[Federal Register Volume 71, Number 108 (Tuesday, June 6, 2006)]
[Rules and Regulations]
[Pages 32464-32478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5131]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[EPA-HQ-TRI-2002-0003; FRL-8180-2]
RIN 2025-AA10
Community Right-to-Know; Toxic Chemical Release Reporting Using
North American Industry Classification System (NAICS); Final Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA has determined it is appropriate to amend its regulations
for the Toxics Release Inventory (TRI) to include the North American
Industry Classification System (NAICS) codes. We are including the
NAICS codes that correspond to the Standard Industrial Classification
(SIC) codes that are currently subject to Toxics Release Inventory
(TRI) reporting requirements in order to facilitate the transition from
reporting of SIC codes on TRI reporting forms to reporting of NAICS
codes. Consistent with the language of section 313(b)(1)(A) of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), SIC
codes still remain in the regulatory text as a basis for identifying
the facilities that are subject to TRI requirements, along with the new
NAICS codes.
EPA conducted a careful crosswalk between the SIC codes covered
under EPCRA section 313 and section 6607 of the Pollution Prevention
Act (PPA) and their corresponding NAICS codes. The Agency believes it
has correctly identified the covered NAICS codes and no longer expects
facilities to identify their SIC codes to determine TRI Program
compliance. Facilities may now rely on the list of covered NAICS codes
to determine whether they are required to report to the TRI Program.
DATES: This final rule is effective on August 7, 2006. Facilities will
be required to report NAICS codes beginning with TRI reporting forms
that are due on July 1, 2007, covering releases and other waste
management quantities at the facility for the 2006 calendar year.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-TRI-2002-0003. All documents in the docket are listed on the
www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (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 through www.regulations.gov or in hard copy at the HQ
EPA Docket Center, EPA West Building, 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: For general information on TRI,
contact the Emergency Planning and Community Right-to-Know Hotline at
(800) 424-9346 or (703) 412-9810, TDD (800) 553-7672, http://www.epa.gov/epaoswer/hotline/. For specific information on this
rulemaking contact: Judith Kendall, Toxics Release Inventory Program
Division, Mail code 2844T, OEI, Environmental Protection Agency, Ariel
Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460,
Telephone: 202-566-0750; Fax: 202-566-0741; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Entities that may be affected by this action are those facilities
that have 10 or more full-time employees or the equivalent 20,000 hours
per year that manufacture, process, or otherwise use toxic chemicals
listed on the TRI, and that are required under section 313 of EPCRA and
section 6607 of the PPA to report annually to EPA and States their
environmental releases and other waste management quantities of such
chemicals. Under Executive Order 13148, revised April 26, 2000 (65 FR
24599), all Federal facilities are required to comply with the
provisions set forth in section 313 of EPCRA and section 6607 of the
PPA. Federal facilities are required to comply with those provisions
without regard to SIC or NAICS delineations.
Potentially affected categories and entities may include, but are
not limited to:
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Category Examples of potentially affected entities
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Industry..................... SIC major group codes 10 (except 1011,
1081, and 1094), 12 (except 1241), or 20
through 39; industry codes 4911, 4931,
or 4939 (limited to facilities that
combust coal and/or oil for the purpose
of generating power for distribution in
commerce); or 4953 (limited to
facilities regulated under the Resource
Conservation and Recovery Act, subtitle
C, 42 U.S.C. 6921 et. seq.), or 5169, or
5171, or 7389 (limited to facilities
primarily engaged in solvent recovery
services on a contract or fee basis).
Federal Government........... Federal facilities.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in the table could also be
affected. To determine whether your facility is 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 any questions regarding the applicability of this action
[[Page 32465]]
to a particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.
II. What Is EPA's Statutory Authority for Taking This Action?
EPA is finalizing this action under sections 313(g)(1) and 328 of
EPCRA, 42 U.S.C. 11023(g)(1) and 11048. EPCRA is also referred to as
Title III of the Superfund Amendments and Reauthorization Act of 1986
(SARA) (Pub. L. 99-499). In general, section 313 of EPCRA requires
owners and operators of facilities in specified SIC codes that
manufacture, process, or otherwise use a listed toxic chemical in
amounts above specified threshold levels to report certain facility
specific information about such chemicals, including the annual
releases and other waste management quantities. Section 313(g)(1) of
EPCRA requires EPA to publish a uniform toxic chemical release form for
these reporting purposes, and it also prescribes, in general terms, the
types of information that must be submitted on the form. Section
313(g)(1)(A) requires owners and operators of facilities that are
subject to section 313 requirements to report the principal business
activities at the facilities. However, Congress provided no guidance as
to how such activities should be described. In the past, EPA has
required owners and operators of such facilities to identify their
principal business activities by reporting, among other things, their
primary, and any other applicable SIC codes for the facility. Congress
also granted EPA broad rulemaking authority to allow the Agency to
fully implement the statute. EPCRA section 328 authorizes the
``Administrator [to] prescribe such regulations as may be necessary to
carry out this chapter'' (42 U.S.C. 11048).
Consistent with these authorities, EPA is amending 40 CFR part 372
to include the NAICS codes that correspond to the SIC codes that are
currently subject to section 313 of EPCRA and section 6607 of the PPA.
Owners and operators of facilities that are subject to section 313 must
identify their principal business activities by NAICS codes beginning
with TRI reporting forms that are due on July 1, 2007, covering
releases and other waste management quantities at the facility for the
2006 calendar year. Finally, EPA is amending 40 CFR 372.38(e) to extend
the exemption provided therein to owners of covered facilities who
lease, with no other business interest, such facilities to operators of
establishments that are classified in any SIC code or NAICS code that
is subject to TRI requirements.
For the purpose of establishing consistency with the NAICS
classification methodology, and to avoid confusion in the future with
respect to reporting obligations by establishments that are considered
auxiliary establishments under the SIC system, EPA is changing its
interpretation that EPCRA reporting requirements apply to auxiliary
establishments. EPA believes this change is warranted in light of the
significant differences in treatment of auxiliary establishments
between the SIC and NAICS systems. It is possible, in light of EPA's
new interpretation, that some auxiliary establishments will no longer
be subject to TRI reporting requirements. EPA is also amending the
regulations to extend the exemption provided in the regulations to
owners of covered facilities who lease, with no other business
interest, such facilities to operators of establishments that are
classified in any SIC code or NAICS code that is subject to TRI
requirements. The TRI regulations currently exempt from TRI reporting
requirements ``owners of facilities such as industrial parks, all or
part of which are leased to persons who operate establishments within
SIC code 20 through 39 where the owner has no other business interest
in the operation of the covered facility.'' EPA believes it is
appropriate to extend this exemption to owners of facilities that lease
such facilities to operators of establishments within the SIC codes
added in the 1997 TRI Industry Expansion Rule, when such owners have no
other business interest in the operation of such establishments. This
amendment is unrelated to the purpose of this rule which is to change
TRI reporting from SIC codes to NAICS codes. The Agency is simply using
the opportunity of this rulemaking to extend the exemption to all
facilities that are covered under TRI.
III. Background Information
What Is the General Background for This Action?
Section 313 of EPCRA and section 6607 of the PPA require owners and
operators of certain facilities called ``covered facilities'' to
annually report to EPA, and to the State in which the facility is
located, their releases and other waste management quantities of listed
toxic chemicals. 42 U.S.C. 11023, 13106. In general, a covered facility
is one that: (1) Manufactures, processes, or otherwise uses one or more
chemicals listed in the EPCRA section 313 list of toxic chemicals in
excess of specified threshold quantities; (2) has 10 or more full-time
employees or the equivalent 20,000 hours per year and; (3) is
classified in an applicable SIC code. 42 U.S.C. 11023(b)(1)(A); 40 CFR
372.22. Information collected pursuant to section 313 of EPCRA and
section 6607 of PPA is organized into the national TRI data base which
is readily accessible to the public, researchers, industry, government
agencies, and other interested parties.
When Congress enacted EPCRA in 1986, it specifically identified the
manufacturing sector, which included facilities in SIC major group
codes 20 through 39 (see Executive Office of the President, Office of
Management and Budget, Standard Industrial Classification Manual 1987
(hereinafter referred to as the 1987 SIC Manual), as being subject to
the reporting requirements of section 313. Section 313(b)(1)(A) states:
The requirements of this section shall apply to owners and
operators of facilities that have 10 or more full time employees and
that are in Standard Industrial Classification Codes 20 through 39
(as in effect on July 1, 1985) and that manufactured, processed or
otherwise used a toxic chemical listed under subsection (c) of this
section in excess of the quantity of that chemical established under
subsection (f) of this section during the calendar year for which a
release form is required under this section.
In addition, in 1997, pursuant to section 313(b)(1)(B), EPA added
seven industry groups to the list of industries required to report to
EPA and State governments. See 62 FR 23833, May 1, 1997 (hereinafter
referred to as the Industry Expansion Rule). These industries included
metal mining, coal mining, electrical utilities that combust coal and/
or oil for the purpose of generating power for distribution in
commerce, facilities regulated under the Resource Conservation and
Recovery Act (RCRA) subtitle C, chemical wholesalers, petroleum
terminals and bulk stations and solvent recovery services. As a result,
those facilities with the following SIC code designations (that meet
all other applicable threshold criteria for TRI reporting) must report
toxic chemical releases and other waste management quantities of toxic
chemicals each year: SIC major group codes 10 (except 1011, 1081, and
1094), 12 (except 1241), or 20 through 39; industry codes 4911, 4931,
or 4939 (limited to facilities that combust coal and/or oil for the
purpose of generating power for distribution in commerce); 4953
(limited to facilities regulated under the Resource Conservation and
Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.); 5169; 5171; or 7389
(limited to facilities primarily engaged in solvent recovery services
on
[[Page 32466]]
a contract or fee basis). (See 40 CFR 372.22.)
As explained below, the United States is in the process of
replacing SIC with NAICS. This final action will put NAICS in place for
the TRI Program.
IV. Final Action
A. Why Did the EPA Propose This Action, and What Will the Final Action
Be?
On April 9, 1997, the Office of Management and Budget (OMB)
published a Federal Register Notice of final decision (62 FR 17288) to
adopt NAICS for the United States, a new economic classification system
that replaces the SIC system which has traditionally been used by the
Federal Government for collecting and organizing industry-related
statistics. See Executive Office of the President, Office of Management
and Budget, North American Industry Classification System--United
States, 1997 (hereinafter referred to as the 1997 NAICS Manual). OMB's
Economic Classification Policy Committee (ECPC) developed NAICS in
cooperation with the Instituto Nacional de Estad[iacute]stica,
Geograf[iacute]a e Inform[aacute]tica (INEGI) of Mexico and Statistics
Canada, in order to standardize the industrial statistics produced by
the three countries. It was felt that the SIC system was inadequate for
this purpose, in part because it classified industries on the basis of
several different economic concepts. NAICS, on the other hand,
classifies establishments according to similarities in the processes
used to produce goods and services. NAICS is the first industry
classification system developed in accordance with a single principle
of aggregation, the principle that producing units that use similar
production processes should be grouped together in the classification.
Notwithstanding its primary function as a tool to aid in the
collection and organization of industrial statistical information, OMB
recognized that NAICS, like its predecessor, SIC, may also be
effectively used for nonstatistical purposes including administrative,
tax and regulatory programs. However, in its notice of final decision
adopting NAICS for the United States, OMB instructed the heads of
government agencies to determine that NAICS industry definitions are
appropriate for the implementation of such programs before agencies use
NAICS codes in them. See 62 FR 17288, 17294. For the reasons discussed
in Unit IV.C. below, EPA's Administrator has determined that NAICS
industry definitions will be appropriate for implementing section 313
of EPCRA and section 6607 of the PPA.
In this final rule, EPA is amending 40 CFR Part 372 to include the
NAICS codes that correspond to the SIC codes that are currently subject
to the reporting requirements of section 313 of EPCRA and section 6607
of the PPA. EPA is also amending 40 CFR 372.85(b)(5) and 372.95(b)(10)
such that covered facilities must report their appropriate NAICS codes
on the TRI reporting form, Form R, or on the Alternate Threshold
Certification Statement, Form A, where applicable. EPA is also amending
40 CFR 372.38(g) and (h), and 40 CFR 372.45 to include the NAICS codes
that will be subject to the exemption and notification requirements of
those sections. Finally, EPA is amending 40 CFR 372.38(e) to extend the
exemption provided therein to owners of covered facilities who lease,
with no other business interest, such facilities to operators of
establishments that are classified in any SIC code or NAICS code that
is subject to TRI reporting requirements.
B. Will This Final Rule Affect the Universe Of Facilities That Are
Currently Required To Report to EPA and the States?
With the exception of facilities defined as ``auxiliary
facilities'' under SIC (see Unit V.D.), this action will not affect the
universe of facilities that is currently required to report under
section 313 of EPCRA and section 6607 of the PPA because EPA is not
adding or deleting industry groups from the list of industries that are
currently subject to section 313 reporting requirements. EPA is simply
assigning NAICS codes to those SIC codes that are already subject to
section 313 reporting requirements, and requiring covered facilities in
those industries to report the NAICS code that corresponds to the
covered SIC code. EPA notes that this action also eliminates reporting
requirements for owners of covered facilities who lease, with no other
business interest, such facilities to operators of establishments that
are classified in the Industry Expansion Rule SIC codes, but this
revision does not affect the universe of covered facilities, only who
is required to report on such facilities.
The TRI Program developed an extensive SIC to NAICS to SIC
crosswalk document based on ECPC's U.S. SIC to NAICS and NAICS to SIC
conversion tables in order to identify the universe of NAICS codes that
correspond to covered SIC codes. See ``Table 1: 1997 NAICS Matched to
1987 SIC'' and ``Table 2: 1987 SIC Matched to 1997 NAICS'' on the U.S.
Census Bureau's Web site at http://www.census.gov/epcd/www/naicstab.htm. A more direct crosswalk between the 1987 SIC and 2002
NAICS may be found in ``Table 4: 1987 SIC Matched to 2002 NAICS'' at
http://www.census.gov/epcd/naics02/.
EPA developed its crosswalk document by carefully mapping each SIC
code to its corresponding NAICS code or codes, and then mapping each of
the resulting NAICS codes back to SIC. More specifically, for each 3-
digit industry subsector in the NAICS manufacturing sector (i.e., NAICS
311 through 339), EPA checked OMB's NAICS to SIC crosswalk table at
http://www.census.gov/ to find industries that are not in the SIC
manufacturing sector (SIC codes 20 through 39), but that have been
classified as manufacturing industries under NAICS. Similarly, EPA
checked OMB's ECPC SIC to NAICS crosswalk table to find SIC
manufacturing industries that are not classified in the NAICS
manufacturing sector. By conducting this mapping, EPA was able to
develop a list of NAICS codes that corresponds to the list of
manufacturing sector SIC codes that are subject to TRI requirements.
EPA conducted similar mapping with respect to the industries added to
TRI in the Industry Expansion Rule. Please refer to the preamble to the
proposed rule (68 FR 13877-13878) for a more complete discussion of the
methodology EPA used to identify NAICS codes that correspond to
currently covered SIC codes.
When EPA issued the proposed rule, it identified the NAICS codes
that correspond to covered SIC codes based on the OMB crosswalks
between the 1987 SIC Manual and the 1997 NAICS Manual. OMB formalized
adoption of revisions to the 1997 NAICS Manual in a Federal Register
notice on January 16, 2001 (66 FR 3826-3827). In 2002, OMB published a
revised NAICS Manual. See Executive Office of the President, Office of
Management and Budget, North American Industry Classification System
United States, 2002 (hereinafter referred to as the 2002 NAICS Manual).
As explained in Unit V.E., the final list of NAICS codes to be covered
under TRI has been updated to reflect several minor additions and
revisions that the 2002 NAICS Manual made to the 1997 NAICS codes that
were identified in the proposed rule as corresponding to covered SIC
codes
C. Why Will EPA Add NAICS Codes for EPCRA Section 313 and PPA Section
6607 Reporting Purposes?
EPA has determined it is appropriate to amend 40 CFR Part 372 to
include the
[[Page 32467]]
NAICS codes that correspond to the SIC codes that are currently subject
to TRI reporting requirements for several reasons. First, the SIC
Manual has not been updated since 1987 despite significant changes in
the national economy, and limitations in the structure of the SIC
system have led to difficulties in classifying new and emerging
industries (1997 NAICS Manual at 21). As a result, the existing SIC
system does not reflect many of the important changes that have
occurred within the national economy over the last decade or so. More
importantly, it will not be updated in the future because of OMB's
adoption of NAICS as the United States' new industry classification
system. Accordingly, facilities that come into existence in the future
will not have experience using SIC codes and may have difficulty
determining whether or not they are subject to TRI requirements.
Moreover, as OMB has recognized, the SIC system is somewhat cumbersome
and inflexible to use because it classifies industries on the basis of
several economic principles rather than a single, consistent principle
(Id.). NAICS, on the other hand, represents a more targeted approach to
industry classification, focusing primarily on production processes.
Finally, the conversion to NAICS is part of EPA's data standards
program, which helps promote efficient data exchange and integration
through consistently defined and formatted data. Using NAICS for TRI
reporting purposes will enable more efficient database integration and
will promote public access to commonly defined data from disparate
sources.
D. Office of Management and Budget Updates to NAICS
OMB plans to update NAICS every five years. The next update is
scheduled for 2007. In accordance with OMB's established NAICS revision
practice, a final decision FR notice for the 2007 NAICS revision will
be published early in 2006 and the 2007 NAICS Manual will be published
early in 2007. The TRI Program will issue Federal Register notices to
update the NAICS codes that correspond to covered SIC codes every five
years, if necessary, after OMB completes its five-year updates.
E. How Will TRI Reporting Requirements Change as a Result of This Final
Rule?
TRI reporting requirements remain substantially the same under this
action. The difference is that covered facilities will report their
primary and secondary NAICS codes on Form R and Form A, rather than
their primary and secondary SIC codes. Because the statute identifies
covered facilities by SIC code, the industries subject to TRI
requirements will continue to be identified in the regulatory text by
SIC code; however, the text will be amended to include NAICS codes as
well. See 40 CFR 372.22(b) and 372.23 of the amended regulatory text
below. With the exception of auxiliary facilities, facilities that
currently report to the TRI Program because they are classified in a
covered SIC code must continue to report to the TRI Program under this
action if they continue to satisfy the applicable reporting criteria;
however, these facilities may now rely on the list of covered NAICS
codes in the amended regulations to determine whether they are subject
to TRI reporting requirements. Accordingly, EPA no longer expects
facilities to identify their SIC codes to determine TRI program
compliance.
F. Why Is EPA Extending the Exemption in 40 CFR 372.38(e)?
The TRI regulations at 40 CFR 372.38(e) currently exempt from TRI
reporting requirements ``owners of facilities such as industrial parks,
all or part of which are leased to persons who operate establishments
within SIC code 20 through 39 where the owner has no other business
interest in the operation of the covered facility.'' The exemption
acknowledges the difficulties in requiring such an owner to report when
he is not in a position that would allow him to determine compliance or
report the required information. EPA believes it is appropriate to
extend this exemption to owners of facilities that lease such
facilities to operators of establishments within the SIC codes added in
the 1997 TRI Industry Expansion Rule, when such owners have no other
business interest in the operation of such establishments. The
rationale for the exemption applies equally to those owners as it does
to owners of facilities who lease them to operators of establishments
in SIC codes 20 through 39. Because the amendment to 40 CFR 372.38(e)
extends the exemption to other industries, there is no cost to industry
associated with it.
V. Summary of Public Comments and EPA Responses
What comments did EPA receive on the proposal to add NAICS codes for
TRI reporting and what are EPA's responses?
EPA received comments from five entities in response to the
proposal to add NAICS codes for TRI reporting. The submitted comments
can be accessed in the EPA docket under Docket ID No. EPA-HQ-TRI-2002-
0003.
A. What comments did EPA receive on its method for implementing NAICS
for TRI reporting?
One commenter states that EPA noted in the proposed rule that its
intent in adopting NAICS codes for TRI purposes is to make sure
presently covered facilities continue to report and so be ``consistent
with the statutory requirements.'' The commenter believes, however,
that there is no explanation of the statutory requirements that EPA is
being consistent with, and whether they are relevant to the changing
industry and how it is classified. The commenter also believes that EPA
should not attempt to correlate SIC sectors with NAICS sectors. For the
purpose of simplification and ease of explanation to the regulated
community, the commenter believes that the proposal should state that
covered codes will be NAICS 31-33 (NAICS manufacturing sector) plus the
Industry Expansion Rule facilities. The commenter has suggested new
language for 40 CFR 372.22(b) to achieve this objective. The commenter
also believes that in the year after rule approval, EPA should educate
facilities regarding the change and assign a proposed NAICS number for
the facility to review and accept and that the burden should be on the
EPA to educate reporters and make the initial correlations between SIC
and NAICS codes. The commenter further states that future NAICS
revisions should be used ``as is'' to include the manufacturing sectors
with no consideration of past revisions and that correlation should
only be used for historical statistical purposes. The commenter also
disagrees with the stated differences between SIC and NAICS systems in
the proposed rule. In particular, the commenter points out that NAICS,
like SIC, was developed to reflect changes in the economy and in
industries and that under both classification systems establishments
are classified according to their primary activities.
EPA Response: The commenter is correct that EPA's intent is to
implement NAICS in such a way that, with the exception of auxiliary
facilities (see Unit V.D.), there is no change in the universe of
facilities that is currently required to report toxic chemical releases
and other waste management quantities under section 313 of EPCRA and
section 6607 of the PPA. EPA believes this approach to implementing
NAICS with respect to TRI reporting is the most consistent with EPCRA
section 313. As EPA stated in the proposed rule:
[[Page 32468]]
For purposes of TRI reporting, section 313 defines covered
facilities in terms of SIC codes. Facilities in the affected SIC
codes are required to report, regardless of how those facilities are
designated in other nomenclature systems. Because inclusion in a
specific SIC code is what triggers the reporting obligation, to use
NAICS codes, EPA must be able to ``cross-walk'' reliably between SIC
codes and NAICS codes.
68 FR 13876, March 21, 2003. As indicated in this excerpt from the
proposed rule, the statutory requirements underlying EPA's proposed
approach are found in section 313 which defines covered facilities in
terms of SIC codes. In particular, EPA explained that section
313(b)(1)(A) of EPCRA explicitly identifies, by SIC code, the universe
of facilities that was initially subject to TRI reporting when the
statute was enacted. See 68 FR 13875. Section 313(b)(1)(A) provides in
relevant part:
The requirements of this section shall apply to owners and
operators of facilities * * * that are in Standard Industrial
Classification Codes 20 through 39 (as in effect on July 1, 1985). *
* *
42 U.S.C. 11023(b)(1)(A). In addition, EPCRA authorizes EPA to ``add or
delete Standard Industrial Classification codes'' to the list of those
initially identified by Congress in section 313(b)(1)(A) as being
subject to TRI reporting requirements. See EPCRA section 313(b)(1)(B),
42 U.S.C. 11023(b)(1)(B). However, EPA may only add SIC codes under
section 313(b)(1)(B) if it concludes that each ``Standard Industrial
Code to which [section 313] applies is relevant to the purposes of
[section 313].'' Id. EPCRA therefore explicitly provides in section
313(b)(1)(A) and section 313(b)(1)(B) that section 313 applies to
facilities in SIC codes 20 through 39 and to facilities in other SIC
codes that EPA makes subject to EPCRA requirements by rule, if such
facilities also meet the full-time employee and chemical activity
criteria. EPA believes, therefore, that the facilities that are
currently subject to TRI reporting because they are in a covered SIC
code should continue to be subject to TRI requirements after EPA
implements NAICS for TRI purposes. Similarly, facilities that are not
currently subject to TRI reporting because they are not in a covered
SIC code should not be subject to TRI requirements simply because EPA
is implementing NAICS for TRI purposes.
EPA agrees with the commenter that NAICS was developed because the
economy changes and industries change over time and therefore, the
industry classification system must be updated to reflect such changes.
EPA also agrees that establishments are classified according to their
primary activities under both SIC and NAICS. However, NAICS is in fact
a different classification system than SIC. In particular, the
organizing principle underlying NAICS differs in certain fundamental
respects from the organizing principles underlying SIC. As the Standard
Industrial Classification Manual, 1987 states:
The [SIC] classification system is organized to reflect the
structure of the U.S. economy. It does not follow any single
principle, such as end use, nature of raw materials, product, or
market structure. * * *
1987 SIC Manual at 699. (For a comprehensive discussion of the
organizing principles underlying the SIC system, see Economic
Classification Policy Committee, Report No. 1: Economic Concepts
Incorporated in the Standard Industrial Classification Industries of
the United States, Aug. 1994, available at http://www.census.gov/epcd/naics/ecpcrpt1). In contrast, NAICS was developed around the single
organizing principle that establishments should be grouped into
industries ``according to similarity in the processes used to produce
goods or services.'' 1997 NAICS Manual at 13. This makes NAICS ``unique
among industry classification systems.'' Id. at 3.
With respect to TRI, the result of the different organizing
principles inherent in SIC and NAICS is that facilities that are
classified in the SIC ``manufacturing sector'' (SIC codes 20-39) which
Congress intended to be subject to TRI requirements might not be
classified in the NAICS ``manufacturing sector'' (NAICS codes 31-33).
Accordingly, if EPA had proposed that the NAICS ``manufacturing
sector'' report under EPCRA section 313, then some facilities that are
currently subject to TRI would be exempt from reporting. Similarly,
facilities that are not currently subject to TRI requirements because
they are not in the SIC ``manufacturing sector'' might be classified in
the NAICS ``manufacturing sector'' and would therefore be subject to
TRI reporting. For example, as discussed in the preamble to the
proposed rule, if all facilities in NAICS codes 31-33 were required to
report, then that would mean that retail bakeries (SIC code 5461) would
need to start reporting if they met the employee and chemical activity
thresholds because they are classified in the NAICS ``manufacturing
sector'' (NAICS 31181). See 68 FR 13876. It may be true in practice
that retail bakeries would rarely have to report because they typically
would not meet the full-time employee and/or chemical activity
criteria. Nevertheless, even if retail bakeries would not normally
satisfy the applicability criteria, they would still incur the burden
of making compliance determinations, (e.g., determining whether they
manufacture, process or otherwise use listed toxic chemicals in excess
of applicable thresholds and whether they meet the full-time employee
criterion). More importantly, section 313(b)(1)(A) indicates that
retail bakeries are not currently subject to TRI reporting
requirements. Nor has EPA made a determination pursuant to section
313(b)(1)(B) that it would be ``relevant to the purposes of [section
313]'' for retail bakeries to begin reporting to TRI.
Similar changes in the universe of facilities that are subject to
EPCRA section 313 could occur with respect to the SIC industries added
to TRI in the 1997 Industry Expansion Rule. Such changes would not be
the result of changes in the economic activities at the facility
itself. Nor would they be the result of a rulemaking supported by the
statutory finding required under section 313(b)(1)(B) (or section
313(b)(2) which authorizes EPA to apply section 313 requirements to
particular facilities without regard to their SIC codes). Rather, the
changes would result simply because the organizing principles for the
industry classification system that is in effect today are different
from those underlying the industry classification system that was in
effect for 50 years prior to the time that Congress enacted EPCRA. EPA
does not believe that this is a sufficient basis to impose reporting
obligations on facilities that otherwise would not be subject to
section 313 or to exempt facilities from TRI reporting requirements
that otherwise would be required to report. EPA conducted a careful
crosswalk between SIC codes covered under EPCRA section 313 and PPA
section 6607 and the corresponding NAICS codes. The Agency believes it
has correctly identified the covered NAICS codes as reflected in the
amended 40 CFR part 372, and no longer expects facilities to identify
their SIC codes to determine TRI program compliance. Facilities may now
rely on the list of covered NAICS codes in the amended 40 CFR part 372
to determine whether they are required to report to the TRI program.
EPA disagrees with the commenter's recommendation that EPA assign
NAICS codes to currently reporting facilities. Unlike some government
programs that do assign SIC or NAICS codes to a particular
establishment based on information provided to the government about the
facility's activities, EPA has never followed this approach in
[[Page 32469]]
implementing section 313. Facilities have typically self-determined
their SIC codes for purposes of TRI and EPA believes that they should
continue to do so with NAICS codes. Owners and operators have first-
hand knowledge of the activities undertaken at their facilities and
such knowledge is useful in assigning an appropriate SIC or NAICS code
to a facility. This is particularly true with respect to determining
SIC or NAICS codes for TRI reporting because facilities often need to
evaluate activities and economic data at multiple establishments and
make judgments based on that information in accordance with 40 CFR
372.22(b)(3) in order to determine the SIC or NAICS code that applies
to the entire facility.
B. What comments did EPA receive seeking clarification of TRI reporting
requirements for particular facilities?
One commenter, although in support of the proposal to incorporate
NAICS codes into the TRI program, requested that the Agency clarify the
TRI reporting requirements for recycling facilities that are exempt
from obtaining RCRA Subtitle C permits. The commenter notes that many
hazardous waste management facilities are exempt from RCRA permitting
requirements, but are still regulated under RCRA Subtitle C. According
to the commenter, at least one EPA Regional Office provided guidance
indicating that facilities that recycle mercury-containing fluorescent
lamps and other Universal Wastes are required to report to TRI because
these facilities fall under SIC code 4953 and are regulated under RCRA
Subtitle C. By contrast, however, the commenter noted that in another
region, a mercury-lamp recycling facility has assumed that it is
properly categorized under SIC 5093 and the EPA Regional Office in that
case has not provided any guidance or information contradicting the
facility's assumption of its designation under this SIC code. The
commenter believes that recycling facilities should be exempt from TRI
reporting, but if not, that EPA should clarify in this rulemaking the
SIC or NAICS codes that these facilities come under that would require
TRI reporting.
EPA Response: As an initial matter, EPA believes that this comment
is beyond the scope of this rulemaking which simply identifies the
NAICS codes that correspond to SIC codes that are currently subject to
EPCRA section 313. Nonetheless, EPA believes it may be helpful to
provide some additional clarification on this point in this preamble.
By doing so, however, EPA does not intend in any way to reconsider or
otherwise reopen the issue of the applicability of EPCRA section 313 to
facilities in SIC code 4953 (or the corresponding NAICS codes
identified below), or the types of facilities in SIC code 4953 (or the
corresponding NAICS codes) that are subject to TRI. In addition, as
noted in Unit V.A. of this preamble, SIC or NAICS code determinations
are very fact-specific, and it is not appropriate to attempt to address
questions related to specific facilities in this context. Therefore,
this response should not be construed as addressing facility-specific
issues regarding such determinations.
In order to determine if a recycling facility, such as a mercury-
lamp recycler, is required to report under TRI, two determinations, in
addition to the employee and chemical activity thresholds, are
necessary. First, the facility must be in a covered SIC code (or a
corresponding NAICS code). Second, if the facility is in a covered SIC
code (or a corresponding NAICS code), the facility must also be
regulated under RCRA Subtitle C.
The NAICS Determination. The commenter requested that EPA clarify
whether recycling facilities are classified under SIC code 4953 (Refuse
Systems) or under SIC code 5093 (Scrap and Waste Materials) for
purposes of TRI reporting. SIC code 4953 includes establishments that
are ``primarily engaged in the collection and disposal of refuse by
processing or destruction or in the operation of incinerators, waste
treatment plants, landfills, or other sites for the disposal of such
materials.'' 1987 SIC Manual at 285. Facilities that are classified
under SIC 4953 are classified in one of the following NAICS codes:
NAICS 562211, Hazardous Waste Treatment and Disposal; 562212, Solid
Waste Landfill; 562213, Solid Waste Combustors and Incinerators;
562219, Other Nonhazardous Waste Treatment and Disposal; or 562920,
Materials Recovery Facilities. A facility in one of the above NAICS
categories is required to submit a TRI report if it is also regulated
under Subtitle C and meets the employee and chemical activity
thresholds.
By contrast, facilities classified under SIC 5093, Scrap and Waste
Materials, are not covered by the TRI Program, and they are classified
under NAICS 42193, Recyclable Material Wholesalers. SIC code 5093
includes establishments that are ``primarily engaged in assembling,
breaking up, sorting, and wholesale distribution of scrap and waste
materials.'' 1987 SIC Manual at 301.
In many cases, recycling facilities may be engaged in both of these
activities, and possibly other SIC or NAICS-defined activities as well.
In such situations, where facilities consist of two or more
establishments, the TRI regulations provide instructions for
determining the primary SIC or NAICS code for the entire facility for
TRI reporting purposes. If all of the establishments at the facility
have covered SIC or NAICS codes, then the facility has met the SIC or
NAICS code requirement. 40 CFR 372.22(b)(2). In the case of a multi-
establishment facility with at least one establishment in a non-covered
SIC or NAICS code, 40 CFR 372.22(b)(3) requires the facility to compare
the relative value added of the various establishments to determine
whether the facility as a whole is in a covered SIC or NAICS code. For
example, under section 372(b)(3)(i), if a recycling facility consists
of a SIC 4953 establishment and a SIC 5093 establishment, and the
relative value added of the facility's SIC 5093 scrap and waste
material wholesale operations is greater than 50 percent of the total
value added of services provided or products shipped or produced by the
whole facility, then the facility would be classified in SIC code 5093
and would not be subject to TRI reporting. Without facility-specific
information of this nature, EPA cannot determine the proper SIC or
NAICS code for a particular recycling facility or for recycling
facilities in general.
Regulated Under Subtitle C. The commenter requested that EPA
clarify the applicability of TRI to facilities that are exempt from
RCRA permitting requirements, but are still regulated under RCRA
Subtitle C, because for the SIC code 4953 and the corresponding NAICS
codes, TRI reporting is ``limited to facilities regulated under [RCRA]
Subtitle C.'' 40 CFR 372.22.
The commenter mistakenly believes that recycling facilities are
exempt from TRI reporting. EPA has not provided rules or guidance that
exempt recycling facilities from TRI reporting. As the commenter
correctly notes, there are recycling facilities that are not required
to obtain a RCRA permit (or interim status) but nonetheless, are
regulated under Subtitle C. For example, some recycling facilities must
complete the hazardous waste manifest, an important part of the
Subtitle C cradle to grave tracking system. Some recycling facilities
also must provide notifications and reports to EPA and authorized
states. Still other recycling facilities must comply with air emission
standards issued under Subtitle C. Each of these facilities would be
regulated under RCRA Subtitle C and would also be required to report to
TRI if reporting thresholds were met.
[[Page 32470]]
C. What comments did EPA receive regarding cross references from SIC
codes to NAICS codes?
One comment was submitted that stated that EPA has not provided a
comprehensive cross reference to correspond SIC codes to NAICS codes,
and does not refer the regulated community to the NAICS manual to
assist them in selecting the appropriate NAICS code. The commenter
believes that EPA's assignment of NAICS codes to the SIC codes that are
currently subject to TRI reporting requirements is not straightforward
and transparent. The commenter further believes that the proposed
revisions to 40 CFR 372.23 are just a compilation of ``exceptions and/
or limitations'' with little guidance on determining corresponding
codes. The commenter is concerned that facilities that use other
reference sources to determine corresponding NAICS codes might arrive
at a different conclusion than EPA and could therefore be subject to an
enforcement action. The commenter also believes that EPA should
consider making the OMB crosswalk information available in a guidance
document or codifying the information.
EPA Response: EPA disagrees that it has not provided a
comprehensive cross reference to adequately correspond SIC codes to
NAICS codes. The NAICS codes in the proposed regulatory text at 40 CFR
372.23 that correspond to the SIC codes that are currently subject to
TRI reporting requirements were determined by using comprehensive SIC
to NAICS and NAICS to SIC crosswalk documents that were developed by
OMB's ECPC. As the commenter notes, the OMB crosswalk documents are
included in the docket for the proposed rule. They are also publicly
accessible on the Census Bureau's Web site at http://www.census.gov/epcd/www/naics.html and http://www.census.gov/epcd/naics02/. EPA used
the OMB crosswalk as the basis for its determinations of TRI NAICS
reporting facilities because OMB is the Federal government entity that
is responsible for developing and maintaining Federal classifications.
As such, OMB has considerable experience and expertise in making
classification decisions for Federal statistical purposes. EPA has
examined these decisions and determined that it is appropriate to
follow them, along with the exceptions presented in the regulatory
text, for TRI reporting purposes.
EPA also disagrees that its assignment of NAICS codes to the SIC
codes that are currently subject to TRI reporting requirements is not
straightforward and transparent. The regulatory text at 40 CFR
372.23(b) and (c) is simply a condensed version of the information
presented in the OMB crosswalk. The methodology that EPA used to
translate the lengthy OMB crosswalk into the condensed version of it
that appears in the regulatory text is explained at length in the
proposed rule. See 68 FR 13877-13879.
In response to the commenter's suggestion that EPA codify the
actual OMB crosswalk, EPA believes the amount of information that would
need to be codified would make it more difficult for facilities to
determine whether or not the NAICS code that applies to their facility
corresponds to a covered SIC code. If codified, the portion of the OMB
crosswalk that would need to be included in the CFR would likely occupy
dozens of pages. In contrast, the list of NAICS codes in the regulatory
text at 40 CFR 372.23 will likely occupy two to three pages in the CFR.
In order to present the crosswalk information in a condensed form, it
was necessary for EPA to create exceptions and limitations to
accurately identify the specific NAICS codes that correspond to
currently covered SIC codes.
The commenter indicates that facilities might use reference sources
other than the OMB crosswalk to determine corresponding NAICS codes,
and that they will therefore have to consult the OMB crosswalk in the
docket for the proposed rule to verify their determinations. First, as
noted above, the OMB crosswalk is not only available in the EPA public
docket for the proposed rule, but it is also available on the NAICS Web
site hosted at the Census Bureau. Second, EPA would like to clarify
that in this rulemaking, the Agency is simply identifying the NAICS
codes that correspond to SIC codes that are currently subject to TRI
reporting. As discussed above, EPA believes OMB's experience and
expertise with implementing SIC and NAICS make its crosswalk between
SIC and NAICS reliable for that purpose. Therefore, if a facility
chooses to identify its NAICS code for TRI purposes based only on its
current SIC code, EPA strongly recommends that the facility use the OMB
crosswalk. To the extent that other Federal Government agencies, State
governments or private parties have developed similar crosswalks, EPA
discourages their use for determining NAICS codes for TRI purposes.
Such crosswalks may reflect classification decisions that depend on the
nature of the programs administered by such entities. NAICS codes that
are assigned to facilities by such entities for administrative purposes
may also reflect such program-specific interpretations.
That does not mean, however, that owners or operators cannot or
should not consult the NAICS Manual itself to determine the most
appropriate NAICS code for their facilities based on the activities
that occur at the facility. In fact, EPA strongly encourages owners and
operators to consult the NAICS Manual when determining the most
appropriate NAICS code for their facilities. In the unlikely event that
a facility that is in a covered SIC code uses the NAICS Manual to
determine a NAICS code for the facility, and concludes that the most
appropriate NAICS code is not the same one that OMB has determined
corresponds to its SIC code, then that facility is welcome to contact
EPA to discuss the discrepancy. Ultimately, any disagreement between a
facility and EPA with respect to the facility's proper NAICS code will
be resolved based on the facility's activities and whether they are
most appropriately described by one of the NAICS industry descriptions
identified in the regulatory text or by some other NAICS code.
D. What comments did EPA receive regarding its proposal to require
``auxiliary facilities'' to continue to report to TRI using the NAICS
code of the establishment or facility for which it performs support
services?
Two commenters disagreed with EPA's guidance in the preamble to the
proposed rule that auxiliary facilities should report using the NAICS
code of the facility for which they perform support services and
recommend that EPA reconsider how to classify auxiliary facilities in
light of the fact that the SIC classification methodology differs
significantly from the NAICS classification methodology. One of the
commenters further stated that EPA should also consider that new
auxiliary facilities (e.g., Research & Development sites) will likely
determine their appropriate NAICS code by following the methodology in
the NAICS manual which does not define auxiliary facilities, while
older R&D facilities would still be reporting since they were
considered auxiliary facilities under the obsolete SIC classification
system.
EPA Response: EPA has reconsidered guidance in the preamble to the
proposed rule with respect to the reporting of NAICS codes by auxiliary
facilities. The 1987 SIC Manual defines auxiliary establishments as
establishments primarily engaged in performing management or support
services for other establishments. [1987 SIC Manual at 13.]. The SIC
system
[[Page 32471]]
assigns these establishments (e.g., research and development
laboratories, warehouses, storage facilities) SIC codes according to
the primary activity of the operating establishments they serve. Id. at
16. For example, auxiliary establishments tied to manufacturing
establishments are given a manufacturing SIC code. For purposes of TRI
reporting, auxiliary establishments are often referred to as
``auxiliary facilities.'' In order to remain consistent with the SIC
nomenclature, EPA will use the term ``auxiliary establishment'' rather
than ``auxiliary facility'' in the following discussion.
EPCRA section 313(b)(1)(A) states that section 313 requirements
``shall apply to owners and operators of facilities * * * that are in
[SIC] codes 20 through 39.'' Since the inception of the TRI Program in
1988, the Agency has interpreted EPCRA section 313 to cover operating
establishments and auxiliary establishments, consistent with the 1987
SIC Manual definition of auxiliary establishment. EPA noted at the time
that it believed that this would be the most consistent way to treat
auxiliary establishments. 53 FR 4500, 4503 (Feb. 16, 1988).
NAICS, however, did not adopt the SIC system concept of auxiliary
establishments. NAICS was developed around the single organizing
principle that establishments should be grouped into industries
according to similarities in the processes used to produce goods or
services.'' 1997 NAICS Manual at 13. Thus, under NAICS, former SIC
auxiliary establishments are assigned NAICS codes according to their
own activities (e.g., a research and development facility that
supported a SIC 3728 Aircraft Parts and Auxiliary Equipment facility
would be classified under NAICS 54171, Research and Development in the
Physical, Engineering, and Life Sciences).
For the purpose of establishing consistency with the NAICS
classification methodology, and to avoid confusion in the future with
respect to reporting obligations by establishments that are considered
auxiliary establishments under the SIC system, EPA is changing its
interpretation that EPCRA reporting requirements apply to auxiliary
establishments. EPA believes this change is warranted in light of the
significant differences in treatment of auxiliary establishments
between the SIC and NAICS systems. In future reporting years, NAICS
codes will be the only economic classification codes that are used by
reporting facilities on TRI reporting forms, and new entities that may
have been classified as auxiliary establishments facilities under SIC
will look to the NAICS manual for reporting guidance, not the 1987 SIC
Manual. These new establishments will not have any prior experience
with the SIC system and the concept of auxiliary establishments.
Without extensive outreach by EPA and possibly changes to the
regulations in part 372, it will be difficult to communicate to these
establishments that they may have a TRI reporting obligation based not
on their own activities but on those of the establishments they serve.
It is possible, in light of EPA's new interpretation, that some
auxiliary establishments will no longer be subject to TRI reporting
requirements. For example, under EPA's previous interpretation, a
stand-alone auxiliary establishment (e.g., a warehouse that is not part
of a larger facility) that met the employee and chemical activity
thresholds, and that was classified in a covered SIC or NAICS code only
because it served an off-site operating establishment in a covered SIC
or NAICS code, would have been subject to TRI reporting requirements.
Under the new interpretation, the same establishment would no longer be
subject to such requirements because it would not meet the SIC or NAICS
code requirement. In contrast, auxiliary establishments that are part
of multi-establishment facilities whose primary SIC or NAICS codes are
covered under EPCRA section 313 would still be subject to section 313
if the entire facility also met the employee and chemical activity
thresholds.
In this regard, it is important to note that this new
interpretation could affect the determination of the primary SIC or
NAICS code for a multi-establishment facility in the first instance.
For example, under 40 CFR 372.22(b)(2), if all establishments in a
multi-establishment facility have covered primary SIC or NAICS codes,
then the entire facility has met the SIC or NAICS code requirement.
Consider a multi-establishment facility that consists of two
establishments. One is an auto parts manufacturing establishment that
is in a covered manufacturing code, and the other is an auxiliary
establishment (e.g., a warehouse) that serves the manufacturing
establishment. Under EPA's previous interpretation, this multi-
establishment facility would have been in a covered primary SIC code
because both establishments share the same manufacturing code. Under
the new interpretation, the warehouse would not be in a covered SIC
code simply because of its status in the SIC system as an auxiliary
facility. Nor is it likely to be in a covered NAICS code. Instead, it
would have a NAICS code that is appropriate for its particular
warehousing activities. Thus, this particular multi-establishment
facility would no longer meet the SIC or NAICS code requirement based
solely on 40 CFR 372.22(b)(2). Note however, that the facility could
still meet the SIC or NAICS code requirement based on 40 CFR
372.22(b)(3), which requires owners or operators to compare the
relative value added by the various establishments in a multi-
establishment facility to determine whether the facility as a whole is
in a covered primary SIC or NAICS code. For example, if the value added
by the manufacturing establishment in the example above exceeded that
of the warehousing establishment, then the entire multi-establishment
facility would meet the SIC or NAICS code requirement under either of
the tests in 40 CFR 372.22(b).
E. What comments did EPA receive regarding OMB's NAICS 2002 update that
was published in the January 16, 2001 Federal Register (66 FR 3826)?
EPA received recommendations that the NAICS codes in the proposed
rule be updated to match the NAICS 2002 listing according to the OMB
notice of final decision published January 16, 2001 (66 FR 3826) that
adopted the 2002 NAICS codes.
EPA Response: EPA agrees with the commenter and has updated the
final rule to reflect minor, non-substantive changes that the 2002
NAICS Manual made to certain 1997 NAICS codes that were included in the
proposed rule. The 2002 NAICS update made no changes to the 1997
manufacturing sector NAICS codes.
Outside of the manufacturing sector, the only TRI covered sectors
that were affected by the 2002 NAICS revisions were the Wholesale Trade
and Information sectors (NAICS sectors 42 and 51, respectively). These
revisions and additions are included in the final list of NAICS codes
that will be covered under TRI. See 40 CFR 372.23 of the final
regulatory text.
As stated before, with the exception of auxiliary facilities, this
final rule will not affect the universe of facilities that is currently
required to report under section 313 of EPCRA and section 6607 of the
PPA because EPA is not adding or deleting industry groups from the list
of industries that are currently subject to section 313 reporting
requirements.
VI. Which NAICS Codes Are Subject to TRI Requirements Under This Final
Rule?
Using the OMB crosswalk tables and the methodology described in the
proposed rule (68 FR 13877-13878),
[[Page 32472]]
EPA has determined that facilities classified in the NAICS codes listed
in the final regulations in 40 CFR 372.23 must report their toxic
chemical releases and other waste management quantities to EPA and
State governments. This list will be used for regulatory and
enforcement purposes.
VII. What Additional Reporting Burden Is Associated With This Action?
EPA has evaluated the potential burden and cost of using NAICS for
TRI reporting and expects that the burden associated with this change
for affected facilities is negligible. OMB adopted NAICS as the United
States' industry classification system in 1997, and facilities should
already be familiar with their NAICS codes from other administrative
and regulatory reporting requirements of EPA and other governmental
entities. With the exception of auxiliary facilities, EPA does not
expect or intend this action to affect the universe of facilities that
are currently required to report under section 313 of EPCRA. EPA is
simply identifying NAICS industry codes which correspond to those SIC
codes that are already subject to section 313 reporting requirements,
and requiring covered facilities in those industries to report under
the NAICS code that corresponds to the covered SIC code. Only those
facilities that meet the requirements in 40 CFR 372.22(b) will need to
continue to report releases and other waste management quantities of
toxic chemicals under section 313 of EPCRA. The changed interpretation
for auxiliary facility reporting will likely result in some reduction
of burden, however, the Agency can not quantify what burden reduction
is likely to occur because there is no way to tell how many stand-alone
auxiliaries currently report or how auxiliaries currently affect multi-
establishment applicability determinations.
VIII. What Are the References Cited in This Final Rule?
1. Executive Office of the President, Office of Management and
Budget, North American Industry Classification System, United States,
1997 (NTIS PB98-127293)
2. Executive Office of the President, Office of Management and
Budget, Standard Industrial Classification Manual, 1987 (NTIS PB87-
100012)
3. 1997 NAICS U.S. Structure, Including Relationship to 1987 U.S.
SIC, ``Table 1: 1997 NAICS Matched to 1987 SIC'' and ``Table 2: 1987
SIC Matched to 1997 NAICS'' (http://www.census.gov/epcd/www/naicstab.htm).
4. Federal Register: April 20, 2000 (Volume 65, Number 77), Office
of Management and Budget, North American Industry Classification
System--Update for 2002: Notice of solicitation of comments on the
Economic Classification Policy Committee's recommendations for the 2002
revision of the North American Industry Classification System
5. Federal Register: January 16, 2001 (Volume 66, Number 10),
Office of Management and Budget, North American Industry Classification
System--Revision for 2002; Notice of final decision
6. Economic Classification Policy Committee, Report No. 1: Economic
Concepts Incorporated in the Standard Industrial Classification
Industries of the United States, Aug. 1994 (http://www.census.gov/epcd/naics/ecpcrpt1).
7. Executive Office of the President, Office of Management and
Budget, North American Industry Classification System, United States,
2002 (NTIS PB2002-101430*88).
IX. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), the Agency must determine
whether a 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 with the following impacts: (1) May 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) creates a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alters the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raises 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.
B. Regulatory Flexibility Act
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of this rule on small
entities, small entity is defined as: (1) A business that is classified
as a ``small business'' by the Small Business Administration at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district, or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field.
The change required by this rulemaking is to require facilities to
report their NAICS codes rather than their SIC codes. The burden of
reporting NAICS codes in place of SIC codes is negligible considering
that facilities are or should be already using NAICS codes in other
government data collection exercises. After consideration of the
potential economic impacts of this rule on small entities, I certify
that this action will not have a significant economic impact on a
substantial number of small entities.
C. Paperwork Reduction Act
This action does not impose any new information collection burden.
Facilities that are affected by the rule already report their
industrial classification codes on the approved reporting forms using
SIC codes. Moreover, OMB adopted NAICS several years ago, so affected
facilities are or should already be familiar with their NAICS codes
from administrative and regulatory reporting requirements of EPA and
other governmental entities that have already converted to NAICS
reporting. EPA will seek approval from OMB for the amended reporting
forms (which will include data fields for NAICS codes instead of SIC
codes) prior to the date when facilities must submit reports to the TRI
Program using NAICS codes.
OMB has previously approved the information collection requirements
contained in the existing regulations at 40 CFR part 372 under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned the
[[Page 32473]]
Information Collection Requests (ICRs) OMB control numbers 2070-0093
(EPA ICR No. 1363-13) for Form R and 2070-0143 (EPA ICR No. 1704-07)
for Form A. A copy of the OMB approved ICR may be obtained from Susan
Auby, Collection Strategies Division; U.S. Environmental Protection
Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by
calling (202) 566-1672.
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 in 40 CFR are listed in 40 CFR part 9.
D. 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 the regulatory alternatives and
adopt the least costly, most cost-effective or least burdensome
alternative that achieves the objective 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.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. As discussed in section VI above, EPA believes
that affected facilities already are or should be familiar with their
NAICS codes from other activities, including reporting to other
governmental authorities. Provision of the NAICS code in lieu of the
SIC code is expected to impose negligible incremental burden on
affected facilities. Thus, this rule is not subject to the requirements
of sections 202 and 205 of UMRA.
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.
The phrase, ``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 effect 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. This action merely adopts, for TRI
reporting purposes, NAICS in place of the SIC system which has
previously been used for collecting statistical data and for other
administrative and regulatory purposes. Thus, Executive Order 13132
does not apply to this rule.
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 9, 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.'' This rule does not have tribal
implications, as specified in Executive Order 13175. This action merely
adopts, for TRI reporting purposes, the NAICS industry classification
system that has replaced the SIC system previously used for collecting
statistical data and for other administrative and regulatory purposes.
Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
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 Executive Order 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.
This rule is not subject to EO 13045 because it is not economically
significant as defined under Executive Order 12866.
H. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
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.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
[[Page 32474]]
Act of 1995 (NTTAA) (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, etc.) 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.
EPA recognizes that NAICS, like SIC, is a standard that was
developed by OMB primarily as a means to collect and organize
industrial statistics for the Federal Government. However, EPA has not
identified an alternative voluntary consensus standard for defining
industry classifications, and no other classification systems were
brought to its attention in comments. Even if one exists, EPA believes
it would be impractical to use such a standard for reporting purposes
under section 313 of EPCRA and section 6607 of the PPA. One of the
reasons for switching from SIC to NAICS is to maintain consistency
within EPA and among other government agencies in the way that
industry-specific data is collected, organized, and made available to
the public in various databases and publications. Moreover, although
NAICS is based on a different organizing principle than SIC, the two
classification systems share many similarities. Industry has had
several decades to become familiar with SIC so the transition to NAICS
as opposed to an alternative industry classification system should be
more efficient and less burdensome. Therefore, EPA believes it is
appropriate to use NAICS for purposes of EPCRA section 313 reporting.
J. The 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,''
as defined by 5 U.S.C. 804(2), can not take effect until 60 days after
it is published in the Federal Register. This action is not a ``major
rule.'' This rule will be effective on August 7, 2006.
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic chemicals.
Dated: May 18, 2006.
Stephen L. Johnson,
Administrator.
0
Therefore, 40 CFR part 372 is amended as follows:
PART 372--[AMENDED]
0
1. The authority citation for part 372 continues to read as follows:
Authority: 42 U.S.C. 11023 and 11048.
0
2. Amend Sec. 372.3 by adding in alphabetical order a definition for
``Previously classified'' to read as follows:
Sec. 372.3 Definitions.
* * * * *
Previously classified means properly classified, according to Sec.
372.22(b) under a given Standard Industrial Classification (SIC) code,
as identified in the Standard Industrial Classification Manual, 1987,
Executive Office of the President, Office of Management and Budget.
* * * * *
0
3. Amend Sec. 372.22, by revising paragraphs (b) introductory text,
(b)(1), (b)(2), (b)(3)(i) and (b)(3)(ii) to read as follows:
Sec. 372.22 Covered facilities for toxic chemical release reporting.
* * * * *
(b) The facility is in a Standard Industrial Classification (SIC)
(as in effect on January 1, 1987) major group or industry code listed
in Sec. 372.23(a) (for which the corresponding North American Industry
Classification System (NAICS) (as in effect on January 1, 2002)
subsector and industry codes are listed in Sec. Sec. 372.23(b) and
372.23(c)) by virtue of the fact that it meets one of the following
criteria:
(1) The facility is an establishment with a primary SIC major group
or industry code listed in Sec. 372.23(a), or a primary NAICS
subsector or industry code listed in Sec. 372.23(b) or Sec.
372.23(c).
(2) The facility is a multi-establishment complex where all
establishments have primary SIC major group or industry codes listed in
Sec. 372.23(a), or primary NAICS subsector or industry codes listed in
Sec. 372.23(b) or Sec. 372.23(c).
(3) * * *
(i) The sum of the value of services provided and/or products
shipped and/or produced from those establishments that have primary SIC
major group or industry codes listed in Sec. 372.23(a), or primary
NAICS subsector or industry codes listed in Sec. 372.23(b) or Sec.
372.23(c) is greater than 50 percent of the total value of all services
provided and/or products shipped from and/or produced by all
establishments at the facility.
(ii) One establishment having a primary SIC major group or industry
code listed in Sec. 372.23(a), or a primary NAICS subsector or
industry code listed in Sec. 372.23(b) or Sec. 372.23(c) contributes
more in terms of value of services provided and/or products shipped
from and/or produced at the facility than any other establishment
within the facility.
* * * * *
0
4. Add a new Sec. 372.23 to Subpart B to read as follows:
Sec. 372.23 SIC and NAICS codes to which this Part applies.
The requirements of this part apply to facilities in the following
SIC and NAICS codes. This section contains three listings. Paragraph
(a) of this section lists the SIC codes to which this part applies.
Paragraph (b) of this section lists the NAICS codes that correspond to
SIC codes 20 through 39 to which this part applies. Paragraph (c) of
this section lists the NAICS codes that correspond to SIC codes other
than SIC codes 20 through 39 to which this part applies.
(a) SIC codes.
------------------------------------------------------------------------
Major group or industry code Exceptions and/or limitations
------------------------------------------------------------------------
10........................... Except 1011, 1081, and 1094.
12........................... Except 1241.
20 through 39
4911, 4931, 4939............. Limited to facilities that combust coal
and/or oil for the purpose of generating
power for distribution in commerce.
4953......................... Limited to facilities regulated under the
Resource Conservation and Recovery Act,
42 U.S.C. 6921, et seq.
[[Page 32475]]
5169
5171
7389......................... Limited to facilities primarily engaged
in solvent recovery services on a
contract or fee basis.
------------------------------------------------------------------------
(b) NAICS codes that correspond to SIC codes 20 through 39.
------------------------------------------------------------------------
Subsector code or industry
code Exceptions and/or limitations
------------------------------------------------------------------------
311.......................... Except 311119--Exception is limited to
facilities primarily engaged in Custom
Grain Grinding for Animal Feed
(previously classified under SIC 0723,
Crop Preparation Services for Market,
Except Cotton Ginning);
Except 311330--Exception is limited to
facilities primarily engaged in the
retail sale of candy, nuts, popcorn and
other confections not for immediate
consumption made on the premises
(previously classified under SIC 5441,
Candy, Nut, and Confectionery Stores);
Except 311340--Exception is limited to
facilities primarily engaged in the
retail sale of candy, nuts, popcorn and
other confections not for immediate
consumption made on the premises
(previously classified under SIC 5441,
Candy, Nut, and Confectionery Stores);
Except 311811--Retail Bakeries
(previously classified under SIC 5461,
Retail Bakeries);
Except 311611--Exception is limited to
facilities primarily engaged in Custom
Slaughtering for individuals (previously
classified under SIC 0751, Livestock
Services, Except Veterinary,
Slaughtering, custom: for individuals);
Except 311612--Exception is limited to
facilities primarily engaged in the
cutting up and resale of purchased fresh
carcasses for the trade (including boxed
beef), (previously classified under SIC
5147, Meats and Meat Products);
312.......................... Except 312229--Exception is limited to
facilities primarily engaged in
providing Tobacco Sheeting Services
(previously classified under SIC 7389,
Business Services, NEC);
313.......................... Except 313311--Exception is limited to
facilities primarily engaged in
converting broadwoven piece goods and
broadwoven textiles, (previously
classified under SIC 5131, Piece Goods
Notions, and Other Dry Goods, broadwoven
and non-broadwoven piece good
converters), and facilities primarily
engaged in sponging fabric for tailors
and dressmakers (previously classified
under SIC 7389, Business Services, NEC
(Sponging fabric for tailors and
dressmakers));
Except 313312--Exception is limited to
facilities primarily engaged in
converting narrow woven Textiles, and
narrow woven piece goods, (previously
classified under SIC 5131, Piece Goods
Notions, and Other Dry Goods,
converters, except broadwoven fabric);
314.......................... Except 314121--Exception is limited to
facilities primarily engaged in making
Custom drapery for retail sale
(previously classified under SIC 5714,
Drapery, Curtain, and Upholstery
Stores);
Except 314129--Exception is limited to
facilities primarily engaged in making
Custom slipcovers for retail sale
(previously classified under SIC 5714,
Drapery, Curtain, and Upholstery
Stores);
Except 314999--Exception is limited to
facilities primarily engaged in Binding
carpets and rugs for the trade, Carpet
cutting and binding, and Embroidering on
textile products (except apparel) for
the trade (previously classified under
SIC 7389, Business Services Not
Elsewhere Classified, Embroidering of
advertising on shirts and Rug binding
for the trade);
315.......................... Except 315222--Exception is limited to
custom tailors primarily engaged in
making and selling men's and boys'
suits, cut and sewn from purchased
fabric (previously classified under SIC
5699, Miscellaneous Apparel and
Accessory Stores (custom tailors));
Except 315223--Exception is limited to
custom tailors primarily engaged in
making and selling men's and boys' dress
shirts, cut and sewn from purchased
fabric (previously classified under SIC
5699, Miscellaneous Apparel and
Accessory Stores (custom tailors));
Except 315233--Exception is limited to
custom tailors primarily engaged in
making and selling bridal dresses or
gowns, or women's, misses' and girls'
dresses cut and sewn from purchased
fabric (except apparel
contractors)(custom dressmakers)
(previously classified under SIC Code
5699, Miscellaneous Apparel and
Accessory Stores);
316
321
322
323.......................... Except 323114--Exception is limited to
facilities primarily engaged in
reproducing text, drawings, plans, maps,
or other copy, by blueprinting,
photocopying, mimeographing, or other
methods of duplication other than
printing or microfilming (i.e., instant
printing) (previously classified under
SIC 7334, Photocopying and Duplicating
Services, (instant printing));
324
325.......................... Except 325998--Exception is limited to
facilities primarily engaged in Aerosol
can filling on a job order or contract
basis (previously classified under SIC
7389, Business Services, NEC (aerosol
packaging));
326.......................... Except 326212--Tire Retreading,
(previously classified under SIC 7534,
Tire Retreading and Repair Shops
(rebuilding));
327
331
332
333
334.......................... Except 334611--Software Reproducing
(previously classified under SIC 7372,
Prepackaged Software, (reproduction of
software));
[[Page 32476]]
Except 334612--Exception is limited to
facilities primarily engaged in mass
reproducing pre-recorded Video
cassettes, and mass reproducing Video
tape or disk (previously classified
under SIC 7819, Services Allied to
Motion Picture Production (reproduction
of Video));
335.......................... Except 335312--Exception is limited to
facilities primarily engaged in armature
rewinding on a factory basis (previously
classified under SIC 7694 (Armature
Rewinding Shops (remanufacturing));
336
337.......................... Except 337110--Exception is limited to
facilities primarily engaged in the
retail sale of household furniture and
that manufacture custom wood kitchen
cabinets and counter tops (previously
classified under SIC 5712, Furniture
Stores (custom wood cabinets));
Except 337121--Exception is limited to
facilities primarily engaged in the
retail sale of household furniture and
that manufacture custom made upholstered
household furniture (previously
classified under SIC 5712, Furniture
Stores (upholstered, custom made
furniture));
Except 337122--Exception is limited to
facilities primarily engaged in the
retail sale of household furniture and
that manufacture nonupholstered,
household type, custom wood furniture
(previously classified under SIC 5712,
Furniture Stores (custom made wood
nonupholstered household furniture
except cabinets));
339.......................... Except 339115--Exception is limited to
lens grinding facilities that are
primarily engaged in the retail sale of
eyeglasses and contact lenses to
prescription for individuals (previously
classified under SIC 5995, Optical Goods
Stores (optical laboratories grinding of
lenses to prescription));
Except 339116--Dental Laboratories
(previously classified under SIC 8072,
Dental Laboratories);
111998....................... Limited to facilities primarily engaged
in reducing maple sap to maple syrup
(previously classified under SIC 2099,
Food Preparations, NEC, Reducing Maple
Sap to Maple Syrup);
211112....................... Limited to facilities that recover
sulfur from natural gas (previously
classified under SIC 2819, Industrial
Inorganic Chemicals, NEC (recovering
sulfur from natural gas));
212324....................... Limited to facilities operating without
a mine or quarry and that are primarily
engaged in beneficiating kaolin and clay
(previously classified under SIC 3295,
Minerals and Earths, Ground or Otherwise
Treated (grinding, washing, separating,
etc. of minerals in SIC 1455));
212325....................... Limited to facilities operating without
a mine or quarry and that are primarily
engaged in beneficiating clay and
ceramic and refractory minerals
(previously classified under SIC 3295,
Minerals and Earths, Ground or Otherwise
Treated (grinding, washing, separating,
etc. of minerals in SIC 1459));
212393....................... Limited to facilities operating without
a mine or quarry and that are primarily
engaged in beneficiating chemical or
fertilizer mineral raw materials
(previously classified under SIC 3295,
Minerals and Earths, Ground or Otherwise
Treated (grinding, washing, separating,
etc. of minerals in SIC 1479));
212399....................... Limited to facilities operating without
a mine or quarry and that are primarily
engaged in beneficiating nonmetallic
minerals (previously classified under
SIC 3295, Minerals and Earths, Ground or
Otherwise Treated (grinding, washing,
separating, etc. of minerals in SIC
1499));
488390....................... Limited to facilities that are primarily
engaged in providing routine repair and
maintenance of ships and boats from
floating drydocks (previously classified
under SIC 3731, Shipbuilding and
Repairing (floating drydocks not
associated with a shipyard));
511110
511120
511130
511140....................... Except facilities that are primarily
engaged in furnishing services for
direct mail advertising including
Address list compilers, Address list
publishers, Address list publishers and
printing combined, Address list
publishing, Business directory
publishers, Catalog of collections
publishers, Catalog of collections
publishers and printing combined,
Mailing list compilers, Directory
compilers, and Mailing list compiling
services (previously classified under
SIC 7331, Direct Mail Advertising
Services (mailing list compilers));
511191
511199
512220
512230....................... Except facilities primarily engaged in
Music copyright authorizing use, Music
copyright buying and licensing, and
Music publishers working on their own
account (previously classified under SIC
8999, Services, NEC (music publishing));
516110....................... Limited to facilities primarily engaged
in Internet newspaper publishing
(previously classified under SIC 2711,
Newspapers: Publishing, or Publishing
and Printing), Internet periodical
publishing (previously classified under
SIC 2721, Periodicals: Publishing, or
Publishing and Printing), Internet book
publishing (previously classified under
SIC 2731, Books: Publishing, or
Publishing and Printing), Miscellaneous
Internet publishing (previously
classified under SIC 2741, Miscellaneous
Publishing), Internet greeting card
publishers (previously classified under
SIC 2771, Greeting Cards);
541710....................... Limited to facilities that are primarily
engaged in Guided missile and space
vehicle engine research and development
(previously classified under SIC 3764,
Guided Missile and Space Vehicle
Propulsion Units and Propulsion Unit
Parts), and in Guided missile and space
vehicle parts (except engines) research
and development (previously classified
under SIC 3769, Guided Missile and Space
Vehicle Parts and Auxiliary Equipment,
Not Elsewhere Classified);
811490....................... Limited to facilities that are primarily
engaged in repairing and servicing
pleasure and sail boats without
retailing new boats (previously
classified under SIC 3732, Boat Building
and Repairing (pleasure boat building));
------------------------------------------------------------------------
(c) NAICS codes that correspond to SIC codes other than SIC codes
20 through 39.
[[Page 32477]]
------------------------------------------------------------------------
Subsector or industry code Exceptions and/or limitations
------------------------------------------------------------------------
212111
212112
212113
212221
212222
212231
212234
212299
221111....................... Limited to facilities that combust coal
and/or oil for the purpose of generating
power for distribution in commerce.
221112....................... Limited to facilities that combust coal
and/or oil for the purpose of generating
power for distribution in commerce.
221113....................... Limited to facilities that combust coal
and/or oil for the purpose of generating
power for distribution in commerce.
221119....................... Limited to facilities that combust coal
and/or oil for the purpose of generating
power for distribution in commerce.
221121....................... Limited to facilities that combust coal
and/or oil for the purpose of generating
power for distribution in commerce.
221122....................... Limited to facilities that combust coal
and/or oil for the purpose of generating
power for distribution in commerce.
424690
424710
425110....................... Limited to facilities previously
classified in SIC 5169, Chemicals and
Allied Products, Not Elsewhere
Classified.
425120....................... Limited to facilities previously
classified in SIC 5169, Chemicals and
Allied Products, Not Elsewhere
Classified.
562112....................... Limited to facilities primarily engaged
in solvent recovery services on a
contract or fee basis (previously
classified under SIC 7389, Business
Services, NEC);
562211....................... Limited to facilities regulated under
the Resource Conservation and Recovery
Act, subtitle C, 42 U.S.C. 6921 et seq.
562212....................... Limited to facilities regulated under
the Resource Conservation and Recovery
Act, subtitle C, 42 U.S.C. 6921 et seq.
562213....................... Limited to facilities regulated under
the Resource Conservation and Recovery
Act, subtitle C, 42 U.S.C. 6921 et seq.
562219....................... Limited to facilities regulated under
the Resource Conservation and Recovery
Act, subtitle C, 42 U.S.C. 6921 et seq.
562920....................... Limited to facilities regulated under
the Resource Conservation and Recovery
Act, subtitle C, 42 U.S.C. 6921 et seq.
------------------------------------------------------------------------
0
5. Amend Sec. 372.38 by revising paragraphs (e), (g), and (h) to read
as follows:
Sec. 372.38 Exemptions.
* * * * *
(e) Certain owners of leased property. The owner of a covered
facility is not subject to reporting under Sec. 372.30 if such owner's
only interest in the facility is ownership of the real estate upon
which the facility is operated. This exemption applies to owners of
facilities such as industrial parks, all or part of which are leased to
persons who operate establishments in any SIC code or NAICS code in
Sec. 372.23 that is subject to the requirements of this part, where
the owner has no other business interest in the operation of the
covered facility.
* * * * *
(g) Coal extraction activities. If a toxic chemical is
manufactured, processed, or otherwise used in extraction by facilities
in SIC code 12, or in NAICS codes 212111, 212112 or 212113, a person is
not required to consider the quantity of the toxic chemical so
manufactured, processed, or otherwise used when determining whether an
applicable threshold has been met under Sec. 372.25, Sec. 372.27, or
Sec. 372.28, or determining the amounts to be reported under Sec.
372.30.
(h) Metal mining overburden. If a toxic chemical that is a
constituent of overburden is processed or otherwise used by facilities
in SIC code 10, or in NAICS codes 212221, 212222, 212231, 212234 or
212299, a person is not required to consider the quantity of the toxic
chemical so processed, or otherwise used when determining whether an
applicable threshold has been met under Sec. 372.25, Sec. 372.27, or
Sec. 372.28, or determining the amounts to be reported under Sec.
372.30.
0
6. Amend Sec. 372.45 by revising paragraph (a)(1) to read as follows:
Sec. 372.45 Notification about toxic chemicals.
(a) * * *
(1) Is in SIC codes 20 through 39 or a NAICS code that corresponds
to SIC codes 20 through 39 as set forth in Sec. 372.23(b),
* * * * *
0
7. Amend Sec. 372.85 by revising paragraph (b)(5) to read as follows:
Sec. 372.85 Toxic chemical release reporting form and instructions.
* * * * *
(b) * * *
(5) The four-digit SIC code(s) for the facility or establishments
in the facility until the reporting year ending December 31, 2005, for
which reporting forms are due July 1, 2006. Beginning with the
reporting year ending December 31, 2006, for which reporting forms are
due July 1, 2007, and for each subsequent reporting year, the six-digit
NAICS code(s) for the facility or establishments in the facility.
* * * * *
0
8. Amend Sec. 372.95 by revising paragraph (b)(10) to read as follows:
Sec. 372.95 Alternate threshold certification and instructions.
* * * * *
(b) * * *
(10) The four-digit SIC code(s) for the facility or establishments
in the facility until the reporting year ending December 31, 2005, for
which reporting forms are due July 1, 2006. Beginning with the
reporting year ending December 31, 2006, for which reporting
[[Page 32478]]
forms are due July 1, 2007, and for each subsequent reporting year, the
six-digit NAICS code(s) for the facility or establishments in the
facility.
* * * * *
[FR Doc. 06-5131 Filed 6-5-06; 8:45 am]
BILLING CODE 6560-50-P