# + 2

(,1 1/,1(

Citation: 73 Fed. Reg. 15604 2008

Content downloaded/printed from HeinOnline (http://heinonline.org) Tue Nov 6 13:48:41 2012

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

### Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 51 and 59 [EPA-HQ-OAR-2006-0971; FRL-8498-6]
RIN 2060-AN69

National Volatile Organic Compound Emission Standards forAerosol Coatings

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: This action promulgates national emission standards for the aerosol coatings (aerosol spray paints) category under section 183(e) ofthe Clean Air Act (CAA). The standards implement section 183(e) ofthe CAA, as amended in 1990, which requires the Administrator to control volatile organic compounds (VOC) emissions from certaincategories ofconsumer and commercial products for purposes of reducing VOC emissions contributing to
ozoneformation and ozone nonattainment. This regulation establishes nationwide reactivity-based standards for aerosol coatings. States have previously promulgated rules for the aerosol coatings category based upon reductions ofVOC by mass; however, EPA has concluded that a national rule based upon the relative reactivity approachwill achieve more reduction in ozoneformation than may be achieved by a mass-based approach for this specific product category. This rule willbetter control a product's contribution to ozoneformation by encouraging the use of less reactive VOC ingredients, rather than treating allVOC in a productalike through the traditional mass-based approach. We are also revising EPA's regulatory definition ofVOC. This revision is necessary to include certain compounds that would. otherwise be exempt in order to account for the reactivecompounds in aerosol coatings that contribute to ozone formation. Therefore, certain compounds that would not be VOC under the otherwise applicable definition will counttowards the applicable reactivity limits under this final regulation.The initial listing of product categories and schedule for regulation was published on March 23, 1995 (60 FR 15264). This final action
announces EPA's final decision to list aerosol coatings for regulation under Group III ofthe consumer and commercial product categoryfor which regulations are mandated under section 183(e) ofthe CAA. DATES: EffectiveDate:This final rule is effective March 24, 2008. The incorporation by reference of certain publications listed in the rule is approved bythe Director ofthe Federal Registeras of March 24, 2008. ADDRESSES: EPA has establisheda docket forthis action under Docket ID No. EPA-HQ-OAR-2006-0971. All documents inthe docket are listed on the www.regulations.govWeb site. Although listed in the index, some information is not publicly available (e.g., Confidential Business Information (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 form. Publicly available docket materials are available either electronically through www.regulations.govor in hard copy at the EPA Docket Center, Docket ID No. EPA-HQ-OAR-2006-0971, EPA Headquarters Library, Room 3334 inthe EPA West Building, 1301 Constitution Ave., NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The EPA Docket Center telephone number is (202) 566-1744, and the facsimile number forthe EPA Docket Center is (202) 566-9744. EPA visitors are required to show photographic identification and sign the EPA visitor log. After processing through the X-ray and magnetometer machines, visitors will be givenan EPA/DC badgethat must be visible at all times.

Informational updates will be provided via the EPA Web site at http://www.epa.gov/epahome/ dockets.htmi as they are available. FOR FURTHER INFORMATION CONTACT: For* questions about the final rule, contact Ms. J. Kaye Whitfield, U.S. EPA, Office ofAir Quality Planning and Standards, Sector Policiesand 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: whitfield.kaye@epa.gov. 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: moore.bruce@epa.gov.
SUPPLEMENTARY INFORMATION:

EntitiesPotentially Affected by This Action. The entities potentially affected by this regulation encompass allsteps in aerosol coatings operations. This includes manufacturers, processors, wholesale distributors, or importers of aerosol coatings for sale or distribution in the United States, or manufacturers, processors, wholesale distributors, or importers who supplythe entities listed above with aerosol coatings for sale or distribution in interstatecommerce in the United States. The entities potentially affected by this action include:

Category NAICS Examples of regulated entities code a

Paint and Coating Manufacturing

................................................. 32551 Manufacturing of lacquers, varnishes, enamels, epoxy coatings, oil and alkyd vehicle, plastisols, polyurethane, primers, shellacs, stains, water repellant coatings. All Other Miscellaneous Chemical Production and Preparation 325998 Aerosol can filling, aerosol packaging services.

Manufacturing.

aNorth American Industry Classification System http://wwW.census.gov/epcd/wwwnaics.htmL

This table is not intended to be exhaustive, but rather provides aguide for readers regarding entities likelyto be affected bythis action. To determine whether you would be affected bythis action,you should examinethe applicable industry description in section I.E ofthe promulgation preamble. If you have any questions regarding the applicability ofthis action to a particular entity, consultthe appropriate EPA contact listed in the FOR FURTHER INFORMATION CONTACT section ofthis notice. Docket.The docket number for the National Volatile Organic Compounds Emission Standards for Aerosols Coating (40 CFR part 59, subpart E) is Docket ID No. EPA-HQ-OAR-2006- 0971. 

### 15604

HeinOnline -- 73 Fed. Reg. 15604 2008Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

World Wide Web (WWW). Inaddition
to being available inthe docket, an electronic copy ofthe final rule is also available onthe WWW. Following the Administrator's signature, acopy ofthe final rule will be posted onEPA's Technology Transfer Network (TTN) policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ltn/oarpg.The TTN provides information and technology exchange in various areas ofair. pollution control.

Judicial Review. Under section 307(b)(1) ofthe Clean Air Act (CAA), judicial review ofthe final rule is available only byfiling apetition for review inthe U.S. Court of Appeals for the DistrictofColumbia Circuit byMay 23, 2008. Under CAA section 307(b)(2), the requirements established by this final action may notbe challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements.

Section 307(d)(7)(B) ofthe CAA further provides that "only an objection
to arule orprocedure which was raised with reasonable specificity during the period for public comment (including
any public hearing) may beraised. duringjudicial review." This section also provides a mechanism for EPA to

convene a proceeding for reconsideration, "if the person raising the objection can demonstrate to EPA that it was impracticable toraise such

an objection [within the period for public comment] or ifthe grounds for such objection arose afterthe period for public comment (butwithinthe time specified forjudicial review) and ifsuch objection is ofcentral relevance to the.
outcome ofthe rule." Any person seeking to make sucha demonstration to EPA should submit a Petition for Reconsideration to the Office ofthe Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with

a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Air and Radiation Law Office, Office of General Counsel (MailCode 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004.

OrganizationofThisDocument.The information presented in this notice is organized as follows:
I.Background

A.The Ozone Problem B.Statutory and Regulatory Background C.Photochemical Reactivity D. Role ofReactivity in VOC/Ozone

Regulations E. The Aerosol Coating Industry H.Summary ofthe Final Standards and Changes Since Proposal A.Applicability of the Standards and Regulated Entities B. VOC Regulated UnderThis Rule C.Regulatory Limits D. Compliance Dates E. Labeling Requirements F. Recordkeeping and Reporting G. Variance H. Test Methods III. Response to Significant Comments

A. Format ofRegulation B. Downwind Effects and Robustness of

Relative Reactivity Scale C. Consideration ofOther Factors in the

Consideration of BestAvailable Control D. Variance, Small Quantity Manufacturers

and Extended Compliance Date E. Additional Reporting Requirements IV. Summary of Impacts

A.Environmental Impacts B. Energy Impacts C. Cost andEconomic Impacts 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 and'Safety Risks H. Executive Order 13211: Actions

Concerning Regulations 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 inl Minority Populations and Low-Income Populations K. Congressional Review Act

I. Background

A. The Ozone Problem

Ground-level ozone, a major component ofsmog, is formed in the atmosphere by reactions ofVOC and oxides ofnitrogen in the presence of sunlight. The formation ofground-level

ozone is a complex process that is affected by many variables.

Exposure to ground-level ozone is associated with a wide variety ofhuman health effects, as well as agricultural
crop loss, and damage ta forests and ecosystems. Controlled human -exposure studies show that acute health effects

are induced by short-term (1 to 2 hour) exposdres (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 (6 to 8 hour) exposures to

ozone (observed at concentrations as low as 0.08 ppm and possibly lower), typically while individuals are engaged in moderate exertion. Transient effects from acute exposures include pulmonary inflammation, respiratory symptoms, effects on exercise performance, and increased airway responsiveness. Epidemiological studies have shown associations between ambient ozone levels and increased susceptibility to respiratory infection, increased hospital admissions and
emergency room irisits. Groups at increased risk 'ofexperiencing elevated
exposures include active children, outdoor workers, and others who regularly engage in outdoor activities. Those most susceptible to the effects of

ozone include those with pre-existing respiratory disease, children, and older adults. The literature suggests the possibility that long-term exposures to

ozone may cause chronic health effects (e.g., structural damage to lungtissue and accelerated decline inbaseline lung. function).

B. StatutoryandRegulatoryBackground

Under section 183(e) of the CAA, EPA conducted a study ofVOC emissions from the use of consumer and commercial products to assess their potential to contribute to levels ofozone that violate the National Ambient Air Quality Standards (NAAQS) for ozone, and to establish criteria for regulating VOC emissions fromthese products. Section 183(e) ofthe CAA directed EPA
to listfor regulation those categories of products that account for at least 80 percent ofthe VOC emissions, on a reactivity-adjusted basis, from consumer and commercial products in areas that violate the NAAQS for ozone (i.e., ozone nonattainment areas), and to divide the list ofcategories to be regulated into four groups.

EPA published the initial list inthe Federal Register on March 23, 1995 (60 FR 15264). In that notice, EPA stated that it may amend the list ofproducts for regulation, and the groups ofproduct categories listed for regulation, in order
to achieve an effective regulatory
program in accordance with EPA's discretion under CAA section 183(e). EPA has revised the list several times.. Most recently, in May 2006, EPA revised the listto add one product category, portable fuel containers, and
to remove one product category, petroleum dry cleaning solvents. See 71 FR 28320 (May 16, 2006). The aerosol
spray paints (aerosol coatings) category currently is listed forregulation as part of Group III ofthe CAA section 183(e) list.

CAA section 183(e) directs EPA to regulate consumer andcommercial products using "best available controls" (BAC). CAA section 183(e)(1)(A) defines
BAC as "the degree ofemissions reduction thatthe Administrator 

### 15605

HeinOnline -- 73 Fed. Reg. 15605 2008Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

determines, on the basis of technological and economic feasibility, health, environmental, and energy impacts, is achievable through the application ofthe most effective equipment, measures, processes, methods, systems ortechniques, including chemical reformulation, product orfeedstock substitution, repackaging, and directions for use, consumption, storage, or disposal." CAA section 183(e) also provides EPA with authority to use any system or systems ofregulation thatEPA determines is the most appropriate for theproduct category. Under CAA section 183(e)(4), EPA can impose "any system or systems ofregulation asthe Administrator deems appropriate, including requirements for registration and labeling, self-monitoring and reporting, prohibitions, limitations, or economic incentives (including marketable permits and auctions of emissions rights) concerning the manufacture, processing, distribution,
use, consumption ordisposal of the product." Under these provisions, EPA has previously issued national regulations for architectural coatings, autobody refinishing coatings, consumer products, andportable fuel containers.1 2345

For any category of consumer or commercial products, the Administrator may issue control techniques guidelines (CTG) in lieu ofnational regulations if the Administrator determines that such guidance will be substantially as effective as a national regulation in reducing emissions ofVOC which contribute to ozone levels in areas which violate the NAAQS for ozone. In many cases, a CTG can be an effective regulatory approach to reduce "emissions ofVOC in nonattainment areas because ofthe nature ofthe specific product and the uses ofsuchproduct. A critical distinction between a national rule and

a CTG is that a CTG may include provisions that affect the users ofthe products. For other product categories, such as wood furniture coatings and shipbuilding coatings, EPA has previously determined that, under CAA section 183(e)(3)(C), a CTG would be

"'National Volatile Organic Compound Emission Standards for Architectural Coatings" 63 FR 48848, (September 11, 1998).

2 "National Volatile Organic Compound Emission
Standards for Automobile Refinish Coatings" 63 FR 48806, (September 11, 1998).

3 "Consumer and Commercial Products: Schedule for Regulation" 63 FR48792, (September 11, 1998)

4National Volatile Organic Compound Emission Standards forConsumer Products" 63 FR48819, (September 11, 1998).

5"National Volatile Organic Compound Emission Standards forPortable Fuel Containers" 72 FR 8428, (February 26, 2007). substantially as effective as a national rule and, therefore, issued CTGs to provide guidance to States for development ofappropriate State regulations. Mostrecently, EPA determined that a CTGwould be substantially as effective as a national rule for three other Group III categories: Paper, Film and Foil Coating; Metal Furniture Coating; and Large Appliance Coating.6

For the category ofaerosol coatings, EPA has determined that a national rule applicable nationwide is the best system ofregulation to achieve necessary VOC emission reductions from this type of product. Aerosol coatings are typically used in relatively small amounts by

consumers and others on an occasional basis and atvarying times and locations. Under such circumstances, reformulation ofthe VOC content ofthe products is a more feasible way to achieve VOC emission reductions, rather than through aCTG approach that would only affect a smaller number of relatively large users.

Aerosol coatings regulations are already in place in three States (California, Oregon, and Washington), and other States are considering developing regulations forthese products. For the companies thatmarket aerosol coatings in different States, trying to fulfill the differing requirements ofState rules may create administrative, technical, andmarketing problems. Although Section 183(e) does
not preempt States from having more stringent State standards, EPA's national rule is expected to provide some degree ofconsistency, predictability, and administrative ease forthe industry. A national rule also helps States reduce potential compliance problems associated with noncompliant coatings being transported into nonattainment

areas from neighboring areas and neighboring States. A national rule will also enable States to obtain needed VOC emission reductions from this sector in the near term, without having to expend their limited resources to develop similar rules in each State. 7

C.Photochemical Reactivity
There are thousands ofindividual species ofVOC that can participate in a series ofreactions involving nitrogen oxides (NOx) and the energy from

6 "Consumer and Commercial Products: Control Techniques Guidelines in Lieu ofRegulations for Paper, Film, and Foil Coatings; Metal Furniture Coatings; and Large Appliance Coatings" 72 FR 57215, (October 9, 2007).

7Courts have already approved EPA's creation of
national rules under section 183(e). See, ALARM Caucusv. EPA, 215 F.3d 61,76 (D.C. Cir. 2000), cert. denied,532 U.S. 1018 (2001). sunlight, resulting in the formation of

ozone. The impact of agiven species of VOC on formation ofground-level ozone is sometimes referred to as its "reactivity." It is generally understood that not all VOC are equal in their effects on ground-level ozone formation. Some VOC react extremely slowly and changes intheir emissions have limited effects on ozone pollution episodes. Some VOC form ozone more quickly than other VOC, or they mayform more

ozone than other VOC. Other VOC not only form ozone themselves, but also act

as catalysts and enhance ozone formation from other VOC. By distinguishing between more reactive and less reactive VOC, however, EPA concludes that it may be possible to develop regulations that will -decrease

ozone concentrations further or more efficiently than by controlling all VOC equally.

Assigning a value to the reactivity of

a specific VOC species is a complex undertaking. Reactivity is not simply a property ofthe compound itself; it is a property ofboth the compound and the environment inwhich the compound is found. Therefore, the reactivity ofa specific VOC varies with VOC:NOx ratios, meteorological conditions, the mix of other VOC in the atmosphere, and the time interval ofinterest. Designing an effective regulation that takes account ofthese interactions is difficult. Implementing and enforcing such aregulation requires an extra burden forboth industry and regulators,

as those impacted bythe rulemust characterize and track the full chemical composition ofVOC emissions rather than onlyhaving to track total VOC
content as is required by traditional mass-based rules. EPA's September 13, 2005, final rule approving a comparable reactivity-based aerokol coating rule as part ofthe California State Implementation Plan for ozone contains additional background information on photochemical reactivity.8 Recently, EPA issued interim guidance to States regarding the use ofVOC reactivity information in the development of

ozone control measures. 9

1. What Research Has Been Conducted

on VOC Reactivity?

Much ofthe initial work on reactivity scales was funded by the California Air

8 "Revisions to the California State Implementation Plan and Revision to the Definition ofVolatile Organic Compounds (VOC)-Removal of VOC Exemptions for California's Aerosol Coating Products Reactivity-based Regulation" 70 FR 53930, (September 13, 2005).

9"Interim Guidance onControl ofVolatile Organic Compounds in Ozone State Implementation Plans") 70 FR 54046, (September 13, 2005). 

### 15606

HeinOnline -- 73 Fed. Reg. 15606 2008Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations 15607

Resources Board (CARB), which was interested in comparing the reactivity of emissions from different alternative fuel vehicles. Inthe late 1980s, CARB provided funding to William P. L. Carter
at the University ofCalifornia to develop a reactivity scale. Carter investigated 18 different methods of ranking the reactivity ofindividual VOC in the atmosphere using a single-cell trajectory model with a state-of-the-art chemical reaction mechanism.10 Carter suggested three scales for further consideration:

i. Maximum Incremental Reactivity (MIR) scale-an ozone yield scale derived by adjusting the NOx emissions in a base case to yield the highest incremental reactivity ofthe base reactive organic gas mixture.

ii. Maximum Ozone Incremental Reactivity (MOIR) scale-an ozone yield scale derived by adjusting the NOx emission in a base case to yield the highest peak ozone concentration.

iii. Equal Benefit Incremental Reactivity (EBIR) scale-an ozone yield scale derived by adjusting the NOx emissions in abase case scenario so VOC andNOx reductions are equally effective in reducing ozone.

Carter concluded that, ifonly one scale is used for regulatory purposes, the MIR scale is the most appropriate. 1' TheMIR scale is defined in terms of environmental conditions where ozone production is most sensitive to changes in hydrocarbon emissions and, therefore, represents conditions where hydrocarbon controls would be the most effective. CARB used the MIR scale to establish fuel-neutral VOC emissions limits in its low-emitting vehicle and alternative fuels regulation.12 13 Subsequently, Carter has update.I the MIR scale several times as the chemical mechanisms in the model used to derive the scale have evolved with new scientific information. CARB incorporated a 1999 version ofthe MIR scale inits own aerosol coatings rule. The latest revision to the MIR scale was issued in 2003.

Inaddition to Carter's work,there have been other attempts to create

1oCarter, W. P. L. (1994) "Development ofozone reactivity scales for organic gases," J.Air Waste Manage.Assoc., 44: 881-899.

"a"Initial Statement ofReasons forthe California Aerosol Coatings Regulation, California Air Resources Board," 2000.

12California AirResources Board "Proposed Regulations for Low-Emission Vehicles and Clean Fuels-StaffReport and Technical Support Document," State ofCalifornia,Air Resources Board, P.O. Box 2815, Sacramento, CA 95812, August 13, 1990.

13California Air Resources Board "Proposed Regulations forLow-Emission Vehicles and Clean Fuels-Final Statement ofReasons," State of California, AirResources Board, July 1991. reactivity scales. One such effort is the work ofR.G. Derwent andco-workers, who have published articles on a scale called the photochemical ozone creation potential (POCP) scale.' 4 15 This scale

was designed for the emissions and meteorological conditions prevalent in Europe. The POCP scale is generally consistent with that ofCarter, although there are some differences because it

uses a different model, chemical mechanism, and emission and meteorological scenarios. Despite these differences, there is a good correlation ofr2=0.9 between the results ofthe POCP and the MIR scales. 1 e As CARB worked to develop reactivity-based regulations in California, EPA began to explore the implications ofapplying reactivity scales in other parts ofthe country. In developing its regulations, CARB has maintained that the MIR scale is the
most appropriate metric for application in California, but cautioned that its research has focused on California atmospheric conditions and that the suitability ofthe MIR scale for, regulatory purposes in otherareas has
not been demonstrated. In particular, specific concerns have been raised about the suitability ofusing the MIR scale in relation to multi-day stagnation

or transport scenarios or over geographic regions with very different VOC:NOx ratios than those of California.

In 1998, EPA participated in the formation of the Reactivity Research Working Group (RRWG), which was organized to help develop an improved scientific basis forreactivity-related regulatory policies. 16 All interested parties were invited toparticipate. Since thattime, representatives from EPA, CARB, Environment Canada, States, academia, and industry have met in public RRWG meetings to'discuss and coordinate research that would support this goal.

The RRWG has organized a series of research efforts to explore:

i. The sensitivity ofozone to VOC

mass reductions and changes in VOC composition under a variety of environmental conditions;

ii. The derivation and evaluation of reactivity scales using photochemical

14Derwent, R.G., M.E. Jenkin, S.M. Saunders and M.J. Pilling (2001) "Characterization ofthe Reactivities ofVolatile Organic Compounds Using

a Master Chemical Mechanism," J.AirWaste Management Assoc., 51: 699-707..

"5Derwent, R.G., M.E. Jenkin, S.M. Saunders and M.J. Pilling (1998) "Photochemical Ozone Creation Potentials for Organic Compounds in Northwest Europe Calculated with a Master Chemical Mechanism," Atmos. Env., 32(14/15):2429-2441.

"'See http://www.narsto.org/section.src?SID=l 0. airshed models under a variety of environmental conditions;

iii. The development ofemissions inventory processing tools for exploring reactivity-based strategies; and

iv.The fate ofVOC emissions and their availability .foratmospheric reactions.

This research has led to a number of findings thatincrease EPA's confidence inthe abilityto develop regulatory approaches that differentiate between specific VOCon the basis ofrelative reactivity. The firsttwo research objectives listed above were explored in

a series ofthree parallel modeling studies that resulted in fourreports and

onejournal article. 17i819 20 21 EPA commissioned areview ofthese reports to address a series ofpolicy-relevant science questions. 22 In 2007, an additional peer review was commissioned by EPA to assess the appropriateness ofbasing anational aerosol coatings regulation onreactivity. Generally, the peer reviews suppprt the appropriateness ofthe use ofthe boxmodelbased MIR metric nationwide for the aerosol coatings category. The results are available in the rulemaking docket.

The results ofthe RRWG-organized study and the subsequent reviews suggest that there is good correlation between different relative reactivity metrics calculated with photochemical airshed models, regardless ofthe choice ofmodel, model domain, scenario, or averaging times. Moreover, the scales calculated with photochemical airshed models correlate relatively well with the MIR metric derived with a single cell, one-dimensional box model. Prior to the

17 Carter, W.P.L., G.Tonnesen, and G. Yarwood (2003)Investigation of.VOC Reactivity Effects Using Existing Regional Air Quality.Models, Report to American Chemistry Council, Contract SC-20.0- UCR-VOC-RRWG, April 17, 2003.

18Hakami, A., M.S. Bergin, and A.G. Russell (2003) Assessment oftheOzone and Aerosol Formation Potentials (Reactivities) ofOrganic Compounds over the Eastern United States, Final Report, Prepared for California Air Resources Board, Contract No. 00-339, January 2003.

19Hakami, A., M.S. Bergin, and A.G. Russell (2004a) Ozone Formation Potential ofOrganic Compounds in theEastern United States: A Comparison ofEpisodes, Inventories, and Domains, Environ. Sci. Technol. 2004, 38, 6748-6759.

20 Hakami, A., M. Arhami, and A.G. Russell (2004b) Further Analysis ofVOC Reactivity Metrics and Scales, Final Report to the U.S. EPA, Contract #4D-5751-NAEX, July 2004.

21 Arunachalam S., R. Mathur, A. Holland, M.R. Lee, D. Olerud, Jr., and H. Jeffries (2003) Investigation ofVOC Reactivity Assessment with Comprehensive Air Quality Modeling, Prepared for U.S. EPA, GSA Contract # GS-35F-0067K, Task Order ID: 4TCG68022755, June 2003.

2 2Derwent, R.G. (2004) Evaluation and
Characterization ofReactivity Metrics, Final Draft, Report to the U.S. EPA, Order No. 4D-5844-NATX, November 2004.

HeinOnline -- 73 Fed. Reg. 15607 2008Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

RRWG-organized studies, little analysis ofthe robustness ofthe box-model derived MIRmetric and its applicability
to environmental conditions outside California had been conducted. Although these studies were not specifically designed to test the robustness ofthe box-model derived MIR metrics, the results suggest that the MIR metric is relatively robust.

D.Role of Reactivityin VOC/Ozone Regulations

Historically, EPA's general approach
to regulation of VOC emissions has been based upon control oftotal VOC by

mass, without distinguishing between individual species ofVOC. EPA considered the regulation ofVOC by

mass to be thejhost effective and practical approach based upon the scientific and technical information available when EPA developed its VOC control policy.

EPA issued the first version of its VOC coiatrol policy in 1971, as part of EPA's State Implementation Plan 

### (SIP) prepiration guidance.23 In that guidance, EPA emphasized the need to reduce the total mass ofVOC emissions, but also suggested that substitution of

one compound for another might be useful when itwould result in a clearly evident decrease inreactivity and thus tend toreduce photochemical oxidant formation. This latter statementencouraged States topromulgate SIPs with VOC emission substitution provisions similar to theLos Angeles County Air Pollution Control District's (LACAPCD) Rule 66, which allowed

some VOC thatwerebelieved to have low to moderate reactivity tobe exempted from control. The exempt status ofmany of those VOC was questioned afew years later, when research results indicated that, although

some ofthose compounds do not produce much ozone close to the

source, they may produce significant
amounts ofozone after they are transported downwind from urban

areas.

In 1977, further research led EPA to issue a revised VOC policy under the title "Recommended Policy on Control ofVolatile Organic Compounds," (42 FR 35314, July 8, 1977), offering its own,

more limited, list ofexempt organic compounds. The 1977 policy identified four compounds that have very low photochemical reactivity and determined that their contribution to

ozone formation and accumulation could be considered negligible. The

23"Requirements for Preparation, Adoption and
Submittal of Implementation Plans", Appendix B,
36 FR 15495, (August 14, 1971). policy exempted these "negligibly reactive" compounds from VOC emissions limitations in programs designed to meet the ozone NAAQS. Since 1977, EPA has added other compounds to the list ofnegligibly reactive compounds based on new information as ithas been developed. In 1992, EPA adopted a formal regulatory definition ofVOCfor use in SIPs, which explicitly excludes compounds that have been identified as negligibly reactive [40 CFR 51.100(s)].

To date, EPA has exempted 54 compounds orclasses of compounds in this manner. In effect, EPA's current VOC exemption policy has generally resulted in atwo bin system in which
mostcompounds are treated equally as VOC, and are controlled. A separate smaller group ofcompounds are treated

as negligibly reactive, and are exempt from VOC controls.24 This approach

was intended to encourage the reduction ofemissions of allVOC that participate in ozone formation. From

one perspective, it appears that this approach has been relatively successful. EPA estimates that, between 1970 and 2003, VOC emissions from man-made

sources nationwide declined by 54 percent.This decline inVOC emissions has helped to decrease average ozone concentration by 29 percent (based on 1- houraverages) and 21 percent (based on 8-hour averages) between 1980 and 2003. These reductions occurred even though, between 1970 and 2003, population, vehicle miles traveled, and
gross domestic product rose 39 percent, 155 percent anld 176 percent, respectively.25 On the other hand, some have argued that areactivity-based approach for reducing VOC emissions would be more effective than the current mass-based approach. One group ofresearchers conducted a detailed modeling study of the LosAngeles area and concluded that, compared to the current approach,

a reactivity-based approach could achieve the same reductions in ozone concentrations at significantly less cost
or, for agiven cost, could achieve a

24For some analytical purposes, EPA has distinguished between VOC and "highly reactive" VOC, such as in theEPA's initial evaluation of

consumer products for regulation. See. "Final Listing," 63 FR 48792, 48795-6 (Sept. 11, 1998) (explaining EPA's approach); seealso,ALARM Caucusv.EPA, 215 F. 3d 61, 69-73 (D. C. Cir. 2000), cert.denied,532 U.S. 1018 (2001) (approving EPA's approach as meeting the requirements of CAA section 183(e)).

' 25 "Latest Findings on National Air Quality: 2002
Status and Trends," EPA 454/K-03-001, (August 2003); and "The Ozone Report Measuring Progress through 2003," EPA 454/K-04-001, (April 2004); Environmental Protection Agency, Office ofAir Quality Planning and Standards, Research Triangle Park, North Carolina. significantly greater reduction in ozone concentrations. 2 6 The traditional approach to VOC control that focused

onreducing the overall mass of

. emissions may be adequate in some

areas ofthe country. However, EPA's
recent SIP guidance recognizes that approaches to VOC control that differentiate between VOC based on relative reactivity are likely tobe more effective and efficient under certain circumstances. 27 Inparticular, reactivity-based approaches are likely to be important in areas for which aggressive VOC control is a key strategy for reducing ozone concentrations. Such

areas include:

9 Areas with persistent ozone nonattainment problems;

e Urbdnized or other NOx-rich areas where ozone formation is particularly sensitive to changes in VOC emissions;

* Areas that have already implemented VOC reasonably available control technology (RACT) measures and need additional VOC emission reductions.

In these areas, there are a variety of possible ways of addressing VOC reactivity in the SIP development
process, including:

* Developing accurate, speciated VOC emissions inventories.

* Prioritizing control measures using reactivity metrics.

e Targeting emissions ofhighlyreactive VOC compounds with specific control measures.

* Encouraging VOC substitution and composition changes using reactivityweighted emission limits.

The CARB aerosol coatings.rtile is an example ofthis last application ofthe

. concept ofreactivity. CARB's reactivitybased rule for aerosol coatings was designed to encourage the use of compounds that are less effective at producing ozone. It contains limits for aerosol coatings expressed as grams of

ozone formed pergram ofproduct instead ofthe more traditional limits expressed aspercent VOC by mass. EPA approved CARB's aerosol coatings rule

as part ofthe California SIP for ozone. EPA's national aergsol coatings rule builds largely upon CARB's efforts to regulate this product category using the relative reactivity approach.

E. TheAerosolCoatingIndustry

Aerosol coatings include all coatings that are specially formulated and

25 A. Russell,J.Milford, M. S. Bergin, S. McBride, L. McNair, Y. Yang, W. R. Stockwell, B. Croes, "Urban Ozone Control andAtmospheric Reactivity ofOrganic Gases," Science, 269: 491-495, (1995).

27"nterim Guidance on Control ofVolatile Organic Compounds in Ozone State Implementation Plans," 70 FR 54046, September 13, 2005). 

### 15608

HeinOnline -- 73 Fed. Reg. 15608 2008Federal Register

### /Vol. 73, No. 57/Monday, March 24, 2008 /Rules and Regulations

pdcka'ged foruse inpressurized cans. They are usedby both professional and do-it-yourself (DIY)-consumers. The DIY segment accounts forapproximately 80 percent ofall sales. The remainder of aerosol coatings is sold for industrial maintenance and original equipment manufacturer use. Aerosol coatings are used for a number of applications including small domestic coating jobs, field and construction site marking, and touch-up of marks and scratches in paintwork ofautomobiles, appliances and machinery.

. The aerosol coatings industry includes the formulators and manufacturers ofthe concentrated product. These manufacturers may package the product or they may use toll fillers (processors). These toll fillers may work not only with the large manufacturers, but for other coating manufacturers who do not have the specialized equipment necessary to fill aerosol containers. The fillersmay then supply the product to coating dealers, home supply stores, distributors, company-owned stores and industrial
customers.

An aerosol consists ofa gas in which liquid or solid substances may be dispensed. Aerosol coatings are pressurized coatings that, like other coatings, consist ofpigments and resins and solvents. However, aerosol coatings also contain apropellant that dispenses the product ingredients. A controlled
amount ofpropellant in the product vaporizes as it leaves the container creating the aerosol spray. The combination ofproduct and propellant is finely tuned to produce the correct concentration and spray pattern for an effective product.

Aerosol coatings can be packaged in disposable cans forhand-held applications or forus6'in specialized equipment inground traffic/marking applications. As with other coatings, aerosol coatings are available inboth solvent-based and water-based formulations.

In developing the final national rule for aerosol coatings, EPA has used the

same coating categories, and the same definitions forthose categories, previously identified by CARB in its comparable regulation for aerosol coatings. We believe these categories adequately categorize the industry and encompass the range ofproducts included in our own analysis of this' category that we conducted in preparing EPA's Report to Congress (EPA-453/R94-066-A). Use ofthe same definitions and categories has the added benefit of providing regulated entities with consistency between the CARB and national rules. The categories ofaerosol coatings regulated inthe final rule include six general categories and 30 specialty categories. Based on a survey ofaerosol coating manufacturers conducted by CARB in 1997, VOC emissions from the six general categories together with the specialty category ofGround Traffic/Marking Coatings account for approximately 85 percent of the ozone formed as a result ofthe use ofaerosol coatings. These categories are defined inthis regulation and are described inmore detail in the docket to this rulemaking.

There are currently no national regulations addressing VOC emissions from aerosol coatings. California, Oregon and Washington are the only States that currently regulate aerosol coating products and Oregon's and Washington's rules are identical tothe Tier 1 VOC mass-based limits developed by CARB that became effective in 1996. Unlike other EPA or State regulations and previous CARB regulations for aerosol coatings that regulate VOC ingredients by mass inthe traditional approach, the current California regulation for aerosol coatings is designed to limit the ozone formed from VOC emissions from aerosol coatings by establishing limits on the reactivity of the cumulative VOC ingredients of such coatings.

II. Summary of the Final Standards and Changes Since Proposal

This section presents a sumniary of the major features ofthe final rule, as well as a summary ofthe changes made
tothe proposed rule. The reasons for the changes in the final rule-are explained in Section III.

A.ApplicabilityoftheStandardsand Regulated Entities
The final Aerosol Coatings Reactivity Rule (ACRR) will apply to manufacturers, processors, wholesale distributors, or importers ofaerosol coatings used byboth the general population (i.e., the "Do It Yourself" market) and industrial applications (e.g.,
at original equipment manufacturers and other industrial sites).This regulation will apply to distributors, if the name of the distributor appears on the label ofthe aerosol products.

The final rule includes an exemption from the limits inTable 1 ofthe rule for those manufacturers that make a small annual volume of aerosol coating products, i.e., with a total VOC content by mass of no more than 7,500 kilograms ofVOC per year inthe aggregate for all aerosol coating products. EPA notes that an exemption under EPA's national rule foraerosol coatings under section 183(e) does not alter any requirements under any applicable State or local regulations. The regulatory language in this final rule has been changed fromthe proposed rule to clarify the regulated entity thatis responsible forcompliance with each portion ofthe regulation.

The final rule includes a provision in section 59:501(f)that allows foreign manufacturers to qualify for the small quantity manufacturer exemption in section 59.501(e). Although foreign manufacturers are not regulated entities under this rule, some may choose to voluntarily become regulated entities in order to qualify for the small quantity manufacturer exemption. To qualify, the foreign manufacturer must (1) meet the

same 7500-kilogram per year VOC mass limit that domestic small volume manufacturers mustmeet; (2) comply with the same recordkeeping and reporting requirements that domestic manufacturers mustfulfill; and (3) comply with certain provisions in 40 CFR 59.501(f)(3), which are similar to those used in other EPA rules to ensure thatEPA may effectively monitor and implement this rule with respect to foreign entities. 2 8

B. VOC RegulatedUnderThisRule

This rule regulates emissions ofVOC "from aerosol coatings. Because even less

reactive VOC contribute to ozone formation, we are amending the regulatory definition ofVOC for
purposes ofthis rule by adding 40 CFR 51.100(s)(7). As provided inthat new - subsection, any organic compound in the volatile portion ofan aerosol coating is counted towards the product's reactivity-based limit if it: (1) Has a reactivity factor (RF)value greater than that ofethane (0.3), or (2) is used in
amounts greater than 7.3 percent of the product weight inthe product formulatiofn.

Table 2A currently includes those organic compounds we know to be used in aerosol coatings that have an RF value greater than that ofethane (0.3). .Underthe proposed rule, we had a single de minimis threshold that provided that a compound would notbe counted towards the applicable limit, regardless ofits reactivity, ifthe compound represented less than 0.1 percent oftheproduct weight. In the final rule, we have provided a two-part threshold: (1) A 0.1 percent threshold for compounds with an RFvalue greater than0.3; and (2) a 7.3 percent threshold

28See Regulation ofFuels and Fuel Additives:
Baseline Requirements for Gasoline Produced by Foreign Refiners, Final Rule, 62 FR 45,533, 45,537- 38 (August 28, 1997). 

### 15609

HeinOnline -- 73 Fed. Reg. 15609 2008Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

for compounds with an RF value of0.3

or less.

The rationale for the 7.3 percerft threshold is that compounds with an RF value of0.3 or lesswill contribute minimally to ozone formation from this product category. We calculated the 7.3 percent figure as follows. We first determined the maximum RFvalue for

a compound, which is 22.04 (the default value for compounds ofunknown reactivity). We then multiplied that value by 0.1(the proposed percentage threshold for all organic compounds irrespective oftheir RF value), which resulted in a value of2.2. To determine

an appropriate percentage threshold for organic compounds with an RF value of 0.3 or less, we then divided 2.2 by 0.3 (theRF for ethane) which resulted in the 7.3 percent threshold for such compounds. Therefore, in determining compliance with the limits of thisrule, this rule does not require inclusion of de minimis amounts ofingredients taking into consideration the relative reactivity of the compound. As provided in 40 CFR 59.505(e)(2), if in the future, compounds with an RF value of0.3 or less are used in amounts greater than or equal to 7.3 percent of

a particular aerosol coatings product formulation, then those compounds will be counted towards the applicable limits ofthis rule at that time.

The emission limits inthe rule are expressed in terms ofweight ofozone generated from the VOC ingredients per weight of coatingmaterial, rather than the traditional weight ofVOC ingredients per weight (orvolume) of product. EPA has concluded that this approach will reduce the overall
amount ofozone that results from the VOC emitted to the atmosphere from these products, while providing regulated entities with greater flexibility
to selectVOC ingredients for their products. Thisapproach provides incentives to regulated entities to use VOC ingredients that have lower reactivity andthat will therefore generate less ozone.

EPA has revised the list of compounds in Table 2A in orderto include only those compounds actually used as ingredients in aerosol coating products. In addition, EPA has provided

amechanism to add additional compounds to the table ifa regulated entity elects touse them as an ingredient inaerosol coatings.

C.Regulatory Limits
The regulatory limits forthe final rule

are a series ofreactivity limits for six general coating categories and 30 specialty categories of specialty coatings. These reactivity limits are expressed in terms ofgrams ofozone generated per gramofproduct. The reactivity ofeach VOC ingredient is specified inthe table ofvalues included inthe regulation. No changes have been made to theregulatory limits since proposal.

D. ComplianceDates

The final rule requires allregulated entities to comply by January 1, 2009, for all aerosol coating products, except those thatrequire registration under the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 40 CFR 136- 136y) (FIFRA), which are not subject to the requirements ofthisrule until January 1, 2010. The rule also includes

a provision that allows regulated entities to seek a compliance extension ifthey have not previously manufactured, imported, or distributed in California orelsewhere any aerosol coating product that complies with applicable California regulations. This extension would give the regulated entity until January 1, 2011, to comply with the requirements of the final rule.

Beginning onthe compliance date, the regulated erifflties -underthis rule will be required to conduct initial compliance demonstration calculations for all coating formulations manufactured or filled at each oftheir facilities, and to maintain compliance demonstration data for each batch ofaerosol coating. These calculations and the underlying documents must be maintained for at least 5 years after the product is manufactured, processed, distributed, or imported, andmust be submitted to the EPA upon request. The regulated entity
may use formulation data to make the compliance calculations; however, EPA is adopting California AirResources Board Method 310 as the underlying test method (i.e., formulation data must be verifiable with California Air Resources Board Method 310, ifrequested). Facilities are also allowed to use EPA's Test Method 311.

EPA has added a provision allowing the extension ofthe compliance date for FIFRA-registered compounds as a revision tothe proposed rule. This provision was added to the final rule due tothe additional approvals (e.g., approval of labels and formulation changes) thatmustbe obtained forall FIFRA-registered products.

E.LabelingRequirements

The final rule also includes labeling requirements to facilitate implementation and enforcement ofthe limits. Labels must clearly identify the product category orthe category code provided in Table 1,ofthe regulation, the limit for thatproduct category, and the product date code. Ifthe product date is not obvious from the date code,

an explanation ofthe code is required in the initial notification discussed below. In the final rule, EPA has made

a change to allow a regulated entity to develop a facility-specific category code system, ifthe system is explained in the initial notification.

F.RecordkeepingandReporting

The final rule includes arequirement for an Initial Notification from all regulated entities to EPA at least 90 days before the compliance date. This notification will provide basic information about theregulated entity

as well as contact information for the certifying official. In addition, this notification will need to explain the product date code systemused to label products and the category code system, ifthe facility is notusing the default category codes included in Table 1.The Initial Notification must also include VOC formulation data for each aerosol coatings product that is subject to this rule.The formulation data must provide the weight fraction (g compound/g product) for each VOC compound used in theproduct in an amount equal to or greater than 0.1 percent. The notification must also identify any volatile organic compound or mixture that is not currently listed in Table 2A, 2B, or 2C, ifthat compound or mixture will be used in an aerosol coatings formulation. Finally, the notification
must include a statement certifying that all ofthe regulated entity's products will be in compliance with the limits by the compliance date.

The regulated entity is required to submit a revised notification ifthere is

a change in the information in the Initial Notification, with the exception of changes to product formulations. The regulated entity is not required to submit a revised notification ifthe VOC formulations submitted inits Initial Notification change. The regulated entity is required to submit a revised notification ifthe manufacturer, for example, adds a new coating category, changes the product date code system or batch definition, or begins touse a VOC that is not listed in Table 2A, 2B, or 2C.

The regulated entity is required to maintain compliance calculations for each ofits aerosol coatings formulations. Foreach batch ofa particular formulation, theregulated entity must maintain records ofthe date(s) thebatch was manufactured, the volume ofthebatch, andthe VOC formula for the formulation. Records of these calculations must be maintained for 5 years after the product is manufactured, processed, distributed for 

### 15610

HeinOnline -- 73 Fed. Reg. 15610 2008Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

wholesale, or imported for sale or distribution in interstate commerce in the United States. The regulated entity
must supply this information to EPA within 60 days ofa written request. The final rule includes the addition ofa provision that allows for manufacturers

or importers to accept the responsibility for recordkeeping andreporting requirements that would otherwise be required oftheir distributors.

The promulgated rulerequires that
every 3 years, beginning with calendar
year 2011, each regulated entity must submit a triennial report. The triennial report would provide updated VOC formulation data and, for each VOC formulation, the total mass ofeach individual VOC or mixture used as ingredients in the aerosol coatings manufactured, imported, or distributed that year. This information mustbe provided only for the second year ofthe reporting cycle, which in the case ofthe firstreport wouldbe information from 2010. Subsequent reports willbe required atthree year intervals. In other words, a report containing data-from 2013 will be due in 2014, a report containing data from.2016 will be due in 2017, and so forth. EPA intends to provide mechanisms for regulated entities to provide this information through the electronic submission facilities being expanded under the National Emissions Inventory (NEI)
program and will provide additional information and guidance to regulated entities bpfore the firstreport is due. This report has been added to the final ruleto address concerns raised during the public comment period, as explained in section III.E ofthis preamble.

The final rule requires those small manufacturers who qualify for exemption fromthe limits ofTable 1 of subpart Eto make an annual report to EPA providing necessary information and documentation to establish that the products made bythe entity should be exempt.

EPA notes that the contents ofany. reports, including the VOC composition ofthe coatings subject to this rule, are "emissions data" under section 114 of the CAA and EPA's regulatory definition ofsuch term in 40 CFR part 2. As such, this information mustbe available to the public regardless of whether EPA obtains the information through a reporting requirement or through a specific request to the regulated entity. Therefore, such information is not eligible for treatment

as "confidential business information" under 40 CFR 59.516 ofthis rule. G. Variance
The final rule allows regulated entities to submit a written application
to EPA requesting a temporary variance if, for reasons beyond their reasonable control, they cannot comply with the requirements ofthe rule. An approved variance order would specify afinal compliance date and a condition that imposes increments ofprogress necessary to assure timely compliance. A variance would end immediately if the regulated entity failed to comply with any term orcondition ofthe variance. TheAdministrator will provide special consideration to variance requests fromregulated entities, particularly small businesses that have not marketed their products in

areas subject to State regulations for these products prior to this rulemaking. EPA notes that a variance under EPA's national rule for aerosol coatings under section 183(e) does not alter any requirements under any applicable State

or local regulations. No changes were made tothis section since the proposal.

H. TestMethods

Although regulated entities may use formulation data to demonstrate compliance with the reactivity limits, EPA concludes it is also necessary to have test methods in place that can be used to verify the accuracy ofthe formulation data. Therefore, we have included two test methods that may be used byregulated entities or EPA to determine compliance with the reactivity limits. In those cases where the formulation data and test data are not in agreement, data collected using the approved test methods will prevail. Regulated entities or regulatory agencies
may use either California Air Resources Board Method 310-Determination of Volatile Organic Compounds in Consumer Products and Reactive Organic Compounds in Aerosol Coating Products, orEPA Method 311-Analysis ofHazardous Air Pollutant Compounds in Paints and Coatings inPaints and Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, appendix A) to determine the reactive organic compound content ofan aerosol coating. California Air Resources Board Method 310 includes some test procedures that arenot required to determine the VOC content ofaerosol coatings; for example, California Air Resources Board Method 310 incorporates EPA Method 24 for determining the VOC content ofa coating. We have identified those sections ofCalifornia Air Resources Board Method 310 that are not required for compliance demonstration purposes in the regulation. EPA Method 311- Analysis ofHazardous AirPollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, appendix A) was originally developed for liquid coatings, so it does not include provisions for the collection of the propellant portion of an aerosol coating. Therefore, those choosing to

use EPA Method 311-Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into aGas Chromatograph (40 CFR part 63, appendix A)must separate the aerosol propellant from the coating using either ASTM D3063-94 orASTM D 3074-94. There were no changes to the test methods inthe final rule.


### III. Response to Significant Connents

During the public comment period,

we received a total of 18 comment letter's. Ofthese, seven were brief letters in support ofthe proposed regulation. A
summary ofthe most significant
comments is presented below. A summary ofall comments received on this rule, as well as complete responses to each ofthese comments, are presented inthe docket (EPA-HQOAR-2006-0971).

A. Formatof Regulation
Several commenters discussed the use of'a reactivity-based rule versus a massbasedrule. Two commenters fully supported the reactivity-based rule, While five commenters raised some

concerns over some aspects ofthis approach.

The commenters supporting the rule generally supported the use ofa reactivity-based approach both nationally and in California. One
commenter statedthat EPA did a good job in evaluating thereactivity regulation in California and the feasibility of making it apply nationwide, calling it a "bold step forward inthe arena ofair quality regulations." Another commenter stated

. that "[tihe rule is an important advancement in the use ofreactivitybased emissions regulations forVOC." The commenter provided the following points in support ofthis rule and the future use ofreactivity-based VOC emission limits in otherconsumer product and coating standards:

1.Reactivity-based VOC emission regulations are more appropriate and effective for addressing the environmental

concern ofinterest, ozone formation potential.

2.Thisnational proposed rule isbased on
an established CARB regulation for aerosol coatings which has already been approved by EPA and in usefor several years. 

### 15611

HeinOnline -- 73 Fed. Reg. 15611 2008

### Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

3.Reactivity-based VOC emission regulations provide product formulators with

more options for meeting environmental performance standards whileproviding technically feasible product performance, and stimulating future product development enhancements.

4. There is evidence thatlower mass-based VOC limits in some products maybe leading
to the increased use ofmore photochemicall3 reactive VOC, eliminating some ofthe anticipated environmental benefit (ozone reduction) ofthese regulations, and possibly increasing the actual ozone formation potential ofthe products themselves.

This commenter also stated thatthe reactivity-based approach is consistent with EPA's September 2005 "Interim Guidance on Control ofVolatile Organic Compounds in Ozone State Implementation Plans," which specifically "encourages States to consider reent scientific information

on the photochemical reactivity of volatile organic compounds in the development of state implementation plans designed to meet the national ambient air quality standards for ozone [70 FR 54046-54051; September 13, 2005]."

The commenter concluded that reactivity-based VOC standards should
not be considered "only as a supplement to mass-based approaches, but as a scientifically valid and appropriate means for controlling ozone formation." The commenter also stated thatin its approval ofthe CARB regulation, EPA appropriately stated that the reactivity-based rulewill improve the SIP in part by "creating an incentive forthe use ofsolvents with relatively low contribution to ozone formation [70 FR 1642]." The
commenter further stated that some VOC mass-based limits in the previous version ofCARB's aerosol coatings rule "presented particularly difficult reformulation challenges" for product manufacturers [70 FR 1642]. The
commenter stated that EPA correctly noted that CARB's regulation will
preserve the air quality benefits ofits previous rule, while at the same time allowing manufacturers greater flexibility in reformulating their products, byreplacing existing massbased VOC limits for aerosol spray coatings with reactivity-based limits that are designed to achieve equivalent air qualitybenefits [70 FR 1642]. The
commenter concluded that expanding this aerosol coating regulation to the res ofthe United States expands the' benefits ofthisworking reactivity-based VOCregulation to other areas ofthe United States where ozone formation is

aconcern, while allowing aerosol coating manufacturers to develop single formulations forthe entire United States.

Several commenters raised concerns

over some aspects ofan approach based

on reactivity. These commenters stated that a reactivity-based approach may have merit, but only ifEPA first addresses numerous "unanswered questions" about the potential adverse impact ofsuch an approach on other equally, ifnot more, important components of air quality management programs, such as the effect on ambient fine particulate matter (PM2.5)levels and airtoxics. The commenters also raised the issues ofdownwind ozone impacts and enforceability. One commenter provided an extensive history ofthe evolution ofEPA's use ofreactivity, noting that EPA is not obligated to issue

a reactivity-based regulation, stating that therequired reactivity-based portion of EPA's obligation under § 183(e) was fulfilled during the listing process. The
commenter questioned whether EPA had adequately addressed all possible impacts ofareactivity-based approach before proceeding with the proposal.

Some commenters advocated that EPA should issue a mass-based rule, rather than one based on reactivity. The
commenters pointed tothe uncertainty ofthe use ofa reactivity-based approach, including concerns over the toxicity ofpollutants that are used as *substitutes,thepotential interrelationship with PM2
.5 issues, downwind ozone and enforceability

concerns. The comnienters concluded that, given these concerns, and the fact that a fully implemented rule only yields abenefit equivalent to a 19 percent reduction ofVOC, that EPA may be "better served to establish a National rulebased onthe 1996 CARB rule amended with 2002 mass-based limits known tobe feasible." The commenters stated that this is the approach used by
two other States, Oregon and Washington, that have aerosol coating rules. One commenter further stated that because these limits would be feasible for allmanufacturers, the small manufacturer exemption, the extended compliance date, and the variance provisions would all be unnecessary. Therefore, the commenter concluded that a mass-based approach would achieve the most reductions and would allow EPA timeto conduct the required investigations to address issues and not "rely on expectations that may not hold
t to be true." One commenter stated that "EPA appears to have neglected to consider an approach that combines mass-based and reactivity-based components."

EPA considered these comments, but

we still conclude that thereactivitybased approach forthis rule is appropriate. Under CAA section 183(e), EPA is charged with developing regulations that implement BAC for the
purposes of decreasing ground-level'

ozone formation. For aerosol coatings, EPA has determined that the proposed reactivity-based regulation remains BAC. The reactivity-based limits are based on those adopted in CARB's reactivity-based rule and are desigped to achieve a comparable decrease in ozone formation that would havebeen achieved by CARB's 2002 mass-based limits, which are lower than CARB's 1996 mass-based limits. Moreover, while some of CARB's 2002 mass-based limits are now considered unfeasible and are not in force, the reactivity-based limits are now in effect andmany manufacturers are producing and selling compliant products. Oregon and' Washington have adopted CARB's 1996 mass-based limits. However, even if these limits were lowered for some categories tothe 2002 limits, where deemed feasible, this hybrid approach proposed by the commenters would not achieve the same level ofozone decrease thatthe reactivity-based limits will. Furthermore, it is not clear that manufacturers who are not currently subject tothe CARB reactivity-based limits would have any more orless difficulty meeting the hybrid mass limits than they wouldmeeting the reactivity-based limits inthe proposed rule. In other words, any mass-based rule would also likely include provisions for small businessestand other variances.

The determination ofBAC depends

on EPA's determination that the proposed relative reactivity factors can be used toreasonably predict the changes inthe ozone formation that will

occur due to changes in the emissions from this source category. After thoughtful consideration ofthe available research, EPA has concluded that this determination isjustified. EPA has followed and contributed tothe development ofthe science underlying reactivity-based regulations since such

an approach was considered in the early
1990s.EPA's position on the acceptability ofreactivity scales has evolved along with the science. The
most recentresults of research performed under the RRWG, cited in section I ofthis preamble, provide evidence that therelative reactivity factors in the proposed rule are reasonably robust over awide variety of environmental conditions. Concerns about the potential for increased ozone downwind are addressed in a separate section below. 

### 15612

HeinOnline -- 73 Fed. Reg. 15612 2008Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

Although recent research suggests that other reactivity scales may more accurately represent thebehavior of

ozone in current air quality models, it is not clear that emission limits based

on these scales would be achievable or that the use ofa different scale would lead to significantly different ozone decreases fromthis source category. Furthermore, emission limits based on a different scale than thatused by CARB wouldlead to increased costs to comply. Therefore, EPA has determined that use ofthe proposed relative reactivity factors is reasonable and will lead to net decreases ofground-level

ozone. The consideration offine particle formation, toxics exposures, and stratospheric ozone depletion are addressed below in a separate section,

as are concerns about the complexity of enforcement.

One commenter disagreed with EPA's
statement in the preamble that this regulation was needed because there are

areas ofthe country thatneed VOC substitution strategies to address nonattainment issues. The commenter argued that there are many opportunities to reduce VOC mass by implementing readily available and
proven programs "before embarking into VOC substitution." The commenter continued thatmost nonattainment

areas around the country have not taken aggressive steps to limit VOC. Therefore, the commenter contended that there are significant reductions that canbe obtained from programs, such as implementing RACT or updating decades-old RACT programs, fuel strategies, and otherarea source regulations like consumer products, architectural coatings, and Stage I vapor recovery.

EPA disagrees with this conmenter. Several ofthe commenters onthe proposed rule inaccurately portray the choicebetween mass-based emission limits andreactivity-based emission limits as achoice between emission reductions and emission substitutions. For aerosol coating products, any new emission limitation, whether it is massbased or reactivity-based, will be achieved by reformulating the product, thereby changing the composition of the associated emissions. With a reactivitybased limit, the reformulation will be guided by relative reactivity factors that will encourage manufacturers to use lower reactivity compounds and will limit the overall ozone formation associated with the product.All VOC components with an RF value greater than 0.3 are included in the calculation. With a mass-based limit, manufacturers
may shift to more powerful solvents,

some ofwhich mayoften be higher in. reactivity, and which cumulatively may contribute more to ozone formation. There is no explicit limit on the ozone formation associated with the product. The precise impacts (on ozone, fine particles, air taxics, or other environmental endpoints ofconcern) of either reactivity-based ormass-based emission limits are difficult to predict given the reformulations that may be used to achieve the limits. However, reactivity-based limits derived using a reasonable set ofrelative reactivity factors provide the appropriate incentives to shiftformulations to compounds with lower reactivity, and limit the overall ozone contribution of the regulated products.

The commenter's assertion that reactivity-based regulations should not be pursued until other mass-based VOC control measures, including RACT, have been implemented orstrengthened is
nota factor in the decision ofhow EPA fulfills its obligations under CAA section 183(e) to implement best available controls. However, EPA does believe thattraditional mass-based VOC control measures continue to be effective tools for addressing VOC contributions to ozone nonattainment problems in many situations and that reactivity-based control measures are most useful where mass-based controls have reached the limits oftechnological feasibility. In'the case of aerosol coatings, EPA has determined that it is possible to use reactivity-based limits to go beyond what is achievable with mass-based limits, and therefore, has found reactivity-based limits to be BAC for this product category.
B. DownwindEffects andRobustnessof RelativeReactivityScale

Several commenters discussed the
state ofthe science ofreactivity and whether EPA's statements about the science ofreactivity were correct. Some
conmenters questioned EPA's statement that the expected realistic changes in the formulation ofaerosol products are unlikely to result in noticeable increases in ozone downwind ofthe source, stating that EPA does not know this to be the case. The commenters asserted that this issue is important "for the simple factthat ozone nonattainment

areas inthe Northeastern United States have the highest recorded ozone values downwind ofurban centers, and this effort has the potential to increase ozone in thevery place where ozone reductions are most needed, confounding the ozone attainment plans that are being developed by the states." The commenters also stated that increased ozone downwind from urban
centers could result in more impacts to agricultural and forested areas of the country.

One commenter further stated that the
statements made in the preamble related
to future ozone levels seem to be based

on expectations rather than demonstrations based onmodeling efforts. The commenter encouraged EPA, given the potential for further tightening of the current ozone NAAQS,
to perform studies demonstrating that there would be no increase in downwind ozone "so that the implementation ofthis rule does not

worsen ozone nonattainment problems found in the Northeastern United States."

EPA recognizes the commenters'

concerns about downwind ozone formation but has concluded that the VOC reformulations resulting from this reactivity-based regulation will reduce overall ozone formation and exposure. First, any enhancements of downwind

ozone caused by upwind substitution of larger amounts oflessreactive VOC are expected to be smaller than the concurrent reductions ofupwind ozone. Carter et al.(2003), inmodeling largescale VOC substitution scenarios, found larger local ozone reductions and smaller downwind ozone increases. Similarly, Arunachalam etal. (2003) found that "high-versus-low reactivity substitution" is "an effective strategy for reducing high levels ofozone," especially in, or downwind of, urban

areas. In a modeling exercise conducted
to inform thisrulemaking, Luecken (2007; see docket) substituted lower reactivity VOC for higher reactivity VOC in the Chicago area and found the resulting downwind ozone disbenefits
to be much smaller thanthe upwind

ozone benefits. In general, upwind

ozone reductions are expected to occur in or near densely populated urban
areas, where ozone levels are highest, thus reducing overall population
exposure. Second, downwind areas, particularly remote, rural, or suburban

areas, are likely to be NOx-limited (Sillman, 1999; AQCD, 2006), thus restricting ozone formation from small additional amounts ofupwind anthropogenic VOC. The implementation ofother regulations such as the Clean Air Interstate Rule will likely reduce NOx further in such

areas. Third, in downwind areas that
may be VOC-limited, the simultaneous VOC substitutions occurring in these

areas may counterbalance, to some extent, the introduction ofVOC from upwind. Fourth, the reductions in upwind reactivity and ozone formation

are likely to reduce the.direct transport of ozone and ozone precursors such as aldehydes downwind from urban areas. 

### I 15613

HeinOnline -- 73 Fed. Reg. 15613 2008

### Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

EPA agrees that modelihg can be useful for demonstrating the impacts of regulatory changes. While EPA did not perform nationwide modeling specific
tothis regulation, the three studies cited above support the EPA's contention that downwind ozone increases are likely to be small, especially compared to upwind ozone reductions. Thus, while additional modeling will continue to shed light onVOC reactivity, there is an adequate basis for proceeding with this reactivity-based regulation. As the science evolves, EPA will continue to invest and participate inresearch into VOC chemistry and the use ofreactivity

measures.

One commenter stated that, while reactivity-based approaches may provide significant benefits "where the science is sufficiently robust to ensure thatthe expected benefits are achieved in practice," the commenter stated that, based on theproposal, "it is not clear that EPA has adequately addressed all the relevant technical issues or that this reactivity-based regulation is appropriate at this time." The
commenter notes that EPA must adequately (and accurately) account for the differences in the various environmental conditions (and resulting variations in VOC behavior)throughout the United States. The commenter stated that the complexity ofthe interactions ofVOC in the ambient airmakes it extremely difficult to accurately predict the actual VOC forming capacity ofa chemical compound. The commenter stated that "assuming an essentially uniform "reactivity" for a compound used in any coating product anywhere in the country presents the potential for

an inaccurate assessment ofthe actual VOC-related effects oftheproduct nationwide." The commenter further stated that "EPA's half-hearted assertion in the proposed rule thatits scientific understanding ofVOC reactivity has evolved sufficiently to allow it to reliably and accurately predict the behavior ofindividual species of VOC in a regulatory context is far from unequivocal."

Another commenter had a different position and assertedthat:

Controlling VOC emissions from coatings and consumer-products based on photochemical reactivity isa scientifically sound and appropriate means ofaddressing

ozone formation potential. There can be

enormous differences in the capacity of various VOC toreact in the atmosphere to formtropospheric ozone. Asreflected in EPA's proposal, scientific research shows thatphotochemical reactivity hasa more direct correlation tothe ozone-forming potential (i.e., potential air quality impacts) ofVOC emissions than does a simple massbased measure ofemissions. The impact of mass-based VOCemissions reductions on
ozone formation potential isuncertain and

can vary greatly depending onthe VOC substitution decisions made to meet specific

mass limits.Reactivity-based VOC emissions limits, by considering therate and mechanism ofphoto oxidation inthe troposphere, arereflective oftheactual processes thatlead to ozone formation. Relative photochemical reactivity thus provides amore rigorous scientific approach to assessing an individual compound's potential contribution to ozone accumulation than does consideration ofits mass alone.

Accordingly, this commenter concluded that EPA's approach is scientifically sound and represents a significant step forward inaerosol coatings regulation.

EPA recognizes the concerns raised by the commenters, but agrees with the latter commenter. EPA acknowledges the difficulty in assessing reactivity in widely different environmental conditions. As noted inthe proposal, a compound's reactivity can depend on the VOC:NOx ratio, meteorological conditions, andthe mix ofotherVOC. Many different methods have been suggested for measuring the reactivity of individual compounds. EPA has chosen the MIR scale, which is an ozone yield scale derived by adjusting the NOx emissions in a base case simulation to yield the highest incremental reactivity ofthe base reactive organic gas mixture. These are environmental conditions where ozone production is most sensitive to changes in VOC emissions and, therefore, where VOC controls would be most effective. These tend to reflect conditions in or nearurban areas where VOC emissions are most likely to produce ozone, and thus EPA has determined the MIR scale is the most appropriate forregulatory purposes (see also Carter, 1994). Research conducted under the auspices ofthe RRWG has shown good correlation between the MIR scale and other reactivity scales, including those coiiputed with photochemical airshed models. Also, this research has supported the nationwide applicability ofreactivity scales, and peer reviews ofthe RRWG reports have specifically supported the

use ofthe MIR scale for a nationwide aerosol coatings regulation (see docket). For more detail, referto the proposal (72 FR 38952). As noted above, EPA will continue to invest andparticipate in research into VOC chemistry and the

use ofreactivity measures.
C. Consideration ofOtherFactorsin the Considerationof BestAvailable Controls
Several commenters presented arguments for numerous factors that shouldbe included in EPA's determination ofBAC foraerosol coatings. These factors include the potential impact on ambient PMlevels, the potential for increase in emissions of certain hazardous airpollutants (HAP), and potential stratospheric ozone impacts. In addition, one commenter stated that EPA should considerthe impact ofthe rule on agricultural and forest areas.

The commenters concerned with contribution to PM levels were primarily concerned about the aerosol fraction ofmeasured ambient PM2. 5 . The
commenters stated thatEPA should consider "negative co-effects" ofthe rule onfine particulate matter, because the substitution with compounds with lowreactivities could increase the mass ofemissions oflow reactive compounds, which could impactboth primary and secondary ozone formation. The commenter statedthat this would be even more important inthe near future, as the PM2. 5 NAAQS is revised and given the fact thatPM2. 5 nonattainment is coincident with ozone nonattainment in many areas inthe country. The commenter concluded that EPA must examine the impacts of increasing low reactive VOC on PM 2 .

5 before establishing a regulatory framework that encourages substitution.

Several commenters were concerned that EPAdid notconsider the toxicity ofcompounds when establishing BAC forthis category. Some commenters identified several examples ofHAP, including benzene and diisocyanates, with relatively lowreactivity factors and notedthat EPA overlooked the fact that allVOC are not equal when itcomes to theirindividual toxic potential. The
commenters stated thattoxicity should be considered in setting emission limits, with one commenter suggesting that EPA consider a substitution protocol for VOC that includes -"lowto high" toxicity in addition to "low to high" reactivity.

Another commenter also noted that the table ofreactivity factors also includes compounds that have been banned underTitle VI ofthe CAA because they are considered stratospheric ozone depletors.

EPA has addressed the impacts ofthe factors mentioned by the commenters in the final rule to the extent allowed by the CAA.

With respect to the commenter's

concerns about HAP emissions from aerosol coatings, EPA notes that section 183(e) only provides the EPA with authority to regulate VOC emissions from consumer and commercial products for purposes ofreducing ozone nonattainment. Other provisions ofthe Act, such as section 112, provide the statutory mechanism for reduction of 

### 15614

HeinOnline -- 73 Fed. Reg. 15614 2008

### Federal ,RKgister/Vot.= 7, No. 57/Monday,..March 24, 2008/Rules and Regulations

HAP emissions. Thus, although EPA shares the concerns ofthe commenter about unnecessary exposure to HAPs, the EPA does not have authority like that ofthe State ofCalifornia to restrict

or ban the use ofspecific HAPs as ingredients inaerosol coatings. Nevertheless, EPA believes that sufficiently stringent limits can have the beneficial effect ofreducing the use of certain HAPs such as toluene and benzene. Because these compounds are highly reactive, the limits ofthe final rule will serve to restrict the use ofthese compounds as ingredients in aerosol coatings as a practical matter.

With respect tothe comment concerning compounds that are banned under Title VI, EPA is clarifying that the compounds included in 72 FR 38951 are not a list ofcompounds "approved" for

use in aerosol coatings. Onthe contrary, itis merely a list ofcompounds for which relative reactivity factors have been derived. Therefore, ifa compound had beenbanned by Title VI, or banned for use for any other reason, they cannot be used asingredients in aerosol coatings.

However, EPA has revisited the decision to include an exhaustive list of compounds in Table 2A. Based on

concerns raised by commenters and an internal review at EPA, we have revised Table 2A. That table currently includes those organic compounds we know to be used in aerosol coatings products : that: (1) Have an RF value greater than that ofethane (0.3), and (2) are used in
amounts greater than 7.3 percent ofthe product weight. Thischanges the role of Table 2A from a listing ofavailable reactivity factor (RF)values to a table defining the compounds that have defined RF factors forthis rule.

Ifa regulated entity identifies a compound or mixture of compounds that is not on Table 2A, 2B, or 2C,the regulated entity can still use the compound or mixture as an ingredient,

asfollows:

(1) The regulated entity can inform EPA that itintends to use the compound andrequest that the compound be added to Table 2A,2B, or 2C, pursuant to theprocedures in section 59.511(j) of the final rule. However, ifthe compound has a reactivity factorthat is less than 0.30 g 03/g VOC, and the compound is less than or equal to 7.3 percent by weight in any ofyour products, the regulated entity can use an RF equal to zero in all calculations. Any' requests submitted to EPA on or before June 1, 2008 willbe considered, and if appropriate, incorporated into the appropriate Table on orbefore January 1,2009. (2) Ifthe compound does nothave an established reactivity factor listed in Table 2A, 2B, or 2C, the compound can be used, provided an RF of22.04 g 03/ g compound is used in all calculations forthat compound. This value, which is equal to the highest RFidentified to date, was selected to ensure that the environment is protected while additions to the list are being considered.

In the proposed regulation, we proposed to eliminate all ofthe exemptions fron the definition ofVOC listed in thefirst clause subparagraphs of §5 1.100(s). This inadvertently included certain inorganic compounds 'listed in §51.100(s) that are not VOC. On further review, EPA concluded that there is no need to eliminate the exemption for organic compounds that have an RF value of0.3 or less and that represent less than 7.3 percent ofa given product formulation.

However, if a regulated entity intends
to use an organic compound that is not .Jistedin Table 2A inthe final rule as an ingredient in an aerosol coating; then theregulated entity is required to notify EPAvia its Initial Notification or an update to thatnotification. EPA will then add such compounds and their reactivity factors to Table 2A. Until listed in Table 2A, such compounds may be used in aerosol coating products but are assigned the defaultreactivity factor of22.04 g O3/g comp.ound. ,--... '

Several commenters also provided input on the question raised in. the

- proposal preamble related to avoluntary
program for the reduction ofHAP. The
commenters were all opposed to an additional program, citing existing
programs and requirements that already address the inclusion oftoxic materials in coatings. For example, the Federal Hazardous Substance Act (FHSA), which requires specific labeling of products that itclassifies as "hazardous substances." The FHSA includes any products containing methylene chloride

on thatlist.

EPA is not establishing avoluntary HAPreduction program at this time. Existing programs appear to be sufficient to help ensure that the unwanted outcome ofincreased toxicity ofaerosol coating products doesnot

occur. EPA reserves theright to revisit the potential for such aprogram, for this

or anotherreactivity-based rulemaking,
at alater date.

D. Variance,Small Quantity Manufacturers, ExtendedCompliance Date
Several commenters expressed

concern about both the need for, and equity of, thethree provisions inthe proposed rule that either extended the compliance date or provided an exemption fromthe rule. These provisions were the variance provisions in therule, the exemption for small quantity manufacturers, and the extended compliance date forregulated entities that have not previously marketed coatings compliant with CARB's reactivity based rules.

A few commenters were concerned about the potential for unfair economic advantage created by the small quantity manufacturer exemption. One
commenter stated that the exemption for small manufacturers provides a competitive advantage that they could "readily use" to expand market share. Some commenters believed that the small quantity exemptions should be available to regulated entities ofall sizes and be based on the size ofthe batch. This commenter gave the example of a coating supplierthat provided most coating inbulk,but would supply a small quantity ofmatching paint in aerosol cans for exact matchtouch-ups. Another commenter stated that they

were unable to support a proposal that specifically exempts manufacturers of certain products from regulatory requirements unless the exemption was available to all manufacturers ofthat type ofproduct. The latter commenter

was concerned with the anti-trust ramifications ofproviding such an exemption, since itcould create a beneficial climate for one manufacturer, but not another.

Some commenters expressed concern that EPA overstated the emission reductions inthe rule, given the number of sources thatwould potentially take advantage ofthe exemption, variances, and extensions. One commenter stated thatthe small quantity manufacturer exemption, in particular, would have a substantial impact on the VOC emission reductions achieved bytherule and cautioned that EPA should closely monitor the impacts ofthese provisions

on the overall rule efficacy.

EPA does not agree that the exemption andvariance provisions are likely tohave asignificant impact on the'overall effectiveness ofthis rule. EPA has tailored the small quantity manufacturer exemption to provide reliefonly tothose particularly small entities thatwould otherwise bear particularly high costs forcompliance relative to the small amount ofproducts they produce and, therefore, the small
amount oftotal VOC emissions from such products. The variance provision is, likewise, narrowly tailored and provides onlytemporary variance from the limits ofthe rule. Each ofthese provisions is targeted to small subsets of 

### 15615

HeinOnline -- 73 Fed. Reg. 15615 2008

### Federal Register/Vol. 73, No. 57fMoh'day, March 24, 20087Rules andifulatiom

regulated entities that would otherwise be disproportionately impacted by this rule.

The two-yearcompliance extension for facilities that have not previously manufactured coatings compliant with CARB coating limits is provided to

ensure that facilities have adequate time
to reformulate products to meet the rule. Ifa regulated entity has not previously developed compliantproducts, itmay take longer (i.e., beyond January 1, 2009) to reformulate and market a new product. However, because EPA estimates that well over 85 percent of the aerosol coatings in the United States have already been reformulated to meet the California limits, wedo not expect many facilities to qualify for this provision. Similarly, EPA does not anticipate that a large number of regulated entities will need to request a variance under this rule. In California, only one variance requestwas ever requested forthe comparable CARB aerosol coating rule.

EPA established the small quantity manufacturer exemption with the primary focus of assisting small businesseg thatmay make only a small quantity ofaerosol coatings. Because small businesses do notalways do business across the country, EPA concluded that itwas possible that some may not have previously been subject to the reactivity-based requirements in California. While we have included the
costs ofdeveloping reformulated products in the costassessment ofthis rule,we alsorecognize that the average cost (i.e., cost on a "per can" basis) couldbe higher for a company producing asmaller product line. Recognizing this, we established this provisionto exempt those most likely to experience the highest per-can reformulation costs.

EPA also does not concur with the commenter's concerns that the small quantity manufacturer exemption
creates an unfair competitive advantage

or antitrust issues. The total mass of VOC perexemption (7500 kg) represents less than 0.01 percent ofthe total VOC used inaerosol coatings (based on the 1990 survey). Even adjusting for emission reductions that have occurred since 1990, the mass for this exemption would remain well below one percent of the market. We disagree that this small fraction ofthe total aerosol coating market couldgive anyone a competitive advantage. Further, a significant expansion in asmall quantity manufacturer's market share would likely result inthe manufacturer no longer qualifying for the exemption.

Finally, EPA also does not agree that creation ofthe exemption for small quantity manufacturers creates an anitrust issue. Such-issues generally arise where members ofan industry collude to create unfair market advantage, as by agreeing not to compete on prices for theirrespective products. EPA, inits capacity as government regulator, can promulgate regulations with features such as exemptions forcertain members ofan industry without violation ofthe applicable statutes and regulations pertaining to antitrust issues. Moreover, EPA is obligated to take the specific

concerns of small entities into account in the regulatory process and, where appropriate, toprovide mechanisms such as exemptions in order to mitigate disproportionate and unnecessary impacts upon smallbusinesses. In the

case ofthisregulation, EPA has determined that itis appropriate to provide an exemption ofthis type because it will permit the implementation ofa rulethat will achieve significant VOC emission reductions across the industry as a whole and the percentage ofemissions reductions that willbe foregone by virtue ofthe exemption are anticipated
tobe deminimis.

As discussed in the airimpacts section ofthis preamble, we do not expect any ofthese provisions to have

a significant impact on overall VOC emission reductions that willresult from therule, largely dueto the small number ofregulated entities that we expect to qualify for these exemptions. Therefore, EPAhas concluded that all exemptions should remain in the rule,

as proposed. We have made some changes tothe regulatory language, particularly with respect tothe small quantity manufacturer, to ensure that theprovisions are clear.

One commenter askedEPA to clarify whether an importer's products are exempt as specified under the small quantity manufacturer exemption in §59.501(e). First, EPA notes thatthe small quantity manufacturer exemption is only available to manufacturers. Second, in response to thiscomment, EPA has added a provision in § 59.501(f) that specifies how foreign manufacturers may qualify for the small quantity manufacturer exemption.

E.AdditionalReporting Requirements

Numerous commenters provided input on the need,or lack of need, for additional reporting requirements, in general, and the annual reporting of formulation data, in particular. Some
commenters contended that no additional periodic reporting was warranted, while others stated their beliefthat therule is notenforceable without additional reporting.

One comnter argued that more detailed records, including formulation data, mustbe mandated by this rule. This commenter said that it would be unreasonable forEPA not toprovide for adequate datareporting that would allow for meaningful oversight and enforcement ofthe rule, stating that formulation data are critical to this
assessment. The commenter does not believe thatthe proposed approach (i.e., the regulated entity responding to an EPA request for data) is sufficient. The
commenter stated that EPA must include reporting requirements inthe rule that will ensure it canquickly and effectively verify compliance and intervene appropriately where a violation occurs. Other commenters supported gathering additional information, with one statingthat they believe that without full electronic reporting ofall formulation data, the burden on EPA's compliance and enforcement staffwould be toogreat and that any effective enforcement would be impossible.

Other commenters strongly disagreed that additional reporting is warranted. These commenters pointed tothe requirements to supply information to EPA onthe types ofproducts they manufacture, aswell as contact information. They contended that the requirement to supply the more detailed information, including formulation data for the volatile components in their products, is unnecessary. When EPA chose to make acompliance review, there were provisions in the proposed rule that gave EPA the ability to obtain the specific information, as needed. The
commenters encouraged EPA to maintain theprovisions related to reporting requirements as they were proposed.

EPA appreciates the comments received on this topic from all sides and understands both positions. When EPA is establishing therecordkeeping and reporting requirements for a rule, we have the responsibility to balance the burden imposed by therequirements with the need for a rulethat is implementable as a practical matter. We
must ensure that the information needed to implement the rule is available, whileensuring that we do not require industry to gather and submit information thatwill never be used. This rulemaking, the first national VOC rule incorporating reactivity-based limits,raises additional concerns about the types ofinformation that shouldbe gathered. Based on a thoughtful review ofthe comments and our own review,

we have concluded thatthere are two 

### 156166

HeinOnline -- 73 Fed. Reg. 15616 2008

### Federal .ogister /Vpl 73j No. 57/Monday,: Marh .24, 2008/Rules and .Regulations

basic needs for information: (1) Information that allows EPA (and others) to ensure that the requirements

arebeing met, and (2) information that allows EPA (and others) to assess whether thereactivity-based approach is xesulting in the ozone reductions we have determined, based on information

we have analyzed to date, should occur. Each ofthesebasic information needs
warrant a different approach.

EPA has revised thereporting requirements ofthe final ruleto ensure that adequate information is available. EPA concurs with the commenters who believe that we have an obligation to

ensure that our new approach to regulating some VOC sources through the use ofreactivity-based limits is working. In the final rule, EPA has included a requirement forregulated entities toprovide information about the VOC composition oftheir products in their Initial Notifications andto update this information every three years, beginning with datafor calendar year 2010, along with information about the quantities ofindividual VOC species in each formulation manufactured, imported, or distributed in the reporting year. This triennial reporting willenable EPA to better assess the efficacy ofthe reactivity-based approach, includingthe

manner in which the program's requirements are being achieved. For example, the information will enableus to ascertain howmanufacturers are responding totheregulation, whatthe impact of.the rule is onthe aerosol coatings category, and whether the rule has any unintended consequences or impacts. The information will also enable us to compare the changes in VOC emissions under amass-based approach as compared to areactivitybased approach. EPA intends to integrate the triennial report into the expanded electronic reporting processes being developed forthe National Emissions Inventory. EPA willprovide additional information and-guidance to regulated entities prior tothe first required triennial report due in 2011. This information willbe sent to regulated entities, based on contact information submitted in their Initial Notifications.

"IV. Summary ofImpacts
This section presents a summary of the impacts expected as aresult ofthis rule. To ensure that the impacts are not underestimated, we followed an approach thatwould provide conservative estimates for each impact. Forenvironmental impacts, we ensured that our estimated positive impacts (i.e., emission reduction) were not overstated (i.e., we state positive impacts conservatively low). For cost and economic impacts, we ensured.that our estimated impacts were not understated (i.e., we state cost and economic impacts conservatively high). This approach ensures that conclusions drawn on the overall impact on facilities, including small businesses,

are based on conservative assumptions.

A. EnvironmentalImpacts.

In accordance with section 183(e), EPA has evaluated whatregulatory approach would constitute "best available controls" forthis product category, taking into account the considerations noted in the statute.EPA has evaluated the incremental increase

or decrease in air-pollution, water pollution, and solid wastereduction that wouldresult from implementing the final standards.
1.Air Pollution Impacts

The final rule will reduce the amount of ozone generated from the use of aerosol coatings. Because most States will use the VOC emission reductions resulting from this rule in their ozone SIP planning, we have calculated the reductions associated with the rule in
terms ofmass VOC emissions and we .willrefer to a reduction in mass VOC emissions when discussing the impacts ofthe final regulation. EPA concludes this is appropriate because thereactivity limits were designed to ensure that the

ozone reductions that wouldbe

- , achieved by the limits were equivalent:
to the mass VOC redficti'isthat would'i have been achieved by the GARB 200Z. mass-based VOC limits. However, because thelimits actually reduce the
amount of ozone generated fromthe VOC used in aerosol coatings rather than VOC content by mass, the VOC reductions that we refer toare more accurately described as an "equivalent reduction inVOC emissions." We will

use the term "reduction" in subsequent discussions. Additional information on the method used to calculate the air impacts ofthe rule are included in the impacts calculation memorandum contained in the docket to this rulemaking.

EPA has estimated that thisrule will reduce nationwide emissions ofVOC from the use ofaerosol coatings by an estimated 17,130 tons (15,570 Mg) from the 1990 baseline. This represents a 19.4 percent reduction from the 1990 baseline of88,300 tons (80,270 Mg) of
VOC emissions from the product category. While webelieve thatthe above numbers accurately assess the impacts ofthe final rule for SIP credit
purposes, we recognize that significant reductions have already occurred asthe result ofthe implementation ofthe CARB aerosol coatings regulations. Because many manufacturers sell "CARB compliant" coatings across the country, some ofthese VOC emission reductions have already been achieved outside ofCalifornia. We estimate that approximately 18 percent ofthe total products sold arenot currently compliant with thisrule's limits. Therefore, we estimate thatthis rule will result in additional VOC reductions equivalent to 3,100 tons per year (i.e., 18 percent of17,130 tons per year).

The reduction of3,100 tons per year ofVOC emissions represents new reductiorts. However, for ozone SIP
purposes, we are providing States that do not currently have aerosol coating regulations in place full credit for the 19.4 percent reduction fromthe 1990 baseline. This 19.4 percent reduction is equivalent to a 0.114 pound ofVOC reduction per capita.

Although we have not quantified the anticipated impacts ofthis rule on HAP emissions, EPA expects-that the final rule will reduce emissions oftoluene and xylene, two highly reactive toxic and volatile compounds. Toluene and xylene are hazardous airpollutants that manufacturers have historically used extensively in some aerosol coating formulations. However, both of these compounds are also highly reactive VOC. Therefore, it willbe difficult for regulated entities to continue touse these compounds in significant concentrations and still meet the reactivity limits inthe final rule. EPA maintains that aregulation based upon VOC reactivity, ratherthan VOC mass, will provide a significant incentive for regulated entities to cease or re'luce use oftoluene andxylene in their products.

Due tothe reduction in equivalent VOC emissions and ozone formation and the anticipated reduction in hazardous airpollutant emissions, we believe therule willimprove human health and the environment.

2. Water and Solid Waste Impacts

There are no adverse solid waste impacts anticipated from the compliance with this rule. Companies

can continue to sell and distribute

. coatings that donot meet the applicable limits after the compliance date, as long

as those coatings were manufactured before the compliance date. Therefore, the industry does not have to dispose of aerosol cans containing noncompliant product, which wouldresult in an increase in solid waste. It is possible that therule will actually resultin a reduction in solid waste, as more concentrated higher solids coatings may be used as an option for meeting the 

### .15617

HeinOnline -- 73 Fed. Reg. 15617 2008

### Federal Register/ Vol. 73, N6. 57/Moniday, March 24, 2008/Riles and:iR gudM -owY

regulatory limits. This will result in fewer containers requiring disposal when the same volume ofsolids is applied byproduct users.

There are no anticipated adverse
water impacts from this rulemaking.

B.EnergyImpacts

There are no adverse energy impacts anticipated from compliance with this rule.EPA expects that regulated entities will comply through product reformulation, which will not significantly alter energy impacts. The rule does not include add-on controls or other measures thatwould add to energy usage or other impacts.

C. CostandEconomicImpacts

There are four types of facilities that will be impacted by the final rule. These include the aerosol coating manufacturers, aerosol coating
processors, and aerosol coating wholesale distributors, and importers of aerosol coatings. For some products, the manufacturer is also the filler and distributor, whilefor otherproducts the manufacturing process, the filling process, andthe distribution maybe done by three separate companies. The primary focus ofour cost and economic analysis is the aerogol coating manufacturers as we anticipate thatthe
costs to the fillers, distributors, or importers willbe minimal.

For the aerosol coating manufacturer,

we evaluated three components in determining thetotal cost ofthe final rule. These three components include the cost ofthe raw materials thatthe manufacturer will use to formulate coatings that comply with theregulatory limits, the cost ofresearch and development efforts that will be
necessary to develop compliant formulations, and the cost of the recordkeeping and reporting requirements associated withthe rule. These costs are explained in more detail inthe proposed rule.29 The only change
to thisrule since proposal that could impact the cost analysis from the proposed rule is the addition of triennial reporting, as discussed elsewhere. However, the estimated increase in burden from this increased reporting did not affect the average reporting and recordkeeping burden on

a percan basis. Therefore, there was no change in the economic assessment.

Ifall ofthe cans ofaerosol coating product subject tothe rule required reformulation, the total nationwide cost ofthe final rule-would be $20,360,521.

2 9 "National Volatile Organic Compound
Emission Standards forAerosol Coatings: Proposed
Rule" 72 FR 38951 (uly 16, 2007). However, we knowthat significant
progress has -lready been- made in reformulating aerosol coatings tomeet thepromulgated limits. Evenbefore CARB's regulation became effective, its
survey data showed that for 10 coating categories, 100percent ofthe coatings

were complying with the limits in 1997. For the remaining categories, all buttwo had complying market shares greater than 20 percent in 1997. With CARB's 2002 reactivity-based regulation in place,EPA anticipates that the number ofcoatings already meeting the limits has increased significantly.

V. Statutory and Executive Order Reviews

A. Executive Order12866:Regulatory PlanningandReview
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a "significant regulatory action" because itraises novel legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations havebeen documented in the docket for this action.

B. Paperwork ReductionAct
The information collection requirements in this final rule have been submitted forapproval tothe OMB under thePaperwork Reduction Act, 44 U.S.C. 3501 etseq.The Information Collection Request (ICR) document prepared by EPA has been assigned EPA ICR number 2266.02.

The information collection requirements are based on recordkeeping andreporting requirements. These recordkeeping and reporting requirements are specifically authorized by CAA section 114 and section 183(e). All information submitted toEPA forwhich a claim of confidentiality is made is safeguarded according toEPA policies set forth in 40 CFR part 2, subpart B, as appropriate. The content ofthe reports required by this rule will notbe eligible for
treatment as confidential business information.

The promulgated standards would require regulated entities to submit an initial notification and other reports as outlined in section H.F.

We estimate that about 62 regulated entities are subject tothe promulgated standards. New and existing regulated entities wouldhave no capital costs associated with the information collection requirements inthe promulgated standards. The estimated recordkeeping and reporting burden in the third year after the effective date ofthe promulgated rule is estimated to be 15,818 labor hours at a cost of$1.0 million. This. estimate includes the cost ofreporting,: including reading instructions, information gathering, preparation of initial and supplemental reports, triennial reporting offormulation data, and variance orcompliance extension applications. Recordkeeping cost estimates include reading instructions, planning activities, calculation of reactivity, and maintenance ofbatch information. The average hours and cost per regulated entity inthe third year would be 197 hours and $16,400. About 62 facilities would respond per year.

Burden means the totaltime, effort, or financial resources expended by persons to generate, maintain, retain, or disclose,

or provide information to or for a Federal Agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems forthe purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information;-adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able
torespond to acollection of information; search data sources; complete and review the collection of information; and transmit orotherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, acollection of information unless itdisplays acurrently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in40 CFRpart 9.

C.Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare

a regulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act orany other statute unless the agency certifies that therule will not have a significant economic impact on a substantial number ofsmall entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts ofthis rule on small entities, small entity isdefined as: (1) A smallbusiness

as defined bythe Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) asmall governmental jurisdiction that is a government ofa city, county, town, school district, or 1561l6

HeinOnline -- 73 Fed. Reg. 15618 2008Federal Register/ Vol. 73, No. 57/ Monday, March 24, 2008/Rules and Regulations

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 inits field.

After considering the economic impacts ofthis regulatory action, I certify that this action will not have a significant economic impact on a substantial number ofsmall entities. The small entities directly regulated by this final rule are manufacturers, wholesale distributors, and importers of aerosol coating products. We have determined that up to 40 out ofatotal of60 entities (or 67%) could experience

a cost-to-sales ratio increase ofup to 1.42 percent. Thisratio does not include

revenues from other products that small regulated entities may sell. In addition, significant progress has alreadybeen made in reformulating aerosol coatings
to meet previously promulgated CARB emission limits. Both ofthese factors would significantly reduce the cost-tosales ratio. Consequently itis very unlikely that the cost-to-sales ratio for
any small entity would exceed 1 percent. Thus, a significant impact is
notexpected for a substantial number of small entities.

Although this final rule will not have

a significant economic impact on a substantial number of small entities, EPA has made effortsto reduce the potential impact ofthe-regulation. These efforts include active participation in National Small Business Environmental Assistance Program (SBEAP) meetings, andin follow-up meetings with SBEAP States in Region 5. As aresult, several States provided information to small businesses regarding the rule. The final rule includes several provisions designed to minimize thepotential adverse impacts on small businesses. They include a small quantity manufacturer exemption, a compliance extension for entities that have not previously developed CARB-compliant aerosol coatings formulations, and a variance provision.

D. UnfundedMandatesReformAct

Title II ofthe 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 theprivate
sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with "Federal mandates" thatmay result inexpenditures to State, local, and tribal governments, in the aggregate,

or to the private sector, of$100 million or more in any one year. Before promulgating an EPA rule forwhich a written statement is needed, section 205 ofthe UMRA generally requires EPA to identify and consider a reasonable number ofregulatory alternatives and adopt the least costly, most costeffective orleast burdensome alternative that achieves the objectives ofthe rule. The provisions ofsection 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective

or least burdensome alternative ifthe Administrator publishes with the final rule an explanation why that alternative

was not adopted. Before EPA establishes any regulatory requirements that may significantly oruniquely affect small governments, including tribal governments, it musthave developed under section 203 ofthe UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments tohave meaningful and timely inputin the development ofEPA regulatory proposals with- significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with theTegulatory requirements.

EPA has determined that this regulatory action does not contain a' Federal mandate that may resultin expenditures of$100 million or more for State, local, ortribal governments, in the aggregate, or theprivate sector in
any one year. Thus, this action is not subject to therequirements of sections 202 and 205 ofthe UMRA. In addition,

we have determined that thisregulatory action contains noregulatory

- requirements that might significantly or uniquely affect small governments because they contain no regulatory requirements that apply to such governments or impose obligations upon them. Therefore, this action is not subject tothe requirements ofsection 203 ofUMRA.

E.Executive Order13132:Federalism

Executive Order (EO) 13132, entitled "Federalism" (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful andtimely input by State andlocal 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 onthe States,

onthe relationship between the national government and the States, or onthe distribution ofpower and responsibilities among the various levels ofgovernment."

The regulatory action does not have federalism implications. The action does nothave substantial direct effects

onthe States, on the relationship between the national government and the States, or onthe distribution of
power andresponsibilities amongthe various levels ofgovernment, 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. Thus, EO 13132 does not applyto thisregulatory action.

F. ExecutiveOrder13175: Consultation andCoordinationWith Indian Tribal Governments

Executive Order (EO) 13175, entitled "Consultation andCoordination with Indian Tribal Governments" (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to

ensure "meaningful andtimely inputby Tribal officials in the development of regulatory policies that have Tribal implications." "Policies that have tribal implications" isdefined inthe EQ to includeregulations that have "substantial direct effects on one or

more Indian tribes, or onthe distribution ofpower and responsibilities between the Federal Government and Indian tribes."

This final action does nothave Tribal implications as defined by EO 13175. The final regulatory action does not have a substantial direct effect on one or

more Indian tribes, in that this action imposes no regulatory burdens on Tribes. Furthermore, the action does not affect therelationship or distribution of
power and responsibilities between the Federal Government and Indian tribes. The CAA and the Tribal Authority Rule (TAR) establish therelationship ofthe Federal Government and Tribes in implementing the CAA. Because the rule does nothave Tribal implications,
EO 13175 does not apply.

G. Executive Order13045:Protectionof Children from Environmental Health andSafetyRisks

Executive Order (EO) 13045, "Protection of Children from Environmental Health and Safety Risks" (62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be "economically significant" as defined under EO 12866, and (2) concerns an environmental health or safety risk that EPA has reason tobelieve may have a disproportionate effect on children. If theregulatory action meetsboth criteria, section 5-501 ofthe EO directs the EPA
to evaluate the environmental health or 

### 15619

HeinOnline -- 73 Fed. Reg. 15619 2008

### Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

safety effects ofthe planned rule on children, and explain why the planned regulation is preferable to other potentially effective andreasonably feasible alternatives considered by the EPA.

This regulatory action is not subject to EO 13045 because it is not an economically significant regulatory action as defined by EO 12866. In addition, EPA interprets EO 13045 as applying only to those regulatory actions that arebased on health and safety risks, such that the analysis required under section 5-501 ofthe EO has thepotential to influence the regulations. This regulatory action is not subject to EO 13045 because it does not include regulatory requirements based

on health or safety risks.

H. Executive Order13211:Actions Concerning RegulationsThat SignificantlyAffect EnergySupply, Distribution,orUse

This rule is nota "significant energy action" as defined in Executive Order (EO) 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" (66 FR 28355 (May 22, 2001)) because it is
not likely to have a significant adverse effect on the supply, distribution, or use ofenergy. Further, we have concluded that this rule is not likely to have any adverse energy effects.

L NationalTechnologyTransferand AdvancementAct

As noted in the proposed rule, section 12(d) ofthe National Technology Transfer andAdvancement 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) inits 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, andbusiness 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 availabld and applicable VCS.

This final rule involves technical standards. EPA cites the following standards in this rule.*Califomia Air Resources Board Method 310- Determination ofVOC inConsumer Products and Reactive Organic Compounds inAerosol Coating Products; EPA Method 311-Analysis of Hazardous AirPollutant Compounds in Painits and Coatings byDirect Injection into a Gas Chromatograph (40 CFRpart 63, appendix A), inconjunction with American Society ofTesting and

- Materials (ASTM) Method D3063-94 or D3074-94 for analysis ofthe propellant portion of the coating; South Coast Air Quality Management District (SCAQMD) Method 318-95, Determination ofWeight Percent Elemental Metal in Coatings by X-ray Diffraction, July, 1996, for metal content; and ASTM D523-89 (Reapproved 1999), Standard Test Method for Specular Gloss for specular gloss of flat andnonflat coatings.

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

Consistent with the NTTAA, EPA conducted searches to identify voluntary consensus standards in addition to these methods. No applicable voluntary consensus standards were identified.

For the methods required bythe rule,

a source may apply toEPA for permission touse alternative test methods or alternative monitoring requirements inplace ofany required testing methods, performance specifications, orprocedures under §§ 63.7(f) and 63.8(f) ofsubpart A ofthe General Provisions.

J.Executive Order12898:Federal Actions toAddressEnvironmental Justicein MinorityPopulations 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 bylaw, to make environmental justice part oftheir mission byidentifying and addressing,

as appropriate, disproportionately high and adverse human health or environmental effects oftheir programs, policies, and activities on minority populations and low-income populations in the United States.

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

K. Congressional ReviewAct
The Congressional Review Act, 5 U.S.C. 801 etseq., as added bythe Small Business Regulatory Enforcement Fairness Act of1996, generally provides that before a rule may take effect, the
agency promulgating therule must submit arule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General of.the United States. The EPA will submit areport containing the final rule amendment and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General of the United States priorto publication of this final rule amendment inthe Federal Register. The final rule amendment is not a "major rule" as defined by 5 U.S.C. 804(2). This final ruleis effective on March 24, 2008.

List ofSubjects

40 CFRPart 51
Environmental protection, Administrative practice and procedure, Air pollution control, Carbonmonoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compound, Consumer products, Aerosol products, Aerosol *coatings, Consumer and commercial products.

40 CFRPart59

Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.

Dated: November 15, 2007. Stephen L.Johnson, Administrator.

mForthe reasons set outinthe preamble, parts 51 and 59 oftitle 40 of the Code ofFederal Regulations are amended as follows:

PART 51--[AMENDED]

m 1.The authoritycitation forpart 51 continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401- 7671q.

m2. Section 51.100 is amendedby adding paragraph (s)(7) to read as follows: 

### 15620

HeinOnline -- 73 Fed. Reg. 15620 2008Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations



### §51.100 Definitions.

* * *

. * *

(s) * * * (7) For the purposes ofdetermining compliance with EPA's aerosol coatings reactivity based regulation (as described in 40 CFR part 59-National Volatile Organic Compound Emission Standards for Consumer and Commercial Products) any organic compound in the volatile portion ofan aerosol coating is counted towards the product's reactivity-based limit, as provided in part 59, subpartE. Therefore, the compounds that areused in aerosol coating products andthat are identified in paragraph (s) ofthis section as negligibly reactive and excluded from EPA's definition ofVOC are to be counted towards a product's reactivity limit for the purposes ofdetermining compliance with EPA's aerosol coatings reactivity-based national regulation, as provided in part 59, subpart E.

* * * * *

PART 59-[AMENDED]

* 3. The authority citation forpart 59 continues to read as follows:

Authority: 42 U.S.C. 7414 and 751lb(e).

* 4. Subpart E isadded to read as follows:
Subpart E-National VolatileOrganic Compound Emission Standards forAerosol Coatings

Sec. 59.500 What is the purpose ofthis subpart? 59.501 Am Isubjectto this subpart? 59.502 When do Ihave to comply with this subpart? 59.503 What definitions applyto this subpart? 59.504 What limits mustImeet? 59.505 How doI demonstrate compliance with the reactivity limits? 59.506 How do Idemonstrate compliance if Imanufacture multi-component.kits? 59.507 What are the labeling requirements for aerosol coatings? 59.508 What test methods must Iuse? 59.509 Can I get a variance? 59.510 What records am Irequired to maintain? 59.511 What notifications andreports must Isubmit? 59.512 Addresses ofEPA regional offices. 59.513 State authority. 59.514 Circumvention. 59.515 Incorporations byreference. 59.516 Availability ofinformation and confidentiality Table 1to Subpart EofPart 59-ProductWeighted Reactivity Limitsby Coating Category Table 2A to Subpart EofPart 59-Reactivity Factors Table 2B to Subpart E ofPart 59-Reactivity Factors forAliphatic Hydrocarbon SolventMixtures Table 2C to Subpart EofPart 59-Reactivity Factors for Aromatic Hydrocarbon Solvent Mixtures
Subpart E-National Volatile Organic Compound Emission Standards for Aerosol Coatings
§5g.500 What Is the purpose ofthis subpart?

This subpart establishes the productweighted reactivity (PWR) limits regulated entities must meet in order to comply with the national rule for volatile organic compounds (VOC) emitted from aerosol coatings. This subpart also establishes labeling, recordkeeping, and reporting requirements for regulated entities.
§59.501 Am I subjecttothis subpart?

(a) Theregulated entities for an aerosol coating product are the manufacturer or importer of an aerosol coating product and a distributor ofan aerosol coating product ifnamed on the label. Distributors whose names do not appear on the label for theproduct are not regulated entities. Distributors include retailers whose names appear

on the label for theproduct. Ifyour

name appears on the label, you are a regulated entity. (b)Except as provided in paragraph (e) ofthis section, the responsibilities of each regulated entity are detailed in paragraphs (b)(1) through (b)(4) ofthis section.

(1CIfyou are amanufacturer or - importer, you arethe-regulated entity' responsible for ensuring that all aerosol coatings manufactured or imported by you meet the PWR limits presented in §59.504, even ifyour name is noton the label. (2) Ifyou are a distributor named on the label, you are theregulated entity responsible forcompliance with all sections ofthis subpart except for the limits presented in §59.504. Ifyou are

a distributor that has specified formulations tobe used by a manufacturer, then you are responsible for compliance with all sections ofthis subat

(3sIfthere is no distributor named on

the label, thenthe manufacturer or importer is the regulated entity responsible for compliance with all sections ofthis subpart.

(4) Ifyou are a manufacturer or importer, you can choose to certify that
you will provide any or all ofthe recordikeeping andreporting requirements of §§ 59.510 and 59.511 by following the procedures of§ 59.511(g) and (h).

(c) Except asprovided in paragraph (e) ofthis section, theprovisions ofthis subpart apply to aerosol coatings manufactufed on or afterJanuary 1, 2009, for sale or distribution in the United States. Aerosol coatings that are registered underthe Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136-136y) (FIFRA). For FIFRA registered aerosol coatings, the provisions ofthis subpart apply to aerosol coatings manufactured on or afterJanuary 1, 2010, for sale or distribution in the United States.

(d) You are not a regulated entity under this subpart for the aerosol coatings products thatyou manufacture (in or outside ofthe United States) that

are exclusively for sale outside the United States.

(e) If you meet the definition of small quantity manufacturer for a given year, the products you manufacture in that
year arenot subject to the PWR limits presented in § 59.504 orthe labeling requirements of§ 59.507. To qualify for this exemption, small aerosol coating manufacturers must comply with the applicable recordkeeping and reporting requirements in §§ 59.510 and 59.511. (f) Ifyou are a person who manufactures or processes aerosol coatings outside ofthe United States,
you may qualify forthe small quantity manufacturer exemption in paragraph (e) ofthis section ifyou meet the requirements ofparagraphs (f)(1) through (f)(3) ofthis section. (1) The total VOC bymass included in all aerosol coatings you manufacture,
at all facilities, in a given calendar year, in the aggregate, is less than 7,500 kilograms. (2) You comply with the recordkeeping and reporting requirements in §§ 59.510 and 59.511. (3) You commit to and comply with the requirements ofparagraphs (f)(3)(i) through (f)(3)(vii) ofthis section. (i) You must provide an initial notification no laterthan 90 days before the compliance date, or atleast 90 days before you start manufacturing aerosol coating products that are sold in the United States. This initial notification
must state that you are a foreign manufacturer thatis intending to qualify for the small quantity manufacturer exemption in paragraph (e)of this section, provide all ofthe information specified in § 59.511(b), and provide all the information in paragraphs (f)(3)(i)(A) and (f)(3)(i)(B) ofthis section.

(A) The name, address, telephone number, and e-mail address of an agent located in the United States who will

serve as your point ofcontact for communications with EPA.

(B) The address ofeach ofyour facilities thatis manufacturing aerosol coatings for sale in the United States. 

### 15621

HeinOnline -- 73 Fed. Reg. 15621 2008Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

(ii) Youmust notify the Administrator ofany changes in the information provided inyour initial notification within 30 days following the change.

(iii)The agent identified above must maintain a copy of the compliance records specified in § 59.510(b). Those records mustbe kept by the agent such that the agent will be able to provide the written report which mustbe submitted
upon 60 days notice under §59.511(d) and able to make those records available forinspection and review under §59.511(e).

(iv) Youmust give any EPA inspector

orauditor full, complete, and immediate

access to your facilities and records to conduct inspections and audits ofyour manufacturing facilities.

(v) You mustagree that United States substantive and procedural law shall apply to any civil or criminal enforcement action against you under this subpart, and that the forum forany civil or criminal enforcement action under this subpart shall be governed by the CAA, including the EPA administrative forum where allowed under the CAA.

(vi)Any person certifying any notification, report, or other communication from you toEPA must statein the certification that United States substantive and procedural law shall apply to any-civil or criminal enforcement action against him orher under this subpart, and thatthe forum forany civil orcriminal enforcement action under this section shall be governed bythe CAA, including the EPA administrative forum where allowed under the CAA.

(vii) All reports and other communications with EPA mustbe in English. To the extent thatyou provide
any documents as part of any report or other communication with EPA, an English language translation ofthat document must be provided with the report or communication. §59.502 When do Ihave to complywith thissubpart?

(a)Except asprovided in §59.509 and paragraphs (b) and (c) ofthis section,
youmust be in compliance with all provisions of this subpart byJanuary 1, 2009.

(b) The Administrator will consider issuance of a special compliance extension that extends the date of compliance untilJanuary 1, 2011, to regulated entities that have never manufactured, imported, or distributed aerosol coatings for sale or distribution inCalifornia that are in compliance with California's Regulation for Reducing Ozone Formed From Aerosol Coating Product Emissions, Title 17, California Code of Regulations, sections 94520-94528. In orderto be considered for an extension ofthe compliance date,
you must submit aspecial compliance extension application to the EPA Administrator nolater than 90 days before the compliance date or within 90 days before the date that you first manufacture aerosol coatings, whichever is later. This application
must contain the information in paragraphs (b)(1) through (b)(5) ofthis section. Ifa regulated entity remains unable to comply with the limits ofthis rule byJanuary 1,2011, the regulated entity may seek avariance in accordance with § 59.509.

(1) Company name; (2) A signed certification by a responsible company official that the regulated entity has not at any time manufactured, imported, ordistributed for sale or distribution in California any product in any category listed in Table 1 ofthis subpart that complies with California's Regulation for Reducing Ozone Formed From Aerosol Coating Product Emissions, Title 17, California Code ofRegulations, sections 94520- 94528;

(3) A statement that the regulated entity will, to the extent possible within its reasonable control,take appropriate action to achieve compliance with this subpart by January 1, 2011;

(4) A list ofthe product categories in Table 1 ofthis subpart that the regulated entity manufactures, imports, or distributes; and,

(5) Name, title, address, telephone, email address, and signature ofthe certifying company official.

(c) Except as provided in paragraph (b) ofthis section, the compliance date for aerosol coatings that areregistered under the Federal Insecticide, Fungicide and Rodeiticide Act (7 U.S.C-136-136y) (FIFRA) igJanuary 1, 2010.

§59.503 What definitionsapply tothis subpart?

The following terms are defined for the purposes ofthis subpart only.

Administrator means the Administrator of the United States Environmental Protection Agency (EPA)

or an authorized representative.

AerosolCoatingProduct means a pressurized coating product containing pigments or resins that is dispensed by

means ofa propellant and is packaged in a disposable can for hand-held application, orfor use in specialized equipment forground traffic/marking applications. For the purpose ofthis regulation, applicable aerosol coatings categories are listed in Table 1of this subpart. ArtFixativeorSealantmeans a clear coating, including art varnish, workable
art fixative and ceramic coating, which is designed andlabeled exclusively for application to paintings, pencil, chalk,

or pastel drawings, ceramic art pieces or other closely related art uses, in order to provide a final protective coating or to fix preliminary stages of artwork while providing a workable surface for subsequent revisions.

ASTM means the American Society for Testing and Materials.

AutobodyPrimer means an automotive primer or primer surfacer coating designed andlabeled exclusively to be applied to a vehicle body substrate for the purposes of corrosion resistance andbuilding a repair area to -acondition inwhich, after drying, it can be sanded to a smooth surface.

AutomotiveBumperandTrim Product means a product, including adhesion promoters and chip sealants, designed and labeled exclusively to repair and refinish automotive bumpers and plastic trim parts.

AviationPropeller Coatingmeans a coating designed and labeled exclusively to provide abrasion resistance and corrosion protection for aircraft propellers.

AviationorMarinePrimer means a coating designed and labeled exclusively to meet federal specification TT-P-1757.

ClearCoating means a coating which iscolorless, containing resins but no pigments except flatting agents, and is designed andlabeled to form a transparent or translucent solid film.

CoatingSolidsmeans the nonvolatile portion ofan aerosol coatingproduct, consisting ofthe film-forming ingredients, including pigments and resins.

Commercial Applicationmeans the

use of aerosol coating products in the production ofgoods, orthe providing of services for profit, including touch-up and repair.

CorrosionResistantBrass,Bronze, or CopperCoating means a clear coating designed and labeled exclusively to prevent tarnish and corrosion of uncoated brass, bronze, or copper metal surfaces.

Distributor means any person who purchases or is supplied aerosol coating product for the purposes ofresale or distribution in commerce. Retailers who fall within this definition are distributors. Importers are not distributors.

Enamelmeans a coating which cures by chemical cross-linking ofits base resin and is not resoluble in its original solvent. 

### 15622

HeinOnline -- 73 Fed. Reg. 15622 2008Federal 

### ,R~gister/ Vol. 73, No.. 57/Monday, March 24, 2008 /Rules and Regulations

EnginePaint means a coating designed and labeled exclusively to coat engines and their components.

ExactMatchFinish,EnginePaint

means a coating which meets all ofthe following criteria:

(1) The product is designed and labeled exclusively to exactly match the color ofan original, factory-applied enginepaint;

(2) The product is labeled with the manufacturer's name for which they

were formulated; and (3) The product is labeled with one of the following: (i)

The original equipment manufacturer's (O.E.M.) color code number; (ii)The color name; or (iii)Other designation identifying the specific O.E.M. color to the purchaser.

ExactMalch Finish, Automotive

means atopcoat which meets all ofthe following criteria:

(1) The product is designed and labeled exclusively to exactly match the color of an original, factory-applied automotive coating during the touch-up of automobile finishes;

(2) The product is labeled with the manufacturer's name for which they

were formulated; and

(3) The product is labeled with one of the following:

(i) The original equipment manufacturer's (O.E.M.) color code number;

(ii) The color name; or (iii)Other designation identifying the specific O.E.M. color tothe purchaser. Notwithstanding the foregoing, automotive clear coatings designed and labeled exclusively for use over automotive exact match finishes to replicate the original factory-applied finish shall be considered to be automotive exact match finishes.

ExactMatch Finish,Industrialmeans

a coating which meets all of the following criteria:

(1) The product is designed and labeled exclusively to exactly match the color ofan original, factory-applied industrial coating during the touch-up ofmanufactured products;

(2) The product is labeled with the manufacturer's name for which they

were formulated; and

(3) The product is labeled with one of the following:

(i) O.E.M. color code number; (ii)The color name; or (iii)Other designation identifying the specific O.E.M. color to thepurchaser.

Flat Paint Productsmeans a coating which, when fully dry, registers specular gloss less than or equal to 15

on an 850 gloss meter, or less than or equal to 5 on a 600 gloss meter, or which is labeled as a flat coating. Flatting Agent means a compound added to a coating to reduce the gloss of the coating without adding color to the coating.

FloralSpraymeans a coating designed and labeled exclusively for use on fresh flowers, dried flowers, or other items in

a floral arrangement for thepurposes of coloring, preserving orprotecting their
appeara*nce.

Formulation Data,unless otherwise specified, means the recipe used to formulate or manufacture a coating product in terms ofthe weight fraction (g compoundlg product) ofeach individual VOCin the product.

FluorescentCoating means acoating labeled as such, which converts absorbed incident tightenergy into emitted light ofa different hue.

Glass Coatingmeans a coating designed and labeled exclusively foruse

on glass or other transparent material to create a soft, translucent light effect, or to create a tinted or darkened color whileretaining transparency.

GroundTraffic/MarkingCoating

means acoating designed and labeled exclusively tobe applied to dirt,gravel, grass, conciete, asphalt, warehouse floors, or parking lots. Such coatings
mustbe ina container equipped with a valve and spray head designed to direct the spray toward the surface when the

can is held in an inverted vertical position.

High TemperatureCoating means a coating, excluding engine paint, which is designed and labeled exclusively 'f6r

use on substrates which will,in normal
use, be subjected to temperatures in

excess of400 OF.

Hobby/Model/CraftCoating means a coating which is designed and labeled exclusively forhobby applications and is sold in aerosol containers of 6 ounces by weight or less.

Importermeans any person who brings an aerosol coating product that

was manufactured, filled, or packaged at

a location outside ofthe United States into the United States for sale or distribution in the United States.

Ingredient means a component ofan aerosol coating product.

Impuritymeans an individual chemical compound present in araw material which is incorporated inthe final aerosol coatings formulation, ifthe compound ispresent in amounts below the following in the raw material:

(1) For individual compounds that are carcinogens each compound mustbe present in an amount less than 0.1 percent byweight;

(2) For all other compounds present in araw material, a compound must be present in an amount less than 1percent byweight. Lacquermeans a thermoplastic filmforming material dissolved in organic solvent, which dries primarily by solvent evaporation, and is resoluble in its original solvent.

Manufacturer means any person who manufactures or processes an aerosol coating product for sale or distribution within the United States. Manufacturers include:

(1) Processors who blend and mix aerosol coatings;

(2) Contract fillers who develop formulas andpackage these formulations under a distributor's name; and

(3) Contract fillers who manufacture products using formulations provided by a distributor.

MarineSparVarnishmeans a coating designed and labeled exclusively to provide a protective sealant for marine wood products.

MetallicCoating means a topcoatwhich contains at least 0.5 percent by weight elemental metallic pigment in the formulation, including propellant, and is labeled as "metallic," or with the

name ofa specific metallic finish such

as "gold," "silver," or "bronze."

Multi-Component Kit means an aerosol spraypaint system which requires the application ofmore than

one component (e.g. foundation coat andtopcoat), where both components

are sold together in one package.

NonflatPaint Product means a coating which, when fullydry, registers a specular gloss greater than 15 on an 850 gloss meter or greater than five on a 600 gloss meter.

Ozonemeans a colorless gas with a pungent odor,having themolecular form03.

Personmeans an individual, corporation, partnership, association; state, any agency, department, or instrumentality ofthe United States, and any officer, agent, or employee thereof.

PhotographCoatingmeans a coating designed and labeled exclusively tobe applied to finished photographs to allow corrective retouching, protection ofthe image, changes ingloss level, or to cover fingerprints.

PleasureCraftmeans privately owned vessels used for noncommercial
purposes.
-

PleasureCraftFinishPrimer! Surfacer/Undercoater means a coating designed andlabeled exclusively tobe applied prior to the application ofa pleasure craft topcoat for thepurpose of corrosion resistance and adhesion ofthe topcoat, and which promotes auniform surface byfilling in surface imperfections. 

### 15623

HeinOnline -- 73 Fed. Reg. 15623 2008

### Federal Register/Vol. 73, No. 57/ Monday, March 24, 2008/ Rules andigulationsl

PleasureCraft Topcoatmeans a coating designed and labeled exclusively tobe applied to a pleasure craft as a final coat above the waterline andbelow thewaterline when stored out ofwater. This category does not include clear coatings.

PolyolefinAdhesionPromoter means

a coating designed and labeled exclusively tobe applied to apolyolefin

or polyolefin copolymer surface of automotive body parts, bumpers, or trim parts toprovide a bondbetween the surface and subsequent coats.

Primer means a coating labeled as such, which is designed tobe applied to

a surface to provide abond between that surface and subsequent coats.

Product-Weighted Reactivity(PWR) Limitmeans the maximum allowed "product-weighted reactivity," as calculated in §59.505, ofan aerosol coating product that is subject to the limits specified in § 59.504 for a specific category, expressed as grams ofozone per gram (903/g ofproduct).

Propellant means a liquefied or compressed gas that is used in whole or in part, such as a co-solvent, to expel a liquid or any other material fromthe

same self-pressuriied container or from

a separate container.

ReactivityFactor {RF)is a measure of the change in mass ofozone formed by adding a gram ofa VOC to the ambient atmosphere, expressed to hundredths of

agram (g03/g VOC). The RF values for individual compounds andhydrocarbon solvent mixtures are specified in Tables 2A, 2B, and 2C of this subpart.

Retailer means any person who sells, supplies, or offers aerosol coating products for sale directly to consumers. Retailers who fall within the definition of"distributor" in this section are distributors.

RetailOutletmeans any establishment where consumer products are sold, supplied, or offered for sale, directly to

consumers.

ShellacSealermeans a clear or pigmented coating formulated solely with theresinous secretion ofthe lac beetle (Lacciferlacca),thinned with alcohol, and formulated to dry by evaporation without achemical reaction.

Slip-ResistantCoating means a coating designed and labeled exclusively as such, which is formulated with synthetic grit and used

as a safety coating. Small qreqntitymnii ufacturer means a manufacturer whose totalVOC by mass included in allaerosol coatings manufactured at all facilities in a given calendar year, inthe aggregate, is less than 7,500 kilograms. SpatterCoating/Multicolor Coating

means a coating labeled exclusively as such wherein spots,globules, or spatters ofcontrasting colors appear on or within the surface ofa contrasting or similar background.

Stainmeans a coating which is designed and labeled to change the color ofa surface but not conceal the surface. UnitedStatesmeans the United States ofAmerica, including the District of Columbia, the Commonwealth ofPuerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth ofthe Northern Mariana Islands. Vinyl/Fabric/Leather/Polycarbonate Coatingmeans acoating designed and labeled exclusively to coat vinyl, fabric, leather, or polycarbonate substrates Orto
coat flexible substrates including rubber

or thermoplastic substrates.

Volatile OrganicCompound(VOC)

means any organic compound as defined in § 51.100(s) ofthis chapter.As provided in 40 CFR51.100(s)(7), exemptions fromthe definition ofVOC in40 CFR 51.100(s) for certain compounds that are used in aerosol coatings are inapplicable for purposes of this subpart. Webbing/VeilingCoating means a coating designed andlabeled exclusively to provide a stranded to spider webbed appearance when applied. WeightFraction means theweight of

an ingredient divided bythe total net weight ofthe product, expressed to thousandths ofa-gram ofingredient per gram ofproduct (excluding container and packaging). Weld-ThroughPrimermeans a coating designed and labeled exclusively to provide a bridging orconducting effect forcorrosion protection following welding. Wood Stainmeans acoating which is formulated to change the color ofa wood surface but not conceal the surface. Wood Touch-Up/Repair/Restoration

means a coating designed and labeled exclusively to provide an exact color or

WRF = RF ix WF Equation I sheen match onfinished wood products. WorkingDaymeans any day from Monday through Friday, inclusive, except for days that are Federal holidays. 

### §59.504 What limitsmust Imeet?

(a)Except as provided in § 59.509, each aerosol coatingproduct you manufacture, distribute or import for sale or use in the United Statesmust meet the PWR limits presented inTable 1 ofthis subpart. These limits apply to the final aerosol coating, including the propellant. The PWR limits specified in Table I ofthis subpart are also applicable to any aerosol coating product that is assembled by adding bulk coating to aerosol containers of propellant.

(b) Ifa product canbe included in both a general coating category and a specialty coating category and the product meets all ofthe criteria ofthe specialty coating category, then the specialty coating limit willapply instead ofthe general coating limit, unlessthe product is a high temperature coating. High-temperature coatings that contain at least 0.5 percent by weight of

an elemental metallic pigment in the formulation, including propellant, are subject to the limit specified for metallic coatings.

(c) Except asprovided in paragraph (b) ofthis section, if anywhere onthe container ofany aerosol coating product subject to the limits inTable 1 ofthis subpart, or on any sticker or label affixed to suchproduct, or in any sales

or advertising literature, the manufacturer, importer or distributor of the product makes any representation that the product may be used as, or is suitable foruse as a product forwhich

a lower limit is specified, then the lowest applicable limit will apply. §59.505 How do Idemonstrate compliance
withthe reactivitylimits?

(a) To demonstrate compliance with thePWR limits presented in Table 1 of this subpart, you must calculate the PWR foreach coating as described in paragraphs (a)(1) through (2) ofthis section:

(1) Calculate the weighted reactivity factor (WRF) for each propellant and coating component using Equation 1: I r'l I I f 1 rll I IF I

.... . 

### 15624

HeinOnline -- 73 Fed. Reg. 15624 2008

### Federal


### , ister/ Vol.. 73i No. 57 / Monday, March .24,2008 / Rules astd Regulations

Where:
WRF-= weighted reactivity factor of component i, g 03/g component i. RFi = reactivity factor ofcomponent i, g03/ (2) Calculate the PWR ofeach product Wg component i, from Table2A, 2B, or 2C. using Equation 2: WFi = weight fraction ofcomponent i in the product,

PWRp = (WRF), + (WRF)2 +
... + (WRF). Equation 2

Where: PWRp =-PWR forproduct P, g 03/g product. WRF1 =weighted reactivity factor for component 1, g 03/g component. WRF2 =weighted reactivity factor for component 2, g 03/gcomponent. WRF, =weighted reactivity factor for component n, g 03/g component. (b)In calculating the PWR, you must follow the guidelines in paragraphs (b)(1) through (b)(4) ofthis section.

(1) Any ingredient which does not contain carbon is assigned a RF value of 0.(2) Any aerosol coating solid, including but not limited toresins, pigments, fillers, plasticizers, and extenders is assigned a RF of 0. These items do nothave to be identified individually in the calculation.

(3) All individual compounds present in the coating in an amount equal to or exceeding 0.1 percent will be considered ingredients regardless of whether or not the ingredient is reported to the manufacturer.

(4) All individual compounds present in the coating in an amount less than 0.1 percenf'will be assigned an AF value of 0. (5) Any component that is a VOC but is not listed in Table 2A, 2B, or 2C of this subpart is assigned an RF value as detailed inparagraph (e) of-this section.

(c) You may use either formulation data (including information for both the liquid and propellant phases), California Air Resources Board Method 310- Determination ofVolatile Organic Compounds (VOC) in Consumer Products and Reactive Organic Compounds in Aerosol Coating Products (May 5, 2005) (incorporated by reference in59.515), or EPA'sMethod 311-Analysis ofHazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, appendix A), to calculate the PWR. However, ifthere are inconsistencies between the formulation data and the California Air Resources Board Method 310 (May 5,2005) (incorporated by reference in 59.515), or EPA Method 311-Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, appendix A) results, the Californfa Air Resources Board Method 310 (May 5, 2005) (incorporated by referencqe in 59.515), or EPA Method 311-Analysis ofHazardous AirPollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, appendix A)results will
govern.

(d) Ifyou manufacture a coating containing either an aromatic or aliphatic hydrocarbon solvent mixture,
you must usethe appropriate RF for that mixture provided inTable 2B or 2C of this subpart when calculating the PWR using formulation data. However, when calculating the PWR for a coating containing these mixtures using data from California Air Resources Board Method 310 (May 5, 2005) (incorporated by reference in 59.515), or EPA Method 311-Analysis ofHazardous Air Pollutant Compounds in Paints and Coatingsby Direct Injection into aGas Chromatograph (40 CFR part 63, appendix A), you must identify the individual compounds that are present in the solvent mixture and use the weight fraction ofthose individual compounds andtheir RF fromTable 2A ofthis subpart in the calculation.

(e)Ifa VOC is used in a product but
not listed in Table 2A ofthis subpart, the Reactivity Factor (RF) is assigned according to paragraphs (e)(1), (e)(2), (e)(3) or (e)(4) ofthis section.

(1) Ifthe VOC is not listed in Table 2A ofthis subpart, but has an RF greater than 0.3, the regulated entity may petition EPA to add the VOC to Table 2A, as described in.§ 59.511(j). Based on these petitions, EPA will periodically update the appropriate table. Once an RF for a VOC is listed on the appropriate table,that RF willbe used for that VOC for the purposes ofthis rule. As provided in § 59.511(j), any petitions submitted toEPA on or before
June 1, 2008, will be considered, and if appropriate, incorporated into Table 2A

on or before January 1, 2009. (2) Ifthe VOC is used ina product but
not listed inTable 2A ofthis regulation, and has an RF less than orequal to 0.3, and will be used at a level greater than

or equal to 7.3 weight percent (g of compound/g product) in any ofthe regulated entity's formulations, the regulated entity may petition EPA as described in §59.511(j). Based on these petitions, EPA will periodically update the appropriate table. Once an RF for a VOC is listed onthe appropriate table, that RF will be used forthat VOC forthe
purposes ofthis rule. As provided in §59.511(j), anypetition submitted to EPA on or beforeJune 1, 2008 willbe considered, andif appropriate, incorporated into Table ZA on orbefore January 1, 2009. (3) If a compound has an RF less than

or equal to 0.3, and will not be used at

a level greater than or equal to 7.3 weight percent (gofcompound/g product) inany oftheregulated entity's formulations, the RF tobe used in all calculations by that entity for this subpart is 0.

(4) Except as provided in paragraph (e)(1), (e)(2) and (e)(3) ofthis section, if

a VOC is not listed in Table 2A ofthis subpart, it is assigned a default RF factor of22.04 g 03/g VOC. As described in §59.511(j), regulated entities may petition the Administrator to add a compound or mixture to Table 2A, 2B,

or 2C ofthis subpart.

(f)In calculating the PWR value for a coating containing an aromatic hydrocarbon solvent with a boiling
range different from theranges specified inTable 2C ofthis subpart, you must assign an RF as described in paragraphs (f)(1) and (f)(2) ofthis section:

(1) Ifthe solvent boiling point is lower than or equal to 420 degrees F, thenyou must use the RF inTable 2C ofthis subpart specified forbin 23;

.(2) Ifthe solvent boilingpoint is *higher than 420 degrees F,then you

must use the RF specified in Table 2C ofthis subpart for bin 24.

(g)For.purposes ofcompliance with the PWR limits, all compounds listed in Tables 2A, 2B, or 2C that are used in the aerosol coating products must be included in the calculation. This includes compounds thatmay otherwise be exempted from the definition ofVOC in §59.100(s).
§59.506 Howdo Idemonstrate compliance ifImanufacture multi-component kits?

(a)Ifyoumanufacture multicomponent kits as defined in § 59.503, then the KitPWR must not exceed the Total Reactivity Limit. (b)You must calculate the Kit PWR and the TotalReactivity Limit as follows: (1) KITPWR= (PWR(I)xWl) + (PWR(2) X W 2) +. ... + (PWR(,) x W.)

### 15625

HeinOnline -- 73 Fed. Reg. 15625 2008Federal.Reg"ister/ Vol. 73, No. 57/MaldayL March 24, 2608/Rules and'ftIuatio!

__

(2) Total Reactivity Limit = (RL1 x WI)

+ (Rb2 x W 2) +..+ (RL. xWn).

(3) Kit PWR <Total Reactivity Limit.
Where: W =the weight ofthe product contents (excluding container). RL=the PWR Limit specified inTable 1of this subpart. Subscript 1denotes the first component product in thekit: Subscript 2denotes the second component product in thekit. Subscript n denotes any additional component product. 

### §59.507 What are the labeling requirements foraerosol coatings?

(a) The labels ofall aerosol products manufactured onand after the. applicable compliance date listed in §59.502 must contain the information listed in paragraphs (a)(1) through (4) of this section.

(1) The aerosol coating category code for the coating, based onthe category definitions in § 59.503. This code can be the default category code shown in Table 1 ofthis subpart or a companyspecific code, ifthat code is explained

asrequired by § 59.511(a);

(2) The applicable PWR limit for the product specified in Table 1ofthis subpart;

(3) The day, month, and year on which the product was manufactured,

ora code indicating such date;

(4) The name and a contact address forthe manufacturer, distributor, or importer that is the regulated entity under this subpart:. (b) The label onthe-productmust be displayed in such a mannerthat itis readily observable withoutremoving or disassembling any portion ofthe product container or packaging. The information maybe displayed on the bottom ofthe container as long as itis clearly legible without removing any product packaging. §59.508 What testmethods must Iuse? (a)Except as provided in § 59.505(c),
you must use the procedures in California Air Resource Board Method 310-Determination ofVolatile Organic Compounds (VOC) in Consumer Products and Reactive Organic Compounds in Aerosol Coating Products (May 5, 2005) (incorporated by reference in § 59.515) or EPA's Method 311-Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by Direct Injection into a Gas Chromatograph (40 CFRpart 63, appendix A) to determine the speciated ingredients and weight percentage of each ingredient ofeach aerosol coating product. EPA Method 311-Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings byDirect Injection into aGas thomatgrph (40 CFR,.art 63, appendix A)must be used in conjunction with ASTM Meth6d D3063-94 or D3074-94 for analysis of the propellant portion ofthe coating. Those choosing to use California Air Resources Board Method 310 (May 5, 2005) (incorporated by reference in § 59.515) must follow the procedures specified in section 5.0 ofthat method with the exception ofsection 5.3.1, which requires the analysis ofthe VOC
content ofthe coating. For the purposes ofthis subpart, you are notrequired to determine the VOC content ofthe aerosol coating. For both California Air Resources Board Method 310 (May 5, 2005) (incorporated by reference in §59.515) and EPA Method 311- Analysis ofHazardous AirPollutant Compounds in Paints and Coatings by Direct Injection into aGas Chromatograph (40 CFR part 63, appendix A), you.must have a listing of the VOC ingredients inthe coating before conducting the analysis. (b) To determine the metal content of metallic aerosol coating products, you must use South CoastAir Quality Management District (SCAQMD) Method 318-95, Determination of Weight Percent Elemental Metal in Coatings by X-ray Diffraction, July, 1996, in 40 CFRpart 59 (incorporated by reference in § 59.515).

To determine,the specular gloss.offlat andnonflat coatings you must use ASTM Method D523-89 (Reapproved 1999), Standard Test Method for Specular Gloss, in40,CFR part 59 (incorporated by reference in §59.515). §59.509 Can Igetavariance?

(a)Any regulated entity that cannot comply with the requirements ofthis subpart because ofcircumstances beyond its reasonable control may apply in writing to the Administrator fora temporary variance. The variance application must include the information specified in paragraphs (a)(1) through (a)(5) ofthis section.

(1) The specific products for which the variance is sought.

. (2) The specific provisions ofthe subpart for which the variance is sought. I

(3) The specific grounds upon which the variance is sought.

(4) The proposed date(s) by which the regulated entity will achieve compliance with theprovisions ofthis subpart. This date mustbe no later than 3 years afterthe issuance of avariance.

(5) A compliance plan detailing the. method(s) bywhich the regulated entity will achieve compliance with the provisions ofthis subpart. (b) Within 30 days ofreceipt ofthe original application and within 30 days ofreceipt ofany supplementary information that is submitted, the Administrator will send a regulated entity written notification of whether the application contains sufficient information to make a determination. If

an application is incomplete, the Administrator will specify the information needed to complete the application, and provide the opportunity for theregulated entity to submit written supplementary information or arguments tothe Administrator to enable further action

on the application. The regulated entity
must submit this information to the Administrator within 30 days ofbeing notified that its application is incomplete. (c)Within 60 days ofreceipt of sufficient information toevaluate the application, the Administrator will send

a regulated entity written notification of approval or disapproval ofa variance application. This 60-day period will begin after the regulated entity hasbeen
sent written notification that its application is complete. (d)The Administrator will issue a variance ifthe criteria specified in paragraphs (d)(1) and (d)(2) ofthis section are met to the satisfaction ofthe Administrator.

(1) Complying withthe provisions of this subpart would not be technologically oreconomically feasible.

(2) The compliance plan proposed by the applicant can reasonably be implemented and will achieve compliance as expeditiously as possible.

(e) A variance must specify dates by which theregulated entity will achieve increments ofprogress towards compliance, and will specify a final compliance date bywhich theregulated entity will achieve compliance,with this subpart.

(f) A variance will cease to be effective upon failure oftheparty to whom the variance was issued to comply with any term orcondition of thevariance.
§59.510 What recordsam Irequired to maintain?

(a) Ifyou are theregulated entity identified in §59.501(a) asbeing responsible for recordkeeping for a product, and no other person has certified that they will fulfillyour recordkeeping responsibilities as provided in §59.511(g), you must comply with paragraphs (a)(1) through (a)(5) ofthis section: i' '

..... . i Ill I

...... I i i ""

. i I II IS I "I I ........ T

.... ..... . . .. T

- 

### 15MEP2

HeinOnline -- 73 Fed. Reg. 15626 2008

### Federal Register/ Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

(1)All records must bemaintained on and afterthe applicable compliance date listed in § 59.502.

-

(2) You are required to maintain records ofthe following atthe location specified in § 59.511(b)(4) for each product subject tothe PWR limits in Table 1 ofthis subpart: The product category, all product calculations, the PWR, and the weight fraction of all ingredients including: Water, total solids, each VOC, and any other compounds assigned aRF ofzero as specified in § 59.505. Solids donot have
to be listed individually in these records. Ifan individual VOC is present in an amount less than 0.1 percent by weight, then it does not need tobe reported as an ingredient. Animpurity that meets thedefinition provided in §59.503.does not have to be reported as

an ingredient. For each batch ofeach product subject to the PWR limits,you must maintain records ofthe date the batch was manufactured, the volume of thebatch, therecipe used for formulating thebatch, and the number ofcans manufactured in eachbatch and each formulation.

(3) You must maintain a copy ofeach notification and report that you submit
to comply with this subpart, the documentation supporting each notification, and acopy ofthe label for each product.

(4) If you claim the exemption under 

### § 59.501(e), you mustmaintain a copy of the initial report and each-annualreport thatyou submit toEPA, andthe documentation supporting such report.

(5) You must maintain all records required bythis subpart for a minimum of 5 years. Therecords mustbe in a form suitable and readily available for inspection and review.

(b) By providing the written certification to the Administrator in accordance with §59.511(g), the certifying manufacturer accepts responsibility for.compliance with the recordkeeping requirements ofthis section with respect to any products covered bythe written certification, as detailed in the written certification. Failure to maintain the required records
may result in enforcement action by EPA against the certifying manufacturer in accordance with the enforcement provisions applicable to violation of these provisions by regulated entities. If the certifying manufacturer revokes its certification, as allowedby § 59.511(h), theregulated entity must assume responsibility for maintaining all records required by this section. 

### §59.*511 What notificationsand reports must Isubmit?

(a) Ifyou are the regulated entity identified in § 59;501(a) and (b) asbeing responsible for notifications and reporting for aproduct, andno other person has certified that they will fulfill
your notification and reporting responsibilities as provided in paragraph (g) ofthis section, you are responsible for all notifications and reports included in this section.If no distributor is named on the label, the manufacturer or importer ofthe aerosol coating is responsible forall requirements ofthis section, even ifnot

- listed on the label. (b) You must submit an initial notification no later than 90 days before the compliance date, or at least 90 days before the date that you first manufacture, distribute, orimport aerosol coatings, whichever is later. The initial notification must include the information in paragraphs (b)(1) through (b)(11} ofthis section.

(1) Company name; (2) Name, title, address, telephone number, e-mail address and signature of certifying company official;

(3) A list ofthe product categories from Table 1 ofthis subpart that you manufacture, import, ordistribute;

(4) The street address of each ofyour facilities in~the United States that is manufacturing, packaging, or importing aerosol coatings thatare subject tothe provisions ofthis subpart, and the street address where compliance records are maintained for each site, ifdifferent;

(5) Adescription ofdate coding systems, clearly explaining howthe date ofmanufacture is marked on each sales unit; (6) An explanation ofthe product category codes that willbe used on all required labels, or a statement thatthe default category codes in Table 1 ofthis subpart will be used;

(7) Foreach product category, an explanation ofhow the manufacturer, distributor, or importer will define a batch for the purpose ofthe recordkeeping requirements;

*(8) A list ofany compounds or mixtures thatwill be used in aerosol coatings that are not included in Table 2A, 2B, or 2C ofthis subpart;

(9) For each product category, VOC formulation datafor each formulation that you anticipate manufacturing, importing, or distributing forcalendar year 2009 orfor the first yearthat. includes your compliance date, if different than 2009. Ifa regulated entity

can certify thatthereporting is being completed by another regulated entity for any product, no second report is required. The formulation data must include the weight fraction (g compound/g product) for each VOC ingredient used in the product in an amount greater than or equal to 0.1 percent. The formulation data must also include the information in either ' paragraph (b)(9)(i) or (b)(9)(ii) of this section for each VOC ingredient reported. (i) For compounds listed in Table 2A ofthis regulation, the chemical name, CASnumber, and the applicable reactivity factor; or (ii) Forhydrocarbon solvent mixtures listed in either 2B or 2C or thissubpart, the trade name, solvent mixture manufacturer, bin number, andthe applicable reactivity factor.

(10) For each product formulation, a list ofthe unique product codes by Universal Product Code (UPC), or other unique identifier; and (11) A statement certifying that all products manufactured bythe company that are subject tothe limits inTable 1 ofthis subpart will be in compliance with those limits. (c)Ifyou change any information included inthe initial notification required by paragraph (b)ofthis section, including the list ofaerosol categories,
contact information, records location, the category or date coding system, or the listrequired under paragraph (b)(8) of this section, you must notify the Administrator ofsuch changes within 30 days following the change. You are also required to notify the Administrator within 30 days ofthe date thatyou begin using an organic compound in any ofyour aerosol coating products if that compound has an RF less than or equal to 0.3, and is used at a level greater than or equal to 7.3 weight percent (gofcompound/g product) in
any ofyour formulations. You are not required to notify theAdministrator within 30 days ofchanges to the information provided as required by paragraph (b)(9) ofthis section. Changes in formulation are to be reported in the triennial reporting required by paragraph (i) ofthis section.

(d)Upon 60 days written notice, you must submitto the Administrator a written report with all the information in paragraphs (d)(1) through (d)(5) of this section for each product you manufacture, distribute, or import under
your name or another company's name.

(1) The brand name ofthe product; (2) A copy ofthe product label; (3) The owner ofthe trademark or brand names;

(4) The product category as defined in § 59.503;

.

(5) For each product, formulation data for each formulation that manufactured, imported, ordistributed in the 

### 15627

HeinOnline -- 73 Fed. Reg. 15627 2008Federal 

### Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

requested time period.The formulation data must include the weight fraction (g compound/g product) for each VOC ingredient used in the product in an amount greater than or equal to 0.1 percent, plus the weight fraction ofall other ingredients including: Water, total solids, and any other compounds assigned an RF ofzero. The formulation data must also include the information in either paragraph (d)(5)(i) or (ii) ofthis section.

(i)For compounds listed in Table 2A ofthis subpart, the chemical name, CAS number, and the applicable reactivity factor.

(ii) For hydrocarbon solvent mixtures listed in either 2B or 2C orthis table, the trade name, solvent mixture manufacturer, bin number, and the applicable reactivity factor.

(e) Ifyou claim the exemption under § 59.501(e), you must submit an initial notification no later than 

### 90 days before the compliance date or at least 90 days before the date that you first manufacture aerosol coatings, whichever is later. The initial notification must include the information in paragraphs (e)(1) through (e)(6) ofthis section.

(1) Company name; (2) Name, title, number, address, telephone number, e-mail address, and signature of certifying company official;

(3)A list ofthe product categories from Table 1 of this subpart that you manufacture;

(4) The total amount ofproduct you manufacture in each category and the total VOCmass content ofsuch products for the preceding calendar
year;

(5) The street address ofeach ofyour facilities in the United States that is manufacturing aerosol coatings that are subject to theprovisions of this subpart and the street address where compliance records are maintained for each site, ifdifferent; and

(6) A list of the States in which you sell or otherwise distribute the products
you manufacture.

(f) Ifyou claim the exemption under § 59.501(e), you must file an annual report for each year in which you claim

an exemption from the limits of this subpart. Such annual report must be filed by March 1 ofthe yearfollowing the year inwhich you manufactured the products. The annual report shall include the same information required in paragraphs (e)(1) through (e)(6) ofthis section.

(g) Ifyou are a manufacturer, importer, or distributor who chooses to certify that you will maintain records for a regulated entity for all or part of the purposes of §59.510 and this section, you must submit a report to the appropriate Regional Office listed in § 59.512. This report must include the information contained in (g)(1) though (g)(4) ofthis section.

(1) Name and address ofcertifying entity;

(2) Name and address(es) ofthe regulated entity forwhich you are accepting responsibility;

(3) Description ofspecific requirements in § 59.510 and this section for which you are assuming responsibility and explanation ofhow allrequired information under this subpart will be maintained and submitted, as required, by you or the regulated entity; and



### (4) Signature ofresponsible official for the company.

(h)An entity that has provided certification under paragraph (g)of this section (the "certifying entity") may revoke the-writtencertification by sending a written statement to the appropriate Regional Office listed in § 59.512 and to the regulated entity for which the certifying had accepted responsibility, giving a minimum of90 days notice that the certifying entity is rescinding acceptance ofresponsibility for compliance with the requirements outlined inthe certification letter. Upon expiration ofthe notice period, the regulated entity must assume responsibility for all applicable requirements. (i) As a regulated entity in accordance with paragraph (a) ofthis section, you must provide the information requested in paragraphs (i)(1) through (i)(4) ofthis section every three years beginning in 2011 for reporting year 2010. The report .shallbe submitted by March 31 ofthe year following the reporting yearto the appropriate Regional Office listed in § 59.512. The firstreport is due March 31, 2011, for calendar year 2010.

(1) All identification information included in paragraphs (b)(1), (b)(2), and (b)(4) ofthis section;

(2) For each product category, VOC formulation data for each formulation that was manufactured, imported, or distributed in the reporting year. The formulation data must include the weight fraction (gcompound/g product) for each VOC ingredient used in the product in an amount equal to orgreater than 0.1 percent. If aregulated entity

can certify that the reporting is being completed by another regulated entity for any product, no second report is required. The formulation data must include the information ineither paragraph (i)(2)(i) or (i)(2)(ji) ofthis section for each VOC present in an amount greater than or equal to 0.1 percent. (i) For compofinds listed in Table 2A ofthis subpart, the chemical name, CAS number, and the applicable reactivity factor; or

(ii) For hydrocarbon solvent mixtures listed in either 2B or 2C ofthis subpart, the trade name, solvent mixture manufacturer, bin number, and the applicable reactivity factor.

(3) For each formulation, the total

mass ofeach individual VOC species present in an amount greater than or equal to 0.1 percent ofthe formulation, that was manufactured, imported, or distributed in the reporting year; and

(4) For each formulation, a list ofthe individual product codes by UPC or other unique identifier.

(j) Ifa regulated entity identifies a VOC that is needed for an aerosol formulation that is not listed in Tables 2A, 2B, or 2C ofthis subpart, it is assigned a default RF factor of 22.04 g O3/gVOC. Regulated entities may petition the Administrator to add a compound to Table 2A, 2B, or 2C ofthis subpart.Petitions must include the chemical name, CAS number, a statement certifying the intent to use the compound in an aerosol coatings product, and adequate information for the Administrator to evaluate the reactivity ofthe compound and assign a RF value consistent with the values for the other compounds listed inTable 2A of this subpart. Any requests submitted
to EPA on orbefore June 1,2008 will be considered and, if appropriate, incorporated into Table 2A, 2B, or 2C of this subpart on or before January 1, 2009.
§59.512 Addresses of EPA regional offices.

Allrequests (includingvariance requests), reports, submittals, and other communications to the Administrator pursuant to this regulation shall be submitted to the Regional Office of the EPA which serves the State or territory for the address that is listed onthe aerosol coating product in question. These areas areindicated inthe following list of EPA Regional Offices. EPA Region I (Connecticut, Maine,

Massachusetts, New Hampshire, Rhode Island, Vermont), Director, Office ofEnvironmental Stewardship, Mailcode: SAA, JFK Building, Boston, MA 02203. EPA Region H (NewJersey, New York,

Puerto Rico, Virgin Islands), Director, Division ofEnforcement and Compliance Assistance, 290 Broadway, New York, NY 10007- 1866. EPA Region IlI (Delaware, District of Columbia,Maryland, Pennsylvania, Virginia, West Virginia), Air 

### 15628

HeinOnline -- 73 Fed. Reg. 15628 2008Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

Protection Division, 1650 Arch Street, Philadelphia, PA 19103. EPA Region IV (Alabama, Florida,

Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee), Director, Air, Pesticides andToxics, Management Division, 345 Courtland Street, NE., Atlanta, GA 30365. EPA Region V (Illinois, Indiana,

Michigan, Minnesota, Ohio, Wisconsin), Director, Air and Radiation Division, 77West Jackson Blvd., Chicago, IL 60604-3507. EPA Region VI (Arkansas, Louisiana,

New Mexico, Oklahoma, Texas), Director, Air, Pesticides and Toxics Division, 1445 Ross Avenue, Dallas, TX 75202-2733. EPA Region VII (Iowa, Kansas, Missouri,

Nebraska), Director, Airand Toxics Division, 726 Minnesota Avenue, Kansas City, KS 66101. EPA Region VIII (Colorado; Montana,

North Dakota, South Dakota, Utah, Wyoming), Director, Air and Toxics Division, 999 18th Street, 1 Denver Place, Suite 500, Denver, Colorado 80202-2405. EPA Region IX (American Samoa,

Arizona, California, Guam, Hawaii, Nevada), Director, Air Division, 75 Hawthorne Street, San Francisco, CA 94105. EPA Region X (Alaska, Oregon Idaho,

Washington); Director, Air and Toxics Division, 1200 Sixth Avenue, Seattle, WA 98101.
§59.513 State authority.

The provisions in thisregulation will
.not be construed in any manner to preclude any State orpolitical subdivision thereoffrom:

(a) Adopting and enforcing any emission standard or limitation applicable to a manufacturer, distributor

or importer ofaerosol coatings or components in addition tothe requirements ofthis subpart.

(b) Requiring the manufacturer, distributor orimporter ofaerosol coatings or components to obtain permits, licenses, or approvals prior-to initiating construction, modification, or operation ofa facility for manufacturing

an aerosol coating or component.
§59.514 Circumvention.

Each manufacturer, distributor, and importer of an aerosol coating or component subjectto the provisions of this subpart mustnot alter, destroy, or falsify any record orreport, to conceal whatwould otherwise be noncompliance with this subpart. Such concealment includes, but is not limited to, refusing to provide the Administrator

access to all required records and datecoding information, misstating the PWR
content ofacoating or component batch, or altering the results ofany required teststo determine the PWR.
§59.515 Incorporations by reference.

(a) The following material is incorporated by reference (IBR) in the paragraphs noted in §59.508. These incorporations by reference were approved by the Director ofthe Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated as they exist

on the date ofapproval, and notice of any changes in these materials will be published inthe Federal Register.

(1) California Air Resources Board Method 3-0--Determination ofVolatile Organic Compounds (VOC) in Consumer Products andReactive Organic Compounds inAerosol Coating Products (May 5, 2005), IBR approved for §59.508.

(2) South Coast AirQuality Management District (SCAQMD) Test Method 318-95, Determination of Weight Percent Elemental Metal in Coatings by X-ray Diffraction, (July, 1996), IBR approved for § 59.508.

(3) ASTM Method D523-89 (Reapproved 1999), Standard Test Method for Specular Gloss, IBR approved for §59.508.

(b)You may obtain and inspect the materials at the Air andRadiation Docket and Information Center, U.S. EPA, 401 M Street, SW., Washington, DC; the EPA Library, 109T.W. Alexander Drive, U.S. EPA, Research Triangle Park, North Carolina; you may inspect the materials at the National Archives andRecords Administration (NARA). For information on the availability ofthis material at NARA, call 202-741-6030, or go to http:// www.archives.gov/federaLregister/ code_ofjfederaltregulations/ ibrlocations.html.
§59.516 Availability of information and confidentiality.
(a)Availability of information. The availability to the public of information provided to or otherwise obtained by the Administrator underthis part shall be governed bypart 2 ofthis chapter.

(b)Confidentiality. All confidential business information entitled to protection under section 114(o) ofthe CleanAir Act (CAA) that mustbe submitted or maintained by each regulated entity pursuant to this subpart shall be treated in accordance with 40 CFRpart 2, subpart B.-

(c) Reports and Applications. The
content ofall reports and applications required to be submitted to the Agency under §59.511, § 59.509, or §59.502 are not entitled to protection under Section 114(c) of the CAA.

TABLE 1 TO SUBPART 

### E OF PART 59.-PRODUCT-WEIGHTED REACTIVITY LIMITS BY COATING CATEGORY [g O3/g product]

Coating category Category code a Reactivity limit

Clear Coatings

............................................................................................................... Flat Coatings

.................................................................................................................. Fluorescent Coatings

..................................................................................................... Metallic Coatings

..................................... :

................................................................ Non-Flat Coatings

........................................................................................................ Primers

........................................................................................................................... Ground Traffic/Marking

.................................................................................................. Art Fixatives or Sealants

................................................................................................ Auto body primers

.......................................................................................................... Automotive Bumper and Trim Products

......................................................................... Aviation or Marine Primers

............................................................................................ Aviation Propellor Coatings

...... ........................................................................... . Corrosion Resistant Brass, Bronze, or Copper Coatings

.............................................. Exact Match Finish- Engine Enamel

............................................................................ Exact Match Finish- Automotive

................................................................................... Exact Match Finish-Industrial

...................................................................................... Floral Sprays

.................................................................................................................. Glass Coatings

.............................................................................................................. CCP FCP FLP MCP NFP PCP GTM AFS ABP ABT AMP APC CRB EEE EFA EFI FSP GCP 1.50 1.20 1.75 1.90 1.40 1.20 1.20 1.80 1.55 1,75 2.00 2.50 1.80 1.70 1.50 2.05 .1.70

1.40 

### 15629

HeinOnline -- 73 Fed. Reg. 15629 2008

### Federal Register/Vol. 73, No. 57/Monday, March 24, 2008/Rules and Regulations

TABLE 1 TO SUBPART E OF PART 59.-PRODUCT-WEIGHTED REACTIVITY LIMITS BY COATING CATEGORY-Continued [g 03/g product]

Coating category Category code Reactivity limit

High Temperature Coatings

........................................................................................... HTC 1.85 Hobby/Model/Craft Coatings, Enamel

............................................................................ HME 1.45 Hobby/Model/Craft Coatings, Lacquer

.................................. HML 2.70 Hobby/Model/Craft Coatings, Clear or Metallic

............................................................. HMC 1.60 Marine Spar Varnishes

.................................................................................................. MSV 0.90 Photograph Coatings

..................................................................................................... PHC 1.00
Pleasure Craft Primers, Surfacers or Undercoaters

..................................................... PCS 1.05 Pleasure Craft Topcoats

................................................................................................ PCT 0.60 Poyolefin Adhesion Promoters

...................................................................................... PAP 2.50 Shellac Sealers, Clear

................................................................................................... SSC 1.00 Shellac Sealers, Pigmented

................................................................. :

........................ SSP 0.95 Slip-Resistant Coatings

.................................................................................................. SRC 2.45 Spatter/Multicolor Coatings

............................................................................................ SMC 1.05 Vinyl/Fabric/Leather/Polycarbonate Coatings

................................................................ VFL 1.55 W

ebbing/Veiling Coatings

.............................................................................................. WFC 0.85 Weld-Through Primers

...................................... WTP 1.00
Wood Stains

......................................................................... ........................................ WSP 1.40 Wood Touch-up/Repair or Restoration Coatings

........................................................... WTR 1.50

a Regulated entities may use these category codes or define their own in accordance with §59.511(b)(6).

TABLE 2A TO SUBPART E OF PART 59.-REACTIVTY FACTORS

Compound CAS No. Reactivity factor

1-Butanol

.................................................................................................................................................................. 71--, 6-3 3.34 1,2,4-Trimethylbenzene

........................................................................................................................................... 95-63-6 7.18 2-Butanol (s-Butyl alcohol)

...................................................................................................................................... 78-92-2 1.60 2-Butoxy-1-Ethanol (Ethylene glycol monobutyl ether)

........................................................................................... 111-76-2 1.67 2-Propoxyethanol (ethylene glycol monopropyl ether)

............................................................................................ 2807-30-9 3.52 Acetone (Propanone)

............................................................................................................................................... 67-64-1 0.43 Amyl acetate (Pentyl ethanoate, pentyl acetate)

.................................................................................................... 628-63-7 0.96 Butane

............................................................. *

........................................................................................................ 106-97-8 1.33 Butyl acetate, n
........................................................................................................................................................ 123-86-4 0.89 Cyclohexanone

.............................................................. ...................................................................................... - 108-94-1 1.61 Di (2-ethylhexyl phthalate)

....................................................................................................................................... 117-81-7

....................... Diacetone alcohol

.................................................................................................................................................... -123-42-2 0.68 Diethanolamine

........................................................................................................................................................ 111-42-2 4.05 Diisobutyl ketone

....................................................................................................................................................... 108-83-8 2.94 Dimethyl ether

................................................ . .............................................. 115-10-6 0.93 Ethanol

..................................................................................................................................................................... 64-17-5 1.69 Ethyl acetate

........................................................................................................................................................... 141-78-6 0.64 Ethyl benzene : ..................................................................................... .................................................................... 100-41-4 2.79 Ethyl-3-Ethoxypropionate.

......................................................................................................................................... 763-69-9 3.61 Ethylene glycol monoethyl ether acetate (2-Ethoxyethyl acetate)

......................................................................... 111-15-9 1.9 Heptane

................................................................................................................................................................... 142-82-5 1.28 Hexane

...................................................................................................................................................................... 110- 54-3 1.45 Isobutane

................................................................................................................................................................. 75-28-6 1.35 Isobutanol

................................................................................................................................................................ 78-83-1 2.24 Isobutyl Acetate

....................................................................................................................................................... 110-19-0 0.67 Isohexane Isomers
.................................................................................................................................................. 107-83-5 1.80 Isopropyl alcohol (2-Propanol)

................................................................................................................................. 67-63-0 0.71 M

ethanol

.................................................................................................................................................................. 67-56-1 0.71 M

ethyl amyl ketone

.................................................................................................................................................. 110-43-0 2.80 M

ethyl ethyl ketone (2-Butanone)

................... :....................................................................................................... 78-93-3 1.49 Methyl isobutyl ketone

............................................................................................................................................. 108-10-1 4.31 M

ethyl n-Propyl Ketone (2-Pentanone)

................................................................................................................... 107-87-9 3.07 N,N-Dimethylethanolamine

...................................................................................................................................... 108-01-0 4.76 N-Butyl alcohol (Butanol)

......................................................................................................................................... 71-36-3 3.34 Pentane

....................................................................................................................................... :............................ 109-66-0 1.54 Propane

................................................................................................ :................................................................... 74-98-6 0.56 Propylene glycol

...................................................................................................................................................... 57-55-6 2.75 Propylene glycol monomethyl ether acetate

........................................................................................................... 108-65-6 1.71 Texanol (1,3 Pentanediol, 2,2,4-trim ethyl, 1-isobutyrate)

....................................................................................... 25265-77-4 0.89 Toluene

.................................................................................................................................................................... 108-88-3 3.97 Vinyl Chloride

.......................................................................................................................................................... 75-01-4 2.92 Xylene, meta-

........................................................................................................................................................... . 108-38-3 10.61 Xylene, ortho-

.......................................................................................................................................................... . 95-47-6 7.49 Xylene, para- . .......................................................................................................................................................... 106-42-3 4.25 

### 15630

HeinOnline -- 73 Fed. Reg. 15630 2008

### Federal Register/Vol.' 73,' NO: .7 /Monday,' Ma-ch 24, 200817Ruleg and 

### Regulatiohs 1

TABLE 

### 2B TO SUBPART E -OF PART 59.-REACTIVITY -FACTORS FOR ALIPHATIC HYDROCARBON SOLVENT MIXTURES

Average C eReactivity Bin boiling point* Criteriaf (degrees F) factor

1

............. 80-205 Alkanes (<2% Ar.matics)

.................................. ..................... 2.08 2

............. 80-205 N- & Iso-Alkanes (> 90% and < 2% Aromatics)

................................................................................. 1.59 3

............. 80-205 Cyclo-Alkanes (> 90% and < 2% Aromatics)

...................................................................................... 2.52 4

............. 80-205 Alkanes (2 to < 8% Aromatics)

........................................................................................................... 2.24 5

............. 80-205 Alkanes (8 to 22% Aromatics)

............................................................................................................. 2.56 6

............. >205-340 Alkanes (< o Aromatics)

................................................................................................................... 1.41 7

............. >205-340 N- & Iso-Alkanes ( > 90% and < 2% Aromatics)

............................................................................... 1.17 8

............. >205-340 Cyclo-Alkanes (? 90% and < 2% Aromatics)

...................................................................................... 1.65 9 >205-340 Alkanes (2 to <8% Aromatics)........

. ..I

. .................... .................. . .1.62 10.......... >205-340 Alkanes (8 to 22% Aromatics)

...................... 2.03 11

........... >340-460 Alkanes (<2% Aromatics)

............................................................................................................. 0 .91 12

........... >340-460 N- & Iso-Alkanes (> 90% and < 2% Aromatics)

................................................... ................... 0.81 13

........... >340-460 Cyclo-Alkanes ( ! 90% and < 2% Aromatics)

......................................................................... ...... 1.01 14

........... >340-460 Alkanes (2 to < 8% Aromatics)

.................................................................................. 1.21 15

........... >340-460 Alkanes (8 to 22% Aromatics)

........................................................................................................... 1.82 16

........... >460-580 Alkanes (<2% Aromatics)

............................................................................................................ 0.57

17

. >460-580 N- & Iso-Alkanes (-> 90% and < 2% Aromatics)

................................................................................ 0.51 18

........... >460-580 Cyclo-Alkanes (_ 90% and < 2% Aromatics)

...................................................................................... 0.63 19

........... >460-580 Alkanes (2 to < 8% Aromatics) ..........................................................................................- 0.88 20

........... >460-580 Alkanes (8 to 22% Aromatics)

................................... 14..........9............................................................... 1.49
*Average Boiling Point = (Initial Boiling Point + Dry Point)/ 2 (b) Aromatic Hydrocarbon Solvents

TABLE 

### 2C TO SUBPART 

### E OF PART 59.-REACTIVITY FACTORS FOR AROMATIC HYDROCARBON SOLVENT MIXTURES

Bin Boiling range Criteria Reactivity (degrees F) factor

21

........... 280- 290 Aromatic Content (>98% )

.................................................................................................................... 7.37 22

........... 320-350 Aromatic Content ( 898% )

.................................................................................................................... 7.51 23

........... 355-420 Aromatic Content (298% )

.................................................................................................................... 8.07 24

........... 450-535 Aromatic Content ( 98% )

............................................................................................. ....................... . 5.00

[FR Doc. E8-5589 Filed 3-21-08; 8:45 am]
BILUNG CODE 6560-50-P 

### 15631

HeinOnline -- 73 Fed. Reg. 15631 2008