
[Federal Register: December 24, 2008 (Volume 73, Number 248)]
[Rules and Regulations]               
[Page 78994-78997]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24de08-22]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 59

[EPA-HQ-OAR-2006-0971; FRL-8757-1]
RIN 2060-AP33

 
National Volatile Organic Compound Emission Standards for Aerosol 
Coatings

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; withdrawal of direct final rule.

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SUMMARY: EPA published a direct final rule and parallel proposal on 
November 7, 2008 (73 FR 66184) to amend the national volatile organic 
compound (VOC) emission standards for aerosol coatings, which EPA 
promulgated on March 24, 2008 (73 FR 15604), by extending the 
compliance date and changing the submittal date for initial 
notification reports. Because we received an adverse comment during the 
comment period on the direct final rule and parallel proposal, in this 
action we are both withdrawing the direct final rule and issuing a 
final rule based on the notice of proposed rulemaking after considering 
the comment.

DATES: This final rule revision is effective on December 24, 2008. The 
withdrawal of the direct final rule published on November 7, 2008 (73 
FR 66184) is effective on December 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 
http://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 http://
www.regulations.gov or in hard copy at the EPA Docket Center, Docket ID 
No. EPA-HQ-OAR-2006-0971, Public Reading Room, EPA West, Room 3334, 
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Air Docket is (202) 
566-1742.

FOR FURTHER INFORMATION CONTACT: 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.

SUPPLEMENTARY INFORMATION: On November 7, 2008, EPA published a direct 
final rule and parallel proposal (73 FR 66184) to amend the national 
VOC emission standards for aerosol coatings (73 FR 15604). In today's 
action, we withdraw the direct final rule, respond to the comment 
received, and issue a final rule based on the November 7, 2008, notice 
of proposed rulemaking.
    We stated in the direct final rule that if we received adverse 
comments by December 8, 2008, the direct final rule would not take 
effect and we would

[[Page 78995]]

publish a timely withdrawal in the Federal Register. We subsequently 
received an adverse comment on the direct final rule and are 
withdrawing it. As stated in the direct final rule and the parallel 
proposed rule, we will not institute a second comment period on this 
action.
    Concurrent with the direct final rule, we published a separate 
notice of proposed rulemaking to provide for the contingency of adverse 
comments on the direct final rule (73 FR 66184). With today's action, 
we are issuing a final rule based on the notice of proposed rulemaking 
and are addressing the comment received.
    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 February 23, 2009. Under CAA section 307(d)(7)(B), 
only an objection to the final rule that was raised with reasonable 
specificity during the period for public comment can be raised during 
judicial review. Moreover, under CAA section 307(b)(2), any 
requirements established by the 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 a mechanism for 
EPA to convene a proceeding for reconsideration, ``if the person 
raising the objection can demonstrate to the Administrator that it was 
impracticable to raise such 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 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 listed in the preceding FOR 
FURTHER INFORMATION CONTACT section and the Director of the Air and 
Radiation Law Office, Office of General Counsel (Mail Code 2344-A), 
U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004.

I. What Action Is EPA Taking?

    In today's action, EPA is withdrawing the direct final rule 
published on November 7, 2008 (73 FR 66184) and taking final action on 
the proposed rule on national VOC emission standards for aerosol 
coatings, published on November 7, 2008 (73 FR 66209).
    First, because we received an adverse comment on the direct final 
rule and parallel proposal, the direct final rule is being withdrawn.
    Second, after considering the adverse comment, we are taking final 
action on the proposed rule published on November 7, 2008 (73 FR 
66209). The adverse comment was submitted by the Harris County (Texas) 
Public Health and Environmental Services. The commenter asserted that 
the action was unclear, and that the commenter was unable to discern 
whether the proposed rule would improve or adequately protect public 
health. EPA disagrees with the commenter's assertion that the action 
was not fully explained in the November 7, 2008, notice (73 FR 66184). 
The direct final rule clearly stated that the rule would only amend the 
national VOC emission standards for aerosol coatings (73 FR 15604, 
March 24, 2008) in two respects: (1) By moving the compliance date from 
January 1, 2009, to July 1, 2009; and (2) by making initial 
notification reports due on the compliance date, as opposed to 90 days 
in advance of the compliance date. There were no substantive changes to 
the levels of control afforded by the March 24, 2008, rule. Therefore, 
this rule maintains the same level of protection of the public health 
as the March 24, 2008, rule.
    In today's action, we are taking final action on the parallel 
proposed rule published November 7, 2008 (73 FR 66184), as follows. 
First, today's action will move the applicability and initial 
compliance date for aerosol coatings, as specified in sections 
59.501(c) and 59.502(a) from January 1, 2009, to July 1, 2009. Second, 
initial notification reports required under sections 59.501(f)(3)(i), 
59.511(b) and 59.511(e) will be due on the compliance date, as opposed 
to 90 days in advance of the compliance date. These changes are 
necessary to allow EPA time to conduct rulemaking to add compounds (and 
their associated reactivity factors) that are currently used in aerosol 
coatings but were not included on the list in Table 2 of the rule as 
promulgated on March 24, 2008; and to allow regulated entities 
sufficient time to develop initial notification reports based on the 
revised tables. Furthermore, making initial notification reports due on 
the compliance date will result in the aerosol coatings rule being more 
consistent with the requirements of other 40 CFR part 59 rules, thereby 
increasing clarity and avoiding confusion on the part of regulated 
entities. Finally, as discussed above, the rule as modified by today's 
action makes no substantive changes to the levels of control afforded 
by the March 24, 2008, rule.

II. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden 
because it does not add any new information collection requirements; it 
only moves dates by which regulated entities are required to submit 
information and otherwise comply with the rule. No additional 
information collection is necessary for this action. However, OMB has 
previously approved the information collection requirements contained 
in the existing regulations (73 FR 15604) under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2060-0617. 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 today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This rule 
will not impose any requirements on small entities. We have

[[Page 78996]]

determined that small businesses will not incur any adverse impacts 
because this action does not create any new requirements or burdens; it 
only moves the dates by which persons are required to submit 
information and otherwise comply with the rule. No costs are associated 
with these amendments.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or Tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
Tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. As noted above, 
this rule does not create any new requirements or burdens; it extends 
the date by which regulated entities must be in compliance.

E. Executive Order 13132: Federalism

    EO 13132, entitled ``Federalism'' (64 FR 43255, August 10, 1999), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' is defined in the EO to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in EO 13132. The CAA establishes the relationship between 
the Federal Government and the States, and this action does not impact 
that relationship. The final rule requirements will not supersede State 
regulations that are more stringent. Thus, EO 13132 does not apply to 
this rule.

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

    This action does not have Tribal implications, as specified in EO 
13175 (65 FR 67249, November 9, 2000). 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. Thus, EO 
13175 does not apply to this action.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
to those regulatory actions that concern health or safety risks, such 
that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it is based solely on technology performance.

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

    This action is not subject to EO 13211 (66 FR 28355 (May 22, 
2001)), because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through Office of Management and Budget (OMB), explanations 
when the Agency decides not to use available and applicable voluntary 
consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

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

    EO 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive 
policy on environmental justice. Its main provision directs federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA has determined that this rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations because it does not affect the level of 
protection provided to human health or the environment. This action 
extends the compliance date of the rule from January 1, 2009, to July 
1, 2009, and does not relax the control measures on sources regulated 
by the rule.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule 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 the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective December 24, 2008.

List of Subjects in 40 CFR Part 59

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

    Dated: December 19, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, part 59 of title 40 of the 
Code of Federal Regulations is amended as follows:

PART 59--[AMENDED]

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

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

Subpart E--[Amended]

0
2. Section 59.501 is amended by revising the first sentence of 
paragraph (c) and the first sentence of paragraph (f)(3)(i) to read as 
follows:

[[Page 78997]]

Sec.  59.501  Am I subject to this subpart?

* * * * *
    (c) Except as provided in paragraph (e) of this section, the 
provisions of this subpart apply to aerosol coatings manufactured on or 
after July 1, 2009, for sale or distribution in the United States.* * *
* * * * *
    (f) * * *
    (3) * * *
    (i) You must submit an initial notification no later than the 
compliance date stated in Sec.  59.502(a), or on or before the date 
that you start manufacturing aerosol coating products that are sold in 
the United States, whichever is later. * * *
* * * * *

0
3. Section 59.502 is amended by revising paragraph (a) to read as 
follows:


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 July 1, 2009.
* * * * *

0
4. Section 59.511 is amended by revising the first sentence of 
paragraph (b) introductory text and the first sentence of paragraph (e) 
introductory text to read as follows:


Sec.  59.511  What notifications and reports must I submit?

* * * * *
    (b) You must submit an initial notification no later than the 
compliance date stated in Sec.  59.502, or on or before the date that 
you first manufacture, distribute, or import aerosol coatings, 
whichever is later. * * *
* * * * *
    (e) If you claim the exemption under Sec.  59.501(e), you must 
submit an initial notification no later than the compliance date stated 
in 59.502(a), or on or before the date that you first manufacture 
aerosol coatings, whichever is later. * * *
* * * * *

 [FR Doc. E8-30699 Filed 12-23-08; 8:45 am]

BILLING CODE 6560-50-P
