[Federal Register Volume 73, Number 217 (Friday, November 7, 2008)]
[Rules and Regulations]
[Pages 66184-66187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26614]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 59

[EPA-HQ-OAR-2006-0971; FRL-8738-7]
RIN 2060-AP33


National Volatile Organic Compound Emission Standards for Aerosol 
Coatings

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on the National Volatile 
Organic Compound Emission Standards for Aerosol Coatings, which 
establishes national reactivity-based emission standards for the 
aerosol coatings category (aerosol spray paints) under the Clean Air 
Act (CAA). In this direct final action, EPA is moving the applicability 
and compliance dates for aerosol coatings from January 1, 2009, to July 
1, 2009. EPA is also making initial notifications required due on the 
compliance date, as opposed to 90 days in advance of the compliance 
date.

DATES: This rule is effective on December 29, 2008 without further 
notice, unless EPA receives adverse comment by December 8, 2008, or 
December 22, 2008 if a hearing is requested. If EPA receives adverse 
comment, we will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect.

ADDRESSES: 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: [email protected].
     Fax: (202) 566-9744.
     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. 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-

[[Page 66185]]

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 (202) 566-1744, and the 
telephone number for the Air Docket is (202) 566-1742.

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 (919) 541-2509; facsimile number (919) 541-3470; e-mail address: 
[email protected]. For information concerning the 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: (919) 541-5460, facsimile number (919) 541-3470, e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

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?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a non-controversial action and anticipate no adverse 
comment. The final rule has a provision that allows regulated entities 
to petition EPA to add compounds to Tables 2A, 2B, and 2C--Reactivity 
Factors of subpart E, 40 CFR part 59. It is necessary to move the 
compliance date to allow time to add compounds that are currently used 
in aerosol coatings, but were not included on the list of reactivity 
factors in Table 2 of the final rule. Removing the requirement for a 90 
day advance submittal of initial notifications will make the aerosol 
coatings rule consistent with the requirements of other part 59 rules, 
increasing consistency and clarity for the regulated entities.
    Although we do not anticipate adverse comments on this action, 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. For further information about commenting on this rule, see the 
ADDRESSES section of this document. If EPA receives adverse comment, we 
will publish a timely withdrawal in the Federal Register informing the 
public that this direct final rule will not take effect. We would 
address all public comments in any subsequent final rule based on the 
proposed rule.

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.

[[Page 66186]]

     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?

    In this direct final action, EPA is moving the applicability and 
compliance dates for aerosol coatings, as specified in sections 
59.501(c) and 59.502(a), from January 1, 2009, to July 1, 2009. Also, 
EPA is making initial notifications required in sections 
59.501(f)(3)(i), 59.511(b) and 59.511(e) due on the compliance date, as 
opposed to 90 days in advance of the compliance date. These two actions 
are necessary to allow EPA time to add compounds and applicable 
reactivity factors that are currently used in aerosol coatings but were 
not included on the list in Table 2 of the final rule; allow regulated 
entities sufficient time to develop initial notification reports based 
on revised tables; and, in the case of making initial notifications due 
on the compliance date, make the aerosol coatings rule consistent with 
the requirements of other part 59 rules, increasing consistency and 
clarity for the regulated entities.
    Section 59.511(j) anticipated that there may be some compounds that 
aerosol coating manufacturers are currently using, or intend to use, 
that were not included in Table 2 of the final rule. Section 59.511(j) 
allowed for regulated entities to petition EPA to add such compounds to 
the list. EPA received such petitions, but has not been able to 
finalize the additions to the list with sufficient time to allow 
manufacturers to certify compliance based on the deadlines in the final 
rule. Delaying the compliance date and the date when initial 
notifications are due will allow EPA time to finalize the additions to 
the list through appropriate public notice and comment procedures, and 
allow regulated entities sufficient time to prepare initial 
notification reports, and review and certify their compliance with the 
limits based on the revised tables.

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 any new information collection burden 
because it does not add any new information collection requirements; it 
only moves dates by which regulated entities are required to submit 
information and otherwise comply with the rule. No additional 
information collection is necessary for this action. However, OMB has 
previously approved the information collection requirements contained 
in the existing regulations 40 CFR part 59 under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2266.01. The OMB control numbers for EPA's regulations 
in 40 CFR are listed in 40 CFR part 9.

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 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 today's 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 this action does not create any new requirements or burdens; it 
only moves the dates by which persons are required to submit 
information and otherwise comply with the rule. No costs are associated 
with these amendments.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. As noted above, 
this rule does not create any new requirements or burdens; it extends 
the date by which regulated entities must be in compliance.

E. Executive Order 13132: Federalism

    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

    This action does not have tribal implications, as specified in EO 
13175 (65 FR 67249, November 9, 2000). 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. Thus, EO 
13175 does not apply to this action.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
to those regulatory actions that concern

[[Page 66187]]

health or safety risks, such that the analysis required under section 
5-501 of the EO 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: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (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.
    This final rule does not involve technical standards. Therefore, 
EPA did not consider the use of any voluntary consensus standards.

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

    Executive Order (EO) 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 does not 
affect the level of protection provided to human health or the 
environment. This action extends the compliance date of the rule from 
January 1, 2009, to July 1, 2009, and does not relax the control 
measures on sources regulated by the rule.

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 December 29, 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: October 30, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, Chapter I of the 
Code of Federal Regulations is amended as follows:

PART 59--[AMENDED]

0
1. The authority citation for part 59 continues to read as follows:

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

Subpart E--[Amended]

0
2. Section 59.501 is amended by revising the first sentence of 
paragraph (c) and the first sentence of paragraph (f)(3)(i) to read as 
follows:


Sec.  59.501  Am I subject to this subpart?

* * * * *
    (c) Except as provided in paragraph (e) of this section, the 
provisions of this subpart apply to aerosol coatings manufactured on or 
after July 1, 2009, for sale or distribution in the United States. * * 
*
* * * * *
    (f) * * *
    (3) * * *
    (i) You must submit an initial notification no later than the 
compliance date stated in Sec.  59.502(a), or on or before the date 
that you start manufacturing aerosol coating products that are sold in 
the United States, whichever is later.
* * * * *

0
3. Section 59.502 is amended by revising paragraph (a) to read as 
follows:


Sec.  59.502  When do I have to comply with this subpart?

    (a) Except as provided in Sec.  59.509 and paragraphs (b) and (c) 
of this section, you must be in compliance with all provisions of this 
subpart by July 1, 2009.
* * * * *

0
4. Section 59.511 is amended by revising the first sentence of 
paragraph (b) introductory text and the first sentence of paragraph (e) 
introductory text to read as follows:


Sec.  59.511  What notification and reports must I submit?

* * * * *
    (b) You must submit an initial notification no later than the 
compliance date stated in Sec.  59.502(a), or on or before the date 
that you first manufacture, distribute, or import aerosol coatings, 
whichever is later. * * *
* * * * *
    (e) If you claim the exemption under Sec.  59.501(e), you must 
submit an initial notification no later than the compliance date stated 
in Sec.  59.502(a), or on or before the date that you first manufacture 
aerosol coatings, whichever is later. * * *
* * * * *
[FR Doc. E8-26614 Filed 11-6-08; 8:45 am]
BILLING CODE 6560-50-P