0438.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This action makes minor changes to 
recordkeeping and reporting requirements to remove references to U.S. 
Customs forms and other small edits.

D. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector. This action merely 
makes minor changes to recordkeeping and reporting requirements to 
remove references to U.S. Customs forms and other small edits.

E. Executive Order 13132: Federalism

    This action 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.

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

    This action does not have tribal implications as specified in 
Executive Order 13175. This rule does not significantly or uniquely 
affect the communities of Indian tribal governments, nor does it impose 
any enforceable duties on communities of Indian tribal governments. 
This action makes minor changes to recordkeeping and reporting 
requirements to remove references to U.S. Customs forms and other small 
edits. Thus, Executive Order 13175 does not apply to this action.

[[Page 6768]]

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

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

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. This action makes minor changes to 
recordkeeping and reporting requirements to remove references to U.S. 
Customs forms and other small edits.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income, or 
indigenous populations because it does not affect the level of 
protection provided to human health or the environment. This action 
makes minor changes to recordkeeping and reporting requirements to 
remove references to U.S. Customs forms and other small edits.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Chemicals, Imports, Ozone, Reporting and 
recordkeeping requirements.

    Dated: January 21, 2016.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, 40 CFR part 82 is amended 
as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

0
1. The authority citation for part 82 continues to read as follows:

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

0
2. In Sec.  82.3, revise the definition for ``Importer'' to read as 
follows:


Sec.  82.3  Definitions for class I and class II controlled substances.

* * * * *
    Importer means any person who imports a controlled substance or a 
controlled product into the United States. ``Importer'' includes the 
person primarily liable for the payment of any duties on the 
merchandise or an authorized agent acting on his or her behalf. The 
term also includes, as appropriate:
    (1) The consignee;
    (2) The importer of record;
    (3) The actual owner; or
    (4) The transferee, if the right to draw merchandise in a bonded 
warehouse has been transferred.
* * * * *
0
3. In Sec.  82.13, revise paragraphs (g)(1)(xii), (g)(3)(v), and 
(g)(3)(viii)(D) to read as follows:


Sec.  82.13  Recordkeeping and reporting requirements for class I 
controlled substances.

* * * * *
    (g) * * *
    (1) * * *
    (xii) The U.S. Customs entry number;
* * * * *
    (3) * * *
    (v) To pass the approved used class I controlled substances through 
U.S. Customs, the non-objection notice issued by EPA must accompany the 
shipment through U.S. Customs.
* * * * *
    (viii) * * *
    (D) The U.S. Customs entry number.
* * * * *

0
4. In Sec.  82.24, revise paragraphs (c)(2)(xiii), (c)(4)(v), 
(c)(4)(viii)(D), (d)(2)(i), and (d)(3)(i) to read as follows:


Sec.  82.24  Recordkeeping and reporting requirements for class II 
controlled substances.

* * * * *
    (c) * * *
    (2) * * *
    (xiii) The U.S. Customs entry number;
* * * * *
    (4) * * *
    (v) To pass the approved used class II controlled substances 
through U.S. Customs, the non-objection notice issued by EPA must 
accompany the shipment through U.S. Customs.
* * * * *
    (viii) * * *
    (D) The U.S. Customs entry number.
* * * * *
    (d) * * *
    (2) * * *
    (i) The Employer Identification Number of the shipper or their 
agent;
* * * * *
    (3) * * *
    (i) The Employer Identification Number of the shipper or their 
agent; and
* * * * *

0
5. In Sec.  82.104, revise paragraph (m)(2) to read as follows:


Sec.  82.104  Definitions.

* * * * *
    (m) * * *
    (2) The importer of record;
* * * * *
[FR Doc. 2016-02321 Filed 2-8-16; 8:45 am]
 BILLING CODE 6560-50-P