Federal Register / Vol. 74, No. 79 / Monday, April 27, 2009 / Rules and Regulations 19001 

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 

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 

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 


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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. 

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 

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 

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 


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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 

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

Option type Number of 

forms 

Total burden 

hour increase 

Total burden 

hour increase 

per Form R 

Total cost 

increase 

Average cost 

increase per 

form 

Percent of 

total 

cost/burden 

(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

Option type Number of 

forms 

Total burden 

hour decrease 

Total burden 

hour decrease 

per Form A 

Total cost 

decrease 

Average cost 

decrease per 

form 

Percent of 

total 

cost/burden 

(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. 


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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 

Total 

production 

related waste 

not reported 

on Form R 

Lbs 

Total non-production related 

waste not 

reported 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) 

Number of 

zip codes 

Percent of 

total zip 

codes 

containing 

Form Rs 

(percent) 

Average No. 

of Form Rs 

per zip code 

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 


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Federal Register / Vol. 74, No. 79 / Monday, April 27, 2009 / Rules and Regulations 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. 

■ 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, 


dwashington3 on PROD1PC60 with RULES
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. 

* * * * * 

(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 

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 

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 


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