Federal Register proposed rules — 1996-06-25

issue-1996-06-25Federal Register proposed rules — 1996-06-25Proposed Regulation

Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.

FR Doc. 96-16296 Implementation of the Local Competition Provisions of 1996 Telecommunications Act
[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Proposed Rules]
[Pages 32766-32767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16296]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[DA 96-1007]

Implementation of the Local Competition Provisions of 1996 
Telecommunications Act

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; establishing comment date.

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SUMMARY: This document establishes an additional Comment opportunity in 
CC Docket 96-98 [61 FR 18311, April 25, 1996] in order to allow parties 
to that proceeding to comment on a staff-prepared working copy of an 
industry demand and supply simulation model. The model, using publicly-
available, industry-wide information, allows users to simulate the 
relative impact of particular changes in the industry.

DATES: Comments are due on or before July 1, 1996. (No reply comments 
allowed).

ADDRESSES: Federal Communications Commission, 1919 M Street, N.W., 
20554.

FOR FURTHER INFORMATION CONTACT: Jim Lande at (202) 418-0498 or Doron 
Fertig at (202) 418-1869.

SUPPLEMENTARY INFORMATION:

Supplemental Comment Period Designated for Local Competition 
Proceeding, CC Docket 96-98

[DA 96-1007; IAD 96-175]

Released June 20, 1996.

    1. On June 17, 1996, the FCC's Industry Analysis Division, Common 
Carrier Bureau, and the Competition Division, Office of General 
Counsel, released a staff model of the telecommunications industry 
which allows model users to calculate a variety of outputs from nearly 
200 specifications (News Release, ``FCC Staff Releases Working Copy of 
an Industry Demand & Supply Simulation Model,'' released June 17, 
1996.) The model allows the user to specify growth rates, pricing 
trends, demand elasticities and cost relationships to simulate effects 
in traditional industry segments. The

[[Page 32767]]

model, using publicly-available, industry-wide information, allows the 
user to simulate the relative impact of particular changes in the 
industry.
    2. A copy of the model has been placed in the public file in CC 
Docket No. 96-98, Implementation of the Local Competition Provisions in 
the Telecommunications Act of 1996. Parties who wish to use the model, 
create variations of the model, or file models of their own, in that 
proceeding are requested to file Comments no later than Monday, July 1, 
1996. There will be no Reply Comment filing opportunity. Commenters 
should file an original and four copies with the Office of the 
Secretary, two copies with Ms. Wanda Harris, Room 518, Competitive 
Pricing Division, Common Carrier Bureau, one copy with the Chief, 
Industry Analysis Division, Common Carrier Bureau, and one copy with 
the Chief, Competition Division, Office of the General Counsel. 
Comments are limited to fifty (50) pages, inclusive of attachments.
    3. Copies of the model may be purchased by calling International 
Transcription Services, Inc. (ITS) at (202) 857-3800. The model also 
can be downloaded from the Common Carrier Bureau's home page on the 
World Wide Web. The home page can be accessed directly (http://
www.fcc.gov/ccb.html) or through a direct link from the main FCC home 
page (http://www.fcc.gov). The model also can be downloaded from the 
FCC-State Link computer bulletin board at (202) 418-0241 [BBS file 
name: MODELV30.ZIP].
    4. For further information about the model, contact Jim Lande at 
(202) 418-0498 (e-mail: [email protected]) or Doron Fertig at (202) 418-
1869 (e-mail: [email protected]).

Federal Communications Commission
William F. Caton,
Acting Secretary.
[FR Doc. 96-16296 Filed 6-24-96; 8:45 am]
BILLING CODE 6712-01-M

Complete official Federal Register PDF

FR Doc. 96-16078 Limited Access Management of Federal Fisheries In and Off of Alaska; Quota Shares and Individual Fishing Quota on Smaller Vessels
[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Proposed Rules]
[Pages 32767-32769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16078]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 676

[Docket No. 960612171-6171-01; I.D. 060496A]
RIN 0648-AI57

Limited Access Management of Federal Fisheries In and Off of 
Alaska; Quota Shares and Individual Fishing Quota on Smaller Vessels

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues a proposed rule to implement Amendment 42 to the 
Fishery Management Plan (FMP) for the Bering Sea/Aleutian Islands 
Groundfish, Amendment 42 to the FMP for the Gulf of Alaska Groundfish 
Fishery, and a regulatory amendment to the Individual Fishing Quota 
(IFQ) Program for fixed gear Pacific halibut and sablefish fisheries in 
and off of Alaska. The proposed rule would allow quota shares (QS) and 
IFQ assigned to vessels in larger size categories to be used on smaller 
vessels. The North Pacific Fishery Management Council (Council) 
recommended this action to increase the flexibility of QS use and 
transfer while maintaining the management goals of the IFQ Program and 
to provide small boat fishermen with more opportunities to improve the 
profitability of their operations.

DATES: Comments on the proposed rule and supporting documents must be 
received by August 5, 1996.

ADDRESSES: Send comments to Ronald J. Berg, Chief, Fisheries Management 
Division, Attn: Lori Gravel, Alaska Region, National Marine Fisheries 
Service, P.O. Box 21668, Juneau, AK 99802.

    Copies of the proposed Amendments, and the Environmental 
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA) for this action may be obtained from the North 
Pacific Fishery Management Council, Suite 306, 605 West 4th Avenue, 
Anchorage, AK 99501-2252.

FOR FURTHER INFORMATION CONTACT: James Hale, 907-586-7228.

SUPPLEMENTARY INFORMATION:
Background
    The Bering Sea and Aleutian Islands (BSAI) and Gulf of Alaska (GOA) 
groundfish FMPs and their implementing regulations govern the sablefish 
fisheries in Federal waters off Alaska. The FMPs were prepared by the 
Council under the authority of the Magnuson Fishery Conservation and 
Management Act (Magnuson Act). The Northern Pacific Halibut Act of 1982 
(Halibut Act) authorizes the Council to develop and NMFS to implement 
regulations to allocate halibut fishing privileges among U.S. 
fishermen.
    Under these authorities, the Council developed the IFQ Program, a 
limited access system to manage the fixed gear Pacific halibut and 
sablefish fisheries. NMFS approved the IFQ Program in November 1993, 
and fully implemented it beginning in March 1995. The Magnuson Act and 
the Halibut Act authorize amendments to the IFQ Program as necessary to 
conserve and manage these fisheries. The proposed amendments to the 
FMPs and the IFQ Program would increase flexibility of QS use--a change 
that is analyzed along with the status quo alternative in the draft EA/
RIR/IRFA prepared by the Council in February 1996.
Increased Flexibility of QS Use
    The IFQ Program assigns QS to vessel categories specified by length 
overall (LOA) and authorization to process IFQ species (freezer 
vessels) or not (catcher vessels): Category A--freezer vessels of any 
length; Category B--catcher vessels greater than 60 ft (18.3 m) LOA; 
Category C--for sablefish, catcher vessels less than or equal to 60 ft 
(18.3 m) LOA, and for halibut, catcher vessels less than or equal to 60 
ft (18.3 m) but greater than 35 ft (10.7 m) LOA; or Category D--for 
halibut, catcher vessels less than or equal to 35 ft (10.7 m) LOA. 
Current regulations at Sec. 676.22(a) require that IFQ be fished only 
on vessels in the category to which the pertinent QS have been 
assigned. An exception to this rule allows category B, C, or D IFQ to 
be fished on a category A freezer vessel provided its LOA is consistent 
with the vessel category of the IFQ being fished and it neither 
processes any species of fish nor fishes category A IFQ concurrently 
with the use of category B, C, or D IFQ (Sec. 676.22(i)(3)). NMFS has 
published a proposed rule that would amend the regulations to allow IFQ 
fishermen to process groundfish on board their vessels under certain 
circumstances (61 FR 14547, April 2, 1996).
    The Council prohibited QS transfer across vessel categories to 
preserve the

[[Page 32768]]

social and cultural character of the small boat fisheries prior to 
limited access. Public discussions leading up to IFQ Program 
implementation elicited substantial concern that harvesting privileges 
might ultimately transfer to owners of large vessels and disenfranchise 
owners of small vessels. The Council responded to these concerns in 
part by establishing vessel categories and prohibiting transfer and use 
of QS and IFQ across those categories. Thus, these transfer 
restrictions were intended to prevent consolidation of harvesting 
privileges among owners of large vessels.
    Concern over the potential for excessive consolidation also led to 
the Modified Block Program implemented under Amendments 31 and 35 to 
the BSAI and GOA FMPs respectively and IFQ Program amendments published 
at 60 FR 51135 (October 7, 1994). The Modified Block Program requires 
an initial allocation of QS that represents less than 20,000 lb (9.1 
mt) of IFQ in the year prior to the implementation year (1994) to be 
issued as an indivisible block that can be transferred in its entirety 
only.
    During the first year of fishing under the IFQ Program in 1995, IFQ 
fishermen and their representatives reported to the Council that the 
prohibition against using or transferring QS across vessel categories 
limited their ability to improve the profitability of their operations. 
Many fishermen reported that they had received QS that represented far 
fewer pounds than their recent catch history prior to the IFQ program. 
Small boat fishermen reported the scarcity of medium- and large-size QS 
blocks (5,000 lb (2.3 mt)) available to smaller vessels and 
requested that the Council enable them to purchase shares from QS 
holders in larger vessel size categories. Also, category B vessel 
operators reported difficulties in using or marketing small category B 
blocks and requested the opportunity either to downsize operations or 
to sell smaller QS blocks to owners of smaller vessels.
    This action would address the above concerns by allowing QS 
initially assigned to a larger vessel category to be used on smaller 
vessels, while continuing to prohibit the upgrading of QS or IFQ to 
larger vessel categories. Under the proposed amendments, QS would 
continue to be assigned to vessel categories by existing criteria at 
Sec. 676.20(c)(1)-(9) and would retain original vessel category 
assignments in perpetuity. However, the proposed amendments would allow 
halibut and sablefish QS and IFQ assigned to vessel category B to be 
used on vessels of any size; halibut QS assigned to vessel category C 
likewise could be used on vessels of categories C and D. The proposed 
amendments would continue to prohibit the use of QS and IFQ on larger 
vessel categories than originally assigned.
    In taking final action on this proposal, the Council elected to 
diminish the effect the proposed amendment would have in IFQ regulatory 
areas 2C for halibut and east of 140 deg. W. long. for sablefish. In 
these regulatory areas the proportion of QS assigned to vessel category 
B is significantly smaller than the amount assigned to other vessel 
categories. Excessive consolidation of QS among smaller vessels in this 
region of the GOA would reduce the larger vessel fleet and thus also 
have an undesirable impact on the fisheries' socio-economic character. 
This action proposes that QS assigned to vessel category B in IFQ 
regulatory areas 2C for halibut and east of 140 deg. W. long. for 
sablefish be prohibited from use on vessels less than or equal to 60 ft 
(18.3 m) LOA except in QS blocks equivalent to less than 5,000 lb (2.3 
mt) based on the 1996 Total Allowable Catch (TAC).
    For example, an individual who holds two blocks of QS assigned to 
vessel category B in regulatory area 2C (for halibut) or east of 
140 deg. W. long. (for sablefish)--one block equivalent to 13,000 lb 
(5.9 mt) and the other equivalent to 3000 lb (1.4 mt) (according to the 
1996 TAC)--would be able to transfer the smaller QS block or use its 
resulting IFQ on catcher vessels of any size, since the block is 
equivalent to less than 5,000 lb (2.3 mt). The larger QS block, which 
would result in IFQ of more than 5,000 lb (2.3 mt), would still be 
prohibited from use on any vessel other than one in vessel category B. 
Unblocked QS of any amount assigned to vessel category B in areas 2C 
and east of 140 deg. W. long. would continue to be restricted to 
transfer or use on vessels in category B only.
    This action would provide owners of small boats with opportunities 
to acquire QS initially assigned to larger vessel categories and would 
make smaller category B blocks more marketable. The Council's intent to 
prevent excessive consolidation of QS among owners of larger vessels 
would be maintained, while providing greater economic potential for 
owners/operators of smaller boats in the IFQ fisheries. Conversely, the 
additional provision to lessen the effect of the proposed action in 
regulatory areas 2C for halibut and east of 140 deg. W. long. for 
sablefish would prevent excessive consolidation among owners of smaller 
boats in areas where category B QS are relatively few.

Classification

    Section 304(a)(1)(D) of the Magnuson Act requires NMFS to publish 
regulations proposed by a Council within 15 days of receipt of the FMP 
amendments and regulations. At this time, NMFS has not determined that 
the FMP amendments these regulations would implement are consistent 
with the national standards, other provisions of the Magnuson Act, and 
other applicable laws. NMFS, in making final determinations about the 
FMP amendments and in issuing final rules under both the Magnuson and 
Halibut Acts, will take into account the data, views, and comments 
received during the comment period.
    The Council prepared an initial regulatory flexibility analysis as 
part of the regulatory impact review, which describes the impact this 
proposed rule would have on small entities, if adopted. The amendments 
could have a significant positive impact on small vessel owners. They 
open new opportunities for owners of smaller vessels to improve the 
profitability of their operations by increasing the quota share 
holdings available for trade by 309 percent and the IFQ pounds 
available for trade by 2,547 percent. A copy of the analysis is 
available from the Council (see ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.

List of Subjects in 50 CFR Part 676

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: June 19, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set forth in the preamble, 50 CFR part 676 is 
proposed to be amended as follows:

PART 676--LIMITED ACCESS MANAGEMENT OF FEDERAL FISHERIES IN AND OFF 
OF ALASKA

    1. The authority citation for 50 CFR part 676 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq. and 1801 et seq.

    2. In Sec. 676.20, paragraph (a)(2) is revised to read as follows:

Sec. 676.20  Individual allocations.

* * * * *
    (a) * * *
    (2) Vessel categories. QS and IFQ assigned to vessel categories 
include:
    (i) Category A--QS and IFQ, which authorizes an IFQ cardholder to 
harvest and process IFQ species on a freezer vessel of any length;

[[Page 32769]]

    (ii) Category B--QS and IFQ, which authorizes and IFQ cardholder to 
harvest IFQ species on a catcher vessel of any length;
    (iii) Category C--QS and IFQ, which authorizes an IFQ cardholder to 
harvest IFQ species on a catcher vessel less than or equal to 60 ft 
(18.3 m) in length overall; and
    (iv) Category D--QS and IFQ, which authorizes an IFQ cardholder to 
harvest IFQ halibut on a catcher vessel less than or equal to 35 ft 
(10.7 m) in length overall.
* * * * *
    3. In Sec. 676.22, paragraph (a) is revised to read as follows:

Sec. 676.22  Limitations on use of QS and IFQ

    (a) The IFQ specified for one IFQ regulatory area must not be used 
in a different IFQ regulatory area. Except as provided in paragraph 
(i)(3) of this section or in Sec. 676.21(h)(1), the IFQ assigned to one 
vessel category as provided in Sec. 676.20(a) must not be used to 
harvest IFQ species on a vessel of a different vessel category. 
Notwithstanding Sec. 676.20(a)(2)(ii), IFQ assigned to vessel category 
B must not be used on any vessel less than or equal to 60 ft (18.3 m) 
in length overall to harvest IFQ halibut in IFQ regulatory area 2C or 
IFQ sablefish in the IFQ regulatory area east of 140 deg. W. long. 
unless such IFQ derives from blocked QS units that result in IFQ of 
less than 5,000 lb (2.3 mt), based on the 1996 TAC for fixed gear 
specified for the IFQ halibut fishery and the IFQ sablefish fishery in 
each of these two regulatory areas.
* * * * *
[FR Doc. 96-16078 Filed 6-20-96; 9:26 am]
BILLING CODE 3510-22-F

Complete official Federal Register PDF

FR Doc. 96-16009 National Volatile Organic Compounds Emission Standards for Architectural Coatings
[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Proposed Rules]
[Pages 32729-32746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16009]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 59

[AD-FRL-5526-3]

National Volatile Organic Compounds Emission Standards for 
Architectural Coatings

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and notice of public hearing.

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SUMMARY: The proposed standards would reduce emissions of volatile 
organic compounds (VOC) from architectural coatings. The proposed 
standards implement Section 183(e) of the Clean Air Act (CAA), as 
amended in 1990, which requires the Administrator to control VOC 
emissions from certain categories of consumer and commercial products.
    Exposure to ozone is associated with a wide variety of human health 
effects, agricultural crop loss, and damage to forests and ecosystems. 
As required by Section 183(e), the Administrator conducted a study to 
determine the potential of VOC emissions from consumer and commercial 
products to contribute to ozone levels that violate the National 
Ambient Air Quality Standards (NAAQS) for ozone and established a list 
of product categories to be regulated. Based on the criteria described 
in the study and accompanying report, the EPA determined that VOC 
emissions from architectural coatings should be reduced. Therefore, the 
EPA is proposing standards to reduce ozone-causing VOC emissions from 
these coatings. The proposed standards would reduce annual emissions of 
VOC by 106,000 tons representing a 20 percent reduction from 1990 
levels.
    The proposed rule is centered around requiring VOC content levels 
for 55 individual architectural coating categories. When promulgated 
these requirements on manufacturers and importers of architectural 
coatings are anticipated to take effect on April 1, 1997. This 
rulemaking is on an expedited schedule, with a relatively short public 
comment period.
    Following proposal of this rule, the EPA plans to participate in a 
joint study with the architectural coatings industry. This study will 
focus on the feasibility of adopting more stringent VOC requirements in 
the future.

DATES: Comments. Comments pertaining to the proposed rule must be 
received on or before August 30, 1996.
    Public Hearing. A public hearing will be held, if requested, to 
provide interested persons an opportunity for oral presentation of 
data, views, or arguments concerning the proposed standards for 
architectural coatings. If anyone contacts the EPA requesting to speak 
at a public hearing concerning this proposed rule by July 18, 1996, a 
public hearing will be held on July 30, 1996, beginning at 10:00 a.m. 
Persons interested in attending the hearing should notify Ms. Kim Teal, 
(919) 541-5580 by July 18, 1996, to verify that a hearing will occur 
and for notification of the location of the hearing. The record for the 
public hearing will remain open for 30 days after completion of the 
hearing to provide an opportunity for the submission of rebuttal and 
supplementary information.
    Persons wishing to present oral testimony concerning this proposed 
rule must contact Ms. Kim Teal at the EPA by July 18, 1996. Ms. Teal 
may be contacted at the following address: Coatings and Consumer 
Products Group (MD-13), U.S. Environmental Protection Agency, Research 
Triangle Park, North Carolina 27711, telephone number (919) 541-5580, 
FAX number (919) 541-5689.

ADDRESSES: Comments. Comments should be submitted (in duplicate) to: 
Air and Radiation Docket and Information Center (6102), Attention: 
Docket No. A-92-18, U.S. Environmental Protection Agency, 401 M Street 
SW, Washington, DC 20460. Comments and data may also be submitted 
electronically by sending electronic mail (e-mail) to: a-and-r-
[email protected]. Electronic comments must be submitted as an 
ASCII file avoiding the use of special characters and any form of 
encryption. Comments and data will also be accepted on disks in 
WordPerfect in 5.1 file format or ASCII file format. All comments and 
data in electronic form must be identified by the docket number A-92-
18. No Confidential Business

[[Page 32730]]

Information (CBI) should be submitted through e-mail. Electronic 
comments on this proposed rule may be filed online at many Federal 
Depository Libraries.
    Docket. The proposed regulatory text and other materials related to 
this rulemaking, excepting any information claimed as CBI, are 
available for review in a public record. This record has been 
established for this rulemaking under docket number A-92-18. The 
docket, including paper versions of electronic comments, is available 
for inspection from 8:00a.m. to 5:30p.m. Monday-Friday, excluding legal 
holidays. The docket is located at the EPA's Air and Radiation Docket 
and Information Center, Room M1500, 1st Floor, 401 M St. S.W., 
Washington, D.C. 20460, telephone (202) 260-7548, FAX (202) 260-4400. A 
reasonable fee may be charged for copying.
    Background Information Document. The background information 
document (BID) and other documents supporting the proposed standards 
may be obtained from the docket or from the U.S. EPA Library (MD-35), 
Research Triangle Park, North Carolina 27711, telephone number (919) 
541-2777. Please refer to ``Architectural Coatings--Background for 
Proposed Standards,'' EPA-453/R-95-009a.

FOR FURTHER INFORMATION CONTACT: For information concerning the 
proposed standards, contact Ms. Ellen Ducey at (919) 541-5408, Coatings 
and Consumer Products Group, Emission Standards Division (MD-13), U.S. 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711.

SUPPLEMENTARY INFORMATION:

Regulated entities

    Entities potentially regulated by this action are those who have 
the potential to supply products which emit VOC and are listed in 
Sec. 183(e) of the CAA in the following regulated categories and 
entities:

------------------------------------------------------------------------
              Category                  Examples of regulated entities  
------------------------------------------------------------------------
Manufacturer........................  Source that produces, packages, or
                                       repackages architectural coatings
                                       for sale or distribution in the  
                                       U.S.                             
Importers...........................  Source that brings architectural  
                                       coatings from a location outside 
                                       the U.S. into the U.S. for sale  
                                       or distribution within the U.S.  
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that the EPA is now 
aware could potentially be regulated by this action. Other types of 
entities not listed in the table could also be regulated. To determine 
whether your facility is regulated by this action, you should carefully 
examine the applicability criteria in Sec. 59.400 of the rule. If you 
have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding
FOR FURTHER INFORMATION CONTACT section of this preamble.
    The regulatory text of the proposed rule is not included in this 
Federal Register notice, but is available in Docket No. A-92-18 (see 
ADDRESSES for information about the docket). The proposed regulatory 
language is also available on one of the EPA's Technology Transfer 
Network (TTN) electronic bulletin boards.
    The TTN provides information and technology exchange in various 
areas of air pollution control. The TTN contains 18 electronic bulletin 
boards, and the following five items can be obtained through the Clean 
Air Act Amendments bulletin board in the section called Recently Signed 
Rules:
    (1) ``FACT SHEET: Proposed Air Regulations for Architectural 
Coatings (1995).''
    (2) Federal Register notice for this preamble: ``National Volatile 
Organic Compound Emission Standards for Architectural Coatings'' (this 
document).
    (3) Regulatory text for the proposed rule.
    (4) ``Architectural Coatings--Background for Proposed Standards,'' 
(EPA-453/R-95-009a).
    (5) Information Collection Request document for the proposed 
standards: ``Reporting and Recordkeeping Requirements for National VOC 
Emission Standards for Architectural Coatings,'' November 29, 1995.
    The TTN is accessible 24 hours per day, 7 days per week except 
Monday morning from 8:00 a.m. to 12:00 p.m. when the system is down for 
maintenance and back up. The service is free, except for the cost of a 
phone call. Dial (919) 541-5742 for up to a 14,400 bits per second 
(bps) modem. If more information on the TTN is needed, call the help 
desk at (919) 541-5384.
    The information presented in this preamble is organized as follows:

I. Background
    A. Clean Air Act Requirements
    B. Regulatory Background
    C. Supporting Documentation for the Proposed Standards
II. Summary of Proposed Standards
    A. Applicability of the Standards
    B. Regulated Entities
    C. VOC Levels
    D. Compliance Requirements
    E. Labeling Requirements
    F. Recordkeeping
    G. Reporting
    H. Test Methods
    I. Variance
III. Summary of Impacts
    A. Environmental Impacts
    B. Energy Impacts
    C. Cost and Economic Impacts
    D. Cost-Effectiveness
IV. Rulemaking Decision Process
    A. Legislative Authority
    B. Regulatory Negotiation Procedure
V. Rationale
    A. Applicability
    B. Regulated Entities
    C. Selection of Best Available Controls (BAC)
    D. Exceedance Fee Approach
    E. Low Volume Categories/Exemption
    F. Special Provisions
    G. Labeling and Public Information Requirements
    H. Selection of the Recordkeeping and Reporting Requirements
    I. Test Methods
    J. Alternative Regulatory Approaches
    K. Solicitation of Comments
VI. Future Phase Under Consideration
VII. Administrative Requirements
    A. Public Hearing
    B. Executive Order 12866
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates
    F. Enhancing the Intergovernmental Partnership under Executive 
Order 12875.

I. Background

A. Clean Air Act Requirements

    Exposure to ground-level ozone is associated with a wide variety of 
human health effects, agricultural crop loss, and damage to forests and 
ecosystems. The most thoroughly studied health effects of exposure to 
ozone at elevated levels during periods of moderate to strenuous 
exercise are the impairment of normal functioning of the lungs, 
symptomatic effects, and reduction in the ability to engage in 
activities that require various levels of physical exertion. Typical 
symptoms associated with acute (one to three hour) exposure to ozone at 
levels of 0.12 parts per million (ppm) or higher under heavy exercise 
or 0.16 ppm or higher under moderate exercise include cough, chest 
pain, nausea, shortness of breath, and throat irritation.
    Ground-level ozone, which is a major component of ``smog,'' is 
formed in the atmosphere by reactions of VOC and oxides of nitrogen 
(NOX) in the presence of sunlight. In order to reduce ground-level 
ozone concentrations, emissions of VOC and NOX must be reduced.
    Section 183(e) of the CAA addresses VOC emissions from the use of 
consumer and commercial products. It requires the EPA to study VOC

[[Page 32731]]

emissions from the use of consumer and commercial products, to report 
to Congress the results of the study, and to list for regulation 
products accounting for at least 80 percent of VOC emissions resulting 
from the use of such products in ozone nonattainment areas. 
Accordingly, in the March 23, 1995 Federal Register (60 FR 15264), the 
EPA announced the availability of the ``Consumer and Commercial 
Products Report to Congress'' (EPA-453/R-94-066-A), and published the 
consumer and commercial products list and schedule for regulation. 
Architectural coatings are in the first group of products to be 
regulated by March 1997. This listing and prioritization are not final 
Agency actions, and the EPA requests comment on the placement of 
architectural coatings on the list and the priority assigned to these 
coatings.

B. Regulatory Background

    Architectural coatings are included under the definition of 
consumer and commercial products because the definition under Section 
183(e) of the CAA specifically includes paints, coatings, and solvents. 
Section 183(e) of the CAA requires that the first group of consumer and 
commercial products (i.e., those with highest priority for regulation) 
be regulated within two years after publication of the regulatory 
schedule. As mentioned previously, architectural coatings are in the 
first group of consumer and commercial products to be regulated and, 
therefore, must be regulated by March 1997.
    Because preliminary information indicated that the architectural 
coatings category is a sizable contributor to ozone levels in 
nonattainment areas, it seemed probable that this category would be a 
high priority for regulation. In 1992, the EPA initiated a regulatory 
negotiation to address architectural coatings (see section IV.B for a 
discussion of the negotiation). Throughout this process, the EPA 
maintained that if the final results of the study of consumer and 
commercial products varied from preliminary estimates, the EPA's 
decision to include architectural coatings in the first group of 
categories to be regulated could change. The study indicated that the 
VOC emissions from consumer and commercial products represent 
approximately 28 percent of all manmade VOC emissions. The 
architectural coatings category is one of the largest consumer and 
commercial product categories, accounting for about nine percent of the 
emissions of VOC from all consumer and commercial products. Based on 
evaluation of criteria developed under Section 183(e) of the CAA, 
architectural coatings were placed in the first group of products to be 
regulated. The criteria that contribute to the prioritization of 
architectural coatings in the first group of consumer and commercial 
products to be regulated include the availability of alternatives, the 
cost-effectiveness of controls, and the quantity of VOC emissions in 
ozone nonattainment areas. Further details about the criteria used to 
prioritize consumer and commercial product categories for regulation 
are available in the report to Congress.
    Architectural coating regulations are already in place in a number 
of States, and many other States are in the process of developing 
regulations. For the companies that market architectural coatings in 
different States, trying to fulfill the differing requirements of State 
rules has created administrative, technical, and marketing problems. A 
Federal rule is expected to provide some degree of consistency, 
predictability, and administrative ease for the industry. In addition, 
State representatives have recommended that the EPA develop and 
implement Federal control measures. This is because a national rule 
helps reduce compliance problems associated with noncompliant coatings 
being transported into nonattainment areas from neighboring areas and 
neighboring States. Also, a national rule will enable States to obtain 
needed emission reductions from this sector in the near term, without 
having to expend their limited resources to develop similar rules in 
each State.

C. Supporting Documentation for the Proposed Standards

    The architectural coating BID (EPA 453/R-95-009a) contains some 
supporting documentation for this proposal. It contains a product 
category description, an industry profile, a discussion of control 
measures, and a description of the expected emission reductions. Other 
supporting information for this proposed regulation includes existing 
State regulations, regulatory negotiation presentation material, 
meeting summaries, survey data, technical memoranda including the 
economic impact analysis, and the report to Congress on consumer and 
commercial products. This information is contained in the docket and is 
available to the public as described above.

II. Summary of Proposed Standards

    The proposed standards are summarized below. The rationale for the 
regulatory decisions made in developing these standards is provided in 
section V.

A. Applicability of the Standards

    The provisions of the proposed rule apply to all architectural 
coatings that are manufactured or imported for sale or distribution in 
the United States on or after April 1, 1997. An architectural coating 
is defined in the proposed rule as ``a coating recommended for field 
application to stationary structures and their appurtenances, to 
portable buildings, to pavements, or to curbs.''
    Category definitions in the proposed rule, such as ``exterior 
flats'' or ``industrial maintenance coatings,'' are a subset of 
architectural coatings. A coating must first meet the general 
definition of an architectural coating to be subject to the provisions 
of the proposed rule.
    The proposed standards do not apply to the following architectural 
coatings:
    (1) Coatings manufactured exclusively for sale outside the United 
States;
    (2) Coatings manufactured or imported prior to April 1, 1997;
    (3) Coatings supplied in nonrefillable aerosol containers;
    (4) Coatings that are collected and redistributed at community-
based paint exchanges; and
    (5) Coatings sold in containers with capacities of 1 liter or less.

B. Regulated Entities

    Regulated entities in this proposal are limited to architectural 
coating manufacturers and importers as defined below.
    Architectural coating importer (or importer) means a company, 
group, or individual that brings architectural coatings from a location 
outside the United States into the United States for sale or 
distribution within the United States.
    Architectural coating manufacturer (or manufacturer) means a 
company, group, or individual that produces, packages, or repackages 
architectural coatings for sale or distribution in the United States. A 
company, group, or individual that repackages architectural coatings as 
part of a community-based paint exchange and does not produce, package, 
or repackage any other architectural coatings for sale or distribution 
in the United States is excluded from this definition.

C. VOC Levels

    The proposed rule is centered around VOC content levels for 55 
individual architectural coating categories. Manufacturers and 
importers must limit the VOC content of subject coatings to the VOC 
levels in Table 1, which are effective April 1, 1997 and thereafter.
    As shown in Table 1, the categories of low solids stains and low 
solids wood

[[Page 32732]]

preservatives have different units for the VOC content level. The VOC 
content for these categories is expressed in grams of VOC per liter of 
coating thinned to the manufacturer's maximum recommendation, including 
water and exempt compounds. This is because, unlike conventional 
coatings, which achieve a film-build, these stains and wood 
preservatives are not applied to achieve a certain thickness of solid 
film, but rather to affect penetration of the stain or wood 
preservative. For these low solids coatings, the assumption that 
coverage of the coating is dependent on the volume of solids in the 
coating is not valid. The volume of the coating (which must include at 
least 50 percent water in the volatile fraction) determines coverage. 
For this reason, the VOC content level is determined ``including water 
and exempt compounds.''
    A coating is subject to the VOC content level for the category in 
Table 1 that describes the coating's recommended use, appearance 
characteristics, and/or resin type. If a coating meets the definition 
of an architectural coating and is subject to the proposed rule, it 
must be identified by the manufacturer or importer to be defined under 
at least one of the categories listed in Table 1. If a coating does not 
meet any of the other category definitions besides ``flat'' or 
``nonflat,'' it would be categorized in either the flat or nonflat 
category depending on its gloss level. These default categories 
generally require lower VOC content levels than other categories in 
Table 1. If a coating is marketed in more than one of the listed 
coating categories, compliance is required with the lowest applicable 
VOC content level except for the following:
    (1) High temperature coatings that may also be suitable for use as 
metallic pigmented coatings are subject only to the VOC level for high 
temperature coatings;
    (2) Lacquer sanding sealers that may also be suitable for use as 
sanding sealers in conjunction with clear lacquer topcoats are subject 
only to the VOC level for lacquer sanding sealers;
    (3) Metallic pigmented coatings that may also be suitable for use 
as roof coatings, industrial maintenance coatings, or primers are 
subject only to the VOC level for metallic pigmented coatings;
    (4) Shellacs that may be marketed as primers, sealers, or 
undercoaters are subject only to the VOC level for shellacs;
    (5) Fire-retardant/resistive coatings that may be suitable for use 
as any other architectural coatings are subject only to the VOC level 
for fire-retardant/resistive coatings;
    (6) Pretreatment wash primers that may be suitable for use as 
primers are subject only to the VOC level for pretreatment wash 
primers; and
    (7) Industrial maintenance coatings that may also be primers are 
subject only to the VOC level for industrial maintenance coatings.
    These exceptions were developed to clarify the applicable VOC level 
in situations where inherent overlap exists between category 
definitions, and the least stringent VOC level is meant to apply.
    Manufacturers or importers of ``recycled'' architectural coatings 
collect, reprocess, and market coatings that contain a percentage of 
post-consumer coating product. Such use is environmentally beneficial 
because it reduces the magnitude of waste from architectural coatings. 
Manufacturers and importers of recycled coatings are given the option 
of calculating an ``adjusted VOC content.'' The ``adjusted VOC 
content'' provides some credit for the amount of post-consumer material 
contained in the coating. The EPA is providing this credit to encourage 
recycling of unused paint. The ``adjusted VOC content'' is determined 
by multiplying the percentage of post-consumer content of the coating 
by the VOC content of the recycled coating, which can then be 
subtracted from the VOC content of the recycled coating. An explicit 
equation for the calculation is in the proposed rule.

D. Compliance Requirements

1. Compliance Dates
    The compliance date for all manufacturers and importers is April 1, 
1997. In draft versions of the proposed rule, the compliance date for 
small manufacturers and small importers was January 1, 1998. Small 
manufacturers and small importers were defined as manufacturers and 
importers with annual gross revenues in 1995 of less than $10 million, 
and total gross revenues in 1995 from sales of all products of less 
than $50 million. This extra compliance time has been eliminated from 
the proposed rule due to the inclusion of less stringent VOC levels for 
some of the largest categories of architectural coatings, and the 
inclusion of a variance provision described in sections II.I and V.F. 
These provisions are expected to provide sufficient compliance 
flexibility needed by small manufacturers. However, the EPA requests 
comment on whether the final rule should include the small manufacturer 
compliance extension. If such a provision were included, the VOC 
reduction achieved by the proposed rule in 1997 would be reduced from 
20 percent to approximately 15 percent. The EPA also requests comment 
on the adequacy of the compliance lead time for all affected sources. 
Comments supporting extra compliance time for all manufacturers and 
other affected sources should include supporting data providing 
economic and/or technological justification.
2. Compliance Methods
    Compliance with the VOC content levels in the proposed rule is to 
be determined on a coating-by-coating basis. To determine compliance 
with the VOC levels in Table 1, manufacturers or importers would first 
be required to determine the coating category, the applicable VOC 
level, and the VOC content for each coating product manufactured or 
imported. An initial report is required for all manufacturers and 
importers subject to the rule. Other labeling, recordkeeping, and 
reporting requirements are summarized in sections II.E, II.F, and II.G, 
respectively. Test methods to be used to determine VOC content of the 
coatings are described in section II.H.

E. Labeling Requirements

    With the exception of low solids stains and low solids wood 
preservatives, containers of all subject coatings must bear labels or 
lids that include the following information:
    (1) The date of manufacture or a code indicating the date of 
manufacture;
    (2) The maximum VOC content of the coating in the container, 
displayed in units of grams of VOC per liter of coating thinned to the 
manufacturer's maximum recommendation, excluding the volume of any 
water, exempt compounds, or colorant added to tint bases; and
    (3) A statement of the manufacturer's recommendation regarding 
thinning with organic solvents. Containers of low solids stains and low 
solids wood preservatives must bear labels or lids that include the 
following information:
    (1) The date of manufacture or a code indicating the date of 
manufacture;
    (2) The maximum VOC content of the coating in the container, 
displayed in units of grams of VOC per liter of coating thinned to the 
manufacturer's maximum recommendation, including the volume of any 
water and exempt compounds; and
    (3) A statement of the manufacturer's recommendation regarding 
thinning with organic solvents.

[[Page 32733]]

    Containers of industrial maintenance coatings, in addition to the 
labeling requirements for all subject coatings, must include on the 
container label or lid the phrase ``NOT INTENDED FOR RESIDENTIAL USE.''
    Containers of recycled architectural coatings, in addition to the 
labeling requirements for all subject coatings, must include on the 
label or lid a statement of the percentage, by volume, of post-consumer 
coating content. This prerequisite must be met to be able to determine 
compliance using an ``adjusted VOC content.''
    The EPA considered requiring the following statement on every label 
or lid of architectural coatings: ``This architectural coating contains 
volatile organic compounds that will be emitted to the ambient air 
during use and, under certain environmental conditions, these compounds 
may contribute to the formation of ground-level ozone, an air pollutant 
and major component of urban smog.'' As an alternative to this 
requirement, the EPA is considering undertaking an educational effort 
directed at informing the public about the role of VOC emissions from 
architectural coatings in the formation of ground-level ozone. The EPA 
requests comment on whether an outreach effort would be as effective an 
approach as an educational statement on each container of architectural 
coating.
    The EPA is aware that many architectural coating labels currently 
display information on the amount of coverage that the coating is 
expected to provide. The EPA is considering requiring this information 
to be displayed on the labels or lids of all architectural coating 
containers. Both coating coverage and VOC content information are 
necessary to allow a consumer to estimate and compare the expected 
resulting VOC emissions from application of different coatings to 
complete a particular job. This information on coating coverage would 
allow consumers to make an informed choice between coatings. The EPA 
requests comment on the feasibility of requiring coverage information 
to be displayed on the label or lid of all architectural coating 
containers subject to this rule.

F. Recordkeeping

    Except for recycled coatings, there are no proposed recordkeeping 
requirements. For recycled coatings, manufacturers and importers must 
keep the following records for three years:
    (1) The minimum percentage of post-consumer coating content for 
each recycled coating product;
    (2) Calculation of an adjusted VOC content that accounts for the 
post-consumer coating content credit;
    (3) The volume of coating received for recycling;
    (4) The volume of coating received that was unusable;
    (5) The volume of virgin materials; and
    (6) The volume of the final recycled coating manufactured.

G. Reporting

    Manufacturers and importers of coatings subject to the proposed 
standard must file an initial report. The initial report must be 
submitted by April 1, 1997 or within 180 days after becoming subject to 
the requirements of the proposed standard, whichever is later. The 
initial report must include the following information:
    (1) Name and mailing address of the manufacturer or importer; and
    (2) A list of categories from Table 1 in which coatings are 
manufactured or imported.
    For recycled coatings, manufacturers and importers must submit an 
annual report by February 1 of the calendar year following the year in 
which the coatings are introduced into commerce that includes the 
following:
    (1) The volume of coating received for recycling;
    (2) The volume received that was unusable;
    (3) The volume of virgin material used;
    (4) The volume of the final recycled product; and
    (5) The minimum post-consumer content of the coating.
    Reporting requirements for the variance application are discussed 
in II.I.
    In cases where a code is used to indicate the date of manufacture, 
all manufacturers and importers of architectural coatings must file an 
explanation of each date code displayed on coating containers by April 
1, 1997. Explanations of new codes must be filed within 30 days after 
their first use.

H. Test Methods

    For purposes of determining compliance with this rule, the VOC 
content of each coating product manufactured or imported must be 
determined using the EPA's Reference Method 24, ``Determination of 
Volatile Matter Content, Water Content, Density, Volume Solids, and 
Weight Solids of Surface Coatings,'' found in 40 CFR part 60, appendix 
A. Analysis of waterborne coating VOC content determined by Reference 
Method 24 must be adjusted as described in section 4.4 of Method 24.
    Manufacturers and importers may use alternate methods for 
determining coating VOC content if it can be demonstrated to the 
Administrator's satisfaction that the method provides results 
equivalent to or more accurate than those obtained using Reference 
Method 24.

I. Variance

    The proposed rule also allows manufacturers and importers of 
architectural coatings to submit a written application to the 
Administrator requesting a variance if, for reasons beyond their 
reasonable control, they cannot comply with the requirements of the 
proposed rule. The application must include the following information:
    (1) The specific grounds for which the variance is sought;
    (2) The proposed date(s) by which compliance with the provisions of 
the rule will be achieved; and
    (3) A compliance report reasonably detailing the method(s) by which 
compliance will be achieved.
    Upon receipt of the variance application, the Administrator will 
hold a public hearing to determine whether, under what conditions, and 
to what extent, a variance from the requirements of the proposed rule 
is necessary and will be permitted.
    The Administrator may grant a variance if the following criteria 
are met:
    (1) By complying with the proposed rule, the applicant would bear 
unreasonable economic hardship;
    (2) The public benefit of avoiding hardship to the applicant 
outweighs the public interest in any increased emissions or air 
contaminants that would result from issuing the variance; and
    (3) The proposed compliance schedule can be reasonably implemented, 
and compliance will be achieved as expeditiously as possible.
    The approved variance order will designate a final compliance date 
and a condition that specifies increments of progress necessary to 
assure timely compliance. A variance shall end immediately upon the 
failure (of the party to whom the variance was granted) to comply with 
any term or condition of the variance.

III. Summary of Impacts

A. Environmental Impacts

    This section contains a discussion of the incremental increase or 
decrease in air pollution, water pollution, and solid waste generation 
that would result from implementing the proposed standards.

[[Page 32734]]

1. Air Pollution Impacts
    The proposed standards would reduce annual nationwide emissions of 
VOC from the use of architectural coatings by an estimated 96,000 
megagrams (Mg) (106,000 tons) beginning in 1997. These reductions are 
compared to the 1990 baseline emission estimate of 480,000 Mg (530,000 
tons) and represent emissions that would occur in the absence of the 
proposed standards.
    Because the VOC emissions from architectural coatings include a 
large class of compounds that are expected to be associated with a wide 
spectrum of health effects, reductions in VOC from architectural 
coatings would result in a decrease in the associated health effects.
    Because many regulated VOC species are also hazardous air 
pollutants (HAP), the proposed standards are expected to reduce some 
HAP emissions from the use of architectural coatings. An increase in 
the use of HAP in product formulation is not expected to occur as a 
result of the proposed standards. Data on speciated VOC content from 
the VOC Emissions Inventory Survey show no pattern of higher HAP 
concentrations in lower VOC formulations.
2. Water and Solid Waste
    The major compliance method for this rule will be the use of 
compliant coatings. No adverse solid waste impacts are anticipated from 
compliance with this rule. It is not expected that the disposal of 
coatings as solid waste will increase as a result of this rule. In 
fact, because the compliant (higher solids) coatings are more 
concentrated, fewer containers will require disposal when the same 
volume of solids is applied.
    Some provisions in this proposed rule have the potential to reduce 
the amount of coating discarded as solid waste. Recycling of coatings 
may be encouraged through two provisions. The rule includes a provision 
that allows an ``adjusted VOC content'' to be calculated for recycled 
coatings for compliance purposes. This adjustment essentially allows a 
higher VOC content standard for coatings that contain post-consumer 
coating. The rule also exempts any coatings distributed through 
community-based paint exchanges.
    In cases where conversion from solventborne to waterborne coatings 
is the method used to achieve compliance, an increase in wastewater 
discharge may occur if waste waterborne coatings are discharged to 
publicly owned treatment works.

B. Energy Impacts

    No adverse energy impacts are anticipated from compliance with this 
rule. No add-on controls are required.

C. Cost and Economic Impacts

    By establishing a set of product-specific levels for VOC content, 
the proposed regulations have cost implications for manufacturers and 
consumers of the affected products. In 1997, manufacturers of 
architectural coatings that do not meet the VOC levels in Table 1 will 
be required to reformulate products or remove products from the market 
(or participate in an alternative compliance mechanism such as an 
exceedance fee). It is presumed that manufacturers will choose the 
option that is most advantageous to them, but each option imposes 
costs, some of which will be passed on to other members of society 
(consumers) in the form of higher prices and some of which will be 
borne directly by the manufacturers.
    The cost for reformulating noncompliant products depends on the 
level of effort required to develop a new product (e.g., research and 
development and market testing expenditures) and how these expenditures 
are incurred over time. Data on level of effort were provided to the 
regulatory negotiation committee (see section IV.B for discussion of 
the negotiation) for prototype reformulations, from which an annualized 
cost estimate of approximately $17,772 (in 1991 dollars) per 
reformulation was computed. This cost is assumed to be independent of 
the annual sales volume of the product. Other costs and cost savings 
associated with reformulation are likely, but could not be quantified. 
Unquantified costs include material cost changes and changes in 
disposal costs.
    An economic impact analysis of the proposed regulatory requirements 
was performed. Potential cost, price, and output effects for the 
architectural coatings industry were examined for the proposed table of 
VOC levels. The economic analysis also evaluated the option of 
utilizing an exceedance fee, which is an alternative compliance 
mechanism that is discussed in detail in section V.D. However, the 
analysis did not consider the impact of any variances or low volume 
exemptions that may be granted to reduce impacts.
    The cost analyses performed were based on data from the 1990 VOC 
Emissions Inventory Survey. These survey data represented approximately 
75 percent of the total volume of architectural coating products 
produced in 1990. For the products in the survey population, the 
estimated average annualized cost, if all products exceeding the VOC 
levels were reformulated to meet the standard, is $260 per ton of VOC 
emissions reduction (in 1991 dollars). This value is extrapolated to 
the national population for the cost and economic analysis.
    With exceedance fees as an option, it was estimated that 
manufacturers would choose to pay fees for approximately 12 percent of 
products instead of incurring reformulating costs or exiting the market 
in 1997. These products only account for about 2 percent of industry 
output, so the foregone emissions reduction by allowing the fee is less 
than 0.8 percent (2,308 tons) of estimated baseline emissions. However, 
the fee reduces national reformulation costs by roughly 50 percent. 
Thus, it is anticipated that the exceedance fee provision could allow 
significant cost savings while sacrificing little in the way of 
emissions reduction.
    The estimated market effects from the proposed standards are 
relatively slight. In 1997, approximately one million liters of 
architectural coating products, accounting for less than one-tenth of 
one percent of industry product volume, are projected to withdraw from 
the market. Price effects in each market ranged from no effect to an 
increase of less than two cents per liter, which is still less than a 
one percent increase of the baseline price. Average price and quantity 
effects across all market segments were each less than one-tenth of one 
percent of baseline values.
    Although relatively little product volume is projected to be 
withdrawn or subject to an exceedance fee, the remaining volume is 
subject to reformulation and bears the associated cost. The estimated 
cost to society of the regulation is approximately $25.0 million per 
year (evaluated in 1991 dollars, excluding reporting and recordkeeping 
costs, and costs to the EPA). These cost estimates amount to roughly 
0.4 percent of baseline revenues for the industry. With the exceedance 
fee alternative compliance mechanism, the estimated annual cost 
decreases to $13 million, which equates to a savings of $12 million.
    Resource constraints preclude an evaluation of foreign trade 
impacts. However, according to a 1992 study by SRI International, 
importers accounted for less than one percent of total coating sales 
volume in 1990. Due to importers' small market presence and the lack of 
detailed product data on imported coatings, importers have not been 
included in the cost and economic impacts analysis. However, all of the

[[Page 32735]]

flexible compliance options that are available for manufacturers are 
also available for importers. The EPA solicits comment on the potential 
cost and economic impacts of this rule on importers.
    As discussed earlier in this section, the estimated national cost 
for the regulation is based on information developed by industry 
representatives during the regulatory negotiation. The assumption in 
estimating these costs was that coating technologies would need to be 
researched and developed in the laboratories of resin manufacturers/
suppliers and paint manufacturers in order to meet VOC requirements. 
Although the proposal is significantly less stringent than the 
potential requirements discussed during negotiations (which would have 
been implemented in three phases), the EPA has relied on these same 
reformulation cost estimates for calculating the national cost of the 
proposed rule. Given that the rule has similar VOC content requirements 
to State rules which have been enforced since 1990, the EPA believes 
the reformulation estimates used may be overstated. Since the proposed 
rule is implementing available resin technologies, the cost to comply 
for those manufacturers needing to reformulate their higher VOC 
coatings is expected to be partially reduced through the assistance of 
resin manufacturers/suppliers. Upon request, most resin suppliers are 
willing to share information and sample low VOC coating formulations 
with interested paint manufacturers, both large and small. In addition, 
another limitation in the cost data is that no distinction for 
reformulation cost is made between categories (i.e., the reformulation 
cost in one category is the same as the reformulation cost in any other 
category), or in relation to the required VOC content reduction (i.e., 
it does not distinguish between coatings at different VOC levels above 
the limit). The EPA requests comment and technical information on 
previous (since 1990) or potential reformulation costs. Commenters on 
this topic should provide detailed information specific to a given 
category and VOC content level change (e.g., total number of 
noncompliant products within each category, VOC content and sales 
information for each noncompliant product, the applicable category, and 
the estimated cost of reformulation). The EPA also requests historic 
information about product reformulations and reformulation costs in 
response to State and local architectural coating regulation. In 
addition, information is requested on any changes in variable (e.g., 
raw material) costs or disposal costs associated with manufacturing 
coatings to meet the proposed VOC levels.

D. Cost-Effectiveness

    The EPA often compares the relative cost of different measures for 
controlling a pollutant by calculating the ``cost-effectiveness'' of 
the measures. Using the EPA's traditional calculation methodology, the 
cost-effectiveness of a regulation that applies nationwide is based on 
a comparison of national costs and nationwide emission reductions. This 
comparison is expressed as the cost per Mg (or ton) of emissions 
reduced. Using social cost and emission reduction figures presented 
earlier in this section of the preamble, the nationwide cost-
effectiveness of the proposed regulation is $260 per Mg ($237 per ton).
    Alternative ways to calculate a measure of the ``cost-
effectiveness'' of the regulation have been suggested by others. One 
alternative would be to calculate cost-effectiveness on the basis of 
the nationwide cost of the regulation ($25 million for the proposed 
regulation) and the VOC reduction achieved in ozone nonattainment 
areas. The stated rationale for this approach is that cost-
effectiveness measures should be designed in a way that best represents 
the objective of the regulatory action. In this case, for example, a 
major objective, though not the only objective, of these regulations is 
the control of ozone formation in nonattainment areas. By establishing 
nationwide standards, the cost of achieving emission reductions in 
ozone nonattainment areas during the ozone seasons requires nationwide 
expenditures during all seasons of the year, including expenditures 
year-round in areas currently in attainment with the current standard. 
These nationwide emission reductions--including emission reductions 
outside of nonattainment areas and out of the ozone season--may or may 
not contribute to efforts to limit ozone in nonattainment areas, 
depending on whether they participate in ozone transport from one area 
to another.
    The proposed standard will achieve 42,341 Mg of VOC emission 
reductions in ozone nonattainment areas. Thus, the cost-effectiveness 
of the rule in limiting VOC emissions in nonattainment areas would be 
$590/Mg ($538/ton). It has been suggested that cost-effectiveness could 
also be calculated considering the seasonality of ozone formation, and 
the EPA requests comment on this approach.
    While such an approach offers a measure of the cost of emission 
reductions in nonattainment areas, the EPA sees significant drawbacks 
to this approach. First, cost-effectiveness figures would no longer 
provide a consistent basis for comparison of the relative cost of 
different control measures or regulations considered at different 
points in time. Because the number and location of nonattainment areas 
changes frequently, the initial calculation of the cost-effectiveness 
of a rule would depend upon when it was issued. The EPA believes it is 
important that cost-effectiveness be calculated in a consistent manner 
that allows for valid comparisons. Also, introducing new methodology 
would tend to make new control measures appear superficially to be less 
cost-effective than measures utilized in the past, simply because of a 
change in well-established terminology.
    Second, this alternative approach attributes all costs of the rule 
to emission reductions achieved in nonattainment areas and no cost to 
emission reductions achieved in attainment areas. By not including 
emission reductions in attainment areas, the methodology assumes that 
emission reductions in areas which attain the NAAQS for ozone have no 
value. In fact, attainment areas often contribute to pollution problems 
in nonattainment areas through the transport of emissions downwind. 
Also, emission reductions in attainment areas help to maintain clean 
air as the economy grows and new pollution sources come into existence. 
Furthermore, measures to reduce emissions of VOC often reduce emissions 
of toxic air pollutants.
    Another alternative that has been suggested would be to calculate 
not only the emission reductions but also the cost if the requirements 
applied only in ozone nonattainment areas, perhaps through issuance of 
control techniques guidelines (CTG). A request for comment and further 
information on the use of a CTG is discussed in section V(J)(2) of this 
notice.
    The EPA requests comments on the traditional and alternative 
methods discussed above to characterize the cost-effectiveness of this 
regulation.

IV. Rulemaking Decision Process

A. Legislative Authority

    Section 183(e) of the CAA gives the EPA the authority to establish 
national standards to reduce VOC emissions from architectural coatings. 
According to the CAA, regulations developed under this section shall 
require best available controls (BAC). Best available

[[Page 32736]]

controls are defined in Section 183(e)(1)(A) as follows:

    The term ``best available controls'' means the degree of 
emissions reduction that the Administrator determines, on the basis 
of technological and economic feasibility, health, environmental, 
and energy impacts, is achievable through the application of the 
most effective equipment, measures, processes, methods, systems, or 
techniques, including chemical reformulation, product or feedstock 
substitution, repackaging, and directions for use, consumption, 
storage, or disposal.

Section V.C describes the EPA's determination of BAC for the proposed 
regulation.

B. Regulatory Negotiation Procedure

1. Overview of the Regulatory Negotiation Process
    The regulatory negotiation process is an alternative to the 
traditional approach to rulemaking. Negotiations are conducted through 
an advisory committee (hereafter ``the committee'') that consists of 
representatives of the interests significantly affected by the outcome 
of the regulation (e.g., industry, States, environmental groups, and 
consumers). In this process, the EPA works closely with the members of 
the committee to develop the regulation.
    The goal of the committee is to attempt to reach consensus on 
language or issues that can be used as the basis of a proposed rule. If 
the committee fails to reach consensus, the EPA proceeds with its own 
regulatory development approach.
2. History of the Architectural Coatings Regulatory Negotiations
    The EPA recognizes that there are many issues and challenges in 
developing, proposing, and promulgating a rule for this source 
category. In early 1992, the EPA held three meetings with 
representatives of the industry (including small and large 
manufacturers), trade associations, resin suppliers, States, and 
environmental groups to discuss the potential scope of the regulation 
and issues, share information, determine data collection needs, and 
assess whether a regulatory negotiation would be appropriate for this 
industry.
    On July 16, 1992, the EPA solicited comments on its intent to form 
an advisory committee under the authority of provisions of the Federal 
Advisory Committee Act (FACA), 5 U.S.C. app. II 9(c), and the 
Negotiated Rulemaking Act (NRA), 5 U.S.C. Sections 581-590, to 
negotiate a proposed regulation for architectural coatings, referred to 
in the notice as AIM (architectural and industrial maintenance) 
coatings. The EPA held a meeting in July 1992 to discuss the 
feasibility of conducting regulatory negotiations to develop a 
regulation for architectural coatings. Based on the interest of the 
potentially affected parties and the EPA, the EPA decided to proceed 
with the regulatory negotiation process. After publishing a notice of 
establishment of the regulatory negotiation committee in the Federal 
Register on October 2, 1992 (57 FR 45597), the first official 
regulatory negotiation meeting was held in October 1992 (57 FR 45597).
    The members of the regulatory negotiation committee represented the 
affected industries, consumers, Federal agencies, State and local air 
pollution control agencies, environmental groups, and labor 
organizations. Regulatory negotiation meetings were held from October 
1992 to February 1994. During the negotiation process, it became 
evident that certain groups of committee members shared similar views 
and interests. These groups were called ``caucuses.''
    During the negotiations, most of the caucuses submitted proposed 
regulations for review by the rest of the committee. Based on elements 
from the caucus proposals and discussions, a number of ``frameworks'' 
for a potential regulation were prepared by the EPA and the facilitator 
during the more than two years of negotiation. Despite these efforts, 
the committee could not reach consensus on a regulatory framework. 
Therefore, on September 23, 1994, the negotiations facilitator notified 
each of the committee members that the regulatory negotiations were 
concluded without consensus. Following this decision, the EPA continued 
development of the rule. The EPA used the information obtained in the 
negotiations to develop the proposed rule. The proposed rule 
development was, therefore, assisted in part through the regulatory 
negotiation. Specifically, information on the volume, VOC content, and 
HAP content of coatings produced in 1990 was collected in the VOC 
Emissions Inventory Survey conducted by industry. Categories and 
definitions for architectural coatings were presented and discussed 
both in caucus meetings and meetings of the entire committee.

V. Rationale

    The following sections explain the rationale for selecting the 
proposed standards.

A. Applicability

    These proposed standards apply to all architectural coatings that 
are manufactured or imported for sale or distribution in the United 
States on or after April 1, 1997. Architectural coatings were 
determined to be a significant source of VOC emissions in nonattainment 
areas and were designated for regulation under the authority of Section 
183(e) of the CAA.
    In general, architectural coatings protect the substrates to which 
they are applied from corrosion, abrasion, decay, ultraviolet light 
damage, or the penetration of water. These coatings are recommended for 
field application to stationary structures and their interior or 
exterior appurtenances, portable buildings, pavement, and curbs. The 
definition in the proposed regulation includes the term ``field 
application'' and specifies ``stationary structures'' in order to 
distinguish architectural coatings from those coatings applied at a 
coating or recoating facility or other shop or maintenance facility.
    Some architectural coatings have specialized functions. Concrete 
form release compounds and concrete curing compounds are examples of 
architectural coatings that are used during construction, rather than 
being used for protecting or enhancing the finished structure. Fire-
retardant/resistive coatings and traffic marking coatings have 
important public safety functions. Coatings may also increase the 
aesthetic value of a structure by changing the color or texture of its 
surface. Application of architectural coatings also decreases 
maintenance costs associated with stationary structure replacement or 
repair. Input received during negotiations from committee members was 
used to take these economic, protective, safety, and aesthetic benefits 
of architectural coatings into consideration in the development of 
these proposed standards.
    The proposed standards do not apply to some types of coatings. 
There are exemptions for exported coatings, coatings manufactured or 
imported prior to April 1, 1997, coatings that are sold in 
nonrefillable aerosol containers, coatings that are collected and 
redistributed at community-based paint exchanges, and coatings that are 
sold in containers with a volume of one liter or less.
    The purpose of Section 183(e) of the CAA is to control VOC 
emissions that contribute to ozone nonattainment in the United States. 
Because exported coatings do not contribute to VOC emissions in the 
United States, and because the EPA has no legal or factual basis to 
impose VOC control measures outside the United States, coatings 
manufactured for the explicit purpose of export and which are in fact 
exported

[[Page 32737]]

are exempt from the requirements of the proposed rule. Coatings 
manufactured and imported prior to April 1, 1997 are exempted because 
the compliance date for the proposed rule is April 1, 1997. An 
exemption for coatings sold in nonrefillable aerosol containers is 
included in the proposed rule because the EPA is addressing these 
coatings separately under Section 183(e) authority. The reason is 
because aerosol paint is considered a specialty paint product and 
typically involves a specialized division within a paint company. In 
addition, it is a complex category due to the many subcategories of 
aerosol paint, and the range of options to reformulate include the 
potential to change propellant formulations.
    Community-based paint exchanges are programs in which the general 
public may drop off and pick up post-consumer architectural coatings 
(leftover paint), typically free of charge, and thereby reduce 
household hazardous waste. The exchanges occur between users and not 
manufacturers. Even though these coatings may be repackaged and the 
proposed regulatory definition of ``manufacturer'' includes 
repackagers, repackaging that occurs at community-based paint exchanges 
is specifically excluded from the definition. These programs are 
consistent with the EPA's pollution prevention policies and are 
generally considered effective in minimizing waste. Because the EPA 
wants to encourage this form of recycling, the EPA has excluded paints 
exchanged in these programs from the proposed rule.
    An exemption for products sold in containers with capacities of one 
liter or less is included in the proposed rule as means for 
manufacturers and importers to keep selected products on the market. 
Similar exemptions are included in State regulations. Due to the 
increased cost of packaging products in smaller size containers, and 
the increased bulk of multiple containers, the EPA would not expect a 
marked increase in the number of products sold in small volume 
containers as a result of the exemption. No reporting or recordkeeping 
would be required for this provision.

B. Regulated Entities

    In contrast to traditionally regulated stationary sources that emit 
VOC at a specific fixed location (e.g., a manufacturing plant), VOC 
from architectural coatings are emitted wherever the products are used. 
For this reason, regulating at the manufacturer and importer level is 
the most efficient and least burdensome method of regulating the VOC 
content of coatings, and would ultimately impact the VOC content of 
architectural coatings at the distributor and end user level.
    Regulated entities are defined under Section 183(e) to include 
processors, wholesale distributors, and those entities that supply 
manufacturers, processors, wholesale distributors, and importers. 
However, regulated entities in this proposal are limited to 
architectural coating manufacturers and importers.
    The EPA is also considering including ``processors'' as a regulated 
entity. Processors would be defined to include individuals who add 
organic thinner to the coating in a commercial setting at the point of 
application. Commercial settings would include industrial applications 
of architectural coatings. This would allow the regulation to prohibit 
an applicator from using organic solvents to thin a coating beyond the 
manufacturer's recommendation. This is a concern because if an 
applicator exceeds the maximum recommended thinning, expected VOC 
reductions may not be achieved. The EPA requests comments on this 
approach.

C. Selection of Best Available Controls (BAC)

    The primary factors considered in determining BAC were 
technological and economic feasibility, and environmental impacts. 
Other factors, such as non-air-environmental impacts (solid waste and 
water) and energy impacts, are expected to be minimal and therefore do 
not vary significantly among various VOC control levels. Health impacts 
are expected to parallel environmental impacts in terms of directional 
benefit (i.e., as the environment improves, health improves).
    The process of determining BAC for architectural coatings presented 
a new challenge for the EPA. In the past, control levels for VOC 
emissions from coatings were often established based on the ability to 
use add-on controls. For architectural coatings, the method for 
achieving VOC reduction is through reformulation, which is a pollution 
prevention technique. Reformulation could involve minor adjustments in 
coating formulation or larger adjustments involving a change in resin 
technology.
    The EPA considered many factors in evaluating economic and 
technological feasibility of VOC levels (i.e., degree of 
reformulation). These include State and local VOC requirements, VOC 
content and sales information, technical information, performance 
considerations, cost considerations, market impacts, and stakeholder 
positions.
    The discussion in section V.C.1 focuses on the general process used 
to determine categories and VOC levels that constitute BAC. The 
discussion in V.C.2 describes the selection of BAC. The determination 
of what constitutes BAC by April 1, 1997 involved consideration of what 
is economically and technologically feasible in light of the lead time 
available for compliance.
1. Process for Selection of BAC
    The process of determining BAC began with the collection of 
information from existing State and local architectural coating 
requirements. The EPA focused generally on existing categories and 
associated VOC limits in State architectural coating rules to determine 
what categories and VOC levels might constitute the degree of emissions 
reduction that represents BAC. Since California has been regulating 
architectural coatings for almost two decades and generally has the 
most stringent VOC limits in the country, some California air quality 
management district regulations were gathered and the record underlying 
these regulations was analyzed. The EPA recognizes that what is 
achievable now in California cannot necessarily be used to extrapolate 
what is achievable nationwide in 1997. Adequate consideration must be 
given to lead time, and any other factors that may influence the 
ability to apply requirements nationwide (e.g., climate 
considerations).
    After analyzing existing standards, the EPA reviewed the data from 
the Emissions Inventory Survey that was developed during the regulatory 
negotiation process. The regulatory negotiation committee developed the 
survey that was administered through an industry trade association. 
This survey accounted for roughly 75 percent of the volume of 
architectural coatings sold in 1990. The survey data included 
information on the volume and VOC content of coatings. Manufacturers 
were surveyed primarily using a system of coating categories that form 
the basis for existing rules in several California districts. The 
survey data were used to identify the minimum VOC contents needed for 
certain applications and/or resin types as well as to determine the 
feasibility of establishing lower VOC levels for various categories 
based on the distribution of coating sales with respect to different 
VOC content levels.
    The EPA also relied on technical input and information received 
during the regulatory negotiation process to

[[Page 32738]]

determine BAC. The EPA considered information that was submitted to the 
docket by coating manufacturers and other members of the general public 
during the course of the regulatory negotiations, and definitions for 
categories found in other EPA regulations. The expertise of the EPA's 
engineering staff also was used to develop the appropriate definitions 
that would minimize overlap and specify characteristics so that 
manufacturers and enforcement personnel can identify the applicable 
category for each coating on the market.
    The Emissions Inventory Survey did not provide data to answer the 
question as to whether coatings at a given VOC level can meet all the 
performance needs within a particular category. Ideally, coating 
performance data in addition to VOC content and sales data would have 
been gathered to better aid this type of determination. Collection of 
performance data, however, is complicated due to the subjective nature 
of performance requirements. ``Acceptable'' performance is difficult to 
evaluate. In evaluating potential emissions of VOC into the 
environment, acceptable performance means durable coatings with 
qualities acceptable to the consumer that would maximize the interval 
between required repaintings. These acceptable qualities can vary 
significantly depending on the consumer and the coating category. For 
example, durability might be of limited value in evaluating house paint 
since a house paint may be painted over due to extraneous factors such 
as resale of the house or redecorating long before the coating begins 
to fail. For coatings used in an industrial setting, such as high 
temperature and industrial maintenance coatings, repainting is more 
dependent on durability considerations. A variety of performance levels 
within most coating categories presently exist in the marketplace and 
will continue to exist after regulation.
    Because there is no consensus within the architectural coating 
industry on standards by which to evaluate acceptable coating 
performance, it was not obvious what performance data could be gathered 
to permit comparison. The EPA relied to some extent on input from the 
negotiation committee to determine the BAC VOC level within each 
coating category that would allow customer performance needs to be met. 
Beyond that, the EPA also relied on the survey results as support for 
its conclusions about the achievability of various VOC levels in light 
of performance needs. Although the EPA recognizes that the authority 
under Section 183(e) does not limit BAC determination to coatings 
available in the marketplace today, availability and the fact that 
customers are purchasing coatings at a particular VOC content level to 
meet their performance needs were significant factors in the EPA's BAC 
determination process.
    While low VOC coatings are available today which meet the proposed 
coating VOC limits, there continues to be debate over the performance 
characteristics and perceived limitations of low VOC architectural 
coatings. This issue was raised by some industry representatives during 
development of the proposed rule. Specifically, it has been argued that 
low VOC content levels may be counterproductive if the use of coatings 
with reduced VOC results in more coating applied, more thinners needed, 
and more frequent recoating, and consequently, more emissions. This 
argument has been made broadly, without detail as to the VOC content 
levels to which it pertains or the categories involved. The EPA is 
aware of numerous examples of low VOC systems which perform better than 
the traditional higher VOC systems and which result in less emissions. 
The EPA requests documentation, test results, or factual evidence which 
either supports or refutes claims about performance changes in coatings 
with VOC contents that comply with the proposed standards.
    In addition, the EPA relied on the background and expertise present 
within the Agency to make decisions regarding category selection and 
corresponding VOC content levels. The EPA has developed VOC standards 
and guidance documents for different sectors of the paint industry 
since 1977. The EPA has expertise in analysis of control techniques for 
coatings and in developing test methods for coatings, including the 
test method used to determine the VOC content of coatings (Method 24).
    The BAC selection process involved both selection of categories and 
determination of VOC content levels. These components are linked in a 
determination of what degree of emissions reduction represents BAC. 
Decisions to subdivide a given category into more specific 
subcategories can be a direct consequence of the VOC content levels 
under consideration. For example, the industrial maintenance coating 
category is fairly broad and encompasses many industrial coating 
applications. As the technological and economic feasibility of lower 
VOC content levels are considered for the industrial maintenance 
category, coatings within a particular application may not be able to 
meet the VOC level under consideration. Rather than establish the VOC 
level high enough to allow this particular application, the category 
can be subdivided to create another category that would then allow the 
achievable VOC content for industrial maintenance to be lower. For 
example, the ``high temperature coating'' category was created to allow 
a more stringent VOC level for the broader category of ``industrial 
maintenance coatings,'' which otherwise would have included high 
temperature coatings. Rather than raise the VOC content level for all 
the industrial maintenance coatings to ensure that high temperature 
coatings could achieve this level, the EPA created a separate, less 
stringent VOC level for high temperature coatings while maintaining the 
more stringent level achievable for other types of industrial 
maintenance coatings. Thus, it is possible to achieve lower VOC levels 
and greater emission reductions while still meeting the performance 
needs of some coating categories by further subdividing particular 
categories. Stains and wood preservatives have both been subdivided 
into clear and semitransparent, and opaque coatings. This subdivision 
of categories helps preserve markets while still achieving emission 
reductions.
    During development of the proposed rule, some industry 
representatives provided requests for particular categories to be 
created and given a higher VOC level than the VOC level for the more 
general category in which it would otherwise be grouped. Categories for 
which adequate justification was presented appear in the proposed rule. 
However, in cases where significant overlap between the requested 
category and other existing categories was apparent and the overlap 
could be expected to undermine the degree of emission reductions 
achieved, the category was not included in the proposal. The categories 
and definitions in the proposed rule are roughly consistent with the 
categories and definitions presented during negotiations.
    For the BAC determination, the EPA generally focused on the coating 
categories that contribute the largest amount of VOC to the 
environment.
2. Determination of BAC
    A primary consideration affecting the selection of VOC content 
levels that EPA believes represent BAC was the need expressed by many 
industry and regulatory stakeholder representatives to proceed with 
development of these standards as quickly and expeditiously

[[Page 32739]]

as possible. State and local agencies and representatives of industry 
who market products in different States have expressed concern about 
the lack of Federal VOC standards for architectural coatings. For this 
reason, the EPA has focused on establishing VOC levels that would take 
effect in 1997. An expedited rulemaking process for this proposed rule 
is necessary to fulfill the expectations and reliance of the States and 
to give coating manufacturers timely notice of requirements. Therefore, 
EPA based the BAC determination on VOC content levels that could be 
achieved in a short time frame (by April 1, 1997). As discussed in 
section II.D.1 of this preamble, EPA requests comment on the adequacy 
of this compliance lead time.
    The EPA attempted to gather specific information with which to 
determine the technological and economic feasibility of different VOC 
limits that would take effect in 1997. The following paragraphs discuss 
this information and how EPA used it to determine BAC.
    Fourteen categories which appear in the proposed rule and which are 
found in existing State standards were included in a list of categories 
developed during the regulatory negotiation referred to as ``low 
volume.'' These are anti-graffiti coatings, bituminous coatings and 
mastics, bond breakers, concrete curing compounds, fire-retardant/
resistive coatings (clear/pigmented), form release compounds, graphic 
arts coatings (sign paints), high temperature coatings, magnesite 
cement coatings, mastic texture coatings, multi-color coatings, pre-
treatment wash primers, sanding sealers, and swimming pool coatings. 
The VOC content levels in Table 1 for these categories are in the upper 
range of the VOC content limits found in existing State rules. The 
industry argued that these coatings represent unique compositions and 
specialized uses, and the imposition of lower VOC levels on these 
categories would probably result in an adverse economic impact on the 
manufacturers and may even have a disproportionate effect on small 
manufacturers. Because these coatings are used in relatively low 
volumes and in a limited range of circumstances, the EPA has determined 
that it should set VOC levels for these coatings based on the 
justification presented by the industry and that additional effort to 
collect more data is not warranted in the development of this proposal. 
After proposal, the EPA plans to reevaluate the feasibility of more 
stringent VOC levels for these categories as part of the joint study 
with industry that is described in section VI.
    In addition to the 14 ``low volume'' categories discussed, the VOC 
Emissions Inventory Survey contains 12 categories that represent about 
75 percent of the VOC emissions (industrial maintenance, interior 
nonflat, exterior nonflat, clear and semitransparent stains, clear 
waterproofing sealers and treatments, interior flat, roof coatings, 
primers and undercoaters, traffic markings, exterior flat, varnishes, 
and lacquers). For these 26 categories and an additional 15 categories 
contained in the survey, sales and VOC content data indicate that 
coatings are available that can achieve the VOC content levels listed 
in Table 1. The fact that the survey reveals that coatings are 
available that meet today's proposed standard is one factor that 
supports the conclusion that these coatings are economically and 
technologically feasible.
    During regulatory negotiation discussions of potential VOC content 
limits, 17 additional specialty coating categories were added to the 
list of categories under consideration. These categories were generally 
offered as a result of discussion of specific VOC content levels for 
more general and broad categories such as industrial maintenance 
coatings. These specialty coating categories did not appear in any 
existing State architectural coating regulation and, excepting high 
performance architectural coatings, were not categories for which data 
were collected in the VOC Emissions Inventory Survey. These 17 
categories include alkali-resistant primers, antenna coatings, 
antifouling coatings, chalkboard resurfacers, concrete protective 
coatings, extreme high durability coatings, floor coatings, flow 
co
FR Doc. 96-16009 National Volatile Organic Compounds Emission Standards for Architectural Coatings
atings, heat reactive coatings, high performance architectural 
coatings, impacted immersion coatings, lacquer stains, nonferrous 
ornamental metal lacquers and surface protectants, nuclear coatings, 
repair and maintenance thermoplastic coatings, rust preventative 
coatings, and thermoplastic rubber coatings and mastics.
    Fourteen of these 17 additional specialty coating categories appear 
in today's proposal because discussion during negotiations and/or 
petitions from individual companies provided support for inclusion of 
these categories and an associated VOC content level separate from the 
broader category and level to which they otherwise would have been 
assigned. No data were available to the EPA to conclude that lower VOC 
content levels for these categories would represent BAC.
    Three of these 14 categories which appear in the rule, antenna 
coatings, antifouling coatings, and nuclear coatings, were assigned VOC 
content levels consistent with those found in the EPA's National 
Emission Standards for Hazardous Air Pollutants for Shipbuilding and 
Ship Repair (59 FR 62681). These VOC levels were based primarily on 
information contained in the EPA's Alternative Control Techniques (ACT) 
Document: ``Surface Coating Operations at Shipbuilding and Ship Repair 
Facilities,'' EPA-453/R-94-032.
    Two of the three specialty categories that do not appear in the 
proposed rule are alkali-resistant primers and lacquer stains. Although 
the EPA considered inclusion of alkali-resistant primers based on 
requests from some manufacturers, it was excluded for two reasons. 
Significant overlap between alkali-resistant primers and the more 
general primer category is apparent, and comments were received about 
the ability of latex coatings (lower VOC coatings) to perform the 
function of alkali-resistant primers. For lacquer stains, although 
arguments were presented about the need for the category, the overlap 
between lacquer stains and the more general stain categories would 
allow the higher VOC lacquer stain for uses in which lower VOC stains 
would be acceptable substitutes. In order to attain the degree of 
emission reductions achievable, these categories are excluded in the 
proposed rule. The coatings that would have been classified into these 
categories would be subject to the VOC level of the more general 
category of either primers or stains, as applicable.
    The third coating category that was surveyed in the VOC Emissions 
Inventory Survey, but does not appear in the proposed rule, is ``high 
performance architectural (HPA) coatings.'' Several industry proposals 
presented to the regulatory negotiation committee contained a 
definition and VOC standard for HPA coatings with subcategories for 
concrete protective coatings, floor coatings, and rust preventative 
coatings. However, the information available to the EPA does not 
support a need for a broad HPA category. Rather than including a 
separate, broad category of HPA coatings, the proposal contains 
separate definitions and VOC levels for concrete protective, floor, and 
rust preventative coatings. These subcategories were specifically 
identified during negotiations, and arguments were presented for VOC 
levels and definitions. These categories have specific performance 
requirements such

[[Page 32740]]

as prevention of water and chloride ion intrusion (concrete protective 
coatings), abrasion resistance (floor coatings), and prevention of the 
corrosion of metals (rust preventative coatings).
    In April 1995, architectural coating industry representatives 
submitted recommended VOC content limits for BAC to the EPA. These 
industry representatives reported that these limits were developed 
based on extensive negotiations within the industry to determine what 
is economically and technologically feasible. Today's proposed VOC 
requirements are consistent with those in the proposal submitted by 
these industry representatives.
    The EPA requests comment and any supporting data on the 
appropriateness of inclusion or exclusion of the 17 additional 
specialty categories and the VOC content levels assigned to all of the 
categories included in the proposed rule. For comments supporting 
exclusion of a category, the supporting argument should include data to 
show why the category under consideration could be expected to meet 
(consistent with performance needs) the VOC levels applicable to the 
more general category to which it would revert back in the absence of 
the specific category. For comments supporting inclusion of a category, 
the request should be accompanied by a detailed explanation of the need 
for the category, and data on why lower VOC coatings would not be 
acceptable substitutes.
    In addition, the EPA requests information on any coating category 
where recent progress in low VOC resin systems has resulted in new low 
VOC coatings being introduced into the market since 1990. The EPA 
requests comments on the ability of coatings with VOC content levels 
lower than those in Table 1 to meet the performance needs within the 
category.

D. Exceedance Fee Approach

    An exceedance fee economic incentive approach is being considered 
for inclusion in the architectural coating rule. Under this approach, 
manufacturers and importers would have the option of paying a fee, 
based on the amount that VOC content levels are exceeded, instead of 
achieving the VOC content levels listed in Table 1.
    The fee would be calculated at an initial rate of $0.0028 per gram 
($2,500 per ton) of VOC in excess of the applicable VOC level, 
multiplied by the volume of coating produced. For example, if a coating 
is 50 grams of VOC per liter over the applicable VOC standard, the fee 
rate would be approximately 14 cents per liter ($.0028 per gram 
multiplied by 50 grams per liter). The fee rate is in the upper end of 
the range of the incremental VOC reduction cost imposed by VOC 
regulations for other source categories. The EPA believes this rate is 
appropriate because the exceedance fee rate is intended to provide 
compliance flexibility, but also be high enough to encourage 
reformulation to meet the applicable VOC level. This rate would be 
adjusted for inflation periodically.
    For all but two categories, the volume of coating produced is 
determined excluding the volume of any water, exempt compounds, or 
colorant added to tint bases to be consistent with the units of the VOC 
content level. For the two ``low solids'' categories (low solids stains 
and low solids wood preservatives), the volume is determined 
``including water and exempt compounds'' to be consistent with the 
units of the VOC content level for these coatings. The exceedance fee 
would be paid quarterly to the Administrator and would be due no later 
than two months after the end of the quarter in which the coating is 
manufactured or imported.
    The fee option could be expected to provide transition time for 
those manufacturers that desire additional time to obtain lower VOC 
technologies. It could also provide a less costly compliance approach 
for manufacturers selling very low volume products.
    Under the exceedance fee approach, manufacturers and importers 
would be required to keep records and submit reports detailing the 
following information for all coatings for which fees are paid: VOC 
content, excess VOC content above the standard, volume of product 
manufactured or imported, product quarterly fee, and the total 
quarterly fee for all products.
    Section 183(e) specifies that fees collected must be deposited in a 
special fund. Specifically, under Section 183(e)(5) of the CAA, funds 
collected pursuant to the regulation of consumer and commercial 
products:

* * * shall be deposited in a special fund in the United States 
Treasury for licensing and other services, which thereafter shall be 
available until expended, subject to annual appropriation Acts, 
solely to carry out the activities of the Administrator for which 
such fees, charges or collections are established and made.

    The Congress, through the annual appropriations process, will 
determine whether and how to spend any fee revenues collected. The 
Administrator, however, may make recommendations to Congress concerning 
use of any funds collected. Therefore, the EPA today seeks comment on 
how the revenues should be spent should the proposed exceedance fee 
option be promulgated as part of the final rule. The EPA believes that 
it may be possible to construe the statutory language on potential uses 
of the money either broadly, to authorize spending for a wide variety 
of activities related to reducing ozone, or more narrowly. In 
particular, the EPA requests comment on whether these revenues should 
be used for:
    (1) Grants or awards to promote the development of lower VOC 
architectural coating technologies by private firms, or by other 
governmental or nongovernmental entities;
    (2) Purchase by the government of VOC emission reduction credits 
from private firms or emission credit brokers;
    (3) State and EPA administrative and enforcement costs in carrying 
out architectural coating rules, or other rules to reduce VOC emissions 
from consumer and commercial products; or
    (4) Other possible uses.
    In addition to comments on the use of exceedance fees, the EPA 
seeks comment on the exceedance fee rate, and recordkeeping and 
reporting associated with this option.

E. Low Volume Categories/Exemption

    The EPA recognizes that there may be some low volume, specialty 
niche products for which it may not be cost effective for either the 
manufacturer or resin supplier to develop a lower VOC formulation. The 
Agency addressed this concern during the regulatory negotiation by 
developing many new specialty categories and definitions which have 
been subsequently included in the proposed rule. To evaluate what 
further steps may still be needed to accommodate niche coatings within 
the proposed rule, the EPA requests detailed information on the 
following: (1) Identification of any specialty coatings which do not 
comply with Table 1. (specify coating category from Table 1 in which 
the product would be classified) and that cannot be cost-effectively 
reformulated, (2) the sales volume and VOC content of each identified 
product, (3) detailed cost estimate for reformulation (e.g., man-years, 
and product testing expected to be involved) and (4) whether a lower 
VOC alternative product currently exists in the market which can 
adequately substitute for the identified specialty product.
    EPA will consider developing additional categories for newly 
identified niche markets in the final rule. In addition, based on 
reformulation cost, sales volume, and VOC emissions information 
gathered in

[[Page 32741]]

response to the above request on low volume products, the EPA will 
evaluate the option of a categorical exemption for any new or existing 
low volume specialty categories. Alternatively, although no coating 
manufacturers have requested that EPA consider a low volume exemption, 
the EPA will consider establishing a low volume cut-off, under which a 
coating may be exempt from regulation. These approaches would allow 
these low volume, specialized products to remain on the market. Under 
the low volume exemption concept, any manufacturer or importer may 
request an exemption from the VOC levels in Table 1 for specialized 
coating products that are manufactured or imported in quantities less 
than a specified number of gallons per year. This exemption would 
require an annual report, recordkeeping, and labeling.
    A major issue with this type of an exemption is where to set the 
cut-off. The EPA would design any low volume exemption to avoid 
significant loss in emission reductions. The EPA has limited data with 
which to evaluate an appropriate cut-off level. The EPA requests 
comment on a cut-off in the range between 1,000 and 5,000 gallons per 
year.
    A manufacturer or importer applying for this type of exemption 
would need to submit an annual report. This report would contain a 
written request for the exemption, a list of the coating products for 
which the exemption is being requested, a statement signed by a 
responsible official that the sales of each product for which the 
exemption is being requested will not exceed the cut-off established, 
and documentation and a statement signed by a responsible official that 
each product serves a specialized use which cannot be cost-effectively 
replaced with another, lower VOC product. In addition, the report would 
contain the following information for each product for which the 
exemption is being requested: the name of the product, the specialized 
use, the sales of the product in the previous year, and the VOC content 
of the product. The EPA can waive this reporting requirement on a case-
by-case basis if the information from each year is essentially the 
same. Whether or not reporting is waived, the company would be required 
to keep records for a three year period sufficient to demonstrate upon 
request that the product qualified for the exemption. A company that 
sold more than the cut-off amount of a product for which the exemption 
was claimed would be in violation of the rule and subject to the same 
penalties as any company producing coatings in violation of the VOC 
content limits.
    In addition, the following statement would need to be placed on the 
label or lid of each container of coating for which the exemption is 
being applied: ``This is a specialized architectural coating produced 
in volumes less than X gallons per year.'' The labeling requirement 
would serve to identify these coatings to enforcement personnel.
    The EPA's goal would be to set the volume cut-off for this 
exemption low enough such that it would not significantly impact the 
VOC emission reductions achieved by the rule, yet high enough such 
that, if needed, it could be expected to be used by a number of smaller 
manufacturers and importers for their low volume products.
    The EPA requests comment on whether a low volume exemption would 
have any disadvantages. Such an exemption might create an incentive for 
some companies to circumvent the rule by taking a higher volume product 
and marketing (with or without any variations in formulation) as 
several separate products, each meeting the sales volume cut-off. Also, 
some may perceive that a low volume exemption would give competitive 
advantage to higher polluting, low volume products.
    The EPA requests comments on whether this exemption should be 
included in the final rule and on the following specific aspects of 
this exemption: (1) What would be an appropriate cut-off level? (2) To 
what degree would a low volume exemption aid small manufacturers and 
importers in complying with the rule? (3) To what extent would the 
exemption be used if included in the regulation? (4) Would such an 
exemption be equitable? (5) Would such an exemption create incentives 
for circumvention of the rule?

F. Special Provisions

    This section contains a description of the rationale for the 
recycled coating and variance provisions that are included in the 
proposed standard.
1. Recycled Coatings
    The proposed regulation allows manufacturers and importers VOC 
credit for recycling post-consumer coatings. Post-consumer coating is 
unused coating that has been previously purchased by a consumer, and is 
subsequently combined with virgin materials and offered for sale as a 
recycled coating. The proposed credit for recycled coating content is 
demonstrated in the following example: If a coating has a VOC content 
(calculated as prescribed in Sec. 59.404 of the regulation) of 400 
grams per liter of coating and contains 10 percent recycled coating, 
then 10 percent of the calculated VOC content (40 grams per liter) is 
subtracted or credited to give an adjusted VOC content of 360 grams per 
liter. Compliance is determined based on the adjusted VOC content.
    The calculation of an adjusted VOC content is included in the 
proposed regulation to encourage recycling by providing flexibility to 
manufacturers of recycled coatings. Recycling these coatings eliminates 
the need for their disposal (some unused coatings may be considered 
hazardous waste) and reduces the amount of new coating that must be 
manufactured.
    The EPA recognizes the inherent difficulties associated with 
enforcing the credit associated with the recycled coating provision. It 
is not normally possible to determine the fraction of post-consumer 
content by analytical means. Therefore, enforcement would be through an 
evaluation of reports submitted by manufacturers or importers of 
recycled coatings (see section II.G) and a comparison of these reports 
to claims of recycled content on the labels of coatings. The EPA 
requests comment on this VOC credit for recycled coatings and the 
enforcement of such a provision.
2. Compliance Variance.
    The proposed rule includes a variance provision whereby 
manufacturers and importers of subject architectural coatings may apply 
to the Administrator for a temporary variance from compliance with the 
standards. A variance will be granted if the applicant demonstrates 
that compliance would result in economic hardship, and that granting 
the variance would better serve the public interest than would 
requiring continuous compliance under the conditions of economic 
hardship. The EPA intends for this provision to allow manufacturers and 
importers some flexibility in responding to unforeseen circumstances 
that may cause additional, unanticipated compliance burden. The EPA 
recognizes that certain interruptions in the availability of raw 
materials and or manufacturing processes may affect the manufacturer's 
or importer's ability to continuously comply with the standards. In 
particular, the EPA anticipates that this variance provision will help 
to mitigate impacts to small manufacturers. Within the architectural 
coatings industry, small manufacturers are likely to have fewer 
research and development

[[Page 32742]]

resources, and therefore, will benefit from the allowed variance.

G. Labeling and Public Information Requirements

1. Containers of All Subject Coatings
    The proposed regulation requires that containers for all subject 
coatings display on the label or lid the date of manufacture (or a code 
indicating the date) and the maximum VOC content in the coating. The 
date of manufacture on the label or lid allows enforcement personnel to 
determine whether the coating was manufactured prior to April 1, 1997.
    Section 183(e) of the CAA specifically authorizes the EPA to 
require certain labeling and informing of the public as mechanisms for 
control of VOC emissions from consumer and commercial products. The 
proposed standards include labeling requirements that not only allow 
the EPA to verify compliance with the VOC content levels but also to 
inform consumers about VOC content. Such labeling, with appropriate 
consumer education, might provide an incentive to consumers to purchase 
coatings that will emit less VOC, and to manufacturers and importers to 
manufacture or import lower VOC content coatings.
    As described in section II.E, the EPA is considering two other 
labeling requirements. The EPA is considering a requirement to include 
on the label of each coating an educational statement about VOC 
emissions, and their potential contribution to ground-level ozone. The 
EPA requests comment on whether an outreach effort would be as 
effective an approach as an educational statement. Also, the EPA is 
considering a requirement to include coating coverage information on 
all architectural coating labels. Comment is requested on the 
feasibility of this requirement.
2. Containers of Industrial Maintenance Coatings
    In addition to the general labeling requirements for all 
architectural coatings, containers of industrial maintenance coatings 
(as defined in Sec. 59.401 of the proposed regulation) must also 
include on the label or lid the phrase ``NOT INTENDED FOR RESIDENTIAL 
USE.'' Section 183(e) of the CAA provides authority to include in the 
regulation directions for use of the product. The proposed VOC levels 
for industrial maintenance coatings were set based on more rigorous 
performance specifications than those needed for residential 
applications. While this labeling requirement is intended to discourage 
consumers from applying industrial maintenance coatings in a 
residential setting where a lower VOC coating with less rigorous 
performance specifications may be adequate, it does not prohibit the 
use of industrial maintenance coatings in a residential setting where 
extreme environmental conditions are present and for which an 
industrial maintenance coating would provide the most viable protection 
from these conditions.
3. Containers of Recycled Architectural Coatings
    Containers of recycled architectural coatings, in addition to the 
requirements listed previously for all subject coatings, must also 
display a label that includes the statement ``CONTAINS NOT LESS THAN X 
PERCENT, BY VOLUME, POST-CONSUMER COATING,'' where X is replaced by the 
percentage, by volume, of post-consumer coating. Inclusion of the 
recycled coating content is necessary for compliance purposes to 
identify coatings for which an adjusted VOC content has been 
calculated.

H. Selection of Recordkeeping and Reporting Requirements

    The EPA evaluated what recorded and reported information would be 
sufficient to ensure compliance with the VOC levels. The recordkeeping 
and reporting requirements proposed are necessary to allow 
determination of compliance, and the EPA believes they do not represent 
an undue burden on manufacturers or importers of architectural 
coatings. For all but the initial report, recordkeeping and reporting 
are only required for manufacturers and importers who choose to take 
advantage of optional provisions, including the calculation of an 
adjusted VOC content (based on post-consumer coating content), the 
variance provision, or the exceedance fee approach that is under 
consideration.
    For coatings for which the manufacturer or importer chooses to 
demonstrate compliance by meeting the VOC content levels in the 
proposed table (Table 1), enforcement personnel can compare the VOC 
content of the product to the VOC content statement on the label to 
establish compliance or noncompliance. Therefore, there are no 
reporting or recordkeeping provisions for the manufacturers and 
importers of these coatings beyond initial notification. The initial 
report serves to notify the EPA of the identity of the universe of all 
manufacturers and importers subject to the standards.
    The proposed rule includes reporting and recordkeeping requirements 
for coatings that contain post-consumer coating and for which an 
adjusted VOC content is reported for compliance purposes. Manufacturers 
and importers must maintain the required records for these coatings for 
a period of three years. The required recordkeeping and initial reports 
are essential for the EPA to determine whether coatings are in 
compliance.
    Manufacturers or importers that choose to apply for a variance are 
required to submit a variance application to the Administrator. The 
purpose of this application is for the applicant to provide the 
Administrator with sufficient information on which the decision to 
grant, or not to grant, the variance can be made.
    The reporting and recordkeeping requirements for the exceedance fee 
approach and low volume exemption that is under consideration for 
inclusion in the final rule is discussed in section V.D., and V.E. 
respectively

I. Test Methods

    Under the proposed provisions, compliance with the VOC content 
levels is based on the EPA's Reference Method 24. This is the EPA's 
standard test method for determining the VOC content of coatings.
    A provision allowing use of alternative methods of determining VOC 
content subject to the Administrator's approval is also included in the 
proposed rule.

J. Alternative Regulatory Approaches

1. Other Systems of Regulation.
    Section 183(e)(4) allows the EPA to consider ``any system or 
systems of regulation as the Administrator may deem appropriate, 
including requirements for registration and labeling, self-monitoring 
and reporting, prohibitions, limitations, or economic incentives 
(including marketable permits and auctions of emission rights) 
concerning the manufacture, processing, distribution, use, consumption, 
or disposal of the product.'' Accordingly, the EPA requests comment on 
any alternative to the proposed system of regulation.
2. Regulation with the Use of CTG
    Section 183(e)(3)(C) gives the EPA the flexibility to ``issue 
control techniques guidelines under this Act in lieu of regulations 
required under subparagraph (A) if the Administrator determines that 
such guidance will be substantially as effective as regulations in 
reducing emissions of volatile organic

[[Page 32743]]

compounds which contribute to ozone levels in areas which violate the 
national ambient air quality standard for ozone.''
    In many cases, a CTG can be an effective approach to reduce 
emissions of VOC in nonattainment areas without imposing control costs 
on attainment areas. For example, a CTG may effectively reduce VOC 
emissions from commercial products used in industrial settings where 
the targeted emissions occur at a point of end use which is readily 
identifiable, and at a fixed location. However, a CTG may not be as 
effective as a regulation to reduce emissions in nonattainment areas 
for architectural products because these products are easily 
transportable and widely distributed. This is because an architectural 
coating CTG would prohibit the sale of noncompliant architectural 
coatings in nonattainment areas. A CTG would have the potential 
compliance problems associated with noncompliant products being 
transported into nonattainment areas from neighboring areas and 
neighboring states. In contrast, a regulation could require 
modification of the product itself. Since all products would be subject 
to the same requirements, this would help ensure effective enforcement 
and implementation in all areas.
    It is expected that an architectural coating national rule would 
reduce costs of compliance for companies serving national or large 
regional markets by promoting consistency in VOC requirements across 
the country. In addition, a national rule would help reduce 
recordkeeping and reporting for those manufacturers who sell products 
in both attainment and nonattainment areas. To evaluate the benefits 
(i.e., reduction in cost) to manufacturers from the consistency aspect 
of a national rule, the EPA requests detailed information from 
manufacturers on the cost to comply with a variety of State standards. 
In particular, the EPA requests comment on the administrative cost 
burden (inventory tracking, distribution, labeling, and tracking of 
State architectural coating regulation development) expected to result 
from use of a CTG. In addition, to evaluate the population and product 
mix of manufacturers who may be excluded from regulation under a CTG 
approach, the EPA requests comment on the number and identity of 
manufacturers who sell products solely in attainment areas. To evaluate 
differences in the reformulation cost associated with a CTG versus a 
national rule, the EPA requests comment on the proportion of products 
which would be reformulated if, in general, only nonattainment areas 
were regulated. For example, EPA requests information on whether 
manufacturers would tend to produce one product for attainment areas 
and one for nonattainment areas, only sell products in attainment 
areas, or reformulate all products to be compliant with applicable 
nonattainment area requirements.
    The EPA requests comment on whether and how a CTG approach (by 
itself, or in combination with any other regulatory alternatives) would 
be as effective as a national rule in reducing VOC emissions in ozone 
nonattainment areas. If warranted by comments, a quantitative analysis 
of costs and emission reductions expected from a CTG will be completed.

K. Solicitation of Comments

    The EPA invites comments concerning the proposed standards, 
particularly as noted in the preceding sections concerning: the 
inclusion of specialty product categories; the technological and 
economic feasibility of VOC levels listed in Table 1; the ability of 
coatings with VOC content levels lower than the proposed levels to meet 
performance needs; the inclusion of processors in the applicability of 
the rule; economic and other impacts on importers; the feasibility of 
requiring coverage information to be displayed on coating labels or 
lids; the effectiveness of a public outreach program versus statements 
on the container label to educate users about the environmental impacts 
of VOC in coatings; and the placement of architectural coatings on the 
consumer products priority list. The EPA also requests information on 
coating categories where recent progress in low VOC resin systems has 
resulted in new low VOC coatings that have been introduced since 1990.
    The EPA requests comment on the inclusion of an exceedance fee 
option for use as a compliance alternative to meeting the VOC levels in 
Table 1. Specifically, the EPA requests comments on the following: the 
appropriate use for revenues generated from the fee; the 
appropriateness of the exceedance fee rate; and the appropriateness of 
the recordkeeping and reporting requirements associated with the fee.
    The EPA requests detailed information on any specialty coatings 
which do not comply with proposed standards, and cannot be cost-
effectively reformulated. The EPA also requests comment on the 
inclusion of a low volume exemption for specialty, niche products. 
Specifically, the EPA requests comment on the following: (1) What would 
be an appropriate cut-off level? (2) To what degree would a low volume 
exemption aid small manufacturers and importers in complying with the 
rule? (3) To what extent would the exemption be used if included in the 
regulation? (4) Would such an exemption be equitable? (5) Would such an 
exemption create incentives for circumvention of the rule?
    In addition, the EPA requests comment on the inclusion of the 
special provision for VOC credit for recycled coatings, the variance 
provision, and the small container exemption. For all of these 
provisions, the EPA requests comment on the expected extent of their 
use by small manufacturers and small importers.
    Comments submitted to the Administrator should contain specific 
proposals and supporting data to allow the EPA to fully evaluate the 
comments. Recommended changes to any of the VOC content levels 
presented in this proposal should include sufficient information for 
the EPA to evaluate the technological and economic feasibility 
associated with such changes. Applicable dates and addresses for the 
submission of comments are included at the beginning of this preamble.

VI. Future Phase Under Consideration

    The EPA believes further VOC reductions beyond those in Table 1 may 
be technologically and economically feasible. A great deal of 
controversy surrounds the proposal of more stringent VOC levels in a 
future phase of regulation. To address the controversy, the EPA will 
participate in a joint study with industry representatives to 
investigate the cost and performance characteristics of coatings with 
VOC contents lower than the proposed levels in Table 1. The 
environmental and economic impacts of requiring lower VOC contents will 
also be assessed. In addition, the EPA will continue to meet with other 
stakeholders regarding the potential for a future phase for the 
architectural coatings rule. After analyzing comments received 
regarding this proposal and following completion of the joint EPA/
industry study, the EPA will evaluate whether further reductions beyond 
the 1997 requirements are technologically and economically feasible. 
The result of this evaluation could be proposal of more stringent VOC 
levels, the proposal of economic incentive approaches, some combination 
of VOC levels and economic incentive approaches, or no further action 
beyond the 1997 requirements.
    The EPA is using this proposal as an opportunity to solicit input 
for use in

[[Page 32744]]

the joint EPA/industry study. The EPA expects to focus effort in the 
study on evaluation of issues which will include the following: the 
cost and economic impact of requiring lower VOC contents than those in 
Table 1, identification of any performance issues associated with lower 
VOC content coatings, and investigation of reactivity considerations 
involved in reformulating architectural coatings. The EPA invites 
comments concerning the planned EPA/industry study, and any input on 
performance, cost or reactivity considerations which should be included 
in the study.
    Because the EPA's data consists of the Emissions Inventory Survey 
of coatings sold in 1990 and on limits in California coatings 
regulations that have been in effect since the late 1980's, the EPA is 
requesting information on coating categories where recent progress in 
low VOC resin systems has resulted in new low VOC coatings being 
introduced into the market since 1990. The EPA requests comments on the 
ability of coatings with VOC content levels lower than those in Table 1 
to meet the performance needs within the category. Cost information on 
these coatings is also requested.

VII. Administrative Requirements

A. Public Hearing

    A public hearing will be held, if requested, to provide opportunity 
for interested persons to make oral presentations regarding the 
requirements in the proposed regulation in accordance with Section 
307(d)(5) of the CAA. Persons wishing to make oral presentation on the 
proposed regulation for architectural coatings should contact the EPA 
at the address given in the ADDRESSES section of this preamble. Oral 
presentations will be limited to 15 minutes each. Any member of the 
public may file a written statement before, during, or within 30 days 
after the hearing. Written statements should be addressed to the Air 
and Radiation Docket and Information Center at the address given in the 
ADDRESSES section of this preamble and should refer to Docket No. A-92-
18.
    A verbatim transcript of the hearing and written statements will be 
available for inspection and copying during normal business hours at 
the EPA's Air and Radiation Docket and Information Center in 
Washington, DC (see ADDRESSES section of the preamble).

B. Executive Order 12866

    Under Executive Order 12866, the Agency must determine whether the 
regulatory action is ``significant'' and therefore subject to Office of 
Management Budget (OMB) review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of the Executive Order, the EPA has 
determined that this rule is a ``significant regulatory action'' under 
criterion (4) above, based on both the long regulatory negotiation 
process that preceded this proposal and the novel use of economic 
incentives (potential exceedance fees) for this industry. Therefore, 
the proposed regulation presented in this notice was submitted to the 
OMB for review as required. Any written comments from the OMB to the 
EPA and any written EPA response to those comments will be included in 
Docket No. A-92-18, listed at the beginning of this notice under the 
ADDRESSES section of this preamble.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the OMB under the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. An Information Collection Request (ICR) 
document has been prepared by the EPA (ICR No. 1750.01) and a copy may 
be obtained from Sandy Farmer, Office of Policy Planning and Evaluation 
(OPPE) Regulatory Information Division; U.S. Environmental Protection 
Agency (2136); 401 M Street., SW, Washington, DC 20460 or by calling 
(202) 260-2740. This ICR document is also available on the EPA's OAQPS 
TTN bulletin board under the Clean Air Act Amendments menu. See the 
SUPPLEMENTARY INFORMATION section of this preamble for information on 
accessing the EPA's TTN electronic bulletin board.
    The information required to be collected by this proposed rule is 
necessary to identify the regulated entities who are subject to the 
rule and to ensure their compliance with the rule. The recordkeeping 
and reporting requirements are mandatory and are being established 
under authority of Section 114 of the CAA. All information submitted as 
part of a report to the Agency for which a claim of confidentiality is 
made will be safeguarded according to the Agency policies set forth in 
title 40, Chapter 1, part 2, subpart B, ``Confidentiality of Business 
Information'' (see 40 CFR 2; 41 FR 36902, September 1, 1976, amended by 
43 FR 39999, September 28, 1978; 43 FR 42251, September 28, 1978; 44 FR 
17674, March 23, 1979).
    The total annual reporting and recordkeeping burden for this 
information collection averaged over the first three years is estimated 
to be 37,447 hours and $1,279,469. This is the estimated burden for 500 
respondents (i.e., architectural coating manufacturers).
    The average burden, per respondent, is 75 hours per year. The total 
reporting, recordkeeping, and labeling burden for an individual 
respondent will vary depending on the compliance option chosen. 
Respondents choosing to meet the VOC levels will have the lowest 
reporting, recordkeeping, and labeling burden, whereas, manufacturers 
and importers that use the option of calculating an ``adjusted VOC 
content'' (for recycled coatings) will have the highest reporting, 
recordkeeping, and labeling burden. The proposed rule requires an 
initial one-time notification from each respondent. Respondents whose 
coatings products have a VOC content that is less than or equal to the 
VOC content levels have no periodic reporting requirements. Respondents 
choosing the recycled coatings provision must submit annual reports. 
Respondents choosing the variance provision must submit a one-time 
report requesting the variance.
    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 estimate includes 
the time needed to: (1) Review instructions; (2) 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; (3) 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; (4) train personnel to be able to 
respond to a collection of information; (5) search data sources; (6) 
complete and review the collection of

[[Page 32745]]

information; and (7) transmit or otherwise disclose the information.
    The exceedance fee alternative compliance mechanism being 
considered for inclusion in the final rule would require quarterly 
reports of fees by the manufacturers choosing this option. In addition, 
these manufacturers would keep records for each coating product on 
which fees are paid. The average annual burden increase for each 
manufacturer choosing this option is 194 hours.
    Comments are requested on the Agency's need for this information, 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to the 
Director, OPPE Regulatory Information Division; U.S. Environmental 
Protection Agency (2136); 401 M Street SW; Washington, DC 20460; and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, 725 17th Street NW; Washington, DC 20503; marked 
``Attention: Desk Officer for the EPA.'' Include the ICR number in any 
correspondence. Since OMB is required to make a decision concerning the 
ICR between 30 and 60 days after June 25, 1996, a comment to OMB is 
best assured of having its full effect if OMB receives it by July 25, 
1996. The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
EPA to consider potential adverse impacts of proposed regulations on 
small entities and to consider regulatory options that might mitigate 
any such impacts. It is currently the EPA's policy to perform a 
regulatory flexibility analysis of the potential impacts of proposed 
regulations on small entities whenever it is anticipated that any small 
entities may be adversely impacted. Because it is anticipated that some 
small architectural coating manufacturers could be adversely impacted 
from implementation of the proposed standards, a regulatory flexibility 
analysis was performed.
    The analysis of small entity impacts focused on the potential 
impacts on small manufacturers producing architectural coatings. For 
the purpose of this analysis, small manufacturers were considered to be 
firms with less than $10 million of total gross annual revenues from 
the sale of architectural coatings and less than $50 million in total 
gross annual revenues from all products. Using this definition, 
potentially 85 percent of architectural coating manufacturers are 
considered small manufacturers. A copy of the technical memorandum 
titled ``Economic Impact and Regulatory Flexibility Analysis of the 
Proposed Architectural Coatings Rule'' is included in the public 
docket.
    Reducing VOC content generally requires a fixed investment for 
reformulation of each product to its respective regulatory level. 
Because, on average, coatings sold by small manufacturers are sold in 
smaller quantities than the industry average (an estimated 67,000 
liters per product versus 377,000 liters per product), the cost of 
reformulation per unit sold may in some cases be significantly higher 
for small manufacturers. To meet the limitations in Table 1, the 
estimated ratio of annualized reformulation cost to revenues for small 
manufacturers equals approximately 3.5 percent as opposed to a ratio of 
only about 0.4 percent for the entire industry. Thus, it may be 
difficult for small coating manufacturers to pass control costs to 
consumers in product markets where competition with larger 
manufacturers is significant. This impact will be reduced to the extent 
that small manufacturers are provided reformulation technologies from 
larger resin suppliers. Still, the EPA has recognized a need to include 
special compliance provisions in the rule to avoid adverse economic 
impacts upon small manufacturers.
    The economic impacts on small manufacturers were taken into 
consideration in establishing both the categories and VOC levels. 
Special effort was made to consider the economic feasibility of VOC 
levels for product categories in which small manufacturers have a 
disproportionate presence. The small container exemption, compliance 
variance, and consideration of an exceedance fee option and low volume 
exemption are also included in the proposed rule primarily to reduce 
small business impacts.
    Because the per-unit costs of the economic incentive options are 
constant with respect to volume sold, and because the per-unit 
reformulation cost is higher for small-volume products than large-
volume products, an economic incentive option, such as a fee, if 
included, is more likely to be beneficial to and adopted by small 
manufacturers than by large manufacturers. The results of the economic 
analysis suggests that the fee option is likely to provide a cost-
saving alternative to reformulation for relatively low-volume products 
with VOC content fairly close to the regulatory VOC levels. Estimated 
annual reformulation cost savings minus fee payments associated with 
the fee option equals approximately $5.0 million. In addition, the fee 
option reduces foregone profits by roughly 0.3 million for products 
which otherwise would have been removed from the market. It is 
anticipated that most of these savings would accrue to small 
manufacturers.

E. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, Section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of Section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
Section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
Section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The rule imposes no enforceable 
duties on any of these governmental entities. In any event, EPA has 
determined that this rule does not contain a Federal mandate that may

[[Page 32746]]

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. Thus, today's rule is not subject to the requirements of Sections 
202 and 205 of the UMRA.

F. Enhancing the Intergovernmental Partnership under Executive Order 
12875

    In compliance with Executive Order 12875, the EPA has involved 
State and local governments in the development of this rule. State and 
local air pollution control associations participated in the regulatory 
negotiation and have also provided regulatory review. State and local 
air pollution control representatives participated in the regulatory 
negotiation and have also provided input into subsequent regulatory 
development.

List of Subjects in 40 CFR Part 59

    Environmental protection, Air pollution control, Architectural 
coatings, Consumer and commercial products, Incorporation by Reference, 
Ozone, Regulatory negotiation, Volatile organic compound.

Table 1.--Architectural Coating Volatile Organic Compound Content Levels
   [Unless otherwise specified, units are in grams of VOC per liter of  
 coating thinned to the manufacturer's maximum recommendation excluding 
  the volume of any water, exempt compounds, or colorant added to tint  
                                 bases.]                                
------------------------------------------------------------------------
                                                               Effective
                       Coating category                         Apr. 1, 
                                                                  1997  
------------------------------------------------------------------------
Antenna coatings.............................................        530
Antifouling coatings.........................................        400
Anti-graffiti coatings.......................................        600
Bituminous coatings and mastics..............................        500
Bond breakers................................................        600
Chalkboard resurfacers.......................................        450
Concrete curing compounds....................................        350
Concrete protective coatings.................................        400
Dry fog coatings.............................................        400
Extreme high durability coatings.............................        800
Fire-retardant/resistive coatings:                                      
    Clear....................................................        850
    Opaque...................................................        450
Flat coatings:                                                          
    Exterior.................................................        250
    Interior.................................................        250
Floor coatings...............................................        400
Flow coatings................................................        650
Form release compounds.......................................        450
Graphic arts coatings (sign paints)..........................        500
Heat reactive coatings.......................................        420
High temperature coatings....................................        650
Impacted immersion coatings..................................        780
Industrial maintenance coatings..............................        450
Lacquers (including lacquer sanding sealers).................        680
Magnesite cement coatings....................................        600
Mastic texture coatings......................................        300
Metallic pigmented coatings..................................        500
Multi-colored coatings.......................................        580
Nonferrous ornamental metal lacquers and surface protectants.        870
Nonflat coatings:                                                       
    Exterior.................................................        380
    Interior.................................................        380
Nuclear coatings.............................................        420
Pretreatment wash primers....................................        780
Primers and undercoaters.....................................        350
Quick-dry coatings:                                                     
    Enamels..................................................        450
    Primers, sealers, and undercoaters.......................        450
Repair and maintenance thermoplastic coatings................        650
Roof coatings................................................        250
Rust preventative coatings...................................        400
Sanding sealers (other than lacquer sanding sealers).........        550
Sealers (including interior clear wood sealers)..............        400
Shellacs:                                                               
    Clear....................................................        650
    Opaque...................................................        550
Stains:                                                                 
    Clear and semitransparent................................        550
    Opaque...................................................        350
    Low solids...............................................    \1\ 120
Swimming pool coatings.......................................        600
Thermoplastic rubber coatings and mastics....................        550
Traffic marking coatings.....................................        150
Varnishes....................................................        450
Waterproofing sealers and treatments:                                   
    Clear....................................................        600
    Opaque...................................................        400
Wood preservatives:                                                     
    Below ground wood preservatives..........................        550
    Clear and semitransparent................................        550
    Opaque...................................................        350
    Low solids...............................................   \1\ 120 
------------------------------------------------------------------------
\1\ Units are grams of VOC per liter of coating, including water and    
  exempt compounds, thinned to the maximum thinning recommended by the  
  manufacturer.                                                         

    Dated: June 18, 1996.
Carol M. Browner,
Administrator.
[FR Doc. 96-16009 Filed 6-24-96; 8:45am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 96-15884 Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion
[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Proposed Rules]
[Pages 32746-32753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15884]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261

[SW-FRL-5525-3]

Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Proposed Exclusion

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
grant a petition to Bekaert Steel Corporation (Bekaert) of Rogers, 
Arkansas to exclude (or ``delist''), certain solid wastes generated at 
its facility from the lists of hazardous wastes contained in 40 CFR 
261.31 and 261.32 (hereinafter all sectional references are to 40 CFR 
unless otherwise indicated). This action responds to a delisting 
petition submitted under 40 CFR 260.20, which allows any person to 
petition the Administrator to modify or revoke any provision of 40 CFR 
Parts 260 through 266, 268 and 273, and under 40 CFR 260.22, which 
specifically provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator specific'' basis from 
the hazardous waste lists. This proposed decision is based on an 
evaluation of waste-specific information provided by the petitioner. If 
this proposed decision is finalized, the petitioned waste will be 
conditionally excluded from the requirements of hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA).

DATES: The EPA is requesting public comments on this proposed decision. 
Comments will be accepted until August 9, 1996. Comments postmarked 
after the close of the comment period will be stamped ``late.''
    Any person may request a hearing on this proposed decision by 
filing a request with Jane N. Saginaw, Regional Administrator, whose 
address appears below, by July 10, 1996. The request must contain the 
information prescribed in 40 CFR 260.20(d).

ADDRESSES: Send three copies of your comments. Two copies should be 
sent to William Gallagher, Delisting Program, Multimedia Planning and 
Permitting Division (6PD-O), Environmental Protection Agency, Region 6, 
1445 Ross Avenue, Dallas, Texas 75202. A third copy should be sent to 
the Arkansas Department of Pollution Control and Ecology, P.O. Box 
8913, 8001 National Drive, Little Rock, Arkansas 72219-8913. Identify 
your comments at the top with this regulatory docket number: ``F-96-
ARDEL-BEKAERT.''

[[Page 32747]]

    Requests for a hearing should be addressed to the Regional 
Administrator, Region 6, Environmental Protection Agency, 1445 Ross 
Avenue, Dallas, Texas 75202.
    The RCRA regulatory docket for this proposed rule is located at the 
Region 6, Environmental Protection Agency, 1445 Ross Avenue, Dallas, 
Texas 75202 and is available for viewing in the EPA library on the 12th 
floor from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding 
Federal holidays. Call (214) 665-6444 for appointments. The docket may 
also be viewed at the Arkansas Department of Pollution Control and 
Ecology, 8001 National Drive, Little Rock, Arkansas 72219-8913. The 
public may copy material from any regulatory docket at no cost for the 
first 100 pages, and at $0.15 per page for additional copies.

FOR FURTHER INFORMATION, CONTACT: For technical information concerning 
this notice, contact David Vogler, Delisting Program (6PD-O), Region 6, 
Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202, 
(214) 665-7428.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

    On January 16, 1981, as part of its final and interim final 
regulations implementing Section 3001 of RCRA, the EPA published an 
amended list of hazardous wastes from non-specific and specific 
sources. This list has been amended several times, and is published in 
Sec. 261.31 and Sec. 261.32. These wastes are listed as hazardous 
because they typically and frequently exhibit one or more of the 
characteristics of hazardous wastes identified in Subpart C of Part 261 
(i.e., ignitability, corrosivity, reactivity, and toxicity) or meet the 
criteria for listing contained in Sec. 261.11 (a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
that is described in these regulations generally is hazardous, a 
specific waste from an individual facility meeting the listing 
description may not be hazardous. For this reason, Sec. 260.20 and 
Sec. 260.22 provide an exclusion procedure, allowing persons to 
demonstrate that a specific waste from a particular generating facility 
should not be regulated as a hazardous waste.
    To have their wastes excluded, petitioners must show that wastes 
generated at their facilities do not meet any of the criteria for which 
the wastes were listed. See Sec. 260.22(a) and the background documents 
for the listed wastes. In addition, the Hazardous and Solid Waste 
Amendments (HSWA) of 1984 require the Agency to consider any factors 
(including additional constituents) other than those for which the 
waste was listed, if there is a reasonable basis to believe that such 
additional factors could cause the waste to be hazardous. Accordingly, 
a petitioner also must demonstrate that the waste does not exhibit any 
of the hazardous waste characteristics (i.e., ignitability, reactivity, 
corrosivity, and toxicity), and must present sufficient information for 
the Agency to determine whether the waste contains any of the other 
identified constituents at hazardous levels. See Sec. 260.22(a), 42 
U.S.C. Sec. 6921(f), and the background documents for the listed 
wastes. Although wastes which are ``delisted'' (i.e., excluded) have 
been evaluated to determine whether or not they exhibit any of the 
characteristics of hazardous waste, generators remain obligated under 
RCRA to determine whether or not their waste remains non-hazardous 
based on the hazardous waste characteristics.
    In addition, residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
are also considered hazardous wastes. See Secs. 261.3 (a)(2)(iv) and 
(c)(2)(i), referred to as the ``mixture'' and ``derived-from'' rules, 
respectively. Such wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of 
Appeals for the District of Columbia vacated the ``mixture/derived 
from'' rules and remanded them to the Agency on procedural grounds. See 
Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, 
EPA reinstated the mixture and derived-from rules, and solicited 
comments on other ways to regulate waste mixtures and residues (57 FR 
7628). On December 21, 1995, the EPA proposed rules related to waste 
mixtures and residues at 60 FR 66344 and invited public comment. These 
references should be consulted for more information regarding mixtures 
and residues.

B. Approach Used To Evaluate This Petition

    Bekaert's petition requests a delisting for a listed hazardous 
waste. In making the initial delisting determination, the EPA evaluated 
the petitioned waste against the listing criteria and factors cited in 
Sec. 261.11 (a)(2) and (a)(3). Based on this review, the EPA agreed 
with the petitioner that the waste is non-hazardous with respect to the 
original listing criteria. (If the EPA had found, based on this review, 
that the waste remained hazardous based on the factors for which the 
waste was originally listed, the EPA would have proposed to deny the 
petition.) The EPA then evaluated the waste with respect to other 
factors or criteria to assess whether there is a reasonable basis to 
believe that such additional factors could cause the waste to be 
hazardous. The EPA considered whether the waste is acutely toxic, and 
considered the toxicity of the constituents, the concentration of the 
constituents in the waste, their tendency to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the waste, plausible and specific types of management of the petitioned 
waste, the quantities of waste generated, and waste variability.
    For this delisting determination, the EPA used such information to 
identify plausible exposure routes (i.e., ground water, surface water, 
air) for hazardous constituents present in the petitioned waste. The 
EPA determined that disposal in a Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for Bekaert's petitioned 
waste, and that the major exposure route of concern would be ingestion 
of contaminated ground water. Therefore, the EPA used a particular fate 
and transport model to predict the maximum allowable concentrations of 
hazardous constituents that may be released from the petitioned waste 
after disposal and to determine the potential impact of the disposal of 
Bekaert's petitioned waste on human health and the environment. 
Specifically, the EPA used the maximum estimated waste volume and the 
maximum reported extract concentrations as inputs to estimate the 
constituent concentrations in the ground water at a hypothetical 
receptor well downgradient from the disposal site. The calculated 
receptor well concentrations (referred to as compliance-point 
concentrations) were then compared directly to the current Maximum 
Contaminant Levels (MCLs) promulgated under the Safe Drinking Water Act 
(SWDA) or health-based levels derived from Verified Reference Doses 
(RfDs). The value used for copper is an action level for treatment of a 
water supply in lieu of a MCL (40 CFR Sec. 141.80).
    The EPA believes that this fate and transport model represents a 
reasonable worst-case scenario for disposal of the petitioned waste in 
a landfill, and that a reasonable worst-case scenario is appropriate 
when evaluating whether a waste should be relieved of the protective 
management constraints of

[[Page 32748]]

RCRA Subtitle C. The use of a reasonable worst-case scenario results in 
conservative values for the compliance-point concentrations and ensures 
that the waste, once removed from hazardous waste regulation, will not 
pose a threat to human health or the environment. Because a delisted 
waste is no longer subject to hazardous waste control, the EPA is 
generally unable to predict and does not presently control how a waste 
will be managed after delisting. Therefore, the EPA does not currently 
consider extensive site-specific factors when applying the fate and 
transport model.
    The EPA also considers the applicability of groundwater monitoring 
data during the evaluation of delisting petitions. The EPA normally 
requests groundwater monitoring data for wastes currently managed or 
have ever been managed in a land based management unit. Groundwater 
monitoring data provides significant additional information important 
to fully characterize the potential impact (if any) of the disposal of 
a petitioned waste on human health and the environment. In this case, 
the EPA determined that the groundwater monitoring data was not 
applicable to the evaluation of the petitioned waste. Specifically, 
Bekaert currently disposes of the petitioned waste generated from its 
filter press which is part of their wastewater treatment facility in an 
off-site RCRA hazardous waste landfill (which is not owned/operated by 
Bekaert). This landfill did not begin accepting the petitioned waste 
generated by the filter press until September 1991. In other words, the 
petitioned waste comprises a small fraction of the total waste managed 
in the off-site units. The Agency, therefore, believes that any ground-
water monitoring data from the landfill would not be meaningful for an 
evaluation of the specific effect of the petitioned waste on ground 
water. However, the potential impact of these wastes on ground water is 
predicted through the application of a fate and transport model.
    Finally, the Hazardous and Solid Waste Amendments of 1984 
specifically require the EPA to provide notice and an opportunity for 
comment before granting or denying a final exclusion. Thus, a final 
decision will not be made until all timely public comments (including 
those at public hearings, if any) on today's proposal are addressed.

II. Disposition of Delisting Petition

    Bekaert Steel Corporation, One Bekaert Drive, Rogers, Arkansas, 
72757

A. Petition for Exclusion

    Bekaert, located in Rogers, Arkansas, manufactures steel cord by 
reducing the diameter of steel rods followed by electroplating and 
further reduction. Bekaert petitioned the Agency to exclude its 
wastewater treatment filter cake presently listed as EPA Hazardous 
Waste No. F006--``Wastewater treatment sludges from electroplating 
operations except from the following processes: (1) Sulfuric acid 
anodizing of aluminum; (2) tin plating on carbon steel; (3) zinc 
plating (segregated basis) on carbon steel; (5) cleaning/stripping 
associated with tin, zinc, and aluminum plating on carbon steel; and 
(6) chemical etching and milling of aluminum''. The listed constituents 
of concern for EPA Hazardous Waste No. F006 are: cadmium, hexavalent 
chromium, nickel and cyanide (complexed) (see 40 CFR part 261, Appendix 
VII).
    Bekaert petitioned the EPA to exclude its waste filter cake because 
it does not believe that the waste meets the criteria for which it was 
listed. Bekaert also believes that the waste does not contain any other 
constituents that would render it hazardous. Review of this petition 
included consideration of the original listing criteria, as well as the 
additional factors required by the Hazardous and Solid Waste Amendments 
(HSWA) of 1984. See Section 222 of HSWA, 42 U.S.C. Sec. 6921(f), and 40 
CFR Sec. 260.22(d) (2)-(4). Today's proposal to grant this petition for 
delisting is the result of the EPA's evaluation of Bekaert's petition.

B. Background

    On September 11, 1995, Bekaert petitioned the EPA to exclude, from 
the lists of hazardous wastes contained in 40 CFR Sec. 261.31 and 
Sec. 261.32, its wastewater filter cake generated from its wastewater 
treatment system. Bekaert subsequently provided additional information 
to complete its petition.
    In support of its petition, Bekaert submitted: (1) Descriptions of 
its manufacturing and wastewater treatment processes, including 
schematic diagrams; (2) a list of all raw materials and Material Safety 
Data Sheets (MSDSs) for all trade name products used in the 
manufacturing and waste treatment processes; (3) results from total 
constituent analyses for fourteen metals including the eight Toxicity 
Characteristic (TC) metals listed in Sec. 261.24 (i.e., the TC metals) 
and antimony, beryllium, copper, nickel, thallium, and zinc from 
representative samples of the petitioned waste; (4) results from the 
Toxicity Characteristic Leaching Procedure (TCLP, SW-846 Method 1311) 
for fourteen metals which include the eight TC metals, and antimony, 
beryllium, copper, nickel, thallium, and zinc from representative 
samples of the petitioned waste; (5) results from total constituent 
analysis for total and reactive sulfide and cyanide for representative 
samples of the petitioned waste; (6) results from total oil and grease 
analyses from representative samples of the petitioned waste; (7) test 
results and information regarding the hazardous characteristics of 
ignitability, corrosivity, and reactivity; and (8) results from total 
constituent analyses for certain volatile and semi-volatile organic 
compounds from representative samples of the petitioned waste.
    Bekaert manufactures steel cord which is sold to the tire 
manufacturing industry for use in reinforcing tires. The steel cord is 
produced from steel rod which has been reduced in size and 
electroplated with a copper and zinc alloy.
    The manufacturing processes contribute to the petitioned waste from 
the following sources: water from the caustic scrubbers, water from the 
hydrochloric acid scrubbers, water from the rinse used to remove soap 
from wire, water from the cooling water bath following fluidized bed 
heater, waste acid from the hydrochloric acid pickling, water from the 
rinse following the zinc plating bath, water from the cooling bath 
following induction heating, phosphoric acid from the phosphoric acid 
bath, water from the phosphoric acid rinse bath and the spent oil/water 
mixture (non-petroleum) used as a lubricant in the process.
    Wastewaters from the manufacturing process are collected and stored 
in four central tanks prior to discharge to the wastewater treatment 
plant. The petitioned waste is generated from the wastewater treatment 
plant and not directly from the manufacturing process. Wastewaters are 
transferred from the holding tanks to a treatment tank where it is 
neutralized with sodium hydroxide. After neutralization, one of several 
methods are employed to remove solids: (1) A polymer is added to 
promote flocculation. This wastewater is then sent to a sludge 
thickening tank from which the sludge is sent to the filter press; (2) 
the wastewater is routed to an ultrafiltration unit to remove solids 
which are routed to the filter press; or (3) the wastewater is routed 
to a clarifier where a polymer is added to aid in solids precipitation. 
The solids are routed to the sludge thickening tank and then to the 
filter press.

[[Page 32749]]

    The petitioned waste is dropped from the filter press at the end of 
the wastewater treatment process into a 18 x 8 x 5 foot hopper. The 
F006 filter press cake is currently sent to a permitted hazardous waste 
facility for disposal.
    To collect representative samples, petitioners are normally 
requested to divide the unit into four quadrants (not exceeding 10,000 
square feet per quadrant) and randomly collect five full-depth core 
samples from each quadrant. The five full-depth core samples are then 
composited (mixed) by quadrant to produce a total of four composite 
samples. See Test Methods for Evaluating Solid Wastes: Physical/
Chemical Methods, U.S. EPA, Office of Solid Waste and Emergency 
Response, Publication SW-846 (third edition), November 1986, and 
Petitions to Delist Hazardous Wastes--A Guidance Manual, (second 
edition), U.S. EPA, Office of Solid Waste, (EPA/530-R-93-007), March 
1993.
    Bekaert submitted analytical results from five composite filter 
cake samples collected from the hoppers at five different days taken at 
intervals during a period between May 25, 1995, and July 10, 1995. This 
was done to demonstrate that the waste composition did not vary with 
time. In order account for spatial variability, grab samples were 
collected from four randomly selected sample locations based on a grid 
pattern that divided each hopper into ten grids. The entire depth 
(approximately five feet) of each hopper was sampled. A composite of 
the four grab samples was obtained to represent that day's sample.
    Bekaert developed a list of constituents of concern from comparing 
a list of all raw materials used in the plant that could potentially 
appear in the petitioned waste with those found in 40 CFR Sec. 261, 
Appendix VIII, as well as the following six constituents not found in 
Appendix VIII: acetone, ethylbenzene, isophorone, 4-methyl-2-pentanone, 
styrene, and total xylenes. Based on this review, it was not 
anticipated that any of the Appendix VIII organic compounds or any of 
the six additional organic compounds would be present in the petitioned 
waste.
    Using the list of constituents of concern, Bekaert analyzed the 
five composite samples for the total concentrations (i.e., mass of a 
particular constituent per mass of waste) of the eight TCLP metals, 
antimony, beryllium, copper, nickel, thallium, zinc, selected volatile 
and semi-volatile organic constituents, and oil and grease content. 
These five samples were also analyzed to determine whether the waste 
exhibited ignitable, corrosive, or reactive properties as defined, 
respectively, under Sec. 261.21, Sec. 261.22, and Sec. 261.23, 
including analysis for total constituent concentrations of cyanide, 
sulfide, reactive cyanide, and reactive sulfide. These five samples 
were also analyzed for TCLP concentrations (i.e., mass of a particular 
constituent per unit volume of extract) of the eight TC metals, and 
antimony, beryllium, copper, nickel, thallium, and zinc.

C. Agency Analysis

    Bekaert used SW-846 Methods 7041, 7091, 7191, and 7196A, in 
respective order, to quantify the total constituent concentrations and 
leachable (TCLP) concentrations of antimony, beryllium, chromium, and 
hexavalent chromium; and SW-846 Method 6010A was used to quantify total 
constituent concentrations and leachable (TCLP) concentrations of 
arsenic, barium, cadmium, copper, lead, nickel, selenium, silver, 
thallium, and zinc in samples. SW-846 methods 7471 and 7470 were used 
to determine total and leachable (in respective order) constituent 
concentrations for mercury.
    Using SW 846 Method 9070, Bekaert determined that the petitioned 
waste had a maximum oil and grease content of 5700 mg/kg.
    Characteristic testing was conducted on the samples of the 
petitioned waste, including analysis for reactive cyanide and reactive 
sulfide (SW-846 Methods 7.3.3.2 and 7.3.4.1, respectively), 
ignitability (ASTM D-4982B), and corrosivity (SW-846 Method 9045). 
Bekaert used SW-846 Methods 9012 and 4500 to quantify concentrations of 
the total and complexed cyanide, respectively, in the samples. Bekaert 
used Method 9030A to quantify the total constituent concentrations of 
sulfide in the samples.
    Table 1 presents the maximum total constituent and leachate 
concentrations for the eight TC metals, antimony, beryllium, copper, 
nickel, thallium, and zinc for the composite samples of the petitioned 
waste. Table 1 also presents maximum reactive cyanide and reactive 
sulfide concentrations.
    The detection limits presented in Table 1 represent the lowest 
concentrations quantifiable by Bekaert when using the appropriate SW-
846 or Agency-approved analytical methods to analyze its waste. 
(Detection limits may vary according to the waste and waste matrix 
being analyzed, i.e., the ``cleanliness'' waste matrices varies and 
``dirty'' waste matrices may cause interferences, thus raising the 
detection limits).
    Bekaert used SW-846 Methods 8240 and 8270 to quantify the total 
constituent concentrations of 30 volatile and 71 semi-volatile organic 
compounds, respectively, in the waste samples. This suite of 
constituents included all of the organic constituents listed in 
Sec. 261.24 as well as other organic compounds commonly analyzed for in 
hazardous waste samples. Bekaert used SW-846 Methods 8240, 8270, 8150A, 
3510A, and 8080 to quantify the leachable concentrations of 11 
volatile, 13 semi-volatile, 2 chlorinated herbicides, and 7 pesticides 
(all organic compounds), respectively, in the waste samples, following 
extraction by SW-846 Method 1311 (TCLP). This suite of constituents 
included all of the organic constituents listed in Sec. 261.24. Table 2 
presents the maximum total and leachate concentrations of all detected 
organic constituents in Bekaert's waste and waste extract samples. 
Lastly, on the basis of explanations and analytical data provided by 
Bekaert, none of the analyzed samples exhibited the characteristics of 
ignitability, corrosivity, or reactivity. See Sec. 261.21, Sec. 261.22 
and Sec. 261.23.

  Table 1.--Maximum Total Constituent and Leachate Concentrations (ppm) 
                         \1\ Filter Press Waste                         
------------------------------------------------------------------------
                                                     Total        TCLP  
                                                  constituent   leachate
             Inorganic constituents                 analyses    analyses
                                                    (mg/kg)      (mg/l) 
------------------------------------------------------------------------
Antimony........................................      < 0.50        0.34
Arsenic.........................................      < 5.00      < 0.05
Barium..........................................         2.5         1.3
Beryllium.......................................      < 0.10      < 0.05
Cadmium.........................................         3.1      < 0.05
Chromium........................................          68      < 0.05
Chromium (hexavalent)...........................       < 5.0      < 0.05
Copper..........................................         580          12
Lead............................................       < 5.0      < 0.10
Mercury.........................................     < 0.125     < 0.005
Nickel..........................................          43         1.1
Selenium........................................         6.4       0.091
Silver..........................................         1.2         0.2
Thallium........................................        < 10      < 0.10
Zinc............................................       16000         470
Cyanide (complexed) (total).....................        0.31       0.030
Cyanide (soluble)...............................      < 0.13          NA
Cyanide (reactive)..............................     < 0.050          NA
Sulfide (reactive)..............................         <10         NA 
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not represent the specific   
  levels found in one sample.                                           
NA Denotes that the constituent was not analyzed.                       

[[Page 32750]]

  Table 2.--Maximum Total Constituent and Leachate Concentrations (ppm) 
                         \1\ Filter Press Sludge                        
------------------------------------------------------------------------
                                                     Total        TCLP  
                                                  constituent   leachate
              Organic constituents                  analyses    analyses
                                                    (mg/kg)      (mg/l) 
------------------------------------------------------------------------
Methyl Ethyl Ketone.............................       0.120     < 0.100
Dichloromethane.................................       0.008          NA
4-Methylphenol..................................        <1.0      0.067 
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not represent the specific   
  levels found in one sample.                                           
NA Denotes that the constituent was not analyzed.                       

Bekaert submitted a signed certification stating that the maximum 
volume of filter cake generated on an annual basis is 1,022 cubic yards 
of waste. The EPA reviews a petitioner's estimates and, on occasion, 
has requested a petitioner to re-evaluate estimated waste volume. The 
EPA accepted Bekaert's certified estimate of 1,022 cubic yards of 
annual generated waste. The petition was evaluated at a waste volume of 
1,250 cubic yards of annual generated which is a more conservative 
approach and also allows for future fluctuations in waste output.
    The EPA does not generally verify submitted test data before 
proposing delisting decisions. The sworn affidavit submitted with this 
petition binds the petitioner to present truthful and accurate results. 
The EPA, however, has maintained a spot-check sampling and analysis 
program to verify the representative nature of the data for some 
percentage of the submitted petitions. A spot-check visit to a selected 
facility may be initiated before finalizing a delisting petition or 
after granting a final exclusion.

D. Agency Evaluation

    The EPA considered the appropriateness of alternative waste 
management scenarios for Bekaert's petitioned waste and decided, based 
on the information provided in the petition, that disposal in a 
municipal solid waste landfill is the most reasonable, worst-case 
scenario for this waste. Under a landfill disposal scenario, the major 
exposure route of concern for any hazardous constituents would be 
ingestion of contaminated ground water. The EPA, therefore, evaluated 
Bekaert's petitioned waste using the modified EPACML which predicts the 
potential for groundwater contamination from wastes that are 
landfilled. See 56 FR 32993 (July 18, 1991), 56 FR 67197 (December 30, 
1991), and the RCRA public docket for these notices for a detailed 
description of the EPACML model, the disposal assumptions, and the 
modifications made for delisting. This model, which includes both 
unsaturated and saturated zone transport modules, was used to predict 
reasonable worst-case contaminant levels in groundwater at a compliance 
point (i.e., a receptor well serving as a drinking water supply). 
Specifically, the model estimated the dilution/attenuation factor (DAF) 
resulting from subsurface processes such as three-dimensional 
dispersion and dilution from groundwater recharge for a specific volume 
of waste. The EPA requests comments on the use of the EPACML as applied 
to the evaluation of Bekaert's petitioned waste.
    For the evaluation of Bekaert's petitioned waste, the EPA used the 
EPACML to evaluate the mobility of the hazardous inorganic constituents 
detected in the extract of samples of Bekaert's petitioned waste. The 
EPA intends to evaluate petitions for generated wastes on a case-by-
case basis. The DAFs are currently calculated assuming an ongoing 
process generates wastes for 20 years. EPA's evaluation, using a DAF of 
96, maximum annual waste volume estimate of 1,250 cubic yards and the 
maximum reported TCLP leachate concentrations (see Table 1), yielded 
compliance-point concentrations (see Table 3) that are below the 
current health-based levels used in delisting decision-making.
    The maximum reported or calculated leachate concentrations of 
antimony, barium, copper, nickel, selenium, silver, and zinc in the 
petitioned waste yielded compliance point concentrations below the 
health-based levels used in delisting decision-making. The EPA did not 
evaluate the mobility of the remaining inorganic constituents (i.e., 
arsenic, beryllium, cadmium, chromium, lead, mercury, and thallium) in 
Bekaert's waste because they were not detected in the leachate using 
the appropriate analytical test methods (see Table 1). The EPA believes 
that it is inappropriate to evaluate nondetectable concentrations of a 
constituent of concern in its modeling efforts if the nondetectable 
value was obtained using the appropriate analytical method. If a 
constituent cannot be detected (when using the appropriate analytical 
method with an adequate detection limit), the EPA assumes that the 
constituent is not present and therefore does not present a threat to 
human health or the environment.

   Table 3.--EPACML: Calculated Compliance-Point Concentrations (ppm)   
                            Petitioned Waste                            
------------------------------------------------------------------------
                                              Compliance      Levels of 
                                                point        regulatory 
          Inorganic constituents            concentrations    concern 2 
                                              1  (mg/l)        (mg/l)   
------------------------------------------------------------------------
Antimony.................................         0.0036           0.006
Barium...................................         0.014            2.0  
Copper...................................         0.13             1.3  
Nickel...................................         0.012            0.1  
Selenium.................................         0.00096          0.05 
Silver...................................         0.002            0.2  
Zinc.....................................         4.90            10.   
------------------------------------------------------------------------
\1\ Using the maximum TCLP leachate level and based on a DAF of 96      
  calculated using the EPACML for an annual volume of 1,250 cubic yards.
                                                                        
\2\ See Docket Report on Health-Based Levels and Solubilities Used in   
  the Evaluation of Delisting Petitions, December 1994 located in the   
  RCRA public docket for today's notice.                                

    The EPA also evaluated the potential hazard of methyl ethyl ketone, 
4-methylphenol (p-cresol), and dichloromethane, the only organic 
constituents detected in the total concentrations or TCLP extract of 
samples of Bekaert's petitioned waste. Process information submitted by 
Bekaert demonstrates that organic constituents are unlikely to be 
present in the waste. Furthermore, the organic analysis submitted 
indicated only trace levels of these three constituents. In any case, 
the Agency notes that if the total levels (0.120, < 1.00, 0.008 mg/kg, 
in respective order) of these trace constituents were evaluated using 
the EPACML (conservatively assuming the total concentration of the 
constituents would leach), the compliance levels (.00125, < 0.0104, 
0.0000842 mg/l) at the theoretical compliance point would still be well 
below health-based levels (20, 2, 0.005 mg/l, in respective order).
    As reported in Table 1, reactive cyanide and reactive sulfide were 
not detected in Bekaert's petitioned waste. The detection limits are 
less than 0.050 mg/kg and less than 10 mg/kg, respectively. These 
detection limit concentrations are below the EPA's interim standards of 
250 and 500 ppm, respectively. See Interim Agency Thresholds for Toxic 
Gas Generation, July 12, 1985, internal Agency Memorandum in the RCRA 
public docket. Therefore, reactive cyanide and reactive sulfide levels 
are not of concern.
    Complexed cyanide was identified in one of the five samples 
analyzed at a total concentration of 0.31 mg/kg and at a leachable 
(TCLP extract) concentration of 0.030 mg/1. The leachable amount found 
in the one sample of waste is below the appropriate health-base

[[Page 32751]]

number of 0.2 mg/1 (see docket) even without considering the dilution 
effects of the fate and transport of the constituent. Therefore, since 
Bekaert does not use cyanide in any of their processes and the 
complexed cyanide was identified in only one sample at concentrations 
below the health-based concentration, complexed cyanide is not 
considered of concern.
    The EPA concluded, after reviewing Bekaert's processes, that no 
other hazardous constituents of concern, other than those tested for, 
are likely to be present or formed as reaction products or by-products 
in Bekaert's waste proposed for exclusion. In addition, on the basis of 
explanations and analytical data provided by Bekaert, pursuant to 
Sec. 260.22, the EPA concludes that the waste does not exhibit any of 
the characteristics of ignitability, corrosivity, or reactivity. See 
Sec. 261.21, Sec. 261.22, and Sec. 261.23, respectively.
    During the evaluation of Bekaert's petition, the EPA also 
considered the potential impact of the petitioned waste via non-ground 
water routes (i.e., air emission and surface runoff). With regard to 
airborne dispersion in particular, the EPA believes that exposure to 
airborne contaminants from Bekaert's petitioned waste is unlikely. The 
EPA evaluated the potential hazards resulting from the unlikely 
scenario of airborne exposure to hazardous constituents released from 
Bekaert's waste in an open landfill. The results of this worst-case 
analysis indicated that there is no substantial present or potential 
hazard to human health from airborne exposure to constituents from 
Bekaert's petitioned waste. A description of the EPA's assessment of 
the potential impact of Bekaert's waste, with regard to airborne 
dispersion of waste contaminants, is presented in the RCRA public 
docket for today's proposed rule.
    The EPA also considered the potential impact of the petitioned 
waste via a surface water route. The EPA believes that containment 
structures at municipal solid waste landfills can effectively control 
surface water run-off. Subtitle D regulations (see 56 FR 50978, October 
9, 1991) prohibit pollutant discharges into surface waters. 
Furthermore, the concentrations of any hazardous constituents dissolved 
in the runoff will tend to be lower than the levels in the TCLP 
leachate analyses reported in today's notice, due to the aggressive 
acid medium used for extraction in the TCLP test. The EPA believes 
that, in general, leachate derived from the waste is unlikely to enter 
a surface water body directly without first travelling through the 
saturated subsurface zone where further dilution and attenuation of 
hazardous constituents will also occur. Leachable concentrations 
provide a direct measure of the solubility of a toxic constituent in 
water, and are indicative of the fraction of the constituent that may 
be mobilized in surface water, as well as ground water. The reported 
TCLP extraction data shows that the metals that might be released from 
Bekaert's waste to surface water would be likely to remain undissolved 
or leach in concentrations that would be below health-based levels of 
concern. Finally, any transported constituents would be further diluted 
in the receiving surface water body.
    Based on the reasons discussed above, the EPA believes that 
contamination of surface water through run-off from the waste disposal 
area is very unlikely. Nevertheless, the EPA evaluated potential 
impacts on surface water if Bekaert's waste were released from a 
municipal solid waste landfill through run-off and erosion. See, the 
RCRA public docket for today's proposed rule. The estimated levels of 
the hazardous constituents of concern in surface water would be well 
below health-based levels for human health, as well as below the EPA 
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 
1987). The EPA, therefore, concluded that Bekaert's petitioned waste is 
not a substantial present or potential hazard to human health and the 
environment via the surface water exposure pathway.

E. Conclusion

    The EPA has reviewed the sampling procedures used by Bekaert and 
has determined that they satisfy the EPA criteria for collecting 
representative samples. The data submitted in support of the petition 
demonstrates, after careful evaluation, that constituents in Bekaert's 
waste are present at the compliance point below the health-based levels 
used in the delisting decision-making. The EPA believes that Bekaert 
has successfully demonstrated that the petitioned waste is non-
hazardous.
    The EPA, therefore, proposes to grant an exclusion to Bekaert Steel 
Corporation, located in Rogers, Arkansas, for the petitioned waste 
described in its petition as EPA Hazardous Waste No. F006. The EPA's 
decision to exclude this waste is based on descriptions of the process 
from which the petitioned waste is derived, descriptions of Bekaert's 
wastewater treatment process, and characterization of the petitioned 
waste. If the proposed rule is finalized, the petitioned waste will no 
longer be subject to regulation under Parts 262 through 268 and the 
permitting standards of Part 270.
    If made final, the proposed exclusion will apply only to 1,250 
cubic yards of petitioned waste generated annually, on a calendar year 
basis, through operation of Bekaert's wastewater treatment filter 
press. The facility would be required to obtain a new exclusion if 
either its manufacturing or treatment processes are significantly 
altered such that an adverse change in waste composition (for example, 
significantly higher levels of hazardous constituents) or increase in 
volume occur. Accordingly, the facility would be required to file a new 
petition for the altered waste. Additionally, the facility must treat 
waste generated either in excess of 1,250 cubic yards per year or 
generated from changed processes as hazardous until a new exclusion is 
granted.
    Although management of the waste covered by this petition would be 
removed from Subtitle C jurisdiction upon final promulgation of an 
exclusion, the generator of a delisted waste must either treat, store, 
or dispose of the waste in an on-site facility, or ensure that the 
waste is delivered to an off-site storage, treatment, or disposal 
facility, either of which is permitted, licensed, or registered by a 
State to manage municipal or industrial solid waste. Alternatively, the 
delisted waste may be delivered to a facility that beneficially uses or 
reuses, or legitimately recycles or reclaims the waste, or treats the 
waste prior to such beneficial use, reuse, recycling, or reclamation.

F. Annual Testing

    If a final exclusion is granted, the petitioner will be required to 
demonstrate, on an annual basis, that the characteristics of the 
petitioned waste remain as originally described. In order to confirm 
that the characteristics of the waste do not change significantly, the 
facility must, on an annual basis, analyze a representative composite 
sample for the constituents listed in Sec. 261.24 as well as antimony, 
copper, nickel and zinc using the method specified therein. Sampling 
and analysis must be completed by July 1 of each year. Each year's 
analytical results (including quality control information) must be 
compiled, certified according to 260.22(i)(12), maintained on-site for 
a minimum of five years, and made available for inspection upon request 
by any employee or representative of EPA or the State of Arkansas. 
Failure to maintain the required records on site will be considered by 
EPA, at its discretion, sufficient basis to revoke the exclusion to the 
extent directed by EPA.

[[Page 32752]]

    The purpose of this testing requirement is to ensure that the 
quality of the petitioned waste remains as originally described by the 
petitioner. The Agency believes that the data obtained will assist EPA 
or the State in determining whether the petitioner's manufacturing 
processes have been significantly altered, or if the waste is more 
variable than originally described by the petitioner. The Agency also 
believes that the annual retesting of the petitioned waste is not 
overly burdensome to the facility and notes that these data will assist 
the facility in complying with Sec. 262.11(c) which requires generators 
to determine whether their wastes are hazardous, as defined by the 
Toxicity Characteristic (see 40 CFR 261.24).

III. Limited Effect of Federal Exclusion

    This proposed exclusion, if promulgated, would be issued under the 
Federal (RCRA) delisting program. States, however, are allowed to 
impose their own, non-RCRA regulatory requirements that are more 
stringent than EPA's, pursuant to section 3009 of RCRA. These more 
stringent requirements may include a provision which prohibits a 
Federally-issued exclusion from taking effect in the State. Since a 
petitioner's waste may be regulated under a dual system (both Federal 
(RCRA) and State (non-RCRA) programs), petitioners are urged to contact 
their State regulatory authorities to determine the current status of 
their wastes under State law.
    Furthermore, some States are authorized to administer a delisting 
program in lieu of the Federal program, i.e., to make their own 
delisting decisions. Therefore, this proposed exclusion, if 
promulgated, would not apply in those authorized States. If the 
petitioned waste will be transported to any State with delisting 
authorization, Bekaert must obtain delisting authorization from that 
State before the waste may be managed as nonhazardous in that State.

IV. Effective Date

    This rule, if made final, will become effective immediately upon 
final publication. The Hazardous and Solid Waste Amendments of 1984 
amended Section 3010 of RCRA to allow rules to become effective in less 
than six-months when the regulated community does not need the six-
month period to come into compliance. That is the case here, because 
this rule, if finalized, would reduce the existing requirements for 
persons generating hazardous wastes. In light of the unnecessary 
hardship and expense that would be imposed on this petitioner by an 
effective date six months after publication and the fact that a six-
month deadline is not necessary to achieve the purpose of Section 3010, 
the EPA believes that this exclusion should be effective immediately 
upon final publication. These reasons also provide a basis for making 
this rule effective immediately, upon final publication, under the 
Administrative Procedure Act, pursuant to 5 U.S.C.Sec. 553(d).

V. Regulatory Impact

    Under Executive Order 12866, the EPA must conduct an ``assessment 
of the potential costs and benefits'' for all ``significant'' 
regulatory actions. This proposal to grant an exclusion is not 
significant, since its effect, if promulgated, would be to reduce the 
overall costs and economic impact of the EPA's hazardous waste 
management regulations. This reduction would be achieved by excluding 
waste generated at a specific facility from the EPA's lists of 
hazardous wastes, thereby enabling this facility to treat its waste as 
non-hazardous. There is no additional impact due to today's rule. 
Therefore, this proposal would not be a significant regulation, and no 
cost/benefit assessment is required. The Office of Management and 
Budget (OMB) has also exempted this rule from the requirement for OMB 
review under Section (6) of Executive Order 12866.

VI. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. Secs. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required, however, if the 
Administrator or delegated representative certifies that the rule will 
not have any impact on any small entities.
    This rule, if promulgated, will not have any adverse economic 
impact on any small entities since its effect would be to reduce the 
overall costs of the EPA's hazardous waste regulations and would be 
limited to one facility. Accordingly, I hereby certify that this 
proposed regulation, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. This 
regulation, therefore, does not require a regulatory flexibility 
analysis.

VII. Paperwork Reduction Act

    Information collection and recordkeeping requirements associated 
with this proposed rule have been approved by the Office of Management 
and Budget (OMB) under the provisions of the Paperwork Reduction Act of 
1980 (Pub. L. 96-511, 44 U.S.C. Sec. 3501 et seq.) and have been 
assigned OMB Control Number 2050-0053.

VIII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, which was signed into law on March 22, 1995, 
the EPA generally must prepare a written statement for rules with 
Federal mandates that may result in estimated costs to State, local, 
and tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year. When such a statement is required 
for EPA rules, under section 205 of the UMRA, the EPA must identify and 
consider alternatives, including the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. The EPA must select that alternative, unless the Administrator 
explains in the final rule why it was not selected or it is 
inconsistent with law. Before the EPA establishes regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must develop under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them meaningful and timely input in the development of the EPA 
regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements. The UMRA generally defines a Federal 
mandate for regulatory purposes as one that imposes an enforceable duty 
upon state, local or tribal governments or the private sector. The EPA 
finds that today's proposed delisting decision is deregulatory in 
nature and does not impose any enforceable duty upon state, local or 
tribal governments or the private sector. In addition, the proposed 
delisting does not establish any regulatory requirements for small 
governments and so does not require a small government agency plan 
under UMRA section 203.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

[[Page 32753]]

    Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: June 11, 1996.
Jane N. Saginaw,
Regional Administrator.

    For the reasons set out in the preamble, 40 CFR Part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for Part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    2. In Table 2 of Appendix IX of Part 261 it is proposed to add the 
following waste stream in alphabetical order by facility to read as 
follows:

Appendix IX to Part 261--Wastes Excluded Under Sec. 260.20 and 
Sec. 260.22

                                 Table 2.--Wastes Excluded From Specific Sources                                
----------------------------------------------------------------------------------------------------------------
            Facility                           Address                            Waste description             
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Bekaert Steel Corporation.......  Rogers, Arkansas................  Wastewater treatment sludge (EPA Hazardous  
                                                                     Waste No. F006) generated from             
                                                                     electroplating operations (at a maximum    
                                                                     annual rate of 1,250 cubic yards to be     
                                                                     measured on a calendar year basis) after   
                                                                     [insert publication date of the final      
                                                                     rule]. In order to confirm that the        
                                                                     characteristics of the waste do not change 
                                                                     significantly, the facility must, on an    
                                                                     annual basis, before July 1 of each year,  
                                                                     analyze a representative composite sample  
                                                                     for the constituents listed in 261.24 as   
                                                                     well as antimony, copper, nickel, and zinc 
                                                                     using the method specified therein. The    
                                                                     annual analytical results, including       
                                                                     quality control information, must be       
                                                                     compiled, certified according to Sec.      
                                                                     260.22(i)(12) of this chapter, maintained  
                                                                     on site for a minimum of five years, and   
                                                                     made available for inspection upon request 
                                                                     of any employee or representative of EPA or
                                                                     the State of Arkansas. Failure to maintain 
                                                                     the required documents on site will be     
                                                                     considered by EPA, at its discretion,      
                                                                     sufficient basis to revoke the exclusion to
                                                                     the extent directed by EPA.                
                                                                    Notification Requirements:                  
                                                                    Bekaert Steel Corporation must provide a one-
                                                                     time written notification to any State     
                                                                     Regulatory Agency to which or through which
                                                                     the delisted waste described above will be 
                                                                     transported for disposal at least 60 days  
                                                                     prior to the commencement of such          
                                                                     activities. Failure to provide such a      
                                                                     notification will result in a violation of 
                                                                     the delisting petition and a possible      
                                                                     revocation of the decision.                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------

[FR Doc. 96-15884 Filed 6-24-96; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 96-15883 Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion
[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Proposed Rules]
[Pages 32753-32765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15883]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261

[SW-FRL-5525-2]

Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Proposed Exclusion

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
grant a petition to the Texas Eastman Division of Eastman Chemical 
Company (Texas Eastman) to exclude (or ``delist''), certain solid 
wastes generated at its facility from the lists of hazardous wastes 
contained in 40 CFR 261.24, 261.31, 261.32 and 261.33 (hereinafter all 
sectional references are to 40 CFR unless otherwise indicated). This 
petition was submitted under 40 CFR 260.20, which allows any person to 
petition the Administrator to modify or revoke any provision of 40 CFR 
Parts 260 through 266, 268 and 273, and under 40 CFR 260.22, which 
specifically provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator specific'' basis from 
the hazardous waste lists. This proposed decision is based on an 
evaluation of waste-specific information provided by the petitioner. If 
this proposed decision is finalized, the petitioned waste will be 
conditionally excluded from the requirements of hazardous waste 
regulations under the Resource Conservation and Recovery Act (RCRA).

DATES: The EPA is requesting public comments on this proposed decision. 
Comments will be accepted until August 9, 1996. Comments postmarked 
after the close of the comment period will be stamped ``late.''
    Any person may request a hearing on this proposed decision by 
filing a request with Jane N. Saginaw, Regional Administrator, whose 
address appears below, by July 10, 1996. The request must contain the 
information prescribed in 40 CFR 260.20(d).

ADDRESSES: Send three copies of your comments. Two copies should be 
sent to William Gallagher, Delisting Program, Multimedia Planning and 
Permitting Division (6PD-O), U.S. Environmental Protection Agency, 
Region 6, 1445 Ross Avenue, Dallas, Texas 75202. A third copy should be 
sent to the Texas Natural Resource Conservation Commission, 12100 Park 
35 Circle, Austin, Texas 78753. Identify your comments at the top with 
this regulatory docket number: ``F-96-TXDEL-TXEASTMAN.''
    Requests for a hearing should be addressed to the Regional 
Administrator, Region 6, Environmental Protection Agency, 1445 Ross 
Avenue, Dallas, Texas 75202.
    The RCRA regulatory docket for this proposed rule is located at the 
Region 6, Environmental Protection Agency, 1445 Ross Avenue, Dallas, 
Texas 75202 and is available for viewing in the EPA library on the 12th 
floor from 8:30 a.m. to 4:00 p.m., Monday through Friday, excluding 
Federal holidays. Call (214) 665-6444 for appointments. The docket may 
also be viewed at the Texas Natural Resource Conservation Commission, 
12100 Park 35 Circle, Austin, Texas 78753. The public may copy material 
from any regulatory docket at no cost for the first 100 pages, and at 
$0.15 per page for additional copies.

FOR FURTHER INFORMATION, CONTACT: For technical information concerning 
this notice, contact Michelle Peace, Delisting Program (6PD-O), Region 
6, Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 
75202, (214) 665-7430.

[[Page 32754]]

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

    On January 16, 1981, as part of its final and interim final 
regulations implementing Section 3001 of RCRA, the EPA published an 
amended list of hazardous wastes from non-specific and specific 
sources. This list has been amended several times, and is published in 
Sec. 261.24, Sec. 261.31, Sec. 261.32 and Sec. 261.33. These wastes are 
listed as hazardous because they typically and frequently exhibit one 
or more of the characteristics of hazardous wastes identified in 
Subpart C of Part 261 (i.e., ignitability, corrosivity, reactivity, and 
toxicity) or meet the criteria for listing contained in 
Sec. 261.11(a)(2) or (a)(3).
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations generally is hazardous, a specific waste 
from an individual facility meeting the listing description may not be 
hazardous. Therefore, Sec. 260.20 and Sec. 260.22 provide an exclusion 
procedure, allowing persons to demonstrate that a specific waste from a 
particular generating facility should not be regulated as a hazardous 
waste.
    To have their wastes excluded, petitioners must show that wastes 
generated at their facilities do not meet any of the criteria for which 
the wastes were listed. See, Sec. 260.22(a) and the background 
documents for the listed wastes. In addition, the Hazardous and Solid 
Waste Amendments (HSWA) of 1984 require the EPA to consider any factors 
(including additional constituents) other than those for which the 
waste was listed, if there is a reasonable basis to believe that such 
additional factors could cause the waste to be hazardous. Accordingly, 
a petitioner also must demonstrate that the waste does not exhibit any 
of the hazardous waste characteristics (i.e., ignitability, reactivity, 
corrosivity, and toxicity), and must present sufficient information for 
the EPA to determine whether the waste contains any of the other 
identified constituents at hazardous levels. See, Sec. 260.22(a), 42 
U.S.C. 6921(f), and the background documents for the listed wastes. 
Although wastes that are ``delisted'' have been evaluated to decide 
whether they exhibit any of the characteristics of hazardous waste, 
generators remain obligated under RCRA to determine whether their waste 
remains non-hazardous based on the hazardous waste characteristics.
    In addition, residues from the treatment, storage, or disposal of 
listed hazardous wastes and mixtures containing listed hazardous wastes 
are also considered hazardous wastes. See, Secs. 261.3(a)(2)(iv) and 
(c)(2)(I), referred to as the ``mixture'' and ``derived-from'' rules, 
respectively. Such wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. On December 6, 1991, the U.S. Court of 
Appeals for the District of Columbia vacated the ``mixture/derived 
from'' rules and remanded them to the EPA on procedural grounds. See, 
Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). On March 3, 1992, 
EPA reinstated the mixture and derived-from rules, and solicited 
comments on other ways to regulate waste mixtures and residues (57 FR 
7628). On December 21, 1995, the EPA proposed rules related to waste 
mixtures and residues at 60 FR 66344 and invited public comment. These 
references should be consulted for more information regarding mixtures 
and residues.

B. Approach Used to Evaluate This Petition

    Texas Eastman's petition requests a delisting for a listed 
hazardous waste. In making the initial delisting determination, the EPA 
evaluated the petitioned waste against the listing criteria and factors 
cited in Sec. 261.11(a)(2) and (a)(3). Based on this review, the EPA 
agreed with the petitioner that the waste is non-hazardous with respect 
to the original listing criteria. (If the EPA had found, based on this 
review, that the waste remained hazardous based on the factors for 
which the waste was originally listed, the EPA would have proposed to 
deny the petition.) The EPA then evaluated the waste with respect to 
other factors or criteria to assess whether there is a reasonable basis 
to believe that such additional factors could cause the waste to be 
hazardous. The EPA considered whether the waste is acutely toxic, and 
considered the toxicity of the constituents, the concentration of the 
constituents in the waste, their tendency to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the waste, plausible and specific types of management of the petitioned 
waste, the quantities of waste generated, and waste variability.
    For this delisting determination, the EPA used such information to 
identify plausible exposure routes (i.e., ground water, surface water, 
air) for hazardous constituents present in the petitioned waste. The 
EPA determined that disposal in a Subtitle D landfill is the most 
reasonable, worst-case disposal scenario for Texas Eastman's petitioned 
waste, and that the major exposure route of concern would be ingestion 
of contaminated ground water. Therefore, the EPA is proposing to use a 
particular fate and transport model, the EPA Composite Model for 
Landfills (EPACML), to predict the maximum allowable concentrations of 
hazardous constituents that may be released from the petitioned waste 
after disposal and to determine the potential impact of the disposal of 
Texas Eastman's petitioned waste on human health and the environment. 
Specifically, the EPA used the maximum estimated waste volume and the 
maximum reported extract concentrations as inputs to estimate the 
constituent concentrations in the ground water at a hypothetical 
receptor well downgradient from the disposal site. The calculated 
receptor well concentrations (referred to as compliance-point 
concentrations) were then compared directly to the current health-based 
levels used in delisting decision-making for the hazardous constituents 
of concern.
    The EPA believes that this fate and transport model represents a 
reasonable worst-case scenario for disposal of the petitioned waste in 
a landfill, and that a reasonable worst-case scenario is appropriate 
when evaluating whether a waste should be relieved of the protective 
management constraints of RCRA Subtitle C. The use of a reasonable 
worst-case scenario results in conservative values for the compliance-
point concentrations and ensures that the waste, once removed from 
hazardous waste regulation, will not pose a threat to human health or 
the environment. Because a delisted waste is no longer subject to 
hazardous waste control, the EPA is generally unable to predict and 
does not presently control how a waste will be managed after delisting. 
Therefore, the EPA does not currently consider extensive site-specific 
factors when applying the fate and transport model. The EPA also 
considers the applicability of groundwater monitoring data during the 
evaluation of delisting petitions. The EPA normally requests 
groundwater monitoring data for wastes managed on-site to determine 
whether hazardous constituents have migrated to the underlying 
groundwater. Groundwater monitoring data provides significant 
additional information important to fully characterize the potential 
impact (if any) of the disposal of a petitioned waste on human health 
and the environment. In this case, the EPA determined that the 
groundwater

[[Page 32755]]

monitoring data was applicable to the evaluation of the petitioned 
waste. Texas Eastman's petitioned waste is transported to an on-site 
hazardous waste landfill that has been designed to meet the RCRA 
minimum technology requirements and has groundwater monitoring wells to 
monitor the landfill. The EPA believes that data collected from Texas 
Eastman's groundwater monitoring system provides a clear measure of 
whether the landfill has adversely impacted groundwater quality at the 
Texas Eastman site. The data provided from the groundwater monitoring 
system and the landfill leachate seem to indicate that no adverse 
impact on the groundwater has occurred and that the leachate collected 
from the system is currently below health based limits. The potential 
impact of these wastes on the groundwater will also be predicted 
through the application of the EPACML, fate and transport model. 
Finally, the Hazardous and Solid Waste Amendments of 1984 specifically 
require the EPA to provide notice and an opportunity for comment before 
granting or denying a final exclusion. Thus, a final decision will not 
be made until all timely public comments (including those at public 
hearings, if any) on today's proposal are addressed.

II. Disposition of Delisting Petition

    Eastman Chemical Company--Texas Eastman Division, Longview, Texas, 
75607.

A. Petition for Exclusion

    Eastman Chemical Company --Texas Eastman Division (Texas Eastman), 
located in Longview, Texas is involved in the manufacturing of organic 
chemicals and plastics. Texas Eastman petitioned the EPA for a 
conditional exclusion of approximately 7,000 cubic yards of Fluidized 
Bed Incinerator (FBI) ash generated per calendar year. The FBI ash, 
presently disposed of in an on-site hazardous waste landfill, is 
generated from the incineration of sludges from its wastewater 
treatment plant. The FBI ash is listed for 56 EPA Hazardous Waste 
Numbers due to the ``derived-from'' and mixture rules. The waste is 
listed as D001, D003, D018, D019, D021, D022, D027, D028, D029, D030, 
D032, D033, D034, D035, D036, D038, D039, D040, F001, F003, F005, K009, 
K010, U001, U002, U003, U019, U028, U031, U037, U044, U056, U069, U070, 
U107, U108, U112, U113, U115, U117, U122, U140, U147, U151, U154, U159, 
U161, U169, U190, U196, U211, U213, U226, U239, and U359. The listed 
constituents of concern for these EPA Hazardous Waste Numbers are shown 
in Table 1 (See, Part 261, Appendix VII).

   Table 1.--Hazardous Waste Codes Associated With Wastewater Streams   
------------------------------------------------------------------------
          Waste code                Basis for characteristic/listing    
------------------------------------------------------------------------
D001.........................  Ignitability.                            
D003.........................  Reactivity.                              
D018.........................  Benzene.                                 
D019.........................  Carbon Tetrachloride.                    
D021.........................  Chlorobenzene.                           
D022.........................  Chloroform.                              
D027.........................  1,4-Dichlorobenzene.                     
D028.........................  1,2-Dichloroethane.                      
D029.........................  1,1-Dichloroethylene.                    
D030.........................  2,4-Dinitrotoluene.                      
D032.........................  Hexachlorobenzene.                       
D033.........................  Hexachlorobutadiene.                     
D034.........................  Hexachloroethane.                        
D035.........................  Methyl ethyl ketone.                     
D036.........................  Nitrobenzene.                            
D038.........................  Pyridine.                                
D039.........................  Tetrachloroethylene.                     
D040.........................  Trichloroethylene                        
F001.........................  Tetrachloroethylene, methylene chloride, 
                                Trichloroethylene, 1,1,1-               
                                trichloroethane, carbon tetrachloride,  
                                chlorinated fluorocarbons.              
F002.........................  Tetrachloroethylene, methylene chloride, 
                                Trichloroethylene, 1,1,1-               
                                trichloroethane, 1,1,2-trichloroethane, 
                                chlorobenzene, 1,1,2-trichloro-1,2,2    
                                trichlorofluoroethane, ortho-           
                                dichlorobenzene, trichlorofluoromethane.
F005.........................  Toluene, methyl ethyl ketone, carbon     
                                disulfide, isobutanol, pyridine, 2-     
                                ethoxyethanol, benzene, 2-nitropropane. 
K009.........................  Chloroform, formaldehyde, methylene      
                                chloride, methyl chloride, paraldehyde, 
                                formic acid.                            
K010.........................  Chloroform, formaldehyde, methylene      
                                chloride, methyl chloride, paraldehyde, 
                                formic acid, chloroacetaldehyde.        
U001.........................  Acetaldehyde.                            
U002.........................  Acetone.                                 
U003.........................  Acetonitrile.                            
U019.........................  Benzene.                                 
U028.........................  Benzenetrichloride.                      
U031.........................  n-Butyl alcohol.                         
U037.........................  Chlorobenzene.                           
U044.........................  Chloroform.                              
U056.........................  Cyclohexane.                             
U069.........................  Dibutyl phthlate.                        
U070.........................  o-Dichlorobenzene.                       
U107.........................  Di-n-octyl-phthlate.                     
U108.........................  1,4-Diethyleneoxide.                     
U112.........................  Ethyl acetate.                           
U113.........................  Ethyl acrylate.                          
U115.........................  Ethylene oxide.                          
U117.........................  Ethyl ether.                             

[[Page 32756]]

                                                                        
U122.........................  Formaldehyde.                            
U140.........................  Isobutyl alcohol.                        
U147.........................  Maleic anhydride.                        
U151.........................  Mercury.                                 
U154.........................  Methanol.                                
U159.........................  Methyl ethyl ketone.                     
U161.........................  Methyl isobutyl ketone.                  
U169.........................  Nitrobenzene.                            
U190.........................  Phthalic anhydride.                      
U196.........................  Pyridine.                                
U211.........................  Carbon Tetrachloride.                    
U213.........................  Tetrahydrofuran                          
U226.........................  1,1,1-Trichloroethane (methyl            
                                chloroform).                            
U239.........................  Xylene.                                  
U359.........................  Ethylene glycol monoethyl ether.         
------------------------------------------------------------------------

    Texas Eastman petitioned the EPA to exclude this annual volume of 
FBI ash because it does not believe that the waste meets the criteria 
for which it was listed. Texas Eastman also believes that the waste 
does not contain any other constituents that would render it hazardous. 
Review of this petition included consideration of the original listing 
criteria, as well as the additional factors required by the HSWA of 
1984. See, Section 222 of HSWA, 42 U.S.C. Sec. 6921(f), and 40 CFR 
Sec. 260.22(d)(2)-(4). Today's proposal to grant this petition for 
delisting is the result of the EPA's evaluation of Texas Eastman's 
petition.

B. Background

    On December 29, 1994, Texas Eastman petitioned the EPA to exclude, 
from the lists of hazardous wastes contained in 40 CFR Sec. 261.31 and 
Sec. 261.32, an annual volume of incinerator ash generated from 
incineration of sludge from its wastewater treatment plant. 
Specifically, in its petition, Texas Eastman requested that the EPA 
grant a standard exclusion for 7,000 cubic yards of incinerator ash 
generated per calendar year.
     In support of its petition, Texas Eastman submitted: (1) 
descriptions of its wastewater treatment processes and the incineration 
activities associated with the petitioned waste; (2) results from total 
constituent analyses for the Toxicity Characteristic (TC) metals listed 
in Sec. 261.24 (i.e., the TC metals) antimony, arsenic, barium, 
beryllium, cadmium, chromium, cobalt, copper, lead, mercury, nickel, 
selenium, silver, thallium, tin, vanadium, and zinc from representative 
samples of the waste; (3) results from the Toxicity Characteristic 
Leaching Procedure (TCLP), (SW-846 Method 1311) for the TC metals 
antimony, arsenic, barium, beryllium, cadmium, chromium, cobalt, 
copper, lead, mercury, nickel, selenium, silver, thallium, tin, 
vanadium, and zinc from representative samples of the waste; (4) 
results from the Multiple Extraction Procedure (MEP), (SW-846 Method 
1330) for antimony, arsenic, barium, beryllium, cadmium, chromium, 
cobalt, copper, lead, mercury, nickel, selenium, silver, thallium, tin, 
vanadium, and zinc from representative samples of the waste; (5) test 
results from the total constituent analyses for dioxins/furans from 
representative samples of the waste; (6) results from total oil and 
grease analyses from representative samples of the waste; (7) test 
results and information regarding the hazardous characteristics of 
ignitability, corrosivity, and reactivity; (8) results from total 
constituent and TCLP analyses for 40 CFR Part 264 Appendix IX volatile 
and semi-volatile organic compounds from representative samples of the 
waste; and (9) results from the Land Disposal Restriction Analysis 
performed on the untreated ash. Texas Eastman also provided total 
constituent analyses and for the biological treatment sludge, scrubber 
water blowdown, influent waste water and waste liquid fuel associated 
with the generation of the FBI ash. To meet the Land Disposal 
Restriction's interim treatment standard for nickel, Texas Eastman had 
to stabilize the nickel in the FBI ash by adding a polymer. Since the 
universal treatment standards were finalized in 1995, and designated 
the TCLP treatment standard for nickel as 5.0 mg/l, Texas Eastman no 
longer has to add the polymer to the ash.
    Texas Eastman is an active organic chemical and plastics 
manufacturing plant. Current facility operations, including wastewater 
treatment, are not significantly different from the operations 
occurring at this facility for the last 10 years. There are two major 
raw materials (propane and ethane) used at the Texas Eastman facility. 
Most of the products from this facility are in similar product 
groupings, therefore the wastewater resulting from the manufacturing of 
these products is fairly well defined. Texas Eastman believes that 
several factors dampen the spatial and temporal variability that may 
occur in the wastewater: (1) the majority of wastewater volume 
generated at the Texas Eastman facility is from low strength sources 
and the high strength sources generated are from a few low volume 
sources; (2) the daily volume of wastewater flow is such that very 
large mass loading is necessary to influence the concentrations of a 
constituent reaching the wastewater treatment plant (WWTP); (3) the 
hydraulic retention time of 17 days within the WWTP is very high as 
well as the corresponding sludge age which minimizes the chance of a 
shock load influencing the resulting feed to the incinerator; (4) the 
collection system for the WWTP is equipped with ``shock'' load sensors 
and a monitoring system which prevent large mass loadings from being 
introduced into the WWTP; (5) the WWTP is equipped with emergency 
storage tanks capable of holding approximately 20 hours of influent; 
and (6) the liquid fuels used as supplemental fuels in the incinerator 
are relatively uniform in characteristics and constituents.
    During the various production processes, wastewaters are generated 
and flow into a centralized collection system. All wastewaters are 
routed to the wastewater treatment plant for treatment, via biological 
degradation, and subsequent discharge into receiving waters. To 
facilitate growth of new microorganisms, a portion of the biological 
mass (i.e., sludge) is removed from the wastewater treatment system. 
The biological sludge is routed to a storage tank and then to the FBI 
for thermal treatment. The FBI is a

[[Page 32757]]

permitted incinerator operated at a temperature of 1550 deg.F. The 
total heat content of all feeds introduced into the FBI, including the 
waste feeds and auxiliary fuels are not permitted to exceed 42 million 
BTU/hr. After incineration, the flue gases are routed through a heat 
exchanger and a venturi scrubber. A mixture of ash solids and scrubber 
water is sent to the ash thickener. This mixture is dewatered by 
passing it through a rotary vacuum filter. After being scraped from the 
filter, the ash drops into a dumpster where it is stored prior to 
disposal. The resulting FBI ash generated annually is the subject of 
Texas Eastman's delisting petition.
    Texas Eastman developed a list of constituents of concern from 
comparing a list of the wastes generated at the plant with the list of 
constituents that appear in 40 CFR Sec. 261, Appendix VIII, as well as 
the following six constituents not found in Appendix VIII: acetone, 
ethylbenzene, isophorone, 4-methyl-2-pentanone, styrene, and total 
xylenes. It was decided due to the availability of test methods and 
process knowledge, that Texas Eastman would analyze its waste for those 
constituents found in 40 CFR Sec. 264, Appendix IX, except for 
pesticides, herbicides, and polychlorinated biphenyls (PCBs).
    The sampling and analysis of the FBI ash took place in April and 
May 1994. The sampling program consisted of two individual test runs 
which together spanned 42 days. During the two test runs, two extreme 
FBI operating conditions (high sludge and high liquids) were 
represented in addition to normal operations. During one worst case 
test condition, biological treatment sludge was fed to the FBI at 
approximately 12,000 pounds per hour (lbs/hr), and waste liquid fuels 
were fed to the FBI at approximately 540 lbs/hr. During the other worst 
case test condition, waste liquid fuels were fed to the FBI at 
approximately the maximum feed rate of 684 lbs/hr and biological 
treatment sludge was fed at approximately 8,000 lbs/hr. Each test 
condition consisted of one run. The tests for extreme conditions (high 
sludge or high liquids) lasted two days due to the limited availability 
to produce sufficient sludge volume for a longer duration test. The 
tests for normal operations lasted five days. The FBI was operated 
continuously at the designated test condition throughout the test 
period. This allowed for the collection of samples of FBI ash during 
each test, yielding a total of 10 sets of FBI ash data from the eight 
tests: 8 from the individual test conditions, 1 duplicate, and 1 from 
the untreated ash. Samples of four streams (the treated and untreated 
FBI ash, biological treatment sludge, and waste liquid fuels) were 
collected at 6-hour intervals during each of the eight tests. With the 
exception of VOA vials collected for volatiles analysis, the 6-hour 
interval samples of each stream collected during each run were 
composited at the Texas Eastman facility and shipped to the analytical 
laboratories. The composite samples were analyzed for the total 
concentrations (i.e., mass of a particular constituent per mass of 
waste) of the eight TCLP metals, antimony, beryllium, cobalt, copper, 
nickel, thallium, tin, vanadium, and zinc, selected volatile and semi-
volatile organic constituents, dioxins/furans, and oil and grease 
content. The samples were also analyzed to determine whether the waste 
exhibited the reactive properties, including analysis for total 
constituent concentrations of cyanide, sulfide, reactive cyanide, and 
reactive sulfide. These samples were also analyzed for TCLP 
concentrations (i.e., mass of a particular constituent per unit volume 
of extract) of the eight TC metals, antimony, beryllium, cobalt, 
copper, nickel, thallium, tin, vanadium, zinc, and selected volatile 
and semi-volatile organic constituents.
    Texas Eastman has also collected samples of the treated and 
untreated ash to maintain compliance with the Land Disposal 
Restrictions. For compliance with LDR, the untreated ash is analyzed 
for total constituents concentrations of a select group of volatile and 
semivolatile organics expected to be present in the ash and the eight 
TCLP metals, nickel and vanadium. LDR leachate results for the treated 
ash were provided in the 1994 petition. Since, treatment of the ash is 
no longer necessary, results from four samples of the untreated ash 
have been provided to support this petition. The four samples were 
collected for four consecutive months from December 1995-March 1996.

C. Agency Analysis

    Texas Eastman used SW-846 Methods 7041, 7060, 7421, 7471, 7740, and 
7841 to quantify the total constituent concentrations of antimony, 
arsenic, lead, mercury, selenium, and thallium; and SW-846 Method 6010 
to quantify total constituent concentrations of barium, beryllium, 
cadmium, chromium, nickel, silver, vanadium, and zinc in the samples of 
FBI ash (treated and untreated), sludge,and liquid fuels. Texas Eastman 
used SW-846 Methods 9010 to quantify the total constituent 
concentrations of cyanide for these samples. Texas Eastman used 9030 to 
quantify the total constituent concentrations of sulfide.
    Using method M-413.2 from the ``Methods for Chemical Analysis of 
Water and Wastes'', EPA-600/4-79-020, March 1983, Texas Eastman 
determined that oil and grease content was not detected in the 
untreated ash.
    Texas Eastman used SW-846 Method 1311 (TCLP)/Method 6010 to 
quantify the leachable concentrations of the eight TC metals, antimony, 
beryllium, copper, cobalt, nickel, vanadium, and zinc in the ash 
samples. SW-846 Method 7471 was used for mercury analyses of the 
extracts from the samples. Texas Eastman used SW-846 Method 1311 /
Method 9010 to quantify leachable cyanide concentrations in the 
samples. The samples taken for the LDR program used SW-846 Method 1311 
(TCLP)/ Method 6010 to quantify the TC metals present in the untreated 
ash. Method 8290 was used to quantify the total concentrations of 
dioxin and furans.
    The analyses for reactive cyanide and reactive sulfide (SW-846 
Methods 7.3.3.2 and 7.3.4.2, respectively) were provided to verify that 
the untreated ash was not characteristic. The ash does not meet the 
definitions of ignitability and corrosivity provided in 40 CFR 
Sec. 261.21 (a)(2) and Sec. 261.22.
    Table 1 presents the maximum total constituent and leachate 
concentrations for the eight TC metals, antimony, beryllium, cyanide, 
nickel, vanadium, and zinc for the composite samples of the petitioned 
waste. Table 1 also presents the maximum reactive cyanide and reactive 
sulfide concentrations.
    The detection limits presented in Table 1 represent the lowest 
concentrations quantifiable by Texas Eastman when using the appropriate 
SW-846 or Agency-approved analytical methods to analyze the untreated 
ash. (Detection limits may vary according to the waste and waste matrix 
being analyzed, i.e., the ``cleanliness waste matrices varies and 
``dirty'' waste matrices may cause interferences, thus raising the 
detection limits).

[[Page 32758]]

  Table 1.--Maximum Total Constituent and Leachate Concentrations (ppm) 
                          \1\ Untreated FBI Ash                         
------------------------------------------------------------------------
                                    Total          Leachate analyses    
    Inorganic constituents       constituent ---------------------------
                                  analyses        TCLP           MEP    
------------------------------------------------------------------------
Antimony......................       12.5         0.0217         0.0092 
Arsenic.......................        1.49       <0.000647       0.0138 
Barium........................      302           0.346          0.025  
Beryllium.....................        0.4203     <0.00051       <0.00051
Cadmium.......................        1.23       <0.00386        0.0140 
Chromium (total)..............       45.4        <0.00524        0.0171 
Cobalt........................       46.7         0.0350         0.0141 
Copper........................      198           0.0783         0.00989
Lead..........................       41.3        <0.0022        <0.0022 
Mercury.......................      < 0.0125      0.0002        <0.00003
Nickel........................      837           0.411          0.176  
Selenium......................        1.30       <0.00708        0.00399
Silver........................       10.4         0.00601       <0.00519
Thallium......................      < 0.273      <0.00173       <0.00185
Tin...........................        4.16       <0.0145         0.0161 
Vanadium......................       63.1         0.0397         0.0687 
Zinc..........................     1930           0.568          0.345  
Hydrogen Cyanide..............      < 0.25                              
Hydrogen Sulfide..............     < 24.8                               
Oil and Grease................    <126                                  
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\ These levels represent the highest concentration of each constituent
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.                                  

    Texas Eastman used SW-846 Methods 8240 and 8270 to quantify the 
total constituent concentrations of 50 volatile and 115 semivolatile 
organic compounds, respectively, in the ash. This suite of constituents 
included all of the nonpesticide organic constituents listed in 
Sec. 261.24. Also, Texas Eastman used SW-846 Methods 8240 and 8270 to 
quantify the leachable concentrations of 50 volatile and 115 semi-
volatile organic compounds, respectively, in the untreated ash samples, 
following extraction by SW-846 Method 1311 (TCLP). This suite of 
constituents included all of the organic constituents listed in 
Sec. 261.24.
    In addition to analyzing the FBI ash for TC metals, samples of the 
ash were analyzed for metals using the modified multiple extraction 
procedure (MEP) (SW-846, Method 1330). The MEP simulates the long-term 
effects of leaching in a landfill and is used to determine the overall 
effectiveness of a stabilization process. During the sampling program, 
a sample of untreated ash was analyzed using the MEP test to determine 
the long-term leachability of metals. Table 2 presents the maximum 
total and leachate concentrations of all detected organic constituents 
in Texas Eastman's waste and waste extract samples. Lastly, on the 
basis of explanations and analytical data provided by Texas Eastman, 
none of the analyzed samples exhibited the characteristics of 
ignitability, corrosivity, or reactivity. See, Sec. 261.21, Sec. 261.22 
and Sec. 261.23.

  Table 2.--Maximum Total Constituent and Leachate Concentrations (ppm) 
                          \1\ Untreated FBI Ash                         
------------------------------------------------------------------------
                                                  Total         TCLP    
            Organic constituents               constituent    leachate  
                                                analyses      analyses  
------------------------------------------------------------------------
Acetone.....................................        0.021        0.059  
Benzo(a)pyrene..............................        0.0217     < 0.00441
Carbon Disulfide............................        0.0526       0.0151 
Benzo(g,h,i) perylene.......................        0.0444     < 0.00626
Indeno (1,2,3-cd) pyrene....................        0.0188     < 0.0049 
Methylene Chloride..........................        0.077      < 0.0185 
------------------------------------------------------------------------
< Denotes that the constituent was not detected at the detection limit  
  specified in the table.                                               
\1\These levels represent the highest concentration of each constituent 
  found in any one sample. These levels do not necessarily represent the
  specific levels found in one sample.                                  

    Texas Eastman submitted a signed certification stating that the 
maximum annual generation rate of the FBI ash will be 7,000 cubic yards 
of waste. The EPA reviews a petitioner's estimates and, on occasion, 
has requested a petitioner to reevaluate estimated waste volume. The 
EPA accepted Texas Eastman's certified estimate of 7,000 cubic yards of 
FBI ash.
    The EPA does not generally verify submitted test data before 
proposing delisting decisions. The sworn affidavit submitted with this 
petition binds the petitioner to present truthful and accurate results. 
The EPA, however, has maintained a spot-check sampling and analysis 
program to verify the representative nature of the data for some 
percentage of the submitted petitions. A spot-check visit to a selected 
facility may be initiated before finalizing a delisting petition or 
after granting a final exclusion.

[[Page 32759]]

D. Agency Evaluation

    The EPA considered the appropriateness of alternative waste 
management scenarios for Texas Eastman's FBI ash and decided, based on 
the information provided in the petition, that disposal in a municipal 
solid waste landfill is the most reasonable, worst-case scenario for 
this waste. Under a landfill disposal scenario, the major exposure 
route of concern for any hazardous constituents would be ingestion of 
contaminated ground water. The EPA, therefore, evaluated Texas 
Eastman's petitioned waste using the modified EPA Composite Model for 
Landfills (EPACML) which predicts the potential for groundwater 
contamination from wastes that are landfilled. See, 56 FR 32993 (July 
18, 1991), 56 FR 67197 (December 30, 1991), and the RCRA public docket 
for these notices for a detailed description of the EPACML model, the 
disposal assumptions, and the modifications made for delisting. This 
model, which includes both unsaturated and saturated zone transport 
modules, was used to predict reasonable worst-case contaminant levels 
in groundwater at a compliance point (i.e., a receptor well serving as 
a drinking water supply). Specifically, the model estimated the 
dilution/attenuation factor (DAF) resulting from subsurface processes 
such as three-dimensional dispersion and dilution from groundwater 
recharge for a specific volume of waste. The EPA requests comments on 
the use of the EPACML as applied to the evaluation of Texas Eastman's 
petitioned waste (FBI untreated ash).
    For the evaluation of Texas Eastman's petitioned waste, the EPA 
used the EPACML to evaluate the mobility of the hazardous inorganic 
constituents detected in the extract of samples of Texas Eastman's FBI 
untreated ash. DAFs are currently calculated assuming an ongoing 
process generates wastes for 20 years. The DAF for the waste volume of 
7,000 cubic yards/year assuming 20 years of generation is 45. The EPA's 
evaluation, using a DAF of 45, maximum waste volume estimate of 7,000 
cubic yards and the maximum reported TCLP or MEP leachate 
concentrations (See, Table 1), yielded compliance-point concentrations 
(See, Table 3) that are below the current health-based levels used in 
delisting decision-making.

   Table 3.--EPACML: Calculated Compliance-Point Concentrations (ppm)   
                            Untreated FBI Ash                           
------------------------------------------------------------------------
                                                              Levels of 
                                          Compliance point   regulatory 
         Inorganic constituents            concentrations    concern \2\
                                             \1\ (mg/l)        (mg/l)   
------------------------------------------------------------------------
Antimony...............................          0.00048           0.006
Arsenic................................          0.00031           0.05 
Barium.................................          0.00769           2.0  
Cadmium................................          0.00031           0.005
Chromium...............................          0.00038           0.1  
Cobalt.................................          0.00078           2.1  
Copper.................................          0.00174           1.3  
Mercury................................          0.0002            0.001
Nickel.................................          0.00913           0.1  
Selenium...............................          0.00009           0.20 
Silver.................................          0.00013           0.2  
Tin....................................          0.00036          21.0  
Vanadium...............................          0.00153           0.3  
Zinc...................................          0.01262          10.0  
------------------------------------------------------------------------
\1\ Using the maximum TCLP leachate level and based on a DAF of 45      
  calculated using the EPACML for a maximum volume generated annually of
  7,000 cubic yards.                                                    
\2\ See, ``Docket Report on Health-Based Levels and Solubilities Used in
  the Evaluation of Delisting Petitions,'' May 1996 located in the RCRA 
  public docket for today's notice.                                     

    The maximum reported or calculated leachate concentrations of 
arsenic, antimony, barium, cadmium, chromium, copper, nickel, mercury, 
selenium, silver, vanadium, and zinc in the FBI ash yielded compliance 
point concentrations well below the health-based levels used in 
delisting decision-making. The EPA did not evaluate the mobility of the 
remaining inorganic constituents (i.e., beryllium, lead, and thallium) 
from Texas Eastman's waste because they were not detected in the 
leachate using the appropriate analytical test methods (See, Table 1). 
The EPA believes that it is inappropriate to evaluate non-detectable 
concentrations of a constituent of concern in its modeling efforts if 
the non-detectable value was obtained using the appropriate analytical 
method. If a constituent cannot be detected (when using the appropriate 
analytical method with an adequate detection limit), the EPA assumes 
that the constituent is not present and therefore does not present a 
threat to human health or the environment.
    The EPA also evaluated the potential hazards of acetone and carbon 
disulfide, the organic constituents detected in the TCLP extract of 
samples of Texas Eastman's FBI ash. In particular, were these leachate 
concentrations evaluated using the EPACML, the calculated compliance-
point concentration would be 0.00131 ppm and 0.00034 ppm respectively; 
these values are significantly below the respective health based values 
of 4.
    As reported in Table 1, the concentrations of reactive cyanide and 
sulfide were not detected in Texas Eastman's untreated FBI ash. These 
concentrations are below the EPA's interim standards of 250 and 500 
ppm, respectively. See, ``Interim Agency Thresholds for Toxic Gas 
Generation,'' July 12, 1985, internal Agency Memorandum in the RCRA 
public docket. Therefore, reactive cyanide and sulfide levels are not 
of concern.
    The EPA concluded, after reviewing Texas Eastman's processes, that 
no other hazardous constituents of concern, other than those tested 
for, are likely to be present or formed as reaction products or by-
products in Texas Eastman's waste. In addition, on the basis of 
explanations and analytical data provided by Texas Eastman, pursuant to 
Sec. 260.22, the EPA concludes that the waste does not exhibit any of 
the

[[Page 32760]]

characteristics of ignitability, corrosivity, or reactivity. See, 
Sec. 261.21, Sec. 261.22, and Sec. 261.23, respectively.
    During the evaluation of Texas Eastman's petition, the EPA also 
considered the potential impact of the petitioned waste via non-ground 
water routes (i.e., air emission and surface runoff). With regard to 
airborne dispersion in particular, the EPA believes that exposure to 
airborne contaminants from Texas Eastman's petitioned waste is 
unlikely. The EPA evaluated the potential hazards resulting from the 
unlikely scenario of airborne exposure to hazardous constituents 
released from Texas Eastman's waste in an open landfill. The results of 
this worst-case analysis indicated that there is no substantial present 
or potential hazard to human health from airborne exposure to 
constituents from Texas Eastman's FBI ash. A description of the EPA's 
assessment of the potential impact of Texas Eastman's waste, with 
regard to airborne dispersion of waste contaminants, is presented in 
the RCRA public docket for today's proposed rule.
    The EPA also considered the potential impact of the petitioned 
waste via a surface water route. The EPA believes that containment 
structures at municipal solid waste landfills can effectively control 
surface water run-off, as the Subtitle D regulations (See, 56 FR 50978, 
October 9, 1991) prohibit pollutant discharges into surface waters. 
Furthermore, the concentrations of any hazardous constituents dissolved 
in the runoff will tend to be lower than the levels in the TCLP or MEP 
leachate analyses reported in today's notice, due to the aggressive 
acid medium used for extraction in the TCLP and MEP tests. The EPA 
believes that, in general, leachate derived from the waste is unlikely 
to enter a surface water body directly without first traveling through 
the saturated subsurface zone where further dilution and attenuation of 
hazardous constituents will also occur. Leachable concentrations 
provide a direct measure of the solubility of a toxic constituent in 
water, and are indicative of the fraction of the constituent that may 
be mobilized in surface water, as well as ground water. The reported 
TCLP and MEP extraction data show that the metals in Texas Eastman's 
FBI ash that might be released from Texas Eastman's waste to surface 
water would be likely to remain undissolved or leach in concentrations 
that would be below the health-based levels of concern. Finally, any 
transported constituents would be further diluted in the receiving 
surface water body.
    Based on the reasons discussed above, EPA believes that 
contamination of surface water through run-off from the waste disposal 
area is very unlikely. Nevertheless, the EPA evaluated potential 
impacts on surface water if Texas Eastman's waste were released from a 
municipal solid waste landfill through run-off and erosion. See, the 
RCRA public docket for today's proposed rule. The estimated levels of 
the hazardous constituents of concern in surface water would be well 
below health-based levels for human health, as well as below the EPA 
Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 
1987). The EPA, therefore, concluded that Texas Eastman's untreated FBI 
ash is not a substantial present or potential hazard to human health 
and the environment via the surface water exposure pathway.

E. Conclusion

    The EPA believes that the descriptions of the Texas Eastman 
incineration process and analytical characterizations, in conjunction 
with the proposed verification testing requirements (as discussed later 
in this notice), provide a reasonable basis to grant Texas Eastman's 
petition for a conditional exclusion of the untreated FBI ash. The EPA 
believes that the lack of variability between the treated and untreated 
ash samples collected from the characterization of the ash in 1994 and 
the LDR data for the untreated ash adequately represent the variations 
in the raw materials and processing. The EPA believes that the data 
submitted in support of the petition show that Texas Eastman's 
incineration process can render the sludge from the waste water 
treatment system non-hazardous. The EPA has reviewed the sampling 
procedures used by Texas Eastman and has determined that they satisfy 
EPA criteria for collecting representative samples of the variations in 
constituent concentrations of the FBI ash. The data submitted in 
support of the petition show that constituents in Texas Eastman's waste 
are presently below the health-based levels used in the delisting 
decision-making. The EPA believes that Texas Eastman has successfully 
demonstrated that the untreated FBI ash is non-hazardous.
    The EPA, therefore, proposes to grant a conditional exclusion to 
Texas Eastman, located in Longview, Texas, for the untreated FBI ash 
described in its petition. The EPA's decision to exclude this waste is 
based on descriptions of the incineration activities associated with 
the petitioned waste and characterization of the FBI ash. If the 
proposed rule is finalized, the petitioned waste will no longer be 
subject to regulation under Parts 262 through 268 and the permitting 
standards of Part 270.

F. Verification Testing Conditions

    1. Delisting Levels: All leachable concentrations for those metals 
must not exceed the following levels (ppm). Metal concentrations must 
be measured in the waste leachate by the method specified in 40 CFR 
Part 261.24.
(A) Inorganic Constituents
Antimony--0.27; Arsenic--2.25; Barium--90.0; Beryllium--0.0009; 
Cadmium--0.225; Chromium--4.5; Cobalt--94.5; Copper--58.5; Lead--0.675; 
Mercury--0.045; Nickel--4.5; Selenium--1.0; Silver--5.0; Thallium--
0.135; Tin--945.0; Vanadium--13.5; Zinc--450.0
(B) Organic Constituents
Acenaphthene--90.0
Acetone--180.0
Benzene--0.135
Benzo(a)anthracene--0.00347
Benzo(a)pyrene--0.00045
Benzo(b) fluoranthene--0.00320
Bis(2 ethylhexyl) phthalate--0.27
Butylbenzyl phthalate--315.0
Chloroform--0.45
Chlorobenzene--31.5
Carbon Disulfide--180.0
Chrysene--0.1215
1,2-Dichlorobenzene--135.0
1,4-Dichlorobenzene--0.18
Di-n-butyl phthalate--180.0
Di-n-octyl phthalate--35.0
1,4 Dioxane--0.36
Ethyl Acetate--1350.0
Ethyl Ether--315.0
Ethylbenzene--180.0
Flouranthene--45.0
Fluorene--45.0
1-Butanol--180.0
Methyl Ethyl Ketone--200.0
Methylene Chloride--0.45
Methyl Isobutyl Ketone--90.0
Naphthalene--45.0
Pyrene--45.0
Toluene--315.0
Xylenes--3150.0

    This paragraph provides the levels of constituents for which Texas 
Eastman must test the leachate from the FBI ash, below which the ash 
would be considered non-hazardous. The EPA selected the set of 
inorganic constituents specified after reviewing information about the 
composition of the waste, descriptions of Texas Eastman's treatment 
process, previous test data provided for the untreated ash and the 
health-based levels used in delisting decision-making.
    The EPA established the proposed delisting levels for this 
paragraph by

[[Page 32761]]

back-calculating the maximum allowable leachate concentrations (MALs) 
from the health-based levels (HBLs) for the constituents of concern 
using the EPACML chemical-specific DAFs of 45 (See, previous 
discussions in Section D--Agency Evaluation), i.e., MAL = HBL  x  DAF. 
These delisting levels correspond to the allowable levels measured in 
the TCLP extract of the waste.

    2. Waste Holding and Handling: Texas Eastman must store in 
accordance with its RCRA permit, or continue to dispose of as 
hazardous all FBI ash generated until the Initial and Subsequent 
Verification Testing described in Paragraph 4 and 5 below is 
completed and valid analyses demonstrate that all Verification 
Testing Conditions are satisfied. After completion of Initial and 
Subsequent Verification Testing, if the levels of constituents 
measured in the samples of the FBI ash do not exceed the levels set 
forth in Paragraph 1 above, and written notification is given by 
EPA, then the waste is non-hazardous and may be managed and disposed 
of in accordance with all applicable solid waste regulations.

    The purpose of this paragraph is to ensure that ash which contains 
hazardous levels of inorganic and organic constituents are managed and 
disposed of in accordance with Subtitle C of RCRA. Holding the waste 
until characterization is complete will protect against improper 
handling of hazardous material. If the EPA determines that the data 
collected under this condition do not support the data provided for the 
petition, the exclusion will not cover the generated incinerator ash.

    3. Verification Testing Requirements: Sample collection and 
analyses, including quality control procedures, must be performed 
according to SW-846 methodologies. If EPA judges the incineration 
process to be effective under the operating conditions used during 
the initial verification testing described in Paragraph 4 below, 
Texas Eastman may replace the testing required in Paragraph 4 with 
the testing required in Paragraph 5 below. Texas Eastman must, 
however, continue to test as specified in Paragraph 4 until notified 
by EPA in writing that testing in Paragraph 4 may be replaced by the 
testing described in Paragraph 5.
    4. Initial Verification Testing: During the first 40 operating 
days of the FBI incinerator after the final exclusion is granted, 
Texas Eastman must collect and analyze daily composites of the FBI 
ash. Daily composites must be composed of representative grab 
samples collected every 6 hours during each 24-hour FBI operating 
cycle. The FBI ash must be analyzed, prior to disposal of the ash, 
for all constituents listed in Paragraph 1. Texas Eastman must 
report the operational and analytical test data, including quality 
control information, obtained during this initial period no later 
than 90 days after the incineration of the wastewater treatment 
sludge.

    The EPA believes that an initial period of 40 days is sufficient 
for a facility to collect sufficient data to verify that the data 
provided for the untreated ash in the 1994 petition and LDR information 
is representative of the ash to be delisted.

    5. Subsequent Verification Testing: Following the completion of 
the Initial Verification Testing, Texas Eastman may request to 
monitor operating conditions and analyze samples representative of 
each quarter of operation during the first year of ash generation. 
The samples must represent the untreated ash generated over one 
quarter. Following written notification from EPA, Texas Eastman may 
begin the quarterly testing described in this Paragraph.

    The EPA believes that the concentrations of the constituents of 
concerns in the FBI ash may vary somewhat over time. As a result, in 
order to ensure that Texas Eastman's treatment process can effectively 
handle any variation in constituent concentrations in the incinerator 
ash, the EPA is proposing a subsequent verification testing condition. 
The proposed subsequent testing would verify that the FBI is operated 
in a manner similar to its operation during the initial verification 
testing and that the untreated incinerator ash does not exhibit 
unacceptable levels of toxic constituents. Therefore, the EPA is 
proposing to require Texas Eastman to analyze representative samples of 
the incinerator ash on an quarterly basis during the first year of 
waste generation. If the EPA determines that the data from the initial 
verification period demonstrates that the incineration process is 
effective, Texas Eastman may request that EPA allow it to perform 
verification testing on a quarterly basis. If approved in writing by 
EPA, then Texas Eastman may begin verification testing quarterly.

    6. Termination of Organic Testing: Texas Eastman must continue 
testing as required under Paragraph 5 for organic constituents 
specified in Paragraph 1 until the analyses submitted under 
Paragraph 5 show a minimum of two consecutive quarterly samples 
below the delisting levels in Paragraph 1. Texas Eastman may then 
request that quarterly organic testing be terminated. After EPA 
notifies Texas Eastman in writing it may terminate quarterly organic 
testing.
    7. Annual Testing: Following termination of quarterly testing 
under either Paragraphs 5 or 6, Texas Eastman must continue to test 
a representative composite sample for all constituents listed in 
Paragraph 1 (including organics) on an annual basis (no later than 
twelve months after the date that the final exclusion is effective).

    The EPA is proposing to terminate the subsequent testing conditions 
for organics as allowed in Paragraph 6 after Texas Eastman has 
demonstrated the delisting levels for the untreated ash are 
consistently met. In order to confirm that the characteristics of the 
waste do not change significantly over time, Texas Eastman must 
continue to analyze a representative sample of the untreated FBI ash 
for organic constituents on an annual basis (no later than twelve 
months after the date that the final exclusion is effective). The 
Fluidized Bed Incinerator as described in the petition has demonstrated 
its effectiveness in removing organic constituents from solid matrices, 
but not inorganic constituents. Therefore, Paragraph 1 (A), which 
requires Texas Eastman to test for the specified inorganic constituents 
of concern that may not be treated by this process, is not subject to 
the termination provision in Paragraph 6.

    8. Changes in Operating Conditions: If Texas Eastman 
significantly changes the incineration process described in its 
petition or implements any new manufacturing or production 
process(es) which generate(s) the ash and which may or could affect 
the composition or type of waste generated established under 
Paragraph 3 (by illustration {but not limitation}, use of 
stabilization reagents or operating conditions of the fluidized bed 
incinerator), Texas Eastman must notify the EPA in writing and may 
no longer handle the wastes generated from the new process as non-
hazardous until the wastes meet the delisting levels set in 
Paragraph 1 and it has received written approval to do so from EPA.

    Paragraph 8 would allow Texas Eastman the flexibility of modifying 
its processes (e.g., use of new treatment reagents or change in 
operating conditions) to improve its treatment process. However, Texas 
Eastman must demonstrate the effectiveness of the modified process and 
request approval from the EPA. Wastes generated during the new process 
demonstration must be managed as a hazardous waste until written 
approval has been obtained and Paragraph 1 is satisfied. If Texas 
Eastman changes operating conditions as described in Paragraph 8, then 
Texas Eastman must reinstate all testing in Paragraph 3, pending a new 
demonstration under this condition for termination.

    9. Data Submittals: The data obtained through Paragraph 3 must 
be submitted to Mr. William Gallagher, Chief, Region 6 Delisting 
Program, U.S. EPA, 1445 Ross Avenue, Dallas, Texas 75202-2733, Mail 
Code, (6PD-O) within the time period specified. Records of operating 
conditions and analytical data from Paragraph 3 must be compiled, 
summarized, and maintained on site for a minimum of five years. 
These records and data must be furnished upon request by EPA, or the 
State of Texas, and

[[Page 32762]]

made available for inspection. Failure to submit the required data 
within the specified time period or maintain the required records on 
site for the specified time will be considered by EPA, at its 
discretion, sufficient basis to revoke the exclusion to the extent 
directed by EPA. All data must be accompanied by a signed copy of 
the following certification statement to attest to the truth and 
accuracy of the data submitted:
    Under civil and criminal penalty of law for the making or 
submission of false or fraudulent statements or representations 
(pursuant to the applicable provisions of the Federal Code, which 
include, but may not be limited to, 18 USC Sec. 1001 and 42 USC 
Sec. 6928), I certify that the information contained in or 
accompanying this document is true, accurate and complete.
    As to the (those) identified section(s) of this document for 
which I cannot personally verify its (their) truth and accuracy, I 
certify as the company official having supervisory responsibility 
for the persons who, acting under my direct instructions, made the 
verification that this information is true, accurate and complete.
    In the event that any of this information is determined by EPA 
in its sole discretion to be false, inaccurate or incomplete, and 
upon conveyance of this fact to the company, I recognize and agree 
that this exclusion of waste will be void as if it never had effect 
or to the extent directed by EPA and that the company will be liable 
for any actions taken in contravention of the company's RCRA and 
CERCLA obligations premised upon the company's reliance on the void 
exclusion.

    To provide appropriate documentation that Texas Eastman's facility 
is properly treating the waste, all analytical data obtained through 
Paragraph 3, including quality control information, must be compiled, 
summarized, and maintained on site for a minimum of five years. 
Paragraph 9 requires that these data be furnished upon request and made 
available for inspection by any employee or representative of EPA or 
the State where the treatment facility is located.
    If made final, the proposed exclusion will apply only to the 7,000 
cubic yards generated annually of FBI ash generated during the 
treatment of its wastewater sludge in the Texas Eastman fluidized bed 
incinerator after successful verification testing. Except as described 
in Paragraph 8, the facility would be required to submit a new 
exclusion if the treatment process specified for the FBI incinerator or 
the WWTP is significantly altered. Texas Eastman would be required to 
file a new petition for any new manufacturing or production 
process(es), or significant changes from the current process(es) 
described in its petition which generates the ash or which may or could 
affect the composition or type of waste generated. The facility must 
treat any FBI ash in excess of the original 7,000 cubic yards as 
hazardous unless a new exclusion is granted.
    Although management of the waste covered by this petition would be 
removed from Subtitle C jurisdiction upon final promulgation of an 
exclusion, the generator of a delisted waste must either treat, store, 
or dispose of the waste in an on-site facility, or ensure that the 
waste is delivered to an off-site storage, treatment, or disposal 
facility, either of which is permitted, licensed, or registered by a 
State to manage municipal or industrial solid waste. Alternatively, the 
delisted waste may be delivered to a facility that beneficially uses or 
reuses, or legitimately recycles or reclaims the waste, or treats the 
waste prior to such beneficial use, reuse, recycling, or reclamation.

III. Effective Date

    This rule, if made final, will become effective immediately upon 
final publication. The Hazardous and Solid Waste Amendments of 1984 
amended Section 3010 of RCRA to allow rules to become effective in less 
than six months when the regulated community does not need the six-
month period to come into compliance. That is the case here, because 
this rule, if finalized, would reduce the existing requirements for 
persons generating hazardous wastes. In light of the unnecessary 
hardship and expense that would be imposed on this petitioner by an 
effective date six months after publication and the fact that a six-
month deadline is not necessary to achieve the purpose of Section 3010, 
EPA believes that this exclusion should be effective immediately upon 
final publication. These reasons also provide a basis for making this 
rule effective immediately, upon final publication, under the 
Administrative Procedure Act, pursuant to 5 U.S.C. Sec. 553(d).

IV. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions. This proposal to grant an exclusion is not significant, since 
its effect, if promulgated, would be to reduce the overall costs and 
economic impact of EPA's hazardous waste management regulations. This 
reduction would be achieved by excluding waste generated at a specific 
facility from EPA's lists of hazardous wastes, thereby enabling this 
facility to treat its waste as non-hazardous. There is no additional 
impact due to today's rule. Therefore, this proposal would not be a 
significant regulation, and no cost/benefit assessment is required. The 
Office of Management and Budget (OMB) has also exempted this rule from 
the requirement for OMB review under Section (6) of Executive Order 
12866.

V. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. Secs. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the impact of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required, however, if the 
Administrator or delegated representative certifies that the rule will 
not have any impact on any small entities.
    This rule, if promulgated, will not have any adverse economic 
impact on any small entities since its effect would be to reduce the 
overall costs of EPA's hazardous waste regulations and would be limited 
to one facility. Accordingly, I hereby certify that this proposed 
regulation, if promulgated, will not have a significant economic impact 
on a substantial number of small entities. This regulation, therefore, 
does not require a regulatory flexibility analysis.

VI. Paperwork Reduction Act

    Information collection and recordkeeping requirements associated 
with this proposed rule have been approved by the Office of Management 
and Budget (OMB) under the provisions of the Paperwork Reduction Act of 
1980 (Pub. L. 96-511, 44 U.S.C. Sec. 3501 et seq.) and have been 
assigned OMB Control Number 2050-0053.

VII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``UMRA''), Public Law 104-4, which was signed into law on March 22, 
1995, EPA generally must prepare a written statement for rules with 
Federal mandates that may result in estimated costs to State, local, 
and tribal governments in the aggregate, or to the private sector, of 
$100 million or more in any one year. When such a statement is required 
for EPA rules, under section 205 of the UMRA, EPA must identify and 
consider alternatives, including the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. EPA must select that alternative, unless the Administrator 
explains in the final rule why it was not selected or it is 
inconsistent with law. Before EPA

[[Page 32763]]

establishes regulatory requirements that may significantly or uniquely 
affect small governments, including tribal governments, it must develop 
under section 203 of the UMRA a small government agency plan. The plan 
must provide for notifying potentially affected small governments, 
giving them meaningful and timely input in the development of EPA 
regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements. The UMRA generally defines a Federal 
mandate for regulatory purposes as one that imposes an enforceable duty 
upon state, local or tribal governments or the private sector. EPA 
finds that today's proposed delisting decision is deregulatory in 
nature and does not impose any enforceable duty upon state, local or 
tribal governments or the private sector. In addition, the proposed 
delisting does not establish any regulatory requirements for small 
governments and so does not require a small government agency plan 
under UMRA section 203.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

    Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: June 11, 1996.
Jane N. Saginaw,
Regional Administrator.

    For the reasons set out in the preamble, 40 CFR Part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for Part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    2. In Tables 1, 2, and 3 of Appendix IX of Part 261 it is proposed 
to add the following waste stream in alphabetical order by facility to 
read as follows:

Appendix IX to Part 261--Wastes Excluded Under Sec. 260.20 and 
260.22.

                               Table 1.--Wastes Excluded From Non-Specific Sources                              
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                             Waste description              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Texas Eastman..................  Longview, Texas................  Incinerator ash (at a maximum generation of   
                                                                   7,000 cubic yards per calendar year)         
                                                                   generated from the incineration of sludge    
                                                                   from the wastewater treatment plant (EPA     
                                                                   Hazardous Waste No.D001, D003, D018, D019,   
                                                                   D021, D022, D027, D028, D029, D030, D032,    
                                                                   D033, D034, D035, D036, D038, D039, D040,    
                                                                   F001, F002, F003, F005, after [insert        
                                                                   publication date of the final rule]. Texas   
                                                                   Eastman must implement a testing program that
                                                                   meets the following conditions for the       
                                                                   petition to be valid:                        
                                                                  1. Delisting Levels: All leachable            
                                                                   concentrations for those metals must not     
                                                                   exceed the following levels (ppm). Metal     
                                                                   concentrations must be measured in the waste 
                                                                   leachate by the method specified in 40 CFR   
                                                                   Part 261.24.                                 
                                                                                                                
                                                                            (A) Inorganic Constituents          
                                                                                                                
                                                                  Antimony--0.27; Arsenic--2.25; Barium--90.0;  
                                                                   Beryllium--0.0009; Cadmium--0.225; Chromium--
                                                                   4.5; Cobalt--94.5; Copper--58.5; Lead--0.675;
                                                                   Mercury--0.045; Nickel--4.5; Selenium--1.0;  
                                                                   Silver--5.0; Thallium--0.135; Tin--945.0;    
                                                                   Vanadium--13.5; Zinc--450.0.                 
                                                                             (B) Organic Constituents           
                                                                                                                
                                                                  Acenaphthene--90.0; Acetone--180.0; Benzene-- 
                                                                   0.135; Benzo(a)anthracene--0.00347;          
                                                                   Benzo(a)pyrene--0.00045; Benzo(b)            
                                                                   fluoranthene--0.00320; Bis(2 ethylhexyl)     
                                                                   phthalate--0.27; Butylbenzyl phthalate--     
                                                                   315.0; Chloroform--0.45; Chlorobenzene--31.5;
                                                                   Carbon Disulfide--180.0; Chrysene--0.1215;   
                                                                   1,2-Dichlorobenzene--135.0; 1,4-             
                                                                   Dichlorobenzene--0.18; Di-n-butyl phthalate--
                                  
FR Doc. 96-15883 Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion
                                 180.0; Di-n-octyl phthalate--35.0; 1,4       
                                                                   Dioxane--0.36; Ethyl Acetate--1350.0; Ethyl  
                                                                   Ether--315.0; Ethylbenzene--180.0;           
                                                                   Flouranthene--45.0; Fluorene--45.0; 1-       
                                                                   Butanol--180.0; Methyl Ethyl Ketone--200.0;  
                                                                   Methylene Chloride--0.45; Methyl Isobutyl    
                                                                   Ketone--90.0; Naphthalene--45.0; Pyrene--    
                                                                   45.0; Toluene--315.0; Xylenes--3150.0.       
                                                                  2. Waste Holding and Handling: Texas Eastman  
                                                                   must store in accordance with its RCRA       
                                                                   permit, or continue to dispose of as         
                                                                   hazardous all FBI ash generated until the    
                                                                   Initial and Subsequent Verification Testing  
                                                                   described in Paragraph 4 and 5 below is      
                                                                   completed and valid analyses demonstrate that
                                                                   all Verification Testing Conditions are      
                                                                   satisfied. After completion of Initial and   
                                                                   Subsequent Verification Testing, if the      
                                                                   levels of constituents measured in the       
                                                                   samples of the FBI ash do not exceed the     
                                                                   levels set forth in Paragraph 1 above, and   
                                                                   written notification is given by EPA, then   
                                                                   the waste is non-hazardous and may be managed
                                                                   and disposed of in accordance with all       
                                                                   applicable solid waste regulations.          
                                                                  3. Verification Testing Requirements: Sample  
                                                                   collection and analyses, including quality   
                                                                   control procedures, must be performed        
                                                                   according to SW-846 methodologies. If EPA    
                                                                   judges the incineration process to be        
                                                                   effective under the operating conditions used
                                                                   during the initial verification testing      
                                                                   described in Paragraph 4 below, Texas Eastman
                                                                   may replace the testing required in Paragraph
                                                                   4 with the testing required in Paragraph 5   
                                                                   below. Texas Eastman must, however, continue 
                                                                   to test as specified in Paragraph 4 until    
                                                                   notified by EPA in writing that testing in   
                                                                   Paragraph 4 may be replaced by the testing   
                                                                   described in Paragraph 5.                    
                                                                  4. Initial Verification Testing: During the   
                                                                   first 40 operating days of the FBI           
                                                                   incinerator after the final exclusion is     
                                                                   granted, Texas Eastman must collect and      
                                                                   analyze daily composites of the FBI ash.     
                                                                   Daily composites must be composed of         
                                                                   representative grab samples collected every 6
                                                                   hours during each 24-hour FBI operating      
                                                                   cycle. The FBI ash must be analyzed, prior to
                                                                   disposal of the ash, for all constituents    
                                                                   listed in Paragraph 1. Texas Eastman must    
                                                                   report the operational and analytical test   
                                                                   data, including quality control information, 
                                                                   obtained during this initial period no later 
                                                                   than 90 days after the incineration of the   
                                                                   wastewater treatment sludge.                 

[[Page 32764]]

                                                                                                                
                                                                  5. Subsequent Verification Testing: Following 
                                                                   the completion of the Initial Verification   
                                                                   Testing, Texas Eastman may request to monitor
                                                                   operating conditions and analyze samples     
                                                                   representative of each quarter of operation  
                                                                   during the first year of ash generation. The 
                                                                   samples must represent the untreated ash     
                                                                   generated over one quarter. Following written
                                                                   notification from EPA, Texas Eastman may     
                                                                   begin the quarterly testing described in this
                                                                   Paragraph.                                   
                                                                  6. Termination of Organic Testing: Texas      
                                                                   Eastman must continue testing as required    
                                                                   under Paragraph 5 for organic constituents   
                                                                   specified in Paragraph 1 until the analyses  
                                                                   submitted under Paragraph 5 show a minimum of
                                                                   two consecutive quarterly samples below the  
                                                                   delisting levels in Paragraph 1. Texas       
                                                                   Eastman may then request that quarterly      
                                                                   organic testing be terminated. After EPA     
                                                                   notifies Texas Eastman in writing it may     
                                                                   terminate quarterly organic testing.         
                                                                  7. Annual Testing: Following termination of   
                                                                   quarterly testing under either Paragraphs 5  
                                                                   or 6, Texas Eastman must continue to test a  
                                                                   representative composite sample for all      
                                                                   constituents listed in Paragraph 1 (including
                                                                   organics) on an annual basis (no later than  
                                                                   twelve months after the date that the final  
                                                                   exclusion is effective).                     
                                                                  8. Changes in Operating Conditions: If Texas  
                                                                   Eastman significantly changes the            
                                                                   incineration process described in its        
                                                                   petition or implements any new manufacturing 
                                                                   or production process(es) which generate(s)  
                                                                   the ash and which may or could affect the    
                                                                   composition or type of waste generated       
                                                                   established under Paragraph 3 (by            
                                                                   illustration {but not limitation}, use of    
                                                                   stabilization reagents or operating          
                                                                   conditions of the fluidized bed incinerator),
                                                                   Texas Eastman must notify the EPA in writing 
                                                                   and may no longer handle the wastes generated
                                                                   from the new process as non-hazardous until  
                                                                   the wastes meet the delisting levels set in  
                                                                   Paragraph 1 and it has received written      
                                                                   approval to do so from EPA.                  
                                                                  9. Data Submittals: The data obtained through 
                                                                   Paragraph 3 must be submitted to Mr. William 
                                                                   Gallagher, Chief, Region 6 Delisting Program,
                                                                   U.S. EPA, 1445 Ross Avenue, Dallas, Texas    
                                                                   75202-2733, Mail Code, (6PD-O) within the    
                                                                   time period specified. Records of operating  
                                                                   conditions and analytical data from Paragraph
                                                                   3 must be compiled, summarized, and          
                                                                   maintained on site for a minimum of five     
                                                                   years. These records and data must be        
                                                                   furnished upon request by EPA, or the State  
                                                                   of Texas, and made available for inspection. 
                                                                   Failure to submit the required data within   
                                                                   the specified time period or maintain the    
                                                                   required records on site for the specified   
                                                                   time will be considered by EPA, at its       
                                                                   discretion, sufficient basis to revoke the   
                                                                   exclusion to the extent directed by EPA. All 
                                                                   data must be accompanied by a signed copy of 
                                                                   the following certification statement to     
                                                                   attest to the truth and accuracy of the data 
                                                                   submitted:                                   
                                                                  Under civil and criminal penalty of law for   
                                                                   the making or submission of false or         
                                                                   fraudulent statements or representations     
                                                                   (pursuant to the applicable provisions of the
                                                                   Federal Code, which include, but may not be  
                                                                   limited to, 18 USC Sec.  1001 and 42 USC Sec.
                                                                    6928), I certify that the information       
                                                                   contained in or accompanying this document is
                                                                   true, accurate and complete.                 
                                                                  As to the (those) identified section(s) of    
                                                                   this document for which I cannot personally  
                                                                   verify its (their) truth and accuracy, I     
                                                                   certify as the company official having       
                                                                   supervisory responsibility for the persons   
                                                                   who, acting under my direct instructions,    
                                                                   made the verification that this information  
                                                                   is true, accurate and complete.              
                                                                  In the event that any of this information is  
                                                                   determined by EPA in its sole discretion to  
                                                                   be false, inaccurate or incomplete, and upon 
                                                                   conveyance of this fact to the company, I    
                                                                   recognize and agree that this exclusion of   
                                                                   waste will be void as if it never had effect 
                                                                   or to the extent directed by EPA and that the
                                                                   company will be liable for any actions taken 
                                                                   in contravention of the company's RCRA and   
                                                                   CERCLA obligations premised upon the         
                                                                   company's reliance on the void exclusion.    
                                                                  10. Notification Requirements:  Texas Eastman 
                                                                   must provide a one-time written notification 
                                                                   to any State Regulatory Agency to which or   
                                                                   through which the delisted waste described   
                                                                   above will be transported for disposal at    
                                                                   least 60 days prior to the commencement of   
                                                                   such activities. Failure to provide such a   
                                                                   notification will result in a violation of   
                                                                   the delisting petition and a possible        
                                                                   revocation of the decision.                  
----------------------------------------------------------------------------------------------------------------

                                 Table 2.--Wastes Excluded From Specific Sources                                
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                             Waste description              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Texas Eastman..................  Longview, Texas................  Incinerator ash (at a maximum generation of   
                                                                   7,000 cubic yards per calendar year)         
                                                                   generated from the incineration of sludge    
                                                                   from the wastewater treatment plant (EPA     
                                                                   Hazardous Waste No. K009 and K010, after     
                                                                   [insert publication date of the final rule]. 
                                                                   Texas Eastman must implement a testing       
                                                                   program that meets conditions found in Table 
                                                                   1. Wastes Excluded From Non-Specific Sources 
                                                                   for the petition to be valid.                
----------------------------------------------------------------------------------------------------------------

[[Page 32765]]

 Table 3.--Wastes Excluded From Commercial Chemical Products, Off-Specification Species, Container Residues, and
                                              Soil Residues Thereof                                             
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                             Waste description              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                         *                                                      
Texas Eastman..................  Longview, Texas................  Incinerator ash (at a maximum generation of   
                                                                   7,000 cubic yards per calendar year)         
                                                                   generated from the incineration of sludge    
                                                                   from the wastewater treatment plant (EPA     
                                                                   Hazardous Waste No. U001, U002, U003, U019,  
                                                                   U028, U031, U037, U044, U056, U069, U070,    
                                                                   U107, U108, U112, U113, U115, U117, U122,    
                                                                   U140, U147, U151, U154, U159, U161, U169,    
                                                                   U190, U196, U211, U213, U226, U239, and U359,
                                                                   after [insert publication date of the final  
                                                                   rule]. Texas Eastman must implement the      
                                                                   testing program described in Table 1. Wastes 
                                                                   Excluded From Non-Specific Sources for the   
                                                                   petition to be valid.                        
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------

[FR Doc. 96-15883 Filed 6-24-96; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 96-15882 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List
[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Proposed Rules]
[Pages 32765-32766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15882]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5525-3]

National Oil and Hazardous Substances Pollution Contingency Plan; 
National Priorities List
AGENCY: Environmental Protection Agency.

ACTION: Notice of Intent to Delete the Omega Hills North Landfill 
Superfund Site from the National Priorities List; Request for Comments.

-----------------------------------------------------------------------

SUMMARY: The United States Environmental Protection Agency (U.S. EPA) 
Region V announces its intent to delete the Omega Hills Landfill Site 
from the National Priorities List (NPL) and requests public comment on 
this action. The NPL constitutes Appendix B to the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP), which U.S. EPA 
promulgated pursuant to Section 105 of the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 (CERCLA) as amended. 
This action is being taken by U.S. EPA, because it has been determined 
that all Fund-financed responses under CERCLA have been implemented and 
U.S. EPA, in consultation with the State of Wisconsin, has determined 
that no further response is appropriate. Moreover, U.S. EPA and the 
State have determined that remedial activities conducted at the Site to 
date have been protective of public health, welfare, and the 
environment.

DATE: Comments concerning the proposed deletion of the Site from the 
NPL may be submitted on or before July 25, 1996.

ADDRESSES: Comments may be mailed to Gladys Beard, Associate Remedial 
Project Manager, Superfund Division, U.S. EPA, Region V, 77 W. Jackson 
Blvd. (SR-6J), Chicago, IL 60604. Comprehensive information on the site 
is available at U.S. EPA's Region V office and at the local information 
repository located at: Wisconsin Department of Natural Resources, 101 
S. Webster, Madison, WI 53707. Requests for comprehensive copies of 
documents should be directed formally to the Region V Docket Office. 
The address and phone number for the Regional Docket Officer is Jan 
Pfundheller (H-7J), U.S. EPA, Region V, 77 W. Jackson Blvd., Chicago, 
IL 60604, (312) 353-5821.

FOR FURTHER INFORMATION CONTACT: Gladys Beard (SR-6J), Associate 
Remedial Project Manager, Superfund Division, U.S. EPA, Region V, 77 W. 
Jackson Blvd., Chicago, IL 60604, (312) 886-7253 or Susan Pastor (P-
19J), Office of Public Affairs, U.S. EPA, Region V, 77 W. Jackson 
Blvd., Chicago, IL 60604, (312) 353-1325.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Basis for Intended Site Deletion
I. Introduction
    The U.S. Environmental Protection Agency (EPA) Region V announces 
its intent to delete the Omega Hills North Landfill Site from the 
National Priorities List (NPL), which constitutes Appendix B of the 
National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 
and requests comments on the proposed deletion. The EPA identifies 
sites that appear to present a significant risk to public health, 
welfare or the environment, and maintains the NPL as the list of those 
sites. Sites on the NPL may be the subject of remedial actions financed 
by the Hazardous Substance Superfund Response Trust Fund (Fund). 
Pursuant to Section 300.425(e)(3) of the NCP, any site deleted from the 
NPL remains eligible for Fund-financed remedial actions if the 
conditions at the site warrant such action.
    The U.S. EPA will accept comments on this proposal for thirty (30) 
days after publication of this notice in the Federal Register.
    Section II of this notice explains the criteria for deleting sites 
from the NPL. Section III discusses procedures that EPA is using for 
this action. Section IV discusses the history of this site and explains 
how the site meets the deletion criteria.
    Deletion of sites from the NPL does not itself create, alter, or 
revoke any individual's rights or obligations. Furthermore, deletion 
from the NPL does not in any way alter U.S. EPA's right to take 
enforcement actions, as appropriate. The NPL is designed primarily for 
informational purposes and to assist in Agency management.
II. NPL Deletion Criteria
    The NCP establishes the criteria the Agency uses to delete sites 
from the NPL. In accordance with 40 CFR 300.425(e), sites may be 
deleted from the NPL where no further response is appropriate. In 
making this determination, U.S. EPA will consider, in consultation with 
the State, whether any of the following criteria have been met:
    (i) Responsible parties or other persons have implemented all 
appropriate response actions required; or
    (ii) All appropriate Fund-financed responses under CERCLA have been 
implemented, and no further response action by responsible parties is 
appropriate; or
    (iii) The Remedial Investigation has shown that the release poses 
no significant threat to public health or the environment and, 
therefore, remedial measures are not appropriate.
III. Deletion Procedures
    Upon determination that at least one of the criteria described in 
300.425(e) has been met, U.S. EPA may formally begin deletion 
procedures once the State has concurred. This Federal Register

[[Page 32766]]

notice, and a concurrent notice in the local newspaper in the vicinity 
of the site, announce the initiation of a 30-day comment period. The 
public is asked to comment on U.S. EPA's intention to delete the Site 
from the NPL. All critical documents needed to evaluate U.S. EPA's 
decision are included in the information repository and the deletion 
docket.
    Upon completion of the public comment period, if necessary, the 
U.S. EPA Regional Office will prepare a Responsiveness Summary to 
evaluate and address comments that were received. The public is welcome 
to contact the U.S. EPA Region V Office to obtain a copy of this 
responsiveness summary, if one is prepared. If U.S. EPA then determines 
the deletion from the NPL is appropriate, final notice of deletion will 
be published in the Federal Register.

IV. Basis for Intended Site Deletion

    The Omega Hills North Landfill is located in the Village of 
Germantown in Washington County, Wisconsin. The Omega Hills North 
Landfill is a former hazardous and solid waste disposal site. The 
landfill is closed. A clay cover was completed October 1, 1989. 
Contaminants at the site include benzene, vinyl chloride, 
trichloroethylene, and cis 1,-dichloroethylene. Contamination from the 
site extends to bedrock and sand seams located beneath the site to an 
approximate depth of 95 feet. Groundwater contamination (chiefly 
trichloroethylene) has been detected in private wells near the site. 
Residents in the area now use municipal water. The site has undergone 
remediation in the form of installing treatment systems that address 
groundwater, leachate, gas and surface water runoff contamination. The 
potential for continuing migration of contaminants due to groundwater 
movement is a public health concern and is addressed with regular 
monitoring of wells in the area of the site.
    The Omega Hills North Landfill is an 83-acre site that is part of a 
two-site complex. The Omega Hills North Landfill, which is now closed, 
operated as a municipal and industrial waste disposal site that was 
licensed to accept hazardous waste from 1977 to 1982. One of the 
largest landfills in the state, the Omega Hills complex is located in 
the extreme southeastern corner of Washington County near metropolitan 
Milwaukee. The site was proposed for the NPL in September 1983. The 
listing was finalized in September 21, 1984, Federal Register number 
49, volume number 185 and page number 37070-37090.
    Soils at the site are generally fine grained, but there are major 
sand layers that extend vertically to the bedrock and serve as recharge 
zones. An ineffective leachate collection system and large amounts of 
liquid waste allowed very high leachate head levels to develop. Wells 
in the area draw from the underlying Niagara dolomite.
    The sand and underlying dolomite serve as conduits for contaminant 
migration. Hydrogeologic investigations conducted during 1981 through 
1983 detected a groundwater divide that exists within the bedrock 
aquifer along the northwest side of the landfill. A stream to the west 
of the site also inhibits groundwater flow to the west.
    After becoming saturated, layers of sand that intersect the bottom 
and sides of the landfill serve as conduits for transmitting liquid 
wastes and leachate to surrounding groundwater. Data from monitoring 
wells around the landfill indicates that groundwater is contaminated. 
Some nearby wells rely on the same aquifer for water.
    A medical waste incinerator and a methane gas power plant are 
located on the site.
    Remediation activities began at this site in the early 1980's and a 
significant portion of the environmental cleanup has been completed. 
All of this work has been implemented under state solid hazardous waste 
authority and it is EPA's intent to continue using existing state 
environmental regulations to require the on-going long-term care 
activities such as environmental monitoring, leachate extraction and 
treatment, routine maintenance, as well as additional remediation work 
as necessary.
    The majority of the cleanup has been completed. Federal CERCLA 
authorities have not been used to compel any cleanup actions at this 
site. Instead, cleanup activities at the site were initiated using the 
State's authority under RCRA. The State will also require long-term 
operation and maintenance of the site using these RCRA authorities. Any 
future cleanup activities will be addressed using State RCRA 
authorities. As a result, the site should be removed from the NPL.
    EPA, with concurrence from the State of Wisconsin, has determined 
that all appropriate Fund-financed responses under CERCLA at the Omega 
Hills North Landfill Superfund Site have been completed, and no further 
CERCLA response is appropriate in order to provide protection of human 
health and the environment. Therefore, EPA proposes to delete the site 
from the NPL.

    Dated: June 11, 1996.
Valdas V. Adamkus,
Regional Administrator, U.S. EPA, Region V.
[FR Doc. 96-15882 Filed 6-24-96; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 96-15831 Modifications of Bad Debts and Dealer Assignments of Notional Principal Contracts
[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Proposed Rules]
[Pages 32728-32729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15831]

-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY
Internal Revenue Service

26 CFR Part 1

[FI-59-94]
RIN 1545-AT08

Modifications of Bad Debts and Dealer Assignments of Notional 
Principal Contracts

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking by cross-reference to temporary 
regulations.

-----------------------------------------------------------------------

SUMMARY: In the Rules and Regulations section of this issue of the 
Federal Register, the IRS is issuing temporary regulations relating to 
the allowance of a deduction for a partially worthless debt when the 
terms of a debt instrument have been modified. The temporary 
regulations provide relief to certain taxpayers that are required to 
recognize gain as the result of modifying a debt instrument, when a 
portion of the gain is in part caused by a reduction of the debt's 
basis attributable to a bad debt deduction claimed in a prior taxable 
year. The temporary regulations provide guidance to taxpayers that 
modify the terms of a debt instrument after deducting an amount for 
partial worthlessness.
    In the Rules and Regulations section of this issue of the Federal 
Register, the IRS is also issuing temporary regulations relating to 
certain assignments of notional principal contracts by dealers in those 
contracts. The temporary regulations provide guidance to taxpayers 
relating to consequences of these assignments.
    The text of those temporary regulations also serves as the text of 
these proposed regulations.

DATES: Written comments and requests for a public hearing must be 
received by September 23, 1996.

ADDRESSES: Send submissions to: CC:DOM:CORP:R (FI-59-94), room 5228, 
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, 
DC 20044. In the alternative, submissions may be hand delivered between 
the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:R (FI-59-94), Courier's 
Desk, Internal Revenue Service, 1111 Constitution Avenue NW., 
Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Craig R. Wojay, Office of Assistant 
Chief Counsel, Financial Institutions and Products, (202) 622-3920 (not 
a toll-free number) concerning the modifications of bad debts, and 
Thomas J. Kelly, Office of Assistant Chief Counsel, Financial 
Institutions and Products, (202) 622-3940 (not a toll-free number) 
concerning dealer assignments of notional principal contracts.

SUPPLEMENTARY INFORMATION:

Background

    Temporary regulations in the Rules and Regulations section of this 
issue of the Federal Register amend the Income Tax Regulations (26 CFR 
part 1) relating to section 166. The temporary regulations contain 
rules relating to the requirement that a debt be charged off before a 
deduction on account of partial worthlessness is allowed. The rules 
apply to certain taxpayers who are required to recognize gain as the 
result of a significant modification of a debt instrument.
    Temporary regulations in the Rules and Regulations section of this 
issue of the Federal Register amend the Income Tax Regulations (26 CFR 
part 1) relating to section 1001. The temporary regulations contain 
rules relating to certain assignments of notional principal contracts 
by dealers in those contracts.
    The text of those temporary regulations also serves as the text of 
these proposed regulations. The preamble to the temporary regulations 
explains the temporary regulations.

Special Analyses

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in EO 12866. Therefore, 
a regulatory assessment is not required. It also has

[[Page 32729]]

been determined that section 553(b) of the Administrative Procedure Act 
(5 U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. 
chapter 6) do not apply to these regulations, and, therefore, a 
Regulatory Flexibility Analysis is not required. Pursuant to section 
7805(f) of the Internal Revenue Code, this notice of proposed 
rulemaking will be submitted to the Chief Counsel for Advocacy of the 
Small Business Administration for comment on its impact on small 
business.

Comments and Requests for a Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written comments (a signed original 
and eight (8) copies) that are submitted timely to the IRS. All 
comments will be available for public inspection and copying. A public 
hearing may be scheduled if requested in writing by any person that 
timely submits written comments. If a public hearing is scheduled, 
notice of the date, time, and place for the hearing will be published 
in the Federal Register.

Drafting Information

    The principal author of the regulations concerning the 
modifications of bad debts is Craig R. Wojay, Office of Assistant Chief 
Counsel (Financial Institutions and Products), IRS. The principal 
author of the regulations concerning dealer assignments of notional 
principal contracts is Thomas J. Kelly, Office of Assistant Chief 
Counsel (Financial Institutions and Products), IRS. However, other 
personnel from the IRS and Treasury Department participated in their 
development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

    Authority: 26 U.S.C. 7805 * * *

    Par. 2. Section 1.166-3 is amended by adding paragraph (a)(3) to 
read as follows:

Sec. 1.166-3  Partial or total worthlessness.

    (The text of proposed paragraph (a)(3) is the same as the text of 
Sec. 1.166-3T(a)(3) published elsewhere in this issue of the Federal 
Register).
    Par. 3. Section 1.1001-4 is added to read as follows:

Sec. 1.1001-4  Modifications of notional principal contracts.

    (The text of proposed section 1.1001-4 is the same as the text of 
Sec. 1.1001-4T published elsewhere in this issue of the Federal 
Register).
Margaret Milner Richardson,
Commissioner of Internal Revenue,
[FR Doc. 96-15831 Filed 6-24-96; 8:45 am]
BILLING CODE 4830-01-P

Complete official Federal Register PDF

FR Doc. 96-14441 Corporate Governance
[Federal Register Volume 61, Number 123 (Tuesday, June 25, 1996)]
[Proposed Rules]
[Pages 32713-32728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14441]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 61, No. 123 / Tuesday, June 25, 1996 / 
Proposed Rules

[[Page 32713]]

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Parts 543, 544, 545, 552, 556, 563, and 575

[No. 96-49]
RIN 1550-AA87

Corporate Governance

AGENCY: Office of Thrift Supervision, Treasury.

ACTION: Notice of proposed rulemaking; request for comment.

-----------------------------------------------------------------------

SUMMARY: The Office of Thrift Supervision (OTS or Office) today is 
proposing amendments to its corporate governance regulations and policy 
statements to update, reorganize and substantially streamline them. 
This proposal follows a detailed review of each pertinent regulation 
and policy statement in the Code of Federal Regulations (CFR) to 
determine whether it is necessary, imposes the least possible burden 
consistent with safety and soundness and is written in a clear and 
straightforward manner. Today's proposal is being made pursuant to the 
Regulatory Reinvention Initiative of the Vice President's National 
Performance Review and section 303 of the Riegle Community Development 
and Regulatory Improvement Act of 1994.

DATES: Comments must be received on or before August 26, 1996.

ADDRESSES: Send comments to Manager, Dissemination Branch, Records 
Management and Information Policy, Office of Thrift Supervision, 1700 G 
Street, NW., Washington, D.C. 20552, Attention Docket No. 96-49. These 
submissions may be hand-delivered to 1700 G Street, NW., from 9:00 A.M. 
to 5:00 P.M. on business days; they may be sent by facsimile 
transmission to FAX Number (202) 906-7755. Comments will be available 
for inspection at 1700 G Street, NW., from 9:00 P.M. until 4:00 P.M. on 
business days.

FOR FURTHER INFORMATION CONTACT: David Permut, Counsel (Banking and 
Finance), Business Transactions Division, (202) 906-7505; or Mary Jo 
Johnson, Project Manager, Supervision Policy (202) 906-5739; or Valerie 
J. Lithotomos, Counsel (Banking and Finance), Regulations and 
Legislation Division, (202) 906-6439, Chief Counsel's Office, 1700 G 
Street NW., Washington, D.C. 20552.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background of the Proposal
II. Objectives
    A. Reduce Compliance Costs by Removing Unnecessary Regulations
    B. Provide Maximum Corporate Governance Flexibility for Savings 
Associations
    C. Provide Clear Regulatory Guidance for Frequently Recurring 
Questions
    D. Move the Charter and Model Bylaws Into Application Processing 
Regulatory Handbook
III. Historical Overview of Current Corporate Governance Regulations
IV. Section-by-Section Analysis of the Proposal
V. Proposed Disposition of Corporate Governance Regulations
VI. Request for Comment
VII. Executive Order 12866
VIII. Regulatory Flexibility Act Analysis
IX. Unfunded Mandates Act of 1995
X. Paperwork Reduction Act

I. Background of the Proposal

    In a comprehensive review of the agency's regulations in the spring 
of 1995, OTS identified numerous obsolete or redundant regulations that 
could quickly be repealed. On December 27, 1995, OTS published a final 
rule in the Federal Register repealing eight percent of its 
regulations.1 As part of its review, OTS also identified several 
key areas in its regulations for a more intensive, systematic 
regulatory burden review. Certain areas--lending and investment 
authority, corporate governance, subsidiaries and equity investments, 
and conflicts of interest, corporate opportunity and hazard insurance--
were chosen for intensive review because they are vital to the thrift 
industry, had not been developed on an interagency basis,2 and had 
not been substantially reviewed or amended in recent years.
---------------------------------------------------------------------------

    \1\ 60 FR 66866 (December 27, 1995).
    \2\ Interagency regulations are being reviewed through the 
Federal Financial Institutions Examination Counsel.
---------------------------------------------------------------------------

    Earlier this year, OTS proposed a comprehensive streamlining of its 
lending and investment regulations.3 Proposals regarding 
subsidiaries and equity investments and conflicts of interest, 
corporate opportunity and hazard insurance will be issued in the near 
future.
---------------------------------------------------------------------------

    \3\ 61 FR 1162 (January 17, 1996).
---------------------------------------------------------------------------

    Today's proposal presents the results of the review of the charter 
and bylaw regulations (corporate governance). If adopted in final form, 
today's proposal will reduce the number of charter and bylaw 
regulations and policy statements from 33 to 24, a reduction of 27 
percent. In addition, deletion of the charter and model bylaws from the 
CFR will remove 13.5 pages of CFR text. This information will be moved 
to the Application Processing Regulatory Handbook (Handbook).
    This proposal was developed in consultation with those who use the 
regulations on a daily basis: OTS regional staff and representatives of 
the thrift industry. OTS sought specific comments from the thrift 
industry through a focus group composed of representatives of seven 
savings associations and an industry trade association.

II. Objectives

    The overarching goal of OTS' reinvention initiative is to reduce 
regulatory burden on savings associations to the greatest extent 
possible consistent with statutory requirements and safety and 
soundness. In the context of corporate governance, we believe maximum 
burden reduction can be achieved by pursuing four specific objectives.

A. Reduce Compliance Costs by Removing Unnecessary Regulations

    The first objective of the OTS proposal is to remove unnecessary, 
duplicative or outdated regulations affecting the corporate governance 
of Federal thrift institutions. As described in more detail in the 
Background section below, the corporate governance regulations have not 
been thoroughly updated for many years. By eliminating unnecessary 
regulations, OTS hopes to reduce regulatory compliance costs.
    Examples of regulations, or subsections thereof, proposed to be 
removed are Sec. 544.2(b)(4) (Mutual capital certificates), Sec. 544.3 
(Adoption of

[[Page 32714]]

a new Federal charter by a Federal savings association), 
Sec. 544.5(b)(17) (Emergency preparedness), Sec. 544.8 (Old and new 
charters), Sec. 544.9 (Charter B associations), Sec. 552.1 
(Definitions), Sec. 552.2 (Corporate titles), Sec. 552.2-5 (Conversion 
from Federal mutual to Federal stock), Sec. 552.4(b)(3) (Charter 
amendments), Sec. 552.6-2(a) (Requirement that the President shall be a 
director and CEO), and Sec. 552.8 (Savings deposits). All of the above 
regulations, or portions thereof, are being removed because they are 
redundant, outdated or unnecessary.
    Several other sections will have changes made to certain sentences 
or phrases within the section, such as the removal of the need for 
preliminary OTS approval of proposed charter amendments in Secs. 544.1, 
Section 9; 552.3, Section 8; and 575.9, Section 8; and elimination of 
the need for certification by management of the legality of proposed 
charter and bylaw amendments in Secs. 544.2(a)(2)(i), 544.5(c), 
552.4(a)(2)(i), and 552.5(b)(1).

B. Provide Maximum Corporate Governance Flexibility for Savings 
Associations

    OTS is committed to ensuring that Federal savings associations 
operate under state-of-the-art corporate governance procedures. 
Wherever possible, consistent with safety and soundness and fairness to 
shareholders and members, we are seeking to move toward greater 
flexibility. Specific amendments proposed to provide greater 
flexibility include:
     Amending Secs. 544.5(b)(1) and 552.6(a) to provide more 
flexibility for the site of shareholder meetings.
     Modifying Secs. 544.5(b)(5) and 552.6(f)(1) to allow 
proxies to be gathered telephonically or electronically.
     Expanding the list of preapproved charter amendments in 
Secs. 544.2 and 552.4 to enable institutions to adopt supermajority 
voting provisions, to eliminate cumulative voting, and, for mutuals to 
increase the maximum permissible number of votes per member to up to 
1000.
     Replacing the current requirement in Secs. 544.2, 
544.5(c)(2), 552.4 and 552.5(b) that institutions give OTS advance 
notice of their intent to adopt preapproved charter and bylaws 
amendments with an after-the-fact notice.
     Authorize associations to hold their annual shareholders 
meeting 150 days after the close of their fiscal year, instead of the 
current 120 days (Secs. 544.5(b)(1) and 552.6(a)).
     Revising Sec. 544.5(b)(16) to recognize the ``sitting'' 
board of directors rather than the ``authorized'' board of directors 
when determining voting requirements in certain instances.
     Exempt wholly-owned stock associations from various 
requirements such as staggered terms for members of their boards of 
directors (Sec. 552.6-1(b)), notice of shareholder meetings 
(Sec. 552.6(b)), and compilation of shareholder voting lists 
(Sec. 552.6(d)).
     Permit shareholder actions to be taken by unanimous 
written consent in lieu of a formal shareholders meeting 
(Sec. 552.6(h)).
    OTS is continuing to review the laws of various states, and the 
corporate governance approaches followed by the other federal agencies 
that charter depository institutions, for additional innovative 
corporate governance ideas. We welcome further suggestions from 
commenters.
    In particular, OTS requests comment on whether there are aspects of 
the corporate governance structure applicable to national banks that 
would be beneficial for Federal thrifts. The corporate governance 
regulations applicable to Federal thrifts tend to be more detailed than 
those applicable to national banks. To fill in the details, national 
banks are permitted to elect to follow the corporate governance laws of 
the state where the bank's home office is located, the laws of the 
state where the bank's holding company is chartered, Delaware law, or 
the Model Business Corporation Act. The body of law that a national 
bank elects to follow applies only to the extent not inconsistent with 
the corporate governance provisions of the National Bank Act and 
implementing regulations.
    Federal savings associations may benefit from the detail provided 
in OTS's corporate governance regulations. Absence of detail in the 
area of corporate governance can lead to confusion, delay, and 
potential shareholder litigation. Accordingly, OTS's objective has been 
to provide savings associations with a comprehensive set of clear, 
modern, and flexible corporate governance rules. Institutions may apply 
on a case-by-case basis for permission to adopt non-standard charter 
and bylaw provisions.
    Nevertheless, savings associations may benefit from the additional 
option of following state law in lieu of OTS corporate governance 
regulations--except for those regulations that OTS designated as vital 
to safety and soundness or other fundamental policy objectives. OTS 
requests comment on whether this type of state law election would offer 
benefits to savings associations and, if so, a description of those 
benefits.

C. Provide Clear Regulatory Guidance for Frequently Recurring Questions

    A third objective is to clarify certain issues that frequently 
arise regarding the corporate governance regulations. This will reduce 
the number of instances when institutions incur delay or expense 
seeking clarification of ambiguous or incomplete regulatory language. 
Accordingly, OTS proposes to amend:
     Section 544.5(b)(3) and (4) to indicate what rules govern 
adjourned shareholder meetings;
     Sections 544.5(b)(10) and 552.6-1(f) to add a cross 
reference to a definition indicating what constitutes ``cause'' for 
removal of a director;
     Section 544.5(b)(6) to extend privacy rights for 
confidential portions of an institution's books and records, now 
provided for Federal stock institutions at Sec. 552.11(d), to Federal 
mutual associations;
     Section 544.5(b)(13) to give guidance on the procedures 
governing when an institution substitutes a new director nominee for a 
nominee that dies or becomes incapacitated; and
     Section 552.6(d) to give guidance on how stock held in the 
name of fiduciaries should be reflected on voting lists.

D. Move the Charters and Model Bylaws Into Application Processing 
Regulation Handbook

    OTS is proposing to move the charters for Federal stock and mutual 
savings associations, found at Secs. 544.1, 552.3 and 575.9, to the 
Handbook. We are also proposing to move the model bylaws, found in 
appendices to Parts 544 and 552, to the Handbook. The Office of the 
Comptroller of the Currency (OCC) and the National Credit Union 
Administration (NCUA) follow a similar practice.
    Placing the savings association charters and bylaws in the Handbook 
may offer two advantages. First, by eliminating nonessential items from 
the regulations, the regulations may become easier to use. Second, OTS 
would have more flexibility to update and modernize the charters and 
bylaws from time to time, because notice and comment rulemaking would 
not be required to effect changes. We recognize, however, that making 
changes without notice and comment rulemaking could also be viewed as a 
disadvantage. Moreover, placing the charters and bylaws in the Handbook 
may make them less accessible.

[[Page 32715]]

Accordingly, we request specific comment on this proposed change.

III. Historical Overview of Current Corporate Governance 
Regulations

    Before 1982, the corporate governance of Federal savings 
associations was primarily concerned with Federal mutual savings and 
loan associations, the only type of corporate charter available from 
the chartering authority, the Federal Home Loan Bank Board (FHLBB), 
predecessor to OTS. The Home Owners' Loan Act (HOLA) 4 only 
permitted the chartering of Federal mutual savings and loan 
associations.5
---------------------------------------------------------------------------

    \4\ 12 U.S.C. 1461-1470.
    \5\ Section 5(a) of the HOLA, 12 U.S.C. 1464(a), contains the 
statutory authority for the OTS to issue charters for Federal thrift 
institutions.
---------------------------------------------------------------------------

    In 1982, Congress enacted the Garn-St Germain Depository 
Institutions Act (DIA),6 which broadened the types of charters and 
organizational options available to Federal savings associations. The 
DIA authorized the creation of new Federally chartered stock 
institutions, either as Federal savings banks or Federal savings and 
loan associations, and permitted state-chartered savings banks to 
convert to a Federal charter without requiring them to surrender their 
FDIC insurance in favor of FSLIC insurance of accounts.
---------------------------------------------------------------------------

    \6\ Pub. L. 97-320, 96 Stat. 1469, October 15, 1982.
---------------------------------------------------------------------------

    In response to the DIA, the FHLBB amended its corporate governance 
regulations (1983 Rulemaking) 7 to create a single Federal mutual 
charter and a single Federal stock charter. The same basic charter was 
available both to savings banks and to savings and loan associations, 
with minor differences. Before the 1983 Rulemaking, Federally-chartered 
thrifts had operated under a plethora of charters, including Charter S, 
Charter T, Charter B, Charter B (Revised), Charter N, Charter N 
(Revised), Charter L and Charter K (Revised). Some Federal associations 
continue to operate under those charters. It is important to note that 
today's proposed rulemaking does not require any institution to change 
its current charter. After adoption of a final regulation, institutions 
may retain their existing charters or amend their charters to conform 
to the new provisions.
---------------------------------------------------------------------------

    \7\ 48 FR 44174 (September 28, 1983).
---------------------------------------------------------------------------

    In 1985, the FHLBB concluded that with the new structural options 
available to Federal savings associations, a number of important 
matters regarding the corporate governance of those associations were 
either not adequately addressed, not covered in codified form or were 
distributed in a piecemeal fashion throughout the regulations. The 
FHLBB conducted an extensive review of the Model Business Corporation 
Act, the corporate codes of Delaware, California, New York and Florida, 
then presented a proposal for updating the corporate governance 
regulations. Because the proposal was extensive, it was broken into 
four parts,8 published over a two year period, with comments 
sought on all sections before a final regulation was to be promulgated. 
Only one section, however, the proposal on revisions to Receiverships 
and Conservatorships, was enacted in final form before the priorities 
of the FHLBB and external circumstances changed. The savings and loan 
crisis had begun and the extensive revisions to corporate governance 
were set aside for future consideration.
---------------------------------------------------------------------------

    \8\ Part I-50 FR 38832 (September 13, 1985); Part II-50 FR 52482 
(December 24, 1985); and Part III and IV-52 FR 25870 (July 9, 1987).
---------------------------------------------------------------------------

    In 1989, the FHLBB's regulatory and chartering authority was 
assumed by the newly established OTS. A number of the corporate 
governance issues were ultimately addressed in the form of legal 
opinions or approved amendments to charters and bylaws. These changes, 
however, were confined to considerably more narrow subject areas than 
the FHLBB proposal envisioned.
    Thus, today's proposal, if adopted in final form, will be the first 
major update of the corporate governance regulations in over a decade.

IV. Section-by-Section Analysis of the Proposal

A. Part 544--Charter and Bylaws

Section 544.1  Federal Mutual Charter

    This section contains the required charter for Federal mutual 
associations. As indicated above, OTS proposes to move this charter (as 
well as the charter for stock associations and the model bylaws for 
both) from the regulations to the Handbook. Thus, OTS proposes to amend 
Sec. 544.1 to reference the Handbook. OTS also proposes to update the 
charter.
    So that the reader can understand what is being proposed, we have 
set forth the changes proposed for the charter in the regulatory text, 
and discuss them below.9
---------------------------------------------------------------------------

    \9\ For drafting purposes, the changes to the charter have been 
designated as Alternative Two in the regulatory text.
---------------------------------------------------------------------------

    Section 1. Corporate Title. Section 1 establishes the corporate 
title of the Federal association. The words ``hereby chartered'' will 
be removed as unnecessary verbiage.
    Section 6. Members. This section identifies the association's 
members and describes their rights. OTS proposes to streamline this 
section by moving the third and fourth sentences to introductory 
instructions in the Handbook or, if the charter is retained in 
Sec. 544.1, to the introductory paragraph of the regulation. These two 
sentences instruct institutions that wish to adopt the charter, but are 
currently operating under old charters conferring membership rights on 
borrowers, to grandfather the membership rights of their existing 
borrowers.
    The sixth sentence of section 6, dealing with proxies, will be 
removed because it already appears in the bylaws. The seventh and 
eighth sentences, dealing with quorums, will be moved to the bylaws 
because matters regarding member meetings are more fully addressed 
there.
    Section 7. Directors. This section provides that a Federal mutual 
association may have from 5 to 15 directors. To further streamline the 
charter, bracketed references to ``trustees'' will be removed, and a 
single sentence will be added to the introductory instructions 
indicating that institutions may substitute the term ``trustee'' for 
the term ``director'' where appropriate. Similar changes will be made 
throughout the charter and the model bylaws for mutual associations.
    The third and fifth sentences (providing that directors shall be 
members of the association and requiring staggered terms for directors) 
will be moved to the bylaw section dealing with directors. The fourth 
sentence (regarding vacancies on the board) will be moved to the bylaw 
section on resignations, removals and (newly added) vacancies. The last 
sentence, in brackets, will also be moved to the bylaw section on 
directors. This sentence authorizes state savings banks that convert to 
Federal mutual associations to grandfather their existing provisions 
for electing directors for a limited period of time. OTS believes each 
of these matters is more appropriately addressed in the bylaws, where 
related issues are already addressed. Presenting related requirements 
in a single place should make the charter and bylaws more user 
friendly.
    Section 9. Amendment of charter. Section 9 describes the procedures 
for amending the association's charter. References to Secs. 544.2 or 
544.3 will be removed as unnecessary verbiage. Section 9 will also be 
revised to reflect the fact that ``preapproved'' charter amendments 
(Sec. 544.2) will now be truly preapproved. Institutions will no longer 
be required to submit these amendments to OTS for ``preliminary'' 
approval. (See discussion of Sec. 544.2 below.)

[[Page 32716]]

    Finally, the signature blocks of the charter will be modified to 
include a date to clarify when a charter is effective.

Section 544.2  Charter Amendments

    Paragraphs (a) and (b) describe the filing requirements for 
amending Federal mutual charters. OTS is proposing to remove, from 
paragraphs (a)(2)(i) and (ii), the requirement that institutions 
certify that amendments they propose are permissible under all 
applicable laws. This certification is unnecessary because the legality 
of a proposed amendment is reviewed by OTS staff as part of the 
application process and its deletion will also reduce regulatory 
burden. In addition, paragraph (b) will be revised to indicate that 
preapproved charter amendments will no longer require advance 
submissions to OTS. Instead, preapproved amendments will be deemed 
approved when adopted by the institution and must simply be filed with 
OTS within 30 days after adoption.
    A new preapproved charter amendment will be added to Sec. 544.2 
that authorizes Federal mutual associations to amend their charters to 
raise the cap on the maximum number of votes any member can cast up to 
1,000. Mutual charters generally authorize depositors to cast one vote 
for every $100 of deposits, subject to a cap that has historically 
tracked the limit on deposit insurance. Thus, 1,000 votes is the 
standard cap under the current mutual charter (Sec. 544.1). However, 
many institutions operate under charters adopted before the cap was 
raised to 1,000. Making the 1,000 cap a preapproved amendment will 
enable institutions to update their cap without filing an application 
and paying an application fee. This is the most frequently requested 
amendment for Federal mutual associations.
    OTS also proposes to remove from Sec. 544.2 an obsolete preapproved 
amendment authorizing institutions to issue Mutual Capital Certificates 
(MCCs). Institutions generally no longer issue MCCs.10 Elimination 
of outdated matter such as this should make the regulations less 
confusing and easier to use.
---------------------------------------------------------------------------

    \10\ An institution could still choose to issue MCCs after 
Sec. 544.2 is modified, provided the institution makes any necessary 
amendments to its charter and bylaws (which would no longer be 
preapproved) and follows the procedures specified at 12 CFR 563.74. 
Paragraph (d) of Sec. 563.74 will be amended to reflect removal of 
the preapproved amendment for MCCs.
---------------------------------------------------------------------------

    Paragraph 544.2(c) details the procedures an institution must 
follow when it wants OTS to reissue its charter to reflect amendments 
to the charter. The wording of this section will be conformed to the 
wording of the corresponding stock charter section at Sec. 552.4(d). No 
substantive change will result. Paragraph (c) is also being amended to 
remove the delegation of authority to the Chief Counsel to execute 
reissued charters. This change is being proposed as part of a 
continuing effort to remove delegations from the regulations. Delegated 
authority to execute reissued charters will be preserved via an 
internal OTS document.

Section 544.3  Adoption of a New Federal Charter by a Federal Savings 
Association

    This section details the procedures that a Federal mutual savings 
and loan association would use to amend its charter to read in the form 
of a Federal mutual savings bank, or vice versa. This section has 
become obsolete. Today, the charters for both types of institution are 
identical, except for a possible difference in corporate title. A 
simple corporate title change can be used to redesignate an institution 
as a ``savings bank'' or ``savings and loan association.'' Thus, 
Sec. 544.3 is being repealed. Corresponding changes will be made to 
Secs. 543.1(b) and 543.14.

Section 544.5  Federal Mutual Savings Association Bylaws

    This section describes the requirements for the bylaws of a Federal 
mutual association. A nonsubstantive change will be made to paragraph 
(a) to conform its language regarding procedures for bylaw amendments 
to similar language that appears later in Sec. 544.5(b)(16).
    Paragraph (b)(1) contains the annual meeting requirements for 
Federal mutual associations. This paragraph will be amended to allow 
meetings not only at the main office, but also at any other convenient 
place the board of directors may designate, and to permit the 
association to hold its annual meeting within 150 days of the end of 
the association's fiscal year. The current requirement is 120 days. 
Both changes will provide additional flexibility for Federal mutual 
associations.
    Paragraph (b)(2) addresses special meetings of members. It 
provides, inter alia, that the holders of ten percent or more of a 
mutual association's voting capital may call a special meeting. 
Institutions frequently ask for clarification of the meaning of 
``voting capital,'' since the term is no longer defined by the HOLA. 
OTS proposes to clarify that voting capital means all FDIC-insured 
deposits held by a savings association.
    Paragraphs (b) (3) and (4), which discuss notice requirements for 
meetings of members and the fixing of the record date for determining 
what members are entitled to vote, respectively, will be amended to 
indicate the circumstances under which adjournment of a meeting of 
members will require the issuance of new notices and the fixing of a 
new record date. These are also frequently asked questions.
    OTS is also proposing a new paragraph (b)(5), to be titled ``Member 
Quorum.'' 11 This paragraph will contain certain quorum provisions 
currently found in the charter (as discussed above), as well as 
clarification of what items of business may be considered at a meeting 
held after adjournment. The agency believes that quorum issues are more 
appropriately addressed in the bylaws, where other rules governing 
member meetings already appear.
---------------------------------------------------------------------------

    \11\ All subsequent paragraphs will be renumbered accordingly. 
However, only those paragraphs being substantively changed are 
discussed below.
---------------------------------------------------------------------------

    Current paragraph (b)(5), on voting by proxy, will become (b)(6) 
and will be amended to permit proxies to be given telephonically or 
electronically as long as the holder uses a procedure for verifying the 
identity of the member.12 Telephonic and electronic proxies enable 
institutions to gather proxies and conduct corporate business more 
rapidly and have become an accepted part of corporate democracy. In 
addition, in response to frequent questions, OTS proposes to describe 
voting procedures applicable to joint accounts and accounts held by 
fiduciaries on behalf of others.
---------------------------------------------------------------------------

    \12\ One example of a verification procedure is for the 
institution receiving the proxy by facsimile to compare the 
signature on the proxy to a signature that the institution has on 
file.
---------------------------------------------------------------------------

    Current paragraph (b)(6), which references Sec. 545.131 regarding 
communication with other members, will become (b)(7). In addition, the 
paragraph will be amended to reflect the relocation of Sec. 545.131 to 
Part 544, and will extend the privacy rights now guaranteed to 
depositors of Federal stock institutions (Sec. 552.11(d)) to the 
depositors of Federal mutual institutions. The privacy rights of the 
members of mutual institutions will not prevent the internal use of 
member information by those institutions.
    Current paragraph (b)(7), regarding the number of directors, will 
become (b)(8). In addition, the paragraph will be amended to clarify 
that the bylaws must specify the precise number of directors (rather 
than a range). This number is

[[Page 32717]]

chosen by the institution within the range specified in the charter and 
may be changed by the institution from time to time by amending its 
bylaws. Paragraph (b)(8) will also contain three provisions being moved 
from section seven of the charter. One provision requires that 
directors be members of their association; a second provision requires 
that directors serve staggered terms; and a third provision permits 
state savings banks that convert to Federal mutual associations to 
grandfather their method of electing directors for a limited time.
    Current paragraph (b)(9), which addresses the duties of officers, 
employees and agents and their indemnification, will become (b)(10). In 
addition, a sentence on the removal of officers will be added to answer 
a frequently asked question. The sentence will state: ``Any officer may 
be removed by the board of directors with or without cause, but such 
removal, other than for cause, shall be without prejudice to the 
contractual rights, if any, of the person so removed.''
    Current paragraph (b)(10), on the resignation or removal of 
directors, will become (b)(11). A cross reference to the definition of 
``cause,'' which appears elsewhere in the regulations, will be added in 
response to a frequently asked question concerning the circumstances 
under which shareholders can remove directors for ``cause''. Paragraph 
(b)(11) will also be expanded to authorize boards of directors to fill 
vacancies under the current flexible rules that now apply to stock 
associations.
    Current paragraph (b)(13), discussing procedures for nominating 
directors, will become (b)(14) and will be expanded to clarify the 
requirement that the names of nominees be posted at least 15 days 
before an election, under certain circumstances. New language will 
confirm that this requirement does not apply to a nominee substituted 
as a result of death or other incapacity of another nominee. From time 
to time, institutions have sought clarification on this issue.
    Current paragraph (b)(16), which sets forth procedures for amending 
the bylaws, will become (b)(17) and will be amended to make it easier 
for a board that fails to meet its quorum requirement solely due to 
vacancies on the board to amend its bylaws. The new language will 
specify that, in the absence of a quorum due solely to vacancies, the 
affirmative vote of a majority of the sitting board may amend the 
bylaws.
    Current paragraph (b)(17), on miscellaneous topics, will become 
(b)(18) and will be amended to remove the reference to provisions 
regarding ``emergency preparedness.'' Emergency preparedness provisions 
are no longer part of the model bylaws.
    Paragraphs (c)(1) and (c)(2) discuss the filing procedures for 
bylaw amendments. OTS proposes to remove the requirement that 
applications for bylaw amendments contain certifications that the 
proposed amendments comport with all laws. As noted above when 
discussing charter amendments, the certification requirement is 
unnecessary because the legality of proposed amendments are reviewed by 
OTS staff as part of the application process and its deletion will also 
reduce regulatory burden. In addition, consistent with the proposal to 
move the model bylaws out of the regulations, paragraph (c)(1) will be 
revised to indicate that the model bylaws can be found in the Handbook 
available from OTS. The current appendix to part 544, which contains 
the model bylaws, will be removed.
    Paragraph (c)(2) will also be revised to indicate that the model 
bylaws, if adopted verbatim, are approved when adopted and must simply 
be filed with OTS within 30 days after adoption. This change is 
proposed because OTS has determined that over 90 percent of the bylaws 
applications filed in recent years are for standard provisions that do 
not require agency review.
    Paragraph (d), which addresses the effective date of all other 
bylaw amendments, will be amended to comport with a similar provision 
for Federal stock associations. The provision is intended to clarify 
the circumstances under which an amendment may be rejected by OTS, by 
cross referencing the current standards which appear in paragraph 
(c)(1).

Section 544.8  References to Old and New Charters; Rules Applicable to 
Trustees of Federal Mutual Savings Banks

    OTS proposes to remove this section, which indicates that trustees 
will be treated as if they are directors for purposes of the 
regulations. The same point will be made in the introductory 
instructions to the charter and model bylaws. It does not need to be 
repeated here.

Section 544.9  Obsolete Charter Provision for Charter B Associations.

    This section provides that institutions that still operate under 
the old Charter B are not bound by section 10 of that charter. Section 
10 of Charter B purports to limit the authority of an institution to 
invest in consumer loans and corporate debt securities. OTS proposes to 
move Sec. 544.9, which affects very few institutions, from the 
regulations into Handbook guidance.

Section 544.8  Communication Between Members of a Federal Mutual 
Savings Association (Proposed)

    OTS proposes to move the rules governing communications between 
members of Federal mutual associations, which now appear in 
Sec. 545.131, to part 544. This is where users of the regulations would 
most likely look for guidance on such matters. Accordingly, current 
Sec. 545.131 will become new Sec. 544.8.

Appendix to Part 544

    As indicated above, OTS proposes to eliminate the appendix to part 
544, which contains the model bylaws. Instead, these bylaws will be 
moved to the Handbook, with changes being made to conform the model 
bylaws to the amendments to the bylaws regulations described above.

B. Part 552--Incorporation, Organization, and Conversion of Federal 
Stock Associations

Section 552.2  Corporate Title

    OTS proposes to remove this section, which merely reminds 
institutions that Sec. 543.1 regarding corporate titles for Federal 
associations applies to Federal stock associations. There is no need 
for this provision. Current Sec. 543.1, as currently written, clearly 
governs corporate titles for all Federal associations.

Section 552.2-5  Conversion From Federal Mutual to Federal Stock 
Charter

    This section authorizes Federal mutual associations to convert to 
Federal stock associations and provides for issuance of a stock charter 
upon completion of the conversion. These matters are also covered, in 
greater detail, by OTS conversion regulations. OTS, therefore, proposes 
to remove this section.

Section 552.3  Charters for Federal Stock Associations

    This section contains the required charter for Federal stock 
associations. For the reasons indicated above in the discussion of 
Sec. 544.1, OTS proposes to move the stock charter out of the 
regulations and into the Handbook. Section 552.3 will thus be revised 
to reference the charter as it appears in the Handbook. OTS proposes to 
update the Federal stock charter with the following changes:
    Section 2. Office. This section describes the location of the home 
office of the Federal stock association. The

[[Page 32718]]

word ``in'' will be deleted and replaced by the word ``at.'' This is a 
purely technical amendment.
    Section 5. Capital stock. Section 5 describes the rules governing 
the capital stock of a Federal stock association, including the types 
of stock it may issue, the consideration to be paid, and voting rights. 
Several changes are proposed. First, the charter will be amended to 
permit the issuance of ``no par'' stock. The decision whether stock 
should have a stated par value is a matter of internal corporate 
governance that raises no supervisory or safety and soundness issues.
    Second, the final sentence of the first paragraph will be revised 
to reflect more current accounting terminology. The term ``retained 
earnings'' will be substituted for ``surplus,'' and the phrase ``common 
stock or paid-in capital accounts'' will be substituted for ``stated 
capital.''
    Third, the second paragraph will be revised to clarify that Federal 
stock associations may issue stock to officers, directors, and 
controlling persons in connection with its initial organization, 
without a shareholder vote.
    Fourth, the second sentence of the third paragraph will be revised 
to clarify that a Federal stock charter may be amended to eliminate 
cumulative voting.
    Section 7. Directors. This section specifies that the number of 
directors of a stock association shall be fixed in the bylaws and shall 
not be fewer than five nor more than fifteen. However, provision is 
made for the Director of OTS to approve a larger or smaller board of 
directors. OTS proposes a technical amendment to this section that will 
specify that approval of a larger or smaller board can be given either 
by the Director ``or his or her delegate.''
    Section 8. Amendment of charter. Section 8 describes the procedure 
for amending an association's charter. This section is being revised to 
indicate that preapproved charter amendments will be effective once 
they have been approved by the association's board of directors and 
shareholders, without any need for ``preliminary approval'' or any 
other form of approval from OTS. (See discussion below of Sec. 552.4.) 
In addition, OTS proposes to elaborate on the general rule that charter 
amendments require approval by only a majority of the votes eligible to 
be cast at a shareholders' meeting. Clarifying language will be added 
indicating that this general rule does not apply in those instances 
where an association's charter specifies that a supermajority vote is 
required. (See discussion of Sec. 552.4 below.)
    Finally, the signature blocks of the charter will be modified to 
include a date to clarify when a charter is effective.

Section 552.4  Charter Amendments

    Paragraphs (a) and (b) set forth the filing requirements for 
amendments to Federal stock charters. In paragraph (a), OTS is 
proposing to make the same changes regarding certification requirements 
as discussed above in connection with the corresponding provisions for 
mutual associations (Sec. 544.2(a)). Thus, stock associations will no 
longer be required to certify that proposed amendments comport with all 
applicable laws.
    Paragraph (b) sets forth a list of preapproved charter amendments. 
OTS proposes to add descriptive titles to each of the preapproved 
amendments. The titles will correspond to the titles to similar 
preapproved charter provisions for Federal mutual associations. 
Paragraph (b) will also be revised to indicate that preapproved charter 
amendments are approved when adopted and must simply be filed with OTS 
within 30 days after adoption.
    Paragraph (b)(3), which contains a preapproved amendment for 
institutions that wish to change from a Federal stock savings and loan 
association charter to a Federal stock savings bank charter, will be 
removed for the same reasons described above with regard to 
Sec. 544.3.13
---------------------------------------------------------------------------

    \13\ Subsequent paragraphs will be renumbered accordingly. 
However, only those paragraphs being substantively changed are 
discussed below.
---------------------------------------------------------------------------

    Current paragraph (b)(4), which permits changes to the authorized 
number of shares and the par or stated value of such shares, will 
become (b)(3). Additional nonsubstantive changes will be made to 
clarify the language of this provision.
    Current paragraph (b)(5), which permits institutions to modify 
section 5 of the charter so as to authorize the issuance of preferred 
stock, will become (b)(4) and will include the same changes to section 
5 of the charter as were discussed above. In addition, the reference to 
the Resolution Trust Corporation will be deleted, because that agency 
no longer exists.
    A new preapproved charter amendment will be added, as new paragraph 
(b)(6), to authorize institutions to prohibit cumulative voting for 
directors. The standard charter for Federal stock associations provides 
for cumulative voting for directors. Federal associations frequently 
apply to amend their charters to prohibit cumulative voting, and OTS 
routinely approves these applications. Adding this provision to the 
list of preapproved amendments will save associations that wish to make 
this change the time and expense of an application.
    Paragraph (c) states OTS policy on antitakeover provisions in 
charter amendments. OTS proposes to expand this provision to state the 
two basic standards OTS uses when reviewing proposed antitakeover 
amendments. First, the proposed amendment must be consistent with 
applicable statutes, regulations and OTS policies. Second, such 
amendments must be adopted by a percentage of the shareholder vote at 
least equal to the highest percentage that would be required to take 
any action under the antitakeover provision. These are not new 
standards; OTS already employs them when reviewing antitakeover 
amendments. Stating these standards in the regulations will enable 
institutions to present applications that conform to OTS requirements, 
thereby saving them time and expense.

Section 552.5  Bylaws

    This section presents the requirements for the bylaws of a Federal 
stock association. A technical amendment will be made to paragraph (a) 
to confirm that shareholder votes to approve bylaw amendments must 
occur ``at a legal meeting'' of shareholders.
    Paragraph (b) discusses the application and notice procedures 
applicable to bylaw amendments. This paragraph will be amended to 
remove the requirement that associations certify that bylaw amendments 
comport with applicable law. Revisions will also be made to indicate 
that the model bylaws, if adopted verbatim, are approved when adopted 
and must simply be filed with OTS within 30 days after adoption. 
Paragraph (b) will also indicate that the model bylaws are in the 
Handbook and are available from any Regional Office.
    OTS proposes to add a new paragraph (d) confirming that the 
authority of a Federal stock association to engage in any transaction 
is determined by the association's charter and bylaws in effect at the 
time of the transaction. Subsequent amendments do not retroactively 
affect this determination. A similar regulatory provision is already in 
effect for Federal mutual associations (Sec. 544.6).

Section 552.6  Shareholders

    This section contains certain corporate governance requirements 
regarding shareholder meetings. Paragraph (a), which contains rules 
regarding the time and place of shareholder meetings, will be amended 
in two respects. First, the requirement

[[Page 32719]]

that shareholders meetings be held in the state of an association's 
principal place of business is being removed. Instead, associations 
will be able to hold shareholder meetings at any convenient place the 
board of directors designates. Second, the time frame within which an 
association must hold its annual shareholders meeting will be extended 
from 120 to 150 days of the end of the association's fiscal year. These 
are the same changes being proposed for Federal mutual associations 
(Sec. 544.5(b)(1)).
    Paragraph (b) states the notice requirements for shareholder 
meetings. This paragraph will be amended to waive the shareholder 
notice requirements for wholly-owned institutions.
    Paragraph (d)(1), which addresses access to shareholder lists, will 
be revised to clarify that shareholder lists are available only to 
shareholders ``of record'' and their agents, and that the lists must 
contain the names of beneficial owners that are furnished to the 
association under the rules of the Securities and Exchange Commission. 
In addition, the paragraph will be amended to waive its application to 
wholly-owned institutions.
    Paragraph (e), regarding shareholder quorum requirements, will be 
amended to confirm that, whenever a quorum is present, the affirmative 
vote of the majority of shares entitled to vote at a shareholders 
meeting shall constitute an act of the shareholders, absent a 
supermajority voting requirement.
    Paragraph (f), which addresses proxies, will be amended in the same 
manner as the Federal mutual bylaws at Sec. 544.5(b)(6) to allow 
proxies to be gathered electronically or telephonically. In addition, 
in response to frequent questions, paragraph (f) will be expanded to 
describe voting procedures applicable to stock held by fiduciaries on 
behalf of others and stock held jointly.
    A new paragraph (h) will also be added confirming that, if an 
association's bylaws so provide, shareholder action may be taken by 
unanimous written consent in lieu of a shareholder meeting. At times, 
this may allow associations to obtain shareholder approval more rapidly 
and with less expense.

Section 552.6-1  Board of Directors

    This section addresses corporate governance matters involving 
directors. Paragraph (a) will be amended to provide that Directors need 
not be stockholders unless the bylaws so require.
    Paragraph (b) sets forth the number and term of directors. This 
paragraph will be amended to clarify that the bylaws of a Federal stock 
association must specify an exact number of positions on an 
association's board of directors, not simply a range. The number is 
selected by the institution within a range prescribed in the charter. 
OTS also proposes to amend paragraph (b) to exempt wholly-owned stock 
associations from the requirement that their directors be elected to 
staggered terms.
    Paragraph (c), regarding regular meetings of the board, will be 
expanded to confirm that the board of directors has authority to 
determine the place, frequency, time, and notice procedures for its 
meetings. These matters need not be specified in the bylaws.
    Paragraph (e), which covers director vacancies, will be amended to 
clarify that a director appointed to fill a vacancy may serve ``only'' 
until the next election of directors. This is not a substantive change. 
The word ``only'' is being added for emphasis and clarity.
    Paragraph (f), concerning removal of directors, will be retitled 
``Resignation or removal of directors'' to conform to the title for the 
same provision for Federal mutual associations. In addition, the 
paragraph will be amended to confirm, as is already the case, that 
shareholders may remove a director in the midst of his or her term 
``only'' for cause. A cross reference to the existing regulatory 
definition of ``cause'' will also be added to answer a frequently asked 
question.
    Paragraph (k), on age limitations for directors, will be revised to 
indicate that any age limitation provision must conform to applicable 
Federal law, rules, or regulations, such as the Age Discrimination in 
Employment Act.

Section 552.6-2  Officers

    This section addresses corporate governance matters involving 
officers. Paragraph (a) will be amended to remove the requirement that 
the president always be a director and that either the president or the 
chair of the board of directors always be the chief executive officer.
    In paragraph (b), which addresses removal of officers, the cross 
reference to OTS employment contract regulation will be updated.
    Paragraph (c), on age limitations for officers, will be revised to 
indicate that any age limitation on service by officers must conform to 
applicable Federal law, rules, or regulations, such as the Age 
Discrimination in Employment Act.

Section 552.8  Savings Deposits

    This section contains instructions to Federal stock associations 
regarding the types of savings deposits they may accept, preservation 
of those accounts when a former mutual association adopts a stock 
charter, rights of account holders in the event of liquidation, and 
forms of certificates to use for accounts. OTS proposes to remove this 
section from the regulations. The provisions of this section are either 
self evident or covered by other statutes and regulations and general 
contract law. Under the conversion regulations, all converting mutual 
institutions are required to notify their accountholders that all the 
rights they enjoyed as accountholders, except voting and ownership of 
the institution, carry over to the converting association.

Section 552.11  Books and Records

    This section describes a Federal stock association's obligations 
with respect to books and records. Paragraph (b) will be amended to 
make clear that shareholders' inspection rights extend only to 
nonconfidential portions of an institution's books and records.

Appendix to Part 552

    As indicated above, OTS proposes to move the model bylaws for 
Federal stock associations, which currently appear in the appendix to 
Part 552, into the Handbook. Changes will be made to conform the model 
bylaws to the amendments to the bylaws regulations described above. In 
addition, OTS proposes to modify the model bylaws to indicate that 
procedures other than Robert's Rules of Order may be used for 
shareholder meetings, as long as the board of directors adopts 
alternative written procedures.

C. Part 575--Mutual Savings and Loan Holding Companies

Section 575.9  Charters and Bylaws for Mutual Holding Companies and 
Their Savings Association Subsidiaries

    This section describes the required charter and bylaws for Federal 
mutual holding companies. Paragraph (a)(1) contains the prescribed 
charter. This paragraph will be amended to indicate that the charter 
will appear in the Handbook and will be available from any Regional 
Office. In addition, the following changes will be made to the charter:
    Section 1. Corporate Title. Section 1 contains the corporate title 
of the Federal mutual holding company. The words ``hereby chartered'' 
will be deleted as unnecessary verbiage.

[[Page 32720]]

    Section 5. Members. This section identifies the mutual holding 
company's members and defines their rights. The sixth, seventh, and 
eighth sentences of this section, addressing proxies and quorums, will 
be removed because these matters either are covered or will be covered 
(once today's amendments are made) by the bylaw requirements applicable 
to mutual holding companies. As a result of this change, proxy and 
quorum issues will be addressed in a single place in the corporate 
documents of mutual holding companies.
    Section 6. Directors. This section provides that a Federal mutual 
holding company may have from 5 to 15 directors. In addition to 
technical changes made to conform the wording of this section to the 
corresponding section of the charter for Federal mutual associations, 
OTS also proposes to remove the requirement that directors be members 
of the association and the requirement that the terms of directors be 
staggered.
    Section 8. Amendment of charter. Section 8 describes the procedures 
for amending the mutual holding company's charter. These procedures 
will be streamlined to indicate that preapproved charter amendments are 
effective once approved by members of the mutual holding company. Other 
amendments will continue to require advance OTS approval.
    Paragraph (a)(2) of Sec. 575.9 provides that mutual holding 
companies may adopt the same preapproved charter amendments as are 
specified for mutual savings associations, subject to certain specified 
exclusions. Paragraph (a)(2) will be updated to conform to the changes 
being proposed for the list of preapproved charter amendments for 
mutual associations.
    Paragraph (a)(4) specifies that Federal mutual holding companies 
shall be subject to the same rules regarding bylaws as apply to Federal 
mutual associations, with certain exceptions. This paragraph will be 
amended to indicate that the model bylaws may be found in the Handbook, 
available from OTS Regional Offices.
    A technical amendment will be made to paragraph (a)(5), which 
requires mutual holding companies to make their charter and bylaws 
available to members. The cross reference to Sec. 545.131 will be 
changed to reflect the proposed movement of this section to Part 544.

D. Miscellaneous Technical Changes

Section 543.1(b)  Title Change

    This section prescribes the rules for corporate titles for Federal 
savings associations. This section will be amended to delete cross 
references to sections being removed by this proposal.

Section 543.14  Continuity of Existence

    This section, which confirms that the corporate existence of 
converting associations continues, notwithstanding the conversion, will 
be amended to delete a cross reference to a section being removed by 
this proposal.

Section 556.1  Directors

    This section, which describes OTS policy on the number of directors 
necessary for a quorum and the directors' power to fill vacancies, will 
be removed because both subjects are thoroughly covered by the bylaws 
regulations.

Section 556.17  Effect of Loan Participation on Status of Borrowing 
Members

    This section provides guidance regarding various issues that arise 
when determining the identity of the borrowing members of a Federal 
mutual savings association. For example, this section indicates that 
sale of a whole loan by a savings association to a third party 
terminates the borrower's membership rights in the association. OTS 
proposes to move this policy statement from the regulations into 
Handbook guidance.

V. Proposed Disposition of Corporate Governance Regulations

    The following chart displays the changes being proposed for OTS's 
corporate governance regulations.

--------------------------------------------------------------------------------------------------------------------------------------------------------
           Original provision                                                                Comment                                                    
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec.  543.1(b).........................  Amended to delete references.                                                                                  
Sec.  543.14...........................  Amended to delete references.                                                                                  
Sec.  544.1............................  Amended and moved to Handbook.                                                                                 
Sec.  544.1, Section 6.................  Moved portion to Sec.  544.5 for clarification.                                                                
Sec.  544.1, Section 7.................  Moved portion to Sec.  544.5 for clarification.                                                                
Sec.  544.1, Section 9.................  Removed need for preliminary approval.                                                                         
Sec.  544.2(a)(2)......................  Eliminated need for management certification.                                                                  
Sec.  544.2(b).........................  Eliminated need for prior notice requirement.                                                                  
Sec.  544.2(b)(4)......................  Removed existing paragraph and added new preapproved amendment.                                                
Sec.  544.2(c).........................  Removed delegation.                                                                                            
Sec.  544.3............................  Removed.                                                                                                       
Sec.  544.5(a).........................  Revised for clarification.                                                                                     
Sec.  544.5(b) (1) and (2).............  Amended for flexibility; changed annual meeting date.                                                          
Sec.  544.5(b) (3) and (4).............  Adjournment provisions added.                                                                                  
Sec.  544.5(b) (5) through (17)........  Redesignated (b) (6) to (18)                                                                                   
Sec.  544.5(b)(6)......................  Amended to add privacy rights.                                                                                 
Sec.  544.5(b)(10).....................  Amended to add guidance on vacancies.                                                                          
Sec.  544.5(b)(13).....................  Amended to add guidance on nominee substitution.                                                               
Sec.  544.5(b)(16).....................  Revised for clarification.                                                                                     
Sec.  544.5(b)(17).....................  Removed.                                                                                                       
Sec.  544.5(c).........................  Eliminated need for management certification.                                                                  
Sec.  544.5(c)(1)......................  Eliminated need for prior notice requirement.                                                                  
Sec.  544.5(d).........................  Reduced filing requirement.                                                                                    
Sec.  544.8............................  Removed.                                                                                                       
Sec.  544.9............................  Removed.                                                                                                       
Part 544 Appendix......................  Conformed to proposed changes and moved to Handbook.                                                           
Sec.  545.131..........................  Moved to Part 544.                                                                                             
Sec.  552.1............................  Removed.                                                                                                       
Sec.  552.2............................  Removed.                                                                                                       
Sec.  552.2-5..........................  Removed.                                                                                                       
Sec.  552.3............................  Amended and moved to Handbook.                                                                                 

[[Page 32721]]

                                                                                                                                                        
Sec.  552.3 Section 8..................  Removed need for preliminary approval.                                                                         
Sec.  552.4(a)(2)......................  Eliminated need for management certification.                                                                  
Sec.  552.4(b).........................  Eliminated need for prior notice requirement.                                                                  
Sec.  552.4(b)(3)......................  Removed.                                                                                                       
Sec.  552.4(b) (4) through (6).........  Redesignated (b) (3) to (5).                                                                                   
New Sec.  552.4(b)(6)..................  Add new preapproved amendment.                                                                                 
Sec.  552.4(c).........................  Amended for clarification.                                                                                     
Sec.  552.5(b).........................  Eliminated need for management certification.                                                                  
Sec.  552.5(b)(1)(ii)..................  Eliminated need for prior notice requirement.                                                                  
Sec.  552.5(c).........................  Reduced filing requirement.                                                                                    
Sec.  552.6(a).........................  Amended for flexibility; changed annual meeting date.                                                          
Sec.  552.6(b).........................  Amended shareholder meeting requirements.                                                                      
Sec.  552.6(d).........................  Amended to add guidance on voting lists.                                                                       
Sec.  552.6(e).........................  Amended to add guidance on certain voting requirements.                                                        
Sec.  552.6(f)(1)......................  Amended for flexibility.                                                                                       
New Sec.  552.6(f)(4)..................  Added section on shares held by others.                                                                        
New Sec.  552.6(h).....................  Added section on informal action.                                                                              
Sec.  552.6-1(a).......................  Amended for flexibility.                                                                                       
Sec.  552.6-1(b).......................  Removed necessity for staggered board of directors if wholly owned. Also amended to specify number of          
                                          directors.                                                                                                    
Sec.  552.6-1(f).......................  Amended to clarify where ``cause'' is defined.                                                                 
Sec.  552.6-1(k).......................  Amended to add guidance.                                                                                       
Sec.  552.6-2(a).......................  Amended to remove provision requiring president to be a director.                                              
Sec.  552.8............................  Removed.                                                                                                       
Part 552 Appendix......................  Conformed to proposed changes and moved to Handbook.                                                           
Sec.  556.1............................  Removed.                                                                                                       
Sec.  556.17...........................  Moved to Handbook.                                                                                             
Sec.  563.74(d)........................  Amended to conform to earlier change.                                                                          
Sec.  575.9............................  Amended and moved to Handbook.                                                                                 
Sec.  575.9 Section 8..................  Removed need for preliminary approval.                                                                         
--------------------------------------------------------------------------------------------------------------------------------------------------------

VI. Request for Comment

    OTS invites comment on all aspects of the proposal. Specific areas 
that OTS requests for comments are as follows:

--Whether to move the charters and model bylaws from the regulations to 
OTS's Handbook.
--Whether OTS should exempt associations that are wholly-owned from the 
requirement that the board of directors be elected in staggered 
elections; also whether a staggered board of directors should be 
required if the association is not wholly owned.
--Whether OTS should adopt a practice similar to the OCC of permitting 
institutions to elect to adopt, en bloc, the corporate governance 
procedures authorized by any of the following: the laws of the state 
where the main office of the bank is located, the laws of the state 
where the bank's holding company, if any, is located, Delaware General 
Corporation Law, or The Model Business Corporation Act. As indicated 
above, any such election would likely be subject to certain exclusions, 
as is the case for national banks, for Federal laws considered vital to 
safety and soundness or other important policy objectives. Commenters 
supporting the election option are asked to specify how the option 
would benefit savings associations.

VII. Executive Order 12866

    The Director of OTS has determined that this proposed rule does not 
constitute a ``significant regulatory action'' for the purposes of 
Executive Order 12866.

VIII. Regulatory Flexibility Act Analysis

    Pursuant to section 605(b) of the Regulatory Flexibility Act, OTS 
certifies that this proposal will not have a significant economic 
impact on a substantial number of small entities. The proposal does not 
impose any additional burdens or requirements upon small entities and 
lowers several paperwork and other burdens on all savings associations.

IX. Unfunded Mandates Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 
104-4 (Unfunded Mandates Act), requires that an agency prepare a 
budgetary impact statement before promulgating a rule that includes a 
federal mandate that may result in expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. If a budgetary impact statement is 
required, Section 205 of the Unfunded Mandates Act also requires an 
agency to identify and consider a reasonable number of regulatory 
alternatives before promulgating a rule. As discussed in the preamble, 
this proposed rule reduces regulatory burden and updates, reorganizes 
and substantially streamlines corporate governance regulations and 
policy statements. OTS has determined that the proposed rule will not 
result in expenditures by state, local, or tribal governments or by the 
private sector of $100 million or more. Accordingly, this rulemaking is 
not subject to section 202 of the Unfunded Mandates Act.
    OTS has determined that the requirements of this proposed rule will 
not result in expenditures by State, local, and tribal governments, or 
by the private sector, of more than $100 million in any one year. 
Accordingly, a budgetary impact statement is not required under section 
202 of the Unfunded Mandates Act of 1995.

X. Paperwork Reduction Act

    This proposed regulation changes the timing of the submission of a 
notice to OTS when an institution proposes to amend its charter or 
bylaws with OTS preapproved amendments. Currently, this notice is 
required before the institution adopts the amendment. Under the 
proposal, the institution will file the notice after adopting the 
preapproved amendment. The reporting burden for this notice remains 
unchanged.
    Comments are invited on (i) whether the existing approved 
collections of

[[Page 32722]]

information (OMB Control Nos. 1550-0017 and 1550-0018) are necessary 
for the proper performance of the functions of the agency, including 
whether the information shall have practical utility, (ii) the accuracy 
of the estimate of the burden of the collection of information, (iii) 
ways to enhance the quality of the information collected, (iv) ways to 
minimize the burden of the collection of information on respondents, 
including the use of automated collection techniques or other forms of 
information technology.

List of Subjects

12 CFR Parts 543 and 544

    Reporting and recordkeeping requirements, Savings associations.

12 CFR Part 545

    Accounting, Consumer protection, Credit, Electronic Funds 
transfers, Investments, Manufactured homes, Mortgages, Reporting and 
recordkeeping requirements, Savings associations.

12 CFR Part 552

    Reporting and recordkeeping requirements, Savings associations, 
Securities.

12 CFR Part 556

    Savings associations.

12 CFR Part 563

    Accounting, Advertising, Crime, Currency, Flood insurance, 
Investments, Mortgages, Reporting and recordkeeping requirements, 
Savings associations, Securities, Surety bonds.

12 CFR Part 575

    Administrative practice and procedure, Capital, Holding companies, 
Reporting and recordkeeping requirements, Savings associations, 
Securities.

    Accordingly, the Office of Thrift Supervision proposes to amend 
chapter V, title 12, Code of Federal Regulations, as set forth below.

PART 543--INCORPORATION, ORGANIZATION, AND CONVERSION OF FEDERAL 
MUTUAL ASSOCIATIONS

    1. The authority citation for part 543 continues to read as 
follows:

    Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 2901 et 
seq.

Sec. 543.1  [Amended]

    2. Section 543.1 is amended in paragraph (b) by removing the phrase 
``, only pursuant to a charter change under Sec. 544.3 or Sec. 552.4 of 
this chapter''.

Sec. 543.14  [Amended]

    3. Section 543.14 is amended by removing the phrase ``or under 
Sec. 544.3 of this chapter''.

PART 544--CHARTER AND BYLAWS

    4. The authority citation for part 544 continues to read as 
follows:

    Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 2901 et 
seq.

ALTERNATIVE ONE

    5. Section 544.1 is revised to read as follows:

Sec. 544.1  Federal mutual charter.

    The Federal mutual charter may be found in the Application 
Processing Regulatory Handbook, available from any Regional Office of 
OTS. (See Sec. 516.1(b) of this chapter.) Each Federal mutual 
association's charter, including any amendments thereto, constitutes 
conditions imposed in writing by the agency in connection with the 
granting of an application and a written agreement entered into with 
the agency within the meaning of 12 U.S.C. 1818(b).

ALTERNATIVE TWO

    5a. Section 544.1 is amended by:
    a. Revising the introductory text preceding the Federal Mutual 
Charter;
    b. Removing in section 1 of the Federal Mutual Charter the phrase 
``hereby chartered'';
    c. Transferring the third and fourth sentences of section 6 of the 
charter, appearing in brackets, to the end of the introductory text of 
Sec. 544.1 and by removing the brackets;
    d. Removing the last three sentences of section 6 of the charter;
    e. Removing the third, fourth, and fifth sentences of the first 
paragraph, and all of the second paragraph of section 7 of the charter;
    f. Removing the word ``[Trustees]'' in the heading and the words 
``[trustee]'' and ``[trustees]'' where they appear in the text of 
section 7 of the charter; and
    g. Revising section 9 of the charter.
    The revisions read as follows:

Sec. 544.1  Federal mutual charter.

    A Federal mutual savings association shall have a charter in the 
following form, which may include any of the additional provisions set 
forth in Sec. 544.2, if such provisions are specifically requested. A 
charter for a Federal mutual savings bank shall substitute the term 
``savings bank'' for ``association.'' The term ``trustees'' may be 
substituted for the term ``directors.''
* * * * *
    Section 9. Amendment of charter. Adoption of any preapproved 
charter amendment shall be effective after such preapproved 
amendment has been approved by the members at a legal meeting. Any 
other amendment, addition, change, or repeal of this charter must be 
approved by the Office prior to approval by the members at a legal 
meeting. Any amendment, addition, alteration, change, or repeal so 
acted upon and approved shall be effective upon filing with the 
Office 
FR Doc. 96-14441 Corporate Governance
in accordance with regulatory procedures.

Attest:----------------------------------------------------------------
Secretary of the Association

By:--------------------------------------------------------------------
President or Chief Executive Officer of the Association

Attest:----------------------------------------------------------------
Secretary of the Office of Thrift Supervision

By:--------------------------------------------------------------------
Director of the Office of Thrift Supervision

Effective Date:--------------------------------------------------------

    6. Section 544.2 is amended by:
    a. Removing in paragraphs (a)(2)(i) and (a)(2)(ii), the phrase 
``along with a certification that the proposed'' and by adding in lieu 
thereof the phrase, ``provided such'';
    b. Removing the phrase ``filing with the OTS'' in the third 
sentence of paragraph (b), and by adding in lieu thereof the phrase 
``adoption, if adopted without change and filed with OTS, within 30 
days after adoption'';
    c. Revising paragraph (b)(4); and
    d. Removing the word ``shall'' in the second sentence of paragraph 
(c), and by adding in lieu thereof the phrase ``should be filed in 
accordance with Sec. 516.1(c) of this chapter and'' and by removing the 
last sentence of paragraph (c).
    The revisions read as follows:

Sec. 544.2  Charter amendments.

* * * * *
    (b) * * *
    (4) Maximum number of votes. A Federal mutual savings association 
may amend its charter by substituting (__________) votes per member in 
section 6. [Fill in a number from 50 to 1000.]
* * * * *

Sec. 544.3  [Removed]

    7. Section 544.3 is removed.
    8. Section 544.5 is amended by:
    a. Adding, between the words ``majority'' and ``of'' in the second 
sentence of paragraph (a), the phrase ``of the votes cast by the 
members at a legal meeting or a majority'', and by adding two new 
sentences at the end of paragraph (a);
    b. Removing the words ``[trustee]'' and ``[trustees]'' wherever 
they appear in paragraph (b);
    c. Revising the second sentence of paragraph (b)(1);
    d. Adding a sentence at the end of paragraph (b)(2);

[[Page 32723]]

    e. Adding a sentence at the end of paragraph (b)(3);
    f. Adding a sentence at the end of paragraph (b)(4);
    g. Redesignating paragraphs (b)(5) through (b)(17) as paragraphs 
(b)(6) through (b)(18), respectively;
    h. Adding a new paragraph (b)(5);
    i. Adding to newly designated paragraph (b)(6), a sentence between 
the first and second sentences, and three new sentences at the end;
    j. Revising newly designated paragraph (b)(7);
    k. Revising newly designated paragraph (b)(8);
    l. Adding after the word ``treasurer'' in newly designated 
paragraph (b)(10)(i), the words ``or comptroller'';
    m. Adding a sentence at the end of newly designated paragraph 
(b)(10)(ii);
    n. Revising newly designated paragraph (b)(11);
    o. Adding, between the words ``secretary'' and ``and'' in the 
second sentence of newly designated paragraph (b)(14), the phrase ``, 
except in the case of a nominee substituted as a result of death or 
other incapacity,'';
    p. Removing, in the first sentence of newly designated paragraph 
(b)(17), the phrase ``pursuant to Sec. 544.5 of the Office's 
regulations, as long as any such amendment'', and by adding in lieu 
thereof the word ``that'', and by adding a sentence at the end of 
paragraph (b)(17);
    q. Removing, in newly designated paragraph (b)(18), the phrase 
``emergency preparedness,'';
    r. Removing in paragraph (c)(1) introductory text, the phrase 
``along with a certification that the proposed'', and by adding in lieu 
thereof the phrase ``, provided such'';
    s. Removing, in the concluding text of paragraph (c)(1), the phrase 
``shall be deemed to comply with the requirements of this section'', 
and by adding in lieu thereof the phrase ``, if adopted without change, 
and filed within 30 days after adoption, are effective upon adoption'';
    t. Amending the heading of paragraph (c)(2) by removing the word 
``Notice'', and by adding in lieu thereof the word ``Filing'', and by 
removing, in paragraph (c)(2), the phrase ``together with a 
certification'', and by adding in lieu thereof the word ``provided''; 
and
    u. Removing, in the second sentence of paragraph (d), the phrase 
``raises a significant issue of law or policy'', and by adding in lieu 
thereof the phrase ``requires an application to be filed pursuant to 
paragraph (c)(1) of this section'',.
    The additions and revisions read as follows:

Sec. 544.5  Federal mutual savings association bylaws.

    (a) * * * The bylaws for a Federal mutual savings bank may 
substitute the term ``savings bank'' for ``association.'' The term 
``trustees'' may be substituted for the term ``directors.''
    (b) * * *
    (1) * * * Such meeting shall be held, as designated by its board of 
directors, at a location within the state that constitutes the 
principal place of business of the association, or at any other 
convenient place the board of directors may designate, and at a date 
and time within 150 days after the end of the association's fiscal 
year. * * *
    (2) * * * For purposes of this section, ``voting capital'' means 
FDIC-insured deposits.
    (3) * * * When any meeting is adjourned for 30 days or more, notice 
of the adjournment and reconvening of the meeting shall be given as in 
the case of the original meeting.
    (4) * * * The same determination shall apply to any adjourned 
meeting.
    (5) Member quorum. Any number of members present and voting, 
represented in person or by proxy, at a regular or special meeting of 
the members shall constitute a quorum. A majority of all votes cast at 
any meeting of the members shall determine any question. At any 
adjourned meeting any business may be transacted which might have been 
transacted at the meeting as originally called. Members present at a 
duly constituted meeting may continue to transact business until 
adjournment.
    (6) * * * Proxies may be given telephonically or electronically as 
long as the holder uses a procedure for verifying the identity of the 
member. * * * Accounts held by an administrator, executor, guardian, 
conservator or receiver may be voted in person or by proxy by such 
person. Accounts held by a trustee may be voted by such trustee either 
in person or by proxy, in accordance with the terms of the trust 
agreement, but no trustee shall be entitled to vote accounts without a 
transfer of such accounts into the trustee name. Joint accounts shall 
be entitled to no more than 1,000 votes, split as the joint owners may 
agree, in writing.
    (7) Communications between members. Provisions relating to 
communications between members shall be consistent with Sec. 544.8 of 
the Office's regulations. No member, however, shall have the right to 
inspect or copy any portion of any books or records of a Federal mutual 
savings association containing:
    (i) A list of depositors in or borrowers from such association;
    (ii) Their addresses;
    (iii) Individual deposit or loan balances or records; or
    (iv) Any data from which such information could be reasonably 
constructed.
    (8) Number of directors, membership. The bylaws shall set forth a 
specific number of directors, not a range. The number of directors 
shall be not fewer than five nor more than fifteen, unless a higher or 
lower number has been authorized by the Director of the Office or his 
or her designee. Each director of the association shall be a member of 
the association. Directors shall be elected for periods of three years 
and until their successors are elected and qualified, but provision 
shall be made for the election of approximately one-third of the board 
each year. [State-chartered savings banks converting to Federal savings 
banks may include alternative provisions for the election and term of 
office of directors so long as such provisions are authorized by the 
Office, and provide for compliance with the standard provisions of this 
section no later than six years after the conversion to a Federal 
savings association.]
* * * * *
    (10) * * *
    (ii) * * * Any officer may be removed by the board of directors 
with or without cause, but such removal, other than for cause, shall be 
without prejudice to the contractual rights, if any, of the person so 
removed.
* * * * *
    (11) Vacancies, resignation or removal of directors. Members of the 
association shall elect directors by ballot: Provided, that in the 
event of a vacancy on the board, the board of directors may, by their 
affirmative vote, fill such vacancy, even if the remaining directors 
constitute less than a quorum. A director elected to fill a vacancy 
shall be elected to serve only until the next election of directors by 
the members. The bylaws shall set out the procedure for the resignation 
of a director, which shall be by written notice or by any other 
procedure established in the bylaws. Directors may be removed only for 
cause as defined in Sec. 563.39 of this chapter, by a vote of the 
holders of a majority of the shares then entitled to vote at an 
election of directors.
* * * * *
    (17) * * * When an association fails to meet its quorum 
requirement, solely due to vacancies on the board, the bylaws may be 
amended by an affirmative vote of a majority of the sitting board.
* * * * *

[[Page 32724]]

Secs. 544.8 and 544.9   [Removed]

    9. Sections 544.8 and 544.9 are removed.

ALTERNATIVE ONE

    10. The Appendix to Part 544 is revised to read as follows:

Appendix to Part 544--Model Bylaws for Mutual Savings Associations

    The Federal mutual bylaws may be found in the Application 
Processing Regulatory Handbook, available from any Regional Office 
of OTS (see Sec. 516.1(b) of this chapter). Each Federal mutual 
association's bylaws, including any amendments thereto, constitutes 
conditions imposed in writing by the agency in connection with the 
granting of an application and a written agreement entered into with 
the agency within the meaning of 12 U.S.C. 1818(b).

ALTERNATIVE TWO

    10a. The Appendix to Part 544 is amended by:
    a. Removing section 18;
    b. Removing the words ``[trustee]'', ``[trustees]'', and 
``[Trustees]'' wherever they appear in the appendix;
    c. Adding introductory text between the heading of the appendix and 
Section 1;
    d. Amending the first sentence of Section 1 by removing the phrase 
``at (insert date and time within 120 days'', and by adding in lieu 
thereof the phrase ``or at any other convenient place the board of 
directors may designate, at (insert date and time within 150 days'';
    e. Amending Section 2 by adding a sentence between the second and 
third sentences and by revising the last sentence;
    f. Amending Section 3 by removing paragraph (b) and the paragraph 
designation (a), by removing the word ``annual'' wherever it appears in 
Section 3, and by adding a sentence at the end of Section 3;
    g. Adding a sentence at the end of Section 4;
    h. Redesignating Sections 5 through 17 as Sections 6 through 18, 
respectively, and adding a new Section 5;
    i. Adding to newly designated Section 6, a sentence between the 
first and second sentences, and three new sentences at the end;
    j. Adding new text at the end of newly designated Section 7;
    k. Revising newly designated Section 8;
    l. Amending newly designated Section 10 by adding the phrase ``or 
comptroller'' in the first sentence of the first paragraph, between the 
word ``treasurer'' and the colon and at the end of the sentence, and by 
adding a sentence at the end of the first paragraph;
    m. Amending newly designated Section 11 by revising the heading, 
adding two sentences at the beginning of the first paragraph following 
the heading, and adding the phrase ``as defined in the regulations in 
Sec. 563.39 of this chapter'' after the word ``cause'' in the second 
paragraph;
    n. Amending newly designated Section 14 by adding the phrase ``, 
except in the case of a nominee substituted as a result of death or 
other incapacity'' at the end of the second and third sentences;
    o. Amending newly designated Section 17 by adding a new sentence at 
the end of the section; and
    p. Amending newly designated Section 18 by adding one sentence of 
introductory text preceding paragraph (a), and by removing the phrase 
``of at least ____________________ (must be in accordance with ERISA)'' 
in paragraph (b).
    The additions and revisions read as follows:

Appendix to Part 544--Model Bylaws for Mutual Savings Associations

    The bylaws for a Federal mutual savings bank may substitute the 
term ``savings bank'' for ``association.'' The term ``trustees'' may 
be substituted for the term ``directors.''
* * * * *
    2. * * * For purposes of this section, ``capital'' means FDIC-
insured deposits. Annual and special meetings shall be conducted in 
accordance with the most current edition of Robert's Rules of Order 
or any other set of procedures agreed to by the board of directors.
    3. * * * When any meeting is adjourned for 30 days or more, 
notice of the adjournment shall be given as in the case of the 
original meeting.
    4. * * * The same determination shall apply to any adjourned 
meeting.
    5. Member quorum. Any number of members present and voting, 
represented in person or by proxy, at a regular or special meeting 
of the members shall constitute a quorum. A majority of all votes 
cast at any meeting of the members shall determine any question. At 
any adjourned meeting any business may be transacted which might 
have been transacted at the meeting as originally called. Members 
present at a duly constituted meeting may continue to transact 
business until adjournment.
    6. * * * Proxies may be given telephonically or electronically 
as long as the holder uses a procedure for verifying the identity of 
the member. * * * Accounts held by an administrator, executor, 
guardian, conservator or receiver may be voted in person or by proxy 
by such person. Accounts held by a trustee may be voted by such 
trustee either in person or by proxy, in accordance with the terms 
of the trust agreement, but no trustee shall be entitled to vote 
accounts without a transfer of such accounts into the trustee name. 
Joint accounts shall be entitled to no more than 1,000 votes, split 
as the joint owners may agree, in writing.
    7. * * * No member, however, shall have the right to inspect or 
copy any portion of any books or records of a Federal mutual savings 
association containing:
    (i) A list of depositors in or borrowers from such association;
    (ii) Their addresses;
    (iii) Individual deposit or loan balances or records; or
    (iv) Any data from which such information could be reasonably 
constructed.
    8. Number of directors, membership. The number of directors 
shall be ________ [not fewer than five nor more than fifteen], 
except where authorized by the Director of the Office or his or her 
designee. Each director of the association shall be a member of the 
association. Directors shall be elected for periods of three years 
and until their successors are elected and qualified, but provision 
shall be made for the election of approximately one-third of the 
board each year. [State-chartered savings banks converting to 
Federal savings banks may include alternative provisions for the 
election and term of office of directors so long as such provisions 
are authorized by the Office, and provide for compliance with the 
standard provisions of this section no later than six years after 
the conversion to a Federal savings association.]
* * * * *
    10. * * * Any officer may be removed by the board of directors 
with or without cause, but such removal, other than for cause, shall 
be without prejudice to the contractual rights, if any, of the 
person so removed.
* * * * *
    11. Vacancies, resignation, or removal of directors. Members of 
the association shall elect directors by ballot: Provided, that in 
the event of a vacancy on the board, the board of directors may, by 
their affirmative vote, fill such vacancy, even if the remaining 
directors constitute less than a quorum. A director elected to fill 
a vacancy shall be elected to serve only until the next election of 
directors by the members. * * *
* * * * *
    17. * * * When an association fails to meet its quorum 
requirement, solely due to vacancies on the board, the bylaws may be 
amended by an affirmative vote of a majority of the sitting board.
    18. Age limitations. [Bylaws on age limitations must comply with 
all Federal laws, such as the Age Discrimination in Employment Act 
and the Employee Retirement Income Security Act.] (a) * * *
* * * * *

PART 545--OPERATIONS

    11. The authority citation for part 545 continues to read as 
follows:

    Authority: 12 U.S.C. 1462a, 1463, 1464, 1828.

Sec. 545.131  [Redesignated as Sec. 544.8]

    12. Section 545.131 is redesignated as Sec. 544.8.

[[Page 32725]]

PART 552--INCORPORATION, ORGANIZATION, AND CONVERSION OF FEDERAL 
STOCK ASSOCIATIONS

    13. The authority citation for part 552 continues to read as 
follows:

    Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a.

Secs. 552.1 and 552.2  [Removed]

    14. Sections 552.1 and 552.2 are removed.

Sec. 552.2-5  [Removed]

    15. Section 552.2-5 is removed.

ALTERNATIVE ONE

    16. Section 552.3 is revised to read as follows:

Sec. 552.3  Charters for Federal stock associations.

    The Federal stock charter may be found in the Application 
Processing Regulatory Handbook, available from any Regional Office of 
OTS. (see Sec. 516.1(b) of this chapter.) Each Federal stock 
association's charter, including any amendments thereto, constitutes 
conditions imposed in writing by the agency in connection with the 
granting of an application and a written agreement entered into with 
the agency within the meaning of 12 U.S.C. 1818(b).

ALTERNATIVE TWO

    16a. Section 552.3 is amended in the Federal Stock Charter by:
    a. Removing, in Section 2, the word ``in'', and by adding in lieu 
thereof the word ``at'';
    b. Amending Section 5 by adding between the words ``or'' and 
``stated'' appearing in brackets in the first sentence, the phrase ``if 
no par is specified then shares shall have a'', by revising the last 
sentence in the first paragraph;
    c. Amending Section 5 by removing in the first sentence of the 
second paragraph the phrases ``issuable in'' and ``common stock'', and 
by adding in lieu thereof the phrases ``issued in the initial 
organization of the association or'' and ``capital stock'', 
respectively;
    d. Amending Section 5 by adding the phrase ``, unless the charter 
otherwise provides that there shall be no such cumulative voting'' at 
the end of the second sentence in the third paragraph;
    e. Amending Section 7 by adding the phrase ``, or his or her 
delegate'' at the end of the last sentence; and
    f. Revising Section 8.
    The revisions read as follows:

Sec. 552.3  Charters for Federal stock associations.

* * * * *

Federal Stock Charter

* * * * *
    Section 5. * * * In the case of a stock dividend, that part of 
the retained earnings of the association that is transferred to 
common stock or paid-in capital accounts upon the issuance of shares 
as a stock dividend shall be deemed to be the consideration for 
their issuance.
* * * * *
    Section 8. Amendment of charter. Except as provided in Section 
5, no amendment, addition, alteration, change or repeal of this 
charter shall be made, unless such is first proposed by the board of 
directors of the association, then approved by the Office, provided 
that preapproved charter amendments shall be effective after such 
preapproved amendment has been approved by the board of directors 
and by the shareholders at a legal meeting. Amendments shall be 
approved by the shareholders by a majority of the votes eligible to 
be cast at a legal meeting, unless a higher vote is otherwise 
required. Any amendment, addition, alteration, change, or repeal so 
acted upon shall be effective upon filing with the Office in 
accordance with regulatory procedures.

Attest:----------------------------------------------------------------
Secretary of the Association

By:--------------------------------------------------------------------
President or Chief Executive Officer of the Association

Attest:----------------------------------------------------------------
Secretary of the Office of Thrift Supervision

By:--------------------------------------------------------------------
Director of the Office of Thrift Supervision

Effective Date:--------------------------------------------------------

    17. Section 552.4 is amended by:
    a. Removing at the end of paragraph (a)(1) the semicolon and the 
word ``and'', and by adding in lieu thereof a period;
    b. Removing in paragraph (a)(2)(i) the phrase ``with a 
certification that the proposed'' and in paragraph (a)(2)(ii) the 
phrase ``, together with a certification that the'', and by adding in 
both places the phrase ``, provided such'';
    c. Removing the phrase ``filing with the OTS'' in the second 
sentence of paragraph (b) introductory text, and by adding in lieu 
thereof the phrase ``adoption, if adopted without change and filed with 
OTS, within 30 days after adoption'';
    d. Adding headings to paragraphs (b)(1) and (b)(2);
    e. Removing paragraph (b)(3);
    f. Redesignating paragraph (b)(4) as paragraph (b)(3) and revising 
it;
    g. Redesignating paragraph (b)(5) as paragraph (b)(4) and adding a 
paragraph heading, and revising the introductory text;
    h. Amending newly redesignated paragraph (b)(4) in Section 5 by 
adding between the words ``or'' and ``stated'' appearing in brackets in 
the first sentence, the phrase ``if no par value is specified the'', 
and by revising the last sentence in the first paragraph;
    i. Amending paragraph (b)(4) in Section 5 by removing in the first 
sentence of the second paragraph the phrase ``issuable in'' and by 
adding in lieu thereof the phrase ``issued in the initial organization 
of the association or'';
    j. Amending paragraph (b)(4) in Section 5 by adding the phrase ``, 
unless the charter otherwise provides that there shall be no such 
cumulative voting'' in the introductory text of the third paragraph 
between the words ``directors:'' and ``Provided'';
    k. Amending paragraph (b)(4) in paragraph (ii) of the third 
paragraph of Section 5 by removing the phrase ``, the Federal Deposit 
Insurance Corporation, or the Resolution Trust Corporation'', and by 
adding in lieu thereof the phrase ``or the Federal Deposit Insurance 
Corporation'';
    l. Amending paragraph (b)(4) in paragraph A. of the fourth 
paragraph by adding the phrase ``, unless the charter otherwise 
provides that there shall be no such cumulative voting'' at the end of 
the second sentence;
    m. Redesignating paragraph (b)(6) as paragraph (b)(5), adding a 
heading, and removing the phrase ``Amend the charter of a Federal stock 
association'', and by adding in lieu thereof the phrase ``A Federal 
stock association may amend its charter'';
    n. Adding a new paragraph (b)(6);
    o. Adding a heading to paragraph (b)(8); and
    p. Amending paragraph (c) by removing the word ``preliminary'' 
wherever it appears, and by adding a second sentence.
    The additions and revisions read as follows:

Sec. 552.4  Charter amendments.

* * * * *
    (b) * * *
    (1) Title change. * * *
    (2) Home office. * * *
    (3) Number of shares of stock and par value. A Federal stock 
association may amend Section 5 of its charter to change the number of 
authorized shares of stock, the number of shares within each class of 
stock, and the par or stated value of such shares.
    (4) Capital stock. A Federal stock association may amend its 
charter by revising Section 5 to read as follows:

    Section 5. * * * In the case of a stock dividend, that part of 
the retained earnings of the association that is transferred to 
common stock or paid-in capital accounts upon the issuance of shares 
as a stock dividend shall be deemed to be the consideration for 
their issuance.
* * * * *

[[Page 32726]]

    (5) Limitations on subsequent issuances. * * *
    (6) Cumulative voting. A Federal stock association may amend its 
charter by substituting the following sentence for the second sentence 
in the third paragraph of Section 5: ``Each holder of shares of common 
stock shall be entitled to one vote for each share held by such holder 
and there shall be no right to cumulate votes in an election of 
directors.''
* * * * *
    (8) Antitakeover provisions following conversion. * * *
    (c) * * * Any such provision must be consistent with applicable 
statutes, regulations, and OTS policies; and Provided Further, that any 
such provision having the effect of rendering more difficult a change 
in control of the association which requires for any corporate action 
(other than the removal of directors) the affirmative vote of a larger 
percentage of shareholders than is required by this part, shall not be 
effective unless adopted by a percentage of shareholder vote at least 
equal to the highest percentage that would be required to take any 
action under such provision.
* * * * *
    18. Section 552.5 is amended by:
    a. Revising the second sentence of paragraph (a);
    b. Removing, in paragraphs (b)(1) introductory text and (b)(2), the 
phrase ``together with a certification'', and by adding in lieu thereof 
the word ``provided'';
    c. Removing, in the concluding text of paragraph (b)(1), the phrase 
``shall be deemed to comply with the requirements of this section'', 
and by adding in lieu thereof the phrase'', if adopted without change, 
and filed within 30 days after adoption, are effective upon adoption'';
    d. Amending the heading of paragraph (b)(2) by removing the word 
``Notice'', and by adding in lieu thereof the word ``Filing''; and
    e. Adding paragraph (d).
    The additions and revisions read as follows:

Sec. 552.5  Bylaws.

    (a) * * * Bylaws may be adopted, amended or repealed by either a 
majority of the votes cast by the shareholders at a legal meeting or a 
majority of the board of directors. * * *
* * * * *
    (d) Effect of subsequent charter or bylaw change. Notwithstanding 
any subsequent change to its charter or bylaws, the authority of a 
Federal stock association to engage in any transaction shall be 
determined only by the association's charter or bylaws then in effect, 
unless otherwise provided by Federal law or regulation.
    19. Section 552.6 is amended by:
    a. Removing in paragraph (a) the number ``120'', and by adding in 
lieu thereof the number ``150'', and by adding the phrase ``, or at any 
other convenient place the board of directors may designate'' at the 
end of the paragraph;
    b. Adding a sentence at the end of paragraph (b);
    c. Revising paragraph (d)(1);
    d. Adding a sentence at the end of paragraph (e);
    e. Adding two sentences after the first sentence in paragraph 
(f)(1);
    f. Adding paragraph (f)(4); and
    g. Adding paragraph (h).
    The additions and revisions read as follows:

Sec. 552.6  Shareholders.

* * * * *
    (b) * * * Notwithstanding anything in this section, however, a 
Federal stock association that is wholly owned shall not be subject to 
the stockholder notice requirement.
* * * * *
    (d) Voting lists. (1) At least 20 days before each meeting of the 
shareholders, the officer or agent having charge of the stock transfer 
books for the shares of the association shall make a complete list of 
the stockholders of record entitled to vote at such meeting, or any 
adjournments thereof, including the names of beneficial owners 
furnished to the association pursuant to the rules of the Securities 
Exchange Commission, arranged in alphabetical order, with the address 
and the number of shares held by each. This list of shareholders shall 
be kept on file at the home office of the association and shall be 
subject to inspection by any stockholder of record or the stockholder's 
agent during the entire time of the meeting. The original stock 
transfer book shall constitute prima facie evidence of the shareholders 
entitled to examine such list or transfer books or to vote at any 
meeting of shareholders. Notwithstanding anything in this section, 
however, a Federal stock association that is wholly owned shall not be 
subject to the voting list requirements.
* * * * *
    (e) * * * If a quorum is present, the affirmative vote of the 
majority of the shares represented at the meeting and entitled to vote 
on the subject matter shall be the act of the stockholders, unless the 
vote of a greater number of stockholders voting together or voting by 
classes is required by law or the charter.
    (f) Shareholder voting (1) * * * Proxies may be given 
telephonically or electronically as long as the holder uses a procedure 
for verifying the identity of the stockholder. Notwithstanding part 569 
of this chapter, a proxy may designate as holder a corporation, 
partnership, company as defined in part 574 of this chapter, or other 
person. * * *
* * * * *
    (4) Shares held by others. Shares held by an administrator, 
executor, guardian, conservator or receiver may be voted in person or 
by proxy by such person. Stock standing in the name of a trustee may be 
voted by such trustee either in person or by proxy, but only in 
accordance with the terms of the trust agreement.
* * * * *
    (h) Informal action by stockholders. If the bylaws of the 
association so provide, any action required to be taken at a meeting of 
the stockholders, or any other action that may be taken at a meeting of 
the stockholders, may be taken without a meeting if consent in writing 
has been given by all the stockholders entitled to vote with respect to 
the subject matter.
    20. Section 552.6-1 is amended by:
    a. Adding a sentence at the end of paragraph (a);
    b. Revising paragraph (b);
    c. Adding a sentence at the end of paragraph (c);
    d. Adding the word ``only'' in paragraph (e) between the words 
``serve'' and ``until'' in the second sentence;
    e. Revising the heading of paragraph (f), adding the word ``only'' 
between the words ``removed'' and ``for'' and the words ``as defined in 
Sec. 563.39 of this chapter,'' after the word ``cause'' in the first 
sentence of paragraph (f)(1), and adding a sentence at the end of 
paragraph (f)(1); and
    f. Adding a sentence at the end of paragraph (k).
    The additions and revisions read as follows:

Sec. 552.6-1  Board of directors.

    (a) * * * Directors need not be stockholders unless the bylaws so 
require.
    (b) Number and term. The bylaws shall set forth a specific number 
of directors, not a range. The number of directors shall be not fewer 
than five nor more than fifteen, unless a higher or lower number has 
been authorized by the Director of the Office or his or her delegate. 
The directors shall be divided

[[Page 32727]]

into three classes as nearly equal in number as possible. The members 
of each class shall be elected for a term of three years and until 
their successors are elected and qualified. One class shall be elected 
by ballot annually, except in the case of a converting or newly 
chartered association where all directors shall be elected at the first 
election of directors for terms which shall be staggered in length from 
one to three years. Notwithstanding anything in this section, however, 
a Federal stock association that is wholly owned shall not be subject 
to the staggered board requirement.
    (c) * * * The board of directors shall determine the place, 
frequency, time and procedure for notice of such meetings.
* * * * *
    (f) Removal or resignation of directors. (1) * * * Associations may 
provide for procedures regarding resignations in the bylaws.
* * * * *
    (k) * * * [Bylaws on age limitations must comply with all Federal 
laws, such as the Age Discrimination in Employment Act and the Employee 
Retirement Income Security Act.]
    21. Section 552.6-2 is amended by:
    a. Adding in paragraph (a) the phrase ``or comptroller'' after the 
word ``treasurer'' in the first and fifth sentences, and by removing 
the third and fourth sentences; and
    b. Adding a sentence at the end of paragraph (c).
    The additions read as follows:

Sec. 552.6-2   Officers.

* * * * *
    (c) * * * [Bylaws on age limitations must comply with all Federal 
laws, such as the Age Discrimination in Employment Act and the Employee 
Retirement Income Security Act.]

Sec. 552.8   [Removed]

    22. Section 552.8 is removed.

Sec. 552.11   [Amended]

    23. Section 552.11 is amended by adding the phrase 
``nonconfidential portions of'' in paragraph (b) introductory text 
between the words ``times,'' and ``its'' in the first sentence.

ALTERNATIVE ONE

    24. The Appendix to part 552 is revised to read as follows:

Appendix to Part 552--Model Bylaws for Stock Associations

    The Federal stock bylaws may be found in the Application 
Processing Regulatory Handbook, available from any Regional Office 
of OTS. (See Sec. 516.1(b) of this chapter.) Each Federal stock 
association's bylaws, including any amendments thereto, constitutes 
conditions imposed in writing by the agency in connection with the 
granting of an application and a written agreement entered into with 
the agency within the meaning of 12 U.S.C. 1818(b).

ALTERNATIVE TWO

    24a. The Appendix to Part 552 is amended:
    a. In Article II, Section 1, by removing the phrase ``place in the 
State in which the principal place of business of the association is 
located'', and by adding in lieu thereof the phrase ``convenient 
place'';
    b. In Article II, Section 2, by removing the number ``120'' 
wherever it appears, and by adding in lieu thereof the number ``150'';
    c. In Article II, Section 4, by adding at the end of the first 
sentence the phrase ``or the board of directors adopts another 
procedure for the conduct of meetings'';
    d. In Article II, Section 5, by removing the number ``10'' in the 
first sentence, and by adding in lieu thereof the number ``20'';
    e. In Article II, Section 7, by removing the word ``shareholders'' 
in the first sentence and adding the phrase ``stockholders of record'' 
in lieu thereof, adding at the end of the first sentence the phrase ``, 
including the names of beneficial owners furnished pursuant to the 
rules of the Securities and Exchange Commission'', removing in the 
second and third sentences the words ``any shareholder'' and adding in 
lieu thereof the phrase ``any stockholders of record or the 
stockholder's agent'', and removing in the fourth sentence the phrase 
``shareholders entitled'' and adding in lieu thereof the phrase 
``stockholders of record entitled'';
    f. In Article II, Section 8, by adding a sentence at the end;
    g. In Article II, Section 9, by adding a sentence after the first 
sentence;
    h. In Article III, Section 3, by adding two sentences at the end;
    i. In Article III, Section 11, by adding in the second sentence, 
the word ``only'' between the words ``serve'' and ``until'';
    j. In Article III, Section 14, by adding in the first sentence, the 
word ``only'' between the words ``removed'' and ``for'' and the words 
``as defined in the regulations in Sec. 563.39 of this chapter'' after 
the word ``cause'';
    k. In Article V, Section 1, by adding, in first, and fifth 
sentences, the phrase ``or comptroller'' after the word ``treasurer'' 
each place it appears, and removing the third and fourth sentences; and
    l. In Article XI, by adding a sentence at the end.
    The additions read as follows:

Appendix to Part 552--Model Bylaws for Stock Associations

* * * * *

Article II--Shareholders

* * * * *
    Section 8. Quorum. * * * If a quorum is present, the affirmative 
vote of the majority of the shares represented at the meeting and 
entitled to vote on the subject matter shall be the act of the 
stockholders, unless the vote of a greater number of stockholders 
voting together or voting by classes is required by law or the 
charter.
    Section 9. Proxies. * * * Proxies may be given telephonically or 
electronically as long as the holder uses a procedure for verifying 
the identity of the stockholder. * * *
* * * * *

Article III--Board of Directors

* * * * *
    Section 3. Regular Meetings. * * * Directors may participate in 
a meeting by means of a conference telephone or similar 
communications device through which all persons participating can 
hear each other at the same time. Participation by such means shall 
constitute presence in person for all purposes.
* * * * *

Article XI--Amendments

    * * * When an association fails to meet its quorum requirement, 
solely due to vacancies on the board, then the affirmative vote of a 
majority of the sitting board will be required to amend the bylaws.

PART 556--STATEMENTS OF POLICY

    25. The authority citation for part 556 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 559; 12 U.S.C. 1464, 1701j-3; 15 U.S.C. 
1693-1693r.

Secs. 556.1, 556.17   [Removed]

    26. Sections 556.1 and 556.17 are removed.

PART 563--OPERATIONS

    27. The authority citation for part 563 continues to read as 
follows:

    Authority: 12 U.S.C. 375b, 1462, 1462a, 1463, 1464, 1467a, 1468, 
1817, 1828, 3806; 42 U.S.C. 4106.

    28. Section 563.74 is amended by revising paragraph (d) to read as 
follows:

Sec. 563.74   Mutual capital certificates.

* * * * *
    (d) Charter amendment. No application for approval of the issuance 
of mutual capital certificates pursuant to this section may be filed 
unless the mutual association amends its charter to authorize issuance, 
or as may otherwise be required by applicable law.
* * * * *

[[Page 32728]]

PART 575--MUTUAL SAVINGS AND LOAN HOLDING COMPANIES

    29. The authority citation for part 575 continues to read as 
follows:

    Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 1828, 2901.

ALTERNATIVE ONE

    30. Section 575.9(a)(1) is revised to read as follows:

Sec. 575.9   Charters and bylaws for mutual holding companies and their 
savings association subsidiaries.

    (a) * * * (1) Charter. The Federal mutual holding company charter 
may be found in the Application Processing Regulatory Handbook, 
available from any Regional Office of OTS. (See Sec. 516.1(b) of this 
chapter). Each Federal mutual holding company's charter, including any 
amendments thereto, constitutes conditions imposed in writing by the 
agency in connection with the granting of an application and a written 
agreement entered into with the agency within the meaning of 12 U.S.C. 
1818(b).
* * * * *

ALTERNATIVE TWO

    30a. Section 575.9 is amended by:
    a. Removing, in Section 1 of the Charter in paragraph (a)(1), the 
phrase ``hereby chartered'';
    b. Removing, in Section 5 of the Charter in paragraph (a)(1), the 
sixth, seventh, and eighth sentences in the last paragraph;
    c. Removing, in Section 6 of the Charter in paragraph (a)(1), the 
word ``OTS'' in the second sentence, and by adding in lieu thereof the 
phrase ``the Director of the Office or his or her delegate'', and by 
removing the third, fourth and fifth sentences;
    d. Revising Section 8 of the Charter in paragraph (a)(1);
    e. Removing in paragraph (a)(2) the phrase ``references to 
`association' in the text of the mutual capital certificate charter 
provision in Sec. 544.2(b)(4) shall be replaced with references to the 
`Mutual Company','' and
    f. Removing the number ``545.131'' in paragraph (a)(5), and by 
adding in lieu thereof the number ``544.8''.
    The revisions read as follows:

Sec. 575.9  Charters and bylaws for mutual holding companies and their 
savings association subsidiaries.

    (a) Charters and bylaws for mutual holding companies--(1) Charters. 
* * *

CHARTER

* * * * *
    Section 8. Amendment. Adoption of any preapproved charter 
amendment shall be effective after such preapproved amendment has 
been approved by the members at a legal meeting. Any other 
amendment, addition, change, or repeal of this charter must be 
approved by the Office prior to approval by the members at a legal 
meeting. Any amendment, addition, alteration, change, or repeal so 
acted upon and approved shall be effective upon filing with the 
Office in accordance with regulatory procedures.

Attest:----------------------------------------------------------------
Secretary of the Association

By:--------------------------------------------------------------------
President or Chief Executive Officer of the Association

Attest:----------------------------------------------------------------
Secretary of the Office of Thrift Supervision

By:--------------------------------------------------------------------
Director of the Office of Thrift Supervision

Effective Date:--------------------------------------------------------
* * * * *
    Dated: May 31, 1996.

    By the Office of Thrift Supervision.
Jonathan L. Fiechter,
Acting Director.
[FR Doc. 96-14441 Filed 6-24-96; 8:45 am]
BILLING CODE 6720-01-P

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