[Federal Register Volume 64, Number 133 (Tuesday, July 13, 1999)]
[Notices]
[Pages 37773-37783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17493]


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ENVIRONMENTAL PROTECTION AGENCY

[AD-FRL-6375-2]
RIN 2060-AG59


Consumer and Commercial Products: Wood Furniture, Aerospace, and 
Shipbuilding and Ship Repair Coatings: Control Techniques Guidelines in 
Lieu of Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final determination.

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SUMMARY: This final determination announces our final decision to list 
wood furniture manufacturing coatings, aerospace coatings, and 
shipbuilding and ship repair coatings for regulation in the first group 
of consumer and commercial product categories to be regulated under 
section 183(e) of the Clean Air Act (Act). We determined that emissions 
of volatile organic compounds (VOC) from these coatings have the 
potential to cause or contribute to ozone levels that violate the 
national ambient air quality standards (NAAQS) for ozone. Ozone is a 
major component of smog which causes negative health and environmental 
impacts when present in high concentrations at ground level.
    This final determination also announces our determination under 
section 183(e) of the Act that control techniques guidelines (CTG) are 
substantially as effective as national regulations in reducing VOC 
emissions from wood furniture manufacturing coatings, aerospace 
coatings, and shipbuilding and ship repair coatings which contribute to 
violations of the NAAQS for ozone. With this final determination, we 
may issue CTG in lieu of national regulations for each of these 
specific categories.
    We based our final determination on comparison of the effectiveness 
of VOC control in the wood furniture manufacturing CTG (61 FR 25223, 
May 20, 1996), the aerospace CTG (63 FR 15006, March 22, 1998), and the 
shipbuilding and ship repair CTG (61 FR 44050, August 27, 1996) with 
the estimated effectiveness of control possible from national 
regulations for these product categories.

EFFECTIVE DATE: July 13, 1999.

ADDRESSES: Docket. Docket No. A-96-23 contains supporting information 
for this final determination. You can inspect this docket and copy 
material between 8:30 a.m. and 5:30 p.m., Monday through Friday. The 
docket is located at our Air and Radiation Docket and Information 
Center, Waterside Mall, Room M1500, 1st Floor, 401 M Street, SW, 
Washington, DC 20460. Telephone (202) 260-7546, FAX (202) 260-4400. You 
may have to pay a reasonable fee for copying.

FOR FURTHER INFORMATION CONTACT: Mr. Daniel Brown, (919) 541-5305, 
Coatings and Consumer Products Group, Emission Standards Division (MD-
13), U.S. Environmental Protection Agency, Research Triangle Park, 
North Carolina 27711 ([email protected]).

SUPPLEMENTARY INFORMATION:
    Whom does this action affect? Entities potentially affected by this 
action are those wood furniture manufacturing operations, aerospace 
manufacturing and rework operations, or shipbuilding and ship repair 
(surface coating) operations which are (or have the potential to 
become) ``major'' sources of VOC emissions and are located in certain 
ozone nonattainment areas. Potentially affected entities are included 
in the following table:

----------------------------------------------------------------------------------------------------------------
                Category                                Examples of potentially affected entities
----------------------------------------------------------------------------------------------------------------
Industry...............................  Wood furniture or wood furniture component(s) manufacturing. (SIC Codes
                                          2434, 2511, 2512, 2517, 2519, 2521, 2531, 2541, 2599, 5712).
                                         Any manufacturing, reworking, or repairing of aircraft such as
                                          airplanes, helicopters, missiles, rockets, and space vehicles. (SIC
                                          Codes 3720, 3721, 3724, 3728, 3760, 3761, 3764, 3765, and 4581).

[[Page 37774]]

 
                                         Any building or repairing, repainting, converting, or alteration of
                                          ships. The term ship means any marine or fresh-water vessel, including
                                          self-propelled by other craft (barges), and navigational aids (buoys).
                                          Note: Offshore oil and gas drilling platforms and vessels used by
                                          individuals for noncommercial, nonmilitary, and recreational purposes
                                          that are less than 20 meters in length are not considered ships. (SIC
                                          Code 3731)
Federal Government.....................  Federal agencies which undertake aerospace manufacturing or rework
                                          operations (see above) such as the Air Force, Navy, Army, and Coast
                                          Guard.
                                         Federal agencies which undertake shipbuilding or ship repair operations
                                          (see above) such as the Navy and Coast Guard.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities which are the focus of this 
action. This table lists the types of entities that we are now aware 
could potentially be affected by this action. Other types of entities 
not listed in the table could also be affected.
    What is the judicial review process for this determination? We 
proposed this section 183(e) determination on August 22, 1997 (62 FR 
44672). Today's final determination is our final administrative action 
concerning that proposal. Under section 307(b)(1) of the Act, you can 
challenge this final determination only by filing a petition for review 
in the United States Court of Appeals for the District of Columbia 
Circuit by September 13, 1999. Under section 307(d)(7)(B) of the Act, 
you can raise an issue during judicial review only if someone raised it 
with reasonable specificity during the public comment period.
    The information presented in this document is organized as follows:

I. Why are we taking this action?
II. What were the significant comments we received and our responses 
to them?
    A. Estimated levels of control for reasonably available control 
technology (RACT) and best available control (BAC)
    1. Comparing BAC and RACT
    2. Selecting BAC
    B. Emission reductions attributed to CTG
    C. Estimated number of affected facilities
III. What is our final action?
IV. Administrative requirements
    A. Docket
    B. Paperwork Reduction Act
    C. Executive Order 12866: Regulatory Planning and Review
    D. Executive Order 12875: Enhancing Intergovernmental 
Partnership
    E. Regulatory Flexibility Act/Small Business Regulatory 
Enforcement Fairness Act of 1996
    F. Unfunded Mandates Reform Act of 1995
    G. Submission to Congress and the General Accounting Office
    H. National Technology Transfer and Advancement Act
    I. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    J. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments

I. Why are we taking this action?

    Ground-level ozone, which is a major component of ``smog,'' is 
formed in the atmosphere by reactions of VOC and oxides of nitrogen 
(NOX) in the presence of sunlight. The formation of ground-
level ozone is a complex process that is affected by many variables.
    Exposure to ground-level ozone is associated with a wide variety of 
human health effects, agricultural crop loss, and damage to forests and 
ecosystems. Acute health effects are induced by short-term exposures to 
ozone (observed at concentrations as low as 0.12 parts per million 
(ppm)), generally while individuals are engaged in moderate or heavy 
exertion, and by prolonged exposures to ozone (observed at 
concentrations as low as 0.08 ppm), typically while individuals are 
engaged in moderate exertion. Moderate exertion levels are more 
frequently experienced by individuals than heavy exertion levels. The 
acute health effects include respiratory symptoms, effects on exercise 
performance, increased airway responsiveness, increased susceptibility 
to respiratory infection, increased hospital admissions and emergency 
room visits, and pulmonary inflammation. Groups at increased risk of 
experiencing such effects include active children, outdoor workers, and 
others who regularly engage in outdoor activities or have preexisting 
respiratory disease. Available information also suggests that long-term 
exposures to ozone may cause chronic health effects (e.g., structural 
damage to lung tissue and accelerated decline in baseline lung 
function).
    In 1990, Congress enacted section 183(e) of the Act, establishing a 
new regulatory program to control VOC emissions from consumer and 
commercial products. Section 183(e) directed the Administrator to study 
the VOC emissions from these products and report to Congress concerning 
their potential to contribute to levels of ozone which violate the 
NAAQS for ozone. The statute also directed us to identify, list, and 
schedule for regulation those categories of products which account for 
at least 80 percent of VOC emissions from all such products in ozone 
nonattainment areas.
    Following these directions, we studied these products and 
determined that VOC emissions from consumer and commercial products 
have the potential to contribute to ozone levels that violate the NAAQS 
for ozone. We also identified coatings used in wood furniture 
manufacturing, aerospace, and shipbuilding and ship repair as product 
categories to regulate to reduce VOC emissions. For a more detailed 
discussion of our findings, see:
     ``Consumer and Commercial Products Report to Congress'' 
(EPA-453/R-94-066-A).
     Federal Register document announcing the schedule for 
regulating consumer and commercial products (60 FR 15264).
     Federal Register document summarizing significant public 
comments and the EPA's responses regarding the section 183(e) study, 
Report to Congress, and the list and schedule for regulation (63 FR 
48792).
    Section 183(e) of the Act directs us to regulate consumer and 
commercial products using best available controls (BAC). The statute 
defines ``consumer and commercial'' products as:

    * * * any substance, product (including paints, coatings, and 
solvents), or article (including any container or packaging) held by 
any person, the use, consumption, storage, disposal, destruction, or 
decomposition of which may result in the release of volatile organic 
compounds.

    The statute defines ``BAC'' as:

    * * * the degree of emissions reduction the Administrator 
determines, on the basis of technological and economic feasibility, 
health, environmental, and energy impacts, is achievable through the 
application of the most effective equipment, measures, processes, 
methods, systems or techniques, including chemical reformulation, 
product or feedstock substitution, repackaging, and directions for 
use, consumption, storage, or disposal.
    Although the statute provides that we may use ``any system or 
systems'' of regulation to achieve VOC emission reductions, it provides 
two primary options for reducing VOC emissions from these products, 
national

[[Page 37775]]

regulations or CTG. Because of the difference between the entities 
subject to regulation under each mechanism, the statute permits us to 
obtain VOC emission reductions either at the point of manufacture or at 
the point of use. A regulation under section 183(e) may only apply to 
certain regulated entities defined in the statute as:

    * * *  (i) manufacturers, processors, wholesale distributors, or 
importers of consumer and commercial products for sale or 
distribution in interstate commerce in the United States; or (ii) 
manufacturers, processors, wholesale distributors, or importers that 
supply the entities listed under clause (i) with such products for 
sale or distribution in interstate commerce in the United States.

    Thus, section 183(e) does not allow us to issue regulations that 
would directly regulate end users of these products. Alternatively, 
section 183(e) also includes provisions that allow us to control these 
emissions at the point of use by issuing CTG. We may issue CTG instead 
of national regulations, under section 183(e)(3)(C) of the Act, if the 
Administrator determines that CTG will be ``substantially as effective 
as'' regulations in reducing VOC emissions from consumer and commercial 
products which contribute to ozone in areas that violate the NAAQS.
    Although not specifically defined in the Act, a CTG is a guidance 
document issued by the EPA which, under section 182(b)(2), triggers a 
responsibility for States to submit reasonably available control 
technology (RACT) rules for stationary sources of VOC that are covered 
by the CTG as part of each State's State Implementation Plan. The EPA 
defines RACT as ``the lowest emission limit that a particular source is 
capable of meeting by the application of control technology that is 
reasonably available considering technological and economic 
feasibility'' (44 FR 53761, September 17, 1979). Each CTG includes a 
``presumptive norm'' or ``presumptive RACT'' that we believe satisfies 
the definition of RACT. If a State submits a RACT rule that is 
consistent with the presumptive RACT in the CTG, the State does not 
need to submit additional support to demonstrate that the rule meets 
the Act's RACT requirement. However, if the State submits an 
alternative emission limit or level of control for a source or source 
category for which there is a presumptive RACT and deviates from the 
CTG, the State must submit independent documentation as to why the rule 
meets the statutory RACT requirement.
    In our proposed determination, we discussed a number of factors we 
may consider in making our determination that CTG are substantially as 
effective as rules under section 183(e) (62 FR 44672, August 22, 1997). 
For these three product categories, we considered the following factors 
to determine if CTG are substantially as effective as national 
regulations:
    --the product's distribution and place of use;
    --the most effective entity to regulate in order to control 
emissions (in other words, whether it is more effective to achieve VOC 
reductions at the manufacturer level or the user level);
    --consistency with other VOC control strategies; and
    --estimates of VOC emission reductions.
    As we consider other product categories in future phases of 
regulation under section 183(e), there may be other factors that will 
be relevant for given product categories.
    The distribution and use of these products is focused on the 
industrial sector with fewer large users (e.g., industrial facilities), 
rather than many small users (e.g., individual consumers in the general 
public). Users often add thinning solvent to these coatings at the 
industrial facility after purchase from the coating manufacturer. 
Hence, we believe the industrial facility (i.e., the coating user) will 
be the most effective entity to target for VOC emission reductions from 
these products. This approach would be consistent with previous efforts 
to reduce VOC emissions from industrial coatings by issuing CTG for the 
industrial facilities where the coatings are applied. Furthermore, the 
historical use of CTG to control VOC emissions from similar coating 
operations has proven to be effective in reducing VOC emissions. In 
order to assess the relative effectiveness of each mechanism, we also 
compared the VOC emission reductions that we estimated for a CTG with 
those that we estimated for a national regulation for each product 
category. For the comparison, we used the existing CTG issued for wood 
furniture manufacturing (61 FR 25223), aerospace coatings (63 FR 
15006), and shipbuilding and ship repair (61 FR 44050) to estimate VOC 
emission reductions for the CTG. We then made estimates of the 
projected VOC emission reductions from national regulations by 
estimating what would constitute BAC for each product category.
    For wood furniture manufacturing coatings, aerospace coatings, and 
shipbuilding and ship repair coatings, we determined that CTG would be 
substantially as effective as national regulations in reducing VOC 
emissions in ozone nonattainment areas. For these product categories, 
the VOC emissions typically occur in fixed industrial settings where 
CTG enable monitoring and enforcement of controls during use of the 
product. We described the level of control presumptively established 
for each category in the proposed determination (62 FR 44672, August 
22, 1997) and in the wood furniture manufacturing CTG (61 FR 25223, May 
20, 1996), the aerospace CTG (63 FR 15006, March 22, 1998), and the 
shipbuilding and ship repair CTG (61 FR 44050, August 27, 1996).

II. What were the significant comments we received and our 
responses to them?

    We placed our proposed determination and supporting documentation 
in a docket open to the public when we published the proposal in the 
Federal Register on August 22, 1997 (62 FR 44672). At that time, we 
asked for comments and later received comment letters from 
manufacturers and importers, trade groups, environmental groups, and 
one private citizen. All of the public comments on our proposed 
determination, and our responses to the comments, are in the docket (A-
96-23), as referenced in the ADDRESSES section of this document. We 
requested but did not receive comments on the listing of these three 
commercial products in our proposed determination on August 22, 1997 
(62 FR 44672). We discuss the most significant issues raised by 
commenters and our response to them in this document.

A. Estimated Levels of Control for Reasonably Available Control 
Technology (RACT) and Best Available Controls (BAC)

1. Comparing BAC and RACT
    Comment: BAC, the degree of control required for a national 
regulation under section 183(e), allegedly should be more stringent 
than RACT, the degree of control required for CTG. The commenter noted 
that we should base BAC on ``best'' available controls, whereas we can 
base RACT on controls that are ``reasonably'' available. The commenter 
stated that to show that a CTG would be substantially as effective as a 
regulation, we would thus have to show that RACT is substantially as 
effective as BAC. The commenter's essential point is that it would be 
very difficult to establish that ``reasonably'' available controls 
could be substantially as effective as ``best'' available controls, 
because ``best'' implies a higher degree of controls.
    Response: We disagree that BAC must automatically be a more 
stringent level

[[Page 37776]]

of control than RACT. Each of these terms refers to the optimum degree 
of control within its respective regulatory program and, as discussed 
in the proposed determination, we believe that BAC is not necessarily 
more stringent than RACT. We note that although section 183(e) 
contemplates the implementation of ``best'' available controls, it does 
so in terms that direct us to determine what is ``best'' in light of 
enumerated factors, including technological and economic feasibility.
    We believe the degree of emission reduction in a national 
regulation based on BAC should reflect nationwide usage of coatings 
within a category under all conditions. This includes situations where 
high-VOC coatings are necessary to achieve product performance 
requirements. The level of control should be achievable considering, 
among other things, economic impacts. Thus, we believe that it is 
appropriate to consider the continued availability of high-VOC coatings 
in the selection of BAC if they are essential to fill a necessary 
product niche. In addition, we must base BAC (like RACT) on available 
control technologies that are achievable based on technological 
feasibility. Therefore, we cannot automatically select lower VOC-
emitting products that are not proven for the range of uses in a 
category as dispositive of BAC simply because they have the lowest VOC 
emissions.
    High-VOC coatings, if essential to fill a necessary product niche, 
could significantly influence the selection of BAC in development of a 
national regulation and result in a higher VOC limit to allow their 
continued production and use. High-VOC coatings would also impact the 
selection of controls for RACT. However, the impact would be lessened 
for RACT to the extent that regulations of the ``use'' of high-VOC 
coatings through CTG could lead to a lower VOC limit for specific 
applications and, hence, lower overall VOC emissions. Rules reflecting 
a CTG's presumptive RACT control level could also include provisions 
for more efficient coating application equipment, air pollution control 
devices, process changes, and work practice standards to further reduce 
VOC emissions. Thus, it is possible that a national regulation 
utilizing BAC could be less stringent than a RACT rule triggered by 
issuance of a CTG. We believe that this outcome is likely for many 
coatings used in industrial manufacturing processes where higher VOC 
coatings are often essential for product performance, but where on-site 
emission reduction measures through RACT rules can mitigate the VOC 
emissions to the atmosphere.
    Because Congress explicitly provided for the use of CTG in lieu of 
a national regulation pursuant to section 183(e), we believe it is 
reasonable to assume that ``reasonably available control technology'' 
can be substantially as effective as ``best available control'' under 
certain conditions and for some categories. Congress, however, did not 
provide a distinct standard or methodology for EPA to consider when 
determining whether CTG are substantially as effective as regulations. 
Furthermore, the legislative history does not directly address this 
issue. Given the ambiguity in the statute, we have chosen to make this 
comparison based on reasonable considerations as set forth in the 
proposed determination.
    Most importantly, we do not consider the comparison of numerical 
emission reduction estimates as the sole factor in the evaluation of 
whether a CTG is ``substantially as effective.'' As discussed in the 
proposed determination, other factors related to implementation and 
enforcement are equally important in determining the overall emission 
reduction effectiveness of each regulatory strategy. Such factors 
include consideration of the most effective entity to target for 
reductions (e.g., the product manufacturer or the product user), the 
distribution and site of product use (e.g., distributed and used in an 
established stationary facility or widely dispersed for use in varied 
locations), and consistency with other control strategies (e.g., have 
existing control strategies proved effective). Thus, in making the 
determination that CTG for wood furniture, aerospace, and shipbuilding 
and ship repair operations will be substantially as effective as 
regulations pursuant to section 183(e), we did not rely solely on the 
comparison of emission reduction estimates. We believe a proper 
determination requires consideration of the estimates of BAC, the 
corresponding emission reduction estimates, and the implementation and 
enforcement factors described in the proposal.
2. Selecting BAC
    Comment: In comparing potential emission reductions from a CTG 
versus a national regulation, one commenter stated that we used 
unsupported estimates of the stringency of BAC standards that we would 
develop under a national regulation. The commenter suggested that our 
estimated standards were themselves illegal under section 183(e) 
because we did not consider all of the statutory factors in estimating 
what would constitute BAC under a projected national regulation.
    Response: We maintain that we performed the proper analysis 
necessary to compare the potential emission reductions from a CTG to 
the potential emission reductions from a national regulation for each 
of these three product categories. As an initial matter, we note that 
section 183(e) does not stipulate how to assess whether a CTG is 
substantially as effective as a regulation in obtaining VOC emission 
reductions. As explained in the proposed determination, neither the 
statute nor the legislative history provides a distinct standard that 
Congress directed us to use for this analysis (62 FR 44672, 44674, 
August 22, 1997).
    We acknowledge that the statute is ambiguous regarding how we are 
to make the determination that a CTG for a given product category would 
be substantially as effective as a national regulation in achieving VOC 
emission reductions. We believe that it is reasonable to interpret the 
provisions to allow a comparison of the estimated VOC emission 
reductions achievable by the alternative mechanisms of a CTG or a 
regulation. Moreover, we believe it is appropriate to interpret the 
provisions to allow us to choose a reasonable means to estimate the 
projected emission reductions. It would be unreasonable to require us, 
in effect, to perform a complete rulemaking process before making an 
informed determination that a CTG would be substantially as effective 
as a national regulation.
    As detailed more fully in the proposed determination, we concluded 
that it would be reasonable to compare the expected VOC emission 
reductions from existing CTG for these product categories with the 
projected VOC reductions from national regulations that we might 
develop for the same products. We noted explicitly in the proposed 
determination that the projected VOC reductions from a national 
regulation were, by necessity, estimates based upon the information 
available to us. Contrary to the assertions of the commenter, we 
believe that we had adequate information regarding the affected 
industries and products to make reasonable estimates. For these three 
product categories, we completed an in-depth and detailed review of the 
industries during the development of national emission standards for 
hazardous air pollutants (NESHAP) and CTG. Based upon this information, 
as described in Docket No. A-96-23, we were informed about the 
industries and the issues that would

[[Page 37777]]

potentially affect development of any national regulation governing 
these products used in an industrial setting.
    The commenter suggested that we had insufficient support for our 
estimates, thereby invalidating the comparison of CTG to national 
regulation. Taken to its logical extreme, however, the commenter's 
argument would require us to proceed through every step of a rulemaking 
process (e.g., regulatory development, proposal, response to comments, 
interagency review, and drafting of a final regulation) before we could 
have sufficient certitude about the level of control possible from a 
national regulation to make a valid comparison with CTG. We do not 
believe that section 183(e) requires such an extensive process in order 
to make a valid comparison between the efficacy of a national 
regulation and that of a CTG.
    The commenter also stated that we underestimated the reductions 
feasible through a national regulation, thereby invalidating the 
comparison. We disagree because in making our estimation, we took into 
account the very issues that would have been relevant in the 
development of a national regulation. As detailed in the proposed 
determination, we explained alternative approaches, industry issues, 
and constraints for regulating each of the three product categories. We 
could not, of course, predict with perfect accuracy what the emission 
limits would have been for a national regulation. Such a determination 
would be possible only after completion of an actual rulemaking 
process. We did, however, utilize our expertise and familiarity with 
the issues to give an informed estimation of the VOC limits in a 
national regulation for these product categories. As the commenter 
acknowledged, we must consider a variety of factors in assessing what 
level of control is BAC for a product category. For a regulation with 
national scope, that level is not necessarily the lowest possible VOC 
content.
    Even if we were conservative in estimating the potential VOC 
reductions achievable through a national regulation or a CTG, we note 
that the precise amount of reductions possible through one mechanism or 
another is but one factor for consideration. As stated in the proposed 
determination, we believe that we may take into account a variety of 
different factors related to implementation and enforcement such as the 
most effective entity to target for reductions (e.g., the product 
manufacturer or the product user), the distribution and site of use of 
the product (e.g., distributed and used in an established stationary 
facility or widely dispersed for use in varied locations), and 
consistency with other control strategies (e.g., have existing control 
strategies proved effective) (62 FR 44675). Thus, for example, it might 
be possible to achieve greater numeric reductions through a national 
regulation rather than a CTG, but other factors might render a CTG 
substantially as effective as or more effective than a national 
regulation.
    Simply put, some products are more suitable for control through a 
national regulation at the point of manufacture and some products are 
better controlled at the point of use instead. For example, VOC control 
for a product like house paint is more effective through a regulation 
governing manufacturers, whereas control of products used by a smaller 
number of large sophisticated industrial end users is more effective 
through a CTG. As explained in greater detail in the proposed 
determination, we believe that these three product categories are 
appropriate for VOC control through a CTG rather than a regulation for 
a variety of reasons.
    Comment: One commenter claimed that we provided incorrect estimates 
of the potential VOC emission reductions from a national regulation for 
wood furniture manufacturing coatings. Because we identified three 
possible control technologies: waterborne coatings, high solids 
coatings, and ultraviolet curable coatings, the commenter indicated 
that properly estimated BAC standards should have reflected some 
combination of these technologies. The commenter noted that we 
concluded in the proposed determination that waterborne and high-solids 
coatings are not necessarily compatible for all products. The commenter 
stated that the primary reason for our rejection of certain 
technologies was our concern that manufacturers would not be able to 
produce the same quality of product and would therefore suffer 
economically. The commenter stated that the proposed determination did 
not indicate that we made any effort to verify the assertions of 
manufacturers or to balance economic consequences against environmental 
and health benefits.
    Response: As previously noted, the data and information that we 
used to support the BAC estimate came from extensive regulatory 
negotiations under the Federal Advisory Committee Act (FACA) to support 
development and promulgation of a NESHAP under section 112 of the Act 
and a CTG under section 183(b) of the Act. We believe these data are 
adequate to support an estimate of BAC for a national regulation 
because we examined all available coating technologies and the total 
VOC emissions from these coatings in these industries when developing 
the existing CTG.
    In the selection of the level of control that is BAC and evaluation 
of its potential economic impacts, we believe it is reasonable to 
consider the impact on coating users if necessary coatings were no 
longer available. For the wood furniture manufacturing industry, sealer 
and top-coat coatings must be compatible to ensure acceptable finishes 
on the wood. Even though there may be lower VOC coatings that could 
potentially justify a lower level for BAC, we believe it is necessary 
to evaluate whether a limit based solely on such coatings would 
eliminate the availability of necessary compatible sealers and top-
coats. We established BAC limits for wood furniture coatings based on 
broadly defined coating types (e.g., top-coats and sealers) so that all 
of the necessary coating technologies available within the coating type 
(e.g., waterborne, high solids, and conventional) would remain 
available to meet the needs of coating users to fill a product niche.
    An alternative to establishing a single VOC content limit as BAC 
considering all coating technologies would be to establish less broadly 
defined categories of coatings with individual BAC limits for each type 
of coating technology. As we discussed in the proposed determination, 
we considered subcategorizing wood furniture coating types into several 
technology groups: waterborne coatings with a BAC limit based only on 
waterborne technology, high-solids coatings with BAC based only on 
high-solids technology, and conventional coatings with BAC based only 
on conventional coating technology. Although this approach might lead 
to lower VOC limits for the individual coating technologies, we do not 
believe it would automatically lead to the use of lower VOC coatings. 
Regulations under section 183(e) regulate the manufacturer, 
distributor, or processor of a coating; these regulations do not 
regulate how or under what circumstances the end user can apply a 
specific technology. Therefore, under this scenario, a wood furniture 
manufacturer would be able to use a coating technology with a higher 
VOC limit (e.g., solvent based) even if a lower VOC coating technology 
(e.g., waterborne) could achieve the same results.
    Alternatively, regulators can specifically address the use of 
coating technologies with a CTG restricting the use of higher VOC 
coating technology to

[[Page 37778]]

only those applications where the use of lower VOC technology is not 
compatible with the specific sealer and top-coat system. Thus, a CTG 
can include stricter requirements on the actual use of coating 
technologies whereas a national regulation could not. Furthermore, 
since regulators can more effectively monitor and enforce compliance 
with requirements on the use of these products in wood furniture 
manufacturing facilities, these facilities can be better targeted for 
effective VOC reductions with a CTG.
    In assessing the projected VOC emission reductions from a national 
regulation, we had to consider the limitations imposed by section 
183(e). We believe that for purposes of comparing the potential 
emission reductions from a regulation for wood furniture coatings, 
establishing a single BAC level that is the lowest achievable level 
that does not preclude any necessary coating technology is appropriate.
    Regarding our reliance on information provided by manufacturers on 
coating technologies and economic impacts used to establish the 
estimated BAC for this category, our assessment was based on 
information from the regulatory negotiation process under FACA, 
described above. The FACA committee was comprised of industry groups, 
public interest groups, and governmental agencies and conducted 
extensive discussions regarding the feasibility of coating 
technologies, economic impacts, and environmental benefits. We believe 
that such a process provided more reliable and less biased information 
than the commenter suggested. We maintain that the information 
developed during this FACA process is adequate to support estimates of 
the VOC emission reductions from a potential national regulation for 
purposes of making this determination.
    Comment: One commenter criticized our estimates of the stringency 
of BAC standards for aerospace and shipbuilding and ship repair 
coatings. The commenter questioned our assertion that the best 
available control measures (BACM) presented in the aerospace and 
shipbuilding CTG ``represent the best performing sources in the 
industry'' and, thus, would be ``similar if not equivalent'' to BAC. 
The commenter stated that we did not indicate how BACM standards 
represent the best performing sources or why the best performing 
sources would be equivalent to BAC. The commenter concluded that there 
are indications that properly written national regulations for these 
products would be more stringent than those we used for comparison 
purposes, and that it is impossible for us or the public to reach a 
valid determination that CTG are substantially as effective as national 
regulations for these product categories without more information and 
more thorough analysis.
    Response: We reaffirm our conclusion that the BACM levels of 
control we presented in the aerospace and shipbuilding CTG represent 
the best performing sources in the industry and, thus, would be similar 
if not equivalent to BAC for these products for purposes of this 
analysis. We indicated in our proposed determination that BACM was 
based on data used to support development and promulgation of NESHAP 
for the aerospace and shipbuilding and ship repair industries under 
section 112 of the Act and CTG under section 183(b) of the Act. We 
believe these data are adequate to support an estimate of BAC for a 
national VOC regulation because we examined VOC emissions from these 
coatings when developing the NESHAP and CTG.
    Data analysis supporting development of the NESHAP includes the 
selection of maximum achievable control technology (MACT) to reduce 
emissions from aerospace and shipbuilding and ship repair coatings, 
after considering the energy, environmental, and economic impacts of 
the technology, and other costs. The MACT is based on industry sources 
with the best performing emission reduction technology. While typically 
there may be differences in the level of emission reduction provided by 
MACT, BACM, BAC, and RACT, when there is a limited range of control 
options for a specified industry, such as coating technologies, the 
level of control may be identical. We determined that MACT, BAC, BACM, 
and RACT were all identical for these industries based on the lowest 
achievable emission levels for the aerospace and shipbuilding and ship 
repair coatings.
    In conducting our review of available data to make today's final 
determination, we did not find any clear indications that properly 
written national regulations based on BAC would be more stringent. Nor 
did we receive any such information during the comment period for the 
proposed determination. We believe that we have sufficient information 
to make a valid comparison of the projected emission reductions from a 
CTG and national regulation for each of these product categories. We 
believe it is appropriate to make such determinations based on readily 
available information, thereby maximizing the use of limited resources. 
Furthermore, we believe this was the intent of the Congress in section 
183(e)(3)(C), which gives the Administrator discretion to determine if 
CTG would be substantially as effective as regulations and to issue CTG 
in lieu of regulations when appropriate.

B. Emission Reductions Attributed to CTG

    Comment: A commenter stated that we failed to quantify or support 
our estimate of VOC emission reductions possible from CTG. The 
commenter stated that in the discussion of the CTG for aerospace 
facilities, we indicated that 1,288 tons per year (tpy) of the total 
4,288 tpy estimated reductions would come from equipment and work 
practice standards, but we did not provide any indication of how we 
reached this number. For the wood furniture manufacturing CTG, the 
commenter stated that we provided no allocation of the sources of 
reduction at all. Finally, the commenter stated that we appear to have 
reached the estimated 1,366 tpy in VOC reductions for the shipbuilding 
and ship repair category without accounting for any reductions from 
work practices.
    Response: We do not agree that we failed to quantify and support 
the estimates of VOC reductions from CTG for these three categories. 
The docket for this action includes memoranda that document the 
calculations made for each category (Docket No. A-96-23).
    As discussed in the proposed determination and in the responses 
above, the advantage of a CTG is that it targets VOC emission 
reductions at the source. A CTG can limit the amount of VOC in a 
coating when applied, including any VOC the user adds to the product as 
manufactured (e.g., thinning solvents). Additionally, CTG can include 
requirements for pollution control devices, process changes, work 
practices, and other means which can further reduce emissions of VOC 
from coating use and other sources (e.g., VOC emissions from equipment 
cleaning and coating mixing). National regulations under section 183(e) 
apply to manufacturers, processors, wholesale distributors, and 
importers of commercial products such as these industrial coatings and, 
therefore, could only limit the amount of VOC in the coatings as sold 
and distributed.
    For CTG that include recommended requirements for process changes 
or control equipment, the additional VOC emission reductions are 
typically a function of the amount of coating applied. Therefore, with 
estimates of the amount of coating applied, emission

[[Page 37779]]

reductions resulting from such requirements can often be quantified. 
The aerospace CTG recommended such requirements for coating application 
equipment. This equipment improves the efficiency of the coating 
operation resulting in less VOC emissions. Since the VOC reductions 
correlate with the amount of coating used, we were able to quantify the 
additional reductions associated with the CTG's recommended requirement 
and consider them in making our proposed determination (Docket No. A-
96-23).
    The commenter is correct that we did not allocate and account for 
additional VOC emission reductions associated with the CTG for 
shipbuilding and wood furniture manufacturing. As discussed in the 
proposed determination, we expect the CTG to achieve additional VOC 
reductions since RACT VOC limits regulate coatings as-applied (i.e., 
including any VOC added after purchase). It was also discussed that CTG 
recommend work practice standards for the cleaning of coating 
equipment. Since VOC are used to clean coating equipment, these work 
practices will potentially achieve additional VOC reductions from the 
industrial facilities that we could not achieve with a regulation 
governing the VOC content of products as manufactured. In making our 
estimate of VOC reductions from a CTG, we could not definitively 
quantify additional emission reductions from such limits and work 
practices, based on available data. In these cases, the full benefit of 
a CTG over a national regulation may not be completely quantifiable. In 
this respect, we agree that our estimation of the reductions from the 
CTG may be conservative and that we would anticipate greater 
reductions. However, even without quantifying and allocating the 
precise amount of projected VOC reductions, we concluded that a CTG 
would be substantially as effective for each category. We do not 
believe that section 183(e) requires us to quantify precisely the 
projected reductions from a potential regulation or CTG before we can 
reasonably make our determination.
    Comment: The development of the existing wood furniture 
manufacturing CTG was a coordinated effort between industry, State, and 
local agencies and environmental groups. The commenter asserted that 
the advantage of a CTG over a national regulation is its ability to 
reduce emissions from coatings as they are used in the actual workplace 
setting. The commenter suggested that coatings purchased from vendors 
are often modified prior to application due to the variety of wood 
species and application equipment used in the industry. Attempting to 
control VOC emissions by reducing VOC in the product as manufactured 
would, therefore, be less effective for this product category. The 
commenter suggested that a CTG is a proven mechanism for reducing VOC 
emissions from this industry by placing limits on the coatings as 
applied and including work practice standards to reduce VOC emissions 
from other associated operations. The commenter supported our 
determination that CTG are substantially as effective as a national 
regulation for this product category.
    Response: We concur with these comments for this product category. 
We recently promulgated a NESHAP for the wood furniture manufacturing 
industry under section 112 of the Act, and issued a final CTG for this 
industry under section 183(b) of the Act on May 20, 1996. As discussed 
above, in making our determination under section 183(e), we considered 
several factors related to implementation, enforcement, and estimated 
emission reductions from CTG and a national regulation for this product 
category. In estimating emission reductions, we considered pertinent 
information regarding the wood furniture industry that was gathered 
during the development of the NESHAP and CTG. Based on the analysis of 
this industry information, as documented in Docket No. A-96-23, we 
determined that a CTG would be substantially as effective as a national 
regulation under section 183(e) for wood furniture manufacturing 
coatings.
    Comment: One commenter suggested that CTG are better targeted to 
reduce VOC emissions from solvent use in ozone nonattainment areas and 
that there are valid reasons for such reductions in most of these 
areas, except for those that are NOX-limited. The commenter 
claimed that national regulations would impose additional restrictions 
in ozone attainment areas, for which the commenter believes there is no 
environmental justification. In addition, the commenter asserted that 
such national regulations would impose unnecessary costs on the users 
of products and on solvent producers. The commenter supported our 
determination that CTG are substantially as effective as national 
regulations under section 183(e) in reducing VOC emissions from these 
product categories.
    Response: As discussed in previous responses, we made our 
determination to issue CTG for these product categories based upon 
consideration of various factors including implementation, enforcement, 
and emission reductions. In weighing whether to implement national 
regulations versus CTG, we also considered the nature of the product 
and its use. For example, we believe that a national regulation is an 
appropriate means to reduce emissions in accordance with section 183(e) 
for products that are, by their nature, easily transported across area 
boundaries, are widely distributed, and are used by widely varied types 
of end users in widely varied locations. Examples of such products are 
architectural coatings, consumer products (household and personal 
care), and automobile refinish coatings. Therefore, for this and other 
reasons, we promulgated national regulations for those three product 
categories on September 11, 1998 (63 FR 48792).
    In the case of wood furniture, aerospace, and shipbuilding and ship 
repair coatings, we considered the fact that they are industrial 
coatings which, by their nature, are typically used by specific end 
users in specific locations. Furthermore, after purchasing these 
industrial coatings, end users often modify them to meet the specific 
needs of the industrial application. Because of the fixed location of 
their use and the ability to identify and locate the end users for 
compliance assurance and enforcement purposes, we concluded that 
control of VOC emissions from these product categories is more 
effectively accomplished through requirements imposed on the user 
rather than on the coating manufacturer. Thus, a CTG is a better 
mechanism to achieve VOC emission reductions for these categories of 
products. We do not agree with the commenter's assertion that there is 
no environmental benefit to reducing VOC emissions from solvents in 
ozone attainment areas (see the September 11, 1998 Federal Register 
documents referenced above for a discussion of EPA's position on this 
issue).
    Comment: One commenter stated that since section 183(e) authorizes 
the imposition of national regulations on only the product 
manufacturers, processors, wholesalers, distributors, or importers or 
suppliers thereof, a national regulation could not reach the end-user 
operations that generate VOC emissions. For this reason, the commenter 
agreed that a CTG would be substantially as effective, if not more 
effective, than a national regulation in reducing VOC emissions from 
aerospace coatings. The commenter's reasons for this were:

--A CTG can affect equipment and work practice standards resulting in 
additional VOC emission reductions,

[[Page 37780]]

such as those associated with the use of solvents in cleaning 
operations; and
--A CTG can affect the coatings ``as applied'' which is the most 
effective way to control VOC emissions from aerospace coatings since 
users sometimes add VOC-containing solvents to the coatings before 
application.

    Response: The commenter's points are in agreement with our 
conclusions regarding aerospace coatings. As noted in the response 
above, the EPA believes that some products are better suited to 
regulation through national regulations.
    Comment: One commenter stated that Congress recognized that the 
nature, distribution, and use of some products would make a CTG a more 
effective control option and, therefore, specifically authorized EPA to 
issue CTG in lieu of national regulations.
    The commenter agreed with us that CTG are substantially as 
effective as national regulations for the three categories under 
discussion here. Specifically, the commenter stated that site specific 
factors and the ability of end-users to control VOC emissions with 
equipment and work practices support the selection of CTG in lieu of 
regulations for these three categories.
    Response: We agree with these statements regarding these products. 
There are many sources of VOC emissions from industrial facilities, 
only one of which is the actual use of commercial coating products. 
Other steps in the overall process involve the use of VOC and result in 
VOC emissions. Such steps include the cleaning of surfaces prior to 
application of a coating, the mixing and amendment of coatings prior to 
use, the cleaning of equipment and work spaces after coating use, and 
the storage and transfer of VOC used in these operations.

C. Estimated Number of Affected Facilities

    Comment: One commenter claimed that we failed to explain how the 
difference in the number of facilities covered by CTG and national 
regulations would affect emission reductions. Specifically, the 
commenter noted that for wood furniture coatings, we estimated that 
only 950 of the 4,500 facilities in nonattainment areas would be 
covered by a CTG. The commenter also noted that we estimated a 
shipbuilding and ship repair CTG would cover just 100 of the 187 
facilities in nonattainment areas. Similarly, with regard to aerospace 
coatings, the commenter noted that we estimated a CTG would cover only 
64 percent of sources. In each case, the commenter questioned our 
statements that sources not covered by the CTG would not use 
significant amounts of the coatings. The commenter stated that we 
failed to support our contention that facilities not covered by CTG 
would not contribute significantly to VOC emissions.
    Response: The commenter is correct that the two regulatory 
approaches could potentially impact a different number of sources. We 
do not agree, however, that we failed to explain this fact. As 
discussed in the proposed determination, CTG affect ``major sources'' 
of VOC emissions by triggering requirements for State rules applicable 
in nonattainment areas. Section 182 of the Act requires certain States 
to adopt rules for major sources of VOC for which the EPA issues CTG. 
Therefore, to estimate the number of sources in ozone nonattainment 
areas potentially affected by a CTG, we assumed that minor sources 
would not be subject to RACT and, thus, not be covered by the CTG. In 
contrast, a regulation affecting the manufacturers, processors, 
distributors, or importers of a product could potentially result in VOC 
emission reductions at all facilities that use the product, regardless 
of size. Therefore, we assumed that all facilities using the product in 
ozone nonattainment areas would be affected by a national regulation.
    We estimated the number of potentially affected facilities under 
each regulatory option (Docket No. A-96-23). In doing so, we relied on 
estimates of the number, size, and location of facilities from data 
developed to support NESHAP and CTG for these categories. To determine 
if facilities were ``major'' sources of VOC affected by the CTG, we 
estimated VOC emissions based on both coating usage and other sources 
of VOC emissions. We estimated that fewer wood furniture manufacturing 
and shipbuilding and ship repair facilities would be covered by CTG 
than by a national regulation because some facilities do not use enough 
coatings to be major sources of VOC. We estimated that all aerospace 
facilities are major sources of VOC and, therefore, that all such 
facilities would be affected by either a CTG or a regulation.
    To estimate the respective VOC emission reductions from a CTG or a 
regulation, we assumed that the States would adopt and the entities 
affected by each of these control strategies would comply with, the 
recommended VOC limits and equipment and work practice standards 
specified in the CTG or regulation. The estimated emission reductions 
are described in Docket No. A-96-23.
    Although fewer wood furniture facilities would be affected by a CTG 
than a regulation, as described in the proposed determination and 
docket, in ozone nonattainment areas we estimated that VOC reductions 
per facility would be greater with a CTG and account for greater 
overall VOC emission reductions compared to a national regulation. 
Similarly, we estimated that the emission reductions for each aerospace 
facility are greater with a CTG than a regulation, thereby resulting in 
greater overall VOC emission reductions from a CTG. We estimated the 
emission reductions for each shipbuilding and ship repair facility to 
be comparable for either a CTG or a regulation. As noted above, a 
national regulation can achieve emission reductions at all sources 
whereas a CTG will achieve reductions at major sources in most 
nonattainment areas. Therefore, we estimated greater potential emission 
reductions from a regulation for this product category since more 
shipbuilding facilities would be affected by a national regulation than 
by a CTG. However, as indicated in the above response to ``Emission 
Reductions Attributed to CTG,'' we were not able to quantify 
completely, and therefore did not give full credit for, the estimated 
amount of reductions from a CTG for shipbuilding and ship repair 
coatings. The estimated VOC emission reductions from a CTG and a 
national regulation were, however, comparable even without quantifying 
and allocating the precise amount of projected VOC reductions from a 
CTG.
    As noted in the proposed determination, the numerical amount of 
emission reductions is not the sole relevant factor in determining 
whether a CTG will be substantially as effective as a regulation. We 
believe that a CTG will be substantially as effective as a regulation 
in reducing VOC emissions from each of these three categories based on 
consideration of the following:
     Estimates of VOC emission reductions.
     The product's distribution and place of use.
     The most effective entity to target in order to control 
VOC emissions.
     Consistency with other control strategies.
    For each of these three categories we have considered these factors 
as part of our analysis. With respect to the amounts of emission 
reduction possible, we have concluded that the CTG will probably 
provide more reductions than a regulation for wood furniture coatings 
and aerospace coatings and will probably provide comparable reductions 
for shipbuilding and ship repair coatings. We have also examined the

[[Page 37781]]

distribution and typical place of use for these products. Unlike other 
categories of products such as personal care products, these coatings 
tend to be used by a relatively small number of large commercial 
facilities, rather than by a large number of small users. This pattern 
of use and distribution makes it more feasible to focus upon VOC 
emission control at the point of use rather than upon reformulation at 
the place of manufacture. The EPA or States can thus more effectively 
assure compliance and enforce VOC emission controls for these products 
through a CTG than for some other product categories.
    Finally, we do not contend that facilities excluded from coverage 
under the CTG approach will not contribute to VOC emissions. We agree 
that a CTG will not cover all sources and, therefore, that emissions 
from unaffected sources will not be subject to control under rules 
reflecting the CTG's presumptive RACT control level. We remain 
concerned about these VOC emissions. In enacting section 183(e), 
Congress recognized that even small amounts of emissions from a large 
number of small sources can, in the aggregate, contribute significantly 
to ozone nonattainment. The purpose of our regulatory program under 
section 183(e) is to achieve meaningful aggregate VOC emission 
reductions from the many sources reflected on the list of categories of 
consumer and commercial products identified for regulation. However, we 
must utilize the regulatory tools provided in the statute. As discussed 
above, section 183(e) allows the EPA to promulgate national regulations 
or to issue CTG for each product category. Under either approach, we 
cannot prevent all VOC emissions. Instead, we must choose the method we 
deem most appropriate to achieve necessary VOC reductions from each 
product category. We have concluded for the reasons stated above that 
CTG are the most effective mechanism to obtain VOC emission reductions 
from the product categories covered by today's final determination and 
that national regulations are the most effective mechanisms for some 
other product categories. This should not suggest that we believe that 
any remaining VOC emissions under either approach are not significant. 
For purposes of today's final action the determination is which of the 
two statutorily provided alternatives will best achieve necessary VOC 
emission reductions for these three product categories.

III. What is our Final Action?

    We have made our final decision to list wood furniture 
manufacturing coatings, aerospace coatings, and shipbuilding and ship 
repair coatings for regulation in the first group of consumer and 
commercial product categories to be regulated under section 183(e) of 
the Act. We have determined that CTG are substantially as effective as 
regulations under section 183(e) of the Act in reducing VOC emissions 
from wood furniture manufacturing, aerospace, and shipbuilding and ship 
repair coatings which contribute to violations of the ozone NAAQS. We 
based this determination on a comparison of existing CTG and projected 
national regulations. For CTG, we utilized the final wood furniture 
manufacturing CTG (61 FR 25223, May 20, 1996), the final aerospace CTG 
(63 FR 15006, March 22, 1998), and the final shipbuilding and ship 
repair CTG (61 FR 44050, August 27, 1996). For national regulations, we 
estimated the level of control possible for each product category. As a 
result of this comparison, we have concluded that CTG are substantially 
as effective as national regulations to obtain reductions of VOC 
emissions which contribute to ozone in areas which violate the ozone 
NAAQS. Accordingly, we have determined that we may issue CTG in lieu of 
national regulations for these three product categories.

IV. Administrative Requirements

A. Docket

    The docket is an organized and complete file of all the information 
submitted to or otherwise considered by the EPA in the development of 
this proposed determination. The principal purposes of the docket are: 
(1) to allow interested parties to identify and locate documents 
readily so that they can intelligently and effectively participate in 
the rulemaking process, and (2) to serve as the record in case of 
judicial review (section 307(d)(7)(A) of the Act).

B. Paperwork Reduction Act

    This action does not involve any information collection 
requirements subject to an Office of Management and Budget (OMB) review 
under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

C. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA 
must determine whether regulatory actions are significant and, 
therefore, subject to OMB review and the requirements of the Executive 
Order. The Executive Order defines ``significant regulatory action'' as 
one that is likely to lead to a rule that may:
    (1) have an annual effect on the economy of $100 million or more, 
or adversely and materially affect a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety in 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.
    Pursuant to the terms of Executive Order 12866, the EPA has 
determined that this action is a ``significant regulatory action'' 
because it raises novel legal or policy issues arising out of legal 
mandates. As such, the EPA submitted this action to OMB for review. Any 
changes made in response to OMB suggestions or recommendations are 
documented in the public record.

D. Executive Order 12875: Enhancing 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 unless EPA consults with those governments. If EPA 
complies by consulting, Executive Order 12875 requires EPA to provide 
to OMB 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, 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 action does not create a mandate on State, local, or tribal 
governments. The action does not impose any new enforceable duties on 
these entities. Accordingly, the

[[Page 37782]]

requirements of section 1(a) of Executive Order 12875 do not apply to 
this action.

E. Regulatory Flexibility Act/Small Business Regulatory Enforcement 
Fairness Act of 1996

    The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601, et 
seq.), as amended by the Small Business Regulatory Enforcement Fairness 
Act (SBREFA) of 1996, requires the EPA to give special consideration to 
the effect of Federal regulations on small entities and to consider 
regulatory options that might mitigate any such impacts. The EPA is 
required to prepare a regulatory flexibility analysis and coordinate 
with small entity stakeholders if the EPA determines that a rule will 
have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small government jurisdictions.
    The EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with today's action 
because it does not impose any new requirements on small entities. 
Today's action is a final listing decision and final determination that 
already existing CTG are substantially as effective as regulations to 
achieve VOC emission reductions. Because these CTG already exist and 
those entities required to comply with these CTG are already obligated 
to do so, today's decision imposes no new requirements on small 
entities. The EPA has likewise determined that today's action will not 
have a significant economic impact on a substantial number of small 
entities within the meaning of the RFA because the final decision to 
list these categories of products for regulation and the determination 
that CTG are substantially as effective as national regulations in 
reducing VOC emissions which contribute to ozone levels in areas which 
violate the NAAQS for ozone will impose no new obligations on small 
entities.
    In addition, EPA notes that the determination that CTG are 
substantially as effective as regulations for control of VOC emissions 
from these product categories will not have an impact on small entities 
as contemplated by the RFA. The EPA does not directly regulate any 
small entities through issuance of CTG. Instead, EPA issues CTG to 
provide States with guidelines on appropriate RACT-based rules to 
obtain VOC emission reductions from the affected sources within certain 
nonattainment areas. The EPA's issuance of a CTG does trigger an 
obligation on the part of the States to issue State regulations, but 
the States are not obligated to issue regulations identical to the 
Agency's CTG. The CTG issued by the EPA include a presumptive norm to 
guide States, but States may deviate from the CTG with a proper showing 
to the Agency. Thus, States retain discretion in determining to what 
degree to follow the CTG and in determining which sources would be 
covered by the resulting State regulations.

F. Unfunded Mandates Reform Act of 1995

    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 UMRA, the EPA 
must prepare a written statement, including cost-benefit analysis, for 
proposed or final rules with ``Federal mandates'' that may result in 
estimated costs to State, local, or 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 the EPA 
did not adopt the alternative. 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 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.
    The EPA has determined that because the final listing action and 
final determination that CTG are substantially as effective as 
regulations impose no requirements, today's action 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. In addition, EPA has determined that 
today's action does not include regulatory requirements that would 
significantly or uniquely affect small governments. Thus, today's 
action is not subject to the requirements of sections 202, 203, and 205 
of UMRA.

G. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the SBREFA 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 this rule and other required information to the 
United States Senate, the United States 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. Sec. 804(2). This rule will 
be effective July 13, 1999.

H. 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 the EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, business practices, etc.) that are developed or 
adopted by voluntary consensus standard bodies. The NTTAA requires the 
EPA to provide Congress, through OMB, explanations when the EPA decides 
not to use available and applicable voluntary consensus standards.
    This action does not involve any technical standards that would 
require EPA consideration of voluntary consensus standards pursuant to 
Sec. 12(d) of the NTTAA. This action does not establish any such 
standards.

[[Page 37783]]

I. Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the EPA 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 EPA.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. This action is not subject 
to Executive Order 13045 because it is not an ``Economically 
Significant'' rule as defined under Executive Order 12866 and because 
it is based on technology performance and not on health or safety 
risks.

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 OMB, 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 action does not significantly or uniquely affect the 
communities of Indian tribal governments. Today's action does not 
impose any new requirements. Accordingly, the requirements of section 
3(b) of Executive Order 13084 do not apply to this action.

    Dated: July 1, 1999.
Carol M. Browner,
Administrator.
[FR Doc. 99-17493 Filed 7-12-99; 8:45 am]
BILLING CODE 6560-50-P