65240 Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations

792 Definition of Terms

792.1 Resident

A resident of the United States

includes any firm that has a place of

business in the United States or is

incorporated or otherwise organized in

the United States, its territories, or its

possessions.

792.2 By or on Behalf

A mailing is made by or on behalf of

a person or firm that is a resident of the

United States if such a resident seeks or

expects to derive economic benefit or

advantage from that mailing.

792.3 Place of Business

A place of business in the United

States is any location in the United

States, its territories, or its possessions

where a firm’s employees or agents

regularly have personal contact with

other individuals for conducting the

firm’s business. For the purposes of this

section, a firm whose employees or

agents have personal contact with others

for conducting the firm’s business in

different places in the United States for

short periods (for example, at hotels in

different cities for 1 or 2 days at a time)

is considered to have a place of business

in the United States if the aggregate

amount of time spent in the United

States is 180 days or more within 12

consecutive months.

792.4 Agent

The use of a nonexclusive agent in the

United States for the sole purpose of

accepting orders and remissions for

transmission to a firm in another

country or for the sole purpose of

distributing merchandise manufactured

in another country and shipped to the

United States in bulk does not by itself

establish a place of business in the

United States.

793 Advance Payment Required

793.1 Sample Mailpiece

A sender affected by the provisions in

791 must submit a sample mailpiece

(envelope and contents) from the

proposed mailing; a statement about the

number of items to be mailed, the date

of mailing, and the place of mailing; and

a check, made payable to the U.S. Postal

Service, to cover the amount of the

applicable U.S. postage. The sample

mailpiece, statement, and check must be

sent to: Manager, International Pricing,

U.S. Postal Service, 475 L’Enfant Plz.

SW., Washington, DC 20260–6500.

793.2 Headquarters Notification

Headquarters provides notification of

postage acceptance and approval of the

mailing to the sender and to the

receiving U.S. exchange office. This

notification permits the items in the

mailing to go forward to the addressees

without delay when the items reach the

United States.

794 Advance Payment Not Made

794.1 Return or Disposal of Items

Items may be returned to origin or

disposed of in accordance with postal

regulations if U.S. postage is not paid.

794.2 Mailings Without Advance

Payment

A mailing subject to the provisions in

791 received without advance payment

of U.S. domestic postage is held at the

receiving U.S. exchange office. The

exchange office reports the mailing to

the manager of International Pricing,

USPS Headquarters. (The exchange

office is advised to release the mail

when the applicable postage is paid.)

The report must contain the following

information:

a. Title and/or nature of the items.

b. Identity of the sender.

c. Number of items detained.

d. Weight of a single item.

e. Foreign postage paid per item.

f. Country of mailing.

795 Report of Mailings

The receiving U.S. exchange office

must report any mail appearing to be

subject to the provisions of this

subchapter to the manager of

International Pricing, USPS

Headquarters.

Stanley F. Mires,

Chief Counsel, Legislative.

[FR Doc. 95–30668 Filed 12–18–95; 8:45 am]

BILLING CODE 7710–12–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MA44–1–7167a; A–1–FRL–5314–6]

Approval and Promulgation of Air

Quality Implementation Plans;

Massachusetts; Best Available

Controls for Consumer and

Commercial Products (Including

Architectural and Industrial

Maintenance Coatings)

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving a State

Implementation Plan (SIP) revision

submitted by the Commonwealth of

Massachusetts. This revision establishes

and requires VOC emission standards

for architectural and industrial

maintenance coatings and 10 categories

of consumer products. The intended

effect of this action is to approve a

revision to Massachusetts SIP which

reduces VOC emissions from

architectural and industrial

maintenance coatings and 10 categories

of consumer products. This action is

being taken in accordance with Section

183(e) of the Clean Air Act.

DATES: This action is effective February

20, 1996, unless notice is received by

January 18, 1996, that adverse or critical

comments will be submitted. If the

effective date is delayed, timely notice

will be published in the Federal

Register.

ADDRESSES: Comments may be mailed to

Susan Studlien, Acting Director, Air,

Pesticides and Toxics Management

Division, U.S. Environmental Protection

Agency, Region I, JFK Federal Building,

Boston, MA 02203. Copies of the

documents relevant to this action are

available for public inspection during

normal business hours, by appointment

at the Air, Pesticides and Toxics

Management Division, U.S.

Environmental Protection Agency,

Region I, One Congress Street, 10th

floor, Boston, MA; Air and Radiation

Docket and Information Center, U.S.

Environmental Protection Agency, 401

M Street, S.W., (LE–131), Washington,

D.C. 20460; and the Division of Air

Quality Control, Department of

Environmental Protection, One Winter

Street, 8th Floor, Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT:

Jeanne Cosgrove, (617) 565–3246.

SUPPLEMENTARY INFORMATION: Under the

Clean Air Act, EPA is required to (1)

study emissions of VOCs from consumer

and commercial products; (2) list those

categories of products that account for at

least 80 percent of the total VOC

emissions from consumer and

commercial products in areas of the

country that fail to meet the national air

quality standards set for ground-level

ozone; and (3) divide the list into four

groups, and regulate one group every

two years using best available controls,

as defined by the Clean Air Act.

In March 1995, EPA issued a report to

Congress, Study of Volatile Organic

Compound Emissions from Consumer

and Commercial Products, which

evaluated the contribution of VOC

emissions from consumer and

commercial products on ground-level

ozone levels, and established criteria

and a schedule for regulating these

products under the Clean Air Act.

Architectural coatings and consumer

and commercial products (24 categories

of household products) are in the first
Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations 65241

group of products to be regulated by

EPA no later than March 1997.

Massachusetts decided to adopt rules

for consumer and commercial products

in advance of a federal rule, to get credit

for reductions from this category in its

15% plan.

Massachusetts was required to

submit, by November 15, 1993, a SIP

revision for Reasonable Further Progress

(RFP) for 15% reduction of VOCs as

necessary for moderate areas and above.

The entire state of Massachusetts is

classified as serious nonattainment area,

therefore the 15% plan must cover the

entire state.

On May 6, 1994, the Massachusetts

DEP submitted to EPA for comment,

proposed amendments to the SIP to

address the RFP requirements including

new air pollution control regulations

entitled ‘‘Control of Volatile Organic

Compounds from Consumer and

Commercial Products’’ and ‘‘Control of

VOCs from Architectural and Industrial

Maintenance Coating.’’ Massachusetts

held a public hearings on May 6, 10, 11,

and 13, 1994 throughout the State for its

proposed architectural and industrial

maintenance coatings rule. Public

hearings were held June 22 and 24 for

Massachusetts’ proposed consumer and

commercial products rule. EPA

submitted written comments regarding

the proposed regulations on May 19,

1994 and June 22, 1994. Subsequent to

the public hearings, Massachusetts

decided to consolidate the architectural

and industrial maintenance coatings

rule and the consumer and commercial

products rule into a single rule. The

consolidated rule was effective on

November 18, 1994, upon publication in

the Massachusetts Register.

On January 9, 1995, the

Commonwealth Massachusetts

submitted a formal revision to its State

Implementation Plan (SIP). The SIP

revision amends 310 CMR 7.00 by

adding Section 310 CMR 7.25, Best

Available Controls for Consumer and

Commercial Products .

The adopted regulation 310 CMR

7.25, ‘‘Best Available Controls for

Consumer and Commercial Products,’’

regulates the VOC content of consumer

and commercial products. The

regulation applies to any person who

sells, offers for sale, or manufactures for

sale within Massachusetts consumer

and commercial products and

architectural or industrial maintenance

coatings specified in 310 CMR 7.25.

Summary of SIP Revision

‘‘Consumer product’’ is defined by

Massachusetts as: ‘‘A chemically

formulated product used by household,

commercial, and institutional

consumers including, but not limited to,

detergents; cleaning compounds;

polishes; floor finishes; cosmetics;

personal care products; home, lawn, and

garden products; disinfectants;

sanitizers; and automotive specialty

products. This definition of ‘‘consumer

product’’ excludes architectural

coatings.’’

‘‘Architectural Coating’’ is defined as:

‘‘Any coating which is applied to

stationary structures or their

appurtenances, mobile homes,

pavements, or curbs.’’

The consumer products portion of the

rule, section 7.25(12), contains limits

that specify the maximum allowed VOC

content (%VOC by weight) for the

following categories of commercial and

consumer products: air fresheners,

cleaners, engine degreasers, floor

polishes/waxes, furniture maintenance

products, general purpose cleaners,

glass cleaners, hair spray, insecticides,

laundry prewash, antiperspirants and

deodorants. Manufacturers must comply

with these limits by October 1, 1995.

The Architectural and Industrial

Maintenance portion of the rule, section

7.25(11), requires manufacturers to

comply with VOC limits (grams VOC/

liter or lbs VOC/gal) by October 1, 1995,

for the following categories of

Architectural coatings: flat coatings,

non-flat coatings, anti-graffiti coating,

bituminous pavement sealer, bond

breakers, calcimine recoating product,

concrete curing compound, concrete/

masonry conditioner, dry fog coating,

fire retardant coating, form release

compound, graphic arts coating (sign

paint), high temperature industrial

maintenance coating, industrial

maintenance coating, lacquer, magnesite

cement coating, mastic texture coating,

metallic pigmented coating, multicolor

coating, pretreatment wash primer,

primer/sealer/undercoat, quick dry

primer/sealer/undercoat, roof coating,

sanding sealer, shellac, stains, opaque,

swimming pool coating, tile-like glaze,

traffic coating, varnish, waterproofing

sealer, wood preservative, and any other

architectural coating not otherwise

specified.

EPA’s evaluation is detailed in a

memorandum, entitled ‘‘Technical

Support Document for Massachusetts

Air Pollution Control Regulation , 310

CMR 7.25, Best Available Controls for

Consumer and Commercial Products

(including Architectural and Industrial

Maintenance Coatings).’’

EPA is publishing this action without

prior proposal because the Agency

views this as a noncontroversial

amendment and anticipates no adverse

comments. However, in a separate

document in this Federal Register

publication, EPA is proposing to

approve the SIP revision should adverse

or critical comments be filed. This

action will be effective February 20,

1996 unless adverse or critical

comments are received by January 18,

1996.

If the EPA receives such comments,

this action will be withdrawn before the

effective date by simultaneously

publishing a subsequent notice that will

withdraw the final action. All public

comments received will then be

addressed in a subsequent final rule

based on this action serving as a

proposed rule. The EPA will not

institute a second comment period on

this action. Any parties interested in

commenting on this action should do so

at this time. If no such comments are

received, the public is advised that this

action will be effective on February 20,

1996.

Final Action

EPA is approving Section 310 CMR

7.25, Best Available Controls for

Consumer and Commercial Products.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000.

Under Sections 202, 203, and 205 of

the Unfunded Mandates Reform Act of

1995 (‘‘Unfunded Madates Act’’), signed

into law on March 22, 1995, EPA must

undertake various actions in association

with proposed or final rules that include

a Federal mandate that may result in

estimated costs of $100 million or more

to the private sector, or to State, local,

or tribal governments in the aggregate.

Through submission of this state

implementation plan or plan revision,

the State and any affected local or tribal

governments have elected to adopt the

program provided for under Section

183(e) of the Clean Air Act. These rules

may bind State, local and tribal

governments to perform certain actions

and also require the private sector to

perform certain duties. To the extent

that the rules being approved by this

action will impose no new

requirements; such sources are already

subject to these regulations under State

law. Accordingly, no additional costs to

State, local, or tribal governments, or to

the private sector, result from this

action. EPA has also determined that
65242 Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations

this final action does not include a

mandate that may result in estimated

costs of $100 million or more to State,

local, or tribal governments in the

aggregate or to the private sector.

This action has been classified as a

Table 3 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by an October 4, 1993,

memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation. A future notice will

inform the general public of these

tables.

The OMB has exempted this action

from review under Executive Order

12866.

SIP approvals under section 110 and

subchapter I, Part D of the CAA do not

create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the federal SIP-approval does

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities affected.

Moreover, due to the nature of the

federal-state relationship under the

CAA, preparation of a regulatory

flexibility analysis would constitute

federal inquiry into the economic

reasonableness of state action. The CAA

forbids EPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427

U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C.

7410 (a)(2).

On January 6, 1989, the Office of

Management and Budget (OMB) waived

Table 2 and Table 3 revisions (54 FR

2222) from the requirements of Section

3 of Executive Order 12291 for a period

of two years. EPA has submitted a

request for a permanent waiver for Table

2 and Table 3 SIP revisions. OMB has

agreed to continue the temporary waiver

until such time as it rules on EPA’s

request.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any State

implementation plan. Each request for

revision to the State implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by February 20,

1996. Filing a petition for

reconsideration by the Administrator of

this final rule does not affect the finality

of this rule for the purposes of judicial

review nor does it extend the time

within which a petition for judicial

review may be filed, and shall not

postpone the effectiveness of such rule

or action. This action may not be

challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Ozone,

Reporting and recordkeeping

requirements.

Note: Incorporation by reference of the

State Implementation Plan for the

Commonwealth of Massachusett was

approved by the Director of the Federal

Register on July 1, 1982.

Dated: September 21, 1995.

John P. DeVillars,

Regional Administrator, EPA New England.

Part 52 of chapter I, title 40 of the

Code of Federal Regulations is amended

as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart W—Massachusetts

2. Section 52.1120 is amended by

adding paragraph (c)(108) to read as

follows:

§ 52.1120 Identification of plan.

* * * * *

(c) * * *

(108) Revisions to the State

Implementation Plan submitted by the

Massachusetts Department of

Environmental Protection on January 9,

1995.

(i) Incorporation by reference.

(A) Letter from the Massachusetts

Department of Environmental Protection

dated January 9, 1995 submitting a

revision to the Massachusetts State

Implementation Plan.

(B) The following portions of the

Rules Governing the Control of Air

Pollution for the Commonwealth of

Massachusetts effective on November

18, 1994: 310 Code of Massachusetts

Regulations Section 7.25 U Best

Available Controls for Consumer and

Commercial Products.

3. In § 52.1167, Table 52.1167 is

amended by adding a new entry for 310

CMR 7.25 in numerical order to read as

follows:

§ 52.1167 EPA-approved Massachussetts

State regulations.

* * * * *

TABLE 52.1167.—EPA-APPROVED RULES AND REGULATIONS

[See Notes at end of table]

State citation Title/subject

Date submitted by

State

Date approved by

EPA Federal Register citation 52.1120(c) Comments/unapproved sections

* * * * * * *

310 CMR 7.25 .. Best available controls for consumer

and commercial

products.

11/18/94 December 19, 1995 .. 60 FR 65242 ................. 108 Includes architectural

& industrial maintenance coatings.

* * * * * * *
Federal Register / Vol. 60, No. 243 / Tuesday, December 19, 1995 / Rules and Regulations 65243

[FR Doc. 95–30797 Filed 12–18–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 61

[FRL–5399–3]

Asbestos NESHAP Clarification

Regarding Analysis of Multi-Layered

Systems

AGENCY: Environmental Protection

Agency.

ACTION: Notice of clarification to the

final rule.

SUMMARY: This document provides

clarification regarding the requirements

of the National Emission Standards for

Hazardous Air Pollutants (NESHAP) for

asbestos. It is intended to address

common questions regarding situations

where one or more layers which may

contain asbestos are present, and

supplement the January 5, 1994 Federal

Register clarification (59 FR 542).

EFFECTIVE DATE: December 19, 1995.

FOR FURTHER INFORMATION CONTACT: For

copies, contact Mr. Larry Tessier at 1–

800–368–5888 or at (703) 305–5938. For

questions about the clarification, please

contact Mr. Tom Ripp at (202) 564–

7003.

SUPPLEMENTARY INFORMATION: On

November 20, 1990, the Federal

Register published the Environmental

Protection Agency’s (the Agency’s)

revision of the National Emission

Standards for Hazardous Air Pollutants

for Asbestos (asbestos NESHAP), 40 CFR

part 61, subpart M, 55 FR 48406. The

asbestos NESHAP applies to any facility

as defined in 40 CFR 61.141. The

Agency has learned that some of the

regulated community have further

questions concerning the analysis of

samples which may contain multiple

layers, any or all of which may be

asbestos containing materials (ACM)

under the asbestos NESHAP. Because

these questions are frequently asked,

EPA is making this clarification.

I. Clarification of Multi-Layered ACM

System

At the time the original asbestos

NESHAP was promulgated (April 6,

1973), a standardized reference method

had not been developed to determine

quantitatively the content of asbestos in

a material. The definition for ‘‘friable

asbestos material’’ was added in the

October 14, 1975 asbestos NESHAP, but

still did not specify an analytical

method. EPA’s unwritten policy based

on the definition of ‘‘friable asbestos

material’’ was that each layer in a multilayered system was to be analyzed as a

separate material (no averaging or

dilution by combining layers of

asbestos-containing material with

nonasbestos-containing material was

allowed). The November 20, 1990

revision of the asbestos NESHAP finally

specified that Appendix A, Subpart F,

40 CFR Part 763, Section 1, Polarized

Light Microscopy (PLM method) be

used to determine whether or not a

material contains greater that one

percent asbestos. Section 1.7.2.1 of the

PLM method states that ‘‘* * * When

discrete strata are identified, each is

treated as a separate material so that

fibers are first quantified in that layer

only, and then the results for each layer

are combined to yield an estimate of

asbestos content for the whole sample.’’

This language has led to considerable

confusion as to how to analyze multilayered samples for NESHAP purposes.

EPA published a clarification regarding

the analysis of multi-layered systems in

the January 5, 1994 Federal Register.

This clarification basically stated that

all multi-layered systems except for wall

systems where joint compound was

used only at the joints and nail holes

must be analyzed as separate materials,

and results were not allowed to be

combined to determine average asbestos

content (continuing the policy that

dilution of an asbestos-containing

material is not allowed).

The Environmental Protection Agency

has received many questions about

analyzing multi-layered systems for

asbestos content to determine the

applicability of the asbestos NESHAP

since its January 5, 1994 clarification

(59 FR 542). This clarification reiterates

EPA’s position for analysis of multilayered samples for applicability of the

asbestos NESHAP.

This clarification applies to all multilayered systems (other than wallboard

systems where asbestos-containing joint

compound is used only at the joints and

nail holes) under both the NESHAP and

the Asbestos Hazard Emergency

Response Act (AHERA) (40 CFR Part

763) programs.

Any source sending multi-layered

bulk samples to a lab may request that

certain sample(s) or portions of

sample(s) be composited for analysis

first (to potentially reduce time and cost

of sampling).

(Note: A composite sample does not mean

that multiple samples may be composited

into one sample. It means that multiple

layers of one core sample may be composited

for analysis.)

If this alternative method is chosen,

then the following requirements must be

followed. To analyze the composite

sample, the procedures in EPA/600–93/

116 ‘‘Method for the Determination of

Asbestos in Bulk Building Materials’’

(‘‘the Method’’), specifically Section 2.3

‘‘Gravimetry,’’ must be used.

Additionally, for the composite sample,

the recommendations in Appendix D of

the method must be followed. This

procedure is consistent with the

procedures outlined in 40 CFR Part 763,

Appendix E to Subpart E (formerly

Appendix A to Subpart F), which is

referenced in the asbestos NESHAP (40

CFR 61.141 and 61.146), but the

procedures in the new method are more

clear. EPA finds that this method is an

acceptable alternative method of

compliance under section

61.13(h)(1)(ii). EPA intends to amend

the asbestos NESHAP in the near future

to refer specifically to these procedures.

When using the gravimetric procedures,

the result may be recorded as percent

asbestos by weight.

If the result of the composite analysis

shows that the average content for the

multi-layered system (across the layers)

is greater than one percent, then the

multi-layered system must be treated as

asbestos-containing and analysis by

layers is not necessary. If the result of

the composite sample analysis indicates

that the multi-layered system as a whole

contains asbestos in the amount of one

percent or less, but greater than none

detected, then analysis by layers is

required to ensure that no layer in the

system contains greater than one

percent asbestos. If any layer contains

greater than one percent asbestos, that

layer must be treated as asbestoscontaining. This will have the effect of

requiring all layers in a multi-layered

system to be treated as asbestoscontaining if the layers can not be

separated without disturbing the

asbestos-containing layer. Once any one

layer is shown to have greater than one

percent asbestos, further analysis of the

other layers is not necessary if all the

layers will be treated as asbestoscontaining. If several of the layers will

be removed without removing the entire

system, then all layers that will be

disturbed must be analyzed. This

includes the material being removed;

however, the material being removed

may be analyzed using the composite

analysis procedures. Please note that the

same requirements to perform point

counting as stated in our May 8, 1991

clarification (see enclosed

memorandum) still apply for any layers

being analyzed individually.