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

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Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: July 13, 1999 (Volume 64, Number 133)]
[Notices]
[Page 37773-37783]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy99-102]

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ENVIRONMENTAL PROTECTION AGENCY

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final determination.

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

EFFECTIVE DATE: July 13, 1999.

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

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

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

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

[[Page 37774]]

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

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

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

I. Why are we taking this action?

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

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

The statute defines ``BAC'' as:

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

[[Page 37775]]

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

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

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

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

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

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

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

[[Page 37776]]

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

[[Page 37777]]

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

[[Page 37778]]

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

B. Emission Reductions Attributed to CTG

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

[[Page 37779]]

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

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

[[Page 37780]]

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

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

C. Estimated Number of Affected Facilities

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

[[Page 37781]]

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

III. What is our Final Action?

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

IV. Administrative Requirements

A. Docket

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

B. Paperwork Reduction Act

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

C. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA
must determine whether regulatory actions are significant and,
therefore, subject to OMB review and the requirements of the Executive
Order. The Executive Order defines ``significant regulatory action'' as
one that is likely to lead to a rule that may:
(1) have an annual effect on the economy of $100 million or more,
or adversely and materially affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety in State, local, or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligation of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, the EPA has
determined that this action is a ``significant regulatory action''
because it raises novel legal or policy issues arising out of legal
mandates. As such, the EPA submitted this action to OMB for review. Any
changes made in response to OMB suggestions or recommendations are
documented in the public record.

D. Executive Order 12875: Enhancing Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or unless EPA consults with those governments. If EPA
complies by consulting, Executive Order 12875 requires EPA to provide
to OMB a description of the extent of EPA's prior consultation with
representatives of affected State, local, and tribal governments, the
nature of their concerns, copies of any written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's action does not create a mandate on State, local, or tribal
governments. The action does not impose any new enforceable duties on
these entities. Accordingly, the

[[Page 37782]]

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

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

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

F. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of UMRA, the EPA
must prepare a written statement, including cost-benefit analysis, for
proposed or final rules with ``Federal mandates'' that may result in
estimated costs to State, local, or tribal governments in the
aggregate, or to the private sector, of $100 million or more in any one
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires the EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows the EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation why the EPA
did not adopt the alternative. Before the EPA establishes any
regulatory requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
The EPA has determined that because the final listing action and
final determination that CTG are substantially as effective as
regulations impose no requirements, today's action does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. In addition, EPA has determined that
today's action does not include regulatory requirements that would
significantly or uniquely affect small governments. Thus, today's
action is not subject to the requirements of sections 202, 203, and 205
of UMRA.

G. Submission to Congress and the General Accounting Office

The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the SBREFA of 1996, generally provides that before a rule may take
effect, the agency promulgating the rule must submit a rule report,
which includes a copy of the rule, to each House of the Congress and to
the Comptroller General of the United States. The EPA will submit a
report containing this rule and other required information to the
United States Senate, the United States House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. A major rule cannot take effect until
60 days after it is published in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. Sec. 804(2). This rule will
be effective July 13, 1999.

H. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, Pub. L. 104-113, Section 12(d) (15 U.S.C. 272
note), directs the EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices, etc.) that are developed or
adopted by voluntary consensus standard bodies. The NTTAA requires the
EPA to provide Congress, through OMB, explanations when the EPA decides
not to use available and applicable voluntary consensus standards.
This action does not involve any technical standards that would
require EPA consideration of voluntary consensus standards pursuant to
Sec. 12(d) of the NTTAA. This action does not establish any such
standards.

[[Page 37783]]

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

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

J. Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to OMB, in a separately identified section of
the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's action does not significantly or uniquely affect the
communities of Indian tribal governments. Today's action does not
impose any new requirements. Accordingly, the requirements of section
3(b) of Executive Order 13084 do not apply to this action.

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

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