
[Federal Register: March 24, 2008 (Volume 73, Number 57)]
[Rules and Regulations]               
[Page 15603-15631]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr08-14]                         


[[Page 15603]]

-----------------------------------------------------------------------

Part III





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Parts 51 and 59



National Volatile Organic Compound Emission Standards for Aerosol 
Coatings; Final Rule


[[Page 15604]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 59

[EPA-HQ-OAR-2006-0971; FRL-8498-6]
RIN 2060-AN69

 
National Volatile Organic Compound Emission Standards for Aerosol 
Coatings

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action promulgates national emission standards for the 
aerosol coatings (aerosol spray paints) category under section 183(e) 
of the Clean Air Act (CAA). The standards implement section 183(e) of 
the CAA, as amended in 1990, which requires the Administrator to 
control volatile organic compounds (VOC) emissions from certain 
categories of consumer and commercial products for purposes of reducing 
VOC emissions contributing to ozone formation and ozone nonattainment. 
This regulation establishes nationwide reactivity-based standards for 
aerosol coatings. States have previously promulgated rules for the 
aerosol coatings category based upon reductions of VOC by mass; 
however, EPA has concluded that a national rule based upon the relative 
reactivity approach will achieve more reduction in ozone formation than 
may be achieved by a mass-based approach for this specific product 
category. This rule will better control a product's contribution to 
ozone formation by encouraging the use of less reactive VOC 
ingredients, rather than treating all VOC in a product alike through 
the traditional mass-based approach. We are also revising EPA's 
regulatory definition of VOC. This revision is necessary to include 
certain compounds that would otherwise be exempt in order to account 
for the reactive compounds in aerosol coatings that contribute to ozone 
formation. Therefore, certain compounds that would not be VOC under the 
otherwise applicable definition will count towards the applicable 
reactivity limits under this final regulation. The initial listing of 
product categories and schedule for regulation was published on March 
23, 1995 (60 FR 15264). This final action announces EPA's final 
decision to list aerosol coatings for regulation under Group III of the 
consumer and commercial product category for which regulations are 
mandated under section 183(e) of the CAA.

DATES: Effective Date: This final rule is effective March 24, 2008. The 
incorporation by reference of certain publications listed in the rule 
is approved by the Director of the Federal Register as of March 24, 
2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2006-0971. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available (e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute). Certain other material, such as copyrighted material, will 
be publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the EPA Docket Center, Docket ID 
No. EPA-HQ-OAR-2006-0971, EPA Headquarters Library, Room 3334 in the 
EPA West Building, 1301 Constitution Ave., NW., Washington, DC. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The EPA Docket Center telephone 
number is (202) 566-1744, and the facsimile number for the EPA Docket 
Center is (202) 566-9744. EPA visitors are required to show 
photographic identification and sign the EPA visitor log. After 
processing through the X-ray and magnetometer machines, visitors will 
be given an EPA/DC badge that must be visible at all times.
    Informational updates will be provided via the EPA Web site at 
http://www.epa.gov/epahome/dockets.htm as they are available.

FOR FURTHER INFORMATION CONTACT: For questions about the final rule, 
contact Ms. J. Kaye Whitfield, U.S. EPA, Office of Air Quality Planning 
and Standards, Sector Policies and Programs Division, Natural Resources 
and Commerce Group (E143-03), Research Triangle Park, NC 27711; 
telephone number (919) 541-2509; facsimile number (919) 541-3470; e-
mail address: whitfield.kaye@epa.gov. For information concerning the 
CAA section 183(e) consumer and commercial products program, contact 
Mr. Bruce Moore, U.S. EPA, Office of Air Quality Planning and 
Standards, Sector Policies and Programs Division, Natural Resources and 
Commerce Group (E143-03), Research Triangle Park, North Carolina 27711, 
telephone number: (919) 541-5460, facsimile number (919) 541-3470, e-
mail address: moore.bruce@epa.gov.

SUPPLEMENTARY INFORMATION:
    Entities Potentially Affected by This Action. The entities 
potentially affected by this regulation encompass all steps in aerosol 
coatings operations. This includes manufacturers, processors, wholesale 
distributors, or importers of aerosol coatings for sale or distribution 
in the United States, or manufacturers, processors, wholesale 
distributors, or importers who supply the entities listed above with 
aerosol coatings for sale or distribution in interstate commerce in the 
United States. The entities potentially affected by this action 
include:

------------------------------------------------------------------------
                                    NAICS code    Examples of regulated
             Category                  \a\              entities
------------------------------------------------------------------------
Paint and Coating Manufacturing..        32551  Manufacturing of
                                                 lacquers, varnishes,
                                                 enamels, epoxy
                                                 coatings, oil and alkyd
                                                 vehicle, plastisols,
                                                 polyurethane, primers,
                                                 shellacs, stains, water
                                                 repellant coatings.
All Other Miscellaneous Chemical        325998  Aerosol can filling,
 Production and Preparation                      aerosol packaging
 Manufacturing.                                  services.
------------------------------------------------------------------------
\a\ North American Industry Classification System http://www.census.gov/
  epcd/www/naics.html.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. To determine whether you would be affected by this action, you 
should examine the applicable industry description in section I.E of 
the promulgation preamble. 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.
    Docket. The docket number for the National Volatile Organic 
Compounds Emission Standards for Aerosols Coating (40 CFR part 59, 
subpart E) is Docket ID No. EPA-HQ-OAR-2006-0971.

[[Page 15605]]

    World Wide Web (WWW). In addition to being available in the docket, 
an electronic copy of the final rule is also available on the WWW. 
Following the Administrator's signature, a copy of the final rule will 
be posted on EPA's Technology Transfer Network (TTN) policy and 
guidance page for newly proposed or promulgated rules at 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 Clean Air Act 
(CAA), judicial review of the final rule is available only by filing a 
petition for review in the U.S. Court of Appeals for the District of 
Columbia Circuit by May 23, 2008. Under CAA section 307(b)(2), the 
requirements established by this final action may not be challenged 
separately in any civil or criminal proceedings brought by EPA to 
enforce these requirements.
    Section 307(d)(7)(B) of the CAA further provides that ``only an 
objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review.'' This section also 
provides a mechanism for EPA to convene a proceeding for 
reconsideration, ``if the person raising the objection can demonstrate 
to EPA that it was impracticable to raise such an objection [within the 
period for public comment] or if the grounds for such objection arose 
after the period for public comment (but within the time specified for 
judicial review) and if such objection is of central relevance to the 
outcome of the rule.'' Any person seeking to make such a demonstration 
to EPA should submit a Petition for Reconsideration to the Office of 
the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the 
person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT 
section, and the Air and Radiation Law Office, Office of General 
Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., 
Washington, DC 20004.
    Organization of This Document. The information presented in this 
notice is organized as follows:

I. Background
    A. The Ozone Problem
    B. Statutory and Regulatory Background
    C. Photochemical Reactivity
    D. Role of Reactivity in VOC/Ozone Regulations
    E. The Aerosol Coating Industry
II. Summary of the Final Standards and Changes Since Proposal
    A. Applicability of the Standards and Regulated Entities
    B. VOC Regulated Under This Rule
    C. Regulatory Limits
    D. Compliance Dates
    E. Labeling Requirements
    F. Recordkeeping and Reporting
    G. Variance
    H. Test Methods
III. Response to Significant Comments
    A. Format of Regulation
    B. Downwind Effects and Robustness of Relative Reactivity Scale
    C. Consideration of Other Factors in the Consideration of Best 
Available Control
    D. Variance, Small Quantity Manufacturers and Extended 
Compliance Date
    E. Additional Reporting Requirements
IV. Summary of Impacts
    A. Environmental Impacts
    B. Energy Impacts
    C. Cost and Economic Impacts
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Background

A. The Ozone Problem

    Ground-level ozone, a major component of smog, is formed in the 
atmosphere by reactions of VOC 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 section 183(e) of the CAA, 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 directed 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 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 
listed for regulation, in order to achieve an effective regulatory 
program in accordance with EPA's discretion under CAA section 183(e). 
EPA has revised the list several times. Most recently, in May 2006, EPA 
revised the list to add one product category, portable fuel containers, 
and to remove one product category, petroleum dry cleaning solvents. 
See 71 FR 28320 (May 16, 2006). The aerosol spray paints (aerosol 
coatings) category currently is listed for regulation as part of Group 
III of the CAA section 183(e) list.
    CAA section 183(e) directs EPA to regulate consumer and commercial 
products using ``best available controls'' (BAC). CAA section 
183(e)(1)(A) defines BAC as ``the degree of emissions reduction that 
the Administrator

[[Page 15606]]

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 CAA 
section 183(e)(4), EPA can impose ``any system or systems of regulation 
as the Administrator deems appropriate, including requirements for 
registration and labeling, self-monitoring and reporting, prohibitions, 
limitations, or economic incentives (including marketable permits and 
auctions of emissions rights) concerning the manufacture, processing, 
distribution, use, consumption or disposal of the product.'' Under 
these provisions, EPA has previously issued national regulations for 
architectural coatings, autobody refinishing coatings, consumer 
products, and portable fuel containers.\1\ \2\ \3\ \4\ \5\
---------------------------------------------------------------------------

    \1\ ``National Volatile Organic Compound Emission Standards for 
Architectural Coatings'' 63 FR 48848, (September 11, 1998).
    \2\ ``National Volatile Organic Compound Emission Standards for 
Automobile Refinish Coatings'' 63 FR 48806, (September 11, 1998).
    \3\ ``Consumer and Commercial Products: Schedule for 
Regulation'' 63 FR 48792, (September 11, 1998)
    \4\ National Volatile Organic Compound Emission Standards for 
Consumer Products'' 63 FR 48819, (September 11, 1998).
    \5\ ``National Volatile Organic Compound Emission Standards for 
Portable Fuel Containers'' 72 FR 8428, (February 26, 2007).
---------------------------------------------------------------------------

    For any category of consumer or commercial products, the 
Administrator may issue control techniques guidelines (CTG) in lieu of 
national regulations if the Administrator determines that such guidance 
will be substantially as effective as a national regulation in reducing 
emissions of VOC which contribute to ozone levels in areas which 
violate the NAAQS for ozone. In many cases, a CTG can be an effective 
regulatory approach to reduce emissions of VOC in nonattainment areas 
because of the nature of the specific product and the uses of such 
product. A critical distinction between a national rule and a CTG is 
that a CTG may include provisions that affect the users of the 
products. For other product categories, such as wood furniture coatings 
and shipbuilding coatings, EPA has previously determined that, under 
CAA section 183(e)(3)(C), a CTG would be substantially as effective as 
a national rule and, therefore, issued CTGs to provide guidance to 
States for development of appropriate State regulations. Most recently, 
EPA determined that a CTG would be substantially as effective as a 
national rule for three other Group III categories: Paper, Film and 
Foil Coating; Metal Furniture Coating; and Large Appliance Coating.\6\
---------------------------------------------------------------------------

    \6\ ``Consumer and Commercial Products: Control Techniques 
Guidelines in Lieu of Regulations for Paper, Film, and Foil 
Coatings; Metal Furniture Coatings; and Large Appliance Coatings'' 
72 FR 57215, (October 9, 2007).
---------------------------------------------------------------------------

    For the category of aerosol coatings, EPA has determined that a 
national rule applicable nationwide is the best system of regulation to 
achieve necessary VOC emission reductions from this type of product. 
Aerosol coatings are typically used in relatively small amounts by 
consumers and others on an occasional basis and at varying times and 
locations. Under such circumstances, reformulation of the VOC content 
of the products is a more feasible way to achieve VOC emission 
reductions, rather than through a CTG approach that would only affect a 
smaller number of relatively large users.
    Aerosol coatings regulations are already in place in three States 
(California, Oregon, and Washington), and other States are considering 
developing regulations for these products. For the companies that 
market aerosol coatings in different States, trying to fulfill the 
differing requirements of State rules may create administrative, 
technical, and marketing problems. Although Section 183(e) does not 
preempt States from having more stringent State standards, EPA's 
national rule is expected to provide some degree of consistency, 
predictability, and administrative ease for the industry. A national 
rule also helps States reduce potential compliance problems associated 
with noncompliant coatings being transported into nonattainment areas 
from neighboring areas and neighboring States. A national rule will 
also enable States to obtain needed VOC emission reductions from this 
sector in the near term, without having to expend their limited 
resources to develop similar rules in each State.\7\
---------------------------------------------------------------------------

    \7\ Courts have already approved EPA's creation of national 
rules under section 183(e). See, ALARM Caucus v. EPA, 215 F.3d 61,76 
(D.C. Cir. 2000), cert. denied, 532 U.S. 1018 (2001).
---------------------------------------------------------------------------

C. Photochemical Reactivity

    There are thousands of individual species of VOC that can 
participate in a series of reactions involving nitrogen oxides 
(NOX) and the energy from sunlight, resulting in the 
formation of ozone. The impact of a given species of VOC on formation 
of ground-level ozone is sometimes referred to as its ``reactivity.'' 
It is generally understood that not all VOC are equal in their effects 
on ground-level ozone formation. Some VOC react extremely slowly and 
changes in their emissions have limited effects on ozone pollution 
episodes. Some VOC form ozone more quickly than other VOC, or they may 
form more ozone than other VOC. Other VOC not only form ozone 
themselves, but also act as catalysts and enhance ozone formation from 
other VOC. By distinguishing between more reactive and less reactive 
VOC, however, EPA concludes that it may be possible to develop 
regulations that will decrease ozone concentrations further or more 
efficiently than by controlling all VOC equally.
    Assigning a value to the reactivity of a specific VOC species is a 
complex undertaking. Reactivity is not simply a property of the 
compound itself; it is a property of both the compound and the 
environment in which the compound is found. Therefore, the reactivity 
of a specific VOC varies with VOC:NOX ratios, meteorological 
conditions, the mix of other VOC in the atmosphere, and the time 
interval of interest. Designing an effective regulation that takes 
account of these interactions is difficult. Implementing and enforcing 
such a regulation requires an extra burden for both industry and 
regulators, as those impacted by the rule must characterize and track 
the full chemical composition of VOC emissions rather than only having 
to track total VOC content as is required by traditional mass-based 
rules. EPA's September 13, 2005, final rule approving a comparable 
reactivity-based aerosol coating rule as part of the California State 
Implementation Plan for ozone contains additional background 
information on photochemical reactivity.\8\ Recently, EPA issued 
interim guidance to States regarding the use of VOC reactivity 
information in the development of ozone control measures.\9\
---------------------------------------------------------------------------

    \8\ ``Revisions to the California State Implementation Plan and 
Revision to the Definition of Volatile Organic Compounds (VOC)-
Removal of VOC Exemptions for California's Aerosol Coating Products 
Reactivity-based Regulation'' 70 FR 53930, (September 13, 2005).
    \9\ ``Interim Guidance on Control of Volatile Organic Compounds 
in Ozone State Implementation Plans'') 70 FR 54046, (September 13, 
2005).
---------------------------------------------------------------------------

1. What Research Has Been Conducted on VOC Reactivity?
    Much of the initial work on reactivity scales was funded by the 
California Air

[[Page 15607]]

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

    \10\ Carter, W. P. L. (1994) ``Development of ozone reactivity 
scales for organic gases,'' J. Air Waste Manage. Assoc., 44: 881-
899.
---------------------------------------------------------------------------

    i. Maximum Incremental Reactivity (MIR) scale--an ozone yield scale 
derived by adjusting the NOX emissions in a base case to 
yield the highest incremental reactivity of the base reactive organic 
gas mixture.
    ii. Maximum Ozone Incremental Reactivity (MOIR) scale--an ozone 
yield scale derived by adjusting the NOX emission in a base 
case to yield the highest peak ozone concentration.
    iii. Equal Benefit Incremental Reactivity (EBIR) scale--an ozone 
yield scale derived by adjusting the NOX emissions in a base 
case scenario so VOC and NOX reductions are equally 
effective in reducing ozone.
    Carter concluded that, if only one scale is used for regulatory 
purposes, the MIR scale is the most appropriate.\11\ The MIR scale is 
defined in terms of environmental conditions where ozone production is 
most sensitive to changes in hydrocarbon emissions and, therefore, 
represents conditions where hydrocarbon controls would be the most 
effective. CARB used the MIR scale to establish fuel-neutral VOC 
emissions limits in its low-emitting vehicle and alternative fuels 
regulation.\12\ \13\ Subsequently, Carter has updated the MIR scale 
several times as the chemical mechanisms in the model used to derive 
the scale have evolved with new scientific information. CARB 
incorporated a 1999 version of the MIR scale in its own aerosol 
coatings rule. The latest revision to the MIR scale was issued in 2003.
---------------------------------------------------------------------------

    \11\ ``Initial Statement of Reasons for the California Aerosol 
Coatings Regulation, California Air Resources Board,'' 2000.
    \12\ California Air Resources Board ``Proposed Regulations for 
Low-Emission Vehicles and Clean Fuels--Staff Report and Technical 
Support Document,'' State of California, Air Resources Board, P.O. 
Box 2815, Sacramento, CA 95812, August 13, 1990.
    \13\ California Air Resources Board ``Proposed Regulations for 
Low-Emission Vehicles and Clean Fuels--Final Statement of Reasons,'' 
State of California, Air Resources Board, July 1991.
---------------------------------------------------------------------------

    In addition to Carter's work, there have been other attempts to 
create reactivity scales. One such effort is the work of R.G. Derwent 
and co-workers, who have published articles on a scale called the 
photochemical ozone creation potential (POCP) scale.\14\ \15\ This 
scale was designed for the emissions and meteorological conditions 
prevalent in Europe. The POCP scale is generally consistent with that 
of Carter, although there are some differences because it uses a 
different model, chemical mechanism, and emission and meteorological 
scenarios. Despite these differences, there is a good correlation of 
r\2\=0.9 between the results of the POCP and the MIR scales.\16\
---------------------------------------------------------------------------

    \14\ Derwent, R.G., M.E. Jenkin, S.M. Saunders and M.J. Pilling 
(2001) ``Characterization of the Reactivities of Volatile Organic 
Compounds Using a Master Chemical Mechanism,'' J. Air Waste 
Management Assoc., 51: 699-707.
    \15\ Derwent, R.G., M.E. Jenkin, S.M. Saunders and M.J. Pilling 
(1998) ``Photochemical Ozone Creation Potentials for Organic 
Compounds in Northwest Europe Calculated with a Master Chemical 
Mechanism,'' Atmos. Env., 32(14/15):2429-2441.
    \16\ See http://www.narsto.org/section.src?SID=10.
---------------------------------------------------------------------------

    As CARB worked to develop reactivity-based regulations in 
California, EPA began to explore the implications of applying 
reactivity scales in other parts of the country. In developing its 
regulations, CARB has maintained that the MIR scale is the most 
appropriate metric for application in California, but cautioned that 
its research has focused on California atmospheric conditions and that 
the suitability of the MIR scale for regulatory purposes in other areas 
has not been demonstrated. In particular, specific concerns have been 
raised about the suitability of using the MIR scale in relation to 
multi-day stagnation or transport scenarios or over geographic regions 
with very different VOC:NOX ratios than those of California.
    In 1998, EPA participated in the formation of the Reactivity 
Research Working Group (RRWG), which was organized to help develop an 
improved scientific basis for reactivity-related regulatory 
policies.\16\ All interested parties were invited to participate. Since 
that time, representatives from EPA, CARB, Environment Canada, States, 
academia, and industry have met in public RRWG meetings to discuss and 
coordinate research that would support this goal.
    The RRWG has organized a series of research efforts to explore:
    i. The sensitivity of ozone to VOC mass reductions and changes in 
VOC composition under a variety of environmental conditions;
    ii. The derivation and evaluation of reactivity scales using 
photochemical airshed models under a variety of environmental 
conditions;
    iii. The development of emissions inventory processing tools for 
exploring reactivity-based strategies; and
    iv. The fate of VOC emissions and their availability for 
atmospheric reactions.
    This research has led to a number of findings that increase EPA's 
confidence in the ability to develop regulatory approaches that 
differentiate between specific VOC on the basis of relative reactivity. 
The first two research objectives listed above were explored in a 
series of three parallel modeling studies that resulted in four reports 
and one journal article.\17\ \18\ \19\ \20\ \21\ EPA commissioned a 
review of these reports to address a series of policy-relevant science 
questions.\22\ In 2007, an additional peer review was commissioned by 
EPA to assess the appropriateness of basing a national aerosol coatings 
regulation on reactivity. Generally, the peer reviews support the 
appropriateness of the use of the box-model based MIR metric nationwide 
for the aerosol coatings category. The results are available in the 
rulemaking docket.
---------------------------------------------------------------------------

    \17\ Carter, W.P.L., G. Tonnesen, and G. Yarwood (2003) 
Investigation of VOC Reactivity Effects Using Existing Regional Air 
Quality Models, Report to American Chemistry Council, Contract SC-
20.0-UCR-VOC-RRWG, April 17, 2003.
    \18\ Hakami, A., M.S. Bergin, and A.G. Russell (2003) Assessment 
of the Ozone and Aerosol Formation Potentials (Reactivities) of 
Organic Compounds over the Eastern United States, Final Report, 
Prepared for California Air Resources Board, Contract No. 00-339, 
January 2003.
    \19\ Hakami, A., M.S. Bergin, and A.G. Russell (2004a) Ozone 
Formation Potential of Organic Compounds in the Eastern United 
States: A Comparison of Episodes, Inventories, and Domains, Environ. 
Sci. Technol. 2004, 38, 6748-6759.
    \20\ Hakami, A., M. Arhami, and A.G. Russell (2004b) Further 
Analysis of VOC Reactivity Metrics and Scales, Final Report to the 
U.S. EPA, Contract 4D-5751-NAEX, July 2004.
    \21\ Arunachalam S., R. Mathur, A. Holland, M.R. Lee, D. Olerud, 
Jr., and H. Jeffries (2003) Investigation of VOC Reactivity 
Assessment with Comprehensive Air Quality Modeling, Prepared for 
U.S. EPA, GSA Contract  GS-35F-0067K, Task Order ID: 
4TCG68022755, June 2003.
    \22\ Derwent, R.G. (2004) Evaluation and Characterization of 
Reactivity Metrics, Final Draft, Report to the U.S. EPA, Order No. 
4D-5844-NATX, November 2004.
---------------------------------------------------------------------------

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

[[Page 15608]]

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

D. Role of Reactivity in VOC/Ozone Regulations

    Historically, EPA's general approach to regulation of VOC emissions 
has been based upon control of total VOC by mass, without 
distinguishing between individual species of VOC. EPA considered the 
regulation of VOC by mass to be the most effective and practical 
approach based upon the scientific and technical information available 
when EPA developed its VOC control policy.
    EPA issued the first version of its VOC control policy in 1971, as 
part of EPA's State Implementation Plan (SIP) preparation guidance.\23\ 
In that guidance, EPA emphasized the need to reduce the total mass of 
VOC emissions, but also suggested that substitution of one compound for 
another might be useful when it would result in a clearly evident 
decrease in reactivity and thus tend to reduce photochemical oxidant 
formation. This latter statement encouraged States to promulgate SIPs 
with VOC emission substitution provisions similar to the Los Angeles 
County Air Pollution Control District's (LACAPCD) Rule 66, which 
allowed some VOC that were believed to have low to moderate reactivity 
to be exempted from control. The exempt status of many of those VOC was 
questioned a few years later, when research results indicated that, 
although some of those compounds do not produce much ozone close to the 
source, they may produce significant amounts of ozone after they are 
transported downwind from urban areas.
---------------------------------------------------------------------------

    \23\ ``Requirements for Preparation, Adoption and Submittal of 
Implementation Plans'', Appendix B, 36 FR 15495, (August 14, 1971).
---------------------------------------------------------------------------

    In 1977, further research led EPA to issue a revised VOC policy 
under the title ``Recommended Policy on Control of Volatile Organic 
Compounds,'' (42 FR 35314, July 8, 1977), offering its own, more 
limited, list of exempt organic compounds. The 1977 policy identified 
four compounds that have very low photochemical reactivity and 
determined that their contribution to ozone formation and accumulation 
could be considered negligible. The policy exempted these ``negligibly 
reactive'' compounds from VOC emissions limitations in programs 
designed to meet the ozone NAAQS. Since 1977, EPA has added other 
compounds to the list of negligibly reactive compounds based on new 
information as it has been developed. In 1992, EPA adopted a formal 
regulatory definition of VOC for use in SIPs, which explicitly excludes 
compounds that have been identified as negligibly reactive [40 CFR 
51.100(s)].
    To date, EPA has exempted 54 compounds or classes of compounds in 
this manner. In effect, EPA's current VOC exemption policy has 
generally resulted in a two bin system in which most compounds are 
treated equally as VOC, and are controlled. A separate smaller group of 
compounds are treated as negligibly reactive, and are exempt from VOC 
controls.\24\ This approach was intended to encourage the reduction of 
emissions of all VOC that participate in ozone formation. From one 
perspective, it appears that this approach has been relatively 
successful. EPA estimates that, between 1970 and 2003, VOC emissions 
from man-made sources nationwide declined by 54 percent. This decline 
in VOC emissions has helped to decrease average ozone concentration by 
29 percent (based on 1-hour averages) and 21 percent (based on 8-hour 
averages) between 1980 and 2003. These reductions occurred even though, 
between 1970 and 2003, population, vehicle miles traveled, and gross 
domestic product rose 39 percent, 155 percent and 176 percent, 
respectively.\25\
---------------------------------------------------------------------------

    \24\ For some analytical purposes, EPA has distinguished between 
VOC and ``highly reactive'' VOC, such as in the EPA's initial 
evaluation of consumer products for regulation. See, ``Final 
Listing,'' 63 FR 48792, 48795-6 (Sept. 11, 1998) (explaining EPA's 
approach); see also, ALARM Caucus v. EPA, 215 F. 3d 61, 69-73 (D. C. 
Cir. 2000), cert. denied, 532 U.S. 1018 (2001) (approving EPA's 
approach as meeting the requirements of CAA section 183(e)).
    \25\ ``Latest Findings on National Air Quality: 2002 Status and 
Trends,'' EPA 454/K-03-001, (August 2003); and ``The Ozone Report 
Measuring Progress through 2003,'' EPA 454/K-04-001, (April 2004); 
Environmental Protection Agency, Office of Air Quality Planning and 
Standards, Research Triangle Park, North Carolina.
---------------------------------------------------------------------------

    On the other hand, some have argued that a reactivity-based 
approach for reducing VOC emissions would be more effective than the 
current mass-based approach. One group of researchers conducted a 
detailed modeling study of the Los Angeles area and concluded that, 
compared to the current approach, a reactivity-based approach could 
achieve the same reductions in ozone concentrations at significantly 
less cost or, for a given cost, could achieve a significantly greater 
reduction in ozone concentrations.\26\ The traditional approach to VOC 
control that focused on reducing the overall mass of emissions may be 
adequate in some areas of the country. However, EPA's recent SIP 
guidance recognizes that approaches to VOC control that differentiate 
between VOC based on relative reactivity are likely to be more 
effective and efficient under certain circumstances.\27\ In particular, 
reactivity-based approaches are likely to be important in areas for 
which aggressive VOC control is a key strategy for reducing ozone 
concentrations. Such areas include:
---------------------------------------------------------------------------

    \26\ A. Russell, J. Milford, M. S. Bergin, S. McBride, L. 
McNair, Y. Yang, W. R. Stockwell, B. Croes, ``Urban Ozone Control 
and Atmospheric Reactivity of Organic Gases,'' Science, 269: 491-
495, (1995).
    \27\ ``Interim Guidance on Control of Volatile Organic Compounds 
in Ozone State Implementation Plans,'' 70 FR 54046, September 13, 
2005).
---------------------------------------------------------------------------

     Areas with persistent ozone nonattainment problems;
     Urbanized or other NOX-rich areas where ozone 
formation is particularly sensitive to changes in VOC emissions;
     Areas that have already implemented VOC reasonably 
available control technology (RACT) measures and need additional VOC 
emission reductions.
    In these areas, there are a variety of possible ways of addressing 
VOC reactivity in the SIP development process, including:
     Developing accurate, speciated VOC emissions inventories.
     Prioritizing control measures using reactivity metrics.
     Targeting emissions of highly-reactive VOC compounds with 
specific control measures.
     Encouraging VOC substitution and composition changes using 
reactivity-weighted emission limits.
    The CARB aerosol coatings rule is an example of this last 
application of the concept of reactivity. CARB's reactivity-based rule 
for aerosol coatings was designed to encourage the use of compounds 
that are less effective at producing ozone. It contains limits for 
aerosol coatings expressed as grams of ozone formed per gram of product 
instead of the more traditional limits expressed as percent VOC by 
mass. EPA approved CARB's aerosol coatings rule as part of the 
California SIP for ozone. EPA's national aerosol coatings rule builds 
largely upon CARB's efforts to regulate this product category using the 
relative reactivity approach.

E. The Aerosol Coating Industry

    Aerosol coatings include all coatings that are specially formulated 
and

[[Page 15609]]

packaged for use in pressurized cans. They are used by both 
professional and do-it-yourself (DIY) consumers. The DIY segment 
accounts for approximately 80 percent of all sales. The remainder of 
aerosol coatings is sold for industrial maintenance and original 
equipment manufacturer use. Aerosol coatings are used for a number of 
applications including small domestic coating jobs, field and 
construction site marking, and touch-up of marks and scratches in 
paintwork of automobiles, appliances and machinery.
    The aerosol coatings industry includes the formulators and 
manufacturers of the concentrated product. These manufacturers may 
package the product or they may use toll fillers (processors). These 
toll fillers may work not only with the large manufacturers, but for 
other coating manufacturers who do not have the specialized equipment 
necessary to fill aerosol containers. The fillers may then supply the 
product to coating dealers, home supply stores, distributors, company-
owned stores and industrial customers.
    An aerosol consists of a gas in which liquid or solid substances 
may be dispensed. Aerosol coatings are pressurized coatings that, like 
other coatings, consist of pigments and resins and solvents. However, 
aerosol coatings also contain a propellant that dispenses the product 
ingredients. A controlled amount of propellant in the product vaporizes 
as it leaves the container, creating the aerosol spray. The combination 
of product and propellant is finely tuned to produce the correct 
concentration and spray pattern for an effective product.
    Aerosol coatings can be packaged in disposable cans for hand-held 
applications or for use in specialized equipment in ground traffic/
marking applications. As with other coatings, aerosol coatings are 
available in both solvent-based and water-based formulations.
    In developing the final national rule for aerosol coatings, EPA has 
used the same coating categories, and the same definitions for those 
categories, previously identified by CARB in its comparable regulation 
for aerosol coatings. We believe these categories adequately categorize 
the industry and encompass the range of products included in our own 
analysis of this category that we conducted in preparing EPA's Report 
to Congress (EPA-453/R-94-066-A). Use of the same definitions and 
categories has the added benefit of providing regulated entities with 
consistency between the CARB and national rules. The categories of 
aerosol coatings regulated in the final rule include six general 
categories and 30 specialty categories. Based on a survey of aerosol 
coating manufacturers conducted by CARB in 1997, VOC emissions from the 
six general categories together with the specialty category of Ground 
Traffic/Marking Coatings account for approximately 85 percent of the 
ozone formed as a result of the use of aerosol coatings. These 
categories are defined in this regulation and are described in more 
detail in the docket to this rulemaking.
    There are currently no national regulations addressing VOC 
emissions from aerosol coatings. California, Oregon and Washington are 
the only States that currently regulate aerosol coating products and 
Oregon's and Washington's rules are identical to the Tier 1 VOC mass-
based limits developed by CARB that became effective in 1996. Unlike 
other EPA or State regulations and previous CARB regulations for 
aerosol coatings that regulate VOC ingredients by mass in the 
traditional approach, the current California regulation for aerosol 
coatings is designed to limit the ozone formed from VOC emissions from 
aerosol coatings by establishing limits on the reactivity of the 
cumulative VOC ingredients of such coatings.

II. Summary of the Final Standards and Changes Since Proposal

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

A. Applicability of the Standards and Regulated Entities

    The final Aerosol Coatings Reactivity Rule (ACRR) will apply to 
manufacturers, processors, wholesale distributors, or importers of 
aerosol coatings used by both the general population (i.e., the ``Do It 
Yourself'' market) and industrial applications (e.g., at original 
equipment manufacturers and other industrial sites). This regulation 
will apply to distributors, if the name of the distributor appears on 
the label of the aerosol products.
    The final rule includes an exemption from the limits in Table 1 of 
the rule for those manufacturers that make a small annual volume of 
aerosol coating products, i.e., with a total VOC content by mass of no 
more than 7,500 kilograms of VOC per year in the aggregate for all 
aerosol coating products. EPA notes that an exemption under EPA's 
national rule for aerosol coatings under section 183(e) does not alter 
any requirements under any applicable State or local regulations. The 
regulatory language in this final rule has been changed from the 
proposed rule to clarify the regulated entity that is responsible for 
compliance with each portion of the regulation.
    The final rule includes a provision in section 59.501(f) that 
allows foreign manufacturers to qualify for the small quantity 
manufacturer exemption in section 59.501(e). Although foreign 
manufacturers are not regulated entities under this rule, some may 
choose to voluntarily become regulated entities in order to qualify for 
the small quantity manufacturer exemption. To qualify, the foreign 
manufacturer must (1) meet the same 7500 kilogram per year VOC mass 
limit that domestic small volume manufacturers must meet; (2) comply 
with the same recordkeeping and reporting requirements that domestic 
manufacturers must fulfill; and (3) comply with certain provisions in 
40 CFR 59.501(f)(3), which are similar to those used in other EPA rules 
to ensure that EPA may effectively monitor and implement this rule with 
respect to foreign entities.\28\
---------------------------------------------------------------------------

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

B. VOC Regulated Under This Rule

    This rule regulates emissions of VOC from aerosol coatings. Because 
even less reactive VOC contribute to ozone formation, we are amending 
the regulatory definition of VOC for purposes of this rule by adding 40 
CFR 51.100(s)(7). As provided in that new subsection, any organic 
compound in the volatile portion of an aerosol coating is counted 
towards the product's reactivity-based limit if it: (1) Has a 
reactivity factor (RF) value greater than that of ethane (0.3), or (2) 
is used in amounts greater than 7.3 percent of the product weight in 
the product formulation.
    Table 2A currently includes those organic compounds we know to be 
used in aerosol coatings that have an RF value greater than that of 
ethane (0.3). Under the proposed rule, we had a single de minimis 
threshold that provided that a compound would not be counted towards 
the applicable limit, regardless of its reactivity, if the compound 
represented less than 0.1 percent of the product weight. In the final 
rule, we have provided a two-part threshold: (1) A 0.1 percent 
threshold for compounds with an RF value greater than 0.3; and (2) a 
7.3 percent threshold

[[Page 15610]]

for compounds with an RF value of 0.3 or less.
    The rationale for the 7.3 percent threshold is that compounds with 
an RF value of 0.3 or less will contribute minimally to ozone formation 
from this product category. We calculated the 7.3 percent figure as 
follows. We first determined the maximum RF value for a compound, which 
is 22.04 (the default value for compounds of unknown reactivity). We 
then multiplied that value by 0.1(the proposed percentage threshold for 
all organic compounds irrespective of their RF value), which resulted 
in a value of 2.2. To determine an appropriate percentage threshold for 
organic compounds with an RF value of 0.3 or less, we then divided 2.2 
by 0.3 (the RF for ethane) which resulted in the 7.3 percent threshold 
for such compounds. Therefore, in determining compliance with the 
limits of this rule, this rule does not require inclusion of de minimis 
amounts of ingredients taking into consideration the relative 
reactivity of the compound.
    As provided in 40 CFR 59.505(e)(2), if in the future, compounds 
with an RF value of 0.3 or less are used in amounts greater than or 
equal to 7.3 percent of a particular aerosol coatings product 
formulation, then those compounds will be counted towards the 
applicable limits of this rule at that time.
    The emission limits in the rule are expressed in terms of weight of 
ozone generated from the VOC ingredients per weight of coating 
material, rather than the traditional weight of VOC ingredients per 
weight (or volume) of product. EPA has concluded that this approach 
will reduce the overall amount of ozone that results from the VOC 
emitted to the atmosphere from these products, while providing 
regulated entities with greater flexibility to select VOC ingredients 
for their products. This approach provides incentives to regulated 
entities to use VOC ingredients that have lower reactivity and that 
will therefore generate less ozone.
    EPA has revised the list of compounds in Table 2A in order to 
include only those compounds actually used as ingredients in aerosol 
coating products. In addition, EPA has provided a mechanism to add 
additional compounds to the table if a regulated entity elects to use 
them as an ingredient in aerosol coatings.

C. Regulatory Limits

    The regulatory limits for the final rule are a series of reactivity 
limits for six general coating categories and 30 specialty categories 
of specialty coatings. These reactivity limits are expressed in terms 
of grams of ozone generated per gram of product. The reactivity of each 
VOC ingredient is specified in the table of values included in the 
regulation. No changes have been made to the regulatory limits since 
proposal.

D. Compliance Dates

    The final rule requires all regulated entities to comply by January 
1, 2009, for all aerosol coating products, except those that require 
registration under the Federal Insecticide, Fungicide and Rodenticide 
Act (7 U.S.C. 40 CFR 136-136y) (FIFRA), which are not subject to the 
requirements of this rule until January 1, 2010. The rule also includes 
a provision that allows regulated entities to seek a compliance 
extension if they have not previously manufactured, imported, or 
distributed in California or elsewhere any aerosol coating product that 
complies with applicable California regulations. This extension would 
give the regulated entity until January 1, 2011, to comply with the 
requirements of the final rule.
    Beginning on the compliance date, the regulated entities under this 
rule will be required to conduct initial compliance demonstration 
calculations for all coating formulations manufactured or filled at 
each of their facilities, and to maintain compliance demonstration data 
for each batch of aerosol coating. These calculations and the 
underlying documents must be maintained for at least 5 years after the 
product is manufactured, processed, distributed, or imported, and must 
be submitted to the EPA upon request. The regulated entity may use 
formulation data to make the compliance calculations; however, EPA is 
adopting California Air Resources Board Method 310 as the underlying 
test method (i.e., formulation data must be verifiable with California 
Air Resources Board Method 310, if requested). Facilities are also 
allowed to use EPA's Test Method 311.
    EPA has added a provision allowing the extension of the compliance 
date for FIFRA-registered compounds as a revision to the proposed rule. 
This provision was added to the final rule due to the additional 
approvals (e.g., approval of labels and formulation changes) that must 
be obtained for all FIFRA-registered products.

E. Labeling Requirements

    The final rule also includes labeling requirements to facilitate 
implementation and enforcement of the limits. Labels must clearly 
identify the product category or the category code provided in Table 1 
of the regulation, the limit for that product category, and the product 
date code. If the product date is not obvious from the date code, an 
explanation of the code is required in the initial notification 
discussed below. In the final rule, EPA has made a change to allow a 
regulated entity to develop a facility-specific category code system, 
if the system is explained in the initial notification.

F. Recordkeeping and Reporting

    The final rule includes a requirement for an Initial Notification 
from all regulated entities to EPA at least 90 days before the 
compliance date. This notification will provide basic information about 
the regulated entity as well as contact information for the certifying 
official. In addition, this notification will need to explain the 
product date code system used to label products and the category code 
system, if the facility is not using the default category codes 
included in Table 1. The Initial Notification must also include VOC 
formulation data for each aerosol coatings product that is subject to 
this rule. The formulation data must provide the weight fraction (g 
compound/g product) for each VOC compound used in the product in an 
amount equal to or greater than 0.1 percent. The notification must also 
identify any volatile organic compound or mixture that is not currently 
listed in Table 2A, 2B, or 2C, if that compound or mixture will be used 
in an aerosol coatings formulation. Finally, the notification must 
include a statement certifying that all of the regulated entity's 
products will be in compliance with the limits by the compliance date.
    The regulated entity is required to submit a revised notification 
if there is a change in the information in the Initial Notification, 
with the exception of changes to product formulations. The regulated 
entity is not required to submit a revised notification if the VOC 
formulations submitted in its Initial Notification change. The 
regulated entity is required to submit a revised notification if the 
manufacturer, for example, adds a new coating category, changes the 
product date code system or batch definition, or begins to use a VOC 
that is not listed in Table 2A, 2B, or 2C.
    The regulated entity is required to maintain compliance 
calculations for each of its aerosol coatings formulations. For each 
batch of a particular formulation, the regulated entity must maintain 
records of the date(s) the batch was manufactured, the volume of the 
batch, and the VOC formula for the formulation. Records of these 
calculations must be maintained for 5 years after the product is 
manufactured, processed, distributed for

[[Page 15611]]

wholesale, or imported for sale or distribution in interstate commerce 
in the United States. The regulated entity must supply this information 
to EPA within 60 days of a written request. The final rule includes the 
addition of a provision that allows for manufacturers or importers to 
accept the responsibility for recordkeeping and reporting requirements 
that would otherwise be required of their distributors.
    The promulgated rule requires that every 3 years, beginning with 
calendar year 2011, each regulated entity must submit a triennial 
report. The triennial report would provide updated VOC formulation data 
and, for each VOC formulation, the total mass of each individual VOC or 
mixture used as ingredients in the aerosol coatings manufactured, 
imported, or distributed that year. This information must be provided 
only for the second year of the reporting cycle, which in the case of 
the first report would be information from 2010. Subsequent reports 
will be required at three year intervals. In other words, a report 
containing data from 2013 will be due in 2014, a report containing data 
from 2016 will be due in 2017, and so forth. EPA intends to provide 
mechanisms for regulated entities to provide this information through 
the electronic submission facilities being expanded under the National 
Emissions Inventory (NEI) program and will provide additional 
information and guidance to regulated entities before the first report 
is due. This report has been added to the final rule to address 
concerns raised during the public comment period, as explained in 
section III.E of this preamble.
    The final rule requires those small manufacturers who qualify for 
exemption from the limits of Table 1 of subpart E to make an annual 
report to EPA providing necessary information and documentation to 
establish that the products made by the entity should be exempt.
    EPA notes that the contents of any reports, including the VOC 
composition of the coatings subject to this rule, are ``emissions 
data'' under section 114 of the CAA and EPA's regulatory definition of 
such term in 40 CFR part 2. As such, this information must be available 
to the public regardless of whether EPA obtains the information through 
a reporting requirement or through a specific request to the regulated 
entity. Therefore, such information is not eligible for treatment as 
``confidential business information'' under 40 CFR 59.516 of this rule.

G. Variance

    The final rule allows regulated entities to submit a written 
application to EPA requesting a temporary variance if, for reasons 
beyond their reasonable control, they cannot comply with the 
requirements of the rule. An approved variance order would specify a 
final compliance date and a condition that imposes increments of 
progress necessary to assure timely compliance. A variance would end 
immediately if the regulated entity failed to comply with any term or 
condition of the variance. The Administrator will provide special 
consideration to variance requests from regulated entities, 
particularly small businesses that have not marketed their products in 
areas subject to State regulations for these products prior to this 
rulemaking. EPA notes that a variance under EPA's national rule for 
aerosol coatings under section 183(e) does not alter any requirements 
under any applicable State or local regulations. No changes were made 
to this section since the proposal.

H. Test Methods

    Although regulated entities may use formulation data to demonstrate 
compliance with the reactivity limits, EPA concludes it is also 
necessary to have test methods in place that can be used to verify the 
accuracy of the formulation data. Therefore, we have included two test 
methods that may be used by regulated entities or EPA to determine 
compliance with the reactivity limits. In those cases where the 
formulation data and test data are not in agreement, data collected 
using the approved test methods will prevail. Regulated entities or 
regulatory agencies may use either California Air Resources Board 
Method 310--Determination of Volatile Organic Compounds in Consumer 
Products and Reactive Organic Compounds in Aerosol Coating Products, or 
EPA Method 311--Analysis of Hazardous Air Pollutant Compounds in Paints 
and Coatings in Paints and Coatings by Direct Injection into a Gas 
Chromatograph (40 CFR part 63, appendix A) to determine the reactive 
organic compound content of an aerosol coating. California Air 
Resources Board Method 310 includes some test procedures that are not 
required to determine the VOC content of aerosol coatings; for example, 
California Air Resources Board Method 310 incorporates EPA Method 24 
for determining the VOC content of a coating. We have identified those 
sections of California Air Resources Board Method 310 that are not 
required for compliance demonstration purposes in the regulation. EPA 
Method 311--Analysis of Hazardous Air Pollutant Compounds in Paints and 
Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, 
appendix A) was originally developed for liquid coatings, so it does 
not include provisions for the collection of the propellant portion of 
an aerosol coating. Therefore, those choosing to use EPA Method 311--
Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by 
Direct Injection into a Gas Chromatograph (40 CFR part 63, appendix A) 
must separate the aerosol propellant from the coating using either ASTM 
D3063-94 or ASTM D 3074-94. There were no changes to the test methods 
in the final rule.

III. Response to Significant Comments

    During the public comment period, we received a total of 18 comment 
letters. Of these, seven were brief letters in support of the proposed 
regulation. A summary of the most significant comments is presented 
below. A summary of all comments received on this rule, as well as 
complete responses to each of these comments, are presented in the 
docket (EPA-HQ-OAR-2006-0971).

A. Format of Regulation

    Several commenters discussed the use of a reactivity-based rule 
versus a mass-based rule. Two commenters fully supported the 
reactivity-based rule, while five commenters raised some concerns over 
some aspects of this approach.
    The commenters supporting the rule generally supported the use of a 
reactivity-based approach both nationally and in California. One 
commenter stated that EPA did a good job in evaluating the reactivity 
regulation in California and the feasibility of making it apply 
nationwide, calling it a ``bold step forward in the arena of air 
quality regulations.'' Another commenter stated that ``[t]he rule is an 
important advancement in the use of reactivity-based emissions 
regulations for VOC.'' The commenter provided the following points in 
support of this rule and the future use of reactivity-based VOC 
emission limits in other consumer product and coating standards:

    1. Reactivity-based VOC emission regulations are more 
appropriate and effective for addressing the environmental concern 
of interest, ozone formation potential.
    2. This national proposed rule is based on an established CARB 
regulation for aerosol coatings which has already been approved by 
EPA and in use for several years.

[[Page 15612]]

    3. Reactivity-based VOC emission regulations provide product 
formulators with more options for meeting environmental performance 
standards while providing technically feasible product performance, 
and stimulating future product development enhancements.
    4. There is evidence that lower mass-based VOC limits in some 
products may be leading to the increased use of more photochemically 
reactive VOC, eliminating some of the anticipated environmental 
benefit (ozone reduction) of these regulations, and possibly 
increasing the actual ozone formation potential of the products 
themselves.

    This commenter also stated that the reactivity-based approach is 
consistent with EPA's September 2005 ``Interim Guidance on Control of 
Volatile Organic Compounds in Ozone State Implementation Plans,'' which 
specifically ``encourages States to consider recent scientific 
information on the photochemical reactivity of volatile organic 
compounds in the development of state implementation plans designed to 
meet the national ambient air quality standards for ozone [70 FR 54046-
54051; September 13, 2005].''
    The commenter concluded that reactivity-based VOC standards should 
not be considered ``only as a supplement to mass-based approaches, but 
as a scientifically valid and appropriate means for controlling ozone 
formation.'' The commenter also stated that in its approval of the CARB 
regulation, EPA appropriately stated that the reactivity-based rule 
will improve the SIP in part by ``creating an incentive for the use of 
solvents with relatively low contribution to ozone formation [70 FR 
1642].'' The commenter further stated that some VOC mass-based limits 
in the previous version of CARB's aerosol coatings rule ``presented 
particularly difficult reformulation challenges'' for product 
manufacturers [70 FR 1642]. The commenter stated that EPA correctly 
noted that CARB's regulation will preserve the air quality benefits of 
its previous rule, while at the same time allowing manufacturers 
greater flexibility in reformulating their products, by replacing 
existing mass-based VOC limits for aerosol spray coatings with 
reactivity-based limits that are designed to achieve equivalent air 
quality benefits [70 FR 1642]. The commenter concluded that expanding 
this aerosol coating regulation to the rest of the United States 
expands the benefits of this working reactivity-based VOC regulation to 
other areas of the United States where ozone formation is a concern, 
while allowing aerosol coating manufacturers to develop single 
formulations for the entire United States.
    Several commenters raised concerns over some aspects of an approach 
based on reactivity. These commenters stated that a reactivity-based 
approach may have merit, but only if EPA first addresses numerous 
``unanswered questions'' about the potential adverse impact of such an 
approach on other equally, if not more, important components of air 
quality management programs, such as the effect on ambient fine 
particulate matter (PM2.5) levels and air toxics. The commenters also 
raised the issues of downwind ozone impacts and enforceability. One 
commenter provided an extensive history of the evolution of EPA's use 
of reactivity, noting that EPA is not obligated to issue a reactivity-
based regulation, stating that the required reactivity-based portion of 
EPA's obligation under Sec.  183(e) was fulfilled during the listing 
process. The commenter questioned whether EPA had adequately addressed 
all possible impacts of a reactivity-based approach before proceeding 
with the proposal.
    Some commenters advocated that EPA should issue a mass-based rule, 
rather than one based on reactivity. The commenters pointed to the 
uncertainty of the use of a reactivity-based approach, including 
concerns over the toxicity of pollutants that are used as substitutes, 
the potential inter-relationship with PM2.5 issues, downwind ozone and 
enforceability concerns. The commenters concluded that, given these 
concerns, and the fact that a fully implemented rule only yields a 
benefit equivalent to a 19 percent reduction of VOC, that EPA may be 
``better served to establish a National rule based on the 1996 CARB 
rule amended with 2002 mass-based limits known to be feasible.'' The 
commenters stated that this is the approach used by two other States, 
Oregon and Washington, that have aerosol coating rules. One commenter 
further stated that because these limits would be feasible for all 
manufacturers, the small manufacturer exemption, the extended 
compliance date, and the variance provisions would all be unnecessary. 
Therefore, the commenter concluded that a mass-based approach would 
achieve the most reductions and would allow EPA time to conduct the 
required investigations to address issues and not ``rely on 
expectations that may not hold to be true.'' One commenter stated that 
``EPA appears to have neglected to consider an approach that combines 
mass-based and reactivity-based components.''
    EPA considered these comments, but we still conclude that the 
reactivity-based approach for this rule is appropriate. Under CAA 
section 183(e), EPA is charged with developing regulations that 
implement BAC for the purposes of decreasing ground-level ozone 
formation. For aerosol coatings, EPA has determined that the proposed 
reactivity-based regulation remains BAC. The reactivity-based limits 
are based on those adopted in CARB's reactivity-based rule and are 
designed to achieve a comparable decrease in ozone formation that would 
have been achieved by CARB's 2002 mass-based limits, which are lower 
than CARB's 1996 mass-based limits. Moreover, while some of CARB's 2002 
mass-based limits are now considered unfeasible and are not in force, 
the reactivity-based limits are now in effect and many manufacturers 
are producing and selling compliant products. Oregon and Washington 
have adopted CARB's 1996 mass-based limits. However, even if these 
limits were lowered for some categories to the 2002 limits, where 
deemed feasible, this hybrid approach proposed by the commenters would 
not achieve the same level of ozone decrease that the reactivity-based 
limits will. Furthermore, it is not clear that manufacturers who are 
not currently subject to the CARB reactivity-based limits would have 
any more or less difficulty meeting the hybrid mass limits than they 
would meeting the reactivity-based limits in the proposed rule. In 
other words, any mass-based rule would also likely include provisions 
for small businesses and other variances.
    The determination of BAC depends on EPA's determination that the 
proposed relative reactivity factors can be used to reasonably predict 
the changes in the ozone formation that will occur due to changes in 
the emissions from this source category. After thoughtful consideration 
of the available research, EPA has concluded that this determination is 
justified. EPA has followed and contributed to the development of the 
science underlying reactivity-based regulations since such an approach 
was considered in the early 1990s. EPA's position on the acceptability 
of reactivity scales has evolved along with the science. The most 
recent results of research performed under the RRWG, cited in section I 
of this preamble, provide evidence that the relative reactivity factors 
in the proposed rule are reasonably robust over a wide variety of 
environmental conditions. Concerns about the potential for increased 
ozone downwind are addressed in a separate section below.

[[Page 15613]]

    Although recent research suggests that other reactivity scales may 
more accurately represent the behavior of ozone in current air quality 
models, it is not clear that emission limits based on these scales 
would be achievable or that the use of a different scale would lead to 
significantly different ozone decreases from this source category. 
Furthermore, emission limits based on a different scale than that used 
by CARB would lead to increased costs to comply. Therefore, EPA has 
determined that use of the proposed relative reactivity factors is 
reasonable and will lead to net decreases of ground-level ozone. The 
consideration of fine particle formation, toxics exposures, and 
stratospheric ozone depletion are addressed below in a separate 
section, as are concerns about the complexity of enforcement.
    One commenter disagreed with EPA's statement in the preamble that 
this regulation was needed because there are areas of the country that 
need VOC substitution strategies to address nonattainment issues. The 
commenter argued that there are many opportunities to reduce VOC mass 
by implementing readily available and proven programs ``before 
embarking into VOC substitution.'' The commenter continued that most 
nonattainment areas around the country have not taken aggressive steps 
to limit VOC. Therefore, the commenter contended that there are 
significant reductions that can be obtained from programs, such as 
implementing RACT or updating decades-old RACT programs, fuel 
strategies, and other area source regulations like consumer products, 
architectural coatings, and Stage I vapor recovery.
    EPA disagrees with this commenter. Several of the commenters on the 
proposed rule inaccurately portray the choice between mass-based 
emission limits and reactivity-based emission limits as a choice 
between emission reductions and emission substitutions. For aerosol 
coating products, any new emission limitation, whether it is mass-based 
or reactivity-based, will be achieved by reformulating the product, 
thereby changing the composition of the associated emissions. With a 
reactivity-based limit, the reformulation will be guided by relative 
reactivity factors that will encourage manufacturers to use lower 
reactivity compounds and will limit the overall ozone formation 
associated with the product. All VOC components with an RF value 
greater than 0.3 are included in the calculation. With a mass-based 
limit, manufacturers may shift to more powerful solvents, some of which 
may often be higher in reactivity, and which cumulatively may 
contribute more to ozone formation. There is no explicit limit on the 
ozone formation associated with the product. The precise impacts (on 
ozone, fine particles, air toxics, or other environmental endpoints of 
concern) of either reactivity-based or mass-based emission limits are 
difficult to predict given the reformulations that may be used to 
achieve the limits. However, reactivity-based limits derived using a 
reasonable set of relative reactivity factors provide the appropriate 
incentives to shift formulations to compounds with lower reactivity, 
and limit the overall ozone contribution of the regulated products.
    The commenter's assertion that reactivity-based regulations should 
not be pursued until other mass-based VOC control measures, including 
RACT, have been implemented or strengthened is not a factor in the 
decision of how EPA fulfills its obligations under CAA section 183(e) 
to implement best available controls. However, EPA does believe that 
traditional mass-based VOC control measures continue to be effective 
tools for addressing VOC contributions to ozone nonattainment problems 
in many situations and that reactivity-based control measures are most 
useful where mass-based controls have reached the limits of 
technological feasibility. In the case of aerosol coatings, EPA has 
determined that it is possible to use reactivity-based limits to go 
beyond what is achievable with mass-based limits, and therefore, has 
found reactivity-based limits to be BAC for this product category.

B. Downwind Effects and Robustness of Relative Reactivity Scale

    Several commenters discussed the state of the science of reactivity 
and whether EPA's statements about the science of reactivity were 
correct. Some commenters questioned EPA's statement that the expected 
realistic changes in the formulation of aerosol products are unlikely 
to result in noticeable increases in ozone downwind of the source, 
stating that EPA does not know this to be the case. The commenters 
asserted that this issue is important ``for the simple fact that ozone 
nonattainment areas in the Northeastern United States have the highest 
recorded ozone values downwind of urban centers, and this effort has 
the potential to increase ozone in the very place where ozone 
reductions are most needed, confounding the ozone attainment plans that 
are being developed by the states.'' The commenters also stated that 
increased ozone downwind from urban centers could result in more 
impacts to agricultural and forested areas of the country.
    One commenter further stated that the statements made in the 
preamble related to future ozone levels seem to be based on 
expectations rather than demonstrations based on modeling efforts. The 
commenter encouraged EPA, given the potential for further tightening of 
the current ozone NAAQS, to perform studies demonstrating that there 
would be no increase in downwind ozone ``so that the implementation of 
this rule does not worsen ozone nonattainment problems found in the 
Northeastern United States.''
    EPA recognizes the commenters' concerns about downwind ozone 
formation but has concluded that the VOC reformulations resulting from 
this reactivity-based regulation will reduce overall ozone formation 
and exposure. First, any enhancements of downwind ozone caused by 
upwind substitution of larger amounts of less reactive VOC are expected 
to be smaller than the concurrent reductions of upwind ozone. Carter et 
al. (2003), in modeling large-scale VOC substitution scenarios, found 
larger local ozone reductions and smaller downwind ozone increases. 
Similarly, Arunachalam et al. (2003) found that ``high-versus-low 
reactivity substitution'' is ``an effective strategy for reducing high 
levels of ozone,'' especially in, or downwind of, urban areas. In a 
modeling exercise conducted to inform this rulemaking, Luecken (2007; 
see docket) substituted lower reactivity VOC for higher reactivity VOC 
in the Chicago area and found the resulting downwind ozone disbenefits 
to be much smaller than the upwind ozone benefits. In general, upwind 
ozone reductions are expected to occur in or near densely populated 
urban areas, where ozone levels are highest, thus reducing overall 
population exposure. Second, downwind areas, particularly remote, 
rural, or suburban areas, are likely to be NOX-limited 
(Sillman, 1999; AQCD, 2006), thus restricting ozone formation from 
small additional amounts of upwind anthropogenic VOC. The 
implementation of other regulations such as the Clean Air Interstate 
Rule will likely reduce NOX further in such areas. Third, in 
downwind areas that may be VOC-limited, the simultaneous VOC 
substitutions occurring in these areas may counterbalance, to some 
extent, the introduction of VOC from upwind. Fourth, the reductions in 
upwind reactivity and ozone formation are likely to reduce the direct 
transport of ozone and ozone precursors such as aldehydes downwind from 
urban areas.

[[Page 15614]]

    EPA agrees that modeling can be useful for demonstrating the 
impacts of regulatory changes. While EPA did not perform nationwide 
modeling specific to this regulation, the three studies cited above 
support the EPA's contention that downwind ozone increases are likely 
to be small, especially compared to upwind ozone reductions. Thus, 
while additional modeling will continue to shed light on VOC 
reactivity, there is an adequate basis for proceeding with this 
reactivity-based regulation. As the science evolves, EPA will continue 
to invest and participate in research into VOC chemistry and the use of 
reactivity measures.
    One commenter stated that, while reactivity-based approaches may 
provide significant benefits ``where the science is sufficiently robust 
to ensure that the expected benefits are achieved in practice,'' the 
commenter stated that, based on the proposal, ``it is not clear that 
EPA has adequately addressed all the relevant technical issues or that 
this reactivity-based regulation is appropriate at this time.'' The 
commenter notes that EPA must adequately (and accurately) account for 
the differences in the various environmental conditions (and resulting 
variations in VOC behavior) throughout the United States. The commenter 
stated that the complexity of the interactions of VOC in the ambient 
air makes it extremely difficult to accurately predict the actual VOC 
forming capacity of a chemical compound. The commenter stated that 
``assuming an essentially uniform ``reactivity'' for a compound used in 
any coating product anywhere in the country presents the potential for 
an inaccurate assessment of the actual VOC-related effects of the 
product nationwide.'' The commenter further stated that ``EPA's half-
hearted assertion in the proposed rule that its scientific 
understanding of VOC reactivity has evolved sufficiently to allow it to 
reliably and accurately predict the behavior of individual species of 
VOC in a regulatory context is far from unequivocal.''
    Another commenter had a different position and asserted that:

    Controlling VOC emissions from coatings and consumer products 
based on photochemical reactivity is a scientifically sound and 
appropriate means of addressing ozone formation potential. There can 
be enormous differences in the capacity of various VOC to react in 
the atmosphere to form tropospheric ozone. As reflected in EPA's 
proposal, scientific research shows that photochemical reactivity 
has a more direct correlation to the ozone-forming potential (i.e., 
potential air quality impacts) of VOC emissions than does a simple 
mass-based measure of emissions. The impact of mass-based VOC 
emissions reductions on ozone formation potential is uncertain and 
can vary greatly depending on the VOC substitution decisions made to 
meet specific mass limits. Reactivity-based VOC emissions limits, by 
considering the rate and mechanism of photo oxidation in the 
troposphere, are reflective of the actual processes that lead to 
ozone formation. Relative photochemical reactivity thus provides a 
more rigorous scientific approach to assessing an individual 
compound's potential contribution to ozone accumulation than does 
consideration of its mass alone.

    Accordingly, this commenter concluded that EPA's approach is 
scientifically sound and represents a significant step forward in 
aerosol coatings regulation.
    EPA recognizes the concerns raised by the commenters, but agrees 
with the latter commenter. EPA acknowledges the difficulty in assessing 
reactivity in widely different environmental conditions. As noted in 
the proposal, a compound's reactivity can depend on the 
VOC:NOX ratio, meteorological conditions, and the mix of 
other VOC. Many different methods have been suggested for measuring the 
reactivity of individual compounds. EPA has chosen the MIR scale, which 
is an ozone yield scale derived by adjusting the NOX 
emissions in a base case simulation to yield the highest incremental 
reactivity of the base reactive organic gas mixture. These are 
environmental conditions where ozone production is most sensitive to 
changes in VOC emissions and, therefore, where VOC controls would be 
most effective. These tend to reflect conditions in or near urban areas 
where VOC emissions are most likely to produce ozone, and thus EPA has 
determined the MIR scale is the most appropriate for regulatory 
purposes (see also Carter, 1994). Research conducted under the auspices 
of the RRWG has shown good correlation between the MIR scale and other 
reactivity scales, including those computed with photochemical airshed 
models. Also, this research has supported the nationwide applicability 
of reactivity scales, and peer reviews of the RRWG reports have 
specifically supported the use of the MIR scale for a nationwide 
aerosol coatings regulation (see docket). For more detail, refer to the 
proposal (72 FR 38952). As noted above, EPA will continue to invest and 
participate in research into VOC chemistry and the use of reactivity 
measures.

C. Consideration of Other Factors in the Consideration of Best 
Available Controls

    Several commenters presented arguments for numerous factors that 
should be included in EPA's determination of BAC for aerosol coatings. 
These factors include the potential impact on ambient PM levels, the 
potential for increase in emissions of certain hazardous air pollutants 
(HAP), and potential stratospheric ozone impacts. In addition, one 
commenter stated that EPA should consider the impact of the rule on 
agricultural and forest areas.
    The commenters concerned with contribution to PM levels were 
primarily concerned about the aerosol fraction of measured ambient 
PM2.5. The commenters stated that EPA should consider ``negative co-
effects'' of the rule on fine particulate matter, because the 
substitution with compounds with low reactivities could increase the 
mass of emissions of low reactive compounds, which could impact both 
primary and secondary ozone formation. The commenter stated that this 
would be even more important in the near future, as the PM2.5 NAAQS is 
revised and given the fact that PM2.5 nonattainment is coincident with 
ozone nonattainment in many areas in the country. The commenter 
concluded that EPA must examine the impacts of increasing low reactive 
VOC on PM2.5 before establishing a regulatory framework that encourages 
substitution.
    Several commenters were concerned that EPA did not consider the 
toxicity of compounds when establishing BAC for this category. Some 
commenters identified several examples of HAP, including benzene and 
diisocyanates, with relatively low reactivity factors and noted that 
EPA overlooked the fact that all VOC are not equal when it comes to 
their individual toxic potential. The commenters stated that toxicity 
should be considered in setting emission limits, with one commenter 
suggesting that EPA consider a substitution protocol for VOC that 
includes ``low to high'' toxicity in addition to ``low to high'' 
reactivity.
    Another commenter also noted that the table of reactivity factors 
also includes compounds that have been banned under Title VI of the CAA 
because they are considered stratospheric ozone depletors.
    EPA has addressed the impacts of the factors mentioned by the 
commenters in the final rule to the extent allowed by the CAA.
    With respect to the commenter's concerns about HAP emissions from 
aerosol coatings, EPA notes that section 183(e) only provides the EPA 
with authority to regulate VOC emissions from consumer and commercial 
products for purposes of reducing ozone nonattainment. Other provisions 
of the Act, such as section 112, provide the statutory mechanism for 
reduction of

[[Page 15615]]

HAP emissions. Thus, although EPA shares the concerns of the commenter 
about unnecessary exposure to HAPs, the EPA does not have authority 
like that of the State of California to restrict or ban the use of 
specific HAPs as ingredients in aerosol coatings. Nevertheless, EPA 
believes that sufficiently stringent limits can have the beneficial 
effect of reducing the use of certain HAPs such as toluene and benzene. 
Because these compounds are highly reactive, the limits of the final 
rule will serve to restrict the use of these compounds as ingredients 
in aerosol coatings as a practical matter.
    With respect to the comment concerning compounds that are banned 
under Title VI, EPA is clarifying that the compounds included in 72 FR 
38951 are not a list of compounds ``approved'' for use in aerosol 
coatings. On the contrary, it is merely a list of compounds for which 
relative reactivity factors have been derived. Therefore, if a compound 
had been banned by Title VI, or banned for use for any other reason, 
they cannot be used as ingredients in aerosol coatings.
    However, EPA has revisited the decision to include an exhaustive 
list of compounds in Table 2A. Based on concerns raised by commenters 
and an internal review at EPA, we have revised Table 2A. That table 
currently includes those organic compounds we know to be used in 
aerosol coatings products that: (1) Have an RF value greater than that 
of ethane (0.3), and (2) are used in amounts greater than 7.3 percent 
of the product weight. This changes the role of Table 2A from a listing 
of available reactivity factor (RF) values to a table defining the 
compounds that have defined RF factors for this rule.
    If a regulated entity identifies a compound or mixture of compounds 
that is not on Table 2A, 2B, or 2C, the regulated entity can still use 
the compound or mixture as an ingredient, as follows:
    (1) The regulated entity can inform EPA that it intends to use the 
compound and request that the compound be added to Table 2A, 2B, or 2C, 
pursuant to the procedures in section 59.511(j) of the final rule. 
However, if the compound has a reactivity factor that is less than 0.30 
g O3/g VOC, and the compound is less than or equal to 7.3 percent by 
weight in any of your products, the regulated entity can use an RF 
equal to zero in all calculations. Any requests submitted to EPA on or 
before June 1, 2008 will be considered, and if appropriate, 
incorporated into the appropriate Table on or before January 1, 2009.
    (2) If the compound does not have an established reactivity factor 
listed in Table 2A, 2B, or 2C, the compound can be used, provided an RF 
of 22.04 g O3/g compound is used in all calculations for that compound. 
This value, which is equal to the highest RF identified to date, was 
selected to ensure that the environment is protected while additions to 
the list are being considered.
    In the proposed regulation, we proposed to eliminate all of the 
exemptions from the definition of VOC listed in the first clause 
subparagraphs of Sec.  51.100(s). This inadvertently included certain 
inorganic compounds listed in Sec.  51.100(s) that are not VOC. On 
further review, EPA concluded that there is no need to eliminate the 
exemption for organic compounds that have an RF value of 0.3 or less 
and that represent less than 7.3 percent of a given product 
formulation.
    However, if a regulated entity intends to use an organic compound 
that is not listed in Table 2A in the final rule as an ingredient in an 
aerosol coating, then the regulated entity is required to notify EPA 
via its Initial Notification or an update to that notification. EPA 
will then add such compounds and their reactivity factors to Table 2A. 
Until listed in Table 2A, such compounds may be used in aerosol coating 
products but are assigned the default reactivity factor of 22.04 g 
O3/g compound.
    Several commenters also provided input on the question raised in 
the proposal preamble related to a voluntary program for the reduction 
of HAP. The commenters were all opposed to an additional program, 
citing existing programs and requirements that already address the 
inclusion of toxic materials in coatings. For example, the Federal 
Hazardous Substance Act (FHSA), which requires specific labeling of 
products that it classifies as ``hazardous substances.'' The FHSA 
includes any products containing methylene chloride on that list.
    EPA is not establishing a voluntary HAP reduction program at this 
time. Existing programs appear to be sufficient to help ensure that the 
unwanted outcome of increased toxicity of aerosol coating products does 
not occur. EPA reserves the right to revisit the potential for such a 
program, for this or another reactivity-based rulemaking, at a later 
date.

D. Variance, Small Quantity Manufacturers, Extended Compliance Date

    Several commenters expressed concern about both the need for, and 
equity of, the three provisions in the proposed rule that either 
extended the compliance date or provided an exemption from the rule. 
These provisions were the variance provisions in the rule, the 
exemption for small quantity manufacturers, and the extended compliance 
date for regulated entities that have not previously marketed coatings 
compliant with CARB's reactivity based rules.
    A few commenters were concerned about the potential for unfair 
economic advantage created by the small quantity manufacturer 
exemption. One commenter stated that the exemption for small 
manufacturers provides a competitive advantage that they could 
``readily use'' to expand market share. Some commenters believed that 
the small quantity exemptions should be available to regulated entities 
of all sizes and be based on the size of the batch. This commenter gave 
the example of a coating supplier that provided most coating in bulk, 
but would supply a small quantity of matching paint in aerosol cans for 
exact match touch-ups. Another commenter stated that they were unable 
to support a proposal that specifically exempts manufacturers of 
certain products from regulatory requirements unless the exemption was 
available to all manufacturers of that type of product. The latter 
commenter was concerned with the anti-trust ramifications of providing 
such an exemption, since it could create a beneficial climate for one 
manufacturer, but not another.
    Some commenters expressed concern that EPA overstated the emission 
reductions in the rule, given the number of sources that would 
potentially take advantage of the exemption, variances, and extensions. 
One commenter stated that the small quantity manufacturer exemption, in 
particular, would have a substantial impact on the VOC emission 
reductions achieved by the rule and cautioned that EPA should closely 
monitor the impacts of these provisions on the overall rule efficacy.
    EPA does not agree that the exemption and variance provisions are 
likely to have a significant impact on the overall effectiveness of 
this rule. EPA has tailored the small quantity manufacturer exemption 
to provide relief only to those particularly small entities that would 
otherwise bear particularly high costs for compliance relative to the 
small amount of products they produce and, therefore, the small amount 
of total VOC emissions from such products. The variance provision is, 
likewise, narrowly tailored and provides only temporary variance from 
the limits of the rule. Each of these provisions is targeted to small 
subsets of

[[Page 15616]]

regulated entities that would otherwise be disproportionately impacted 
by this rule.
    The two-year compliance extension for facilities that have not 
previously manufactured coatings compliant with CARB coating limits is 
provided to ensure that facilities have adequate time to reformulate 
products to meet the rule. If a regulated entity has not previously 
developed compliant products, it may take longer (i.e., beyond January 
1, 2009) to reformulate and market a new product. However, because EPA 
estimates that well over 85 percent of the aerosol coatings in the 
United States have already been reformulated to meet the California 
limits, we do not expect many facilities to qualify for this provision. 
Similarly, EPA does not anticipate that a large number of regulated 
entities will need to request a variance under this rule. In 
California, only one variance request was ever requested for the 
comparable CARB aerosol coating rule.
    EPA established the small quantity manufacturer exemption with the 
primary focus of assisting small businesses that may make only a small 
quantity of aerosol coatings. Because small businesses do not always do 
business across the country, EPA concluded that it was possible that 
some may not have previously been subject to the reactivity-based 
requirements in California. While we have included the costs of 
developing reformulated products in the cost assessment of this rule, 
we also recognize that the average cost (i.e., cost on a ``per can'' 
basis) could be higher for a company producing a smaller product line. 
Recognizing this, we established this provision to exempt those most 
likely to experience the highest per-can reformulation costs.
    EPA also does not concur with the commenter's concerns that the 
small quantity manufacturer exemption creates an unfair competitive 
advantage or antitrust issues. The total mass of VOC per exemption 
(7500 kg) represents less than 0.01 percent of the total VOC used in 
aerosol coatings (based on the 1990 survey). Even adjusting for 
emission reductions that have occurred since 1990, the mass for this 
exemption would remain well below one percent of the market. We 
disagree that this small fraction of the total aerosol coating market 
could give anyone a competitive advantage. Further, a significant 
expansion in a small quantity manufacturer's market share would likely 
result in the manufacturer no longer qualifying for the exemption.
    Finally, EPA also does not agree that creation of the exemption for 
small quantity manufacturers creates an antitrust issue. Such issues 
generally arise where members of an industry collude to create unfair 
market advantage, as by agreeing not to compete on prices for their 
respective products. EPA, in its capacity as government regulator, can 
promulgate regulations with features such as exemptions for certain 
members of an industry without violation of the applicable statutes and 
regulations pertaining to antitrust issues. Moreover, EPA is obligated 
to take the specific concerns of small entities into account in the 
regulatory process and, where appropriate, to provide mechanisms such 
as exemptions in order to mitigate disproportionate and unnecessary 
impacts upon small businesses. In the case of this regulation, EPA has 
determined that it is appropriate to provide an exemption of this type 
because it will permit the implementation of a rule that will achieve 
significant VOC emission reductions across the industry as a whole and 
the percentage of emissions reductions that will be foregone by virtue 
of the exemption are anticipated to be de minimis.
    As discussed in the air impacts section of this preamble, we do not 
expect any of these provisions to have a significant impact on overall 
VOC emission reductions that will result from the rule, largely due to 
the small number of regulated entities that we expect to qualify for 
these exemptions. Therefore, EPA has concluded that all exemptions 
should remain in the rule, as proposed. We have made some changes to 
the regulatory language, particularly with respect to the small 
quantity manufacturer, to ensure that the provisions are clear.
    One commenter asked EPA to clarify whether an importer's products 
are exempt as specified under the small quantity manufacturer exemption 
in Sec.  59.501(e). First, EPA notes that the small quantity 
manufacturer exemption is only available to manufacturers. Second, in 
response to this comment, EPA has added a provision in Sec.  59.501(f) 
that specifies how foreign manufacturers may qualify for the small 
quantity manufacturer exemption.

E. Additional Reporting Requirements

    Numerous commenters provided input on the need, or lack of need, 
for additional reporting requirements, in general, and the annual 
reporting of formulation data, in particular. Some commenters contended 
that no additional periodic reporting was warranted, while others 
stated their belief that the rule is not enforceable without additional 
reporting.
    One commenter argued that more detailed records, including 
formulation data, must be mandated by this rule. This commenter said 
that it would be unreasonable for EPA not to provide for adequate data 
reporting that would allow for meaningful oversight and enforcement of 
the rule, stating that formulation data are critical to this 
assessment. The commenter does not believe that the proposed approach 
(i.e., the regulated entity responding to an EPA request for data) is 
sufficient. The commenter stated that EPA must include reporting 
requirements in the rule that will ensure it can quickly and 
effectively verify compliance and intervene appropriately where a 
violation occurs. Other commenters supported gathering additional 
information, with one stating that they believe that without full 
electronic reporting of all formulation data, the burden on EPA's 
compliance and enforcement staff would be too great and that any 
effective enforcement would be impossible.
    Other commenters strongly disagreed that additional reporting is 
warranted. These commenters pointed to the requirements to supply 
information to EPA on the types of products they manufacture, as well 
as contact information. They contended that the requirement to supply 
the more detailed information, including formulation data for the 
volatile components in their products, is unnecessary. When EPA chose 
to make a compliance review, there were provisions in the proposed rule 
that gave EPA the ability to obtain the specific information, as 
needed. The commenters encouraged EPA to maintain the provisions 
related to reporting requirements as they were proposed.
    EPA appreciates the comments received on this topic from all sides 
and understands both positions. When EPA is establishing the 
recordkeeping and reporting requirements for a rule, we have the 
responsibility to balance the burden imposed by the requirements with 
the need for a rule that is implementable as a practical matter. We 
must ensure that the information needed to implement the rule is 
available, while ensuring that we do not require industry to gather and 
submit information that will never be used. This rulemaking, the first 
national VOC rule incorporating reactivity-based limits, raises 
additional concerns about the types of information that should be 
gathered. Based on a thoughtful review of the comments and our own 
review, we have concluded that there are two

[[Page 15617]]

basic needs for information: (1) Information that allows EPA (and 
others) to ensure that the requirements are being met, and (2) 
information that allows EPA (and others) to assess whether the 
reactivity-based approach is resulting in the ozone reductions we have 
determined, based on information we have analyzed to date, should 
occur. Each of these basic information needs warrant a different 
approach.
    EPA has revised the reporting requirements of the final rule to 
ensure that adequate information is available. EPA concurs with the 
commenters who believe that we have an obligation to ensure that our 
new approach to regulating some VOC sources through the use of 
reactivity-based limits is working. In the final rule, EPA has included 
a requirement for regulated entities to provide information about the 
VOC composition of their products in their Initial Notifications and to 
update this information every three years, beginning with data for 
calendar year 2010, along with information about the quantities of 
individual VOC species in each formulation manufactured, imported, or 
distributed in the reporting year. This triennial reporting will enable 
EPA to better assess the efficacy of the reactivity-based approach, 
including the manner in which the program's requirements are being 
achieved. For example, the information will enable us to ascertain how 
manufacturers are responding to the regulation, what the impact of the 
rule is on the aerosol coatings category, and whether the rule has any 
unintended consequences or impacts. The information will also enable us 
to compare the changes in VOC emissions under a mass-based approach as 
compared to a reactivity-based approach. EPA intends to integrate the 
triennial report into the expanded electronic reporting processes being 
developed for the National Emissions Inventory. EPA will provide 
additional information and guidance to regulated entities prior to the 
first required triennial report due in 2011. This information will be 
sent to regulated entities, based on contact information submitted in 
their Initial Notifications.

IV. Summary of Impacts

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

A. Environmental Impacts

    In accordance with section 183(e), EPA has evaluated what 
regulatory approach would constitute ``best available controls'' for 
this product category, taking into account the considerations noted in 
the statute. EPA has evaluated the incremental increase or decrease in 
air pollution, water pollution, and solid waste reduction that would 
result from implementing the final standards.
1. Air Pollution Impacts
    The final rule will reduce the amount of ozone generated from the 
use of aerosol coatings. Because most States will use the VOC emission 
reductions resulting from this rule in their ozone SIP planning, we 
have calculated the reductions associated with the rule in terms of 
mass VOC emissions and we will refer to a reduction in mass VOC 
emissions when discussing the impacts of the final regulation. EPA 
concludes this is appropriate because the reactivity limits were 
designed to ensure that the ozone reductions that would be achieved by 
the limits were equivalent to the mass VOC reductions that would have 
been achieved by the CARB 2002 mass-based VOC limits. However, because 
the limits actually reduce the amount of ozone generated from the VOC 
used in aerosol coatings rather than VOC content by mass, the VOC 
reductions that we refer to are more accurately described as an 
``equivalent reduction in VOC emissions.'' We will use the term 
``reduction'' in subsequent discussions. Additional information on the 
method used to calculate the air impacts of the rule are included in 
the impacts calculation memorandum contained in the docket to this 
rulemaking.
    EPA has estimated that this rule will reduce nationwide emissions 
of VOC from the use of aerosol coatings by an estimated 17,130 tons 
(15,570 Mg) from the 1990 baseline. This represents a 19.4 percent 
reduction from the 1990 baseline of 88,300 tons (80,270 Mg) of VOC 
emissions from the product category. While we believe that the above 
numbers accurately assess the impacts of the final rule for SIP credit 
purposes, we recognize that significant reductions have already 
occurred as the result of the implementation of the CARB aerosol 
coatings regulations. Because many manufacturers sell ``CARB 
compliant'' coatings across the country, some of these VOC emission 
reductions have already been achieved outside of California. We 
estimate that approximately 18 percent of the total products sold are 
not currently compliant with this rule's limits. Therefore, we estimate 
that this rule will result in additional VOC reductions equivalent to 
3,100 tons per year (i.e., 18 percent of 17,130 tons per year).
    The reduction of 3,100 tons per year of VOC emissions represents 
new reductions. However, for ozone SIP purposes, we are providing 
States that do not currently have aerosol coating regulations in place 
full credit for the 19.4 percent reduction from the 1990 baseline. This 
19.4 percent reduction is equivalent to a 0.114 pound of VOC reduction 
per capita.
    Although we have not quantified the anticipated impacts of this 
rule on HAP emissions, EPA expects that the final rule will reduce 
emissions of toluene and xylene, two highly reactive toxic and volatile 
compounds. Toluene and xylene are hazardous air pollutants that 
manufacturers have historically used extensively in some aerosol 
coating formulations. However, both of these compounds are also highly 
reactive VOC. Therefore, it will be difficult for regulated entities to 
continue to use these compounds in significant concentrations and still 
meet the reactivity limits in the final rule. EPA maintains that a 
regulation based upon VOC reactivity, rather than VOC mass, will 
provide a significant incentive for regulated entities to cease or 
reduce use of toluene and xylene in their products.
    Due to the reduction in equivalent VOC emissions and ozone 
formation and the anticipated reduction in hazardous air pollutant 
emissions, we believe the rule will improve human health and the 
environment.
2. Water and Solid Waste Impacts
    There are no adverse solid waste impacts anticipated from the 
compliance with this rule. Companies can continue to sell and 
distribute coatings that do not meet the applicable limits after the 
compliance date, as long as those coatings were manufactured before the 
compliance date. Therefore, the industry does not have to dispose of 
aerosol cans containing noncompliant product, which would result in an 
increase in solid waste. It is possible that the rule will actually 
result in a reduction in solid waste, as more concentrated higher 
solids coatings may be used as an option for meeting the

[[Page 15618]]

regulatory limits. This will result in fewer containers requiring 
disposal when the same volume of solids is applied by product users.
    There are no anticipated adverse water impacts from this 
rulemaking.

B. Energy Impacts

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

C. Cost and Economic Impacts

    There are four types of facilities that will be impacted by the 
final rule. These include the aerosol coating manufacturers, aerosol 
coating processors, and aerosol coating wholesale distributors, and 
importers of aerosol coatings. For some products, the manufacturer is 
also the filler and distributor, while for other products the 
manufacturing process, the filling process, and the distribution may be 
done by three separate companies. The primary focus of our cost and 
economic analysis is the aerosol coating manufacturers as we anticipate 
that the costs to the fillers, distributors, or importers will be 
minimal.
    For the aerosol coating manufacturer, we evaluated three components 
in determining the total cost of the final rule. These three components 
include the cost of the raw materials that the manufacturer will use to 
formulate coatings that comply with the regulatory limits, the cost of 
research and development efforts that will be necessary to develop 
compliant formulations, and the cost of the recordkeeping and reporting 
requirements associated with the rule. These costs are explained in 
more detail in the proposed rule.\29\ The only change to this rule 
since proposal that could impact the cost analysis from the proposed 
rule is the addition of triennial reporting, as discussed elsewhere. 
However, the estimated increase in burden from this increased reporting 
did not affect the average reporting and recordkeeping burden on a per 
can basis. Therefore, there was no change in the economic assessment.
---------------------------------------------------------------------------

    \29\ ``National Volatile Organic Compound Emission Standards for 
Aerosol Coatings: Proposed Rule'' 72 FR 38951 (July 16, 2007).
---------------------------------------------------------------------------

    If all of the cans of aerosol coating product subject to the rule 
required reformulation, the total nationwide cost of the final rule 
would be $20,360,521. However, we know that significant progress has 
already been made in reformulating aerosol coatings to meet the 
promulgated limits. Even before CARB's regulation became effective, its 
survey data showed that for 10 coating categories, 100 percent of the 
coatings were complying with the limits in 1997. For the remaining 
categories, all but two had complying market shares greater than 20 
percent in 1997. With CARB's 2002 reactivity-based regulation in place, 
EPA anticipates that the number of coatings already meeting the limits 
has increased significantly.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action'' because it raises 
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

    The information collection requirements in this final rule have 
been submitted for approval to the OMB under the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) 
document prepared by EPA has been assigned EPA ICR number 2266.02.
    The information collection requirements are based on recordkeeping 
and reporting requirements. These recordkeeping and reporting 
requirements are specifically authorized by CAA section 114 and section 
183(e). All information submitted to EPA for which a claim of 
confidentiality is made is safeguarded according to EPA policies set 
forth in 40 CFR part 2, subpart B, as appropriate. The content of the 
reports required by this rule will not be eligible for treatment as 
confidential business information.
    The promulgated standards would require regulated entities to 
submit an initial notification and other reports as outlined in section 
II.F.
    We estimate that about 62 regulated entities are subject to the 
promulgated standards. New and existing regulated entities would have 
no capital costs associated with the information collection 
requirements in the promulgated standards.
    The estimated recordkeeping and reporting burden in the third year 
after the effective date of the promulgated rule is estimated to be 
15,818 labor hours at a cost of $1.0 million. This estimate includes 
the cost of reporting, including reading instructions, information 
gathering, preparation of initial and supplemental reports, triennial 
reporting of formulation data, and variance or compliance extension 
applications. Recordkeeping cost estimates include reading 
instructions, planning activities, calculation of reactivity, and 
maintenance of batch information. The average hours and cost per 
regulated entity in the third year would be 197 hours and $16,400. 
About 62 facilities would respond per year.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose, or 
provide information to or for a Federal Agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (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

[[Page 15619]]

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 regulatory action, I 
certify that this action will not have a significant economic impact on 
a substantial number of small entities. The small entities directly 
regulated by this final rule are manufacturers, wholesale distributors, 
and importers of aerosol coating products. We have determined that up 
to 40 out of a total of 60 entities (or 67%) could experience a cost-
to-sales ratio increase of up to 1.42 percent. This ratio does not 
include revenues from other products that small regulated entities may 
sell. In addition, significant progress has already been made in 
reformulating aerosol coatings to meet previously promulgated CARB 
emission limits. Both of these factors would significantly reduce the 
cost-to-sales ratio. Consequently it is very unlikely that the cost-to-
sales ratio for any small entity would exceed 1 percent. Thus, a 
significant impact is not expected for a substantial number of small 
entities.
    Although this final rule will not have a significant economic 
impact on a substantial number of small entities, EPA has made efforts 
to reduce the potential impact of the regulation. These efforts include 
active participation in National Small Business Environmental 
Assistance Program (SBEAP) meetings, and in follow-up meetings with 
SBEAP States in Region 5. As a result, several States provided 
information to small businesses regarding the rule. The final rule 
includes several provisions designed to minimize the potential adverse 
impacts on small businesses. They include a small quantity manufacturer 
exemption, a compliance extension for entities that have not previously 
developed CARB-compliant aerosol coatings formulations, and a variance 
provision.

D. Unfunded Mandates Reform Act

    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 the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires 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 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 that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the 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.
    EPA has determined that this regulatory action does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, or tribal governments, in the aggregate, or the 
private sector in any one year. Thus, this action is not subject to the 
requirements of sections 202 and 205 of the UMRA. In addition, we have 
determined that this regulatory action contains no regulatory 
requirements that might significantly or uniquely affect small 
governments because they contain no regulatory requirements that apply 
to such governments or impose obligations upon them. Therefore, this 
action is not subject to the requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order (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.''
    The regulatory action does not have federalism implications. The 
action does 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 regulatory action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order (EO) 13175, entitled ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9, 
2000), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by Tribal officials in the development of 
regulatory policies that have Tribal implications.'' ``Policies that 
have tribal implications'' is defined in the EO to include regulations 
that have ``substantial direct effects on one or more Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes.''
    This final action does not have Tribal implications as defined by 
EO 13175. The final regulatory action does not have a substantial 
direct effect on one or more Indian tribes, in that this action imposes 
no regulatory burdens on Tribes. Furthermore, the action does not 
affect 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. Because the rule does 
not have Tribal implications, EO 13175 does not apply.

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

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

[[Page 15620]]

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.
    This regulatory action is not subject to EO 13045 because it is not 
an economically significant regulatory action as defined by EO 12866. 
In addition, EPA interprets EO 13045 as applying only to those 
regulatory actions that 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 regulatory action is not subject to 
EO 13045 because it does not include regulatory requirements based on 
health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

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

I. National Technology Transfer and Advancement Act

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-
113, Section 12(d), 15 U.S.C. 272 note) directs EPA to use voluntary 
consensus standards (VCS) in its regulatory activities, unless to do so 
would be inconsistent with applicable law or otherwise impractical. The 
VCS are technical standards (e.g., materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by VCS bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the EPA does not use available 
and applicable VCS.
    This final rule involves technical standards. EPA cites the 
following standards in this rule: California Air Resources Board Method 
310--Determination of VOC in Consumer Products and Reactive Organic 
Compounds in Aerosol Coating Products; EPA Method 311--Analysis of 
Hazardous Air Pollutant Compounds in Paints and Coatings by Direct 
Injection into a Gas Chromatograph (40 CFR part 63, appendix A), in 
conjunction with American Society of Testing and Materials (ASTM) 
Method D3063-94 or D3074-94 for analysis of the propellant portion of 
the coating; South Coast Air Quality Management District (SCAQMD) 
Method 318-95, Determination of Weight Percent Elemental Metal in 
Coatings by X-ray Diffraction, July, 1996, for metal content; and ASTM 
D523-89 (Reapproved 1999), Standard Test Method for Specular Gloss for 
specular gloss of flat and nonflat coatings.
    EPA Method 311--Analysis of Hazardous Air Pollutant Compounds in 
Paints and Coatings by Direct Injection into a Gas Chromatograph (40 
CFR part 63, appendix A) also is a compilation of voluntary consensus 
standards. The following are incorporated by reference in EPA Method 
311--Analysis of Hazardous Air Pollutant Compounds in Paints and 
Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, 
appendix A): ASTM D1979-91, ASTM D3432-89, ASTM D4457-85, ASTM D4747-
87, ASTM D4827-93, and ASTM PS9-94.
    Consistent with the NTTAA, EPA conducted searches to identify 
voluntary consensus standards in addition to these methods. No 
applicable voluntary consensus standards were identified.
    For the methods required by the rule, a source may apply to EPA for 
permission to use alternative test methods or alternative monitoring 
requirements in place of any required testing methods, performance 
specifications, or procedures under Sec. Sec.  63.7(f) and 63.8(f) of 
subpart A of the General Provisions.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income populations. Further, it establishes national emission standards 
for VOC in aerosol coatings.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing the final rule 
amendment and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication of this final rule amendment in the Federal 
Register. The final rule amendment is not a ``major rule'' as defined 
by 5 U.S.C. 804(2). This final rule is effective on March 24, 2008.

List of Subjects

40 CFR Part 51

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

40 CFR Part 59

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

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

0
For the reasons set out in the preamble, parts 51 and 59 of title 40 of 
the Code of Federal Regulations are amended as follows:

PART 51--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

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


0
2. Section 51.100 is amended by adding paragraph (s)(7) to read as 
follows:

[[Page 15621]]

Sec.  51.100  Definitions.

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

PART 59--[AMENDED]

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

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


0
4. Subpart E is added to read as follows:

Subpart E--National Volatile Organic Compound Emission Standards for 
Aerosol Coatings
Sec.
59.500 What is the purpose of this subpart?
59.501 Am I subject to this subpart?
59.502 When do I have to comply with this subpart?
59.503 What definitions apply to this subpart?
59.504 What limits must I meet?
59.505 How do I demonstrate compliance with the reactivity limits?
59.506 How do I demonstrate compliance if I manufacture multi-
component kits?
59.507 What are the labeling requirements for aerosol coatings?
59.508 What test methods must I use?
59.509 Can I get a variance?
59.510 What records am I required to maintain?
59.511 What notifications and reports must I submit?
59.512 Addresses of EPA regional offices.
59.513 State authority.
59.514 Circumvention.
59.515 Incorporations by reference.
59.516 Availability of information and confidentiality
Table 1 to Subpart E of Part 59--Product-Weighted Reactivity Limits 
by Coating Category
Table 2A to Subpart E of Part 59--Reactivity Factors
Table 2B to Subpart E of Part 59--Reactivity Factors for Aliphatic 
Hydrocarbon Solvent Mixtures
Table 2C to Subpart E of Part 59--Reactivity Factors for Aromatic 
Hydrocarbon Solvent Mixtures

Subpart E--National Volatile Organic Compound Emission Standards 
for Aerosol Coatings


Sec.  59.500  What is the purpose of this subpart?

    This subpart establishes the product-weighted reactivity (PWR) 
limits regulated entities must meet in order to comply with the 
national rule for volatile organic compounds (VOC) emitted from aerosol 
coatings. This subpart also establishes labeling, recordkeeping, and 
reporting requirements for regulated entities.


Sec.  59.501  Am I subject to this subpart?

    (a) The regulated entities for an aerosol coating product are the 
manufacturer or importer of an aerosol coating product and a 
distributor of an aerosol coating product if named on the label. 
Distributors whose names do not appear on the label for the product are 
not regulated entities. Distributors include retailers whose names 
appear on the label for the product. If your name appears on the label, 
you are a regulated entity.
    (b) Except as provided in paragraph (e) of this section, the 
responsibilities of each regulated entity are detailed in paragraphs 
(b)(1) through (b)(4) of this section.
    (1) If you are a manufacturer or importer, you are the regulated 
entity responsible for ensuring that all aerosol coatings manufactured 
or imported by you meet the PWR limits presented in Sec.  59.504, even 
if your name is not on the label.
    (2) If you are a distributor named on the label, you are the 
regulated entity responsible for compliance with all sections of this 
subpart except for the limits presented in Sec.  59.504. If you are a 
distributor that has specified formulations to be used by a 
manufacturer, then you are responsible for compliance with all sections 
of this subpart.
    (3) If there is no distributor named on the label, then the 
manufacturer or importer is the regulated entity responsible for 
compliance with all sections of this subpart.
    (4) If you are a manufacturer or importer, you can choose to 
certify that you will provide any or all of the recordkeeping and 
reporting requirements of Sec. Sec.  59.510 and 59.511 by following the 
procedures of Sec.  59.511(g) and (h).
    (c) Except as provided in paragraph (e) of this section, the 
provisions of this subpart apply to aerosol coatings manufactured on or 
after January 1, 2009, for sale or distribution in the United States. 
Aerosol coatings that are registered under the Federal Insecticide, 
Fungicide and Rodenticide Act (7 U.S.C. 136-136y) (FIFRA). For FIFRA 
registered aerosol coatings, the provisions of this subpart apply to 
aerosol coatings manufactured on or after January 1, 2010, for sale or 
distribution in the United States.
    (d) You are not a regulated entity under this subpart for the 
aerosol coatings products that you manufacture (in or outside of the 
United States) that are exclusively for sale outside the United States.
    (e) If you meet the definition of small quantity manufacturer for a 
given year, the products you manufacture in that year are not subject 
to the PWR limits presented in Sec.  59.504 or the labeling 
requirements of Sec.  59.507. To qualify for this exemption, small 
aerosol coating manufacturers must comply with the applicable 
recordkeeping and reporting requirements in Sec. Sec.  59.510 and 
59.511.
    (f) If you are a person who manufactures or processes aerosol 
coatings outside of the United States, you may qualify for the small 
quantity manufacturer exemption in paragraph (e) of this section if you 
meet the requirements of paragraphs (f)(1) through (f)(3) of this 
section.
    (1) The total VOC by mass included in all aerosol coatings you 
manufacture, at all facilities, in a given calendar year, in the 
aggregate, is less than 7,500 kilograms.
    (2) You comply with the recordkeeping and reporting requirements in 
Sec. Sec.  59.510 and 59.511.
    (3) You commit to and comply with the requirements of paragraphs 
(f)(3)(i) through (f)(3)(vii) of this section.
    (i) You must provide an initial notification no later than 90 days 
before the compliance date, or at least 90 days before you start 
manufacturing aerosol coating products that are sold in the United 
States. This initial notification must state that you are a foreign 
manufacturer that is intending to qualify for the small quantity 
manufacturer exemption in paragraph (e) of this section, provide all of 
the information specified in Sec.  59.511(b), and provide all the 
information in paragraphs (f)(3)(i)(A) and (f)(3)(i)(B) of this 
section.
    (A) The name, address, telephone number, and e-mail address of an 
agent located in the United States who will serve as your point of 
contact for communications with EPA.
    (B) The address of each of your facilities that is manufacturing 
aerosol coatings for sale in the United States.

[[Page 15622]]

    (ii) You must notify the Administrator of any changes in the 
information provided in your initial notification within 30 days 
following the change.
    (iii) The agent identified above must maintain a copy of the 
compliance records specified in Sec.  59.510(b). Those records must be 
kept by the agent such that the agent will be able to provide the 
written report which must be submitted upon 60 days notice under Sec.  
59.511(d) and able to make those records available for inspection and 
review under Sec.  59.511(e).
    (iv) You must give any EPA inspector or auditor full, complete, and 
immediate access to your facilities and records to conduct inspections 
and audits of your manufacturing facilities.
    (v) You must agree that United States substantive and procedural 
law shall apply to any civil or criminal enforcement action against you 
under this subpart, and that the forum for any civil or criminal 
enforcement action under this subpart shall be governed by the CAA, 
including the EPA administrative forum where allowed under the CAA.
    (vi) Any person certifying any notification, report, or other 
communication from you to EPA must state in the certification that 
United States substantive and procedural law shall apply to any civil 
or criminal enforcement action against him or her under this subpart, 
and that the forum for any civil or criminal enforcement action under 
this section shall be governed by the CAA, including the EPA 
administrative forum where allowed under the CAA.
    (vii) All reports and other communications with EPA must be in 
English. To the extent that you provide any documents as part of any 
report or other communication with EPA, an English language translation 
of that document must be provided with the report or communication.


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

    (a) Except as provided in Sec.  59.509 and paragraphs (b) and (c) 
of this section, you must be in compliance with all provisions of this 
subpart by January 1, 2009.
    (b) The Administrator will consider issuance of a special 
compliance extension that extends the date of compliance until January 
1, 2011, to regulated entities that have never manufactured, imported, 
or distributed aerosol coatings for sale or distribution in California 
that are in compliance with California's Regulation for Reducing Ozone 
Formed From Aerosol Coating Product Emissions, Title 17, California 
Code of Regulations, sections 94520-94528. In order to be considered 
for an extension of the compliance date, you must submit a special 
compliance extension application to the EPA Administrator no later than 
90 days before the compliance date or within 90 days before the date 
that you first manufacture aerosol coatings, whichever is later. This 
application must contain the information in paragraphs (b)(1) through 
(b)(5) of this section. If a regulated entity remains unable to comply 
with the limits of this rule by January 1, 2011, the regulated entity 
may seek a variance in accordance with Sec.  59.509.
    (1) Company name;
    (2) A signed certification by a responsible company official that 
the regulated entity has not at any time manufactured, imported, or 
distributed for sale or distribution in California any product in any 
category listed in Table 1 of this subpart that complies with 
California's Regulation for Reducing Ozone Formed From Aerosol Coating 
Product Emissions, Title 17, California Code of Regulations, sections 
94520-94528;
    (3) A statement that the regulated entity will, to the extent 
possible within its reasonable control, take appropriate action to 
achieve compliance with this subpart by January 1, 2011;
    (4) A list of the product categories in Table 1 of this subpart 
that the regulated entity manufactures, imports, or distributes; and,
    (5) Name, title, address, telephone, e-mail address, and signature 
of the certifying company official.
    (c) Except as provided in paragraph (b) of this section, the 
compliance date for aerosol coatings that are registered under the 
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C 136-136y) 
(FIFRA) is January 1, 2010.


Sec.  59.503  What definitions apply to this subpart?

    The following terms are defined for the purposes of this subpart 
only.
    Administrator means the Administrator of the United States 
Environmental Protection Agency (EPA) or an authorized representative.
    Aerosol Coating Product means a pressurized coating product 
containing pigments or resins that is dispensed by means of a 
propellant and is packaged in a disposable can for hand-held 
application, or for use in specialized equipment for ground traffic/
marking applications. For the purpose of this regulation, applicable 
aerosol coatings categories are listed in Table 1 of this subpart.
    Art Fixative or Sealant means a clear coating, including art 
varnish, workable art fixative and ceramic coating, which is designed 
and labeled exclusively for application to paintings, pencil, chalk, or 
pastel drawings, ceramic art pieces or other closely related art uses, 
in order to provide a final protective coating or to fix preliminary 
stages of artwork while providing a workable surface for subsequent 
revisions.
    ASTM means the American Society for Testing and Materials.
    Autobody Primer means an automotive primer or primer surfacer 
coating designed and labeled exclusively to be applied to a vehicle 
body substrate for the purposes of corrosion resistance and building a 
repair area to a condition in which, after drying, it can be sanded to 
a smooth surface.
    Automotive Bumper and Trim Product means a product, including 
adhesion promoters and chip sealants, designed and labeled exclusively 
to repair and refinish automotive bumpers and plastic trim parts.
    Aviation Propeller Coating means a coating designed and labeled 
exclusively to provide abrasion resistance and corrosion protection for 
aircraft propellers.
    Aviation or Marine Primer means a coating designed and labeled 
exclusively to meet federal specification TT-P-1757.
    Clear Coating means a coating which is colorless, containing resins 
but no pigments except flatting agents, and is designed and labeled to 
form a transparent or translucent solid film.
    Coating Solids means the nonvolatile portion of an aerosol coating 
product, consisting of the film-forming ingredients, including pigments 
and resins.
    Commercial Application means the use of aerosol coating products in 
the production of goods, or the providing of services for profit, 
including touch-up and repair.
    Corrosion Resistant Brass, Bronze, or Copper Coating means a clear 
coating designed and labeled exclusively to prevent tarnish and 
corrosion of uncoated brass, bronze, or copper metal surfaces.
    Distributor means any person who purchases or is supplied aerosol 
coating product for the purposes of resale or distribution in commerce. 
Retailers who fall within this definition are distributors. Importers 
are not distributors.
    Enamel means a coating which cures by chemical cross-linking of its 
base resin and is not resoluble in its original solvent.

[[Page 15623]]

    Engine Paint means a coating designed and labeled exclusively to 
coat engines and their components.
    Exact Match Finish, Engine Paint means a coating which meets all of 
the following criteria:
    (1) The product is designed and labeled exclusively to exactly 
match the color of an original, factory-applied engine paint;
    (2) The product is labeled with the manufacturer's name for which 
they were formulated; and
    (3) The product is labeled with one of the following:
    (i) The original equipment manufacturer's (O.E.M.) color code 
number;
    (ii) The color name; or
    (iii) Other designation identifying the specific O.E.M. color to 
the purchaser.
    Exact Match Finish, Automotive means a topcoat which meets all of 
the following criteria:
    (1) The product is designed and labeled exclusively to exactly 
match the color of an original, factory-applied automotive coating 
during the touch-up of automobile finishes;
    (2) The product is labeled with the manufacturer's name for which 
they were formulated; and
    (3) The product is labeled with one of the following:
    (i) The original equipment manufacturer's (O.E.M.) color code 
number;
    (ii) The color name; or
    (iii) Other designation identifying the specific O.E.M. color to 
the purchaser. Notwithstanding the foregoing, automotive clear coatings 
designed and labeled exclusively for use over automotive exact match 
finishes to replicate the original factory-applied finish shall be 
considered to be automotive exact match finishes.
    Exact Match Finish, Industrial means a coating which meets all of 
the following criteria:
    (1) The product is designed and labeled exclusively to exactly 
match the color of an original, factory-applied industrial coating 
during the touch-up of manufactured products;
    (2) The product is labeled with the manufacturer's name for which 
they were formulated; and
    (3) The product is labeled with one of the following:
    (i) O.E.M. color code number;
    (ii) The color name; or
    (iii) Other designation identifying the specific O.E.M. color to 
the purchaser.
    Flat Paint Products means a coating which, when fully dry, 
registers specular gloss less than or equal to 15 on an 85[deg] gloss 
meter, or less than or equal to 5 on a 60[deg] gloss meter, or which is 
labeled as a flat coating.
    Flatting Agent means a compound added to a coating to reduce the 
gloss of the coating without adding color to the coating.
    Floral Spray means a coating designed and labeled exclusively for 
use on fresh flowers, dried flowers, or other items in a floral 
arrangement for the purposes of coloring, preserving or protecting 
their appearance.
    Formulation Data, unless otherwise specified, means the recipe used 
to formulate or manufacture a coating product in terms of the weight 
fraction (g compound/g product) of each individual VOC in the product.
    Fluorescent Coating means a coating labeled as such, which converts 
absorbed incident light energy into emitted light of a different hue.
    Glass Coating means a coating designed and labeled exclusively for 
use on glass or other transparent material to create a soft, 
translucent light effect, or to create a tinted or darkened color while 
retaining transparency.
    Ground Traffic/Marking Coating means a coating designed and labeled 
exclusively to be applied to dirt, gravel, grass, concrete, asphalt, 
warehouse floors, or parking lots. Such coatings must be in a container 
equipped with a valve and spray head designed to direct the spray 
toward the surface when the can is held in an inverted vertical 
position.
    High Temperature Coating means a coating, excluding engine paint, 
which is designed and labeled exclusively for use on substrates which 
will, in normal use, be subjected to temperatures in excess of 400 
[deg]F.
    Hobby/Model/Craft Coating means a coating which is designed and 
labeled exclusively for hobby applications and is sold in aerosol 
containers of 6 ounces by weight or less.
    Importer means any person who brings an aerosol coating product 
that was manufactured, filled, or packaged at a location outside of the 
United States into the United States for sale or distribution in the 
United States.
    Ingredient means a component of an aerosol coating product.
    Impurity means an individual chemical compound present in a raw 
material which is incorporated in the final aerosol coatings 
formulation, if the compound is present in amounts below the following 
in the raw material:
    (1) For individual compounds that are carcinogens each compound 
must be present in an amount less than 0.1 percent by weight;
    (2) For all other compounds present in a raw material, a compound 
must be present in an amount less than 1 percent by weight.
    Lacquer means a thermoplastic film-forming material dissolved in 
organic solvent, which dries primarily by solvent evaporation, and is 
resoluble in its original solvent.
    Manufacturer means any person who manufactures or processes an 
aerosol coating product for sale or distribution within the United 
States. Manufacturers include:
    (1) Processors who blend and mix aerosol coatings;
    (2) Contract fillers who develop formulas and package these 
formulations under a distributor's name; and
    (3) Contract fillers who manufacture products using formulations 
provided by a distributor.
    Marine Spar Varnish means a coating designed and labeled 
exclusively to provide a protective sealant for marine wood products.
    Metallic Coating means a topcoat which contains at least 0.5 
percent by weight elemental metallic pigment in the formulation, 
including propellant, and is labeled as ``metallic,'' or with the name 
of a specific metallic finish such as ``gold,'' ``silver,'' or 
``bronze.''
    Multi-Component Kit means an aerosol spray paint system which 
requires the application of more than one component (e.g. foundation 
coat and topcoat), where both components are sold together in one 
package.
    Nonflat Paint Product means a coating which, when fully dry, 
registers a specular gloss greater than 15 on an 85[deg] gloss meter or 
greater than five on a 60[deg] gloss meter.
    Ozone means a colorless gas with a pungent odor, having the 
molecular form O3.
    Person means an individual, corporation, partnership, association, 
state, any agency, department, or instrumentality of the United States, 
and any officer, agent, or employee thereof.
    Photograph Coating means a coating designed and labeled exclusively 
to be applied to finished photographs to allow corrective retouching, 
protection of the image, changes in gloss level, or to cover 
fingerprints.
    Pleasure Craft means privately owned vessels used for noncommercial 
purposes.
    Pleasure Craft Finish Primer/Surfacer/Undercoater means a coating 
designed and labeled exclusively to be applied prior to the application 
of a pleasure craft topcoat for the purpose of corrosion resistance and 
adhesion of the topcoat, and which promotes a uniform surface by 
filling in surface imperfections.

[[Page 15624]]

    Pleasure Craft Topcoat means a coating designed and labeled 
exclusively to be applied to a pleasure craft as a final coat above the 
waterline and below the waterline when stored out of water. This 
category does not include clear coatings.
    Polyolefin Adhesion Promoter means a coating designed and labeled 
exclusively to be applied to a polyolefin or polyolefin copolymer 
surface of automotive body parts, bumpers, or trim parts to provide a 
bond between the surface and subsequent coats.
    Primer means a coating labeled as such, which is designed to be 
applied to a surface to provide a bond between that surface and 
subsequent coats.
    Product-Weighted Reactivity (PWR) Limit means the maximum allowed 
``product-weighted reactivity,'' as calculated in Sec.  59.505, of an 
aerosol coating product that is subject to the limits specified in 
Sec.  59.504 for a specific category, expressed as grams of ozone per 
gram (g O3/g of product).
    Propellant means a liquefied or compressed gas that is used in 
whole or in part, such as a co-solvent, to expel a liquid or any other 
material from the same self-pressurized container or from a separate 
container.
    Reactivity Factor (RF) is a measure of the change in mass of ozone 
formed by adding a gram of a VOC to the ambient atmosphere, expressed 
to hundredths of a gram (g O3/g VOC). The RF values for 
individual compounds and hydrocarbon solvent mixtures are specified in 
Tables 2A, 2B, and 2C of this subpart.
    Retailer means any person who sells, supplies, or offers aerosol 
coating products for sale directly to consumers. Retailers who fall 
within the definition of ``distributor'' in this section are 
distributors.
    Retail Outlet means any establishment where consumer products are 
sold, supplied, or offered for sale, directly to consumers.
    Shellac Sealer means a clear or pigmented coating formulated solely 
with the resinous secretion of the lac beetle (Laccifer lacca), thinned 
with alcohol, and formulated to dry by evaporation without a chemical 
reaction.
    Slip-Resistant Coating means a coating designed and labeled 
exclusively as such, which is formulated with synthetic grit and used 
as a safety coating.
    Small quantity manufacturer means a manufacturer whose total VOC by 
mass included in all aerosol coatings manufactured at all facilities in 
a given calendar year, in the aggregate, is less than 7,500 kilograms.
    Spatter Coating/Multicolor Coating means a coating labeled 
exclusively as such wherein spots, globules, or spatters of contrasting 
colors appear on or within the surface of a contrasting or similar 
background.
    Stain means a coating which is designed and labeled to change the 
color of a surface but not conceal the surface.
    United States means the United States of America, including the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, Guam, American Samoa, and the Commonwealth of the Northern 
Mariana Islands.
    Vinyl/Fabric/Leather/Polycarbonate Coating means a coating designed 
and labeled exclusively to coat vinyl, fabric, leather, or 
polycarbonate substrates or to coat flexible substrates including 
rubber or thermoplastic substrates.
    Volatile Organic Compound (VOC) means any organic compound as 
defined in Sec.  51.100(s) of this chapter. As provided in 40 CFR 
51.100(s)(7), exemptions from the definition of VOC in 40 CFR 51.100(s) 
for certain compounds that are used in aerosol coatings are 
inapplicable for purposes of this subpart.
    Webbing/Veiling Coating means a coating designed and labeled 
exclusively to provide a stranded to spider webbed appearance when 
applied.
    Weight Fraction means the weight of an ingredient divided by the 
total net weight of the product, expressed to thousandths of a gram of 
ingredient per gram of product (excluding container and packaging).
    Weld-Through Primer means a coating designed and labeled 
exclusively to provide a bridging or conducting effect for corrosion 
protection following welding.
    Wood Stain means a coating which is formulated to change the color 
of a wood surface but not conceal the surface.
    Wood Touch-Up/Repair/Restoration means a coating designed and 
labeled exclusively to provide an exact color or sheen match on 
finished wood products.
    Working Day means any day from Monday through Friday, inclusive, 
except for days that are Federal holidays.


Sec.  59.504  What limits must I meet?

    (a) Except as provided in Sec.  59.509, each aerosol coating 
product you manufacture, distribute or import for sale or use in the 
United States must meet the PWR limits presented in Table 1 of this 
subpart. These limits apply to the final aerosol coating, including the 
propellant. The PWR limits specified in Table 1 of this subpart are 
also applicable to any aerosol coating product that is assembled by 
adding bulk coating to aerosol containers of propellant.
    (b) If a product can be included in both a general coating category 
and a specialty coating category and the product meets all of the 
criteria of the specialty coating category, then the specialty coating 
limit will apply instead of the general coating limit, unless the 
product is a high temperature coating. High-temperature coatings that 
contain at least 0.5 percent by weight of an elemental metallic pigment 
in the formulation, including propellant, are subject to the limit 
specified for metallic coatings.
    (c) Except as provided in paragraph (b) of this section, if 
anywhere on the container of any aerosol coating product subject to the 
limits in Table 1 of this subpart, or on any sticker or label affixed 
to such product, or in any sales or advertising literature, the 
manufacturer, importer or distributor of the product makes any 
representation that the product may be used as, or is suitable for use 
as a product for which a lower limit is specified, then the lowest 
applicable limit will apply.


Sec.  59.505  How do I demonstrate compliance with the reactivity 
limits?

    (a) To demonstrate compliance with the PWR limits presented in 
Table 1 of this subpart, you must calculate the PWR for each coating as 
described in paragraphs (a)(1) through (2) of this section:
    (1) Calculate the weighted reactivity factor (WRF) for each 
propellant and coating component using Equation 1:

[GRAPHIC] [TIFF OMITTED] TR24MR08.013



[[Page 15625]]


Where:

WRFi = weighted reactivity factor of component i, g 
O3/g component i.
RFi = reactivity factor of component i, g O3/g 
component i, from Table 2A, 2B, or 2C.
WFi = weight fraction of component i in the product,

    (2) Calculate the PWR of each product using Equation 2:

    [GRAPHIC] [TIFF OMITTED] TR24MR08.014
    

Where:

PWRp = PWR for product P, g O3/g product.
WRF1 = weighted reactivity factor for component 1, g 
O3/g component.
WRF2 = weighted reactivity factor for component 2, g 
O3/g component.
WRFn = weighted reactivity factor for component n, g 
O3/g component.

    (b) In calculating the PWR, you must follow the guidelines in 
paragraphs (b)(1) through (b)(4) of this section.
    (1) Any ingredient which does not contain carbon is assigned a RF 
value of 0.
    (2) Any aerosol coating solid, including but not limited to resins, 
pigments, fillers, plasticizers, and extenders is assigned a RF of 0. 
These items do not have to be identified individually in the 
calculation.
    (3) All individual compounds present in the coating in an amount 
equal to or exceeding 0.1 percent will be considered ingredients 
regardless of whether or not the ingredient is reported to the 
manufacturer.
    (4) All individual compounds present in the coating in an amount 
less than 0.1 percent will be assigned an RF value of 0.
    (5) Any component that is a VOC but is not listed in Table 2A, 2B, 
or 2C of this subpart is assigned an RF value as detailed in paragraph 
(e) of this section.
    (c) You may use either formulation data (including information for 
both the liquid and propellant phases), California Air Resources Board 
Method 310--Determination of Volatile Organic Compounds (VOC) in 
Consumer Products and Reactive Organic Compounds in Aerosol Coating 
Products (May 5, 2005) (incorporated by reference in 59.515), or EPA's 
Method 311--Analysis of Hazardous Air Pollutant Compounds in Paints and 
Coatings by Direct Injection into a Gas Chromatograph (40 CFR part 63, 
appendix A), to calculate the PWR. However, if there are 
inconsistencies between the formulation data and the California Air 
Resources Board Method 310 (May 5, 2005) (incorporated by reference in 
59.515), or EPA Method 311--Analysis of Hazardous Air Pollutant 
Compounds in Paints and Coatings by Direct Injection into a Gas 
Chromatograph (40 CFR part 63, appendix A) results, the California Air 
Resources Board Method 310 (May 5, 2005) (incorporated by reference in 
59.515), or EPA Method 311--Analysis of Hazardous Air Pollutant 
Compounds in Paints and Coatings by Direct Injection into a Gas 
Chromatograph (40 CFR part 63, appendix A) results will govern.
    (d) If you manufacture a coating containing either an aromatic or 
aliphatic hydrocarbon solvent mixture, you must use the appropriate RF 
for that mixture provided in Table 2B or 2C of this subpart when 
calculating the PWR using formulation data. However, when calculating 
the PWR for a coating containing these mixtures using data from 
California Air Resources Board Method 310 (May 5, 2005) (incorporated 
by reference in 59.515), or EPA Method 311--Analysis of Hazardous Air 
Pollutant Compounds in Paints and Coatings by Direct Injection into a 
Gas Chromatograph (40 CFR part 63, appendix A), you must identify the 
individual compounds that are present in the solvent mixture and use 
the weight fraction of those individual compounds and their RF from 
Table 2A of this subpart in the calculation.
    (e) If a VOC is used in a product but not listed in Table 2A of 
this subpart, the Reactivity Factor (RF) is assigned according to 
paragraphs (e)(1), (e)(2), (e)(3) or (e)(4) of this section.
    (1) If the VOC is not listed in Table 2A of this subpart, but has 
an RF greater than 0.3, the regulated entity may petition EPA to add 
the VOC to Table 2A, as described in Sec.  59.511(j). Based on these 
petitions, EPA will periodically update the appropriate table. Once an 
RF for a VOC is listed on the appropriate table, that RF will be used 
for that VOC for the purposes of this rule. As provided in Sec.  
59.511(j), any petitions submitted to EPA on or before June 1, 2008, 
will be considered, and if appropriate, incorporated into Table 2A on 
or before January 1, 2009.
    (2) If the VOC is used in a product but not listed in Table 2A of 
this regulation, and has an RF less than or equal to 0.3, and will be 
used at a level greater than or equal to 7.3 weight percent (g of 
compound/g product) in any of the regulated entity's formulations, the 
regulated entity may petition EPA as described in Sec.  59.511(j). 
Based on these petitions, EPA will periodically update the appropriate 
table. Once an RF for a VOC is listed on the appropriate table, that RF 
will be used for that VOC for the purposes of this rule. As provided in 
Sec.  59.511(j), any petition submitted to EPA on or before June 1, 
2008 will be considered, and if appropriate, incorporated into Table 2A 
on or before January 1, 2009.
    (3) If a compound has an RF less than or equal to 0.3, and will not 
be used at a level greater than or equal to 7.3 weight percent (g of 
compound/g product) in any of the regulated entity's formulations, the 
RF to be used in all calculations by that entity for this subpart is 0.
    (4) Except as provided in paragraph (e)(1), (e)(2) and (e)(3) of 
this section, if a VOC is not listed in Table 2A of this subpart, it is 
assigned a default RF factor of 22.04 g O3/g VOC. As described in Sec.  
59.511(j), regulated entities may petition the Administrator to add a 
compound or mixture to Table 2A, 2B, or 2C of this subpart.
    (f) In calculating the PWR value for a coating containing an 
aromatic hydrocarbon solvent with a boiling range different from the 
ranges specified in Table 2C of this subpart, you must assign an RF as 
described in paragraphs (f)(1) and (f)(2) of this section:
    (1) If the solvent boiling point is lower than or equal to 420 
degrees F, then you must use the RF in Table 2C of this subpart 
specified for bin 23;
    (2) If the solvent boiling point is higher than 420 degrees F, then 
you must use the RF specified in Table 2C of this subpart for bin 24.
    (g) For purposes of compliance with the PWR limits, all compounds 
listed in Tables 2A, 2B, or 2C that are used in the aerosol coating 
products must be included in the calculation. This includes compounds 
that may otherwise be exempted from the definition of VOC in Sec.  
59.100(s).


Sec.  59.506  How do I demonstrate compliance if I manufacture multi-
component kits?

    (a) If you manufacture multi-component kits as defined in Sec.  
59.503, then the Kit PWR must not exceed the Total Reactivity Limit.
    (b) You must calculate the Kit PWR and the Total Reactivity Limit 
as follows:
    (1) KIT PWR = (PWR(1) x W1) + 
(PWR(2) x W2) +. ...+ (PWR(n) x 
Wn)

[[Page 15626]]

    (2) Total Reactivity Limit = (RL1 x W1) + 
(RL2 x W2) +...+ (RLn x 
Wn).
    (3) Kit PWR <= Total Reactivity Limit.

Where:

W = the weight of the product contents (excluding container).
RL = the PWR Limit specified in Table 1 of this subpart.
Subscript 1 denotes the first component product in the kit.
Subscript 2 denotes the second component product in the kit.
Subscript n denotes any additional component product.


Sec.  59.507  What are the labeling requirements for aerosol coatings?

    (a) The labels of all aerosol products manufactured on and after 
the applicable compliance date listed in Sec.  59.502 must contain the 
information listed in paragraphs (a)(1) through (4) of this section.
    (1) The aerosol coating category code for the coating, based on the 
category definitions in Sec.  59.503. This code can be the default 
category code shown in Table 1 of this subpart or a company-specific 
code, if that code is explained as required by Sec.  59.511(a);
    (2) The applicable PWR limit for the product specified in Table 1 
of this subpart;
    (3) The day, month, and year on which the product was manufactured, 
or a code indicating such date;
    (4) The name and a contact address for the manufacturer, 
distributor, or importer that is the regulated entity under this 
subpart.
    (b) The label on the product must be displayed in such a manner 
that it is readily observable without removing or disassembling any 
portion of the product container or packaging. The information may be 
displayed on the bottom of the container as long as it is clearly 
legible without removing any product packaging.


Sec.  59.508  What test methods must I use?

    (a) Except as provided in Sec.  59.505(c), you must use the 
procedures in California Air Resource Board Method 310--Determination 
of Volatile Organic Compounds (VOC) in Consumer Products and Reactive 
Organic Compounds in Aerosol Coating Products (May 5, 2005) 
(incorporated by reference in Sec.  59.515) or EPA's Method 311--
Analysis of Hazardous Air Pollutant Compounds in Paints and Coatings by 
Direct Injection into a Gas Chromatograph (40 CFR part 63, appendix A) 
to determine the speciated ingredients and weight percentage of each 
ingredient of each aerosol coating product. EPA Method 311--Analysis of 
Hazardous Air Pollutant Compounds in Paints and Coatings by Direct 
Injection into a Gas Chromatograph (40 CFR part 63, appendix A) must be 
used in conjunction with ASTM Method D3063-94 or D3074-94 for analysis 
of the propellant portion of the coating. Those choosing to use 
California Air Resources Board Method 310 (May 5, 2005) (incorporated 
by reference in Sec.  59.515) must follow the procedures specified in 
section 5.0 of that method with the exception of section 5.3.1, which 
requires the analysis of the VOC content of the coating. For the 
purposes of this subpart, you are not required to determine the VOC 
content of the aerosol coating. For both California Air Resources Board 
Method 310 (May 5, 2005) (incorporated by reference in Sec.  59.515) 
and EPA Method 311--Analysis of Hazardous Air Pollutant Compounds in 
Paints and Coatings by Direct Injection into a Gas Chromatograph (40 
CFR part 63, appendix A), you must have a listing of the VOC 
ingredients in the coating before conducting the analysis.
    (b) To determine the metal content of metallic aerosol coating 
products, you must use South Coast Air Quality Management District 
(SCAQMD) Method 318-95, Determination of Weight Percent Elemental Metal 
in Coatings by X-ray Diffraction, July, 1996, in 40 CFR part 59 
(incorporated by reference in Sec.  59.515).
    To determine the specular gloss of flat and nonflat coatings you 
must use ASTM Method D523-89 (Reapproved 1999), Standard Test Method 
for Specular Gloss, in 40 CFR part 59 (incorporated by reference in 
Sec.  59.515).


Sec.  59.509  Can I get a variance?

    (a) Any regulated entity that cannot comply with the requirements 
of this subpart because of circumstances beyond its reasonable control 
may apply in writing to the Administrator for a temporary variance. The 
variance application must include the information specified in 
paragraphs (a)(1) through (a)(5) of this section.
    (1) The specific products for which the variance is sought.
    (2) The specific provisions of the subpart for which the variance 
is sought.
    (3) The specific grounds upon which the variance is sought.
    (4) The proposed date(s) by which the regulated entity will achieve 
compliance with the provisions of this subpart. This date must be no 
later than 3 years after the issuance of a variance.
    (5) A compliance plan detailing the method(s) by which the 
regulated entity will achieve compliance with the provisions of this 
subpart.
    (b) Within 30 days of receipt of the original application and 
within 30 days of receipt of any supplementary information that is 
submitted, the Administrator will send a regulated entity written 
notification of whether the application contains sufficient information 
to make a determination. If an application is incomplete, the 
Administrator will specify the information needed to complete the 
application, and provide the opportunity for the regulated entity to 
submit written supplementary information or arguments to the 
Administrator to enable further action on the application. The 
regulated entity must submit this information to the Administrator 
within 30 days of being notified that its application is incomplete.
    (c) Within 60 days of receipt of sufficient information to evaluate 
the application, the Administrator will send a regulated entity written 
notification of approval or disapproval of a variance application. This 
60-day period will begin after the regulated entity has been sent 
written notification that its application is complete.
    (d) The Administrator will issue a variance if the criteria 
specified in paragraphs (d)(1) and (d)(2) of this section are met to 
the satisfaction of the Administrator.
    (1) Complying with the provisions of this subpart would not be 
technologically or economically feasible.
    (2) The compliance plan proposed by the applicant can reasonably be 
implemented and will achieve compliance as expeditiously as possible.
    (e) A variance must specify dates by which the regulated entity 
will achieve increments of progress towards compliance, and will 
specify a final compliance date by which the regulated entity will 
achieve compliance with this subpart.
    (f) A variance will cease to be effective upon failure of the party 
to whom the variance was issued to comply with any term or condition of 
the variance.


Sec.  59.510  What records am I required to maintain?

    (a) If you are the regulated entity identified in Sec.  59.501(a) 
as being responsible for recordkeeping for a product, and no other 
person has certified that they will fulfill your recordkeeping 
responsibilities as provided in Sec.  59.511(g), you must comply with 
paragraphs (a)(1) through (a)(5) of this section:

[[Page 15627]]

    (1) All records must be maintained on and after the applicable 
compliance date listed in Sec.  59.502.
    (2) You are required to maintain records of the following at the 
location specified in Sec.  59.511(b)(4) for each product subject to 
the PWR limits in Table 1 of this subpart: The product category, all 
product calculations, the PWR, and the weight fraction of all 
ingredients including: Water, total solids, each VOC, and any other 
compounds assigned a RF of zero as specified in Sec.  59.505. Solids do 
not have to be listed individually in these records. If an individual 
VOC is present in an amount less than 0.1 percent by weight, then it 
does not need to be reported as an ingredient. An impurity that meets 
the definition provided in Sec.  59.503 does not have to be reported as 
an ingredient. For each batch of each product subject to the PWR 
limits, you must maintain records of the date the batch was 
manufactured, the volume of the batch, the recipe used for formulating 
the batch, and the number of cans manufactured in each batch and each 
formulation.
    (3) You must maintain a copy of each notification and report that 
you submit to comply with this subpart, the documentation supporting 
each notification, and a copy of the label for each product.
    (4) If you claim the exemption under Sec.  59.501(e), you must 
maintain a copy of the initial report and each annual report that you 
submit to EPA, and the documentation supporting such report.
    (5) You must maintain all records required by this subpart for a 
minimum of 5 years. The records must be in a form suitable and readily 
available for inspection and review.
    (b) By providing the written certification to the Administrator in 
accordance with Sec.  59.511(g), the certifying manufacturer accepts 
responsibility for compliance with the recordkeeping requirements of 
this section with respect to any products covered by the written 
certification, as detailed in the written certification. Failure to 
maintain the required records may result in enforcement action by EPA 
against the certifying manufacturer in accordance with the enforcement 
provisions applicable to violation of these provisions by regulated 
entities. If the certifying manufacturer revokes its certification, as 
allowed by Sec.  59.511(h), the regulated entity must assume 
responsibility for maintaining all records required by this section.


Sec.  59.511  What notifications and reports must I submit?

    (a) If you are the regulated entity identified in Sec.  59.501(a) 
and (b) as being responsible for notifications and reporting for a 
product, and no other person has certified that they will fulfill your 
notification and reporting responsibilities as provided in paragraph 
(g) of this section, you are responsible for all notifications and 
reports included in this section. If no distributor is named on the 
label, the manufacturer or importer of the aerosol coating is 
responsible for all requirements of this section, even if not listed on 
the label.
    (b) You must submit an initial notification no later than 90 days 
before the compliance date, or at least 90 days before the date that 
you first manufacture, distribute, or import aerosol coatings, 
whichever is later. The initial notification must include the 
information in paragraphs (b)(1) through (b)(11) of this section.
    (1) Company name;
    (2) Name, title, address, telephone number, e-mail address and 
signature of certifying company official;
    (3) A list of the product categories from Table 1 of this subpart 
that you manufacture, import, or distribute;
    (4) The street address of each of your facilities in the United 
States that is manufacturing, packaging, or importing aerosol coatings 
that are subject to the provisions of this subpart, and the street 
address where compliance records are maintained for each site, if 
different;
    (5) A description of date coding systems, clearly explaining how 
the date of manufacture is marked on each sales unit;
    (6) An explanation of the product category codes that will be used 
on all required labels, or a statement that the default category codes 
in Table 1 of this subpart will be used;
    (7) For each product category, an explanation of how the 
manufacturer, distributor, or importer will define a batch for the 
purpose of the recordkeeping requirements;
    (8) A list of any compounds or mixtures that will be used in 
aerosol coatings that are not included in Table 2A, 2B, or 2C of this 
subpart;
    (9) For each product category, VOC formulation data for each 
formulation that you anticipate manufacturing, importing, or 
distributing for calendar year 2009 or for the first year that includes 
your compliance date, if different than 2009. If a regulated entity can 
certify that the reporting is being completed by another regulated 
entity for any product, no second report is required. The formulation 
data must include the weight fraction (g compound/g product) for each 
VOC ingredient used in the product in an amount greater than or equal 
to 0.1 percent. The formulation data must also include the information 
in either paragraph (b)(9)(i) or (b)(9)(ii) of this section for each 
VOC ingredient reported.
    (i) For compounds listed in Table 2A of this regulation, the 
chemical name, CAS number, and the applicable reactivity factor; or
    (ii) For hydrocarbon solvent mixtures listed in either 2B or 2C or 
this subpart, the trade name, solvent mixture manufacturer, bin number, 
and the applicable reactivity factor.
    (10) For each product formulation, a list of the unique product 
codes by Universal Product Code (UPC), or other unique identifier; and
    (11) A statement certifying that all products manufactured by the 
company that are subject to the limits in Table 1 of this subpart will 
be in compliance with those limits.
    (c) If you change any information included in the initial 
notification required by paragraph (b) of this section, including the 
list of aerosol categories, contact information, records location, the 
category or date coding system, or the list required under paragraph 
(b)(8) of this section, you must notify the Administrator of such 
changes within 30 days following the change. You are also required to 
notify the Administrator within 30 days of the date that you begin 
using an organic compound in any of your aerosol coating products if 
that compound has an RF less than or equal to 0.3, and is used at a 
level greater than or equal to 7.3 weight percent (g of compound/g 
product) in any of your formulations. You are not required to notify 
the Administrator within 30 days of changes to the information provided 
as required by paragraph (b)(9) of this section. Changes in formulation 
are to be reported in the triennial reporting required by paragraph (i) 
of this section.
    (d) Upon 60 days written notice, you must submit to the 
Administrator a written report with all the information in paragraphs 
(d)(1) through (d)(5) of this section for each product you manufacture, 
distribute, or import under your name or another company's name.
    (1) The brand name of the product;
    (2) A copy of the product label;
    (3) The owner of the trademark or brand names;
    (4) The product category as defined in Sec.  59.503;
    (5) For each product, formulation data for each formulation that 
manufactured, imported, or distributed in the

[[Page 15628]]

requested time period. The formulation data must include the weight 
fraction (g compound/g product) for each VOC ingredient used in the 
product in an amount greater than or equal to 0.1 percent, plus the 
weight fraction of all other ingredients including: Water, total 
solids, and any other compounds assigned an RF of zero. The formulation 
data must also include the information in either paragraph (d)(5)(i) or 
(ii) of this section.
    (i) For compounds listed in Table 2A of this subpart, the chemical 
name, CAS number, and the applicable reactivity factor.
    (ii) For hydrocarbon solvent mixtures listed in either 2B or 2C or 
this table, the trade name, solvent mixture manufacturer, bin number, 
and the applicable reactivity factor.
    (e) If you claim the exemption under Sec.  59.501(e), you must 
submit an initial notification no later than 90 days before the 
compliance date or at least 90 days before the date that you first 
manufacture aerosol coatings, whichever is later. The initial 
notification must include the information in paragraphs (e)(1) through 
(e)(6) of this section.
    (1) Company name;
    (2) Name, title, number, address, telephone number, e-mail address, 
and signature of certifying company official;
    (3) A list of the product categories from Table 1 of this subpart 
that you manufacture;
    (4) The total amount of product you manufacture in each category 
and the total VOC mass content of such products for the preceding 
calendar year;
    (5) The street address of each of your facilities in the United 
States that is manufacturing aerosol coatings that are subject to the 
provisions of this subpart and the street address where compliance 
records are maintained for each site, if different; and
    (6) A list of the States in which you sell or otherwise distribute 
the products you manufacture.
    (f) If you claim the exemption under Sec.  59.501(e), you must file 
an annual report for each year in which you claim an exemption from the 
limits of this subpart. Such annual report must be filed by March 1 of 
the year following the year in which you manufactured the products. The 
annual report shall include the same information required in paragraphs 
(e)(1) through (e)(6) of this section.
    (g) If you are a manufacturer, importer, or distributor who chooses 
to certify that you will maintain records for a regulated entity for 
all or part of the purposes of Sec.  59.510 and this section, you must 
submit a report to the appropriate Regional Office listed in Sec.  
59.512. This report must include the information contained in (g)(1) 
though (g)(4) of this section.
    (1) Name and address of certifying entity;
    (2) Name and address(es) of the regulated entity for which you are 
accepting responsibility;
    (3) Description of specific requirements in Sec.  59.510 and this 
section for which you are assuming responsibility and explanation of 
how all required information under this subpart will be maintained and 
submitted, as required, by you or the regulated entity; and
    (4) Signature of responsible official for the company.
    (h) An entity that has provided certification under paragraph (g) 
of this section (the ``certifying entity'') may revoke the written 
certification by sending a written statement to the appropriate 
Regional Office listed in Sec.  59.512 and to the regulated entity for 
which the certifying had accepted responsibility, giving a minimum of 
90 days notice that the certifying entity is rescinding acceptance of 
responsibility for compliance with the requirements outlined in the 
certification letter. Upon expiration of the notice period, the 
regulated entity must assume responsibility for all applicable 
requirements.
    (i) As a regulated entity in accordance with paragraph (a) of this 
section, you must provide the information requested in paragraphs 
(i)(1) through (i)(4) of this section every three years beginning in 
2011 for reporting year 2010. The report shall be submitted by March 31 
of the year following the reporting year to the appropriate Regional 
Office listed in Sec.  59.512. The first report is due March 31, 2011, 
for calendar year 2010.
    (1) All identification information included in paragraphs (b)(1), 
(b)(2), and (b)(4) of this section;
    (2) For each product category, VOC formulation data for each 
formulation that was manufactured, imported, or distributed in the 
reporting year. The formulation data must include the weight fraction 
(g compound/g product) for each VOC ingredient used in the product in 
an amount equal to or greater than 0.1 percent. If a regulated entity 
can certify that the reporting is being completed by another regulated 
entity for any product, no second report is required. The formulation 
data must include the information in either paragraph (i)(2)(i) or 
(i)(2)(ii) of this section for each VOC present in an amount greater 
than or equal to 0.1 percent.
    (i) For compounds listed in Table 2A of this subpart, the chemical 
name, CAS number, and the applicable reactivity factor; or
    (ii) For hydrocarbon solvent mixtures listed in either 2B or 2C of 
this subpart, the trade name, solvent mixture manufacturer, bin number, 
and the applicable reactivity factor.
    (3) For each formulation, the total mass of each individual VOC 
species present in an amount greater than or equal to 0.1 percent of 
the formulation, that was manufactured, imported, or distributed in the 
reporting year; and
    (4) For each formulation, a list of the individual product codes by 
UPC or other unique identifier.
    (j) If a regulated entity identifies a VOC that is needed for an 
aerosol formulation that is not listed in Tables 2A, 2B, or 2C of this 
subpart, it is assigned a default RF factor of 22.04 g O3/g VOC. 
Regulated entities may petition the Administrator to add a compound to 
Table 2A, 2B, or 2C of this subpart. Petitions must include the 
chemical name, CAS number, a statement certifying the intent to use the 
compound in an aerosol coatings product, and adequate information for 
the Administrator to evaluate the reactivity of the compound and assign 
a RF value consistent with the values for the other compounds listed in 
Table 2A of this subpart. Any requests submitted to EPA on or before 
June 1, 2008 will be considered and, if appropriate, incorporated into 
Table 2A, 2B, or 2C of this subpart on or before January 1, 2009.


Sec.  59.512  Addresses of EPA regional offices.

    All requests (including variance requests), reports, submittals, 
and other communications to the Administrator pursuant to this 
regulation shall be submitted to the Regional Office of the EPA which 
serves the State or territory for the address that is listed on the 
aerosol coating product in question. These areas are indicated in the 
following list of EPA Regional Offices.

EPA Region I (Connecticut, Maine, Massachusetts, New Hampshire, Rhode 
Island, Vermont), Director, Office of Environmental Stewardship, 
Mailcode: SAA, JFK Building, Boston, MA 02203.
EPA Region II (New Jersey, New York, Puerto Rico, Virgin Islands), 
Director, Division of Enforcement and Compliance Assistance, 290 
Broadway, New York, NY 10007-1866.
EPA Region III (Delaware, District of Columbia, Maryland, Pennsylvania, 
Virginia, West Virginia), Air

[[Page 15629]]

Protection Division, 1650 Arch Street, Philadelphia, PA 19103.
EPA Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi, North 
Carolina, South Carolina, Tennessee), Director, Air, Pesticides and 
Toxics, Management Division, 345 Courtland Street, NE., Atlanta, GA 
30365.
EPA Region V (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin), 
Director, Air and Radiation Division, 77 West Jackson Blvd., Chicago, 
IL 60604-3507.
EPA Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas), 
Director, Air, Pesticides and Toxics Division, 1445 Ross Avenue, 
Dallas, TX 75202-2733.
EPA Region VII (Iowa, Kansas, Missouri, Nebraska), Director, Air and 
Toxics Division, 726 Minnesota Avenue, Kansas City, KS 66101.
EPA Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah, 
Wyoming), Director, Air and Toxics Division, 999 18th Street, 1 Denver 
Place, Suite 500, Denver, Colorado 80202-2405.
EPA Region IX (American Samoa, Arizona, California, Guam, Hawaii, 
Nevada), Director, Air Division, 75 Hawthorne Street, San Francisco, CA 
94105.
EPA Region X (Alaska, Oregon, Idaho, Washington), Director, Air and 
Toxics Division, 1200 Sixth Avenue, Seattle, WA 98101.


Sec.  59.513  State authority.

    The provisions in this regulation will not be construed in any 
manner to preclude any State or political subdivision thereof from:
    (a) Adopting and enforcing any emission standard or limitation 
applicable to a manufacturer, distributor or importer of aerosol 
coatings or components in addition to the requirements of this subpart.
    (b) Requiring the manufacturer, distributor or importer of aerosol 
coatings or components to obtain permits, licenses, or approvals prior 
to initiating construction, modification, or operation of a facility 
for manufacturing an aerosol coating or component.


Sec.  59.514  Circumvention.

    Each manufacturer, distributor, and importer of an aerosol coating 
or component subject to the provisions of this subpart must not alter, 
destroy, or falsify any record or report, to conceal what would 
otherwise be noncompliance with this subpart. Such concealment 
includes, but is not limited to, refusing to provide the Administrator 
access to all required records and date-coding information, misstating 
the PWR content of a coating or component batch, or altering the 
results of any required tests to determine the PWR.


Sec.  59.515  Incorporations by reference.

    (a) The following material is incorporated by reference (IBR) in 
the paragraphs noted in Sec.  59.508. These incorporations by reference 
were approved by the Director of the Federal Register in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are 
incorporated as they exist on the date of approval, and notice of any 
changes in these materials will be published in the Federal Register.
    (1) California Air Resources Board Method 3-0--Determination of 
Volatile Organic Compounds (VOC) in Consumer Products and Reactive 
Organic Compounds in Aerosol Coating Products (May 5, 2005), IBR 
approved for Sec.  59.508.
    (2) South Coast Air Quality Management District (SCAQMD) Test 
Method 318-95, Determination of Weight Percent Elemental Metal in 
Coatings by X-ray Diffraction, (July, 1996), IBR approved for Sec.  
59.508.
    (3) ASTM Method D523-89 (Reapproved 1999), Standard Test Method for 
Specular Gloss, IBR approved for Sec.  59.508.
    (b) You may obtain and inspect the materials at the Air and 
Radiation Docket and Information Center, U.S. EPA, 401 M Street, SW., 
Washington, DC; the EPA Library, 109 T.W. Alexander Drive, U.S. EPA, 
Research Triangle Park, North Carolina; you may inspect the materials 
at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to http://www.archives.gov/federal_register/code_of_
federal_regulations/ibr_locations.html.


Sec.  59.516  Availability of information and confidentiality.

    (a) Availability of information. The availability to the public of 
information provided to or otherwise obtained by the Administrator 
under this part shall be governed by part 2 of this chapter.
    (b) Confidentiality. All confidential business information entitled 
to protection under section 114(c) of the Clean Air Act (CAA) that must 
be submitted or maintained by each regulated entity pursuant to this 
subpart shall be treated in accordance with 40 CFR part 2, subpart B.
    (c) Reports and Applications. The content of all reports and 
applications required to be submitted to the Agency under Sec.  59.511, 
Sec.  59.509, or Sec.  59.502 are not entitled to protection under 
Section 114(c) of the CAA.

 Table 1 to Subpart E of Part 59.--Product-Weighted Reactivity Limits by
                            Coating Category
                            [g O3/g product]
------------------------------------------------------------------------
                                                            Reactivity
         Coating category            Category code \a\         limit
------------------------------------------------------------------------
Clear Coatings...................  CCP                              1.50
Flat Coatings....................  FCP                              1.20
Fluorescent Coatings.............  FLP                              1.75
Metallic Coatings................  MCP                              1.90
Non-Flat Coatings................  NFP                              1.40
Primers..........................  PCP                              1.20
Ground Traffic/Marking...........  GTM                              1.20
Art Fixatives or Sealants........  AFS                              1.80
Auto body primers................  ABP                              1.55
Automotive Bumper and Trim         ABT                              1.75
 Products.
Aviation or Marine Primers.......  AMP                              2.00
Aviation Propellor Coatings......  APC                              2.50
Corrosion Resistant Brass,         CRB                              1.80
 Bronze, or Copper Coatings.
Exact Match Finish--Engine Enamel  EEE                              1.70
Exact Match Finish--Automotive...  EFA                              1.50
Exact Match Finish--Industrial...  EFI                              2.05
Floral Sprays....................  FSP                              1.70
Glass Coatings...................  GCP                              1.40

[[Page 15630]]


High Temperature Coatings........  HTC                              1.85
Hobby/Model/Craft Coatings,        HME                              1.45
 Enamel.
Hobby/Model/Craft Coatings,        HML                              2.70
 Lacquer.
Hobby/Model/Craft Coatings, Clear  HMC                              1.60
 or Metallic.
Marine Spar Varnishes............  MSV                              0.90
Photograph Coatings..............  PHC                              1.00
Pleasure Craft Primers, Surfacers  PCS                              1.05
 or Undercoaters.
Pleasure Craft Topcoats..........  PCT                              0.60
Polyolefin Adhesion Promoters....  PAP                              2.50
Shellac Sealers, Clear...........  SSC                              1.00
Shellac Sealers, Pigmented.......  SSP                              0.95
Slip-Resistant Coatings..........  SRC                              2.45
Spatter/Multicolor Coatings......  SMC                              1.05
Vinyl/Fabric/Leather/              VFL                              1.55
 Polycarbonate Coatings.
Webbing/Veiling Coatings.........  WFC                              0.85
Weld-Through Primers.............  WTP                              1.00
Wood Stains......................  WSP                              1.40
Wood Touch-up/Repair or            WTR                             1.50
 Restoration Coatings.
------------------------------------------------------------------------
\a\ Regulated entities may use these category codes or define their own
  in accordance with Sec.   59.511(b)(6).


          Table 2A to Subpart E of Part 59.--Reactivity Factors
------------------------------------------------------------------------
                                                            Reactivity
                Compound                      CAS No.         factor
------------------------------------------------------------------------
1-Butanol...............................         71-36-3            3.34
1,2,4-Trimethylbenzene..................         95-63-6            7.18
2-Butanol (s-Butyl alcohol).............         78-92-2            1.60
2-Butoxy-1-Ethanol (Ethylene glycol             111-76-2            1.67
 monobutyl ether).......................
2-Propoxyethanol (ethylene glycol              2807-30-9            3.52
 monopropyl ether)......................
Acetone (Propanone).....................         67-64-1            0.43
Amyl acetate (Pentyl ethanoate, pentyl          628-63-7            0.96
 acetate)...............................
Butane..................................        106-97-8            1.33
Butyl acetate, n........................        123-86-4            0.89
Cyclohexanone...........................        108-94-1            1.61
Di (2-ethylhexyl phthalate).............        117-81-7  ..............
Diacetone alcohol.......................        123-42-2            0.68
Diethanolamine..........................        111-42-2            4.05
Diisobutyl ketone.......................        108-83-8            2.94
Dimethyl ether..........................        115-10-6            0.93
Ethanol.................................         64-17-5            1.69
Ethyl acetate...........................        141-78-6            0.64
Ethyl benzene...........................        100-41-4            2.79
Ethyl-3-Ethoxypropionate................        763-69-9            3.61
Ethylene glycol monoethyl ether acetate         111-15-9             1.9
 (2-Ethoxyethyl acetate)................
Heptane.................................        142-82-5            1.28
Hexane..................................        110-54-3            1.45
Isobutane...............................         75-28-6            1.35
Isobutanol..............................         78-83-1            2.24
Isobutyl Acetate........................        110-19-0            0.67
Isohexane Isomers.......................        107-83-5            1.80
Isopropyl alcohol (2-Propanol)..........         67-63-0            0.71
Methanol................................         67-56-1            0.71
Methyl amyl ketone......................        110-43-0            2.80
Methyl ethyl ketone (2-Butanone)........         78-93-3            1.49
Methyl isobutyl ketone..................        108-10-1            4.31
Methyl n-Propyl Ketone (2-Pentanone)....        107-87-9            3.07
N,N-Dimethylethanolamine................        108-01-0            4.76
N-Butyl alcohol (Butanol)...............         71-36-3            3.34
Pentane.................................        109-66-0            1.54
Propane.................................         74-98-6            0.56
Propylene glycol........................         57-55-6            2.75
Propylene glycol monomethyl ether               108-65-6            1.71
 acetate................................
Texanol (1,3 Pentanediol, 2,2,4-              25265-77-4            0.89
 trimethyl, 1-isobutyrate)..............
Toluene.................................        108-88-3            3.97
Vinyl Chloride..........................         75-01-4            2.92
Xylene, meta-...........................        108-38-3           10.61
Xylene, ortho-..........................         95-47-6            7.49
Xylene, para-...........................        106-42-3            4.25
------------------------------------------------------------------------


[[Page 15631]]


   Table 2B to Subpart E of Part 59.--Reactivity Factors for Aliphatic
                      Hydrocarbon Solvent Mixtures
------------------------------------------------------------------------
                        Average
        Bin          boiling point        Criteria          Reactivity
                    *  (degrees F)                            factor
------------------------------------------------------------------------
1.................          80-205  Alkanes (< 2%                   2.08
                                     Aromatics).
2.................          80-205  N- & Iso-Alkanes (>=            1.59
                                     90% and < 2%
                                     Aromatics).
3.................          80-205  Cyclo-Alkanes (>=               2.52
                                     90% and < 2%
                                     Aromatics).
4.................          80-205  Alkanes (2 to < 8%              2.24
                                     Aromatics).
5.................          80-205  Alkanes (8 to 22%               2.56
                                     Aromatics).
6.................        >205-340  Alkanes (< 2%                   1.41
                                     Aromatics).
7.................        >205-340  N- & Iso-Alkanes (              1.17
                                     >= 90% and < 2%
                                     Aromatics).
8.................        >205-340  Cyclo-Alkanes (>=               1.65
                                     90% and < 2%
                                     Aromatics).
9.................        >205-340  Alkanes (2 to < 8%              1.62
                                     Aromatics).
10................        >205-340  Alkanes (8 to 22%               2.03
                                     Aromatics).
11................        >340-460  Alkanes (< 2%                   0.91
                                     Aromatics).
12................        >340-460  N- & Iso-Alkanes (>=            0.81
                                     90% and < 2%
                                     Aromatics).
13................        >340-460  Cyclo-Alkanes (>=               1.01
                                     90% and < 2%
                                     Aromatics).
14................        >340-460  Alkanes (2 to < 8%              1.21
                                     Aromatics).
15................        >340-460  Alkanes (8 to 22%               1.82
                                     Aromatics).
16................        >460-580  Alkanes (< 2%                   0.57
                                     Aromatics).
17................        >460-580  N- & Iso-Alkanes (>=            0.51
                                     90% and < 2%
                                     Aromatics).
18................        >460-580  Cyclo-Alkanes (>=               0.63
                                     90% and < 2%
                                     Aromatics).
19................        >460-580  Alkanes (2 to < 8%              0.88
                                     Aromatics).
20................        >460-580  Alkanes (8 to 22%              1.49
                                     Aromatics).
------------------------------------------------------------------------
* Average Boiling Point = (Initial Boiling Point + Dry Point) / 2 (b)
  Aromatic Hydrocarbon Solvents


   Table 2C to Subpart E of Part 59.--Reactivity Factors for Aromatic
                      Hydrocarbon Solvent Mixtures
------------------------------------------------------------------------
                     Boiling range                          Reactivity
        Bin           (degrees F)         Criteria            factor
------------------------------------------------------------------------
21................         280-290  Aromatic Content                7.37
                                     (>=98%).
22................         320-350  Aromatic Content                7.51
                                     (>=98%).
23................         355-420  Aromatic Content                8.07
                                     (>=98%).
24................         450-535  Aromatic Content                5.00
                                     (>=98%).
------------------------------------------------------------------------

 [FR Doc. E8-5589 Filed 3-21-08; 8:45 am]

BILLING CODE 6560-50-P
