Federal Register / Vol. 65, No. 49 / Monday, March 13, 2000 / Rules and Regulations 13243

finding that notice and public procedure

is impracticable, unnecessary or

contrary to the public interest. This

determination must be supported by a

brief statement (5 U.S.C. 808(2)).

As stated previously, we have made

such a good cause finding, including the

reasons therefore, and established an

effective date of March 13, 2000. 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. This action is not a ‘‘major

rule’’ as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 60

Environmental protection,

Administrative practice and procedure,

Air pollution control, Intergovernmental

relations, Nitrogen oxides,

Recordkeeping and reporting

requirements.

Dated: March 2, 2000.

Robert Perciasepe,

Assistant Administrator, Office of Air and

Radiation.

For the reasons set out in the

preamble, title 40, chapter I, part 60, of

the Code of Federal Regulations is

amended as follows:

PART 60—[AMENDED]

1. The authority citation for part 60

continues to read as follows:

Authority: 42 U.S.C. 7401–7601.

Subpart Db—Standards of

Performance for IndustrialCommercial-Institutional Steam

Generating Units

2. Section 60.49b is amended by

revising paragraph (s) and adding

paragraph (w) to read as follows:

§ 60.49b Reporting and recordkeeping

requirements.

* * * * *

(s) Facility specific nitrogen oxides

standard for Cytec Industries Fortier

Plant’s C.AOG incinerator located in

Westwego, Louisiana:

(1) Definitions.

Oxidation zone is defined as the

portion of the C.AOG incinerator that

extends from the inlet of the oxidizing

zone combustion air to the outlet gas

stack.

Reducing zone is defined as the

portion of the C.AOG incinerator that

extends from the burner section to the

inlet of the oxidizing zone combustion

air.

Total inlet air is defined as the total

amount of air introduced into the

C.AOG incinerator for combustion of

natural gas and chemical by-product

waste and is equal to the sum of the air

flow into the reducing zone and the air

flow into the oxidation zone.

(2) Standard for nitrogen oxides. (i)

When fossil fuel alone is combusted, the

nitrogen oxides emission limit for fossil

fuel in § 60.44b(a) applies.

(ii) When natural gas and chemical

by-product waste are simultaneously

combusted, the nitrogen oxides

emission limit is 289 ng/J (0.67 lb/

million Btu) and a maximum of 81

percent of the total inlet air provided for

combustion shall be provided to the

reducing zone of the C.AOG incinerator.

(3) Emission monitoring. (i) The

percent of total inlet air provided to the

reducing zone shall be determined at

least every 15 minutes by measuring the

air flow of all the air entering the

reducing zone and the air flow of all the

air entering the oxidation zone, and

compliance with the percentage of total

inlet air that is provided to the reducing

zone shall be determined on a 3-hour

average basis.

(ii) The nitrogen oxides emission limit

shall be determined by the compliance

and performance test methods and

procedures for nitrogen oxides in

§ 60.46b(i).

(iii) The monitoring of the nitrogen

oxides emission limit shall be

performed in accordance with § 60.48b.

(4) Reporting and recordkeeping

requirements. (i) The owner or operator

of the C.AOG incinerator shall submit a

report on any excursions from the limits

required by paragraph (a)(2) of this

section to the Administrator with the

quarterly report required by paragraph

(i) of this section.

(ii) The owner or operator of the

C.AOG incinerator shall keep records of

the monitoring required by paragraph

(a)(3) of this section for a period of 2

years following the date of such record.

(iii) The owner of operator of the

C.AOG incinerator shall perform all the

applicable reporting and recordkeeping

requirements of this section.

* * * * *

(w) The reporting period for the

reports required under this subpart is

each 6 month period. All reports shall

be submitted to the Administrator and

shall be postmarked by the 30th day

following the end of the reporting

period.

[FR Doc. 00–5797 Filed 3–10–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 68

[FRL–6550–1]

RIN 2050–AE74

Amendments to the List of Regulated

Substances and Thresholds for

Accidental Release Prevention;

Flammable Substances Used as Fuel

or Held for Sale as Fuel at Retail

Facilities

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is modifying its chemical

accident prevention regulations to

conform to the fuels provision of the

recently enacted Chemical Safety

Information, Site Security and Fuels

Regulatory Relief Act (Pub. L. 106–40).

In accordance with the new law, today’s

rule revises the list of regulated

flammable substances to exclude those

substances when used as a fuel or held

for sale as a fuel at a retail facility. EPA

is also announcing there will be no

further action on a previous proposal

concerning flammable substances, since

the new law resolves the issue

addressed by the proposal.

DATES: Effective March 13, 2000.

ADDRESSES: Docket. Supporting material

used in developing the final rule is

contained in Docket No. A–99–36. The

docket is available for public inspection

and copying between 8:00 am and 5:30

pm, Monday through Friday (except

government holidays) at EPA’s Air

Docket, Room 1500, Waterside Mall, 401

M Street, SW, Washington, DC 20460;

phone number: 202–260–7548. A

reasonable fee may be charged for

copying.

FOR FURTHER INFORMATION CONTACT:

Breeda Reilly, Chemical Emergency

Preparedness and Prevention Office,

Environmental Protection Agency, Ariel

Rios Building, 1200 Pennsylvania Ave,

NW (5104), Washington, DC 20460,

(202) 260–0716.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Background

A. Statutory Authority

B. Background on Chemical Accident

Prevention Regulations

II. Discussion of Modification

A. Affected Substances

B. Use or Sale as a Fuel

III. Previous Actions Related to Fuels

A. Previous Proposed Rule and

Administrative Stay

B. Litigation and Court Stay

IV. RMP’s Submitted Prior to Today’s Action

13244 Federal Register / Vol. 65, No. 49 / Monday, March 13, 2000 / Rules and Regulations

1EPA has received a number of questions as to

whether the fuel use exclusion is available only to

retail facilities. EPA believes that the statute and

legislative history are clear that the fuel use

exclusion is available to any facility that uses a

flammable substance as a fuel.

V. Rationale for Issuance of Rule Without

Prior Notice

VI. Summary of Revisions to Rule

VII. Administrative Requirements

A. Docket

B. Executive Order 12866

C. Executive Order 13045

D. Executive Order 13084

E. Executive Order 13132

F. Regulatory Flexibility Act (RFA), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA) 5 U.S.C. 601 et seq.

G. Paperwork Reduction Act

H. Unfunded Mandates Reform Act

I. National Technology Transfer and

Advancement Act

J. Congressional Review Act

I. Introduction and Background

A. Statutory Authority

This rule is being issued under

section 112(r) of the Clean Air Act

(CAA) as amended by the Chemical

Safety Information, Site Security and

Fuels Regulatory Relief Act (the Act),

which President Clinton signed into law

on August 5, 1999. Section 2 of the Act

immediately removed EPA’s authority

to ‘‘list a flammable substance when

used as a fuel or held for sale as a fuel

at a retail facility * * * solely because

of the explosive or flammable properties

of the substance, unless a fire or

explosion caused by the substance will

result in acute adverse health effects

from human exposure to the substance,

including the unburned fuel or its

combustion byproducts, other than

those caused by the heat of the fire or

impact of the explosion.’’

The Act defines ‘‘retail facility’’ as ‘‘a

stationary source at which more than

one-half of the income is obtained from

direct sales to end users or at which

more than one-half of the fuel sold, by

volume, is sold through a cylinder

exchange program.’’

B. Background on Chemical Accident

Prevention Regulations

CAA section 112(r) contains

requirements for the prevention and

mitigation of accidental chemical

releases. The focus is on those

chemicals that pose the greatest risk to

public health and the environment in

the event of an accidental release.

Section 112(r)(3) mandates that EPA

identify at least 100 such chemicals and

promulgate a list of ‘‘regulated

substances’’ with threshold quantities.

Section 112(r)(7) directs EPA to issue

regulations requiring stationary sources

that contain more than a threshold

quantity of a regulated substance to

develop and implement a risk

management program and submit a risk

management plan (RMP).

EPA promulgated the initial list of

regulated substances on January 31,

1994 (59 FR 4478) (the ‘‘List Rule’’). The

Agency identified two categories of

regulated substances—toxic and

flammable—and listed substances

accordingly. EPA included 77 chemicals

on the toxic substances list based on

each chemical’s acute toxicity and

several other factors—the chemical’s

physical state, physical/chemical

properties and accident history—

relevant to the likelihood that an

accidental release of the chemical

would lead to significant offsite

consequences. The Agency also placed

63 substances on the flammable

substances list, including vinyl

chloride, a substance mandated for

listing by Congress. EPA selected

chemicals for the flammable substances

list based on their flammability rating

and the other factors related to

likelihood of significant offsite

consequences.

Of the originally listed substances, 14

met the criteria for both toxic and

flammable substances (arsine, cyanogen

chloride, diborane, ethylene oxide,

formaldehyde, furan, hydrocyanic acid,

hydrogen selenide, hydrogen sulfide,

methyl chloride, methyl mercaptan,

phosphine, propyleneimine, and

propylene oxide). EPA placed these 14

substances on only the toxic substances

list, because their toxicity poses the

greater threat to human health and the

environment.

Following promulgation of the List

Rule, EPA issued a rule establishing the

accidental release prevention

requirements on June 20, 1996 (61 FR

31668) (‘‘the RMP Rule’’). Together

these rules are codified at 40 CFR part

68.

In accordance with section 112(r)(7),

the RMP rule requires that any

stationary source with more than a

threshold quantity of a regulated

substance in a process develop and

implement a risk management program

and submit an RMP describing the

source’s program as well as its five-year

accident history and potential offsite

consequences. The rule further provides

that RMPs be submitted by June 21,

1999 for sources with more than a

threshold quantity of a regulated

substance in a process by that date, or

within a specified time of the source

first exceeding the applicable threshold.

EPA has amended the List and RMP

Rules several times. On August 25, 1997

(62 FR 45132), EPA amended the List

Rule to change the listed concentration

of hydrochloric acid. On January 6, 1998

(63 FR 640), EPA again amended the

List Rule to delist Division 1.1

explosives (classified by the Department

of Transportation (DOT)), to clarify

certain provisions related to regulated

flammable substances, and to clarify the

transportation exemption. EPA

amended the RMP Rule on January 6,

1999 (64 FR 964) to add several

mandatory and optional RMP data

elements, to establish procedures for

protecting confidential business

information, to adopt a new industry

classification system and to make

technical corrections and clarifications.

EPA also amended the RMP Rule on

May 26, 1999 (64 FR 28696) to modify

the requirements for conducting worst

case release scenario analyses for

flammable substances and to clarify its

interpretation of CAA sections 112(1)

and 112(r)(11) as they relate to DOT

requirements under the Federal

Hazardous Transportation Law.

II. Discussion of Modification

A. Affected Substances

The new Act provides that EPA shall

not list a flammable substance when

used as a fuel,1 or held for sale as a fuel

at a retail facility solely because of its

explosive or flammable properties,

except under certain circumstances. The

purpose of today’s rule is to revise the

List Rule as needed to conform to the

Act.

As described above, the List Rule

currently contains two lists—one of

toxic substances and one of flammable

substances. The toxic substances list

contains those chemicals that meet the

criteria listing as toxic substances, even

if they also meet the criteria for listing

as flammable substances. Accordingly,

every chemical on the toxic substances

list was listed for its toxicity at least and

not solely because of its explosive or

flammable properties. The substances

on the toxics list are thus not affected

by the new Act.

The substances on the flammables

list, on the other hand, are listed

‘‘solely’’ because they meet a certain

flammability rating, taking other risk

factors into account. In deciding what

flammable substances to list, EPA

concentrated on those substances that

have the potential to result in significant

offsite consequences. Accidents

involving flammable substances may

lead to vapor cloud explosions, vapor

cloud fires, boiling liquid expanding

vapor explosions (BLEVEs), pool fires,

and jet fires, depending on the type of

substance involved and the

Federal Register / Vol. 65, No. 49 / Monday, March 13, 2000 / Rules and Regulations 13245

circumstances of the accident.

Historically, flammable substance

accidents having significant offsite

impacts involved either vapor cloud

explosions at refineries and chemical

plants, or BLEVEs at sources storing

large quantities of flammable

substances. Vapor cloud explosions

produce blast waves that potentially can

cause offsite damage and kill or injure

people. High overpressure levels can

cause death or injury as a direct result

of an a explosion; such effects generally

occur close to the site of an explosion.

People can also be killed or injured

because of indirect effects of the blast

(e.g., collapse of buildings, flying glass

or debris); these effects can occur farther

from the site of the blast.

By contrast, the effects of vapor cloud

fires, in which the vapor cloud burns

but does not explode, are limited

primarily to the area covered by the

burning cloud. BLEVEs, which generally

involve the rupture of a container, can

cause container fragments to be thrown

substantial distances; such fragments

have the potential to cause damage and

injury.

Thermal radiation is the primary

hazard of pool and jet fires. The

potential effects of thermal radiation

generally do not extend for as great a

distance as those of blast waves and are

related to the duration of exposure;

people at some distance from a fire

would likely be able to escape.

Based on this analysis and available

accident history data, the Agency

concluded that vapor cloud explosions

and BLEVEs pose the greatest potential

hazard from flammable substances to

the public and environment. For

purposes of the List Rule, EPA

consequently focused on those

chemicals with the potential to result in

vapor cloud explosions or BLEVEs in

the event of an accidental release. The

Agency determined that chemicals

meeting the highest flammability rating

of the National Fire Protection Agency

(NFPA) had this potential and used that

rating as the principal criterion for

including chemicals on the flammable

substances list.

The other factors EPA considered in

listing flammable substances—physical

state, physical/chemical properties and

accident history—all relate to a

chemical’s potential to be accidentally

released in a way that could lead to a

vapor cloud explosion or BLEVE. In

short, the Agency included chemicals

on the flammable substances list

‘‘solely’’ because of their explosive

potential, a basis now disallowed by the

new Act for flammable substances when

used as a fuel or held for sale as a fuel

at a retail facility.

The new Act nevertheless allows EPA

to list a flammable substance when used

as a fuel, or held for sale as a fuel where

a fire or explosion caused by the

substance will result in acute adverse

health effects from human exposure to

the substance or its combustion

byproducts. EPA believes, however, that

no listed substances on the flammable

substances list is a candidate for this

exception. As noted above, flammable

substances that meet the listing criteria

for toxic substances are on the toxic

substances list only. Therefore, none of

the chemicals on the flammable

substances list will qualify for the

exception based on acute health effects

from exposure to the substance itself.

Further, combustion byproducts are

generally not relevant to listing

flammable substances. For

hydrocarbons, including the listed

flammable substances commonly used

as fuels, typical combustion products

include water vapor, carbon dioxide,

carbon monoxide, and relatively small

amounts of other oxidized inorganic

substances and do not meet the listing

criteria for toxic substances. Several

other listed flammable substances may

result in combustion byproducts that

meet the listing criteria for toxic

substances, but these substances are not

commonly used as fuels. Further, any

toxic combustion byproducts will be a

fraction of the total mass and not likely

to exceed the applicable threshold for

coverage by the RMP rule. Quantities

below the threshold are unlikely to have

significant offsite consequences.

For these reasons, EPA believes that

none of the listed flammable substances

meet the new statute’s test for listing

fuels. Consequently, all of the listed

flammable substances are potentially

affected by the Act.

B. Use or Sale as a Fuel

The Act prohibits the listing of

flammable substances ‘‘when used as a

fuel or held for sale as a fuel at a retail

facility.’’ In limiting EPA’s authority to

list flammable substances used as a fuel,

or sold as a fuel at retail facilities,

Congress sought greater consistency

between the RMP program and the

Process Safety Management (PSM)

Standard implemented by the

Occupational Health and Safety

Administration (OSHA). OSHA’s PSM

Standard is the workplace counterpart

of EPA’s RMP program. PSM

requirements protect workers from

accidental releases of highly hazardous

substances in the workplace, while the

RMP rule protects the public and

environment from the offsite

consequences of those releases.

The PSM and RMP programs are

similar in many ways, covering mostly

the same chemicals. Establishments

subject to the PSM Standard must

comply with the prevention program

requirements which are the same as the

RMP rule’s Program 3 requirements

(subpart D of the Part 68 regulations).

However, OSHA provides an exemption

from the PSM Standard for hydrocarbon

fuels used solely for workplace

consumption as a fuel (e.g., propane

used for comfort heating), if such fuels

are not part of a process containing

another highly hazardous chemical

covered by the standard. It also exempts

such substances when sold by retail

facilities.

The two prongs of the limitation on

EPA’s authority to list flammable

substances (i.e., use as a fuel or held for

sale as a fuel by a retail facility) largely

follow the OSHA exemptions relating to

fuel. EPA will therefore look to OSHA

precedent and coordinate with OSHA in

interpreting and applying the

limitations to the extent they parallel

OSHA’s exemptions. For example, the

new Act does not define the term

‘‘fuel,’’ but OSHA has given ‘‘fuel’’ its

ordinary meaning in applying the PSM

fuel-related exemptions. Webster’s

Ninth New Collegiate Dictionary (1990)

defines fuel as ‘‘a material used to

produce heat or power by burning,’’ and

EPA has no reason to believe that ‘‘fuel’’

as used by the new Act should be

defined differently.

Using the ordinary meaning of fuel,

EPA reviewed the chemicals on its

flammable substances list to determine

which are used as fuel. Several of the

listed substances are typically used as

fuel, including propane, liquified

petroleum gas (propane and/or butane

often with small amounts of propylene

and butylene); hydrogen; and gaseous

natural gas (methane). EPA is aware of

the possibility of other flammable

substances being used as a fuel in

particular circumstances. The following

is a list of regulated flammable

substances that EPA believes have been

used as a fuel.

TABLE 1.—LIST OF COMMON FUELS

Chemical name CAS No.

Acetylene [Ethyne] .................. 74–86–2

Butane .................................... 106–97–8

1-Butene ................................. 106–98–9

2-Butene ................................. 107–01–7

Butene .................................... 25167–67–3

2-Butene-cis ............................ 590–18–1

2-Butene-trans [2-Butene, (E)] 624–64–6

Ethane .................................... 74–84–0

Ethylene [Ethene] ................... 74–85–1

Hydrogen ................................ 1333–74–0

13246 Federal Register / Vol. 65, No. 49 / Monday, March 13, 2000 / Rules and Regulations

TABLE 1.—LIST OF COMMON FUELS—

Continued

Chemical name CAS No.

Isobutane [Propane,

2-methyl-] ............................ 75–28–5

Isopentane [Butane,

2-methyl-] ............................ 78–78–4

Methane .................................. 74–82–8

Pentane .................................. 109–66–0

1-Pentene ............................... 109–67–1

2-Pentene, (E)- ....................... 646–04–8

2-Pentene, (Z)- ....................... 627–20–3

Propane .................................. 74–98–6

Propylene ................................ 115–07–1

At the same time, all of the substances

listed above are sometimes used as

feedstock chemicals instead of fuel.

Further, every listed flammable

substance has the potential to be used

as fuel, since it may be burned to create

heat or power. Consequently, the List

Rule cannot be conformed to the new

law by deleting particular chemicals

from the flammable substances list.

Instead, EPA has added a provision to

part 68, Subpart F (listing regulated

substances) that excludes flammable

substances when used as a fuel, or held

for sale as a fuel at a retail facility from

the list of regulated substances. The

Agency has also annotated both versions

of the flammable substances list (one

version lists the substances

alphabetically, the other by Chemical

Abstract Service (CAS) number) to

indicate that any flammable substance,

when used as a fuel, or held for sale as

a fuel at a retail facility, is excluded

from the list.

As previously mentioned, the Act

defines a ‘‘retail facility’’ as a stationary

source at which more than one-half of

the income is obtained from direct sales

to end users or at which more than onehalf of the fuel sold, by volume, is sold

through a cylinder exchange program.

The income test portion of the

definition follows the definition of

‘‘retail facility’’ used by the OSHA in

enforcing its PSM Standard (OSHA

Directive CPL2–2.45A CH–1-Process

Safety Management of Highly

Hazardous Chemicals—Compliance

Guidelines and Enforcement

Procedures): ‘‘an establishment that

would otherwise be subject to the PSM

standard at which more than half of the

income is obtained from direct sales to

end users.’’

The effect of the income test portion

of the new Act’s retail facility definition

is to provide relief to the same facilities

that qualify for OSHA’s retail facility

exemption, and conversely, to require

facilities that do not quality for OSHA’s

exemption, and thus are subject to the

PSM program, to also be subject to the

RMP program, provided no other

exemption applies. EPA will

consequently coordinate its

interpretation and application of the

income test portion of the retail facility

definition with OSHA.

The second portion of the retail

facility definition—concerning cylinder

exchange programs—goes beyond that

developed by OSHA and so provides

greater relief than the OSHA retail

facility exemption. In general, cylinder

exchange programs represent a link

between major retailers (for example,

hardware stores, home centers and

convenience stores) and propane

distributors. The retailer typically

provides space outdoors and manages

transactions with end users such as

homeowners; the propane distributor

typically provides racks, filled

cylinders, promotional materials, and

training to the retailer’s employees.

Propane distributors may have several

markets, including cylinder exchange;

temporary heat during construction;

commercial cooking, heating, and water

heating; fuel to power vehicles, forklifts,

and tractors; agricultural drying and

heating; and others.

For propane or other fuel distributors

which meet the definition of retail

facility through either direct sales to end

users or a cylinder exchange program,

the fuel they hold is no longer covered

by the RMP rule. For propane or other

fuel distributors that do not meet the

definition, the fuel they hold is not

exempted from the RMP rule by the new

law or today’s action. EPA has added to

part 68 a definition of ‘‘retail facility’’

that mirrors the statutory definition.

III. Previous Actions Related to Fuels

A. Previous Proposed Rule and

Administrative Stay

After promulgating the RMP rule, EPA

became aware that a significant number

of small, commercial sources use

regulated flammable substances,

particularly propane, as fuel in

quantities in excess of the applicable

threshold quantity (10,000 lbs in a

process). As a result, these small

sources, including farms, restaurants,

hotels, and other commercial

operations, were covered by the RMP

requirements. Many of these sources are

in rural locations where accidental

releases are less likely to have

significant offsite consequences. In light

of the purpose of section 112(r)—to

focus comprehensive accident

prevention requirements on the most

potentially dangerous sources—EPA

reexamined whether farms and other

small fuel users should be covered by

the RMP rule.

On May 28, 1999, EPA issued a

proposed amendment to the List Rule to

create an exemption from threshold

quantity determinations for processes

containing 67,000 pounds or less of a

listed flammable hydrocarbon fuel (64

FR 29171). EPA estimated that the

proposed amendment, if promulgated,

would reduce the universe of regulated

sources from 69,485 to 50,300. At the

same time (64 FR 29167), EPA

published a temporary stay of the

effectiveness of the RMP rule for those

sources that would be exempted under

the proposal. This stay, which expired

on December 21, 1999, was in addition

to, and did not affect, a stay of the rule

for propane processes entered by the

U.S. Court of Appeals for the D.C.

Circuit (See Litigation and Court Stay).

While EPA was seeking comment on

the proposed rule, Congress also studied

the fuel issue and considered ways to

provide regulatory relief to fuel users

and retailers. Congress was concerned

that the RMP rule placed a significant

regulatory burden on facilities that were

not previously covered by the OSHA

PSM Standard. Congress decided to

amend section 112(r) of the CAA to

remove EPA’s authority to list any

flammable substance when used as a

fuel, or held for sale as a fuel at a retail

facility, except under specified

circumstances.

While the new law and EPA’s

proposed rule and temporary stay all

offer regulatory relief with respect to

fuels, the new law reaches farther than

EPA’s actions. The new law provides

relief for all fuels, not just hydrocarbon

fuels. It also removes fuels from the

RMP program regardless of the amount

a stationary source uses or holds for

retail sale, whereas EPA’s proposal and

stay only affects sources having no more

than 67,000 lbs of fuel in a process. The

new law does limit relief for fuel sellers

to fuel retailers, whereas EPA’s stay

does not distinguish between types of

fuel sellers. However, EPA believes that

virtually no fuel wholesaler qualifies for

the Agency’s stay because wholesalers

typically hold fuel in quantities far

greater than 67,000 lbs. Even if a few

wholesalers would have benefitted from

EPA’s proposed rule, the Agency

believes that Congress has addressed the

issue of how to provide regulatory relief

to fuel users and sellers, and that EPA

should thus implement Congress’

approach without making exceptions to

it.

Therefore, EPA is today withdrawing

the proposed rule as it takes final action

to amend the List Rule to conform to the

new law. As previously mentioned,

EPA’s temporary stay of effectiveness

expired on December 21, 1999.

Federal Register / Vol. 65, No. 49 / Monday, March 13, 2000 / Rules and Regulations 13247

B. Litigation and Court Stay

Following promulgation of the RMP

rule in 1996, several petitions for

judicial review of the rule were filed,

including one by the National Propane

Gas Association (NPGA). At NPGA’s

request, the U.S. Court of Appeals for

the District of Columbia Circuit entered

a temporary stay of the RMP rule as it

applies to propane (Chlorine Institute v.

Environmental Protection Agency, No.

96–1279, and consolidated cases (Nos.

96–1284, 96–1288, and 96–1290), Order

of April 27, 1999). The judicial stay

meant that any stationary source, or

process at a stationary source, subject to

the RMP rule only by virtue of propane

was not subject to the RMP rule

requirements, including those calling

for a hazard assessment, accident

prevention program, emergency

response planning, and submission of

(or inclusion in) an RMP by June 21,

1999.

On Jan. 5, 2000, the Court lifted its

temporary stay in response to a joint

motion by EPA and NPGA to dismiss

the case and lift the stay. As of that date,

part 68, as revised by the Act, is in effect

with respect to any facility having more

than the 10,000 pounds of propane in a

process unless the facility uses the

propane as a fuel or sells the propane

as a retail facility. Facilities that use

propane in their manufacturing

processes or hold propane for purposes

other than on-site fuel use at a non-retail

facility must immediately come into

compliance with Section 112(r) of the

CAA.

IV. RMP’s Submitted Prior to Today’s

Action

EPA has received about 1,966 RMP’s

that address one or more of the 19 listed

flammable substances that EPA has

identified as likely to be used as a fuel.

EPA cannot unilaterally delete any of

the RMP’s submitted for flammable

substances from the RMP database,

however, because the determination of

whether a facility is eligible for the

exclusion is based on information

which is not reported to EPA, namely,

whether a facility uses the flammable

substance as a fuel or holds it for retail

sale. Instead, EPA plans to send a letter

to each of the 1,966 facilities to notify

them of the exclusion, to ask them to

evaluate their eligibility for the

exclusion, and to describe the process

the facilities should use to request a

withdrawal of or to update these RMP’s.

For about 950 of the 1,966 RMP’s that

reported a potential flammable fuel,

only one chemical is reported. For these

cases, the facilities will be asked to

evaluate whether they qualify for the

exclusion based on use or retail sales. If

they determine that they do not qualify,

no further action is required. If they

determine that they do qualify, they

may request that EPA withdraw their

submission and EPA will delete it from

the RMP database. Facilities will have

the option of using the form that EPA

developed to facilitate the withdrawal

or simply stating their request in a

letter. Alternatively, facilities can leave

the RMP as a voluntary submission in

the database and need not take further

action.

The balance of the RMP’s reported

more than one substance. About 200

RMP’s reported a toxic chemical

substance in addition to the potential

flammable fuel. For these cases, the

facilities will be asked to evaluate

whether their flammable substance

qualifies for the exclusion based on use

or retail sales. If they determine that

they do not qualify, no further action is

required. If they determine that they do

qualify, they may resubmit their RMP,

reporting only on the toxic substances.

Alternatively, facilities can leave the

original RMP including the flammable

fuel submission in the database and

need not take further action.

About 745 RMP’s reported multiple

flammable substances. For these cases,

the facilities will be asked to evaluate

whether each reported flammable

substance qualifies for the exclusion

based on use or retail sales. If they

determine that none of their reported

flammable substances qualify, no

further action is required. If they

determine that all of the reported

substances qualify, they may request

that EPA withdraw their submission

and EPA will delete it from the RMP

database. Facilities will have the option

of using the formal withdrawal process

or simply sending a letter. Alternatively,

facilities can leave the RMP as a

voluntary submission in the database

and need not take further action. If they

determine that only some of the

flammable substances reported qualify,

they will need to check their flammable

worst case scenario and off-site

consequence analysis (OCA). If their

original worst case analysis is based on

a flammable substance that is excluded,

the facility should revise their RMP to

provide appropriate OCA. Within its

enforcement discretion, EPA plans to

treat this similarly to the existing

requirement to revise RMP’s within 6

months of a process change, giving

facilities 6 months to revise their RMP’s.

If their original worst case analysis is

based on a flammable substance that is

not excluded, the facility won’t need to

update their RMP, except as part of the

regular reporting cycle.

V. Rationale for Issuance of Rule

Without Prior Notice

Section 553 of the Administrative

Procedure Act, 5 U.S.C. 553(b)(B),

provides that, when an agency for good

cause finds that notice and public

procedure are impracticable,

unnecessary or contrary to the public

interest, the agency may issue a rule

without providing notice and an

opportunity for public comment.

EPA is taking this action without

prior notice and opportunity to

comment. As previously mentioned,

section 2 of the new Act, which took

effect on August 5, 1999, immediately

removed EPA’s authority to list

flammable substances when used as a

fuel, or held for sale as a fuel at a retail

facility. Consequently, EPA’s regulation

containing the list of regulated

substances subject to the RMP rule

needs to be modified to reflect the new

law.

EPA has determined that there is good

cause for making today’s rule final

without prior proposal and opportunity

for comment because the Agency is

codifying legislation which focuses

clearly on a particular set of regulations

and requires little interpretation by the

Agency. In addition, EPA believes it is

in the public interest to issue the

revised list as soon as possible, to avoid

confusion about the coverage of the

RMP rule. As of August 5, 1999, there

is no statutory basis for extending the

RMP rule to listed flammable substances

when used as a fuel, or held for sale as

a fuel at a retail facility, except under

certain circumstances. The Agency’s

rule should therefore be revised to

reflect the change in authority as soon

as possible. A comment period is

unnecessary because today’s action is

nondiscretionary. A comment period

would also be contrary to the public

interest because the resulting delay

would contribute to confusion about the

coverage of the RMP rule. Thus, notice

and public procedure are unnecessary

and contrary to the public interest. EPA

finds that this constitutes good cause

under 5 U.S.C. 553(b)(B).

The Agency is also issuing this rule

with an immediate effective date. Since

its effect is to relieve a restriction (i.e.,

the requirement to comply with the

RMP rule), EPA may make it effective

upon promulgation. Further, EPA

believes it is in the public interest to

make it immediately effective, for the

same reasons given above for dispensing

with prior notice and comment.

VI. Summary of Revisions to Rule

This section summarizes the changes

to the rule.

13248 Federal Register / Vol. 65, No. 49 / Monday, March 13, 2000 / Rules and Regulations

Section 68.3, Definitions, has been

revised to add a definition of retail

facility, as defined in the new law.

Section 68.126 has been added to

create an exclusion for regulated

flammable substances used as fuel or

held for sale as fuel at retail facilities.

The exclusion is derived from the new

law.

In Section 68.130, footnotes have been

added to Tables 3 and 4. These two

tables list the regulated flammable

substances and their threshold

quantities. Table 3 lists the regulated

flammable substances in alphabetical

order while Table 4 lists them in CAS

number order. The footnotes remind the

reader of the exclusion for regulated

flammable substances. The reference to

each footnote appears as an asterisk

following the term ‘‘flammable

substance’’ in the titles of Tables 3 and

4.

VII. Administrative Requirements

A. Docket

The docket is an organized and

complete file of all the information

considered by the EPA in the

development of this rulemaking. The

docket is a dynamic file, because it

allows members of the public and

industries involved to readily identify

and locate documents so that they can

effectively participate in the rulemaking

process. Along with the proposed and

promulgated rules and their preambles,

the contents of the docket serve as the

record in the case of judicial review.

(See section 307(d)(7)(A) of the CAA.)

The official record for this rulemaking

has been established under Docket A–

99–36, and is available for inspection

from 8:00 a.m. to 5:30 p.m., Monday

through Friday, excluding legal

holidays. The official rulemaking record

is located at the address in ADDRESSES

at the beginning of this document.

B. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, 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:

(1) 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;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) 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.

C. Executive Order 13045

Executive Order 13045: ‘‘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

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.

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 action is not subject to this

Executive Order because it is not

economically significant as defined in

E.O. 12866, and because it does not

establish an environmental standard

intended to mitigate health or safety

risks.

D. Executive Order 13084

Under Executive Order 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,

Executive Order 13084 requires EPA to

provide to the Office of Management

and Budget, 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, Executive

Order 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

reduces burden on flammable fuel users,

which may include some sources owned

or operated by Indian tribal

governments. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule.

E. Executive Order 13132

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.’’

Under Section 6 of Executive Order

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law, unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This final 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. Today’s rule

reduces the burden for those state, local,

Federal Register / Vol. 65, No. 49 / Monday, March 13, 2000 / Rules and Regulations 13249

or tribal governments that may own or

operate sources that use flammable

fuels. Thus, the requirements of section

6 of the Executive Order do not apply

to this rule.

F. Regulatory Flexibility Act (RFA), as

Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et seq.

Under the Regulatory Flexibility Act

(RFA) of 1980 (5 U.S.C. 601, et seq.), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), the Agency is required

to give special consideration to the

effect of Federal regulations on small

entities and to consider regulatory

options that might mitigate any such

impacts. Small entities include small

businesses, small not-for-profit

enterprises, and small governmental

jurisdictions.

Today’s final rule is not subject to

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. The rule is subject to the APA,

but as described in Section IV of this

preamble, the Agency has invoked the

‘‘good cause’’ exemption under APA

Section 553(b), which does not require

notice and comment. Although this final

rule is not subject to the RFA, EPA

nonetheless has assessed the potential

of this rule to adversely impact small

entities subject to the rule. EPA does not

believe the rule will adversely impact

small entities. This action excludes

flammable substances when used as a

fuel, or held for sale as a fuel at a retail

facility from the list of substances

regulated by 40 CFR part 68, which will

reduce burden on many small entities

that otherwise would be covered by

these requirements.

G. Paperwork Reduction Act

This action does not impose any new

information collection burden. The

Office of Management and Budget

(OMB) has previously approved the

information collection requirements

contained in the existing regulations 40

CFR part 68 under the provisions of the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq. and has assigned OMB

control number 2050–0144 (EPA ICR

No.1656.06). EPA estimates a burden

hour reduction of 70,400 hours.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information. An Agency

may not conduct or sponsor, and a

person is not required to respond to a

collection of information unless it

displays a currently valid OMB control

number. The OMB control numbers for

EPA’s regulations are listed in 40 CFR

part 9 and 48 CFR Chapter 15.

H. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 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 costeffective 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.

Because the Agency has made a ‘‘good

cause’’ finding that this action is not

subject to notice-and-comment

requirements under the Administrative

Procedures Act or any or any other

statute (see Section IV of this preamble),

it is not subject to sections 202 and 205

of the Unfunded Mandates Reform Act

of 1995 (UMRA) (Public Law 104–4).

Pursuant to Section 203 of UMRA,

EPA has determined that this rule

contains no regulatory requirements that

might significantly or uniquely affect

small governments. This rule does not

contain any additional requirements,

rather it reduces the burden on small

governement sources that use flammable

substances as fuel.

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 action does not involve technical

standards. Therefore, EPA did not

consider the use of any voluntary

consensus standards.

J. 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. A ‘‘major rule’’

cannot take effect until 60 days after it

is published in the Federal Register.

13250 Federal Register / Vol. 65, No. 49 / Monday, March 13, 2000 / Rules and Regulations

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2). It takes effect

today.

List of Subjects in 40 CFR Part 68

Environmental protection, Chemicals,

Chemical accident prevention.

Dated: March 3, 2000.

Carol M. Browner,

Administrator.

For the reasons stated in the

preamble, EPA amends 40 CFR part 68

as follows:

PART 68—[AMENDED]

1. The authority section for part 68 is

revised to read as follows:

Authority: 42 U.S.C 7412(r), 7601 (a) (1).

Subpart A—[Amended]

2. Section 68.3 is amended to add the

following definition in alphabetical

order:

§ 68.3 Definitions.

* * * * *

Retail facility means a stationary

source at which more than one-half of

the income is obtained from direct sales

to end users or at which more than onehalf of the fuel sold, by volume, is sold

through a cylinder exchange program.

* * * * *

Subpart F—[Amended]

3. Section 68.126 is added to subpart

F to read as follows:

§ 68.126 Exclusion.

Flammable Substances Used as Fuel

or Held for Sale as Fuel at Retail

Facilities. A flammable substance listed

in Tables 3 and 4 of § 68.130 is

nevertheless excluded from all

provisions of this part when the

substance is used as a fuel or held for

sale as a fuel at a retail facility.

4. Section 68.130 is amended by:

A. Revising the heading of Table 3;

B. Revising the notes to Table 3 and

adding a new footnote 1;

C. Revising the heading to Table 4;

and

D. Revising the notes to Table 4 and

adding a new footnote 1.

The revisions and additions read as

follows:

§ 68.130 List of substances.

* * * * *

TABLE 3 TO § 68.130.—LIST OF REGULATED FLAMMABLE SUBSTANCES 1

AND THRESHOLD QUANTITIES FOR

ACCIDENTAL RELEASE PREVENTION

[Alphabetical Order–63 Substances]

* * * **

1A flammable substance when used as a

fuel or held for sale as a fuel at a retail facility

is excluded from all provisions of this part (see

§ 68.126).

Note: Basis for Listing: a Mandated for listing by Congress.

fFlammable gas.

gVolatile flammable liquid.

TABLE 4 TO § 68.130.—LIST OF REGULATED FLAMMABLE SUBSTANCES 1

AND THRESHOLD QUANTITIES FOR

ACCIDENTAL RELEASE PREVENTION

[CAS Number Order–63 Substances]

* * * **

1A flammable substance when used as a

fuel or held for sale as a fuel at a retail facility

is excluded from all provisions of this part (see

§ 68.126).

Note: Basis for Listing: a Mandated for listing by Congress.

fFlammable gas.

gVolatile flammable liquid.

[FR Doc. 00–5935 Filed 3–10–00; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[DA No. 00–494, MM Docket No. 99–256;

RM–9527]

Radio Broadcasting Services; Refugio

and Taft, TX

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document substitutes

Channel 293C2 for Channel 291C3 at

Refugio, Texas, reallots Channel 293C2

from Refugio, Texas, to Taft, Texas, and

modifies the license for Station

KTKY(FM) to specify operation on

Channel 293C2 at Taft in response to a

petition filed by Pacific Broadcasting of

Missouri, L.L.C. See 64 FR 39963, July

23, 1999. The coordinates for Channel

293C2 at Taft are 27–52–00 and 97–13–

08. We shall also allot Channel 291A to

Refugio, Texas, at coordinates 28–21–58

and 97–19–11. Mexican concurrence

has been received for the allotments at

Refugio and Taft, Texas. With this

action, this proceeding is terminated.

EFFECTIVE DATE: April 17, 2000.

FOR FURTHER INFORMATION CONTACT:

Kathleen Scheuerle, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Report

and Order, MM Docket No. 99–256,

adopted February 23, 2000, and released

March 3, 2000. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the Commission’s

Reference Center, 445 12th Street, SW,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy

contractors, International Transcription

Services, Inc., 1231 20th Street, NW.,

Washington, DC 20036, (202) 857–3800,

facsimile (202) 857–3805.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Part 73 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under Texas, is amended by

removing Channel 291C3 and adding

Channel 291A at Refugio and adding

Taft, Channel 293C2.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 00–6052 Filed 3–10–00; 8:45 am]

BILLING CODE 6712–01–U