[Federal Register Volume 64, Number 218 (Friday, November 12, 1999)]
[Rules and Regulations]
[Pages 61523-61526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29299]


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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.

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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).

I. 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.

II. 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.

III. Administrative Requirements

A. 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.''

B. 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).

C. 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.

D. 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.

E. 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).

F. 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.

G. 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.

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in 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
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                                                                  State         EPA
           State citation                  Title/subject         adoption     approval         Explanation
                                                                   date         date
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*                  *                  *                  *                  *                  *
                                                        *
                  Chapter 115 (Reg 5)--Control of Air Pollution from Volatile Organic Compounds
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*                  *                  *                  *                  *                  *
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                                     Subchapter G--Consumer-Related Sources
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Section 115.600 to 115.619..........  Consumer Products......     08/26/98     11/12/99
 
*                  *                  *                  *                  *                  *
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[FR Doc. 99-29299 Filed 11-10-99; 8:45 am]
BILLING CODE 6560-50-P