Community Right-to-Know; Toxic Chemical Release Reporting Using North American Industry Classification System (NAICS); Final Rule, 32464-32478 [06-5131]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 108 (Tuesday, June 6, 2006)]
[Rules and Regulations]
[Pages 32464-32478]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5131]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[EPA-HQ-TRI-2002-0003; FRL-8180-2]
RIN 2025-AA10


Community Right-to-Know; Toxic Chemical Release Reporting Using 
North American Industry Classification System (NAICS); Final Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA has determined it is appropriate to amend its regulations 
for the Toxics Release Inventory (TRI) to include the North American 
Industry Classification System (NAICS) codes. We are including the 
NAICS codes that correspond to the Standard Industrial Classification 
(SIC) codes that are currently subject to Toxics Release Inventory 
(TRI) reporting requirements in order to facilitate the transition from 
reporting of SIC codes on TRI reporting forms to reporting of NAICS 
codes. Consistent with the language of section 313(b)(1)(A) of the 
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), SIC 
codes still remain in the regulatory text as a basis for identifying 
the facilities that are subject to TRI requirements, along with the new 
NAICS codes.
    EPA conducted a careful crosswalk between the SIC codes covered 
under EPCRA section 313 and section 6607 of the Pollution Prevention 
Act (PPA) and their corresponding NAICS codes. The Agency believes it 
has correctly identified the covered NAICS codes and no longer expects 
facilities to identify their SIC codes to determine TRI Program 
compliance. Facilities may now rely on the list of covered NAICS codes 
to determine whether they are required to report to the TRI Program.

DATES: This final rule is effective on August 7, 2006. Facilities will 
be required to report NAICS codes beginning with TRI reporting forms 
that are due on July 1, 2007, covering releases and other waste 
management quantities at the facility for the 2006 calendar year.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-TRI-2002-0003. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the HQ 
EPA Docket Center, EPA West Building, Room B102, 1301 Constitution 
Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the OEI Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: For general information on TRI, 
contact the Emergency Planning and Community Right-to-Know Hotline at 
(800) 424-9346 or (703) 412-9810, TDD (800) 553-7672, https://
www.epa.gov/epaoswer/hotline/. For specific information on this 
rulemaking contact: Judith Kendall, Toxics Release Inventory Program 
Division, Mail code 2844T, OEI, Environmental Protection Agency, Ariel 
Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, 
Telephone: 202-566-0750; Fax: 202-566-0741; e-mail address: 
kendall.judith@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Entities that may be affected by this action are those facilities 
that have 10 or more full-time employees or the equivalent 20,000 hours 
per year that manufacture, process, or otherwise use toxic chemicals 
listed on the TRI, and that are required under section 313 of EPCRA and 
section 6607 of the PPA to report annually to EPA and States their 
environmental releases and other waste management quantities of such 
chemicals. Under Executive Order 13148, revised April 26, 2000 (65 FR 
24599), all Federal facilities are required to comply with the 
provisions set forth in section 313 of EPCRA and section 6607 of the 
PPA. Federal facilities are required to comply with those provisions 
without regard to SIC or NAICS delineations.
    Potentially affected categories and entities may include, but are 
not limited to:

------------------------------------------------------------------------
           Category            Examples of potentially affected entities
------------------------------------------------------------------------
Industry.....................  SIC major group codes 10 (except 1011,
                                1081, and 1094), 12 (except 1241), or 20
                                through 39; industry codes 4911, 4931,
                                or 4939 (limited to facilities that
                                combust coal and/or oil for the purpose
                                of generating power for distribution in
                                commerce); or 4953 (limited to
                                facilities regulated under the Resource
                                Conservation and Recovery Act, subtitle
                                C, 42 U.S.C. 6921 et. seq.), or 5169, or
                                5171, or 7389 (limited to facilities
                                primarily engaged in solvent recovery
                                services on a contract or fee basis).
Federal Government...........  Federal facilities.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in the table could also be 
affected. To determine whether your facility is affected by this 
action, you should carefully examine the applicability criteria in part 
372, subpart B of Title 40 of the Code of Federal Regulations. If you 
have any questions regarding the applicability of this action

[[Page 32465]]

to a particular entity, consult the person listed in the FOR FURTHER 
INFORMATION CONTACT section.

II. What Is EPA's Statutory Authority for Taking This Action?

    EPA is finalizing this action under sections 313(g)(1) and 328 of 
EPCRA, 42 U.S.C. 11023(g)(1) and 11048. EPCRA is also referred to as 
Title III of the Superfund Amendments and Reauthorization Act of 1986 
(SARA) (Pub. L. 99-499). In general, section 313 of EPCRA requires 
owners and operators of facilities in specified SIC codes that 
manufacture, process, or otherwise use a listed toxic chemical in 
amounts above specified threshold levels to report certain facility 
specific information about such chemicals, including the annual 
releases and other waste management quantities. Section 313(g)(1) of 
EPCRA requires EPA to publish a uniform toxic chemical release form for 
these reporting purposes, and it also prescribes, in general terms, the 
types of information that must be submitted on the form. Section 
313(g)(1)(A) requires owners and operators of facilities that are 
subject to section 313 requirements to report the principal business 
activities at the facilities. However, Congress provided no guidance as 
to how such activities should be described. In the past, EPA has 
required owners and operators of such facilities to identify their 
principal business activities by reporting, among other things, their 
primary, and any other applicable SIC codes for the facility. Congress 
also granted EPA broad rulemaking authority to allow the Agency to 
fully implement the statute. EPCRA section 328 authorizes the 
``Administrator [to] prescribe such regulations as may be necessary to 
carry out this chapter'' (42 U.S.C. 11048).
    Consistent with these authorities, EPA is amending 40 CFR part 372 
to include the NAICS codes that correspond to the SIC codes that are 
currently subject to section 313 of EPCRA and section 6607 of the PPA. 
Owners and operators of facilities that are subject to section 313 must 
identify their principal business activities by NAICS codes beginning 
with TRI reporting forms that are due on July 1, 2007, covering 
releases and other waste management quantities at the facility for the 
2006 calendar year. Finally, EPA is amending 40 CFR 372.38(e) to extend 
the exemption provided therein to owners of covered facilities who 
lease, with no other business interest, such facilities to operators of 
establishments that are classified in any SIC code or NAICS code that 
is subject to TRI requirements.
    For the purpose of establishing consistency with the NAICS 
classification methodology, and to avoid confusion in the future with 
respect to reporting obligations by establishments that are considered 
auxiliary establishments under the SIC system, EPA is changing its 
interpretation that EPCRA reporting requirements apply to auxiliary 
establishments. EPA believes this change is warranted in light of the 
significant differences in treatment of auxiliary establishments 
between the SIC and NAICS systems. It is possible, in light of EPA's 
new interpretation, that some auxiliary establishments will no longer 
be subject to TRI reporting requirements. EPA is also amending the 
regulations to extend the exemption provided in the regulations to 
owners of covered facilities who lease, with no other business 
interest, such facilities to operators of establishments that are 
classified in any SIC code or NAICS code that is subject to TRI 
requirements. The TRI regulations currently exempt from TRI reporting 
requirements ``owners of facilities such as industrial parks, all or 
part of which are leased to persons who operate establishments within 
SIC code 20 through 39 where the owner has no other business interest 
in the operation of the covered facility.'' EPA believes it is 
appropriate to extend this exemption to owners of facilities that lease 
such facilities to operators of establishments within the SIC codes 
added in the 1997 TRI Industry Expansion Rule, when such owners have no 
other business interest in the operation of such establishments. This 
amendment is unrelated to the purpose of this rule which is to change 
TRI reporting from SIC codes to NAICS codes. The Agency is simply using 
the opportunity of this rulemaking to extend the exemption to all 
facilities that are covered under TRI.

III. Background Information

What Is the General Background for This Action?

    Section 313 of EPCRA and section 6607 of the PPA require owners and 
operators of certain facilities called ``covered facilities'' to 
annually report to EPA, and to the State in which the facility is 
located, their releases and other waste management quantities of listed 
toxic chemicals. 42 U.S.C. 11023, 13106. In general, a covered facility 
is one that: (1) Manufactures, processes, or otherwise uses one or more 
chemicals listed in the EPCRA section 313 list of toxic chemicals in 
excess of specified threshold quantities; (2) has 10 or more full-time 
employees or the equivalent 20,000 hours per year and; (3) is 
classified in an applicable SIC code. 42 U.S.C. 11023(b)(1)(A); 40 CFR 
372.22. Information collected pursuant to section 313 of EPCRA and 
section 6607 of PPA is organized into the national TRI data base which 
is readily accessible to the public, researchers, industry, government 
agencies, and other interested parties.
    When Congress enacted EPCRA in 1986, it specifically identified the 
manufacturing sector, which included facilities in SIC major group 
codes 20 through 39 (see Executive Office of the President, Office of 
Management and Budget, Standard Industrial Classification Manual 1987 
(hereinafter referred to as the 1987 SIC Manual), as being subject to 
the reporting requirements of section 313. Section 313(b)(1)(A) states:


    The requirements of this section shall apply to owners and 
operators of facilities that have 10 or more full time employees and 
that are in Standard Industrial Classification Codes 20 through 39 
(as in effect on July 1, 1985) and that manufactured, processed or 
otherwise used a toxic chemical listed under subsection (c) of this 
section in excess of the quantity of that chemical established under 
subsection (f) of this section during the calendar year for which a 
release form is required under this section.

    In addition, in 1997, pursuant to section 313(b)(1)(B), EPA added 
seven industry groups to the list of industries required to report to 
EPA and State governments. See 62 FR 23833, May 1, 1997 (hereinafter 
referred to as the Industry Expansion Rule). These industries included 
metal mining, coal mining, electrical utilities that combust coal and/
or oil for the purpose of generating power for distribution in 
commerce, facilities regulated under the Resource Conservation and 
Recovery Act (RCRA) subtitle C, chemical wholesalers, petroleum 
terminals and bulk stations and solvent recovery services. As a result, 
those facilities with the following SIC code designations (that meet 
all other applicable threshold criteria for TRI reporting) must report 
toxic chemical releases and other waste management quantities of toxic 
chemicals each year: SIC major group codes 10 (except 1011, 1081, and 
1094), 12 (except 1241), or 20 through 39; industry codes 4911, 4931, 
or 4939 (limited to facilities that combust coal and/or oil for the 
purpose of generating power for distribution in commerce); 4953 
(limited to facilities regulated under the Resource Conservation and 
Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.); 5169; 5171; or 7389 
(limited to facilities primarily engaged in solvent recovery services 
on

[[Page 32466]]

a contract or fee basis). (See 40 CFR 372.22.)
    As explained below, the United States is in the process of 
replacing SIC with NAICS. This final action will put NAICS in place for 
the TRI Program.

IV. Final Action

A. Why Did the EPA Propose This Action, and What Will the Final Action 
Be?

    On April 9, 1997, the Office of Management and Budget (OMB) 
published a Federal Register Notice of final decision (62 FR 17288) to 
adopt NAICS for the United States, a new economic classification system 
that replaces the SIC system which has traditionally been used by the 
Federal Government for collecting and organizing industry-related 
statistics. See Executive Office of the President, Office of Management 
and Budget, North American Industry Classification System--United 
States, 1997 (hereinafter referred to as the 1997 NAICS Manual). OMB's 
Economic Classification Policy Committee (ECPC) developed NAICS in 
cooperation with the Instituto Nacional de Estad[iacute]stica, 
Geograf[iacute]a e Inform[aacute]tica (INEGI) of Mexico and Statistics 
Canada, in order to standardize the industrial statistics produced by 
the three countries. It was felt that the SIC system was inadequate for 
this purpose, in part because it classified industries on the basis of 
several different economic concepts. NAICS, on the other hand, 
classifies establishments according to similarities in the processes 
used to produce goods and services. NAICS is the first industry 
classification system developed in accordance with a single principle 
of aggregation, the principle that producing units that use similar 
production processes should be grouped together in the classification.
    Notwithstanding its primary function as a tool to aid in the 
collection and organization of industrial statistical information, OMB 
recognized that NAICS, like its predecessor, SIC, may also be 
effectively used for nonstatistical purposes including administrative, 
tax and regulatory programs. However, in its notice of final decision 
adopting NAICS for the United States, OMB instructed the heads of 
government agencies to determine that NAICS industry definitions are 
appropriate for the implementation of such programs before agencies use 
NAICS codes in them. See 62 FR 17288, 17294. For the reasons discussed 
in Unit IV.C. below, EPA's Administrator has determined that NAICS 
industry definitions will be appropriate for implementing section 313 
of EPCRA and section 6607 of the PPA.
    In this final rule, EPA is amending 40 CFR Part 372 to include the 
NAICS codes that correspond to the SIC codes that are currently subject 
to the reporting requirements of section 313 of EPCRA and section 6607 
of the PPA. EPA is also amending 40 CFR 372.85(b)(5) and 372.95(b)(10) 
such that covered facilities must report their appropriate NAICS codes 
on the TRI reporting form, Form R, or on the Alternate Threshold 
Certification Statement, Form A, where applicable. EPA is also amending 
40 CFR 372.38(g) and (h), and 40 CFR 372.45 to include the NAICS codes 
that will be subject to the exemption and notification requirements of 
those sections. Finally, EPA is amending 40 CFR 372.38(e) to extend the 
exemption provided therein to owners of covered facilities who lease, 
with no other business interest, such facilities to operators of 
establishments that are classified in any SIC code or NAICS code that 
is subject to TRI reporting requirements.

B. Will This Final Rule Affect the Universe Of Facilities That Are 
Currently Required To Report to EPA and the States?

    With the exception of facilities defined as ``auxiliary 
facilities'' under SIC (see Unit V.D.), this action will not affect the 
universe of facilities that is currently required to report under 
section 313 of EPCRA and section 6607 of the PPA because EPA is not 
adding or deleting industry groups from the list of industries that are 
currently subject to section 313 reporting requirements. EPA is simply 
assigning NAICS codes to those SIC codes that are already subject to 
section 313 reporting requirements, and requiring covered facilities in 
those industries to report the NAICS code that corresponds to the 
covered SIC code. EPA notes that this action also eliminates reporting 
requirements for owners of covered facilities who lease, with no other 
business interest, such facilities to operators of establishments that 
are classified in the Industry Expansion Rule SIC codes, but this 
revision does not affect the universe of covered facilities, only who 
is required to report on such facilities.
    The TRI Program developed an extensive SIC to NAICS to SIC 
crosswalk document based on ECPC's U.S. SIC to NAICS and NAICS to SIC 
conversion tables in order to identify the universe of NAICS codes that 
correspond to covered SIC codes. See ``Table 1: 1997 NAICS Matched to 
1987 SIC'' and ``Table 2: 1987 SIC Matched to 1997 NAICS'' on the U.S. 
Census Bureau's Web site at https://www.census.gov/epcd/www/
naicstab.htm. A more direct crosswalk between the 1987 SIC and 2002 
NAICS may be found in ``Table 4: 1987 SIC Matched to 2002 NAICS'' at 
https://www.census.gov/epcd/naics02/.
    EPA developed its crosswalk document by carefully mapping each SIC 
code to its corresponding NAICS code or codes, and then mapping each of 
the resulting NAICS codes back to SIC. More specifically, for each 3-
digit industry subsector in the NAICS manufacturing sector (i.e., NAICS 
311 through 339), EPA checked OMB's NAICS to SIC crosswalk table at 
https://www.census.gov/ to find industries that are not in the SIC 
manufacturing sector (SIC codes 20 through 39), but that have been 
classified as manufacturing industries under NAICS. Similarly, EPA 
checked OMB's ECPC SIC to NAICS crosswalk table to find SIC 
manufacturing industries that are not classified in the NAICS 
manufacturing sector. By conducting this mapping, EPA was able to 
develop a list of NAICS codes that corresponds to the list of 
manufacturing sector SIC codes that are subject to TRI requirements. 
EPA conducted similar mapping with respect to the industries added to 
TRI in the Industry Expansion Rule. Please refer to the preamble to the 
proposed rule (68 FR 13877-13878) for a more complete discussion of the 
methodology EPA used to identify NAICS codes that correspond to 
currently covered SIC codes.
    When EPA issued the proposed rule, it identified the NAICS codes 
that correspond to covered SIC codes based on the OMB crosswalks 
between the 1987 SIC Manual and the 1997 NAICS Manual. OMB formalized 
adoption of revisions to the 1997 NAICS Manual in a Federal Register 
notice on January 16, 2001 (66 FR 3826-3827). In 2002, OMB published a 
revised NAICS Manual. See Executive Office of the President, Office of 
Management and Budget, North American Industry Classification System 
United States, 2002 (hereinafter referred to as the 2002 NAICS Manual). 
As explained in Unit V.E., the final list of NAICS codes to be covered 
under TRI has been updated to reflect several minor additions and 
revisions that the 2002 NAICS Manual made to the 1997 NAICS codes that 
were identified in the proposed rule as corresponding to covered SIC 
codes

C. Why Will EPA Add NAICS Codes for EPCRA Section 313 and PPA Section 
6607 Reporting Purposes?

    EPA has determined it is appropriate to amend 40 CFR Part 372 to 
include the

[[Page 32467]]

NAICS codes that correspond to the SIC codes that are currently subject 
to TRI reporting requirements for several reasons. First, the SIC 
Manual has not been updated since 1987 despite significant changes in 
the national economy, and limitations in the structure of the SIC 
system have led to difficulties in classifying new and emerging 
industries (1997 NAICS Manual at 21). As a result, the existing SIC 
system does not reflect many of the important changes that have 
occurred within the national economy over the last decade or so. More 
importantly, it will not be updated in the future because of OMB's 
adoption of NAICS as the United States' new industry classification 
system. Accordingly, facilities that come into existence in the future 
will not have experience using SIC codes and may have difficulty 
determining whether or not they are subject to TRI requirements. 
Moreover, as OMB has recognized, the SIC system is somewhat cumbersome 
and inflexible to use because it classifies industries on the basis of 
several economic principles rather than a single, consistent principle 
(Id.). NAICS, on the other hand, represents a more targeted approach to 
industry classification, focusing primarily on production processes. 
Finally, the conversion to NAICS is part of EPA's data standards 
program, which helps promote efficient data exchange and integration 
through consistently defined and formatted data. Using NAICS for TRI 
reporting purposes will enable more efficient database integration and 
will promote public access to commonly defined data from disparate 
sources.

D. Office of Management and Budget Updates to NAICS

    OMB plans to update NAICS every five years. The next update is 
scheduled for 2007. In accordance with OMB's established NAICS revision 
practice, a final decision FR notice for the 2007 NAICS revision will 
be published early in 2006 and the 2007 NAICS Manual will be published 
early in 2007. The TRI Program will issue Federal Register notices to 
update the NAICS codes that correspond to covered SIC codes every five 
years, if necessary, after OMB completes its five-year updates.

E. How Will TRI Reporting Requirements Change as a Result of This Final 
Rule?

    TRI reporting requirements remain substantially the same under this 
action. The difference is that covered facilities will report their 
primary and secondary NAICS codes on Form R and Form A, rather than 
their primary and secondary SIC codes. Because the statute identifies 
covered facilities by SIC code, the industries subject to TRI 
requirements will continue to be identified in the regulatory text by 
SIC code; however, the text will be amended to include NAICS codes as 
well. See 40 CFR 372.22(b) and 372.23 of the amended regulatory text 
below. With the exception of auxiliary facilities, facilities that 
currently report to the TRI Program because they are classified in a 
covered SIC code must continue to report to the TRI Program under this 
action if they continue to satisfy the applicable reporting criteria; 
however, these facilities may now rely on the list of covered NAICS 
codes in the amended regulations to determine whether they are subject 
to TRI reporting requirements. Accordingly, EPA no longer expects 
facilities to identify their SIC codes to determine TRI program 
compliance.

F. Why Is EPA Extending the Exemption in 40 CFR 372.38(e)?

    The TRI regulations at 40 CFR 372.38(e) currently exempt from TRI 
reporting requirements ``owners of facilities such as industrial parks, 
all or part of which are leased to persons who operate establishments 
within SIC code 20 through 39 where the owner has no other business 
interest in the operation of the covered facility.'' The exemption 
acknowledges the difficulties in requiring such an owner to report when 
he is not in a position that would allow him to determine compliance or 
report the required information. EPA believes it is appropriate to 
extend this exemption to owners of facilities that lease such 
facilities to operators of establishments within the SIC codes added in 
the 1997 TRI Industry Expansion Rule, when such owners have no other 
business interest in the operation of such establishments. The 
rationale for the exemption applies equally to those owners as it does 
to owners of facilities who lease them to operators of establishments 
in SIC codes 20 through 39. Because the amendment to 40 CFR 372.38(e) 
extends the exemption to other industries, there is no cost to industry 
associated with it.

V. Summary of Public Comments and EPA Responses

What comments did EPA receive on the proposal to add NAICS codes for 
TRI reporting and what are EPA's responses?

    EPA received comments from five entities in response to the 
proposal to add NAICS codes for TRI reporting. The submitted comments 
can be accessed in the EPA docket under Docket ID No. EPA-HQ-TRI-2002-
0003.

A. What comments did EPA receive on its method for implementing NAICS 
for TRI reporting?

    One commenter states that EPA noted in the proposed rule that its 
intent in adopting NAICS codes for TRI purposes is to make sure 
presently covered facilities continue to report and so be ``consistent 
with the statutory requirements.'' The commenter believes, however, 
that there is no explanation of the statutory requirements that EPA is 
being consistent with, and whether they are relevant to the changing 
industry and how it is classified. The commenter also believes that EPA 
should not attempt to correlate SIC sectors with NAICS sectors. For the 
purpose of simplification and ease of explanation to the regulated 
community, the commenter believes that the proposal should state that 
covered codes will be NAICS 31-33 (NAICS manufacturing sector) plus the 
Industry Expansion Rule facilities. The commenter has suggested new 
language for 40 CFR 372.22(b) to achieve this objective. The commenter 
also believes that in the year after rule approval, EPA should educate 
facilities regarding the change and assign a proposed NAICS number for 
the facility to review and accept and that the burden should be on the 
EPA to educate reporters and make the initial correlations between SIC 
and NAICS codes. The commenter further states that future NAICS 
revisions should be used ``as is'' to include the manufacturing sectors 
with no consideration of past revisions and that correlation should 
only be used for historical statistical purposes. The commenter also 
disagrees with the stated differences between SIC and NAICS systems in 
the proposed rule. In particular, the commenter points out that NAICS, 
like SIC, was developed to reflect changes in the economy and in 
industries and that under both classification systems establishments 
are classified according to their primary activities.
    EPA Response: The commenter is correct that EPA's intent is to 
implement NAICS in such a way that, with the exception of auxiliary 
facilities (see Unit V.D.), there is no change in the universe of 
facilities that is currently required to report toxic chemical releases 
and other waste management quantities under section 313 of EPCRA and 
section 6607 of the PPA. EPA believes this approach to implementing 
NAICS with respect to TRI reporting is the most consistent with EPCRA 
section 313. As EPA stated in the proposed rule:


[[Page 32468]]


    For purposes of TRI reporting, section 313 defines covered 
facilities in terms of SIC codes. Facilities in the affected SIC 
codes are required to report, regardless of how those facilities are 
designated in other nomenclature systems. Because inclusion in a 
specific SIC code is what triggers the reporting obligation, to use 
NAICS codes, EPA must be able to ``cross-walk'' reliably between SIC 
codes and NAICS codes.

68 FR 13876, March 21, 2003. As indicated in this excerpt from the 
proposed rule, the statutory requirements underlying EPA's proposed 
approach are found in section 313 which defines covered facilities in 
terms of SIC codes. In particular, EPA explained that section 
313(b)(1)(A) of EPCRA explicitly identifies, by SIC code, the universe 
of facilities that was initially subject to TRI reporting when the 
statute was enacted. See 68 FR 13875. Section 313(b)(1)(A) provides in 
relevant part:

    The requirements of this section shall apply to owners and 
operators of facilities * * * that are in Standard Industrial 
Classification Codes 20 through 39 (as in effect on July 1, 1985). * 
* *

42 U.S.C. 11023(b)(1)(A). In addition, EPCRA authorizes EPA to ``add or 
delete Standard Industrial Classification codes'' to the list of those 
initially identified by Congress in section 313(b)(1)(A) as being 
subject to TRI reporting requirements. See EPCRA section 313(b)(1)(B), 
42 U.S.C. 11023(b)(1)(B). However, EPA may only add SIC codes under 
section 313(b)(1)(B) if it concludes that each ``Standard Industrial 
Code to which [section 313] applies is relevant to the purposes of 
[section 313].'' Id. EPCRA therefore explicitly provides in section 
313(b)(1)(A) and section 313(b)(1)(B) that section 313 applies to 
facilities in SIC codes 20 through 39 and to facilities in other SIC 
codes that EPA makes subject to EPCRA requirements by rule, if such 
facilities also meet the full-time employee and chemical activity 
criteria. EPA believes, therefore, that the facilities that are 
currently subject to TRI reporting because they are in a covered SIC 
code should continue to be subject to TRI requirements after EPA 
implements NAICS for TRI purposes. Similarly, facilities that are not 
currently subject to TRI reporting because they are not in a covered 
SIC code should not be subject to TRI requirements simply because EPA 
is implementing NAICS for TRI purposes.
    EPA agrees with the commenter that NAICS was developed because the 
economy changes and industries change over time and therefore, the 
industry classification system must be updated to reflect such changes. 
EPA also agrees that establishments are classified according to their 
primary activities under both SIC and NAICS. However, NAICS is in fact 
a different classification system than SIC. In particular, the 
organizing principle underlying NAICS differs in certain fundamental 
respects from the organizing principles underlying SIC. As the Standard 
Industrial Classification Manual, 1987 states:

    The [SIC] classification system is organized to reflect the 
structure of the U.S. economy. It does not follow any single 
principle, such as end use, nature of raw materials, product, or 
market structure. * * *

1987 SIC Manual at 699. (For a comprehensive discussion of the 
organizing principles underlying the SIC system, see Economic 
Classification Policy Committee, Report No. 1: Economic Concepts 
Incorporated in the Standard Industrial Classification Industries of 
the United States, Aug. 1994, available at https://www.census.gov/epcd/
naics/ecpcrpt1). In contrast, NAICS was developed around the single 
organizing principle that establishments should be grouped into 
industries ``according to similarity in the processes used to produce 
goods or services.'' 1997 NAICS Manual at 13. This makes NAICS ``unique 
among industry classification systems.'' Id. at 3.
    With respect to TRI, the result of the different organizing 
principles inherent in SIC and NAICS is that facilities that are 
classified in the SIC ``manufacturing sector'' (SIC codes 20-39) which 
Congress intended to be subject to TRI requirements might not be 
classified in the NAICS ``manufacturing sector'' (NAICS codes 31-33). 
Accordingly, if EPA had proposed that the NAICS ``manufacturing 
sector'' report under EPCRA section 313, then some facilities that are 
currently subject to TRI would be exempt from reporting. Similarly, 
facilities that are not currently subject to TRI requirements because 
they are not in the SIC ``manufacturing sector'' might be classified in 
the NAICS ``manufacturing sector'' and would therefore be subject to 
TRI reporting. For example, as discussed in the preamble to the 
proposed rule, if all facilities in NAICS codes 31-33 were required to 
report, then that would mean that retail bakeries (SIC code 5461) would 
need to start reporting if they met the employee and chemical activity 
thresholds because they are classified in the NAICS ``manufacturing 
sector'' (NAICS 31181). See 68 FR 13876. It may be true in practice 
that retail bakeries would rarely have to report because they typically 
would not meet the full-time employee and/or chemical activity 
criteria. Nevertheless, even if retail bakeries would not normally 
satisfy the applicability criteria, they would still incur the burden 
of making compliance determinations, (e.g., determining whether they 
manufacture, process or otherwise use listed toxic chemicals in excess 
of applicable thresholds and whether they meet the full-time employee 
criterion). More importantly, section 313(b)(1)(A) indicates that 
retail bakeries are not currently subject to TRI reporting 
requirements. Nor has EPA made a determination pursuant to section 
313(b)(1)(B) that it would be ``relevant to the purposes of [section 
313]'' for retail bakeries to begin reporting to TRI.
    Similar changes in the universe of facilities that are subject to 
EPCRA section 313 could occur with respect to the SIC industries added 
to TRI in the 1997 Industry Expansion Rule. Such changes would not be 
the result of changes in the economic activities at the facility 
itself. Nor would they be the result of a rulemaking supported by the 
statutory finding required under section 313(b)(1)(B) (or section 
313(b)(2) which authorizes EPA to apply section 313 requirements to 
particular facilities without regard to their SIC codes). Rather, the 
changes would result simply because the organizing principles for the 
industry classification system that is in effect today are different 
from those underlying the industry classification system that was in 
effect for 50 years prior to the time that Congress enacted EPCRA. EPA 
does not believe that this is a sufficient basis to impose reporting 
obligations on facilities that otherwise would not be subject to 
section 313 or to exempt facilities from TRI reporting requirements 
that otherwise would be required to report. EPA conducted a careful 
crosswalk between SIC codes covered under EPCRA section 313 and PPA 
section 6607 and the corresponding NAICS codes. The Agency believes it 
has correctly identified the covered NAICS codes as reflected in the 
amended 40 CFR part 372, and no longer expects facilities to identify 
their SIC codes to determine TRI program compliance. Facilities may now 
rely on the list of covered NAICS codes in the amended 40 CFR part 372 
to determine whether they are required to report to the TRI program.
    EPA disagrees with the commenter's recommendation that EPA assign 
NAICS codes to currently reporting facilities. Unlike some government 
programs that do assign SIC or NAICS codes to a particular 
establishment based on information provided to the government about the 
facility's activities, EPA has never followed this approach in

[[Page 32469]]

implementing section 313. Facilities have typically self-determined 
their SIC codes for purposes of TRI and EPA believes that they should 
continue to do so with NAICS codes. Owners and operators have first-
hand knowledge of the activities undertaken at their facilities and 
such knowledge is useful in assigning an appropriate SIC or NAICS code 
to a facility. This is particularly true with respect to determining 
SIC or NAICS codes for TRI reporting because facilities often need to 
evaluate activities and economic data at multiple establishments and 
make judgments based on that information in accordance with 40 CFR 
372.22(b)(3) in order to determine the SIC or NAICS code that applies 
to the entire facility.

B. What comments did EPA receive seeking clarification of TRI reporting 
requirements for particular facilities?

    One commenter, although in support of the proposal to incorporate 
NAICS codes into the TRI program, requested that the Agency clarify the 
TRI reporting requirements for recycling facilities that are exempt 
from obtaining RCRA Subtitle C permits. The commenter notes that many 
hazardous waste management facilities are exempt from RCRA permitting 
requirements, but are still regulated under RCRA Subtitle C. According 
to the commenter, at least one EPA Regional Office provided guidance 
indicating that facilities that recycle mercury-containing fluorescent 
lamps and other Universal Wastes are required to report to TRI because 
these facilities fall under SIC code 4953 and are regulated under RCRA 
Subtitle C. By contrast, however, the commenter noted that in another 
region, a mercury-lamp recycling facility has assumed that it is 
properly categorized under SIC 5093 and the EPA Regional Office in that 
case has not provided any guidance or information contradicting the 
facility's assumption of its designation under this SIC code. The 
commenter believes that recycling facilities should be exempt from TRI 
reporting, but if not, that EPA should clarify in this rulemaking the 
SIC or NAICS codes that these facilities come under that would require 
TRI reporting.
    EPA Response: As an initial matter, EPA believes that this comment 
is beyond the scope of this rulemaking which simply identifies the 
NAICS codes that correspond to SIC codes that are currently subject to 
EPCRA section 313. Nonetheless, EPA believes it may be helpful to 
provide some additional clarification on this point in this preamble. 
By doing so, however, EPA does not intend in any way to reconsider or 
otherwise reopen the issue of the applicability of EPCRA section 313 to 
facilities in SIC code 4953 (or the corresponding NAICS codes 
identified below), or the types of facilities in SIC code 4953 (or the 
corresponding NAICS codes) that are subject to TRI. In addition, as 
noted in Unit V.A. of this preamble, SIC or NAICS code determinations 
are very fact-specific, and it is not appropriate to attempt to address 
questions related to specific facilities in this context. Therefore, 
this response should not be construed as addressing facility-specific 
issues regarding such determinations.
    In order to determine if a recycling facility, such as a mercury-
lamp recycler, is required to report under TRI, two determinations, in 
addition to the employee and chemical activity thresholds, are 
necessary. First, the facility must be in a covered SIC code (or a 
corresponding NAICS code). Second, if the facility is in a covered SIC 
code (or a corresponding NAICS code), the facility must also be 
regulated under RCRA Subtitle C.
    The NAICS Determination. The commenter requested that EPA clarify 
whether recycling facilities are classified under SIC code 4953 (Refuse 
Systems) or under SIC code 5093 (Scrap and Waste Materials) for 
purposes of TRI reporting. SIC code 4953 includes establishments that 
are ``primarily engaged in the collection and disposal of refuse by 
processing or destruction or in the operation of incinerators, waste 
treatment plants, landfills, or other sites for the disposal of such 
materials.'' 1987 SIC Manual at 285. Facilities that are classified 
under SIC 4953 are classified in one of the following NAICS codes: 
NAICS 562211, Hazardous Waste Treatment and Disposal; 562212, Solid 
Waste Landfill; 562213, Solid Waste Combustors and Incinerators; 
562219, Other Nonhazardous Waste Treatment and Disposal; or 562920, 
Materials Recovery Facilities. A facility in one of the above NAICS 
categories is required to submit a TRI report if it is also regulated 
under Subtitle C and meets the employee and chemical activity 
thresholds.
    By contrast, facilities classified under SIC 5093, Scrap and Waste 
Materials, are not covered by the TRI Program, and they are classified 
under NAICS 42193, Recyclable Material Wholesalers. SIC code 5093 
includes establishments that are ``primarily engaged in assembling, 
breaking up, sorting, and wholesale distribution of scrap and waste 
materials.'' 1987 SIC Manual at 301.
    In many cases, recycling facilities may be engaged in both of these 
activities, and possibly other SIC or NAICS-defined activities as well. 
In such situations, where facilities consist of two or more 
establishments, the TRI regulations provide instructions for 
determining the primary SIC or NAICS code for the entire facility for 
TRI reporting purposes. If all of the establishments at the facility 
have covered SIC or NAICS codes, then the facility has met the SIC or 
NAICS code requirement. 40 CFR 372.22(b)(2). In the case of a multi-
establishment facility with at least one establishment in a non-covered 
SIC or NAICS code, 40 CFR 372.22(b)(3) requires the facility to compare 
the relative value added of the various establishments to determine 
whether the facility as a whole is in a covered SIC or NAICS code. For 
example, under section 372(b)(3)(i), if a recycling facility consists 
of a SIC 4953 establishment and a SIC 5093 establishment, and the 
relative value added of the facility's SIC 5093 scrap and waste 
material wholesale operations is greater than 50 percent of the total 
value added of services provided or products shipped or produced by the 
whole facility, then the facility would be classified in SIC code 5093 
and would not be subject to TRI reporting. Without facility-specific 
information of this nature, EPA cannot determine the proper SIC or 
NAICS code for a particular recycling facility or for recycling 
facilities in general.
    Regulated Under Subtitle C. The commenter requested that EPA 
clarify the applicability of TRI to facilities that are exempt from 
RCRA permitting requirements, but are still regulated under RCRA 
Subtitle C, because for the SIC code 4953 and the corresponding NAICS 
codes, TRI reporting is ``limited to facilities regulated under [RCRA] 
Subtitle C.'' 40 CFR 372.22.
    The commenter mistakenly believes that recycling facilities are 
exempt from TRI reporting. EPA has not provided rules or guidance that 
exempt recycling facilities from TRI reporting. As the commenter 
correctly notes, there are recycling facilities that are not required 
to obtain a RCRA permit (or interim status) but nonetheless, are 
regulated under Subtitle C. For example, some recycling facilities must 
complete the hazardous waste manifest, an important part of the 
Subtitle C cradle to grave tracking system. Some recycling facilities 
also must provide notifications and reports to EPA and authorized 
states. Still other recycling facilities must comply with air emission 
standards issued under Subtitle C. Each of these facilities would be 
regulated under RCRA Subtitle C and would also be required to report to 
TRI if reporting thresholds were met.

[[Page 32470]]

C. What comments did EPA receive regarding cross references from SIC 
codes to NAICS codes?

    One comment was submitted that stated that EPA has not provided a 
comprehensive cross reference to correspond SIC codes to NAICS codes, 
and does not refer the regulated community to the NAICS manual to 
assist them in selecting the appropriate NAICS code. The commenter 
believes that EPA's assignment of NAICS codes to the SIC codes that are 
currently subject to TRI reporting requirements is not straightforward 
and transparent. The commenter further believes that the proposed 
revisions to 40 CFR 372.23 are just a compilation of ``exceptions and/
or limitations'' with little guidance on determining corresponding 
codes. The commenter is concerned that facilities that use other 
reference sources to determine corresponding NAICS codes might arrive 
at a different conclusion than EPA and could therefore be subject to an 
enforcement action. The commenter also believes that EPA should 
consider making the OMB crosswalk information available in a guidance 
document or codifying the information.
    EPA Response: EPA disagrees that it has not provided a 
comprehensive cross reference to adequately correspond SIC codes to 
NAICS codes. The NAICS codes in the proposed regulatory text at 40 CFR 
372.23 that correspond to the SIC codes that are currently subject to 
TRI reporting requirements were determined by using comprehensive SIC 
to NAICS and NAICS to SIC crosswalk documents that were developed by 
OMB's ECPC. As the commenter notes, the OMB crosswalk documents are 
included in the docket for the proposed rule. They are also publicly 
accessible on the Census Bureau's Web site at https://www.census.gov/
epcd/www/naics.html and https://www.census.gov/epcd/naics02/. EPA used 
the OMB crosswalk as the basis for its determinations of TRI NAICS 
reporting facilities because OMB is the Federal government entity that 
is responsible for developing and maintaining Federal classifications. 
As such, OMB has considerable experience and expertise in making 
classification decisions for Federal statistical purposes. EPA has 
examined these decisions and determined that it is appropriate to 
follow them, along with the exceptions presented in the regulatory 
text, for TRI reporting purposes.
    EPA also disagrees that its assignment of NAICS codes to the SIC 
codes that are currently subject to TRI reporting requirements is not 
straightforward and transparent. The regulatory text at 40 CFR 
372.23(b) and (c) is simply a condensed version of the information 
presented in the OMB crosswalk. The methodology that EPA used to 
translate the lengthy OMB crosswalk into the condensed version of it 
that appears in the regulatory text is explained at length in the 
proposed rule. See 68 FR 13877-13879.
    In response to the commenter's suggestion that EPA codify the 
actual OMB crosswalk, EPA believes the amount of information that would 
need to be codified would make it more difficult for facilities to 
determine whether or not the NAICS code that applies to their facility 
corresponds to a covered SIC code. If codified, the portion of the OMB 
crosswalk that would need to be included in the CFR would likely occupy 
dozens of pages. In contrast, the list of NAICS codes in the regulatory 
text at 40 CFR 372.23 will likely occupy two to three pages in the CFR. 
In order to present the crosswalk information in a condensed form, it 
was necessary for EPA to create exceptions and limitations to 
accurately identify the specific NAICS codes that correspond to 
currently covered SIC codes.
    The commenter indicates that facilities might use reference sources 
other than the OMB crosswalk to determine corresponding NAICS codes, 
and that they will therefore have to consult the OMB crosswalk in the 
docket for the proposed rule to verify their determinations. First, as 
noted above, the OMB crosswalk is not only available in the EPA public 
docket for the proposed rule, but it is also available on the NAICS Web 
site hosted at the Census Bureau. Second, EPA would like to clarify 
that in this rulemaking, the Agency is simply identifying the NAICS 
codes that correspond to SIC codes that are currently subject to TRI 
reporting. As discussed above, EPA believes OMB's experience and 
expertise with implementing SIC and NAICS make its crosswalk between 
SIC and NAICS reliable for that purpose. Therefore, if a facility 
chooses to identify its NAICS code for TRI purposes based only on its 
current SIC code, EPA strongly recommends that the facility use the OMB 
crosswalk. To the extent that other Federal Government agencies, State 
governments or private parties have developed similar crosswalks, EPA 
discourages their use for determining NAICS codes for TRI purposes. 
Such crosswalks may reflect classification decisions that depend on the 
nature of the programs administered by such entities. NAICS codes that 
are assigned to facilities by such entities for administrative purposes 
may also reflect such program-specific interpretations.
    That does not mean, however, that owners or operators cannot or 
should not consult the NAICS Manual itself to determine the most 
appropriate NAICS code for their facilities based on the activities 
that occur at the facility. In fact, EPA strongly encourages owners and 
operators to consult the NAICS Manual when determining the most 
appropriate NAICS code for their facilities. In the unlikely event that 
a facility that is in a covered SIC code uses the NAICS Manual to 
determine a NAICS code for the facility, and concludes that the most 
appropriate NAICS code is not the same one that OMB has determined 
corresponds to its SIC code, then that facility is welcome to contact 
EPA to discuss the discrepancy. Ultimately, any disagreement between a 
facility and EPA with respect to the facility's proper NAICS code will 
be resolved based on the facility's activities and whether they are 
most appropriately described by one of the NAICS industry descriptions 
identified in the regulatory text or by some other NAICS code.

D. What comments did EPA receive regarding its proposal to require 
``auxiliary facilities'' to continue to report to TRI using the NAICS 
code of the establishment or facility for which it performs support 
services?

    Two commenters disagreed with EPA's guidance in the preamble to the 
proposed rule that auxiliary facilities should report using the NAICS 
code of the facility for which they perform support services and 
recommend that EPA reconsider how to classify auxiliary facilities in 
light of the fact that the SIC classification methodology differs 
significantly from the NAICS classification methodology. One of the 
commenters further stated that EPA should also consider that new 
auxiliary facilities (e.g., Research & Development sites) will likely 
determine their appropriate NAICS code by following the methodology in 
the NAICS manual which does not define auxiliary facilities, while 
older R&D facilities would still be reporting since they were 
considered auxiliary facilities under the obsolete SIC classification 
system.
    EPA Response: EPA has reconsidered guidance in the preamble to the 
proposed rule with respect to the reporting of NAICS codes by auxiliary 
facilities. The 1987 SIC Manual defines auxiliary establishments as 
establishments primarily engaged in performing management or support 
services for other establishments. [1987 SIC Manual at 13.]. The SIC 
system

[[Page 32471]]

assigns these establishments (e.g., research and development 
laboratories, warehouses, storage facilities) SIC codes according to 
the primary activity of the operating establishments they serve. Id. at 
16. For example, auxiliary establishments tied to manufacturing 
establishments are given a manufacturing SIC code. For purposes of TRI 
reporting, auxiliary establishments are often referred to as 
``auxiliary facilities.'' In order to remain consistent with the SIC 
nomenclature, EPA will use the term ``auxiliary establishment'' rather 
than ``auxiliary facility'' in the following discussion.
    EPCRA section 313(b)(1)(A) states that section 313 requirements 
``shall apply to owners and operators of facilities * * * that are in 
[SIC] codes 20 through 39.'' Since the inception of the TRI Program in 
1988, the Agency has interpreted EPCRA section 313 to cover operating 
establishments and auxiliary establishments, consistent with the 1987 
SIC Manual definition of auxiliary establishment. EPA noted at the time 
that it believed that this would be the most consistent way to treat 
auxiliary establishments. 53 FR 4500, 4503 (Feb. 16, 1988).
    NAICS, however, did not adopt the SIC system concept of auxiliary 
establishments. NAICS was developed around the single organizing 
principle that establishments should be grouped into industries 
according to similarities in the processes used to produce goods or 
services.'' 1997 NAICS Manual at 13. Thus, under NAICS, former SIC 
auxiliary establishments are assigned NAICS codes according to their 
own activities (e.g., a research and development facility that 
supported a SIC 3728 Aircraft Parts and Auxiliary Equipment facility 
would be classified under NAICS 54171, Research and Development in the 
Physical, Engineering, and Life Sciences).
    For the purpose of establishing consistency with the NAICS 
classification methodology, and to avoid confusion in the future with 
respect to reporting obligations by establishments that are considered 
auxiliary establishments under the SIC system, EPA is changing its 
interpretation that EPCRA reporting requirements apply to auxiliary 
establishments. EPA believes this change is warranted in light of the 
significant differences in treatment of auxiliary establishments 
between the SIC and NAICS systems. In future reporting years, NAICS 
codes will be the only economic classification codes that are used by 
reporting facilities on TRI reporting forms, and new entities that may 
have been classified as auxiliary establishments facilities under SIC 
will look to the NAICS manual for reporting guidance, not the 1987 SIC 
Manual. These new establishments will not have any prior experience 
with the SIC system and the concept of auxiliary establishments. 
Without extensive outreach by EPA and possibly changes to the 
regulations in part 372, it will be difficult to communicate to these 
establishments that they may have a TRI reporting obligation based not 
on their own activities but on those of the establishments they serve.
    It is possible, in light of EPA's new interpretation, that some 
auxiliary establishments will no longer be subject to TRI reporting 
requirements. For example, under EPA's previous interpretation, a 
stand-alone auxiliary establishment (e.g., a warehouse that is not part 
of a larger facility) that met the employee and chemical activity 
thresholds, and that was classified in a covered SIC or NAICS code only 
because it served an off-site operating establishment in a covered SIC 
or NAICS code, would have been subject to TRI reporting requirements. 
Under the new interpretation, the same establishment would no longer be 
subject to such requirements because it would not meet the SIC or NAICS 
code requirement. In contrast, auxiliary establishments that are part 
of multi-establishment facilities whose primary SIC or NAICS codes are 
covered under EPCRA section 313 would still be subject to section 313 
if the entire facility also met the employee and chemical activity 
thresholds.
    In this regard, it is important to note that this new 
interpretation could affect the determination of the primary SIC or 
NAICS code for a multi-establishment facility in the first instance. 
For example, under 40 CFR 372.22(b)(2), if all establishments in a 
multi-establishment facility have covered primary SIC or NAICS codes, 
then the entire facility has met the SIC or NAICS code requirement. 
Consider a multi-establishment facility that consists of two 
establishments. One is an auto parts manufacturing establishment that 
is in a covered manufacturing code, and the other is an auxiliary 
establishment (e.g., a warehouse) that serves the manufacturing 
establishment. Under EPA's previous interpretation, this multi-
establishment facility would have been in a covered primary SIC code 
because both establishments share the same manufacturing code. Under 
the new interpretation, the warehouse would not be in a covered SIC 
code simply because of its status in the SIC system as an auxiliary 
facility. Nor is it likely to be in a covered NAICS code. Instead, it 
would have a NAICS code that is appropriate for its particular 
warehousing activities. Thus, this particular multi-establishment 
facility would no longer meet the SIC or NAICS code requirement based 
solely on 40 CFR 372.22(b)(2). Note however, that the facility could 
still meet the SIC or NAICS code requirement based on 40 CFR 
372.22(b)(3), which requires owners or operators to compare the 
relative value added by the various establishments in a multi-
establishment facility to determine whether the facility as a whole is 
in a covered primary SIC or NAICS code. For example, if the value added 
by the manufacturing establishment in the example above exceeded that 
of the warehousing establishment, then the entire multi-establishment 
facility would meet the SIC or NAICS code requirement under either of 
the tests in 40 CFR 372.22(b).

E. What comments did EPA receive regarding OMB's NAICS 2002 update that 
was published in the January 16, 2001 Federal Register (66 FR 3826)?

    EPA received recommendations that the NAICS codes in the proposed 
rule be updated to match the NAICS 2002 listing according to the OMB 
notice of final decision published January 16, 2001 (66 FR 3826) that 
adopted the 2002 NAICS codes.
    EPA Response: EPA agrees with the commenter and has updated the 
final rule to reflect minor, non-substantive changes that the 2002 
NAICS Manual made to certain 1997 NAICS codes that were included in the 
proposed rule. The 2002 NAICS update made no changes to the 1997 
manufacturing sector NAICS codes.
    Outside of the manufacturing sector, the only TRI covered sectors 
that were affected by the 2002 NAICS revisions were the Wholesale Trade 
and Information sectors (NAICS sectors 42 and 51, respectively). These 
revisions and additions are included in the final list of NAICS codes 
that will be covered under TRI. See 40 CFR 372.23 of the final 
regulatory text.
    As stated before, with the exception of auxiliary facilities, this 
final rule will not affect the universe of facilities that is currently 
required to report under section 313 of EPCRA and section 6607 of the 
PPA because EPA is not adding or deleting industry groups from the list 
of industries that are currently subject to section 313 reporting 
requirements.

VI. Which NAICS Codes Are Subject to TRI Requirements Under This Final 
Rule?

    Using the OMB crosswalk tables and the methodology described in the 
proposed rule (68 FR 13877-13878),

[[Page 32472]]

EPA has determined that facilities classified in the NAICS codes listed 
in the final regulations in 40 CFR 372.23 must report their toxic 
chemical releases and other waste management quantities to EPA and 
State governments. This list will be used for regulatory and 
enforcement purposes.

VII. What Additional Reporting Burden Is Associated With This Action?

    EPA has evaluated the potential burden and cost of using NAICS for 
TRI reporting and expects that the burden associated with this change 
for affected facilities is negligible. OMB adopted NAICS as the United 
States' industry classification system in 1997, and facilities should 
already be familiar with their NAICS codes from other administrative 
and regulatory reporting requirements of EPA and other governmental 
entities. With the exception of auxiliary facilities, EPA does not 
expect or intend this action to affect the universe of facilities that 
are currently required to report under section 313 of EPCRA. EPA is 
simply identifying NAICS industry codes which correspond to those SIC 
codes that are already subject to section 313 reporting requirements, 
and requiring covered facilities in those industries to report under 
the NAICS code that corresponds to the covered SIC code. Only those 
facilities that meet the requirements in 40 CFR 372.22(b) will need to 
continue to report releases and other waste management quantities of 
toxic chemicals under section 313 of EPCRA. The changed interpretation 
for auxiliary facility reporting will likely result in some reduction 
of burden, however, the Agency can not quantify what burden reduction 
is likely to occur because there is no way to tell how many stand-alone 
auxiliaries currently report or how auxiliaries currently affect multi-
establishment applicability determinations.

VIII. What Are the References Cited in This Final Rule?

    1. Executive Office of the President, Office of Management and 
Budget, North American Industry Classification System, United States, 
1997 (NTIS PB98-127293)
    2. Executive Office of the President, Office of Management and 
Budget, Standard Industrial Classification Manual, 1987 (NTIS PB87-
100012)
    3. 1997 NAICS U.S. Structure, Including Relationship to 1987 U.S. 
SIC, ``Table 1: 1997 NAICS Matched to 1987 SIC'' and ``Table 2: 1987 
SIC Matched to 1997 NAICS'' (https://www.census.gov/epcd/www/
naicstab.htm).
    4. Federal Register: April 20, 2000 (Volume 65, Number 77), Office 
of Management and Budget, North American Industry Classification 
System--Update for 2002: Notice of solicitation of comments on the 
Economic Classification Policy Committee's recommendations for the 2002 
revision of the North American Industry Classification System
    5. Federal Register: January 16, 2001 (Volume 66, Number 10), 
Office of Management and Budget, North American Industry Classification 
System--Revision for 2002; Notice of final decision
    6. Economic Classification Policy Committee, Report No. 1: Economic 
Concepts Incorporated in the Standard Industrial Classification 
Industries of the United States, Aug. 1994 (https://www.census.gov/epcd/
naics/ecpcrpt1).
    7. Executive Office of the President, Office of Management and 
Budget, North American Industry Classification System, United States, 
2002 (NTIS PB2002-101430*88).

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), the Agency must determine 
whether a regulatory action is ``significant'' and therefore subject to 
OMB review and the requirements of the Executive Order. The Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule with the following impacts: (1) May 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) creates a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alters the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raises 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 
that this rule is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 and is therefore not subject to OMB 
review.

B. Regulatory Flexibility Act

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not