[Federal Register Volume 63, Number 226 (Tuesday, November 24, 1998)]
[Rules and Regulations]
[Pages 64869-64874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31397]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[AD-FRL-6192-9]
RIN 2060-AG30
Standards of Performance for New Stationary Sources: Residential
Wood Heaters
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; amendments.
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SUMMARY: On September 11, 1996, EPA proposed amendments to the
Standards of Performance for New Residential Wood Heaters, 40 CFR part
60, subpart AAA, as part of a larger proposal to reduce recordkeeping
and reporting burden of numerous EPA regulations. The proposed wood
heater amendments were intended to make needed corrections and
clarifications to the wood heater rule. Some of the proposed
clarifications are being promulgated under the final action for the
recordkeeping and reporting burden reduction. This action announces the
EPA's final decisions on one aspect of those proposed amendments.
The wood heater rule is being revised to expand the conditions
under which EPA can initiate a ``recall'' of wood heaters from
distributors and retailers by prohibiting sales other than sales back
to the manufacturer. The rule as originally promulgated specifically
authorized EPA to initiate such a ``recall'' due to the knowing
submission of false or inaccurate information or other fraudulent acts.
This action amends the rule to allow EPA to initiate a recall, not only
in cases of fraud, but also if it is found that the original
certification test was invalid, irrespective of fraud. This action is
being taken to ensure that further sales to consumers of wood heaters
that should not have been originally certified are prohibited. This
action does not affect wood heaters already sold to consumers.
EFFECTIVE DATE: November 24, 1998. See the Supplementary Information
section concerning judicial review.
ADDRESSES: Docket. Docket No. A-95-50, containing information
considered by the EPA in development of the promulgated amendment, is
available for public inspection between 8 a.m. and 5:30 p.m., Monday
through Friday at the following address in room M-1500, Waterside Mall
(ground floor): U. S. Environmental Protection Agency, Air and
Radiation Docket and Information Center (MC-6102), 401 M Street SW.,
Washington, DC 20460; telephone: (202) 260-7549. A reasonable fee may
be charged for copying docket materials.
FOR FURTHER INFORMATION CONTACT: Mr. Robert C. Marshall; Wood Heater
Program; Manufacturing, Energy and Transportation Division (2223A);
U.S. EPA, 401 M Street, S.W., Washington, D.C. 20460; telephone number
(202) 564-7021.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
The regulated category and entities potentially affected by this
action include:
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Category Examples of regulated entities
------------------------------------------------------------------------
Industry.......................... Residential wood heater
manufacturers and commerical
dealers
------------------------------------------------------------------------
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 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 business is regulated by this action, you should carefully examine
the applicability criteria in Sec. 60.530 of title 40 of the Code of
Federal Regulations. If you have questions regarding the applicability
of this action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
II. Background
A. Federal Register Proposal
On September 11, 1996 (61 FR 47840), EPA proposed amendments to the
Standards of Performance for New Residential Wood Heaters, 40 CFR part
60, subpart AAA (variously referred to as the ``wood heater'' or
``woodstove'' rule or NSPS), as part of a larger proposal to reduce
recordkeeping and reporting burden of numerous EPA regulations. Some of
the proposed provisions pertaining to residential wood heaters dealt
with clarifications to definitions and labeling of wood heaters. These
changes will be addresed in the recordkeeping and reporting burden
reduction final action.
Today's final rule addresses another proposed change to the wood
heater rule, deletion of the ``Prohibitions'' section, Sec. 60.538.
This proposed change prompted significant comments that the Agency felt
should be dealt with separately from the clarifications to the
definitions and labeling provisions.
B. Public Participation
One comment letter, from the Hearth Products Association, was
received on the wood heaters proposal. The EPA's responses to the
comments received on the proposed deletion of the ``Prohibitions''
section can be found in this preamble under IV, ``Summary of Comments
and Responses on the Proposal.''
III. Summary of Rule Amendments
The final amendments revise the ``recall'' provision of
Sec. 60.538(e). The original provision prohibited the sale of wood
heaters to anyone except back to the manufacturer (hence the use of the
word ``recall'') in the situation where the certificate was revoked for
the knowing submission of false or inaccurate information or for other
fraudulent acts. The amended rule prohibits sales except back to the
manufacturer in the case where the certificate was revoked because the
original certification test was determined to be invalid, as well as in
the case of fraud, as previously described. In each case, the sales
prohibition takes effect on the date that the ``commercial owner''
(e.g., the distributor or dealer) receives notice of the revocation.
IV. Summary of Comments and Responses on the Proposal
A. Was There Sufficient Notice and Comment Regarding the Proposed
Changes?
Comment: The proposal did not provide sufficient notice and time
for comment. The woodstove amendments were proposed within a package
published in the Federal Register to ``reduce unnecessary recordkeeping
and reporting burdens,'' entitled ``Recordkeeping and Reporting Burden
Reduction''. The public was not alerted
[[Page 64870]]
to the fact that this rule contained substantive revisions to the
woodstoves NSPS. The industry only became aware of these proposed
revisions near the end of the comment period.
Response: The amendments were proposed September 11, 1996 in the
Federal Register (61 FR 47840). There are no additional notification
requirements under the Administrative Procedures Act. Table 1, which
appeared on the second page of the preamble, listed the NSPS for New
Residential Wood Heaters as one of the rules to be amended. The
deletion of Sec. 60.538 was discussed in the preamble and was included
in the portion of the notice that set forth the proposed changes to the
regulations. To ensure that the industry was aware of the proposed
amendments, EPA contacted the Hearth Products Association (HPA)
(formerly known as the Wood Heating Alliance, a major trade group for
wood heater manufacturers which represented many manufacturers during
the regulatory negotiation of the original rule) before the end of the
comment period and gave the HPA additional time to comment on the
proposal. EPA also contacted representatives of environmental
organizations that had previously expressed interest in the wood heater
NSPS rule to ensure that they were aware of the proposed changes.
Sufficient opportunity to comment was extended to all interested
parties. In addition, several meetings were held with HPA
representatives to discuss and clarify their comments prior to EPA
developing the final rule.
B. Can EPA Unilaterally Revise a Rule Developed Through Formal
Regulatory Negotiation?
Comment: A rule developed through a consensus process by way of
regulatory negotiation should not be unilaterally changed by EPA. Not
consulting with the original stakeholders is an indefensible breach of
the negotiated understanding.
Response: Developing a rule through a formal negotiation process
does not forever tie EPA's hands when changes to the rule are
warranted. The Clean Air Act (CAA) requires EPA to review and, if
appropriate, revise NSPS every 8 years (CAA section 111(b)(1)(B)).
Indeed, the Agency has chosen not to revise the woodstoves emissions
limits since the rule was promulgated in 1988. The Agency still
believes that the current limits remain appropriate and anticipates no
revisions to these limits in the foreseeable future.
However, EPA believes it is appropriate to revise the rule when it
identifies problems that may interfere with proper enforcement and
compliance. On June 29, 1995 (60 FR 33915), EPA removed numerous
provisions from the rule that were obsolete; thus, eliminating
potentially confusing provisions for manufacturers in meeting the
requirements. Likewise, EPA believes that today's revisions are
necessary improvements that will enhance compliance and correct
deficiencies in the rule that inhibit the Agency's ability to properly
enforce the rule. From time to time, necessary rule changes become
apparent and the EPA has the authority to make such changes through the
normal rulemaking process, regardless of how the rule was originally
developed. By the same token, EPA recognizes that a rule developed
through a regulatory negotiation balances the diverse needs of the
negotiators, and consultation with all the various stakeholders
affected by the changes is important. As mentioned previously, EPA
notified the commenter, as well as various environmental groups, to
seek their input on the proposed changes. In addition, EPA has met
several times with the commenter.
C. Is a Regulatory Flexibility Analysis Required in Accordance With the
Small Business Regulatory Enforcement Fairness Act (SBREFA)?
Comment: Because of the impact on small businesses (manufacturers,
wholesalers, and retailers), EPA must assess the impacts in accordance
with the SBREFA requirements.
Response: Many, if not most, wood heater manufacturers,
distributors, and dealers are considered to be ``small entities'' under
SBREFA. EPA has determined that the amendment will not have a
significant economic impact on a substantial number of small entities
(wood heater manufacturers, distributors, and dealers). Accordingly, it
is not necessary to prepare a regulatory flexibility analysis in
connection with these amendments.
In analyzing the costs and potential impacts of the amendments on
small entities, EPA presumes that the small entities comply with all
existing statutory or regulatory requirements that are applicable to
them. Furthermore, if a rule is being amended, EPA assesses only the
incremental cost of the amendment. The wood heaters NSPS requires
manufacturers to submit ``documentation pertaining to a valid
certification test'' as part of the application for a certificate of
compliance (40 CFR 60.533(b)(4)). Thus, assuming that woodstove
manufacturers are complying with this requirement, there is no cost as
a result of the amendment, which establishes enforcement consequences
of a subsequently discovered invalid certification test. Therefore,
there is no significant adverse economic impact on any small entity.
Even if one were to regard the consequences of the discovery of an
invalid certification test as an impact resulting from today's
amendments, there would still be no significant adverse economic impact
on a substantial number of small entities. ``Recalls'' of model lines
have been rare in the 10 years since the woodstoves rule was first
issued. Over the past 10 years, EPA has certified over 460 model lines.
Currently, there are over 200 certified model lines produced by 67
manufacturers. In 10 years, only 2 model lines (each from a different
company) have ever been recalled from commercial owners (e.g., dealers
or distributors) by the manufacturers.
As originally promulgated, Sec. 60.538(e) prohibits the sale (other
than to the manufacturer) by commercial owners (e.g., distributors or
dealers) of woodstoves for which EPA has revoked the certificate of
compliance due to fraud, once the Agency has given notice of the
revocation. The proposed deletion of Sec. 60.538(e) would have meant
that commercial owners selling model lines for which the certification
had been revoked could not have continued to sell with the assurance
that their inventory was in compliance with the standard, regardless of
the reason for the revocation. In this final rule, rather than deleting
Sec. 60.538(e), EPA is choosing instead to amend the existing language
to focus more directly on sale of model lines for which the original
certification test is discovered to be invalid. The Agency believes
that this will provide greater clarity than the proposed deletion.
Under the amendments, the sales prohibition in Sec. 60.538(e) is
being expanded to include model lines for which the certificate is
revoked based on a finding that the original certification test was
invalid, regardless of fraud. The Agency believes that if the original
certification test was invalid, continued sale of the model lines would
be inconsistent with the intent of the standard. Based on our previous
experience, it is expected that such sales prohibitions at the
commercial owner level will remain relatively rare, if any at all
occur. The only suspension or revocations that have occurred to date
are those associated with fraudulent acts. There have been no
certification suspensions or revocations either as a result of random
compliance audits or selective enforcement audits conducted
[[Page 64871]]
under Sec. 60.533(p)(1), or as the result of invalid original
certification tests that have not involved fraud.
Potential economic impacts of any recall that might occur due to
today's amendment were considered for both manufacturers and commercial
owners. No significant impacts were identified. In assessing the
potential economic impact of a recall, EPA considered the impact on the
manufacturers of the 2 model lines recalled due to fraud. One of the
manufacturers had revenues in excess of $15 million per year. Only 34
wood heaters were recalled, representing far less than 1 percent of
sales. The other manufacturer had sales significantly more than the
first manufacturer, and the recall involved 107 wood heaters, still
less than 1 percent of sales. The EPA does not consider an economic
impact of less than 1 percent of sales as significant, and
consequently, EPA does not expect a recall to have a significant
adverse economic impact on such manufacturers. In addition, most
manufacturers produce more than one model line, and most commercial
owners carry no more inventory than a heating season's worth (about 3
months) of woodstoves, further minimizing the impact on the
manufacturer of a recall of a single model line. Furthermore, many
manufacturers sell other products besides woodstoves; EPA's Regulatory
Flexibility Analysis in 1986 (Docket No. A-84-49, item No. II-A-14) for
the original regulation indicated that less than half of the total
revenues for most manufacturers were from woodstoves sales.
The impact on commercial owners, too, is also expected to be
minimal, affecting only about 3 months inventory of a single model
line. Most commercial owners carry more than one model line and sell
other products. Also, many manufacturers have ``swap out'' arrangements
with their customers to substitute the recalled stoves with certified
stoves.
Even if EPA assumed the impact on small entities was economically
significant (not borne out by past experience), a substantial number of
small businesses would not be affected, if any. As stated above, only 2
out of 67 manufacturers have been affected in the last 10 years by the
original recall provision. The Agency does not consider 2 out of 67
manufacturers to be a substantial number. There is no reason to expect
a sudden increase in the number of invalid certification tests
discovered subsequent to certification that do not involve fraud, where
none have been discovered before. Consequently, the EPA can determine
that there will be no significant adverse economic impact on a
substantial number of small entities as a result of this amendment.
Moreover, in exercising its recall authority, EPA will consider the
potential economic harm resulting from a recall, as well as the
potential environmental problem the recall would address. The Agency
would consider, for example, the number of wood heaters in the channels
of trade, and the extent to which the model line in question exceeds
applicable emission limits.
D. What Changes Are Being Made to the Rule?
Comment: The commenter objected to the deletion of Sec. 60.538
(``Prohibitions'') from the rule for several reasons. The commenter's
primary concern was that manufacturers, distributors, and retailers
would be affected by ``recalls'' where fraud was not the reason for
revocation of the compliance certification. Another concern was that
the deletion of paragraphs (f), (g), (h), and (i) of Sec. 60.538 would
expand the liability exposure to homeowners owning a stove that did not
meet emissions limits; the existing rule's prohibitions limited
homeowners' liability to improper installation or operation, catalyst
deactivation or removal, physical alteration of the woodstove, and
altering or removing the permanent label.
The commenter did not agree with the reasons provided by the Agency
for deleting the ``Prohibitions'' section. In response to the statement
in the proposal preamble that the prohibitions section would not allow
a claim of violation of the removable label requirement unless the wood
heater in question also had a permanent label, the commenter stated
that if the wood heater had no permanent label, EPA could bring a claim
of violation of the requirement to have a permanent label. In response
to the statement that the prohibitions section does not make complying
with the quality assurance provisions unlawful, the commenter stated
that shipping stoves while out of compliance with the quality assurance
provisions runs afoul of the labeling requirements and is grounds for
certificate revocation. Finally, the commenter disagreed that
eliminating other paragraphs would clarify and simplify the rule, and
that these other paragraphs were duplicative or otherwise unnecessary.
Response: The Agency agrees with the commenter on some of these
points and accordingly has decided to retain most of Sec. 60.538 in its
original form. Although the Agency disagrees that homeowners would be
exposed to greater liability if paragraphs (f), (g), (h), and (i) of
Sec. 60.538 were removed, retaining these paragraphs is helpful in
clarifying homeowners' compliance obligations.
The Agency also agrees with the commenter that every wood heater
that has a removable label must also have a permanent label
(Sec. 60.536(a), (i), (j)). Sale of wood heaters not bearing a
permanent label is prohibited in Sec. 60.538 (b) and (c). Accordingly,
if a wood heater has neither a removable label nor a permanent label, a
claim of violation can be based on sale of the heater without a
permanent label. Therefore, the dependence of Sec. 60.538(d) on the
existence of a permanent label does not preclude enforcement actions
where stoves are sold with neither a temporary nor a permanent label.
Accordingly, the provisions of Sec. 60.538 regarding labeling are being
retained.
The Agency agrees that the lack of a specific provision regarding
the quality assurance requirements in the ``Prohibitions'' section does
not affect the enforceability of the quality assurance procedures.
Section 60.533(o) clearly lays out the requirements and procedures for
conducting a quality assurance program. These requirements and
procedures are enforceable and failure to comply with them would be a
violation. Failure to meet the tolerances or emission limits during the
quality assurance program would not be a violation of the rule, but
failure to take remedial measures would be (Sec. 60.533(o)(4)). No
amendment to the rule is necessary to enforce these provisions.
Furthermore, as the commenter points out, compliance with the quality
assurance requirements is required by other aspects of the regulation.
For example, a labeling statement under Sec. 60.536 (b) or (c)
constitutes a representation by the manufacturer that the manufacturer
was, at the time the label was affixed, conducting a conforming quality
assurance program. In addition, EPA may use a manufacturer's failure to
conduct a conforming quality assurance program as a ground to revoke
certification under Sec. 60.533(l). Furthermore, in applying to EPA for
a certificate of compliance, a manufacturer must include a statement
that it will conduct a conforming quality assurance program for the
model line in question (Sec. 60.533(b)(6)). Because the lack of a
specific provision regarding the quality assurance requirements in the
``Prohibitions'' section does not affect the enforceability of the
quality
[[Page 64872]]
assurance requirements, the Agency has decided not to alter the
``Prohibitions'' section in this regard.
Although some simplification and removal of duplication could be
achieved in Sec. 60.538, EPA has decided not to amend the provisions of
this section, except as discussed below with regard to Sec. 60.538(e),
in order to avoid any confusion that might arise from their deletion.
Section 60.538(e), as originally promulgated, provides that the
Agency may prohibit ``commercial owners'' (e.g., dealers and
distributors) from selling, other than to the manufacturer, wood
heaters in a model line whose certificate has been revoked ``* * * for
the knowing submission of false or inaccurate information or other
fraudulent acts.'' The prohibition takes effect on the date that the
commercial owner receives notice of the revocation. By prohibiting
sales of such appliances other than to the manufacturer, the provision
in effect authorizes EPA to require a recall of wood heaters that are
still in the distribution chain. It has no impact on wood heaters that
have already been sold to consumers.
During 1996, a serious incident involving fraudulent conduct by an
accredited testing laboratory had to be addressed by the Agency. The
laboratory in question was found to have falsified 11 certification
test reports that were submitted to the Agency, upon which certificates
were granted. The laboratory director was prosecuted criminally, plead
guilty, was sentenced to a lengthy period of probation, and was ordered
to perform substantial community service. The manufacturers in question
cooperated with the Agency in attempting to rectify this situation,
ultimately conducting a number of new certification tests and, in the
case of 2 model lines, voluntarily agreeing to recall appliances in the
channels of trade.
The Agency conducted a review of its response to this situation,
and decided that it needed to expand its recall authority, so that it
was clear that it covered situations where a certification had been
issued based on an invalid certification test, irrespective of the
presence of fraud. The Hearth Products Association (HPA) has
acknowledged in meetings with the Agency that the hearth industry
(which includes wood heater manufacturers) has an important interest in
assuring the integrity of its products, and that clarifying EPA's
recall authority could play an important role in this regard.
The rule has always required a finding that a valid certification
test has shown that a wood heater representative of the model line
complies with the emission limits before a certification can be issued
(Sec. 60.533(e)(1)(i)). Section 60.533(f)(4) of the rule defines a
valid certification test as one conducted according to the prescribed
test methods and procedures, among other requirements. Under today's
promulgated amendments, the Agency is establishing its authority to
prohibit sales to consumers if a certification was revoked based on a
finding that the original certification test was not valid.
The basis for such a finding would be problems or irregularities
with the certification test or its documentation. Other information
could be used to supplement the finding. The finding could be based on
incorrect calculations or typographical errors, for example, that if
corrected would not have enabled a model line to be certified. Other
examples include anomalies with the methods and procedures, such as
incorrect emission sample gathering or improper wood load. However, the
Agency would not consider minor infractions of the original
certification test that would have little or no influence on emissions
as the basis for a finding that the certification test was not valid.
Historically, the Agency has used its judgment on insignificant
problems or resolved them through discussions with the accredited
laboratory or the manufacturer, recognizing the expense of retesting
and the fact that many manufacturers are small businesses with limited
resources.
V. Judicial Review
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of the actions taken by this final amendment is available only on the
filing of a petition for review in the U.S. Court of Appeals for the
District of Columbia Circuit within 60 days of today's publication of
this action. Under section 307(b)(2) of the CAA, the requirements that
are subject to today's notice may not be challenged later in civil or
criminal proceedings brought by EPA to enforce these requirements.
VI. Administrative Requirements
A. Docket
The docket is an organized and complete file of information
considered by the EPA in the development of a rulemaking. The docket is
a dynamic file because information is added throughout the rulemaking
development process. The docketing system is intended to allow members
of the public and industries involved to readily identify and locate
documents so that they can effectively participate in the rulemaking
process. Along with the proposed and promulgated standards and their
preambles, the contents of the docket (except for interagency review
materials) will serve as the record in case of judicial review. [See
section 307(d)(7)(A) of the Act.] The official rulemaking record,
including all public comments received on the proposed amendments, is
located at the address in the ADDRESSES section at the beginning of
this document. The docket number for this rulemaking is A-95-50.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Executive 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 obligation of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined by OMB and EPA that today's action is not a
``significant regulatory action'' within the meaning of the Executive
Order.
C. Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments,
[[Page 64873]]
and a statement supporting the need to issue the regulation. In
addition, Executive Order 12875 requires EPA to develop an effective
process permitting elected officials and other representatives of
State, local and tribal governments ``to provide meaningful and timely
input in the development of regulatory proposals containing significant
unfunded mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandate 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, the
EPA generally must prepare a written statement, including a cost-
benefit analysis, for the 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 the 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 the 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 the 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 the EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Finally, section 204 of the UMRA requires the Agency to develop a
process to allow elected state, local, and tribal government officials
to provide input in the development of any proposal containing a
significant Federal intergovernmental mandate.
The EPA has determined that these amendments do not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate or the
private sector in any one year. Thus, today's amendments are not
subject to the requirements of sections 202, 204, and 205 of the UMRA.
The EPA has determined that these amendments contain no regulatory
requirements that might significantly or uniquely affect small
governments. No small government entities have been identified that are
affected by these amendments. Therefore, today's amendments are not
subject to the requirements of section 203 of the UMRA.
E. Regulatory Flexibility
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. EPA has also
determined that this rule will not have a significant economic impact
on a substantial number of small entities. As explained previously in
the response to comments section, the Agency looks only at the
incremental impact of the amendments and assumes that regulated
entities are in compliance with previously promulgated requirements.
Assuming that manufacturers are in compliance with the requirement to
submit ``documentation pertaining to a valid certification test'' as
part of their application for a certificate of compliance (40 CFR
60.533(b)(4)), there will be no impact on any small manufacturer. Even
if one were to regard the consequences of the discovery of an invalid
certification test as an impact resulting from today's amendments,
there would still be no significant adverse economic impact on a
substantial number of small entities. Only 2 out of 67 manufacturers
have had to recall model lines due to inappropriate certification in
the past 10 years. EPA has not identified any inappropriate
certifications that have not involved fraud and hence does not expect
these amendments to lead to an increase in the number of recalls. In
addition, the economic impact of the recalls has been minimal,
affecting less than one percent of sales for each of the manufacturers
that has recalled a model line.
F. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
G. Paperwork Reduction Act
Today's action does not impose any new information collection
burden. The Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in these
regulations under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned OMB control number 2060-0161 (ICR no. 1176.05).
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. No. 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary
[[Page 64874]]
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
Today's final amendment does not involve any technical standards;
therefore, EPA did not consider the use of any voluntary consensus
standards.
I. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks,'' (62 FR 19885, April 23,
1997) applies to any rule that (1) is ``economically significant'' as
defined under Executive Order 12866, and (2) EPA determines addresses
an environmental health or safety risk that has a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This final rule is not subject to Executive Order 13045 because it
does not involve decisions on environmental health risks or safety
risks that may disproportionately affect children.
J. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's amendment does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
List of Subjects in 40 CFR Part 60
Environmental protection, Air pollution control, Heaters.
Dated: November 18, 1998.
Carol M. Browner,
Administrator.
For reasons set out in the preamble, title 40, chapter I, of the
Code of Federal Regulations is amended as follows:
PART 60--[AMENDED]
1. The authority citation for part 60 continues to read as follows:
Authority: 42 U.S.C. 7401, 7411, 7413, 7414, 7416, 7429, 7601
and 7602.
2. Amend Sec. 60.533 to revise paragraph (l)(1)(ii) to read as
follows:
Sec. 60.533 Compliance and certification.
* * * * *
(l) * * *
(1) * * *
(ii) A finding that the certification test was not valid. The
finding must be based on problems or irregularities with the
certification test or its documentation, but may be supplemented by
other information.
* * * * *
3. Amend Sec. 60.538 to revise paragraph (e) to read as follows:
Sec. 60.538 Prohibitions.
* * * * *
(e)(1) In any case in which the Administrator revokes a certificate
of compliance either for the knowing submission of false or inaccurate
information or other fraudulent acts, or based on a finding under
Sec. 60.533(l)(1)(ii) that the certification test was not valid, he may
give notice of that revocation and the grounds for it to all commercial
owners.
(2) From and after the date of receipt of the notice given under
paragraph (e)(1) of this section, no commercial owner may sell any wood
heater covered by the revoked certificate (other than to the
manufacturer) unless
(i) The wood heater has been tested as required by Sec. 60.533(n)
and labeled as required by Sec. 60.536(g) or
(ii) The model line has been recertified in accordance with this
subpart.
* * * * *
[FR Doc. 98-31397 Filed 11-23-98; 8:45 am]
BILLING CODE 6560-50-P
