Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 58481 

EPA-APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP 

Name of SIP provision Applicable geographic or nonattainment area 

State approval/ 

submittal date EPA approval date Comments 

* * * * * * * 

Approval of the 1997 8-hour Ozone 15% Reasonable Further Progress Plan, and 2008 RFP 

Motor Vehicle Emission Budgets.

Dallas/Fort Worth, TX ................ 05/23/07 10/07/08 [Insert FR 

page number 

where document 

begins].

Revised 2002 Base Year Emissions Inventory .... Dallas/Fort Worth, TX ................ 05/23/07 10/07/08 [Insert FR 

page number 

where document 

begins].

[FR Doc. E8–23673 Filed 10–6–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 59 

[EPA–HQ–OAR–2008–0411; FRL–8725–9] 

RIN 2060–AP01 

Consumer and Commercial Products, 

Group IV: Control Techniques 

Guidelines in Lieu of Regulations for 

Miscellaneous Metal Products 

Coatings, Plastic Parts Coatings, Auto 

and Light-Duty Truck Assembly 

Coatings, Fiberglass Boat 

Manufacturing Materials, and 

Miscellaneous Industrial Adhesives 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; Notice of final 

determination and availability of final 

control techniques guidelines. 

SUMMARY: Pursuant to Section 

183(e)(3)(C) of the Clean Air Act, EPA 

has determined that control techniques 

guidelines will be substantially as 

effective as national regulations in 

reducing emissions of volatile organic 

compounds in ozone national ambient 

air quality standard nonattainment areas 

from the following five Group IV 

product categories: miscellaneous metal 

products coatings, plastic parts coatings, 

auto and light-duty truck assembly 

coatings, fiberglass boat manufacturing 

materials, and miscellaneous industrial 

adhesives. Based on this determination, 

EPA is issuing control techniques 

guidelines in lieu of national regulations 

for these product categories. These 

control techniques guidelines will 

provide guidance to the States 

concerning EPA’s recommendations for 

reasonably available control technologylevel controls for these product 

categories. EPA further takes final action 

to list the five Group IV consumer and 

commercial product categories 

addressed in this notice pursuant to 

CAA Section 183(e). 

DATES: This final action is effective on 

October 7, 2008. 

ADDRESSES: EPA has established the 

following dockets for these actions: 

Consumer and Commercial Products, 

Group IV—Determination to Issue 

Control Techniques Guidelines in Lieu 

of Regulations, Docket No. EPA–HQ– 

OAR–2008–0411; Consumer and 

Commercial Products—Miscellaneous 

Metal and Plastic Parts Coatings, Docket 

No. EPA–HQ–OAR–2008–0412; 

Consumer and Commercial Products— 

Auto and Light-Duty Truck Assembly 

Coatings, Docket No. EPA–HQ–OAR– 

2008–0413; Consumer and Commercial 

Products—Fiberglass Boat 

Manufacturing Materials, Docket No. 

EPA–HQ–OAR–2008–0415; and 

Consumer and Commercial Products— 

Miscellaneous Industrial Adhesives, 

Docket No. EPA–HQ–OAR–2008–0460. 

All documents in the docket are listed 

in the www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and is publicly available 

only in hard copy form. Publicly 

available docket materials are available 

either electronically through 

www.regulations.gov or in hard copy at 

the EPA Docket Center, Public Reading 

Room, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC 20460. The Public Reading Room is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

information concerning the Clean Air 

Act (CAA) Section 183(e) consumer and 

commercial products program, contact 

Mr. Bruce Moore, U.S. EPA, Office of 

Air Quality Planning and Standards, 

Sector Policies and Programs Division, 

Natural Resources and Commerce Group 

(E143–03), Research Triangle Park, 

North Carolina 27711, telephone 

number: (919) 541–5460, fax number: 

(919) 541–3470, e-mail address: 

moore.bruce@epa.gov. For further 

information on technical issues 

concerning the determination and 

control techniques guidelines (CTG) 

documents for miscellaneous metal and 

plastic parts coatings, or for fiberglass 

boat manufacturing materials, contact: 

Ms. Kaye Whitfield, U.S. EPA, Office of 

Air Quality Planning and Standards, 

Sector Policies and Programs Division, 

Natural Resources and Commerce Group 

(E143–03), Research Triangle Park, 

North Carolina 27711, telephone 

number: (919) 541–2509, fax number: 

(919) 541–3470, e-mail address: 

whitfield.kaye@epa.gov. For further 

information on technical issues 

concerning the determination and CTG 

for auto and light-duty truck assembly 

coatings or the revision of the 

Automobile Topcoat Protocol, contact: 

Mr. Dave Salman, U.S. EPA, Office of 

Air Quality Planning and Standards, 

Sector Policies and Programs Division, 

Coatings and Chemicals Group (E143– 

01), Research Triangle Park, North 

Carolina 27711, telephone number: 

(919) 541–0859, fax number: (919) 541– 

3470, e-mail address: 

salman.dave@epa.gov. For further 

information on technical issues 

concerning the determination and CTG 

for miscellaneous industrial adhesives, 

contact: Ms. Martha Smith, 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) 541–2421, fax 

number: (919) 541–3470, e-mail 

address: smith.martha@epa.gov. 

SUPPLEMENTARY INFORMATION: 


jlentini on PROD1PC65 with RULES
58482 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 

1See EPA’s definition of VOC at 40 CFR 

51.100(s). 

Entities Potentially Affected by this 

Action. The entities potentially affected 

by this action include industrial 

facilities that use the respective 

consumer and commercial products 

covered in this action as follows: 

Category NAICS code a Examples of affected entities 

Miscellaneous metal and plastic 

parts coatings.

331, 332, 333, 334, 336, 482, 811 Facilities that manufacture and repair fabricated metal, machinery, 

computer and electronic equipment, transportation equipment, rail 

transportation equipment. 

Auto and light-duty truck assembly 

coatings.

336111, 336112, 336211 .............. Automobile and light-duty truck assembly plants, producers of automobile and light-duty truck bodies. 

Fiberglass boat manufacturing materials.336612 .......................................... Boat building facilities. 

Miscellaneous industrial adhesives .. 316, 321, 326, 331, 332, 333, 

334, 336, 337, 339, 482, 811.

Facilities that manufacture and repair leather and allied products, 

wood products, plastic and rubber products, fabricated metal, machinery, computer and electronic equipment, transportation equipment, furniture and related products, rail transportation equipment, 

and facilities involved in miscellaneous manufacturing. 

Federal Government ......................... ....................................................... Not affected. 

State/local/Tribal government ........... ....................................................... State, local and Tribal regulatory agencies. 

a North American Industry Classification System. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the appropriate EPA contact listed in 

the FOR FURTHER INFORMATION CONTACT

section of this notice. 

World Wide Web (WWW). In addition 

to being available in the docket, an 

electronic copy of this final action will 

also be available on the Worldwide Web 

(WWW) through the Technology 

Transfer Network (TTN). Following 

signature, a copy of the final action will 

be posted on the TTN’s policy and 

guidance page for newly proposed or 

promulgated rules at the following 

address: http://www.epa.gov/ttn/oarpg/. 

The TTN provides information and 

technology exchange in various areas of 

air pollution control. 

Judicial Review. Under Section 

307(b)(1) of the CAA, judicial review of 

EPA’s listing and final determination is 

available only by filing a petition for 

review in the U.S. Court of Appeals for 

the District of Columbia Circuit by 

December 8, 2008. Under Section 

307(d)(7)(B) of the CAA, only an 

objection to the final determination that 

was raised with reasonable specificity 

during the period for public comment 

can be raised during judicial review. 

Organization of this Document 

The information presented in this 

document is organized as follows: 

I. Background Information 

A. The Ozone Problem 

B. Statutory and Regulatory Background 

C. Significance of Control Techniques 

Guidelines Documents (CTGs) 

II. Significant Changes to the Final CTGs 

A. Miscellaneous Metal and Plastic Parts 

Coatings 

B. Auto and Light-Duty Truck Assembly 

Coatings 

C. Fiberglass Boat Manufacturing Materials 

D. Miscellaneous Industrial Adhesives 

III. Responses to Significant Comments on 

EPA’s Determination 

IV. Statutory and Executive Order (EO) 

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 in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. Background Information 

A. The Ozone Problem 

Ground-level ozone, a major 

component of smog, is formed in the 

atmosphere by reactions of volatile 

organic compounds (VOC)1 and oxides 

of nitrogen in the presence of sunlight. 

The formation of ground-level ozone is 

a complex process that is affected by 

many variables. 

Exposure to ground-level ozone is 

associated with a wide variety of human 

health effects, as well as agricultural 

crop loss, and damage to forests and 

ecosystems. Controlled human exposure 

studies show that acute health effects 

are induced by short-term (1 to 2 hour) 

exposures (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 visits. Groups at 

increased risk of experiencing 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 lung tissue 

and accelerated decline in baseline lung 

function). 

B. Statutory and Regulatory Background 

Under CAA Section 183(e), EPA 

conducted a study of VOC emissions 

from the use of consumer and 

commercial products to assess their 

potential to contribute to levels of ozone 

that violate the National Ambient Air 

Quality Standards (NAAQS) for ozone, 

and to establish criteria for regulating 

VOC emissions from these products. 

Section 183(e) of the CAA directs EPA 

to list for regulation those categories of 

products that account for at least 80 

percent of the VOC emissions, on a 

reactivity-adjusted basis, from consumer 

and commercial products in areas that 


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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 58483 

2See 63 FR 48806, 48819, and 48848 (September 

11, 1998); 72 FR 8428 (February 26, 2007); and 73 

FR 15604 (March 24, 2008). 

3 ‘‘Interim Guidance on Control of Volatile 

Organic Compounds in Ozone State 

Implementation Plans,’’ 70 FR 54046 (September 

13, 2005). 

violate the NAAQS for ozone (i.e., ozone 

nonattainment areas), and to divide the 

list of categories to be regulated into 

four groups. EPA published the initial 

list in the Federal Register on March 23, 

1995 (60 FR 15264). In that notice, EPA 

stated that it may amend the list of 

products for regulation, and the groups 

of product categories, in order to 

achieve an effective regulatory program 

in accordance with the EPA’s discretion 

under CAA Section 183(e). 

EPA has revised the list several times. 

See 70 FR 69759 (November 17, 2005); 

64 FR 13422 (March 18, 1999); and 71 

FR 28320 (May 16, 2006). In the May 

2006 revision, EPA added one product 

category, portable fuel containers, and 

removed one product category, 

petroleum dry cleaning solvents. As a 

result of these revisions, Group IV of the 

list comprises five product categories: 

miscellaneous metal products coatings, 

plastic parts coatings, auto and lightduty truck assembly coatings, fiberglass 

boat manufacturing materials, and 

miscellaneous industrial adhesives. 

Pursuant to the court’s order in Sierra 

Club v. EPA, 1:01–cv–01597–PLF (D.C. 

Cir., March 31, 2006), EPA must take 

final action on the product categories in 

Group IV by September 30, 2008. On 

July 14, 2008, EPA published its 

proposed determination that a CTG is 

substantially as effective as a regulation 

for each of these five categories and 

announced availability of four draft 

CTGs (miscellaneous metal products 

coatings and plastic parts coatings are 

addressed in one CTG referred to as 

‘‘miscellaneous metal and plastic parts 

coatings’’). See 73 FR 40230. 

Any regulations issued under CAA 

Section 183(e) must be based on ‘‘best 

available controls (BAC).’’ CAA Section 

183(e)(1)(A) defines BAC as ‘‘the degree 

of emissions reduction that the 

Administrator determines, on the basis 

of technological and economic 

feasibility, health, environmental, and 

energy impacts, is achievable through 

the application of the most effective 

equipment, measures, processes, 

methods, systems or techniques, 

including chemical reformulation, 

product or feedstock substitution, 

repackaging, and directions for use, 

consumption, storage, or disposal.’’ 

CAA Section 183(e) also provides EPA 

with authority to use any system or 

systems of regulation that EPA 

determines is the most appropriate for 

the product category. Under these 

provisions, EPA has previously issued 

‘‘national’’ regulations for autobody 

refinishing coatings, consumer 

products, architectural coatings, 

portable fuel containers, and aerosol 

coatings.2

CAA Section 183(e)(3)(C) further 

provides that EPA may issue a CTG in 

lieu of a national regulation for a 

product category where EPA determines 

that the CTG will be ‘‘substantially as 

effective as regulations’’ in reducing 

emissions of VOC in ozone 

nonattainment areas. The statute does 

not specify how EPA is to make this 

determination, but does provide a 

fundamental distinction between 

national regulations and CTGs. 

Specifically, for national regulations, 

CAA Section 183(e) defines regulated 

entities as: 

(i) . . . manufacturers, processors, 

wholesale distributors, or importers of 

consumer or commercial products for sale or 

distribution in interstate commerce in the 

United States; or (ii) manufacturers, 

processors, wholesale distributors, or 

importers that supply the entities listed 

under clause (i) with such products for sale 

or distribution in interstate commerce in the 

United States. 

Thus, under CAA Section 183(e), a 

regulation for consumer or commercial 

products is limited to measures 

applicable to manufacturers, processors, 

distributors, or importers of consumer 

and commercial products supplied to 

the consumer or industry. CAA Section 

183(e) does not authorize EPA to issue 

national regulations that would directly 

regulate end-users of these products. By 

contrast, CTGs are guidance documents 

that recommend reasonably available 

control technology (RACT) measures 

that States can adopt and apply to the 

end users of products. This dichotomy 

(i.e., that EPA cannot directly regulate 

end-users under CAA Section 183(e), 

but can address end-users through a 

CTG) created by Congress is relevant to 

EPA’s evaluation of the relative merits 

of a national regulation versus a CTG. 

C. Significance of Control Techniques 

Guidelines Documents (CTGs) 

CAA Section 172(c)(1) provides that 

State implementation plans (SIPs) for 

nonattainment areas must include 

‘‘reasonably available control measures 

(RACM),’’ including RACT, for sources 

of emissions. CAA Section 182(b)(2)(A) 

provides that for certain nonattainment 

areas, States must revise their SIPs to 

include RACT for each category of VOC 

sources covered by a CTG document 

issued between November 15, 1990, and 

the date of attainment. 

EPA defines RACT as ‘‘the lowest 

emission limitation that a particular 

source is capable of meeting by the 

application of control technology that is 

reasonably available considering 

technological and economic feasibility, 

44 FR 53761 (September 17, 1979).’’ In 

subsequent notices, EPA has addressed 

how States can meet the RACT 

requirements of the CAA. Significantly, 

RACT for a particular industry is 

determined on a case-by-case basis, 

considering issues of technological and 

economic feasibility. 

EPA provides States with guidance 

concerning what types of controls could 

constitute RACT for a given source 

category through issuance of a CTG. The 

recommendations in the CTG are based 

on available data and information and 

may not apply to a particular situation 

based upon the circumstances of a 

specific source. States can follow the 

CTG and adopt State regulations to 

implement the recommendations 

contained therein, or they can adopt 

alternative approaches. In either event, 

States must submit their RACT rules to 

EPA for review and approval as part of 

the SIP process. EPA will evaluate the 

rules and determine, through notice and 

comment rulemaking in the SIP 

approval process, whether the 

submitted rules meet the RACT 

requirements of the CAA and EPA’s 

regulations. To the extent a State adopts 

any of the recommendations in a CTG 

into its State RACT rules, interested 

parties can raise questions and 

objections about the substance of the 

guidance and the appropriateness of the 

application of the guidance to a 

particular situation during the 

development of the State rules and 

EPA’s SIP approval process. 

We encourage States in developing 

their RACT rules to consider carefully 

the facts and circumstances of the 

particular sources in their States 

because, as noted above, RACT is 

determined on a case-by-case basis, 

considering issues of technological and 

economic feasibility. For example, a 

State may decide not to require 90 

percent control efficiency at facilities 

that are already well controlled, if the 

additional emission reductions would 

not be cost-effective. States may also 

want to consider reactivity-based 

approaches, as appropriate, in 

developing their RACT regulations.3

Finally, if States consider requiring 

more stringent VOC content limits than 

those recommended in the CTGs, States 

may also wish to consider averaging, as 

appropriate. In general, the RACT 

requirement is applied on a short-term 


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58484 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 

4See, e.g., 52 FR 45108, col. 2, ‘‘Compliance 

Periods’’ (November 24, 1987). ‘‘VOC rules should 

describe explicitly the compliance timeframe 

associated with each emission limit (e.g., 

instantaneous or daily). However, where the rules 

are silent on compliance time, EPA will interpret 

it as instantaneous.’’ 

5Memorandum from John O’Connor, Acting 

Director of the Office of Air Quality Planning and 

Standards, January 20, 1984, ‘‘Averaging Times for 

Compliance with VOC Emission Limits—SIP 

Revision Policy.’’ 

6 ‘‘Improving Air Quality with Economic 

Incentive Programs, January 2001,’’ available at 

http://www.epa.gov/region07/programs/artd/air/ 

policy/search.htm. 

basis up to 24 hours.4 However, EPA 

guidance addresses averaging times 

longer than 24 hours under certain 

conditions.5 The EPA’s ‘‘Economic 

Incentive Policy’’ 6 provides guidance 

on use of long-term averages with regard 

to RACT and generally provides for 

averaging times of no greater than 30 

days. Thus, if the appropriate 

conditions are present, States may wish 

to consider the use of averaging in 

conjunction with more stringent limits. 

Because of the nature of averaging, 

however, we would expect that any 

State RACT rules that allow for 

averaging also include appropriate 

recordkeeping and reporting 

requirements. 

By this action, we are taking final 

action to list the five Group IV 

consumer and commercial product 

categories addressed in this notice 

pursuant to CAA Section 183(e). 

Further, we are issuing final CTGs that 

cover these five product categories in 

Group IV of the CAA Section 183(e) list. 

These CTGs are guidance to the States 

and provide recommendations only. A 

State can determine what constitutes 

RACT for these product categories, and 

EPA will review the State’s rules 

reflecting RACT in the context of the 

SIP process and determine whether 

those rules meet the RACT requirements 

of the CAA and its implementing 

regulations. 

Finally, CAA Section 182(b)(2) 

provides that a CTG issued after 1990 

specify the date by which a State must 

submit a SIP revision in response to the 

CTG. In the CTGs at issue here, EPA 

provides that States should submit their 

SIP revisions within one year of the date 

that the CTGs are finalized. 

II. Significant Changes to the Final 

CTGs 

In response to comments, we have 

made certain changes to the final CTGs 

for the Group IV consumer and 

commercial product categories. 

Specifically, we have included 

definitions to clarify the scope of certain 

types of products to which our 

recommended VOC limits apply. 

Further, for various reasons described 

below, we have either added 

recommended VOC limits specifically 

for certain specialty product categories 

that would have otherwise been covered 

by more generic VOC limits 

recommended in the CTG, or changed 

our draft recommended VOC limits for 

certain specialty products. We also 

recommended not applying the 

recommended limits to certain lowvolume materials supplied in small 

containers and clarified that the 

recommended limits do not apply to 

aerosol spray cans. These changes, 

which are described in more detail 

below, do not affect our proposed 

determination in the July 14, 2008 

notice that a CTG is substantially as 

effective as a national rule for 

addressing VOC emissions from the 

Group IV consumer and commercial 

products in ozone nonattainment areas. 

None of the comments raised issues 

with any of the rationales we provided 

in support of our proposed 

determination. Further, because the 

above-mentioned changes to our 

recommended limits make up only a 

very small percentage of the consumer 

and commercial products listed under 

CAA Section 183(e) Group IV, we do not 

believe that these changes alter the VOC 

emission reductions discussed in the 

July 14, 2008 notice in any material 

way. Thus, the rationales we expressed 

in the July notice in support of the 

determination are unaffected by these 

changes. For the reasons described in 

the July 2008 notice and this document, 

we have determined that CTGs are 

substantially as effective as national 

rules for these Group IV consumer and 

commercial products. 

Provided below is a summary of the 

changes made in each of the final CTGs 

addressed in this notice. 

A. Miscellaneous Metal and Plastic 

Parts Coatings 

To further clarify the scope of each 

category for which we recommend 

specific VOC limits, the final CTG 

includes a definition for each of the 

coating categories with recommended 

VOC limits. These definitions are 

adopted from the South Coast Air 

Quality Management District 

(SCAQMD) and Michigan rules that are 

the basis for the recommended VOC 

limits. 

In response to public comments, we 

have added to our recommendations in 

the final CTG specific VOC limits for 

eight categories of pleasure craft (i.e., 

recreational boats) surface coatings 

based on SCAQMD Rule 1106.1. We 

learned from the commenters that VOC 

limits for pleasure craft are covered 

under SCAQMD Rule 1106.1 (February 

12, 1999), and not under SCAQMD 

Rules 1107 and 1145, on which the 

recommended VOC limits in the draft 

CTG were based. The commenters also 

noted that pleasure craft surface 

coatings can not achieve the limits in 

SCAQMD Rules 1107 and 1145 and at 

the same time meet performance 

requirements for use in marine 

environments. In response to these 

comments, we reviewed the VOC limits 

for pleasure craft surface coatings in 

SCAQMD Rule 1106.1 and found that 

they reflect the RACT level of control 

for these coatings. These limits are the 

same as those in several other California 

Districts. All but three of these limits 

have been in place since 1994 and the 

remaining three (extreme high gloss 

coatings, finish primer/surfacer, and 

non-aluminum antifoulant coatings) 

have been in effect since 2001. There is 

no indication that the SCAQMD Rule 

1106.1 VOC limits recommended by the 

commenters are unachievable or 

unreasonable for sources outside these 

California Districts. We are also not 

aware of any pleasure craft surface 

coating operation performing under 

VOC limits lower than those provided 

in SCAQMD Rule 1106.1. For the 

reasons stated above, we recommend in 

the final CTG the VOC limits in 

SCAQMD Rule 1106.1 for pleasure craft 

surface coatings to address these 

coatings’ unique performance 

requirements. 

In the draft CTG, we requested 

comment on whether certain materials 

(sealers, deadeners, transit coatings, and 

cavity waxes) used at automobile and 

light-duty truck assembly plants that 

were included in the miscellaneous 

metal and plastic parts coatings category 

and addressed in the draft CTG for 

miscellaneous metal and plastic parts 

coatings should instead be included in 

the auto and light-duty truck assembly 

coatings category and addressed in the 

CTG for that category. All commenters 

on the draft CTG responded that 

recommendations for these materials 

should be in the auto and light-duty 

truck assembly coatings category and 

addressed in the CTG for that category 

to simplify implementation and 

compliance and to clarify EPA’s 

recommendations for these materials. 

In response to these comments, we 

have clarified in the final auto and lightduty truck assembly coatings CTG that 

it covers the following materials: 

automobile and light-duty truck cavity 

wax, automobile and light-duty truck 

sealers, automobile and light-duty truck 

deadeners, automobile and light-duty 

truck gasket/gasket sealing material, 

automobile and light-duty truck 


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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 58485 

7Exempt compounds are those classified by EPA 

as having negligible photochemical reactivity as 

listed in 40 CFR 51.100(s). Exempt compounds are 

not considered to be VOC. 

underbody coatings, and automobile 

and light-duty truck lubricating wax/ 

compound. For further discussion on 

how we address these materials, please 

see section II.B of this notice and the 

final auto and light-duty truck assembly 

coatings CTG. 

Similar materials are used in the 

production of vehicles other than 

automobiles or light-duty trucks, or are 

related to the production of a new 

automobile or new light-duty truck at a 

facility that is not an automobile or 

light-duty truck assembly coatings 

facility. These materials are included as 

‘‘motor vehicle’’ materials in the 

miscellaneous metal and plastic parts 

coatings category and addressed in the 

final CTG for this category. The same 

limits that are recommended for 

‘‘automobile and light-duty truck’’ 

materials in the auto and light-duty 

truck assembly coatings CTG are 

recommended for ‘‘motor vehicle’’ 

materials in this CTG. Please see section 

II.B of this notice for the rationale for 

these recommended limits. 

The recommended VOC emission 

limits in the final miscellaneous metal 

and plastic parts coatings CTG for the 

motor vehicle materials described above 

are as follows (grams VOC per liter of 

coating, less water and exempt 

compounds,7 g/l): 

• Motor vehicle cavity wax—650 

g/l. 

• Motor vehicle sealer—650 g/l. 

• Motor vehicle deadener—650 g/l. 

• Motor vehicle gasket/gasket sealing 

material—200 g/l. 

• Motor vehicle underbody coating— 

650 g/l. 

• Motor vehicle lubricating wax/ 

compound—700 g/l. 

• Motor vehicle trunk interior 

coating—650 g/l. 

• Motor vehicle bedliner—200 g/l. 

In the final CTG, we revised the 

recommended VOC content limit for 

high performance architectural coatings. 

The limit for this category in the draft 

CTG was 3.5 lb VOC/gallon, less water 

and exempt compounds. We received a 

comment that there are no liquid high 

performance architectural coatings 

available today that can meet this limit. 

The commenter suggested a limit of 6.2 

lb VOC/gallon. According to the 

commenter, reformulated liquid 

coatings can meet this limit, and further 

reformulation may not be technically 

feasible while still meeting the requisite 

performance characteristics for high 

performance architectural coatings. The 

commenter also referenced the organic 

HAP content limit for these coatings in 

the Miscellaneous Metal Parts and 

Products NESHAP, 40 CFR part 63, 

subpart MMMM. The commenter noted 

that the NESHAP limit is consistent 

with a VOC content of 6.2 lb VOC/ 

gallon. The commenter also noted that 

converting from a liquid coating to a 

powder coating or installing and 

operating add-on controls would be 

necessary in order to meet the VOC 

limit recommended for this coating 

category in the draft CTG, and that each 

of these approaches would be cost 

prohibitive. The commenter therefore 

argued that the VOC limit for high 

performance architectural coatings 

recommended in the draft CTG is not 

reflective of RACT for these coatings. 

We agree with the commenter that 

liquid high performance architectural 

coatings currently available and in use 

today contain significantly more than 

3.5 lb VOC/gallon. We believe that the 

cost of converting to powder coatings or 

installing and operating add-on controls 

to meet a limit of 3.5 lb VOC/gallon 

generally would be unreasonable 

compared to the emission reduction that 

would be achieved. We further agree 

with the commenter that a limit of 6.2 

lb VOC/gallon can be achieved by the 

liquid high performance architectural 

coatings currently available and in use 

today and that further reformulation 

may not be technically feasible. In light 

of all of the above, we believe that the 

6.2 lb VOC/gallon limit represents 

RACT for high performance 

architectural coatings. Accordingly, in 

the final CTG, we revised our 

recommended VOC limit for high 

performance architectural coatings to be 

6.2 lb/gal. 

In the draft CTG, we recommended 

that VOC limits for red and black 

coatings used for automotive/ 

transportation plastic parts could be 15 

percent higher than for other colors. 

Higher limits were allowed for red and 

black coatings because the organic 

pigments used for these colors absorb 

oil and require more VOC to maintain 

proper coating viscosity. Commenters 

requested that the same allowance 

should also be made for yellow coatings 

since these coatings now use organic 

pigments instead of inorganic pigments, 

and these organic pigments also absorb 

oil and require more VOC to maintain 

proper coating viscosity. The inorganic 

pigments formerly used in yellow 

coatings often contain hexavalent 

chromium. Other environmental and 

worker health programs restrict the use 

of hexavalent chromium in pigments 

because it is a known human 

carcinogen, and it is being replaced with 

organic yellow pigments. So as not to 

create a barrier to the use of organic 

yellow pigments in place of hexavalent 

chromium, we are recommending in the 

final CTG higher VOC limits for yellow 

coatings used for automotive/ 

transportation plastic parts. 

In response to comments on how to 

determine the VOC content of materials, 

we recommend in the final CTG that the 

VOC content of coatings used at 

miscellaneous metal and plastic part 

coating facilities be determined using 

EPA Method 24. In addition, we 

recommend that manufacturer’s 

formulation data be accepted as an 

alternative to EPA Method 24. If there 

is a disagreement between 

manufacturer’s formulation data and the 

results of a subsequent test, we 

recommend that States use the test 

method results unless the facility can 

make a demonstration to the States’ 

satisfaction that the manufacturer’s 

formulation data are correct. 

B. Auto and Light-Duty Truck Assembly 

Coatings 

In the July 2008 notice we requested 

comment on whether certain materials 

(sealers, deadeners, transit coatings, 

cavity waxes, glass bonding primers, 

and glass bonding adhesives) used at 

automobile and light-duty truck 

assembly plants that were included in 

either the miscellaneous metal and 

plastic parts coatings categories or the 

miscellaneous industrial adhesives and 

addressed in the respective draft CTG 

should instead be included in the auto 

and light-duty truck assembly coatings 

category and addressed in the CTG for 

this category. All commenters on the 

draft CTG responded that 

recommendations for these materials 

should be in the auto and light-duty 

truck assembly coatings category and 

addressed in the CTG for this category 

to simplify implementation and 

compliance and to clarify EPA’s 

recommendations for these materials. 

In response to these comments, we 

have clarified in the final auto and lightduty truck assembly coatings CTG that 

it covers the following materials: 

Automobile and light-duty truck glass 

bonding primer, automobile and lightduty truck adhesive, automobile and 

light-duty truck cavity wax, automobile 

and light-duty truck sealer, automobile 

and light-duty truck deadener, 

automobile and light-duty truck gasket/ 

gasket sealing material, automobile and 

light-duty truck underbody coating, 

automobile and light-duty truck trunk 

interior coating, automobile and lightduty truck bedliner, automobile and 

light-duty truck weatherstrip adhesive, 

and automobile and light-duty truck 


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lubricating wax/compound. To clarify 

the scope of these materials, the final 

CTG includes definitions for these 

materials. It also includes the following 

recommended VOC emission limits for 

the application of these materials: 

• Automobile and light-duty truck 

glass bonding primer—900 g/l. 

• Automobile and light-duty truck 

adhesive—250 g/l. 

• Automobile and light-duty truck 

cavity wax—650 g/l. 

• Automobile and light-duty truck 

sealer—650 g/l. 

• Automobile and light-duty truck 

deadener—650 g/l. 

• Automobile and light-duty truck 

gasket/gasket sealing material—200 g/l. 

• Automobile and light-duty truck 

underbody coating—650 g/l. 

• Automobile and light-duty truck 

trunk interior coating—650 g/l. 

• Automobile and light-duty truck 

bedliner—200 g/l. 

• Automobile and light-duty truck 

weatherstrip adhesive—750 g/l. 

• Automobile and light-duty truck 

lubricating wax/compound—700 g/l. 

We have provided below a brief 

summary of our rationale for each of 

these limits. As discussed in sections 

II.A and II.D of this notice, similar 

materials are used in the production of 

vehicles other than automobiles or lightduty trucks, or are related to the 

production of a new automobile or new 

light-duty truck at a facility that is not 

an automobile or light-duty truck 

assembly coatings facility. These 

materials are included as ‘‘motor 

vehicle’’ materials in the miscellaneous 

metal products, plastic parts coatings, or 

miscellaneous industrial adhesives 

categories and addressed in the CTGs 

for those categories. The same limits 

that are recommended for ‘‘automobile 

and light-duty truck’’ materials in the 

auto and light-duty truck assembly 

coatings CTG are recommended for 

‘‘motor vehicle’’ materials in those 

CTGs, and the following rationale 

applies both to ‘‘automobile and lightduty truck’’ materials and ‘‘motor 

vehicle’’ materials. 

The draft miscellaneous industrial 

adhesives CTG recommended a material 

specific limit of 700 grams of VOC per 

liter for glass bonding primer (referred 

to as ‘‘automotive glass adhesive 

primer’’ in that document). Commenters 

indicated that currently used materials 

contain up to 900 grams of VOC per 

liter. Eliminating the use of the 

materials in the 700 to 900 grams of 

VOC per liter range may not be 

technically feasible. The cost of the 

testing required to confirm material 

performance and compliance with 

Federal crash safety standards and 

windshield integrity requirements 

would be unreasonable compared to the 

small emission reduction that would be 

achieved. As a result, we conclude that 

the 900 grams of VOC per liter limit 

recommended in the final CTG is 

representative of RACT for automobile 

and light-duty truck glass bonding 

primer. 

The draft CTGs for miscellaneous 

metal and plastic parts coatings and for 

miscellaneous industrial adhesives did 

not have product specific 

recommendations for automobile and 

light-duty truck adhesive, automobile 

and light-duty truck cavity wax, 

automobile and light-duty truck sealer, 

automobile and light-duty truck 

deadener, automobile and light-duty 

truck gasket/gasket sealing material, 

automobile and light-duty truck 

underbody coating, automobile and 

light-duty truck trunk interior coating, 

automobile and light-duty truck 

weatherstrip adhesive, or automobile 

and light-duty truck lubricating wax/ 

compound. Rather, these materials fell 

under general product categories in 

these draft CTGs. For each of these types 

of materials, commenters provided 

information on the VOC content of the 

materials currently in use and asserted 

that the cost of the testing required to 

confirm the performance of lower VOC 

content materials would be 

unreasonable compared to the small 

emission reduction that would be 

achieved. We agree with the 

commenter’s assertion and conclude 

that the limits recommended for these 

materials in the final CTG are 

representative of RACT. 

Bedliner is an air dried multicomponent coating typically applied by 

vehicle dealers or aftermarket 

applicators. In the draft CTG for 

miscellaneous metal and plastic parts 

coatings, bedliner would have fallen 

under the general multi-component 

coating category which had a 

recommended limit of 340 grams of 

VOC per liter. One commenter indicated 

that bedliner is applied at some of its 

automobile and light-duty truck 

assembly plants. We are not aware of 

any other automobile and light-duty 

truck assembly plants that apply 

bedliner. The bedliner applied at the 

commenter’s plants contains less than 

200 grams of VOC per liter. This is 

similar to the VOC content of 

aftermarket bedliner in the 

miscellaneous metal products, or plastic 

parts coatings categories and addressed 

in the CTG for miscellaneous metal and 

plastic parts coatings. As a result, we 

conclude that the 200 grams of VOC per 

liter limit recommended in the final 

CTG for auto and light-duty truck 

assembly coatings is representative of 

RACT for automobile and light-duty 

truck bedliner. 

We also revised the final auto and 

light-duty truck assembly coatings CTG 

to recommend not applying the 

recommended limits to materials that 

are supplied to the automobile and 

light-duty truck assembly plants in 

containers with a net volume of 16 

ounces or less, or a net weight of one 

pound or less. We made this change in 

response to comments that these low 

volume materials have small VOC 

emissions and the cost of controlling 

them outweighs the emission reductions 

that could be achieved. We agree with 

this assessment. 

In response to comments on how to 

determine the VOC content of materials, 

we recommend in the final CTG that the 

VOC content of coatings, other than 

reactive adhesives, used at automobile 

and light-duty truck assembly plants be 

determined using EPA Method 24. We 

recommend that the procedure for 

reactive adhesives in Appendix A of the 

NESHAP for surface coating of plastic 

parts (40 CFR Part 63, subpart PPPP) be 

used to determine the VOC content of 

reactive adhesives. In addition, we 

recommend that manufacturer’s 

formulation data be accepted as an 

alternative to these methods. If there is 

a disagreement between manufacturer’s 

formulation data and the results of a 

subsequent test, we recommend that 

States use the test method results unless 

the facility can make a demonstration to 

the States’ satisfaction that the 

manufacturer’s formulation data are 

correct. 

Finally, in conjunction with the draft 

CTG we prepared a draft revision of the 

Automobile Topcoat Protocol. 

Commenters supported the revision of 

the protocol. We are issuing the final 

revised protocol concurrent with the 

final CTG. 

C. Fiberglass Boat Manufacturing 

Materials 

In response to public comments, 

several changes were made to the final 

CTG to clarify the recommended control 

measures. We clarified that certain nonatomizing resin application 

technologies, such as fluid impingement 

technology, meet the recommended 

resin application equipment 

specifications under certain 

recommended compliance options. We 

also revised the description of ‘‘hand 

application’’ to include non-spray and 

non-atomizing application methods 

similar to hand- or mechanicallypowered caulking guns (e.g., similar to 

those used to apply bonding putty), 

brush, and direct hand application. 


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These are low-emission application 

methods used by many boat builders. 

In the final CTG, we clarified that 

polyester bonding putties are included 

in the fiberglass boat manufacturing 

materials category and addressed in the 

final CTG for this category. We 

explained that these putties, which are 

made from a mixture of resin and filler, 

are not considered adhesives since they 

are part of the composite structure. 

However, no VOC content limits are 

recommended for polyester bonding 

putties in the final fiberglass boat 

manufacturing CTG, but we do 

recommend covers for mixing 

containers used to prepare these putties. 

Because these putties are encapsulated 

between the parts or surfaces they are 

bonding, minimal area is exposed to the 

air and most of the styrene is 

incorporated into the cured resin 

matrix. Therefore, VOC emissions from 

these putties are inherently low. For this 

reason, polyester bonding putties are 

not subject to HAP limits, which are 

based on styrene and methyl 

methacrylate (MMA) emissions in the 

Boat Manufacturing NESHAP, 40 CFR 

part 63, subpart VVVV. Similarly, no 

VOC content limits are recommended 

for these materials in the final CTG, but 

covers are recommended for the putty 

mixing containers. 

The final CTG also does not include 

recommended VOC limits for resin and 

gel coat used for mold and part touch up 

and repair. No VOC limits are 

recommended because these materials 

are used in small volumes (e.g., just an 

ounce or two at a time); therefore, VOC 

emissions from these materials are quite 

low. Further, these materials need to 

have higher VOC contents so that the 

repairs will bond to the existing mold or 

part. For these reasons, resin and gel 

coat used for mold and part touch up 

and repair are not subject to HAP 

content limits in the boat manufacturing 

NESHAP; however, under the NESHAP, 

they are subject to a usage limit and 

must not account for more than 1 

percent of the total resin and gel coat 

used at a facility. Similarly, no VOC 

limits are recommended for these 

materials in the final CTG, but we are 

also recommending that resin and gel 

coat used for mold and part touch up 

and repair not exceed 1 percent by 

weight of all resin and gel coat used at 

a facility on a 12-month rolling-average 

basis. 

In response to public comments, we 

are revising the VOC content limits for 

resins and gel coats such that they now 

consist of a monomer VOC content limit 

and a limit on the non-monomer VOC 

content. We received comments that 

compliance with our recommended 

VOC limits, which were equal to the 

HAP content limits in the NESHAP, 

may not be feasible because the VOC 

content in resins and gel coats may be 

greater than the HAP content. As 

previously explained in the draft CTG, 

the NESHAP HAP content limits were 

based on styrene and MMA contents in 

resins and gel coats. Because nearly all 

VOC in resins and gel coats used in 

fiberglass boat manufacturing are 

styrene and MMA, we recommended 

the NESHAP HAP content limits as the 

VOC limits in the draft CTG. However, 

commenters noted that the VOC content 

of resins and gel coats may exceed the 

HAP content since these materials may 

include a small percent of non-HAP 

VOC, about 0.5 to 5 percent of the total 

weight of the resin or gel coat. 

Therefore, it may not be feasible for 

some materials to achieve the 

recommended VOC limits in the draft 

CTG, which only accounted for styrene 

and MMA. 

To resolve this issue, the final CTG 

recommends a control option to address 

all VOC in these materials based on 

monomer VOC and non-monomer VOC. 

Monomer VOCs react in a chemical 

cross linking reaction to convert these 

materials from liquids to solids. The 

only monomer VOCs in these materials 

that we have identified are styrene and 

MMA. According to the commenters, 

other VOC that are not monomers may 

be present in these materials at 0.5 to 5 

percent by weight of the resin and gel 

coat. In light of the above information, 

we recommend in the final CTG that 

States adopt the HAP content limits in 

the NESHAP as monomer VOC content 

limits. In addition, we recommend that 

the States limit the non-monomer VOC 

content of resins and gel coats to 5 

percent by weight of the resin or gel 

coat. If the non-monomer VOC content 

exceeds 5 percent, we recommend that 

the amount over 5 percent be counted 

toward the monomer VOC content of the 

material. For example, if a resin 

contained 34 percent monomer VOC, 

but 6 percent non-monomer VOC, then 

the resin would be treated in each 

recommended compliance option as if it 

had a monomer VOC content of 35 

percent because of the 1 percent nonmonomer VOC that was over the 5 

percent recommended limit for nonmonomer VOC. 

In response to comments on how to 

determine the VOC content of materials, 

we recommend in the final CTG that the 

monomer VOC content of resin and gel 

coat materials be determined using 

SCAQMD Method 312–91, 

Determination of Percent Monomer in 

Polyester Resins. In addition, we 

recommend that manufacturer’s 

formulation data be accepted as an 

alternative to this method. If there is a 

disagreement between manufacturer’s 

formulation data and the results of a 

subsequent test, we recommend that 

States use the test method results unless 

the facility can make a demonstration to 

the States’ satisfaction that the 

manufacturer’s formulation data are 

correct. 

D. Miscellaneous Industrial Adhesives 

We revised the final CTG to 

recommend not applying the 

recommended limits to materials that 

are supplied to the facilities operating 

miscellaneous industrial adhesive 

application processes in containers with 

a net volume of 16 ounces or less, or a 

net weight of one pound or less. We 

made this change in response to 

comments that these low volume 

materials have small VOC emissions 

and the cost of controlling them 

outweighs the emission reductions that 

could be achieved. We agree with this 

assessment. This is also consistent with 

the small container exemption in the 

Ozone Transport Commission (OTC) 

model rule. 

In response to comments on how to 

determine the VOC content of materials, 

we recommend in the final CTG that the 

VOC content of adhesives, other than 

reactive adhesives, used at facilities 

operating miscellaneous industrial 

adhesive application processes be 

determined using EPA Method 24. We 

recommend that the procedure for 

reactive adhesives in Appendix A of the 

NESHAP for surface coating of plastic 

parts (40 CFR part 63, subpart PPPP) be 

used to determine the VOC content of 

reactive adhesives. In addition, we 

recommend that manufacturer’s 

formulation data be accepted as an 

alternative to these methods. If there is 

a disagreement between manufacturer’s 

formulation data and the results of a 

subsequent test, we recommend that 

States use the test method results unless 

the facility can make a demonstration to 

the States’ satisfaction that the 

manufacturer’s formulation data are 

correct. 

We also clarified in the final CTG that 

polyester bonding putties used to 

assemble fiberglass parts at fiberglass 

boat manufacturing facilities and at 

other reinforced plastic composite 

manufacturing facilities are not 

included in the miscellaneous industrial 

adhesives category and are not 

addressed in the CTG for this category. 

These bonding putties are part of the 

composite structure and are not 

adhesives. For further discussions on 

these putties, please see section II.C of 


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58488 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 

this notice and the final fiberglass boat 

manufacturing materials CTG. 

In the final miscellaneous industrial 

adhesives CTG, we also revised the 

definition of porous material to exclude 

wood. In the draft CTG, we 

recommended separate emission limits 

for wood application processes and for 

porous material (except wood) 

application processes. However, we 

inadvertently included wood in the 

definition of porous material in the draft 

CTG. This was an oversight, and wood 

has been excluded from the definition of 

porous material in the final CTG. 

We also replaced the term ‘‘tire 

retreading’’ in the CTG with ‘‘tire 

repair’’. This change was made in 

response to a comment that the OTC 

model rule, on which the CTG 

definition was based, uses the term ‘‘tire 

repair’’ for the same definition. We 

made this change to be consistent with 

the OTC model rule and to more 

accurately describe the specific process 

being defined. 

In the draft CTG we requested 

comment on whether certain materials 

(glass bonding primers and glass 

bonding adhesives) used at automobile 

and light-duty truck assembly plants 

that were included in the miscellaneous 

industrial adhesives category and 

addressed in the draft CTG for 

miscellaneous industrial adhesives 

should instead be included in the auto 

and light-duty truck assembly coatings 

category and addressed in the CTG for 

that category. All commenters on the 

draft CTG responded that 

recommendations for these materials 

should be in the auto and light-duty 

truck assembly coatings category and 

addressed in the CTG for that category 

to simplify implementation and 

compliance and to clarify EPA’s 

recommendations for these materials. 

In response to these comments, we 

have clarified in the final auto and lightduty truck assembly coatings CTG that 

it covers the following materials: 

automobile and light-duty truck glass 

bonding primer, automobile and lightduty truck adhesive, and automobile 

and light-duty truck weatherstrip 

adhesive. For further discussion on how 

we address these materials, please see 

section II.B of this notice and the final 

auto and light-duty truck assembly 

coatings CTG. 

Similar materials are used in the 

production of vehicles other than 

automobiles or light-duty trucks, or are 

related to the production of a new 

automobile or new light-duty truck at a 

facility that is not an automobile or 

light-duty truck assembly coatings 

facility. These materials are included as 

‘‘motor vehicle’’ materials in the 

miscellaneous industrial adhesives 

category and addressed in the final CTG 

for this category. The same limits that 

are recommended for ‘‘automobile and 

light-duty truck’’ materials in the auto 

and light-duty truck assembly coatings 

CTG are recommended for ‘‘motor 

vehicle’’ materials in this CTG. Please 

see section II.B of this notice for the 

rationale for these recommended limits. 

The recommended VOC emission 

limits in the final miscellaneous 

industrial adhesives CTG for the motor 

vehicle materials described above are as 

follows: 

• Motor vehicle glass bonding 

primer—900 g/l. 

• Motor vehicle adhesive—250 g/l. 

• Motor vehicle weatherstrip 

adhesive—750 g/l. 

Please note that, in the final CTG, the 

term ‘‘motor vehicle glass bonding 

primer’’ replaces the term ‘‘automotive 

glass adhesive primer’’ provided in the 

draft CTG. The terms have the same 

definition, but ‘‘glass bonding primer’’ 

is the term more commonly used in the 

automotive and motor vehicle industry. 

III. Responses to Significant Comments 

on EPA’s Determination 

All commenters that addressed EPA’s 

proposed CAA Section 183(e)(3)(C) 

determination that CTGs will be 

substantially as effective as national 

regulations in reducing emissions of 

VOC in ozone nonattainment areas from 

the miscellaneous metal products 

coatings, plastic parts coatings, auto and 

light-duty truck assembly coatings, and 

fiberglass boat manufacturing materials 

product categories agreed with the 

proposed determination. 

In support of EPA’s proposed 

determination and issuance of draft 

CTGs for these product categories, 

commenters remarked that the CTG 

approach would afford industry 

flexibility to achieve VOC emission 

reductions while not compromising 

their ability to meet customer needs. We 

received comments noting that the CTG 

approach allows States greater 

flexibility to tailor regulatory 

requirements to their specific 

circumstances. The commenter stated 

that site-specific factors necessitate the 

need for flexible controls. According to 

the commenters, because there can be 

great variation in the operations of 

facilities and the environmental 

conditions in which they operate, State 

regulators should be granted some 

latitude to fashion control strategies to 

address the variables that are inherent to 

the formation of ground-level ozone in 

their States. The commenters concluded 

that the CTG approach affords this 

flexibility by allowing the use of a 

variety of mechanisms to achieve 

emission reductions. 

With respect to the miscellaneous 

industrial adhesives category, we 

similarly received comments agreeing 

with EPA’s determination that a CTG is 

substantially as effective as a rule. 

However, we also received comments 

supporting the issuance of a national 

rule rather than a CTG for this product 

category. These commenters raised no 

concerns or issues with EPA’s rationales 

for its proposed determination that a 

CTG is substantially as effective as a 

rule in reducing VOC emissions from 

miscellaneous industrial adhesives in 

ozone nonattainment areas. Rather, the 

commenters explained that regulation of 

manufacturers of industrial adhesives 

would cover a wider variety of 

materials, and thus achieve greater VOC 

emissions reductions, than measures 

limiting emissions from the products at 

the point of use. The commenters 

further argued that manufacturers have 

greater control over the VOC content 

and associated emissions of industrial 

adhesives than do users, given that 

individual industrial adhesives are 

formulated to perform specific functions 

and, unlike other coating materials, are 

not ordinarily thinned or otherwise 

altered prior to use by the user. The 

commenters stated that, among the 

categories of adhesive materials covered 

in the proposed CTG, a number of them 

are more likely to be used ‘‘in the field’’ 

or at construction sites rather than in 

manufacturing facilities. One 

commenter added that any uncertainty 

regarding the industry sectors that are 

covered by the miscellaneous industrial 

adhesives source category would be 

resolved by regulating industrial 

adhesives at the point of manufacture 

rather than the point of use. The 

commenter expressed concern that a 

CTG for adhesives would require 

enforcement at innumerable 

manufacturing facilities nationwide, 

resulting in significant costs. The 

commenter added that in contrast, a 

national rule applicable to 

manufacturers of industrial adhesives 

would greatly reduce the number of 

regulated entities and simplify 

enforcement, and reduce costs. 

EPA appreciates the commenters’ 

concerns and suggestions. However, for 

the following reasons, EPA rejects the 

commenters’ suggestion that EPA 

should issue a national rule for the 

Section 183(e) miscellaneous industrial 

adhesives category. As an initial matter, 

the scope of adhesives that the 

commenters suggest that EPA cover 

under a national rule is broader than the 

Section 183(e) miscellaneous industrial 

adhesives category. In EPA’s Report to 


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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 58489 

8See ‘‘Consumer and Commercial Products: 

Schedule for Regulation’’ (60 FR 15264, March 23, 

1995) 

Congress, Study of Volatile Organic 

Compound Emissions from Consumer 

and Commercial Products— 

Comprehensive Emissions Inventory 

(EPA–453/R–94–066–B, March 1995), 

supporting the Section 183(e) consumer 

and commercial product category list 

that EPA compiled in 1995 and the 

schedule for taking action on the listed 

product categories,8 the ‘‘miscellaneous 

industrial adhesives’’ product category 

was clearly described as comprising 

adhesives used in industrial 

manufacturing operations. Accordingly, 

this product category does not include 

field-applied adhesives (e.g., plastic 

solvent welding cements used by 

plumbers to join plumbing pipes on 

construction jobs in the field). 

In the July 2008 notice, EPA proposed 

to finalize the miscellaneous industrial 

adhesives product category, as that 

category was listed in 1995. EPA did not 

propose to broaden that product 

category, as EPA had determined that 

the category properly reflected the scope 

of sources needed, in conjunction with 

the other product categories, to meet the 

requirements of Section 183(e)(3)(A). 

Petitioners have not alleged or 

demonstrated that EPA’s proposed 

listing is contrary to the requirements of 

Section 183(e)(3)(A). EPA therefore 

takes final action to list the 

miscellaneous industrial adhesives 

product category, which again includes 

those adhesives used in industrial 

manufacturing operations. 

Further, as discussed in the July 14, 

2008 notice, the effect of a national rule 

that sets VOC limits only for 

miscellaneous industrial adhesives (i.e., 

adhesives used in industrial 

manufacturing operations) could be 

easily subverted because such a rule 

could not require that a manufacturing 

facility use only those low-VOC content 

adhesives materials that are specifically 

marketed for miscellaneous industrial 

adhesive application operations. By 

contrast, the miscellaneous industrial 

adhesives CTG applies specifically to 

the products in the Section 183(e) 

miscellaneous industrial adhesives 

category, i.e., adhesives used at 

industrial manufacturing operations. 

Moreover, as discussed above and in 

the July 14, 2008 notice, EPA has 

identified in the CTG flexible and 

effective options for controlling VOC 

emissions from the miscellaneous 

industrial adhesives category, and these 

recommended control options are 

consistent with existing State and local 

VOC control strategies. The 

recommended control options, which 

are directed at the use of these 

adhesives, can only be implemented 

through the CTG approach because the 

regulated entities subject to a national 

rule would be adhesives manufacturers 

and suppliers, not the users. The 

commenters have raised no concerns or 

issues with EPA’s rationales, including 

those reiterated above, supporting its 

proposed Section 183(e)(3)(C) 

determination that a CTG is 

substantially as effective as a regulation 

in reducing VOC emissions from 

miscellaneous industrial adhesives in 

ozone nonattainment areas. For the 

foregoing reasons, EPA is finalizing its 

183(e)(3)(C) determination for 

miscellaneous industrial adhesives in 

this notice. 

IV. Statutory and Executive Order (EO) 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under EO 12866 (58 FR 51735, 

October 4, 1993), this action is a 

‘‘significant regulatory action,’’ since it 

is deemed to raise 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 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). This action 

does not contain any information 

collection requirements. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district, or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This final rule will not impose any 

requirements on small entities. EPA is 

taking final action to list the five Group 

IV consumer and commercial product 

categories addressed in this notice for 

purposes of CAA Section 183(e). The 

listing action alone does not impose any 

regulatory requirements. EPA has also 

determined that, for each of the five 

product categories at issue, a CTG will 

be substantially as effective as a national 

regulation in achieving VOC emission 

reductions in ozone nonattainment 

areas. This final determination means 

that EPA has concluded that it is not 

appropriate to issue Federal regulations 

under CAA Section 183(e) to regulate 

VOC emissions from these five product 

categories. Instead, EPA has concluded 

that it is appropriate to issue guidance 

in the form of CTGs that provide 

recommendations to States concerning 

potential methods to achieve needed 

VOC emission reductions from these 

product categories. In addition to the 

final determination, EPA is also 

announcing availability of the final 

CTGs for these five product categories. 

These CTGs are guidance documents. 

EPA does not directly regulate any small 

entities through the issuance of a CTG. 

Instead, EPA issues CTGs to provide 

States with guidance on developing 

appropriate State regulations to obtain 

VOC emission reductions from the 

affected sources within certain 

nonattainment areas. EPA’s issuance of 

a CTG does trigger an obligation on the 

part of certain States to issue State 

regulations, but States are not obligated 

to issue regulations identical to the 

EPA’s CTG. States may follow the 

recommendations in the CTG or deviate 

from them, and the ultimate 

determination of whether a State 

regulation meets the RACT 

requirements of the CAA would be 

determined through notice and 

comment rulemaking in the EPA’s 

action on each State’s SIP. Thus, States 

retain discretion in determining to what 

degree to follow the CTGs. 

D. Unfunded Mandates Reform Act 

This rule contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 


jlentini on PROD1PC65 with RULES
58490 Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 

1538 for State, local, or tribal 

governments or the private sector 

because it imposes no enforceable duty 

on any State, local, or Tribal 

governments or the private sector. 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of the UMRA. In addition, we have 

determined that this rule is not subject 

to the requirements of section 203 of 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. As 

stated in section IV.C. this action serves 

to list five product categories, finalize a 

determination that a CTG will be 

substantially as effective as a national 

regulation in achieving VOC emission 

reductions in ozone nonattainment 

areas for the five categories, and 

announce the availability of the final 

CTGs (i.e., guidance documents) for 

these five product categories. These 

actions do not impose any regulatory 

requirements; therefore, EPA is not 

directly regulating any small entities. 

Please refer to section IV.C. for 

additional details. 

E. Executive Order 13132: Federalism 

EO 13132, entitled ‘‘Federalism’’ (64 

FR 43255, August 10, 1999), requires 

EPA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications. ‘‘Policies 

that have federalism implications’’ is 

defined in the EO to include regulations 

that have ‘‘substantial direct effects on 

the States, on the relationship between 

the national government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government.’’ 

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in EO 

13132. The CAA establishes the 

relationship between the Federal 

Government and the States, and this 

action does not impact that relationship. 

Thus, EO 13132 does not apply to this 

rule. However, in the spirit of EO 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

solicited comments (see 73 FR 40230, 

July 14, 2008) from State and local 

officials. EPA received no adverse 

comments from State or local 

governments on these issues. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in EO 13175 

(65 FR 67249, November 9, 2000). It 

does not have a substantial direct effect 

on one or more Indian Tribes, in that the 

listing action and the final 

determination impose no regulatory 

burdens on tribes. Furthermore, the 

listing action and the final 

determination do not affect the 

relationship or distribution of power 

and responsibilities between the Federal 

government and Indian Tribes. The 

CAA and the Tribal Authority Rule 

(TAR) establish the relationship of the 

Federal government and Tribes in 

implementing the CAA. Thus, EO 13175 

does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that are 

based on health and safety risks, such 

that the analysis required under section 

5–501 of the EO has the potential to 

influence the regulations. This rule is 

not subject to EO 13045 because it is 

based solely on technology 

performance. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in EO 13211 

(66 FR 28355, May 22, 2001) because it 

is not likely to have a significant 

adverse effect on the supply, 

distribution, or use of energy. These 

actions impose no regulatory 

requirements and are therefore not 

likely to have any adverse energy 

effects. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law No. 

104–113, Section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in their regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, 

business practices, etc.) that are 

developed or adopted by voluntary 

consensus standards bodies. The 

NTTAA directs EPA to provide 

Congress, through OMB, with 

explanations when the Agency does not 

use available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EO 12898 (59 FR 7629, Feb. 16, 1994) 

establishes Federal executive policy on 

environmental justice. Its main 

provision directs Federal agencies, to 

the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it 

increases the level of environmental 

protection for all affected populations 

without having any disproportionately 

high and adverse human health or 

environmental effects on any 

populations, including any minority or 

low-income populations. The purpose 

of CAA Section 183(e) is to obtain VOC 

emission reductions to assist in the 

attainment of the ozone NAAQS. The 

health and environmental risks 

associated with ozone were considered 

in the establishment of the ozone 

NAAQS. The level is designed to be 

protective of the public with an 

adequate margin of safety. EPA’s listing 

of the products and its determination 

that CTGs are substantially as effective 

as regulations are actions intended to 

help States achieve the NAAQS in the 

most appropriate fashion. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this notice and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 


jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Rules and Regulations 58491 

States prior to publication of the notice 

in the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective October 7, 2008. 

List of Subjects in 40 CFR Part 59 

Air pollution control, Consumer and 

commercial products, Confidential 

business information, Ozone, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: September 30, 2008. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons stated in the preamble, 

title 40, chapter I of the Code of Federal 

Regulations is amended as follows: 

PART 59—[AMENDED] 

■ 1. The authority citation for part 59 

continues to read as follows: 

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

Subpart A—General 

■ 2. Section 59.1 is revised to read as 

follows: 

§ 59.1 Final determinations under Section 

183(e)(3)(C) of the CAA. 

This section identifies the consumer 

and commercial product categories for 

which EPA has determined that CTGs 

will be substantially as effective as 

regulations in reducing VOC emissions 

in ozone nonattainment areas: 

(a) Wood furniture coatings; 

(b) Aerospace coatings; 

(c) Shipbuilding and repair coatings; 

(d) Lithographic printing materials; 

(e) Letterpress printing materials; 

(f) Flexible packaging printing 

materials; 

(g) Flat wood paneling coatings; 

(h) Industrial cleaning solvents; 

(i) Paper, film, and foil coatings; 

(j) Metal furniture coatings; 

(k) Large appliance coatings; 

(l) Miscellaneous metal products 

coatings; 

(m) Plastic parts coatings; 

(n) Auto and light-duty truck 

assembly coatings; 

(o) Fiberglass boat manufacturing 

materials; and 

(p) Miscellaneous industrial 

adhesives. 

[FR Doc. E8–23750 Filed 10–6–08; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 447 

[CMS–2238–F] 

RIN 0938–AP26 

Medicaid Program; Multiple Source 

Drug Definition 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

definition of ‘‘multiple source drug’’ to 

better conform the regulatory definition 

to the provisions of section 1927(k)(7) of 

the Social Security Act. It also responds 

to public comments received on the 

March 14, 2008 interim final rule with 

comment period. 

DATES: Effective Date: This final rule is 

effective November 6, 2008. 

FOR FURTHER INFORMATION CONTACT: Gail 

Sexton, (410) 786–4583. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In the July 17, 2007 Federal Register 

we published a final rule with comment 

period (72 FR 39142) implementing the 

provisions of the Deficit Reduction Act 

of 2005 (DRA) pertaining to prescription 

drugs under the Medicaid Program. In 

that rule, we codified terms pertaining 

to the calculation and reporting of 

average manufacturer price (AMP) and 

best price and amended existing 

regulations regarding the calculation of 

the Federal upper limits (FULs) for 

certain covered outpatient drugs. The 

rule was effective October 1, 2007. On 

March 14, 2008, we issued an interim 

final rule with comment period (73 FR 

13785) that revised the definition of 

multiple source drug to conform to the 

statutory provisions. As stated in that 

rule, the interim final rule with 

comment period was not issued in 

response to public comments received 

on the Medicaid prescription drug rule. 

We are still considering those 

comments. On November 15, 2007, the 

National Association of Chain Drug 

Stores and the National Community 

Pharmacists Association filed a motion 

for a preliminary injunction in the 

United States District Court for the 

District of Columbia. They contended, 

in part, that the definition of ‘‘multiple 

source drug’’ adopted in the Medicaid 

prescription drug rule is contrary to the 

statutory language in that it defined a 

multiple source drug, in part, as a drug 

which is sold or marketed in the United 

States, as opposed to the State. Plaintiffs 

argued that all drugs are not generally 

available in every State. National 

Association of Chain Drug Stores et al. 

v. Health and Human Services, Civil 

Action No. 1:07–cv–02017 (RCL). 

Although we continue to believe that, 

when an FDA-approved, 

therapeutically, pharmaceutically, and 

bioequivalent drug is sold or marketed 

in the United States, at least one 

therapeutically, pharmaceutically, and 

bioequivalent drug is sold or marketed 

in every State, we issued an interim 

final rule with comment period to revise 

the definition of ‘‘multiple source 

drug.’’ We stated that we expected the 

effect of the revision, if any, to be 

minimal. 

We are publishing this final rule to 

address comments received on the 

interim final rule with comment period 

published on March 14, 2008 (73 FR 

13785). Specifically, we are addressing 

comments pertaining to the definition of 

‘‘multiple source drug’’ in the March 14, 

2008 interim final rule with comment 

period. For a full discussion of the 

multiple source drug definition 

provisions see the March 14, 2008 

interim final rule with comment period 

(73 FR 13785). 

As noted in the interim final rule with 

comment period, this rule to the extent 

that it may affect Medicaid 

reimbursement rates for retail 

pharmacies, is subject to the injunction 

issued by the United States District 

Court for the District of Columbia in 

National Association of Chain Drug 

Stores et al. v. Health and Human 

Services, Civil Action No. 1:07–cv– 

02017 (RCL). 

II. Provisions of the Interim Final Rule 

In § 447.502, we defined key terms 

used for payment and rebates for 

Medicaid covered outpatient drugs. We 

defined multiple source drug, with 

respect to a rebate period, as a covered 

outpatient drug for which there is at 

least one other drug product which is: 

(1) Rated as therapeutically equivalent 

(for the list of drug products rated as 

therapeutically equivalent, see the 

FDA’s most recent publication of 

‘‘Approved Drug Products with 

Therapeutic Equivalence Evaluations’’ 

which is available at http:// 

www.fda.gov/cder/orange/default.htm 

or can be viewed at the FDA’s Freedom 

of Information Public Reading Room at 

5600 Fishers Lane, rm. 12A–30, 

Rockville, MD 20857); (2) 

pharmaceutically equivalent and 

bioequivalent, as determined by the 

FDA; and (3) sold or marketed in the 

United States during the rebate period. 


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