John McKnight \<jmcknight@nmma.org\>

01/29/2007 10:17 AM

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OAR-2004-0357

Hello:

These may have been successfully posted. I didn't see them so here is a
copy.

Thanks

John McKnight, Director

Environmental & Safety Compliance

National Marine Manufacturers Association

444 North Capitol St. NW Suite 645

Washington DC 20001

t-202-737-9757

c-2022573754

f-202-628-4716

jmcknight@nmma.org

January 29, 2007

Docket ID No. EPA-HQ-OAR-2004-0357

Legacy Number A-92-11

U.S. Environmental Protection Agency

Mailcode: 6102T

1200 Pennsylvania Ave. N.W.

Washington, D.C. 20460

> Re: Docket No. EPA-HQ-OAR-2004-0357, National Emission Standards for
> Hazardous Air Pollutants: Shipbuilding and Ship Repair (Surface
> Coating) Operations Direct Final Rule and Proposed Rule, 40 C.F.R.
> Part 63, Subpart II.

Dear Sir or Madam:

The following comments are being offered by the National Marine
Manufacturers Association ("NMMA") in response to the Direct Final Rule
and Notice of Proposed Rulemaking for the National Emission Standards
for Hazardous Air Pollutants: Shipbuilding and Ship Repair (Surface
Coating) Operations ("Shipbuilding MACT"), published in the Federal
Register on December 29, 2006 (71 Fed. Reg. 78,369 and 78,392).

NMMA is the nation's leading recreational marine industry association
representing over 1,500 boat builders, engine manufacturers, and marine
accessory manufacturers. NMMA members collectively produce more than 80
percent of all recreational marine products made in the United States.
With nearly 13 million registered boats and 72 million boaters
nationwide, the boating industry contributes \$30 billion annually to
the U.S. economy.

The NMMA has serious concerns with EPA's proposal to eliminate the
definition of "pleasurecraft" from the Shipbuilding MACT and amend the
definition of "ship" to include *all* marine and fresh water vessels
that are either (1) 20 meters or more in length regardless of the
purpose for which the vessel is constructed or used, or (2) less than 20
meters in length and designed and built specifically for military or
commercial purposes. 71 Fed. Reg. at 78,371.

There are very specific differences between a "pleasure craft," also
known as a "recreational boat," and a "ship." The hull length, however,
is not an

appropriate criterion. One of the principal differences between the two
source categories is the use of the vessel.

During our recent discussions with EPA staff, NMMA was told that it was
EPA's original intent to develop surface coating standards for all
vessels over 20 meters regardless of their intended use. However, the
definitions provided in the final Shipbuilding MACT specifically focus
on the *use* of the vessel as way to define what is covered by the rule.

For example, "ship" is defined in the MACT as

> any marine or fresh-water vessel *[used]{.underline}* for military or
> commercial operations, including self-propelled vessels, those
> propelled by other craft (barges), and navigational aids (buoys). This
> definition includes, but is not limited to, all military and Coast
> Guard vessels, commercial cargo and passenger (cruise) ships, ferries,
> barges, tankers, container ships, patrol and pilot boats, and dredges.
> For purposes of this subpart, pleasure crafts and offshore oil and gas
> drilling platforms are not considered ships.

40 C.F.R. § 63.782 (emphasis added). The definition of ship specifically
refers to the use of the vessel for military or commercial activities.
In addition, "pleasure craft" is defined as

> any marine or fresh-water vessel *[used]{.underline}* by individuals
> for noncommercial, nonmilitary, and recreational purposes that is less
> than 20 meters in length. A vessel rented exclusively to or chartered
> by individuals for such purposes shall be considered a pleasure craft.

40 C.F.R. § 63.782 (emphasis added). Again, the definition of pleasure
craft focuses primarily on the *use* of the vessel. Similarly, the
applicability provision for the Boat Manufacturing MACT provides that
the MACT does not apply to certain coating operations on boats "intended
for commercial or military (nonrecreational) *[use]{.underline}*." 40
C.F.R. § 63.5683(d) (emphasis added). The preamble to the final rule
also explains that "coating operations on vessels *[used]{.underline}*
for commercial and military purposes are covered by the shipbuilding and
repair NESHAP (40 CFR part 63, subpart II)." 66 Fed. Reg. 44,218, 44,220
(Aug. 22, 2001) (emphasis added). These regulations clearly employ
*use*, and not vessel length, as the method of differentiating between
what is a ship and what is a boat. Therefore, EPA's action to change the
definition of ship to apply to any vessel regardless of its purpose
directly conflicts with the agency's practice of defining the sources in
these source categories by use.

Another important distinction between a ship and a recreational boat,
and one that is related to the use of the vessel, is the high gloss
finish. For example, the purpose of the surface coating on a ship is
purely functional, *i.e.*, to prevent rust and fouling of the hull,
while recreational boats are marketed for the luster, beauty and
aesthetic appeal of the hull and deck finish. Thus, the performance
characteristics of the surface coatings used on these different types of
vessels are very distinct. This is just one of the many reasons why a
recreational boat is not a ship, and it is one of the reasons why boat
manufacturing and ship building were identified by EPA as separate
source categories for purposes of Title III of the Clean Air Act
Amendments of 1990 and need to be regulated as separate source
categories for surface coating standards.

As these distinctions demonstrate, recreational boats are not ships and
any surface coating standard for these vessels must be included in the
Boat Manufacturing MACT, Subpart VVVV. In fact, EPA stated in the
preamble to the final Shipbuilding MACT that "\[t\]he \[agency\] did not
intend to include coatings used on pleasure crafts in \[the Shipbuilding
MACT\] standards. Such coatings (applications) will be considered under
the development of the Boat Manufacturing MACT." 60 Fed. Reg. 64,330,
64,333 (Dec. 15, 1995). EPA's proposed revision to the definition of
"ship" to expand the applicability of the Shipbuilding MACT to include
vessels over a certain size regardless of use creates an overlap between
the Shipbuilding MACT and the Boat Manufacturing MACT despite the fact
that the agency acknowledged that the surface coating of recreational
boats belong in the Boat Manufacturing MACT. In addition, the amendment
to the definition of "ship" conflicts with EPA's attempt in the proposal
to amend the applicability of the Shipbuilding MACT to *exclude* the
surface coating of recreational boats. EPA states in its proposed rule:
"\[t\]he only exception is that this NESHAP shall not be construed to
apply to coating activities that are subject to emission limitations or
work practices under the NESHAP for boat manufacturing at 40 CFR part 63
subpart VVVV." 71 Fed. Reg. at 78,372. On one hand, EPA is proposing to
regulate these sources over 65 feet as ships, but on the other hand, EPA
is stating that these vessels are covered under the Boat Manufacturing
MACT regardless of size. EPA's proposed amendment to the definition of
"ship" creates confusion regarding what is included in these two source
categories and should not be adopted.

NMMA is not opposed to EPA developing specific emission standards for
the surface coating of recreational boats over 20 meters, provided that
the EPA follows the requirements set forth, in detail, in Section 112 of
the Clean Air Act to define, identify and survey these sources. Section
112 is very specific in its requirements for promulgating standards for
the control of hazardous air pollutants ("HAPs") from both new and
existing sources. The Clean Air Act requires that the standards reflect
the maximum degree of reduction in emissions of HAP that is achievable
taking into consideration the cost of achieving the emissions reduction,
any non-air-quality health and environmental benefits and energy
requirements. This level of emission control is referred to as the "MACT
floor." The "MACT floor" is the minimum level of control allowed for a
NESHAP and is defined under Section 112(d)(3). For new sources the MACT
floor cannot be less stringent than the emission control practiced by
the best controlled similar source. The standards for existing sources
can be less stringent than standards for new sources, but they cannot be
less stringent than the average emission limitation achieved by the best
performing 12 percent of existing sources (or the best performing 5
sources for categories or subcategories with fewer than 30 sources).

NMMA has identified seven major source boat builders that consistently
build recreational vessels over 20 meters. They are: Burger Yachts,
Palmer Johnson, Trinity, Hatteras Yachts, Viking Yachts, Westport and
Christiansen Yachts. There are also several major source boat builders,
such as Sea Ray Boats and Bertram Yachts, that offer boat models over 20
meters. NMMA has reviewed the docket for the 1995 Shipbuilding MACT and
not one of these recreational boat builders were surveyed in the
development of the MACT floor for the ship building surface coating
standard. The Background Information Document (BID) for the proposed
Shipbuilding MACT specifically states that "\[p\]leasure craft such as
recreational boats and yachts are not included in the definition and are
not typically built or serviced in large-scale shipyards." Surface
Coating Operations at Shipbuilding and Ship Repair
Facilities---Background Information for Proposed Standards, EPA
453-D-94-011a (June 1994) at 3-1. In addition, as noted above, the
preamble for the final Shipbuilding MACT states that surface coating of
"pleasure craft" would be included in the subsequent Boat Manufacturing
MACT. As discussed above, the surface coatings used on recreational
boats have specific aesthetic characteristics and are very different
from those surface coatings used on ships. Any action by EPA to include
recreational boats in the Shipbuilding MACT and subject recreational
boat surface coatings to MACT standards that never included an analysis
of these sources and surface coatings or the economic impact of such
standards is arbitrary and capricious and not supported by the
rulemaking record.

In summary, NMMA is not opposed to EPA developing surface coating
emission standards for recreational boats over 20 meters in the Boat
Manufacturing MACT, and we will work with agency staff to insure that
this is done in a timely manner. Our three significant concerns as EPA
moves forward with any emission standards for recreational boat surface
coatings are:

1.  EPA must adhere to the requirements defined in Section 112(d)(3) and
    properly identify, define and survey sources surface coating
    recreational boats of 20 meters and greater, so that an appropriate
    MACT floor can be determined.

2.  Any surface coating standard for recreational boats over 20 meters
    must be included in the Boat Manufacturing MACT.

3.  Boat builders must be provided with sufficient time to comply with
    any new surface coating standard.

NMMA appreciates the opportunity to comment on this significant proposed
rule. In the event that an extension of the comment period is granted by
EPA, NMMA intends to provide additional comments and data to supplement
today's submission. If the extension is not granted, NMMA will submit
additional data to the record and requests that EPA consider such
submissions timely. If you have any questions or comments, please
contact me at 202-737-9757.

Sincerely,

John McKnight, Director

Environmental & Safety Compliance

cc: Dr. Mohamed Serageldin, OAQPS

Kim Teal, OAQPS