E8-5583. National Volatile Organic Compound Emission Standards for Aerosol Coatings

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to amend the National Volatile Organic Compound Emission Standards for Aerosol Coatings final rule, which is a rule that establishes national reactivity-based emission standards for the aerosol coatings category (aerosol spray paints) under the Clean Air Act, published elsewhere in this Federal Register. This direct final action clarifies and amends certain explanatory and regulatory text in the Aerosol Coatings final rule, as the final rule contains misstatements and possibly confusing language on how compounds are added to the list in Tables 2A, 2B or 2C—Reactivity Factors, and when distributors and retailers are regulated entities responsible for compliance with the final rule.

DATES:

This direct final rule is effective on June 23, 2008, without further notice, unless EPA receives adverse comment by April 23, 2008, or May 8, 2008, if a public hearing is held. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that some or all of the amendments in the final rule will not take effect.

Comments. Written comments must be received by April 23, 2008, unless a public hearing is requested by April 3, 2008. If a hearing is requested, written comments must be received by May 8, 2008.

Public Hearing. If anyone contacts EPA requesting to speak at a public hearing concerning the proposed regulation by April 3, 2008, we will hold a public hearing on April 8, 2008.

ADDRESSES:

Comments. Submit your comments, identified under Docket ID No. EPA-HQ-OAR-2006-0971 by one of the following methods:

• www.regulations.gov. Follow the online instructions for submitting comments.
• E-mail: [e-mail]
• Fax: [phone]
• Mail: National Volatile Organic Compound Emission Standards for Aerosol Coatings, Environmental Protection Agency, Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include two copies.
• Hand Delivery: EPA Docket Center, 1301 Constitution Avenue, NW., EPA Headquarters Library, Room 3334, EPA West Building, Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2006-0971. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the docket are listed in the www.regulations.gov index. 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, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the National Volatile Organic Compound Emission Standards for Aerosol Coatings, EPA/DC, EPA West Building, EPA Headquarters Library, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the Air Docket is [phone].

Public Hearing. If a public hearing is held, it will be held at 10 a.m. on April 8, 2008 at EPA's Campus located at 109 T.W. Alexander Drive in Research Triangle Park, NC, or an alternate site nearby. Persons interested in presenting oral testimony must contact Ms. Joan Rogers at [phone] no later than April 3, 2008. If you are interested in attending the public hearing, contact Ms. Joan Rogers at [phone] to verify that a hearing will be held. If no one contacts EPA requesting to speak at a public hearing concerning this rule by April 3, 2008 this meeting will be cancelled without further notice.

FOR FURTHER INFORMATION CONTACT:

For further information, contact Ms. J. Kaye Whitfield, U.S. EPA, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Natural Resources and Commerce Group (E143-03), Research Triangle Park, NC 27711; telephone number [phone]; facsimile number [phone]; e-mail address: [e-mail]. For information concerning the Clean Air Act (CAA) section 183(e) consumer and commercial products program, contact Mr. Bruce Moore, U.S. EPA, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Natural Resources and Commerce Group (E143-03), Research Triangle Park, North Carolina 27711, telephone number: [phone], facsimile number [phone], e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Why Is EPA Using a Direct Final Rule?

II. Does This Action Apply to Me?

III. What Should I Consider as I Prepare My Comments for EPA?

IV. What Are the Amendments Made by This Direct Final Rule?

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

K. Congressional Review Act

I. Why Is EPA Using a Direct Final Rule?

The EPA is publishing this rule without a prior proposed rule because we view this as a non-controversial action and anticipate no adverse comment. EPA has identified misstatements and possibly confusing language in the preamble and regulatory text on how compounds are added to the list in Tables 2A, 2B, or 2C of subpart E, 40 CFR part 59, and when distributors and retailers are regulated entities responsible for compliance with the final rule. The amendments to the Aerosol Coatings final rule described herein consist of clarifications that do not make material changes to the rule.

However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposed rule to the National Volatile Organic Compound Emission Standards for Aerosol Coatings (40 CFR Part 59) if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that some or all of the amendments in this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule. For further information about commenting on this rule, see the ADDRESSES section of this document.

II. Does This Action Apply to Me?

The entities potentially affected by this direct final rule are the same entities that are subject to the Aerosol Coatings final rule. The entities affected by the Aerosol Coatings final rule include: Manufacturers, processors, distributors, importers of aerosol coatings for sale or distribution in the United States, and manufacturers, processors, distributors, or importers who supply the entities listed above with aerosol coatings for sale or distribution in interstate commerce in the United States.

III. What Should I Consider as I Prepare My Comments for EPA?

A. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

B. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.

IV. What Are the Amendments Made by This Direct Final Rule?

The direct final rule clarifies and amends certain explanatory and regulatory text in the Aerosol Coatings final rule.

First, we are amending the explanatory text in section III.C. of the preamble (entitled “Consideration of Other Factors in the Consideration of Best Available Controls”), which states that compounds will be added to the list in Tables 2A, 2B, or 2C if they are identified in an initial notification or update. This statement is inconsistent with the regulatory text in § 59.511(j), which provides that compounds are to be added to the list in Tables 2A, 2B, or 2C only through a petition to the Agency. Through today's action, we are amending the preamble to the Aerosol Coatings final rule to track the regulatory text that provides persons seeking to have a compound added to Tables 2A, 2B, or 2C must follow the petition process prescribed by 59.511(j).

Second, EPA has determined that certain language in the regulatory text is inconsistent and potentially confusing as to when distributors and retailers are regulated entities responsible for compliance with the Aerosol Coatings final rule. First, the second phrase in the first sentence of § 59.501(a) suggests that a distributor is only regulated by the final rule if it is named on the label, and the second sentence in § 59.501(a) states “Distributors whose names do not appear on the label for the product are not regulated entities.” The language in the first two sentences of § 59.501(a) is inconsistent and incomplete because, under § 59.501(b)(2), distributors who specify a formulation and distributors whose names appear on the label for the product are responsible for compliance with the final rule. We are adding language to § 59.501(a) to make that section consistent with § 59.501(b)(2). Specifically, we are adding language to the second phrase in the first sentence of § 59.501(a) to include distributors who specify a formulation, and deleting the entire second sentence in § 59.501(a).

Third, the third sentence in § 59.501(a), which states “Distributors include retailers whose names appear on the label for the product,” is potentially confusing because it fails to note that, as defined in § 59.503, retailers are distributors if they meet the definition of “distributor.” A retailer who both meets the definition of “distributor” in § 59.503 and either is named on the label or specifies the formulation of a product is responsible for compliance with the final rule under § 59.501(b)(2). To avoid any confusion about when retailers are regulated by the final rule, we are deleting the third sentence in 59.501(a) and replacing it with a sentence stating “Distributors include retailers who fall within the definition of `distributor' in § 59.503.”

Fourth, EPA has identified that several provisions in § 59.501(b) use the phrase “the regulated entity” to identify when certain entities are responsible for compliance with provisions of the final rule. In some instances, however, the final rule provides that different entities will be regulated entities responsible for compliance with provisions of the final rule for a given product. To avoid any confusion about whether there can be more than one regulated entity for a given product, we are changing the phrase from “the regulated entity” to “a regulated entity.” This change does not change the compliance responsibilities for any entity.

Fifth, we identified that a few words were inadvertently omitted from the regulatory text in § 59.501(b)(2). The first sentence of § 59.501(b)(2) uses the phrase “regulated entity responsible for compliance,” while the second sentence uses the phrase “responsible for compliance” without the words “regulated entity.” To avoid any confusion, we are adding the words “a regulated entity” to the second sentence in § 59.501(b)(2) to make clear that the distributor is a regulated entity responsible for compliance with provisions of the final rule if it either is named on the label or has specified formulations to be used by a manufacturer.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735 October 4, 1993) and is therefore not subject to review under the EO.

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This action does not impose any new information collection burden because it serves to clarify certain explanatory and regulatory text. No additional information collection is necessary for this action.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. We have determined that small businesses will not incur any adverse impacts because EPA is taking this action to make certain clarifications and amendments to the Aerosol Coatings final rule, and these clarifications and amendments do not create any new requirements or burdens. No costs are associated with these amendments.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of 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.

EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Thus, this action is not subject to the requirements of sections 202 and 205 of UMRA because EPA is taking this action to make certain clarifications and amendments to the Aerosol Coatings final rule, and these clarifications and amendments do not create any new requirements or burdens.

EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments because they contain no regulatory requirements that apply to such governments or impose obligations upon them.

E. Executive Order 13132: Federalism

Executive Order (EO) 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the EO to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications. It will 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 EO 13132. The CAA establishes the relationship between the Federal Government and the States, and this action does not impact that relationship. The final rule requirements will not supersede State regulations that are more stringent. Thus, EO 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order (EO) 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This final action does not have Tribal implications as specified in EO 13175. The final regulatory action does not have a substantial direct effect on one or more Indian tribes, in that this action imposes no regulatory burdens on Tribes. Furthermore, the action does not affect the relationship or distribution of power and responsibilities between the Federal Government and Indian tribes. The CAA and the Tribal Authority Rule (TAR) establish the relationship of the Federal Government and Tribes in implementing the CAA. Thus, EO 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

EPA interprets Executive Order (EO) 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This action is not subject to EO 13045 because it is based solely on technology performance.

H. Executive Order 13211: Energy Effects

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113, Section 12(d)), (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the EPA does not use available and applicable VCS.

The rulemaking involves technical standards. Therefore, the Agency conducted a search to identify potentially applicable voluntary consensus standards. However, we identified no such standards, and none were brought to our attention in comments. Therefore, EPA has decided to use the following standards in the final rule: California Air Resources Board Method 310—Determination of VOC in Consumer Products and Reactive Organic Compounds in Aerosol Coating Products; EPA Method 311—Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, appendix A), in conjunction with American Society of Testing and Materials (ASTM) Method D3063-94 or D3074-94 for analysis of the propellant portion of the coating; South Coast Air Quality Management District (SCAQMD) Method 318-95, Determination of Weight Percent Elemental Metal in Coatings by X-ray Diffraction, July, 1996, for metal content; and ASTM D523-89 (Reapproved 1999), Standard Test Method for Specular Gloss for specular gloss of flat and nonflat coatings.

EPA Method 311—Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, appendix A) also is a compilation of voluntary consensus standards. The following are incorporated by reference in EPA Method 311—Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, appendix A): ASTM D1979-91, ASTM D3432-89, ASTM D4457-85, ASTM D4747-87, ASTM D4827-93, and ASTM PS9-94.

For the methods required by the final rule, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures under §§ 63.7(f) and 63.8(f) of subpart A of the General Provisions.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income populations. Further, it establishes national emission standards for VOC in aerosol coatings.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing the final rule amendment 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 this final rule amendment in the Federal Register. The final rule amendment is not a “major rule” as defined by 5 U.S.C. 804(2). This final rule is effective on June 23, 2008.

List of Subjects in 40 CFR Part 59

• Environmental protection
• Administrative practice and procedure
• Air pollution control
• Intergovernmental relations
• Reporting and recordkeeping requirements

Dated: March 13, 2008.

Stephen L. Johnson,

Administrator.

For the reasons set out in the preamble, part 59 of Title 40 of the Code of Federal Regulations is amended as follows:

PART 59—[AMENDED]

1. The authority citation for part 59 continues to read as follows:

Authority: 42 U.S.C. 7414 and 7511b(e).

Subpart E—[Amended]

2. Section 59.501 is amended by revising paragraphs (a) and (b)(1), (b)(2) and (b)(3) to read as follows:

§ 59.501

Am I subject to this subpart?

(a) The regulated entities for an aerosol coating product are the manufacturer or importer of an aerosol coating product and a distributor of an aerosol coating product if it is named on the label or if it specifies the formulation of the product. Distributors include retailers who fall within the definition of “distributor” in § 59.503.

(b) * * *

(1) If you are a manufacturer or importer, you are a regulated entity responsible for ensuring that all aerosol coatings manufactured or imported by you meet the PWR limits presented in § 59.504, even if your name is not on the label.

(2) If you are a distributor named on the label, you are a regulated entity responsible for compliance with all sections of this subpart except for the limits presented in § 59.504. If you are a distributor that has specified formulations to be used by a manufacturer, then you are a regulated entity responsible for compliance with all sections of this subpart.

(3) If there is no distributor named on the label, then the manufacturer or importer is a regulated entity responsible for compliance with all sections of this subpart.

* * * * *