Toxics Release Inventory Form A Eligibility Revisions Implementing the 2009 Omnibus Appropriations Act, 19001-19006 [E9-9530]

Download as PDF dwashington3 on PROD1PC60 with RULES Federal Register / Vol. 74, No. 79 / Monday, April 27, 2009 / Rules and Regulations unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. Under RCRA 3006(b), EPA grants a State’s application for authorization as long as the State meets the criteria required by RCRA. It would, thus, be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the ‘‘Attorney General’s Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings’’ issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the VerDate Nov<24>2008 14:31 Apr 24, 2009 Jkt 217001 Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). This action will be effective June 26, 2009. List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b). Dated: April 8, 2009. Stephen S. Tuber, Acting Regional Administrator, Region 8. [FR Doc. E9–9544 Filed 4–24–09; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 372 [TRI–2009–0216; FRL–8897–4] RIN 2025–AA25 Toxics Release Inventory Form A Eligibility Revisions Implementing the 2009 Omnibus Appropriations Act AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is amending its regulations on the eligibility criteria for submitting a Form A Certification Statement in lieu of the more detailed Form R submitted by facilities subject to TRI reporting under section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) and section 6607 of the Pollution Prevention PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 19001 Act of 1990 (PPA). This action is being taken to comply with the ‘‘Omnibus Appropriations Act of 2009’’ enacted on March 11, 2009. As this action is being taken to conform the regulations to a Congressional legislative mandate, notice and comment rulemaking is unnecessary, and this rule is effective immediately. Upon publication to the Federal Register, the provisions of the Toxics Release Inventory Burden Reduction Final Rule will be removed and the regulations in place prior to its implementation will be restored as described below. DATES: This final rule is effective on April 27, 2009. ADDRESSES: EPA has established a docket for this action under Docket ID No. TRI–2009–0216. All documents in the docket are listed in the EDOCKET index at http://www.epa.gov/edocket. Although listed in the index, some information is not publicly available, i.e., 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 in EDOCKET or in hard copy at the OEI Docket, EPA/DC, EPA West, 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: Cory J. Wagner, Toxics Release Inventory Program Division, Office of Information Analysis and Access (2844T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202–566– 1555; fax number: 202–566–0741; email: wagner.cory@epa.gov, for specific information on this proposed rule, or for more information on EPCRA section 313, the Emergency Planning and Community Right-to-Know Hotline, Environmental Protection Agency, Mail Code 5101, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Toll free: 1–800–424–9346, in Virginia and Alaska: 703–412–9810 or Toll free TDD: 1–800–553–7672. SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me ? This action applies to facilities that submit annual reports under section 313 E:\FR\FM\27APR1.SGM 27APR1 19002 Federal Register / Vol. 74, No. 79 / Monday, April 27, 2009 / Rules and Regulations of the Emergency Planning and Community Right-to-Know Act (EPCRA) and section 6607 of the Pollution Prevention Act (PPA). It specifically applies to those that submit the TRI Form R or Form A Certification Statement. (See http://www.epa.gov/tri/ report/index.htm#forms for detailed information about EPA’s TRI reporting forms.) To determine whether your facility would be 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 questions regarding the applicability of this action to a particular entity, consult the individuals listed in the preceding FOR FURTHER INFORMATION CONTACT section. This action is also relevant to those who utilize EPA’s TRI information, including State agencies, local governments, communities, environmental groups and other nongovernmental organizations, as well as members of the general public. dwashington3 on PROD1PC60 with RULES II. Background and Rationale for Action In the Federal Register of December 22, 2006 (71 FR 76932), EPA issued the Toxics Release Inventory Burden Reduction Final Rule expanding Form A eligibility for non-PBT chemicals and allowing for the first time, and in limited circumstances, Form A eligibility for PBT chemicals. Specifically, the December 2006 final rule allowed facilities to use Form A in lieu of Form R for TRI-listed PBT chemicals (except dioxin and dioxinlike compounds) when there were no annual releases of the PBT chemical, the facility’s total annual amount of the chemical recycled, combusted for energy recovery, and/or treated for destruction did not exceed 500 pounds, and the facility did not manufacture, process, or otherwise use more than one million pounds of the PBT chemical. As it related to the Form R data elements, the December 2006 final rule allowed a facility to use Form A instead of Form R for a specific PBT chemical (other than dioxin and dioxin-like compounds) when zero or not applicable (NA) was reported for items a, b, c, and d of Section 8.1 (Total Disposal or Other Releases), the facility did not have any non-production-related releases of the PBT chemical included in Section 8.8 (quantity released to the environment as a result of remedial actions, catastrophic events, or one-time events not associated with production processes), and the total amount reported for recycling, energy recovery, and/or treatment for destruction in Section 8.2 VerDate Nov<24>2008 14:31 Apr 24, 2009 Jkt 217001 through and including Section 8.8 did not exceed 500 pounds. The December 2006 final rule also expanded non-PBT chemical eligibility for Form A by raising the annual reportable amount (ARA) eligibility criterion to 5,000 pounds for total annual waste management (i.e., releases, recycling, energy recovery, and treatment for destruction) provided total annual releases of the non-PBT chemical comprised no more than 2,000 pounds of the 5,000-pound total waste management limit. In other words, the December 2006 final rule allowed facilities to use Form A in lieu of Form R for a non-PBT chemical when the facility’s total annual reportable amount of the chemical released, recycled, combusted for energy recovery, and/or treated for destruction did not exceed 5,000 pounds, the facility’s total annual releases of the chemical did not exceed 2,000 pounds, and the facility did not manufacture, process, or otherwise use more than one million pounds of the non-PBT chemical. As it related to the Form R data elements, the December 2006 final rule allowed a facility to consider Form A for a non-PBT chemical when the sum of Section 8.1 through and including Section 8.8 did not exceed 5,000 pounds and the sum of amounts reported for items a, b, c, and d of Section 8.1 (Total Disposal or Other Releases) and any nonproduction-related releases reported in Section 8.8 (Quantity released to the environment as a result of remedial actions, catastrophic events, or one-time events not associated with production processes) did not exceed 2,000 pounds. For more information about the December 2006 final rule and to obtain the rule’s supporting materials visit the TRI Web site at http://www.epa.gov/tri and the docket for the December 2006 rule at http://www.regulations.gov under docket TRI–2005–0073. On March 11, 2009, the Omnibus Appropriations Act of 2009 (‘‘the Act’’) was enacted. The Act reads, in pertinent part: (1) None of the funds made available by this or any other Act may, hereafter, be used to implement the final rule promulgated by the Administrator of the Environmental Protection Agency entitled ‘Toxics Release Inventory Burden Reduction Final Rule’ (71 Fed. Reg. 76932); and (2) the final rule described in paragraph (1) shall have no force or effect. The affected regulatory text shall revert to what it was before the final rule described in paragraph (1) became effective, until any future action taken by the Administrator. Accordingly, EPA is issuing today’s final rule revising Form A eligibility for both PBT and non-PBT chemicals to the PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 thresholds established prior to the 2006 TRI Burden Reduction Final Rule. Under 5 U.S.C. 553(b)(3)(B), the noticeand-comment requirements of the Federal Administrative Procedure Act (5 U.S.C. 551–706) do not apply where the Agency ‘‘for good cause finds * * * that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.’’ Because this action is being taken to comply with an Act of Congress and EPA has no discretion as to the outcome of this rule, EPA hereby finds that notice and comment on this action are unnecessary. Accordingly, today’s rule modifies Form A eligibility provided for at 40 CFR section 372.27 (Alternate thresholds and certifications). For PBT chemicals, this final rule eliminates Form A eligibility for those chemicals listed at 40 CFR section 372.28. For nonPBT chemicals, today’s final rule reinstates the 500-pound annual reporting amount (the total of releases and other waste management) and 1,000,000 pounds manufactured, processed or otherwise used Form A eligibility threshold in effect prior to December 22, 2006. This includes releases and waste management activities (Section 8.1 through and including Section 8.7) which are counted against the 500 pound threshold criterion. Today’s rule is effective immediately upon publication in the Federal Register and affects reports filed for RY2008 (due July 1, 2009) forward. Under 5 U.S.C. 553(d)(3), this rule is effective immediately for good cause because the Omnibus Appropriations Act prohibits the Agency from expending any funds to implement the former reporting requirements and mandated that the regulations revert to the prior version. If a facility submitted a TRI Form A for RY 2008 on or after March 11, 2009, and still used the 2006 TRI Burden Reduction Final Rule to determine its eligibility for Form A, then the facility must determine whether it is still eligible to file Form A. The Omnibus Appropriation Act set back the Form A criteria to previous levels as of March 11. If the facility determines that it is no longer eligible to file Form A, then EPA requires the facility to revise and resubmit its RY 2008 report on Form R. Facilities are not permitted to submit a Form A for PBT chemicals. EPA recognizes that this change is occurring after 2008 reporting year during which the data collected for the Reporting Year 2008 filing, due on July 1, 2009, was collected. EPCRA requires facilities to make their best estimates E:\FR\FM\27APR1.SGM 27APR1 Federal Register / Vol. 74, No. 79 / Monday, April 27, 2009 / Rules and Regulations based on the available data (See EPCRA § 313(g)(2)). Facilities can seek further advice from EPA regions and the states about this rule change. III. References 1. Omnibus Appropriations Act of 2009, Public Law No. 111–8 (March 11, 2009). IV. What Are the Statutory and Executive Order Reviews Associated With This Action? A. Executive Order 12866, Regulatory Planning and Review This action is not a ‘‘significant regulatory action’’ under the terms of Executive Order (EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. EPA prepared a brief analysis of the potential costs and benefits associated with this action. This analysis is contained here. 1. Methodology To estimate the incremental costs, economic impacts, and benefits of this rule, the Agency estimated both the cost and burden of completing Form R and Form A as well as the number of affected entities. The Agency has used Reporting Year (RY) 2007 for TRI data. The Agency identified the number of potentially affected respondents currently completing Form As or eligible to complete Form A due to the Phase 2 Burden Reduction Rule that may be required to complete Form R as a result of today’s final rule. The Agency compared the baseline burden associated with completing Form A with the burden associated with completing Form R. The total burden and cost associated with this rule is the difference between the unit burden and cost of filing a Form R rather than a Form A for those respondents that were eligible to file a Form A as a result of the Burden Reduction Rule times the number of respondents affected. There are also a few filers who had filed Form As before the Burden Reduction Rule, who were subsequently required to file Form Rs after the Burden Reduction Rule, because the final rule stated that Section 8.8 releases must be included in the calculation of the releases for determining eligibility for using Form 19003 A. After this revision of the Form A eligibility, Section 8.8 releases no longer apply to the calculation of releases for determining eligibility for Form A, and these respondents may return to eligibility to file Form As. For these forms, the Agency has calculated the burden and cost reduction of returning to Form A eligibility for these particular Form R respondents. 2. Cost and Burden Results Table 1 summarize the potential annual cost and burden increase of this final rule for filers who would have been eligible to file Form A under the Burden Reduction Rule and who will now be required to file Form Rs. Table 2 summarizes the decrease in Cost and Burden due to this rule for a small number of respondents who were required to file form Rs as a result of the Burden Reduction Rule, but who are now eligible to file Form As. The net cost and burden of the rule is the total increase from Table 1 minus the total decrease in Table 2. TABLE 1—POTENTIAL ANNUAL COST AND BURDEN INCREASE OF THE TOXICS RELEASE INVENTORY FORM A ELIGIBILITY REVISIONS IMPLEMENTING THE 2009 OMNIBUS APPROPRIATIONS ACT: RESPONDENTS FILING FORM RS WHO WERE ELIGIBLE TO FILE FORM AS UNDER THE BURDEN REDUCTION RULE Number of forms Option type PBT .......................................................... non-PBT ................................................... PBT & non-PBT Combined ...................... Total burden hour increase Total burden hour increase per Form R 38,020 102,846 140,867 15.4 9.1 10.3 2,462 11,246 13,708 Total cost increase $2,004,470 5,368,519 7,372,988 Average cost increase per form $814 477 538 Percent of total cost/burden (percent) 27 73 100 TABLE 2—POTENTIAL ANNUAL COST AND BURDEN DECREASE OF THE TOXICS RELEASE INVENTORY FORM A ELIGIBILITY REVISIONS IMPLEMENTING THE 2009 OMNIBUS APPROPRIATIONS ACT: RESPONDENTS WHO ARE NOW ELIGIBLE TO FILE FORM AS WHO WOULD HAVE BEEN REQUIRED TO FILE FORM RS UNDER THE BURDEN REDUCTION RULE Number of forms Option type PBT .......................................................... non-PBT ................................................... PBT & non-PBT Combined ...................... dwashington3 on PROD1PC60 with RULES 14:31 Apr 24, 2009 Jkt 217001 Total burden hour decrease per Form A 0 302 302 0.0 9.1 9.1 0 33 33 The cost and burden is the increased burden due to respondents who now must file Form Rs who were formerly eligible for Form A, $7,372,988, minus the decrease in burden due to the return to Form A eligibility of some Form R VerDate Nov<24>2008 Total burden hour decrease filers, $15,753, yielding the increase in cost and burden of this rule as $7,357,235.00. 3. Impacts to data when EPA promulgated the Burden Reduction Rule in December 2006, it calculated the PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 Total cost decrease $0 15,753 15,753 Average cost decrease per form $0 477 477 Percent of total cost/burden (percent) 0 100 100 impact of the data that would be lost if all respondents who were eligible to use Form A as a result of the rule did so. One analysis looked at the number of pounds of releases and wastes that might not be reported on Form Rs. E:\FR\FM\27APR1.SGM 27APR1 19004 Federal Register / Vol. 74, No. 79 / Monday, April 27, 2009 / Rules and Regulations TABLE 1—PERCENTAGE OF TOTAL RELEASES AND OTHER WASTE MANAGEMENT POUNDS NOT REPORTED DUE TO NEW AND EXPANDED FORM A ELIGIBILITY Total releases not reported Lbs New Eligibility for Form A: PBT Chemicals Option ..................................................................... Expanded Eligibility for Form A: Non-PBT Chemicals Option .................................................... As a result of the Toxics Release Inventory Form A Eligibility Revisions Implementing the 2009 Omnibus Appropriations Act, all releases and wastes will be reported on From Rs and the local communities will be aware of them. Total production related waste not reported on Form R Lbs Total non-production related waste not reported on Form R Lbs 0 5,713,104 83,129 16,052,663 283 83,832 EPA also examined the potential impact on zip codes if all the Form Rs that indicated eligibility for Form A, reported on Form As. TABLE 2—ZIP CODES ELIGIBLE FOR FORM A REPORTING (PBT AND NON-PBT OPTIONS) Number of zip codes Zip codes with at least one Form R newly eligible for Form A ................................................... Zip codes with all Form Rs newly eligible for Form A ................................................................ 4,246 557 Percent of total zip codes containing Form Rs (percent) 47.4 6.2 Average No. of Form Rs per zip code 13.55 2.04 Note: Based on the RY2004 Frozen TRI data, there are 8,961 five-digit zip codes with TRI Form R data. Source: Frozen RY2004 TRI data. As shown on the chart above, nearly half of all zip codes would lose some release information and 557 zip codes would lose all the release information that would have been available before the Burden Reduction Rule. This information will now be restored to those communities. B. Paperwork Reduction Act dwashington3 on PROD1PC60 with RULES The reversal of the 2006 TRI Burden Reduction Rule will increase the overall reporting and recordkeeping burden estimate provided for EPCRA section 313, but this action has been approved as a change request by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. This action is being taken as a result of a congressional mandate and without any discretion on the part of EPA. Because of this reversal, burden is being shifted from the Form A Information Collection Request (OMB No. 2070–0143) back to the Form R Information Collection Request (OMB No. 2070–0093). Based on Reporting Year (RY) 2005 data, the shifted burden is estimated to be 140,565 hours and a cost of $7,357,235. C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. Today’s rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare VerDate Nov<24>2008 14:31 Apr 24, 2009 Jkt 217001 a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This rule is not subject to notice and comment requirements under the APA or any other statute because although the rule is subject to the APA, the Agency has invoked the ‘‘good cause’’ exemption under 5 U.S.C. 553(b), therefore it is not subject to the notice and comment requirement. federalism implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. D. Unfunded Mandates Reform Act F. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled ‘‘Consultation and Coordination with Indian Tribal Governments’’ (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.’’ ‘‘Policies that have tribal implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Because the agency has made a ‘‘good cause’’ finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute [see Section II above], it is not subject to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4). E. Executive Order 13132, Federalism Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. ‘‘Policies that have PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\27APR1.SGM 27APR1 Federal Register / Vol. 74, No. 79 / Monday, April 27, 2009 / Rules and Regulations government and Indian tribes.’’ This rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. dwashington3 on PROD1PC60 with RULES H. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not a ‘‘significant energy action’’ as defined in Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Today’s rule increases only recordkeeping and reporting burden for TRI reporters. It will not cause reductions in supply or production of oil, fuel, coal, or electricity. Nor will it result in increased energy prices, increased cost of energy distribution, or an increased dependence on foreign supplies of energy. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (‘‘NTTAA’’), Public Law 104–113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not establish technical VerDate Nov<24>2008 14:31 Apr 24, 2009 Jkt 217001 19005 standards. Therefore, EPA did not consider the use of any voluntary consensus standards. effective date April 27, 2009. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The principal consequence of today’s action will be to increase the amount of detailed information available on toxic chemical releases or management and therefore, EPA does not have any evidence that this rule will have a direct effect on human health or environmental conditions. List of Subjects in 40 CFR Part 372 Environmental protection, Community right-to-know, Reporting and recordkeeping requirements, Toxic chemicals. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. Section 808 of the Congressional Review Act provides that any rule for which the issuing agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rule) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines (5 U.S.C. 808(2)). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 Dated: April 20, 2009. Lisa P. Jackson, Administrator. Therefore, 40 CFR part 372 is amended as follows: ■ PART 372—[AMENDED] 1. The authority citation for part 372 continues to read as follows: ■ Authority: 42 U.S.C. 11023 and 11048. Subpart A—[Amended] 2. Revise § 372.10(d) introductory text to read as follows: ■ § 372.10 Recordkeeping. * * * * * (d) Each owner or operator who determines that the owner operator may apply the alternate threshold as specified under § 372.27(a) must retain the following records for a period of 3 years from the date of the submission of the certification statement as required under §372.27(b): * * * * * Subpart B—[Amended] 3. Section 372.27 is amended as follows: ■ a. Revise section heading. ■ b. Revise paragraph (a). ■ c. Revise paragraph (b). ■ d. Revise paragraph (e). ■ § 372.27 Alternate threshold and certification. (a) Except as provided in paragraph (e) of this section, with respect to the manufacture, process, or otherwise use of a toxic chemical, the owner or operator of a facility may apply an alternate threshold of 1 million pounds per year to that chemical if the owner or operator calculates that the facility would have an annual reportable amount of that toxic chemical not exceeding 500 pounds for the combined total quantities released at the facility, disposed within the facility, treated at the facility (as represented by amounts destroyed or converted by treatment processes), recovered at the facility as a result of recycle operations, combusted for the purpose of energy recovery at the facility, and amounts transferred from the facility to off-site locations for the purpose of recycle, energy recovery, E:\FR\FM\27APR1.SGM 27APR1 19006 Federal Register / Vol. 74, No. 79 / Monday, April 27, 2009 / Rules and Regulations treatment, and/or disposal. These volumes correspond to the sum of amounts reportable for data elements on EPA Form R (EPA Form 9350–1; Rev. 12/4/93) as Part II column B or sections 8.1 (quantity released), 8.2 (quantity used for energy recovery on-site), 8.3 (quantity used for energy recovery offsite), 8.4 (quantity recycled on-site), 8.5 (quantity recycled off-site), 8.6 (quantity treated on-site), and 8.7 (quantity treated off-site). (b) If an owner or operator of a facility determines that the owner or operator may apply the alternate reporting threshold specified in paragraph (a) of this section for a specific toxic chemical, the owner or operator is not required to submit a report for that chemical under § 372.30, but must submit a certification statement that contains the information required in § 372.95. The owner or operator of the facility must also keep records as specified in § 372.10(d). * * * * * (e) The provisions of this section do not apply to any chemicals listed in § 372.28. Subpart E—[Amended] 4. Section 372.95 is amended as follows: ■ a. Revise section heading. ■ b. Revise paragraph (b) introductory text. ■ c. Revise paragraph (b)(4). ■ § 372.95 Alternate threshold certification and instructions. dwashington3 on PROD1PC60 with RULES * * * * * (b) Alternate threshold certification statement elements. The following information must be reported on an alternate threshold certification statement pursuant to § 372.27(b): * * * * * (4) Signature of a senior management official certifying the following: pursuant to 40 CFR 372.27, ‘‘I hereby certify that to the best of my knowledge and belief for the toxic chemical listed in this statement, the annual reportable amount, as defined in 40 CFR 372.27(a), did not exceed 500 pounds for this reporting year and that the chemical was manufactured, or processed, or otherwise used in an amount not exceeding 1 million pounds during this reporting year.’’ * * * * * [FR Doc. E9–9530 Filed 4–24–09; 8:45 am] BILLING CODE 6560–50–P VerDate Nov<24>2008 14:31 Apr 24, 2009 Jkt 217001 DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Parts 160 and 164 Guidance Specifying the Technologies and Methodologies That Render Protected Health Information Unusable, Unreadable, or Indecipherable to Unauthorized Individuals for Purposes of the Breach Notification Requirements Under Section 13402 of Title XIII (Health Information Technology for Economic and Clinical Health Act) of the American Recovery and Reinvestment Act of 2009; Request for Information AGENCY: Office of the Secretary, Department of Health and Human Services. ACTION: Guidance and Request for Information. SUMMARY: This document is guidance and a request for comments under section 13402 of the Health Information Technology for Economic and Clinical Health (HITECH) Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA) (Pub. L. 111–5). ARRA was enacted on February 17, 2009. The HITECH Act (the Act) at section 13402 requires the Department of Health and Human Services (HHS) to issue interim final regulations within 180 days of enactment to require covered entities under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and their business associates to provide for notification in the case of breaches of unsecured protected health information. For purposes of these requirements, section 13402(h) of the Act defines ‘‘unsecured protected health information’’ to mean protected health information that is not secured through the use of a technology or methodology specified by the Secretary in guidance, and requires the Secretary to issue such guidance no later than 60 days after enactment and to specify within the technologies and methodologies that render protected health information unusable, unreadable, or indecipherable to unauthorized individuals. Through this document, HHS is issuing the required guidance and seeking public comment both on the guidance as well as the breach notification provisions of the Act generally to inform the future rulemaking and updates to the guidance. DATES: Comments must be submitted on or before May 21, 2009. The guidance is applicable upon issuance, which occurred on April 17, 2009, through PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 posting on the HHS Web site at http:// www.hhs.gov/ocr/privacy. However, the guidance will apply to breaches 30 days after publication of the forthcoming interim final regulations. If we determine that the guidance should be modified based on public comments, we will issue updated guidance prior to or concurrently with the regulations. ADDRESSES: Written comments may be submitted through any of the methods specified below. Please do not submit duplicate comments. • Federal eRulemaking Portal: You may submit electronic comments at http://www.regulations.gov. Follow the instructions for submitting electronic comments. Attachments should be in Microsoft Word, WordPerfect, or Excel; however, we prefer Microsoft Word. • Regular, Express, or Overnight Mail: You may mail written comments (one original and two copies) to the following address only: U.S. Department of Health and Human Services, Office for Civil Rights, Attention: HITECH Breach Notification, Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue, SW., Washington, DC 20201. • Hand Delivery or Courier: If you prefer, you may deliver (by hand or courier) your written comments (one original and two copies) to the following address only: Office for Civil Rights, Attention: HITECH Breach Notification, Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue, SW., Washington, DC 20201. (Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without federal government identification, commenters are encouraged to leave their comments in the mail drop slots located in the main lobby of the building.) Inspection of Public Comments: All comments received before the close of the comment period will be available for public inspection, including any personally identifiable or confidential business information that is included in a comment. We will post all comments received before the close of the comment period at http:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Andra Wicks, 202–205–2292. SUPPLEMENTARY INFORMATION: I. Background The Health Information Technology for Economic and Clinical Health (HITECH) Act was enacted on February 17, 2009, as Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA) (Pub. L. 111–5). Subtitle D of E:\FR\FM\27APR1.SGM 27APR1

Agencies

[Federal Register Volume 74, Number 79 (Monday, April 27, 2009)]
[Rules and Regulations]
[Pages 19001-19006]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-9530]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[TRI-2009-0216; FRL-8897-4]
RIN 2025-AA25


Toxics Release Inventory Form A Eligibility Revisions 
Implementing the 2009 Omnibus Appropriations Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is amending its regulations on the eligibility criteria 
for submitting a Form A Certification Statement in lieu of the more 
detailed Form R submitted by facilities subject to TRI reporting under 
section 313 of the Emergency Planning and Community Right-to-Know Act 
of 1986 (EPCRA) and section 6607 of the Pollution Prevention Act of 
1990 (PPA). This action is being taken to comply with the ``Omnibus 
Appropriations Act of 2009'' enacted on March 11, 2009. As this action 
is being taken to conform the regulations to a Congressional 
legislative mandate, notice and comment rulemaking is unnecessary, and 
this rule is effective immediately. Upon publication to the Federal 
Register, the provisions of the Toxics Release Inventory Burden 
Reduction Final Rule will be removed and the regulations in place prior 
to its implementation will be restored as described below.

DATES: This final rule is effective on April 27, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. TRI-2009-0216. All documents in the docket are listed in the 
EDOCKET index at http://www.epa.gov/edocket. Although listed in the 
index, some information is not publicly available, i.e., 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 in 
EDOCKET or in hard copy at the OEI Docket, EPA/DC, EPA West, 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: Cory J. Wagner, Toxics Release 
Inventory Program Division, Office of Information Analysis and Access 
(2844T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: 202-566-1555; fax number: 202-
566-0741; e-mail: wagner.cory@epa.gov, for specific information on this 
proposed rule, or for more information on EPCRA section 313, the 
Emergency Planning and Community Right-to-Know Hotline, Environmental 
Protection Agency, Mail Code 5101, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, Toll free: 1-800-424-9346, in Virginia and 
Alaska: 703-412-9810 or Toll free TDD: 1-800-553-7672.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me ?

    This action applies to facilities that submit annual reports under 
section 313

[[Page 19002]]

of the Emergency Planning and Community Right-to-Know Act (EPCRA) and 
section 6607 of the Pollution Prevention Act (PPA). It specifically 
applies to those that submit the TRI Form R or Form A Certification 
Statement. (See http://www.epa.gov/tri/report/index.htm#forms for 
detailed information about EPA's TRI reporting forms.) To determine 
whether your facility would be 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 questions 
regarding the applicability of this action to a particular entity, 
consult the individuals listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.
    This action is also relevant to those who utilize EPA's TRI 
information, including State agencies, local governments, communities, 
environmental groups and other non-governmental organizations, as well 
as members of the general public.

II. Background and Rationale for Action

    In the Federal Register of December 22, 2006 (71 FR 76932), EPA 
issued the Toxics Release Inventory Burden Reduction Final Rule 
expanding Form A eligibility for non-PBT chemicals and allowing for the 
first time, and in limited circumstances, Form A eligibility for PBT 
chemicals. Specifically, the December 2006 final rule allowed 
facilities to use Form A in lieu of Form R for TRI-listed PBT chemicals 
(except dioxin and dioxin-like compounds) when there were no annual 
releases of the PBT chemical, the facility's total annual amount of the 
chemical recycled, combusted for energy recovery, and/or treated for 
destruction did not exceed 500 pounds, and the facility did not 
manufacture, process, or otherwise use more than one million pounds of 
the PBT chemical. As it related to the Form R data elements, the 
December 2006 final rule allowed a facility to use Form A instead of 
Form R for a specific PBT chemical (other than dioxin and dioxin-like 
compounds) when zero or not applicable (NA) was reported for items a, 
b, c, and d of Section 8.1 (Total Disposal or Other Releases), the 
facility did not have any non-production-related releases of the PBT 
chemical included in Section 8.8 (quantity released to the environment 
as a result of remedial actions, catastrophic events, or one-time 
events not associated with production processes), and the total amount 
reported for recycling, energy recovery, and/or treatment for 
destruction in Section 8.2 through and including Section 8.8 did not 
exceed 500 pounds.
    The December 2006 final rule also expanded non-PBT chemical 
eligibility for Form A by raising the annual reportable amount (ARA) 
eligibility criterion to 5,000 pounds for total annual waste management 
(i.e., releases, recycling, energy recovery, and treatment for 
destruction) provided total annual releases of the non-PBT chemical 
comprised no more than 2,000 pounds of the 5,000-pound total waste 
management limit. In other words, the December 2006 final rule allowed 
facilities to use Form A in lieu of Form R for a non-PBT chemical when 
the facility's total annual reportable amount of the chemical released, 
recycled, combusted for energy recovery, and/or treated for destruction 
did not exceed 5,000 pounds, the facility's total annual releases of 
the chemical did not exceed 2,000 pounds, and the facility did not 
manufacture, process, or otherwise use more than one million pounds of 
the non-PBT chemical. As it related to the Form R data elements, the 
December 2006 final rule allowed a facility to consider Form A for a 
non-PBT chemical when the sum of Section 8.1 through and including 
Section 8.8 did not exceed 5,000 pounds and the sum of amounts reported 
for items a, b, c, and d of Section 8.1 (Total Disposal or Other 
Releases) and any non-production-related releases reported in Section 
8.8 (Quantity released to the environment as a result of remedial 
actions, catastrophic events, or one-time events not associated with 
production processes) did not exceed 2,000 pounds. For more information 
about the December 2006 final rule and to obtain the rule's supporting 
materials visit the TRI Web site at http://www.epa.gov/tri and the 
docket for the December 2006 rule at http://www.regulations.gov under 
docket TRI-2005-0073.
    On March 11, 2009, the Omnibus Appropriations Act of 2009 (``the 
Act'') was enacted. The Act reads, in pertinent part:

    (1) None of the funds made available by this or any other Act 
may, hereafter, be used to implement the final rule promulgated by 
the Administrator of the Environmental Protection Agency entitled 
`Toxics Release Inventory Burden Reduction Final Rule' (71 Fed. Reg. 
76932); and (2) the final rule described in paragraph (1) shall have 
no force or effect. The affected regulatory text shall revert to 
what it was before the final rule described in paragraph (1) became 
effective, until any future action taken by the Administrator.

    Accordingly, EPA is issuing today's final rule revising Form A 
eligibility for both PBT and non-PBT chemicals to the thresholds 
established prior to the 2006 TRI Burden Reduction Final Rule. Under 5 
U.S.C. 553(b)(3)(B), the notice-and-comment requirements of the Federal 
Administrative Procedure Act (5 U.S.C. 551-706) do not apply where the 
Agency ``for good cause finds * * * that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest.'' Because this action is being taken to comply with an Act of 
Congress and EPA has no discretion as to the outcome of this rule, EPA 
hereby finds that notice and comment on this action are unnecessary.
    Accordingly, today's rule modifies Form A eligibility provided for 
at 40 CFR section 372.27 (Alternate thresholds and certifications). For 
PBT chemicals, this final rule eliminates Form A eligibility for those 
chemicals listed at 40 CFR section 372.28. For non-PBT chemicals, 
today's final rule reinstates the 500-pound annual reporting amount 
(the total of releases and other waste management) and 1,000,000 pounds 
manufactured, processed or otherwise used Form A eligibility threshold 
in effect prior to December 22, 2006. This includes releases and waste 
management activities (Section 8.1 through and including Section 8.7) 
which are counted against the 500 pound threshold criterion.
    Today's rule is effective immediately upon publication in the 
Federal Register and affects reports filed for RY2008 (due July 1, 
2009) forward. Under 5 U.S.C. 553(d)(3), this rule is effective 
immediately for good cause because the Omnibus Appropriations Act 
prohibits the Agency from expending any funds to implement the former 
reporting requirements and mandated that the regulations revert to the 
prior version.
    If a facility submitted a TRI Form A for RY 2008 on or after March 
11, 2009, and still used the 2006 TRI Burden Reduction Final Rule to 
determine its eligibility for Form A, then the facility must determine 
whether it is still eligible to file Form A. The Omnibus Appropriation 
Act set back the Form A criteria to previous levels as of March 11. If 
the facility determines that it is no longer eligible to file Form A, 
then EPA requires the facility to revise and resubmit its RY 2008 
report on Form R. Facilities are not permitted to submit a Form A for 
PBT chemicals.
    EPA recognizes that this change is occurring after 2008 reporting 
year during which the data collected for the Reporting Year 2008 
filing, due on July 1, 2009, was collected. EPCRA requires facilities 
to make their best estimates

[[Page 19003]]

based on the available data (See EPCRA Sec.  313(g)(2)). Facilities can 
seek further advice from EPA regions and the states about this rule 
change.

III. References

    1. Omnibus Appropriations Act of 2009, Public Law No. 111-8 (March 
11, 2009).

IV. What Are the Statutory and Executive Order Reviews Associated With 
This Action?

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO)12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO. EPA prepared a brief 
analysis of the potential costs and benefits associated with this 
action. This analysis is contained here.
1. Methodology
    To estimate the incremental costs, economic impacts, and benefits 
of this rule, the Agency estimated both the cost and burden of 
completing Form R and Form A as well as the number of affected 
entities. The Agency has used Reporting Year (RY) 2007 for TRI data. 
The Agency identified the number of potentially affected respondents 
currently completing Form As or eligible to complete Form A due to the 
Phase 2 Burden Reduction Rule that may be required to complete Form R 
as a result of today's final rule. The Agency compared the baseline 
burden associated with completing Form A with the burden associated 
with completing Form R. The total burden and cost associated with this 
rule is the difference between the unit burden and cost of filing a 
Form R rather than a Form A for those respondents that were eligible to 
file a Form A as a result of the Burden Reduction Rule times the number 
of respondents affected. There are also a few filers who had filed Form 
As before the Burden Reduction Rule, who were subsequently required to 
file Form Rs after the Burden Reduction Rule, because the final rule 
stated that Section 8.8 releases must be included in the calculation of 
the releases for determining eligibility for using Form A. After this 
revision of the Form A eligibility, Section 8.8 releases no longer 
apply to the calculation of releases for determining eligibility for 
Form A, and these respondents may return to eligibility to file Form 
As. For these forms, the Agency has calculated the burden and cost 
reduction of returning to Form A eligibility for these particular Form 
R respondents.
2. Cost and Burden Results
    Table 1 summarize the potential annual cost and burden increase of 
this final rule for filers who would have been eligible to file Form A 
under the Burden Reduction Rule and who will now be required to file 
Form Rs. Table 2 summarizes the decrease in Cost and Burden due to this 
rule for a small number of respondents who were required to file form 
Rs as a result of the Burden Reduction Rule, but who are now eligible 
to file Form As. The net cost and burden of the rule is the total 
increase from Table 1 minus the total decrease in Table 2.

      Table 1--Potential Annual Cost and Burden Increase of the Toxics Release Inventory Form A Eligibility Revisions Implementing the 2009 Omnibus
                    Appropriations Act: Respondents Filing Form Rs Who Were Eligible To File Form As Under the Burden Reduction Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            Percent of
                                                             Number of     Total burden    Total burden     Total cost     Average cost     total cost/
                       Option type                             forms       hour increase   hour increase     increase      increase per       burden
                                                                                            per Form R                         form          (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
PBT.....................................................           2,462          38,020            15.4      $2,004,470            $814              27
non-PBT.................................................          11,246         102,846             9.1       5,368,519             477              73
PBT & non-PBT Combined..................................          13,708         140,867            10.3       7,372,988             538             100
--------------------------------------------------------------------------------------------------------------------------------------------------------


      Table 2--Potential Annual Cost and Burden Decrease of the Toxics Release Inventory Form A Eligibility Revisions Implementing the 2009 Omnibus
    Appropriations Act: Respondents Who Are Now Eligible To File Form As Who Would Have Been Required To File Form Rs under the Burden Reduction Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            Percent of
                                                             Number of     Total burden    Total burden     Total cost     Average cost     total cost/
                       Option type                             forms       hour decrease   hour decrease     decrease      decrease per       burden
                                                                                            per Form A                         form          (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
PBT.....................................................               0               0             0.0              $0              $0               0
non-PBT.................................................              33             302             9.1          15,753             477             100
PBT & non-PBT Combined..................................              33             302             9.1          15,753             477             100
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The cost and burden is the increased burden due to respondents who 
now must file Form Rs who were formerly eligible for Form A, 
$7,372,988, minus the decrease in burden due to the return to Form A 
eligibility of some Form R filers, $15,753, yielding the increase in 
cost and burden of this rule as $7,357,235.00.
    3. Impacts to data when EPA promulgated the Burden Reduction Rule 
in December 2006, it calculated the impact of the data that would be 
lost if all respondents who were eligible to use Form A as a result of 
the rule did so. One analysis looked at the number of pounds of 
releases and wastes that might not be reported on Form Rs.

[[Page 19004]]



  Table 1--Percentage of Total Releases and Other Waste Management Pounds Not Reported Due to New and Expanded
                                               Form A Eligibility
----------------------------------------------------------------------------------------------------------------
                                                                                       Total        Total non-
                                                                  Total releases    production      production
                                                                   not reported    related waste   related waste
                                                                        Lbs        not reported    not  reported
                                                                                  on Form R  Lbs  on Form R  Lbs
----------------------------------------------------------------------------------------------------------------
New Eligibility for Form A: PBT Chemicals Option................               0          83,129             283
Expanded Eligibility for Form A: Non-PBT Chemicals Option.......       5,713,104      16,052,663          83,832
----------------------------------------------------------------------------------------------------------------

    As a result of the Toxics Release Inventory Form A Eligibility 
Revisions Implementing the 2009 Omnibus Appropriations Act, all 
releases and wastes will be reported on From Rs and the local 
communities will be aware of them.
    EPA also examined the potential impact on zip codes if all the Form 
Rs that indicated eligibility for Form A, reported on Form As.

                   Table 2--Zip Codes Eligible for Form A Reporting (PBT and Non-PBT Options)
----------------------------------------------------------------------------------------------------------------
                                                                                    Percent of
                                                                                     total zip
                                                                   Number of zip       codes      Average No. of
                                                                       codes        containing      Form Rs per
                                                                                      Form Rs        zip code
                                                                                     (percent)
----------------------------------------------------------------------------------------------------------------
Zip codes with at least one Form R newly eligible for Form A....           4,246            47.4           13.55
Zip codes with all Form Rs newly eligible for Form A............             557             6.2            2.04
----------------------------------------------------------------------------------------------------------------
Note: Based on the RY2004 Frozen TRI data, there are 8,961 five-digit zip codes with TRI Form R data.
Source: Frozen RY2004 TRI data.

    As shown on the chart above, nearly half of all zip codes would 
lose some release information and 557 zip codes would lose all the 
release information that would have been available before the Burden 
Reduction Rule. This information will now be restored to those 
communities.

B. Paperwork Reduction Act

    The reversal of the 2006 TRI Burden Reduction Rule will increase 
the overall reporting and recordkeeping burden estimate provided for 
EPCRA section 313, but this action has been approved as a change 
request by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 
et seq. This action is being taken as a result of a congressional 
mandate and without any discretion on the part of EPA. Because of this 
reversal, burden is being shifted from the Form A Information 
Collection Request (OMB No. 2070-0143) back to the Form R Information 
Collection Request (OMB No. 2070-0093). Based on Reporting Year (RY) 
2005 data, the shifted burden is estimated to be 140,565 hours and a 
cost of $7,357,235.

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

    Today's rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice and comment rulemaking requirements under 
the Administrative Procedure Act (APA) or any other statute. This rule 
is not subject to notice and comment requirements under the APA or any 
other statute because although the rule is subject to the APA, the 
Agency has invoked the ``good cause'' exemption under 5 U.S.C. 553(b), 
therefore it is not subject to the notice and comment requirement.

D. Unfunded Mandates Reform Act

    Because the agency has made a ``good cause'' finding that this 
action is not subject to notice-and-comment requirements under the 
Administrative Procedure Act or any other statute [see Section II 
above], it is not subject to sections 202 and 205 of the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications. 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' This rule 
does not have federalism implications. It will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal Government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal

[[Page 19005]]

government and Indian tribes.'' This rule does not have tribal 
implications. It will not have substantial direct effects on tribal 
governments, on the relationship between the Federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes, as specified in 
Executive Order 13175.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

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

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. Today's 
rule increases only recordkeeping and reporting burden for TRI 
reporters. It will not cause reductions in supply or production of oil, 
fuel, coal, or electricity. Nor will it result in increased energy 
prices, increased cost of energy distribution, or an increased 
dependence on foreign supplies of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
rule does not establish technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The principal consequence of today's action will be to 
increase the amount of detailed information available on toxic chemical 
releases or management and therefore, EPA does not have any evidence 
that this rule will have a direct effect on human health or 
environmental conditions.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. Section 808 of the 
Congressional Review Act provides that any rule for which the issuing 
agency for good cause finds (and incorporates the finding and a brief 
statement of reasons therefore in the rule) that notice and public 
procedure thereon are impracticable, unnecessary, or contrary to the 
public interest, shall take effect at such time as the agency 
promulgating the rule determines (5 U.S.C. 808(2)). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefore, and established an effective date April 27, 2009. 
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, Reporting and 
recordkeeping requirements, Toxic chemicals.

    Dated: April 20, 2009.
Lisa P. Jackson,
Administrator.

0
Therefore, 40 CFR part 372 is amended as follows:

PART 372--[AMENDED]

0
1. The authority citation for part 372 continues to read as follows:

    Authority: 42 U.S.C. 11023 and 11048.

Subpart A--[Amended]

0
2. Revise Sec.  372.10(d) introductory text to read as follows:


Sec.  372.10  Recordkeeping.

* * * * *
    (d) Each owner or operator who determines that the owner operator 
may apply the alternate threshold as specified under Sec.  372.27(a) 
must retain the following records for a period of 3 years from the date 
of the submission of the certification statement as required under 
Sec. 372.27(b):
* * * * *

Subpart B--[Amended]

0
3. Section 372.27 is amended as follows:
0
a. Revise section heading.
0
b. Revise paragraph (a).
0
c. Revise paragraph (b).
0
d. Revise paragraph (e).


Sec.  372.27  Alternate threshold and certification.

    (a) Except as provided in paragraph (e) of this section, with 
respect to the manufacture, process, or otherwise use of a toxic 
chemical, the owner or operator of a facility may apply an alternate 
threshold of 1 million pounds per year to that chemical if the owner or 
operator calculates that the facility would have an annual reportable 
amount of that toxic chemical not exceeding 500 pounds for the combined 
total quantities released at the facility, disposed within the 
facility, treated at the facility (as represented by amounts destroyed 
or converted by treatment processes), recovered at the facility as a 
result of recycle operations, combusted for the purpose of energy 
recovery at the facility, and amounts transferred from the facility to 
off-site locations for the purpose of recycle, energy recovery,

[[Page 19006]]

treatment, and/or disposal. These volumes correspond to the sum of 
amounts reportable for data elements on EPA Form R (EPA Form 9350-1; 
Rev. 12/4/93) as Part II column B or sections 8.1 (quantity released), 
8.2 (quantity used for energy recovery on-site), 8.3 (quantity used for 
energy recovery off-site), 8.4 (quantity recycled on-site), 8.5 
(quantity recycled off-site), 8.6 (quantity treated on-site), and 8.7 
(quantity treated off-site).
    (b) If an owner or operator of a facility determines that the owner 
or operator may apply the alternate reporting threshold specified in 
paragraph (a) of this section for a specific toxic chemical, the owner 
or operator is not required to submit a report for that chemical under 
Sec.  372.30, but must submit a certification statement that contains 
the information required in Sec.  372.95. The owner or operator of the 
facility must also keep records as specified in Sec.  372.10(d).
* * * * *
    (e) The provisions of this section do not apply to any chemicals 
listed in Sec.  372.28.

Subpart E--[Amended]

0
4. Section 372.95 is amended as follows:
0
a. Revise section heading.
0
b. Revise paragraph (b) introductory text.
0
c. Revise paragraph (b)(4).


Sec.  372.95  Alternate threshold certification and instructions.

* * * * *
    (b) Alternate threshold certification statement elements. The 
following information must be reported on an alternate threshold 
certification statement pursuant to Sec.  372.27(b):
* * * * *
    (4) Signature of a senior management official certifying the 
following: pursuant to 40 CFR 372.27, ``I hereby certify that to the 
best of my knowledge and belief for the toxic chemical listed in this 
statement, the annual reportable amount, as defined in 40 CFR 
372.27(a), did not exceed 500 pounds for this reporting year and that 
the chemical was manufactured, or processed, or otherwise used in an 
amount not exceeding 1 million pounds during this reporting year.''
* * * * *
[FR Doc. E9-9530 Filed 4-24-09; 8:45 am]
BILLING CODE 6560-50-P