[Federal Register Volume 63, Number 112 (Thursday, June 11, 1998)]
[Rules and Regulations]
[Pages 31932-31934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15448]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 141

[FRL-6109-7]


Removal of the Prohibition on the Use of Point of Use Devices for 
Compliance with National Primary Drinking Water Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's action removes the prohibition on point of use (POU) 
devices as compliance technologies for National Primary Drinking Water 
Regulations that is set forth in the Code of Federal Regulations in 
section 141.101. EPA is removing the prohibition on the POU devices 
because it conflicts with section 1412(b)(4)(E)(ii) of the Safe 
Drinking Water Act (SDWA) as amended on August 6, 1996. No other part 
of section 141.101 is affected by today's action.

DATES: This action is effective June 11, 1998.

FOR FURTHER INFORMATION CONTACT: The Safe Drinking Water Hotline, toll 
free (800) 426-4791, or Tara Chhay Cameron; Targeting and Analysis 
Branch; Office of Ground Water and Drinking Water; EPA (4607), 401 M 
Street, S.W., Washington, DC 20460; telephone (202) 260-3702.

SUPPLEMENTARY INFORMATION:

Table of Contents

A. Regulated Entities
B. Explanation of Today's Action
C. Administrative Requirements
    1. Executive Order 12866
    2. Regulatory Flexibility Act
    3. Paperwork Reduction Act
    4. Unfunded Mandates Reform Act and Executive Order 12875
    5. Executive Order 13045--Protection of Children From 
Environmental Health Risks and Safety Risks
    6. Submission to Congress and the General Accounting Office
    7. National Technology Transfer and Advancement Act
    8. Administrative Procedure Act

A. Regulated Entities

    Entities potentially regulated by this action are those which meet 
the criteria of the Public Water Systems (PWS) definition. Regulated 
categories and entities include:

                                                                        
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                Category                  Example of Regulated Entities 
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Industry...............................  Public Water Systems           
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the type of entities that EPA is now aware of 
that could potentially be regulated by this action. Other types of 
entities not listed in the table could also be regulated. To determine 
whether your entity is regulated by this action, you should carefully 
examine the applicability criteria in Secs. 141.2, 142.2, 142.3, and 
142.10 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 person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. Explanation of Today's Action

    On July 8, 1987 (52 FR 25716) EPA promulgated a requirement in 
section 40 CFR 141.101 that public water systems shall not use POU 
devices to achieve compliance with a maximum contaminant level (MCL) of 
a National Primary Drinking Water Regulations.
    On August 6, 1996, amendments to the SDWA were enacted into law. 
Section 1412(b)(4)(E)(ii) of the SDWA, as amended, authorizes the use 
of POU devices by public water systems to comply with an MCL under 
certain circumstances. In order to make the regulatory provisions 
consistent with the new statutory language, with today's action, EPA 
removes the prohibition on the use of POU devices by public water 
systems to comply with an MCL. No other provision of section 141.101 is 
affected by this action.

C. Administrative Requirements

1. Executive Order 12866

    Under Executive Order 12866 (58 FR 51,735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (a) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (b) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (c) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

2. Regulatory Flexibility Act

    The Agency has determined that the rule being issued today is not 
subject to the Regulatory Flexibility Act (RFA), which generally 
requires an Agency to conduct a regulatory flexibility analysis of any 
significant impact the rule will have on a substantial number of small 
entities. By its terms, the RFA applies only to rules subject to notice 
and comment rulemaking requirements

[[Page 31933]]

under the Administrative Procedure Act (APA) or any other statute. 
Today's rule is not subject to notice and comment requirements under 
the APA or any other statute because it falls into the interpretative 
statement exception under APA section 553(b) and because the Agency has 
found ``good cause'' to publish without prior notice and comment.

3. Paperwork Reduction Act

    There are no information collection requirements in this rule.

4. Unfunded Mandates Reform Act and Executive Order 12875

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule merely codifies a statutory amendment authorizing the 
use of certain treatment technology under the SDWA. It thus contains no 
Federal mandates (under the regulatory provisions of Title II of the 
UMRA) for State, local, or tribal governments or the private sector. 
Thus, today's rule is not subject to the requirements of sections 202 
and 205 of the UMRA.
    Similarly, EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments, including tribal governments. Therefore, this action does 
not require a small government agency plan under UMRA section 203.
    Because this rule imposes no intergovernmental mandate, it also is 
not subject to Executive Order 12875 (Enhancing the Intergovernmental 
Partnership).

5. Executive Order 13045--Protection of Children From Environmental 
Health Risks and Safety Risks

    Today's action is not subject to Executive Order 13045 (62 FR 19885 
(April 23, 1997)) which requires agencies to identify and assess the 
environmental health and safety risks of their rules on children. 
Pursuant to the definitions in section 2-202, Executive Order 13045 
only applies to rules that are economically significant as defined 
under Executive Order 12866 and concern an environmental health or 
safety risk that may disproportionately affect children. This rule is 
not economically significant and does not concern a risk 
disproportionately affecting children.

6. Submission to Congress and the General Accounting Office

    The Congressional Review Act, (5 U.S.C. 801 et seq.) as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), 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. However, section 808 provides 
that any rule for which the issuing agency for good cause finds 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 discussed 
in section C.8., EPA has made such a good cause finding for this rule, 
including the reasons therefor, and established an effective date of 
June 11, 1998. 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. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

7. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act, the Agency is required to use voluntary consensus 
standards in its regulatory and procurement activities unless to do so 
would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., material 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standard 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires the Agency to provide 
Congress, through the Office of Management and Budget, an explanation 
of the reasons for not using such standards. Because this rule does not 
involve or require the use of any technical standards, EPA does not 
believe that this Act is applicable to this rule. Moreover, EPA is 
unaware of any voluntary consensus standards relevant to this 
rulemaking. Therefore, even if the Act were applicable to this kind of 
rulemaking, EPA does not believe that there are any ``available or 
potentially applicable'' voluntary consensus standards.

8. Administrative Procedure Act

    Because this rule merely codifies and interprets a statute, the 
amended SDWA, it is an ``interpretative rule.'' As a result, it is 
exempt from the notice and comment requirements for rulemakings under 
section 553 of the APA (See section 553(b)(3)(A)). In addition, because 
this rule merely codifies statutory requirements and makes clarifying 
changes to the rules necessary to implement the amended statute, notice 
and comment is ``unnecessary'' and thus the Agency has ``good cause'' 
to publish this rule without prior notice and comment (APA section 
553(b)(3)(B)). For the same reasons, EPA is making the provisions of 
this rule effective upon promulgation, as authorized under the APA (See 
sections 553(d)(2) and (3)).

List of Subjects in 40 CFR Part 141

    Environmental protection, Water supply.


[[Page 31934]]


    Dated: June 3, 1998.
Carol M. Browner,
Administrator.
    For the reasons set forth in the preamble, the Environmental 
Protection Agency amends 40 CFR Part 141 as follows:

PART 141--NATIONAL PRIMARY DRINKING WATER REGULATIONS

    1. The authority citation for Part 141 continues to read as 
follows:

    Authority: 42 U.S.C. 300f, 300g, 300g-1, 300g-2, 300g-3, 300g-4, 
300g-5, 300g-6, 300j-4, and 300j-9.

    2. Revise Sec. 141.101 to read as follows:


Sec. 141.101  Use of bottled water.

    Public water systems shall not use bottled water to achieve 
compliance with an MCL. Bottled water may be used on a temporary basis 
to avoid unreasonable risk to health.
[FR Doc. 98-15448 Filed 6-10-98; 8:45 am]
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