[Federal Register: September 6, 2006 (Volume 71, Number 172)]
[Rules and Regulations]
[Page 52659-52664]
[DOCID:fr06se06-31]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-TX-0033; FRL-8216-6]

Approval and Promulgation of State Implementation Plans; Texas;
Highly Reactive Volatile Organic Compound Emissions Cap and Trade
Program for the Houston/Galveston/Brazoria Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to the Texas State Implementation
Plan concerning the Highly Reactive Volatile Organic Compound Emissions
Cap and Trade Program for the Houston/Galveston/Brazoria ozone
nonattainment area.

DATES: This rule is effective on October 6, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2005-TX-0033. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,

some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at the Air Permitting

Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a 15-cent per page fee for making photocopies of
documents. On the day of the visit, please check in at the EPA Region 6
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal related to this SIP revision, and which is part
of the EPA docket, is also available for public inspection at the State
Air Agency listed below during official business hours by appointment:
    Texas Commission on Environmental Quality, Office of Air Quality,
12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Adina Wiley, Air Permitting Section
(6PD-R), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733,
telephone<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean EPA.

Outline

I. What action is EPA taking?
II. What is the background for this action?
III. What are EPA's responses to comments received on the proposed
action?
IV. What does Federal approval of a State regulation mean to me?
V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is approving the Highly Reactive Volatile Organic Compound
Emissions Cap and Trade (HECT) Economic Incentive Program (EIP),
published at Texas Administrative Code (TAC) Title 30, Chapter 101
General Air Quality Rules, Subchapter H Emissions Banking and Trading,
Division 6, sections 101.390-101.394, 101.396, 101.399-101.401, and
101.403. These revisions were adopted by the Texas Commission on
Environmental Quality (TCEQ) on December 01, 2004, and submitted to EPA
on December 17, 2004, as a revision to the State Implementation Plan
(SIP). As discussed in our proposed action at 70 FR 58144, we conclude
that the HECT program is consistent with section 110(l) of the Clean
Air Act. We proposed approval of the HECT program as an element of the
Texas SIP for the Houston/Galveston/Brazoria (HGB) ozone nonattainment
area on October 5, 2005 (70 FR 58138).

II. What is the background for this action?

    The HECT program was adopted as a state regulation on December 1,
2004. The TCEQ developed the program as part of its mid-course review
of the 1-hour ozone attainment plan for the HGB ozone nonattainment
area. The mid-course review showed that ozone reductions comparable to
those achieved by the 90 percent reduction in industrial nitrogen oxide
(NOX) emissions and the enforceable commitments for an
additional 42 tons per day of NOX reductions required in the
November 2001 (66 FR 57160) approved SIP could be achieved through a
combination of 80 percent reduction in industrial NOX
emissions and additional targeted control of certain highly-reactive
volatile organic compounds (HRVOCs). TCEQ has chosen to revise its
attainment strategy accordingly, decreasing the emphasis on
NOX control and requiring additional reductions of HRVOCs.
    In our proposed approval of the HECT program, we stated that final
action on the HECT would not occur until we published final approval of
the attainment demonstration, which is being processed concurrently
with this approval. For a further discussion of the attainment
demonstration and EPA's responses to comments on this action, please
see our action on the attainment demonstration (EPA-R06-OAR-2005-TX-
0018), which is being published elsewhere in today's Federal Register.

III. What are EPA's responses to comments received on the proposed
action?

    EPA's responses to comments submitted by Galveston-Houston
Association for Smog Prevention (GHASP), Environmental Defense (Texas
Office), the Lone Star Chapter of the Sierra Club, and Public Citizen
(Texas Office) on November 4, 2005, are as follows. EPA has summarized
the comments below; the complete comments can be found in the
administrative record for this action (EPA-R06-OAR-2005-TX-0033). While
the comments generally discuss VOC trading programs, we are only
addressing comments specific to HRVOCs and the HECT. \1\
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    \1\ During the comment period, EPA did not receive comments
regarding environmental justice and the HECT program. However,
during the finalization process we have reevaluated our
interpretation of the definition of Environmental Justice as found
in Executive Order 12898. In our proposed approval of the HECT
program, we stated that ``environmental justice concerns arise when
a trading program could result in disproportionate impacts on
communities populated by racial minorities, people with low incomes,
or Tribes.'' On further review, we believe the following description
is more consistent with E.O. 12898: ``Environmental justice concerns
can arise when a final rule, such as a trading program, could result
in disproportionate burdens on particular communities, including
minority or low income communities.'' This revised language does not
alter our determination that the HECT program does not raise
environmental justice concerns.
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    Comment 1: The EPA uses the term ``less-reactive VOC'', but the
TCEQ term ``other VOC'' (OVOC) is preferable. Some of the other VOCs
are actually highly reactive on a molar basis, but are not emitted as
widely or in as great a quantity as the designated HRVOCs.
    Response to Comment 1: We agree that the term ``other VOC'' (OVOC)
will

more accurately define VOCs that are not categorized by TCEQ as highly-
reactive. We are using the term OVOC instead of ``less-reactive VOC''
in our final actions on the HGB attainment demonstration and associated
rulemakings.
    Comment 2: There are problems with the inventory of VOC and HRVOC
emissions in the HGB nonattainment area.
    Response to Comment 2: While EPA acknowledges that there have been
past VOC emission inventory problems from sources associated with the
petrochemical industry (see our proposed approval of the revisions to
the HGB attainment demonstration, 70 FR 58119), EPA believes that the
emission inventory developed by TCEQ for the HGB nonattainment area is
an acceptable approach to characterizing the emissions in the HGB
nonattainment area. In addition, we are incorporating by reference our
responses to comments provided in our approval of the attainment
demonstration for the HGB ozone nonattainment area (EPA-R06-OAR-2005-
TX-0018). Those responses more specifically address the commenters'
concerns regarding the development and use of the imputed inventory,
characterization of other VOCs in the inventory, and appropriate
emissions monitoring techniques for flares, fugitive emissions, and
upsets. Also, as will be discussed more fully in our responses to
Comments 3 and 4, the implementation of the HECT and the associated
monitoring and reporting requirements will serve to improve the
emissions inventory for HRVOCs in the HGB nonattainment area.
    Comment 3: The VOC and HRVOC trading programs use unreliable data,
which cannot be replicably measured. There are problems with current
methods for measurement of HRVOC and VOC emissions; therefore, the VOC
and HRVOC trading programs do not meet EPA's EIP Guidance for
quantification.
    Response to Comment 3: EPA disagrees. The proposed HECT rule, at 70
FR 58138, describes the basis for EPA's conclusion that the HECT rule
satisfies the EIP Guidance (``Improving Air Quality with Economic
Incentive Programs'' EPA-452/R-01-001, January 2001) criteria on
quantifiability, which are found in Chapter 4 (``Fundamental Principles
of All EIPs'').
    Emissions and emission reductions attributed to an EIP are
quantifiable if they can be reliably and replicably measured: the
source must be able to reliably calculate the amount of emissions and
emission reductions from the EIP strategy, and must be able to
replicate the calculations. Under the HECT program, sources address the
element of quantification by using a quantification protocol that has
been approved by TCEQ and EPA. Both agencies have important roles in
ensuring these protocols provide reliable and replicable emission
measurements. The approved quantification protocols for calculating
annual HRVOC emissions for compliance with the HECT program are
contained in sections 115.725 and 115.764 of 30 TAC Chapter 115,
Control of Air Pollution from Volatile Organic Compounds. Additionally,
VOC emission reduction credits (ERCs) that are eligible for conversion
into HECT allowances must also be quantified using the monitoring and
testing methods required in sections 115.725 and 115.764 and certified
under the Emission Credit Banking and Trading program. The monitoring
and testing protocols in sections 115.725 and 115.764 all require
continuous monitoring systems; EPA considers continuous monitoring
systems reliable and replicable (see Section 5.3(a) of the EIP
Guidance). If the monitoring and testing data required under sections
115.725 and 115.764 are unavailable, sources can calculate HRVOC
emissions for HECT compliance during this time period through
continuous monitoring data, periodic monitoring data, testing data,
data from manufacturers, and engineering calculations. This measurement
hierarchy agrees with the emission measurement protocol hierarchy that
EPA recommends in the EIP Guidance (see Section 5.2(d)).
    Comment 4: TCEQ and EPA lack confidence in current methods for
measuring emissions. This lack of confidence increases the risks
associated with a market-based trading program, until the TCEQ is able
to reconcile ambient monitoring with industry emission inventories. For
example, trading could exacerbate the challenge of identifying the
cause of any program failures because comparisons of ambient monitoring
trend data to emission inventory data will require consideration of the
timing and magnitude of trades.
    Response to Comment 4: EPA disagrees. We have discussed above in
response to Comments 2 and 3 our conclusion that the methods used for
measuring emissions under the HECT program are consistent with EPA
policy and guidance, and that the emissions inventory developed by TCEQ
is an acceptable approach to characterizing the emissions in the HGB
nonattainment area. Further, to the extent there are concerns related
to differences between ambient monitoring data and the HGB industrial
emissions inventory, the operation of the HECT will serve to increase
rather than decrease the level of certainty. Specifically, the use of
approved quantification methods required under the HECT will extend
monitoring to vent gas streams, flares, and cooling tower heat
exchanges systems that might not have been adequately monitored before.
Accordingly, accounting for actual emissions under the HECT--which is
required of each source subject to this program--should improve the
industrial emissions inventory.
    Comment 5: The EPA should find that it is premature for TCEQ to
allow trading of unquantifiable emissions of VOCs in the HGB
nonattainment area. If either the source or the recipient incorrectly
estimates the emissions involved in a trade, the region is at risk of a
net increase in emissions as a result of the trade. Until refineries
and chemical plants are able to routinely quantify their VOC emissions,
EPA should not allow trading of these VOC emissions.
    Response to Comment 5: EPA disagrees that VOC emissions should be
ineligible for trading in the HGB nonattainment area. EPA believes that
allowing the petrochemical industry to trade VOC emissions under the
HECT program is appropriate because the TCEQ has made changes in
regulatory requirements to require that certain sources of VOC
emissions comply with continuous emissions monitoring requirements by
the end of 2006. Additionally, as discussed in the EIP Guidance, we
have concluded that cap and trade programs can be effective ways to
reduce emissions, especially from large stationary sources. Each trade
is part of a system designed to significantly reduce emissions of the
pollutants subject to the cap. EPA also believes that allowing the
petrochemical industry to trade HRVOC emissions under the HECT program
is appropriate notwithstanding the commenter's concern about emissions
estimates, because the HECT program satisfies the EIP Guidance criteria
for quantification. In the HECT program, sources trading HECT
allowances must quantify their emissions using the approved protocols
in 30 TAC Chapter 115. The use of approved protocols ensures that
sources correctly estimate their excess allowances or the amount of
allowances needed to cover actual emissions. Additionally, TCEQ
included a five percent safety margin in setting the overall level of
annual emissions allowed under the HECT, which should produce a net
annual average HRVOC

emissions decrease in the HGB nonattainment area below the level set by
the cap.
    Comment 6: EPA should not approve the exclusion of emissions above
the short-term limit from the annual cap if a trading program is
approved.
    Response to Comment 6: EPA disagrees. We requested specific comment
on this feature of the program because, as noted by us and the
commenters, it departs from past practices with cap and trade programs.
The commenters made one specific point in this regard, which we address
in Comment 7. Our response to the more general comment follows.
    A key feature of the HGB attainment strategy is the two-part
approach to HRVOC emissions. Routine HRVOC emissions are targeted and
reduced through an annual cap-and-trade program, while the non-routine
emissions from emission events, maintenance, start-up and shutdown are
controlled through a short-term limit of 1200 lb/hour. When exceedances
of the short-term limit occur, the hourly emissions above 1200 lb/hr
are not counted toward compliance with the annual cap but are still
subject to enforcement as a violation of the short-term limit. EPA
expects that the root cause of the conditions giving rise to any
particular exceedance of the short-term limit will be identified and
corrected as expeditiously as practicable. The source is still required
to use good air pollution control practices consistent with the
applicable NSPS (40 CFR 60.11(d)) and MACT standards or other
applicable Federal or State programs.
    TCEQ concluded that separating the two control elements was an
appropriate means of protecting smaller sources subject to the HECT
from depending on market availability of allowances or facing
enforcement action if all emissions from an exceptionally large release
exhausted their HECT allowances. Additionally, this separation of the
annual cap and the short-term limit establishes a clear procedure for
handling emissions during non-routine events. We believe the annual cap
in conjunction with the short-term limit will achieve the goals of the
attainment demonstration as indicated by TCEQ's modeling analysis.
Please see our action and TSD on the attainment demonstration (EPA-R06-
OAR-2005-TX-0018) for further explanation.
    An additional advantage of separating these two control elements is
that counting all emissions toward the annual cap could result in a
loss of the incentives and cost-effectiveness associated with cap- and
trade programs. In EPA's experience with cap and trade programs, some
sources will always overcontrol emissions, which they in turn will most
likely sell to other sources that cannot achieve such reductions
without making greater expenditures. Through the functioning of the cap
and trade market, reductions will tend to be made by the sources able
to make them in the most cost-effective manner, and therefore the
program will tend to promote the achievement of the maximum amount of
emission reductions per dollar of resources expended.
    In the HGB area, however, an additional important factor is
present, in that a significant number of sources have the potential for
large emissions events or ``spikes.'' In such circumstances, if a cap
and trade program counts all emissions towards the cap, then
overcontrolling sources will tend to retain all of their reductions as
insurance against the possibility of consuming their entire annual
allowance through an unforeseeable emissions event. Therefore, eligible
reductions will not be traded as allowances, which will impair the
market function of the cap and trade program and thereby weaken its
tendency to cost effectively achieve emission reductions. The two-part
structure of the Texas program offsets this disadvantage.
    Comment 7: EPA's analysis suggests that the HECT program could lead
to results that flout the intent of an EIP. An example would be a
company that invests in efforts to dramatically reduce its routine
HRVOC emissions below its annual cap, but fails to invest in efforts to
reduce its risk of a major upset. This company could be the largest
single emitter of HRVOCs in a year while also being a major seller of
HECT allowances.
    Response to Comment 7: EPA disagrees. The proposed HECT rule, at 70
FR 58143, describes EPA's analysis and our determination that, on
balance, the HECT program is approvable. The intent of the HECT is to
reduce routine emissions of HRVOCs. The scenario presented by the
commenters actually supports the design of the HECT, in that the
routine HRVOC emissions have been controlled because the company has
been able to ``dramatically reduce'' these emissions below the
facility's annual allocation level. The emissions associated with a
major upset that are exempted from the annual cap (emissions above 1200
lb/hr) would be violations of the short-term emissions limit and
subject to enforcement. We believe that this two-part approach to
control of HRVOC emissions recognizes the uniqueness of the HGB
nonattainment area and is appropriate to demonstrate attainment.
Additional information on our analysis of the attainment demonstration
is available in the rulemaking docket for this action (EPA-R06-OAR-
2005-TX-0018).
    As noted in our proposed approval, the exemption of hourly limit
exceedances from the annual cap is not provided for in EPA's EIP
Guidance, but the scenario provided by the commenters is unlikely to
occur. Based on the final HECT allocation scheme updated March 20,
2006, the largest allocation is 441.9 tons. This allocation is
approximately equivalent to 100.9 lb/hr, assuming the facility will
operate with the allocation as an hourly average to represent routine
emissions. Therefore, the largest HECT allocation will be approximately
twelve times smaller than the 1200 lb/hr short-term limit. For every
other source under the HECT, the disparity would be even greater. Based
on this difference between the short-term limit and presumed routine
emissions levels, no source would be able to operate at the hourly
limit for an extended period of time without pushing its emissions
total close to or above the annual cap--in which case it would not be
able to sell allowances. Therefore, as discussed in our proposal, only
truly non-routine emissions will exceed the hourly limit. Such
exceedances are subject to enforcement as a violation of the 1200 lb/hr
limit. Thus, two factors militate against the existence of the
commenters' hypothetical high-emitting allowance seller: (1) The
improbability of a source operating for long above the hourly limit
without consuming a large part of its annual allocation, and (2) the
fact that each time it did exceed the hourly limit, it could be subject
to enforcement. Because we find that the result cited by the commenters
is unlikely to occur, we continue to believe that the relative
advantages and disadvantages of the structure of the HECT program
support approval.
    Also, while the structure of the HECT and the HRVOC rules
anticipates that emission events will not be completely eradicated, EPA
believes that in combination these programs provide sufficient
disincentives that sources will sufficiently reduce the frequency and
magnitude of large emission events such that emission events would not
be expected to impact peak ozone levels. The University of Texas report
``Variable Industrial VOC Emissions and Their Impact on Ozone Formation
in the Houston Galveston Area,'' April 16, 2004, estimated from
historic

information that it is probable that at least one event will occur
annually at a time and location to impact peak ozone. TCEQ determined,
and EPA concurs, that it is therefore necessary to reduce the frequency
of emission events so that emission events do not interfere with
attainment of the 1-hour NAAQS, which only allows an average of one
exceedance per year. Based on this study, we believe the hourly
emission limit will achieve this goal. Because facilities would be
expected to take action to avoid emission events exceeding the short-
term limit of 1200 lbs/hr, we anticipate that the frequency of such
events in the future will be lower than in the past and on average less
than 1 event per year impacting peak ozone should be expected. The
University of Texas study also supports our belief that even if the
scenario presented by the commenters does actually occur, it is
unlikely to impact attainment of the 1-hour ozone NAAQS.
    Comment 8: If EPA approves the exclusion of emissions above the
short-term cap from the annual cap, it should at least condition its
approval on the TCEQ adopting a requirement that a company may not be a
net seller of HECT allowances in the same year that it makes use of the
exclusion.
    Response to Comment 8: EPA disagrees. The condition described by
the commenters is not necessary to ensure that the HECT functions
properly. As described in our response to Comment 7 above, it is
unlikely that a source would be a net seller of allowances and also
exempt emissions above the hourly limit from its annual cap.
    Comment 9: If EPA approves the HECT program as adopted by the TCEQ,
EPA should commit to independently auditing the program annually during
its first several years to determine whether implementation of the rule
meets EIP Guidance.
    Response to Comment 9: EPA disagrees that an independent audit of
the HECT is necessary. As proposed by EPA (70 FR 58138), the HECT does
have a formal audit provision that provides sufficient oversight to
identify and address potential areas of concern. The audit provision is
in section 101.403(a) of the HECT rules and requires TCEQ to conduct an
audit every three years, beginning in 2007. The audit will evaluate the
impact of the program on the State's ozone attainment demonstration,
the availability and cost of allowances, compliance by the
participants, and any other elements the TCEQ Executive Director may
choose to include. The TCEQ Executive Director will recommend measures
to remedy any problems identified during the audit, including
discontinuing allowances trading. The audit data and results must be
completed and submitted to EPA and made available for public inspection
within six months from the beginning of the audit. EPA will receive the
audit reports and will have the opportunity through the SIP process to
require any necessary changes. Additionally, facilities that do not
have enough allowances to cover their actual HRVOC emissions during a
control period will have their allowances for the next control period
reduced by an amount equal to the emissions exceeding the allowances,
plus an additional ten percent of the exceedance. Also, the TCEQ
Executive Director has the authority to initiate enforcement actions if
necessary to correct violations of the HECT program.
    The HECT audit provisions described above are consistent with EPA's
expectations for evaluating the results of an economic incentive
program (EIP), as outlined in section 5.3(b) of the EIP Guidance.
Section 5.3(b) explains that an appropriate schedule for program
evaluations is at least every three years, which coincides with other
periodic reporting requirements such as those applicable to emission
inventory requirements required by the CAA. EPA believes that the
triennial HECT audit schedule and the required annual report (section
101.403(b)) that summarizes all HECT trades completed in the most
recent control period will be sufficient to ensure the HECT does not
jeopardize the HGB area's attainment strategy.
    EPA's response to Texas Industry Project (TIP) comments made on
November 4, 2005, is as follows:
    Comment: TIP supports EPA's proposed approval of the HECT program
and urges EPA to finalize its approval as soon as practicable.
    Response: EPA acknowledges the support of TIP for our approval of
the HECT program.
    EPA's response to comments made by the BCCA Appeal Group (BCCAAG)
on November 4, 2005, is as follows:
    Comment 1: BCCAAG supports EPA's proposed approval of the HECT
program and urges EPA to finalize its approval as soon as practicable.
    Comment 2: BCCAAG supports the establishment of a separate short-
term limit on HRVOC emissions, and the exclusion of short-term limit
exceedances from the HECT program.
    Response to Comment 1 and 2: EPA acknowledges the support of BCCAAG
for our approval of the HECT program and the specific feature of the
HECT that allows exceedances of the short-term limit to be exempt from
the HECT.
    We note that BCCAAG also submitted a set of comments on November 4,
2005, that were specific to our proposed action on the revisions to the
HGB attainment demonstration. On page 8 of this submittal, the
commenter references the HECT, but gives no additional information
relevant to our rulemaking on the HECT. We are addressing this separate
BCCAAG submittal in our action on the attainment demonstration (EPA-
R06-2005-TX-0018).

IV. What does Federal approval of a State regulation mean to me?

    Enforcement of the State regulation before and after it is
incorporated into the federally approved SIP is primarily a State
function. However, once the regulation is federally approved, EPA and
the public may take enforcement action against violators of these
regulations.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States,

on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132 (64 FR
43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 6, 2006. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)

List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

    Dated: August 24, 2006.
Richard E. Greene,
Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

0
2. The table in Sec.  52.2270(c) entitled ``EPA Approved Regulations in
the Texas SIP'' is amended under Chapter 101--General Air Quality
Rules, Subchapter H--Emissions Banking and Trading, by adding in
numerical order a new centered heading ``Division 6--Highly-Reactive
Volatile Organic Compound Emissions Cap and Trade Program'' followed by
new entries for sections 101.390, 101.391, 101.392, 101.393, 101.394,
101.396, 101.399, 101.400, 101.401 and 101.403.
    The additions read as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (c) * * *

                                                        EPA-Approved Regulations in the Texas SIP
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      State approval/
            State citation                     Title/subject           submittal date            EPA approval date                   Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Chapter 101--General Air Quality Rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Subchapter H--Emissions Banking and Trading
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                                  Division 6--Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Program
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Section 101.390......................  Definitions.................           12/01/04  [Insert date of FR publication]
                                                                                [Insert FR page number where
                                                                                document begins].
Section 101.391......................  Applicability...............           12/01/04  [Insert date of FR publication]
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                                                                                document begins].
Section 101.392......................  Exemptions..................           12/01/04  [Insert date of FR publication]     ............................
                                                                                [Insert FR page number where
                                                                                document begins].

Section 101.393......................  General provisions..........           12/01/04  [Insert date of FR publication]
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                                                                                document begins].
Section 101.394......................  Allocation of allowances....           12/01/04  [Insert date of FR publication]
                                                                                [Insert FR page number where
                                                                                document begins].
Section 101.396......................  Allowance deductions........           12/01/04  [Insert date of FR publication]
                                                                                [Insert FR page number where
                                                                                document begins].
Section 101.399......................  Allowance Banking and                  12/01/04  [Insert date of FR publication]
                                        Trading.                                         [Insert FR page number where
                                                                                document begins].
Section 101.400......................  Reporting...................           12/01/04  [Insert date of FR publication]
                                                                                [Insert FR page number where
                                                                                document begins].
Section 101.401......................  Level of activity                       2/01/04  [Insert date of FR publication]
                                        certification.                                   [Insert FR page number where
                                                                                document begins].
Section 101.403......................  Program audits and reports..           12/01/04  [Insert date of FR publication]
                                                                                [Insert FR page number where
                                                                                document begins].

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[FR Doc. 06-7410 Filed 9-5-06; 8:45 am]

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[Federal Register Volume 88, Number 156 (Tuesday, August 15, 2023)]
[Notices]
[Pages 55478-55480]
[FR Doc No: 2023-17429]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2007-0043]

TUV SUD America, Inc.: Application for Expansion of Recognition

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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

SUMMARY: In this notice, OSHA announces the application of TUV SUD
America, Inc., for expansion of the scope of recognition as a
Nationally Recognized Testing Laboratory (NRTL) and presents the
agency's preliminary finding to grant the application.

DATES: Submit comments, information, and documents in response to this
notice, or requests for an extension of time to make a submission, on
or before August 30, 2023.

ADDRESSES: Comments may be submitted as follows:
    Electronically: You may submit comments, including attachments,
electronically at: http://www.regulations.gov, the Federal eRulemaking
Portal. Follow the online instructions for submitting comments.
    OSHA will place comments, including personal information, in the
public docket, which will be available online. Therefore, OSHA cautions

interested parties about submitting personal information such as Social
Security numbers and birthdates.
    Instructions: All submissions must include the agency's name and
the docket number for this rulemaking (Docket No. OSHA-2007-0043). All
comments, including any personal information you provide, are placed in
the public docket without change and may be made available online at
https://www.regulations.gov. Therefore, OSHA cautions commenters about
submitting information they do not want made available to the public,
or submitting materials that contain personal information (either about
themselves or others), such as Social Security numbers and birthdates.
    Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov. Documents in the docket
(including this Federal Register notice) are listed in the http://www.regulations.gov index; however, some information (e.g., copyrighted
material) is not publicly available to read or download through the
website. All submissions, including copyrighted material, are available
for inspection through the OSHA Docket Office. Contact the OSHA Docket
Office at<PHONE_NUMBER> (TTY<PHONE_NUMBER>) for assistance in
locating docket submissions.
    Extension of comment period: Submit requests for an extension of
the comment period on or before August 30, 2023 to the Office of
Technical Programs and Coordination Activities, Directorate of
Technical Support and Emergency Management, Occupational Safety and
Health Administration, U.S. Department of Labor, 200 Constitution
Avenue NW, Room N-3653, Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office
of Communications, U.S. Department of Labor, telephone:<PHONE_NUMBER>;
email: [email protected].
    General and technical information: Contact Mr. Kevin Robinson,
Director, Office of Technical Programs and Coordination Activities,
Directorate of Technical Support and Emergency Management, Occupational
Safety and Health Administration, U.S. Department of Labor, phone:
(202) 693-2300 or email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Notice of the Application for Expansion

    OSHA is providing notice that TUV SUD America, Inc. (TUVAM), is
applying for an expansion of current recognition as a NRTL. TUVAM
requests the addition of nine test sites to its NRTL scope of
recognition.
    OSHA recognition of a NRTL signifies that the organization meets
the requirements specified in 29 CFR 1910.7. Recognition is an
acknowledgment that the organization can perform independent safety
testing and certification of the specific products covered within the
scope of recognition. Each NRTL's scope of recognition includes (1) the
type of products the NRTL may test, with each type specified by the
applicable test standard and (2) the recognized site(s) that has/have
the technical capability to perform the product-testing and product-
certification activities for test standards within the NRTL's scope.
Recognition is not a delegation or grant of government authority;
however, recognition enables employers to use products approved by the
NRTL to meet OSHA standards that require product testing and
certification.
    The agency processes applications by a NRTL for initial
recognition, as well as for an expansion or renewal of recognition,
following requirements in Appendix A to 29 CFR 1910.7. This appendix
requires that the agency publish two notices in the Federal Register in
processing an application. In the first notice, OSHA announces the
application and provides the preliminary finding. In the second notice,
the agency provides the final decision on the application. These
notices set forth the NRTL's scope of recognition or modifications of
that scope. OSHA maintains an informational web page for each NRTL,
including TUVAM, which details that NRTL's scope of recognition. These
pages are available from the OSHA website at http://www.osha.gov/dts/otpca/nrtl/index.html.
    TUVAM currently has 7 facilities (sites) recognized by OSHA for
product testing and certification, with the headquarters located at:
TUV SUD America, Inc., 401 Edgewater Place, Suite #500, Wakefield,
Massachusetts 01880. A complete list of TUVAM's scope of recognition is
available at https://www.osha.gov/nationally-recognized-testing-laboratory-program/tuvam.

II. General Background on the Application

    TUVAM submitted an application, dated January 24, 2021 (OSHA-2007-
0043-0045), requesting the conversion of ten existing Satellite
Notification Acceptance Program (SNAP) sites to recognized sites under
the NRTL Policy for Transitioning to Satellite Notification and
Acceptance Program Termination (SNAP Transition Policy) published in
the Federal Register on November 24, 2020 (85 FR 75042), as amended by
a June 22, 2022 Memorandum from James S. Frederick, Deputy Assistant
Secretary for Occupational Safety and Health, to Regional
Administrators and Executive Staff, titled ``Second Revision to the
Nationally Recognized Testing Laboratory (NRTL) Policy for
Transitioning to Satellite Notification and Acceptance Program (SNAP)
Termination.'' TUVAM amended their application on December 10, 2021
(OSHA-2007-0043-0046), to remove one site from the original request,
leaving nine sites to be considered in the expansion request.
    Table 1 below, lists the nine sites that TUVAM's application
requested for inclusion in the NRTL's expanded scope of recognition:

   Table 1--List of Test Sites To Be Included in TUVAM's NRTL Scope of
                               Recognition
------------------------------------------------------------------------
        TUVAM site name                 Address              Country
------------------------------------------------------------------------
Shenzhen......................  Building 6, 12 & 13,    China.
                                 Zhiheng Wisdomeland
                                 Business Park Nantou
                                 Checkpoint Road 2,
                                 518052, Shenzhen,
                                 Guangdong Province.
Gormley.......................  11 Gordon Collins       Canada.
                                 Drive, Gormley,
                                 Ontario, L0H 1G0.
Fareham.......................  Octagon House,          United Kingdom.
                                 Concorde Way,
                                 Segensworth North,
                                 Fareham, Hampshire,
                                 PO15 5RL, United
                                 Kingdom.
Seoul.........................  10, Gukjegumyung-ro,    Korea.
                                 Yeongdeungpo-gu,
                                 Seoul, Republic of
                                 Korea.
Tampa.........................  5610 West Sligh         United States.
                                 Avenue, Suite 100,
                                 Tampa, Florida.
Tokyo.........................  Sumitmo Fudosan, Nishi- Japan.
                                 shinjuku Bldg. No 4
                                 8F 4-33-4, Nishi-
                                 Shinjuku, Sjinjuku-
                                 ku, Tokyo, 160-0023
                                 Japan.

Taipei........................  7F, No 37, Section 2,   Taiwan.
                                 Zhongyang, South
                                 Road, Beitou
                                 District, 11270
                                 Taipei City, Taiwan.
Singapore.....................  No. 15 International    Singapore.
                                 Business Park.
                                Singapore 609937......
Guangzhou.....................  5F/8F (East),           China.
                                 Communication
                                 Building, 163 Pingyun
                                 Road, Huangpu Avenue
                                 West, Guangzhou,
                                 510656, Guangdong
                                 Province.
------------------------------------------------------------------------

    OSHA has preliminarily determined that it is appropriate to review
this application under the SNAP Transition Policy. TUVAM's application
was timely submitted under that policy, and OSHA preliminarily finds
that the SNAP sites in TUVAM's application met all other preconditions
of eligibility for conversion to recognized sites under the policy (See
SNAP Transition Policy, part III 1.a-g, 85 FR at 75047). OSHA also
preliminarily decided that it was not necessary to conduct on-site
reviews in connection with TUVAM's expansion application, based on
historical assessment records and supporting documentation submitted by
TUVAM. Moreover, OSHA staff performed assessments of several TUVAM
facilities included in the SNAP conversion application from June 2020
to November 2022, and, while assessors found some nonconformances with
the requirements of 29 CFR 1910.7, TUVAM addressed these issues
sufficiently. OSHA staff has preliminarily determined that OSHA should
grant the application and grant recognition to the nine sites requested
in the application.

III. Preliminary Finding on the Application

    TUVAM submitted an acceptable application for expansion of its
scope of recognition. OSHA's review of the application file and
pertinent documentation indicates that TUVAM can meet the requirements
prescribed by 29 CFR 1910.7 for expanding its recognition to include
the addition of the nine additional test sites for NRTL testing and
certification. This preliminary finding does not constitute an interim
or temporary approval of TUVAM's application.
    OSHA seeks public comment on this preliminary determination.

IV. Public Participation

    OSHA welcomes public comment as to whether TUVAM meets the
requirements of 29 CFR 1910.7 for expansion of recognition as a NRTL.
Comments should consist of pertinent written documents and exhibits.
    Commenters needing more time to comment must submit a request in
writing, stating the reasons for the request by the due date for
comments. OSHA will limit any extension to 10 days unless the requester
justifies a longer time period. OSHA may deny a request for an
extension if it is not adequately justified.
    To review copies of the exhibit identified in this notice, as well
as comments submitted to the docket, contact the Docket Office,
Occupational Safety and Health Administration, U.S. Department of
Labor. These materials also are generally available online at https://www.regulations.gov under Docket No. OSHA-2007-0043 (for further
information, see the ``Docket'' heading in the section of this notice
titled ADDRESSES).
    OSHA staff will review all comments to the docket submitted in a
timely manner. After addressing the issues raised by these comments,
staff will make a recommendation to the Assistant Secretary of Labor
for Occupational Safety and Health on whether to grant TUVAM's
application for expansion of the scope of recognition. The Assistant
Secretary will make the final decision on granting the application. In
making this decision, the Assistant Secretary may undertake other
proceedings prescribed in Appendix A to 29 CFR 1910.7.
    OSHA will publish a public notice of the final decision in the
Federal Register.

IV. Authority and Signature

    James S. Frederick, Deputy Assistant Secretary of Labor for
Occupational Safety and Health, 200 Constitution Avenue NW, Washington,
DC 20210, authorized the preparation of this notice. Accordingly, the
agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2),
Secretary of Labor's Order No. 8-2020 (85 FR 58393; Sept. 18, 2020),
and 29 CFR 1910.7.

    Signed at Washington, DC, on August 9, 2023.
James S. Frederick,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2023-17429 Filed 8-14-23; 8:45 am]
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