Air quality implementation plans; approval and promulgation; various States: Texas,

[Federal Register: November 12, 1999 (Volume 64, Number 218)]

[Rules and Regulations]

[Page 61523-61526]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr12no99-24]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-106-1-7405a, FRL-6471-8]

Approval and Promulgation of Implementation Plans; Texas; Revisions to Consumer Products Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is taking direct final action approving revisions to the consumer products regulations in the Texas State Implementation Plan (SIP). The primary purpose of the revisions is to amend the regulations to exclude a new type of insecticide designated to kill house dust mites from the volatile organic compound (VOC) limitation applicable to other crawling bug insecticides. The EPA is approving these revisions to the Texas SIP as requested by the Governor of Texas.

DATES: This rule is effective on January 11, 2000 without further notice, unless EPA receives adverse comment by December 13, 1999. If EPA receives such comment, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

ADDRESSES: Written comments on this action should be addressed to Mr. Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 6 Office listed below. Copies of documents relevant to this action are available for public inspection during normal business hours at the following locations. Anyone wanting to examine these documents should make an appointment with the appropriate office at least two working days in advance.

[[Page 61524]]

Environmental Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733.

Texas Natural Resource Conservation Commission, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Bill Deese of the EPA Region 6 Air Planning Section at (214) 665-7253.

SUPPLEMENTARY INFORMATION:

Throughout this document whenever ``we'' is used, we mean EPA. This document makes references to subsections of 40 CFR 52.2270. Section 40 CFR 52.2270 was moved to 40 CFR 52.2299 in a Federal Register action published July 7, 1999 (64 FR 36586).

1. What Is EPA Approving in This Action?

   The consumer products regulations in the Texas SIP are codified in Texas Natural Resource Conservation Commission (TNRCC) Regulation V (30 TAC Chapter 115), Control of Air Pollution from Volatile Organic Compounds, Subchapter G, Consumer-Related Products. The current SIP- approved regulations were adopted by the State on May 4, 1994; December 6, 1995; February 14, 1996; and July 24, 1996; and approved by EPA on May 22, 1997 (62 FR 27964), at 52.2270(c)(104), and January 26, 1999 (64 FR 3841), at 52.2270(c)(105). The current Texas SIP-approved consumer products regulations are available for public inspection by selecting ``Texas'' and ``TX Chap 115 (Reg 5)'' and ``Subchapter G-- Consumer-Related Sources'' and ``TX sections 115.600-115.619: CONSUMER PRODUCTS'' at the following web site: http://www.epa.gov/earth1r6/6pd/ air/sip/sip.htm

   On September 15, 1998, the Governor of Texas submitted to EPA revisions to subchapter G, section 115.600, Definitions, adopted by TNRCC on August 26, 1998. The amendments added language to the definition of ``crawling bug insecticide'' to differentiate a ``house dust mite'' from other crawling bugs and a ``house dust mite product'' from crawling bug insecticides in order to exclude a new type of insecticide designed to kill house dust mites from the VOC limitation applicable to other crawling bug insecticides. The insecticide formulation necessary to kill house dust mites requires that the VOC content exceed the 40 percent-by-weight concentration limitation for crawling bug insecticides specified in section 115.612(a) of subchapter G of the State regulation and in 40 CFR 59.203 of the Federal regulations. The amended definition of ``crawling bug insecticide'' is consistent with the Federal definition of ``crawling bug insecticide'' promulgated September 11, 1998 (63 FR 48831), and codified in 40 CFR 59.202. This amended rule permits the sale of such products in Texas. This amendment benefits the public by expanding the markets for the sale of dust mite insecticides in Texas and the resulting benefits to consumers and users from control of insects by these insecticides.

   The TNRCC also deleted the definition of the term ``device'' approved by EPA in the May 22, 1997 (62 FR 27964), Federal Register action. This is consistent with the definitions in the Federal consumer products regulations in 40 CFR 59.202 which does not have a definition of ``device.''

   The amendments also make acceptable editorial changes to the definitions of ``consumer product,'' ``disinfectant,'' ``medium volatility organic compound (MVOC),'' ``percent-by-weight,'' and ``restricted materials.'' The amendments also assign numbers to the individual definitions.

2. Final Action

   The EPA is approving revisions to section 115.600 of TNRCC Regulation V (30 TAC Chapter 115) adopted by TNRCC August 26, 1998, and submitted by the Governor on September 15, 1998.

   The EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the ``Proposed Rules'' section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are received. This rule will be effective on January 11, 2000 without further notice unless we receive adverse comment by December 13, 1999. If EPA receives adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

3. Administrative Requirements

   1. Executive Order (E.O.) 12866

      The Office of Management and Budget (OMB) has exempted this regulatory action from E.O. 12866, entitled ``Regulatory Planning and Review.''

   2. Executive Orders on Federalism

      Under E.O. 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a State, local or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies by consulting, E.O. 12875 requires EPA to provide to the OMB a description of the extent of EPA's prior consultation with representatives of affected State, local and tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, E.O. 12875 requires EPA to develop an effective process permitting elected officials and other representatives of State, local and tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.''

      Today's rule does not create a mandate on State, local, or tribal governments. The rule does not impose any enforceable rules on any of these entities. This action does not create any new requirements but simply approves requirements that the State is already imposing. Accordingly, the requirements of section 1(a) of E.O. 12875 do not apply to this rule.

      On August 4, 1999, President Clinton issued a new E.O. on federalism, E.O. 13132 (64 FR 43255, August 10, 1999), which will take effect on November 2, 1999. In the interim, the current E.O. 12612 (52 FR 41685, October 30, 1987), on federalism still applies. This rule will not have a substantial direct effect on 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 E.O. 12612. The rule affects only one State, and does not alter the relationship or the distribution of power and responsibilities established in Federal Clean Air Act (the Act).

   3. Executive Order 13045

      Executive Order 13045, entitled ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be ``economically significant'' as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If

      [[Page 61525]]

      the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

      The EPA interprets E.O. 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to E.O. 13045 because it approves a State program.

   4. Executive Order 13084

      Under E.O. 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, E.O. 13084 requires EPA to provide to the OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, E.O. 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.''

      Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian tribes. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

   5. Regulatory Flexibility Act

      The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship under the Act, preparation of a flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Act forbids EPA to base its actions concerning SIPs on such grounds. See Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

   6. Unfunded Mandates

      Under section 202 of the Unfunded Mandates Reform Act of 1995, signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost- effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

      The EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

   7. Submission to Congress and the Comptroller General

      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. The 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. A major rule can not 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 rule will be effective January 11, 2000.

   8. Petitions for Judicial Review

      Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filedin the United States Court of Appeals for the appropriate circuit by January 11, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

      List of Subjects in 40 CFR Part 52

      Environmental protection, Air pollution control, Hydrocarbons, Intergovernmental relations, Reporting and recordkeeping requirements, Volatile organic compounds.

      Dated: October 27, 1999. Myron O. Knudson, Acting Regional Administrator, Region 6.

      Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

      PART 52--[AMENDED]

      1. The authority citation for part 52 continues to read as follows:

         Authority: 42 U.S.C. 7401 et seq.

         Subpart SS--Texas

      2. In Sec. 52.2270(c), the first table is amended by revising the entry for sections 115.600 to 115.619 to read as follows:

         Sec. 52.2270 Identification of plan.

         * * * * *

         (c) EPA approved regulations.

         [[Page 61526]]

         EPA Approved Regulations in the Texas SIP

         State

         EPA State citation

         Title/subject

         adoption approval

         Explanation date

         date

         *

         *

         *

         *

         *

         * * Chapter 115 (Reg 5)--Control of Air Pollution from Volatile Organic Compounds

         *

         *

         *

         *

         *

         * *

         Subchapter G--Consumer-Related Sources

         Section 115.600 to 115.619.......... Consumer Products...... 08/26/98 11/12/99

         *

         *

         *

         *

         *

         * *

         [FR Doc. 99-29299Filed11-10-99; 8:45 am]

         BILLING CODE 6560-50-P