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

ENVIRONMENTAL PROTECTION AGENCY

[AD-FRL-6375-2]

RIN 2060-AG59

Consumer and Commercial Products: Wood Furniture, Aerospace, and

Shipbuilding and Ship Repair Coatings: Control Techniques Guidelines in

Lieu of Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final determination.

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SUMMARY: This final determination announces our final decision to list

wood furniture manufacturing coatings, aerospace coatings, and

shipbuilding and ship repair coatings for regulation in the first group

of consumer and commercial product categories to be regulated under

section 183(e) of the Clean Air Act (Act). We determined that emissions

of volatile organic compounds (VOC) from these coatings have the

potential to cause or contribute to ozone levels that violate the

national ambient air quality standards (NAAQS) for ozone. Ozone is a

major component of smog which causes negative health and environmental

impacts when present in high concentrations at ground level.

This final determination also announces our determination under

section 183(e) of the Act that control techniques guidelines (CTG) are

substantially as effective as national regulations in reducing VOC

emissions from wood furniture manufacturing coatings, aerospace

coatings, and shipbuilding and ship repair coatings which contribute to

violations of the NAAQS for ozone. With this final determination, we

may issue CTG in lieu of national regulations for each of these

specific categories.

We based our final determination on comparison of the effectiveness

of VOC control in the wood furniture manufacturing CTG (61 FR 25223,

May 20, 1996), the aerospace CTG (63 FR 15006, March 22, 1998), and the

shipbuilding and ship repair CTG (61 FR 44050, August 27, 1996) with

the estimated effectiveness of control possible from national

regulations for these product categories.

EFFECTIVE DATE: July 13, 1999.

ADDRESSES: Docket. Docket No. A-96-23 contains supporting information

for this final determination. You can inspect this docket and copy

material between 8:30 a.m. and 5:30 p.m., Monday through Friday. The

docket is located at our Air and Radiation Docket and Information

Center, Waterside Mall, Room M1500, 1st Floor, 401 M Street, SW,

Washington, DC 20460. Telephone (202) 260-7546, FAX (202) 260-4400. You

may have to pay a reasonable fee for copying.

FOR FURTHER INFORMATION CONTACT: Mr. Daniel Brown, (919) 541-5305,

Coatings and Consumer Products Group, Emission Standards Division (MD-

13), U.S. Environmental Protection Agency, Research Triangle Park,

North Carolina 27711 ([email protected]).

SUPPLEMENTARY INFORMATION:

Whom does this action affect? Entities potentially affected by this

action are those wood furniture manufacturing operations, aerospace

manufacturing and rework operations, or shipbuilding and ship repair

(surface coating) operations which are (or have the potential to

become) ``major'' sources of VOC emissions and are located in certain

ozone nonattainment areas. Potentially affected entities are included

in the following table:

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Category Examples of potentially affected entities

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Industry............................... Wood furniture or wood furniture component(s) manufacturing. (SIC Codes

2434, 2511, 2512, 2517, 2519, 2521, 2531, 2541, 2599, 5712).

Any manufacturing, reworking, or repairing of aircraft such as

airplanes, helicopters, missiles, rockets, and space vehicles. (SIC

Codes 3720, 3721, 3724, 3728, 3760, 3761, 3764, 3765, and 4581).

[[Page 37774]]

Any building or repairing, repainting, converting, or alteration of

ships. The term ship means any marine or fresh-water vessel, including

self-propelled by other craft (barges), and navigational aids (buoys).

Note: Offshore oil and gas drilling platforms and vessels used by

individuals for noncommercial, nonmilitary, and recreational purposes

that are less than 20 meters in length are not considered ships. (SIC

Code 3731)

Federal Government..................... Federal agencies which undertake aerospace manufacturing or rework

operations (see above) such as the Air Force, Navy, Army, and Coast

Guard.

Federal agencies which undertake shipbuilding or ship repair operations

(see above) such as the Navy and Coast Guard.

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This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities which are the focus of this

action. This table lists the types of entities that we are now aware

could potentially be affected by this action. Other types of entities

not listed in the table could also be affected.

What is the judicial review process for this determination? We

proposed this section 183(e) determination on August 22, 1997 (62 FR

44672). Today's final determination is our final administrative action

concerning that proposal. Under section 307(b)(1) of the Act, you can

challenge this final determination only by filing a petition for review

in the United States Court of Appeals for the District of Columbia

Circuit by September 13, 1999. Under section 307(d)(7)(B) of the Act,

you can raise an issue during judicial review only if someone raised it

with reasonable specificity during the public comment period.

The information presented in this document is organized as follows:

I. Why are we taking this action?

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

to them?

A. Estimated levels of control for reasonably available control

technology (RACT) and best available control (BAC)

1. Comparing BAC and RACT

2. Selecting BAC

B. Emission reductions attributed to CTG

C. Estimated number of affected facilities

III. What is our final action?

IV. Administrative requirements

A. Docket

B. Paperwork Reduction Act

C. Executive Order 12866: Regulatory Planning and Review

D. Executive Order 12875: Enhancing Intergovernmental

Partnership

E. Regulatory Flexibility Act/Small Business Regulatory

Enforcement Fairness Act of 1996

F. Unfunded Mandates Reform Act of 1995

G. Submission to Congress and the General Accounting Office

H. National Technology Transfer and Advancement Act

I. Executive Order 13045: Protection of Children from

Environmental Health Risks and Safety Risks

J. Executive Order 13084: Consultation and Coordination with

Indian Tribal Governments

I. Why are we taking this action?

Ground-level ozone, which is a major component of ``smog,'' is

formed in the atmosphere by reactions of VOC and oxides of nitrogen

(NOX) in the presence of sunlight. The formation of ground-

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

Exposure to ground-level ozone is associated with a wide variety of

human health effects, agricultural crop loss, and damage to forests and

ecosystems. Acute health effects are induced by short-term exposures to

ozone (observed at concentrations as low as 0.12 parts per million

(ppm)), generally while individuals are engaged in moderate or heavy

exertion, and by prolonged exposures to ozone (observed at

concentrations as low as 0.08 ppm), typically while individuals are

engaged in moderate exertion. Moderate exertion levels are more

frequently experienced by individuals than heavy exertion levels. The

acute health effects include respiratory symptoms, effects on exercise

performance, increased airway responsiveness, increased susceptibility

to respiratory infection, increased hospital admissions and emergency

room visits, and pulmonary inflammation. Groups at increased risk of

experiencing such effects include active children, outdoor workers, and

others who regularly engage in outdoor activities or have preexisting

respiratory disease. Available information also suggests that long-term

exposures to ozone may cause chronic health effects (e.g., structural

damage to lung tissue and accelerated decline in baseline lung

function).

In 1990, Congress enacted section 183(e) of the Act, establishing a

new regulatory program to control VOC emissions from consumer and

commercial products. Section 183(e) directed the Administrator to study

the VOC emissions from these products and report to Congress concerning

their potential to contribute to levels of ozone which violate the

NAAQS for ozone. The statute also directed us to identify, list, and

schedule for regulation those categories of products which account for

at least 80 percent of VOC emissions from all such products in ozone

nonattainment areas.

Following these directions, we studied these products and

determined that VOC emissions from consumer and commercial products

have the potential to contribute to ozone levels that violate the NAAQS

for ozone. We also identified coatings used in wood furniture

manufacturing, aerospace, and shipbuilding and ship repair as product

categories to regulate to reduce VOC emissions. For a more detailed

discussion of our findings, see:

``Consumer and Commercial Products Report to Congress''

(EPA-453/R-94-066-A).

Federal Register document announcing the schedule for

regulating consumer and commercial products (60 FR 15264).

Federal Register document summarizing significant public

comments and the EPA's responses regarding the section 183(e) study,

Report to Congress, and the list and schedule for regulation (63 FR

48792).

Section 183(e) of the Act directs us to regulate consumer and

commercial products using best available controls (BAC). The statute

defines ``consumer and commercial'' products as:

* * * any substance, product (including paints, coatings, and

solvents), or article (including any container or packaging) held by

any person, the use, consumption, storage, disposal, destruction, or

decomposition of which may result in the release of volatile organic

compounds.

The statute defines ``BAC'' as:

* * * the degree of emissions reduction the Administrator

determines, on the basis of technological and economic feasibility,

health, environmental, and energy impacts, is achievable through the

application of the most effective equipment, measures, processes,

methods, systems or techniques, including chemical reformulation,

product or feedstock substitution, repackaging, and directions for

use, consumption, storage, or disposal.

Although the statute provides that we may use ``any system or

systems'' of regulation to achieve VOC emission reductions, it provides

two primary options for reducing VOC emissions from these products,

national

[[Page 37775]]

regulations or CTG. Because of the difference between the entities

subject to regulation under each mechanism, the statute permits us to

obtain VOC emission reductions either at the point of manufacture or at

the point of use. A regulation under section 183(e) may only apply to

certain regulated entities defined in the statute as:

* * * (i) manufacturers, processors, wholesale distributors, or

importers of consumer and commercial products for sale or

distribution in interstate commerce in the United States; or (ii)

manufacturers, processors, wholesale distributors, or importers that

supply the entities listed under clause (i) with such products for

sale or distribution in interstate commerce in the United States.

Thus, section 183(e) does not allow us to issue regulations that

would directly regulate end users of these products. Alternatively,

section 183(e) also includes provisions that allow us to control these

emissions at the point of use by issuing CTG. We may issue CTG instead

of national regulations, under section 183(e)(3)(C) of the Act, if the

Administrator determines that CTG will be ``substantially as effective

as'' regulations in reducing VOC emissions from consumer and commercial

products which contribute to ozone in areas that violate the NAAQS.

Although not specifically defined in the Act, a CTG is a guidance

document issued by the EPA which, under section 182(b)(2), triggers a

responsibility for States to submit reasonably available control

technology (RACT) rules for stationary sources of VOC that are covered

by the CTG as part of each State's State Implementation Plan. The EPA

defines RACT as ``the lowest emission limit that a particular source is

capable of meeting by the application of control technology that is

reasonably available considering technological and economic

feasibility'' (44 FR 53761, September 17, 1979). Each CTG includes a

``presumptive norm'' or ``presumptive RACT'' that we believe satisfies

the definition of RACT. If a State submits a RACT rule that is

consistent with the presumptive RACT in the CTG, the State does not

need to submit additional support to demonstrate that the rule meets

the Act's RACT requirement. However, if the State submits an

alternative emission limit or level of control for a source or source

category for which there is a presumptive RACT and deviates from the

CTG, the State must submit independent documentation as to why the rule

meets the statutory RACT requirement.

In our proposed determination, we discussed a number of factors we

may consider in making our determination that CTG are substantially as

effective as rules under section 183(e) (62 FR 44672, August 22, 1997).

For these three product categories, we considered the following factors

to determine if CTG are substantially as effective as national

regulations:

--the product's distribution and place of use;

--the most effective entity to regulate in order to control

emissions (in other words, whether it is more effective to achieve VOC

reductions at the manufacturer level or the user level);

--consistency with other VOC control strategies; and

--estimates of VOC emission reductions.

As we consider other product categories in future phases of

regulation under section 183(e), there may be other factors that will

be relevant for given product categories.

The distribution and use of these products is focused on the

industrial sector with fewer large users (e.g., industrial facilities),

rather than many small users (e.g., individual consumers in the general

public). Users often add thinning solvent to these coatings at the

industrial facility after purchase from the coating manufacturer.

Hence, we believe the industrial facility (i.e., the coating user) will

be the most effective entity to target for VOC emission reductions from

these products. This approach would be consistent with previous efforts

to reduce VOC emissions from industrial coatings by issuing CTG for the

industrial facilities where the coatings are applied. Furthermore, the

historical use of CTG to control VOC emissions from similar coating

operations has proven to be effective in reducing VOC emissions. In

order to assess the relative effectiveness of each mechanism, we also

compared the VOC emission reductions that we estimated for a CTG with

those that we estimated for a national regulation for each product

category. For the comparison, we used the existing CTG issued for wood

furniture manufacturing (61 FR 25223), aerospace coatings (63 FR

15006), and shipbuilding and ship repair (61 FR 44050) to estimate VOC

emission reductions for the CTG. We then made estimates of the

projected VOC emission reductions from national regulations by

estimating what would constitute BAC for each product category.

For wood furniture manufacturing coatings, aerospace coatings, and

shipbuilding and ship repair coatings, we determined that CTG would be

substantially as effective as national regulations in reducing VOC

emissions in ozone nonattainment areas. For these product categories,

the VOC emissions typically occur in fixed industrial settings where

CTG enable monitoring and enforcement of controls during use of the

product. We described the level of control presumptively established

for each category in the proposed determination (62 FR 44672, August

22, 1997) and in the wood furniture manufacturing CTG (61 FR 25223, May

20, 1996), the aerospace CTG (63 FR 15006, March 22, 1998), and the

shipbuilding and ship repair CTG (61 FR 44050, August 27, 1996).

II. What were the significant comments we received and our

responses to them?

We placed our proposed determination and supporting documentation

in a docket open to the public when we published the proposal in the

Federal Register on August 22, 1997 (62 FR 44672). At that time, we

asked for comments and later received comment letters from

manufacturers and importers, trade groups, environmental groups, and

one private citizen. All of the public comments on our proposed

determination, and our responses to the comments, are in the docket (A-

96-23), as referenced in the ADDRESSES section of this document. We

requested but did not receive comments on the listing of these three

commercial products in our proposed determination on August 22, 1997

(62 FR 44672). We discuss the most significant issues raised by

commenters and our response to them in this document.

A. Estimated Levels of Control for Reasonably Available Control

Technology (RACT) and Best Available Controls (BAC)

1. Comparing BAC and RACT

Comment: BAC, the degree of control required for a national

regulation under section 183(e), allegedly should be more stringent

than RACT, the degree of control required for CTG. The commenter noted

that we should base BAC on ``best'' available controls, whereas we can

base RACT on controls that are ``reasonably'' available. The commenter

stated that to show that a CTG would be substantially as effective as a

regulation, we would thus have to show that RACT is substantially as

effective as BAC. The commenter's essential point is that it would be

very difficult to establish that ``reasonably'' available controls

could be substantially as effective as ``best'' available controls,

because ``best'' implies a higher degree of controls.

Response: We disagree that BAC must automatically be a more

stringent level

[[Page 37776]]

of control than RACT. Each of these terms refers to the optimum degree

of control within its respective regulatory program and, as discussed

in the proposed determination, we believe that BAC is not necessarily

more stringent than RACT. We note that although section 183(e)

contemplates the implementation of ``best'' available controls, it does

so in terms that direct us to determine what is ``best'' in light of

enumerated factors, including technological and economic feasibility.

We believe the degree of emission reduction in a national

regulation based on BAC should reflect nationwide usage of coatings

within a category under all conditions. This includes situations where

high-VOC coatings are necessary to achieve product performance

requirements. The level of control should be achievable considering,

among other things, economic impacts. Thus, we believe that it is

appropriate to consider the continued availability of high-VOC coatings

in the selection of BAC if they are essential to fill a necessary

product niche. In addition, we must base BAC (like RACT) on available

control technologies that are achievable based on technological

feasibility. Therefore, we cannot automatically select lower VOC-

emitting products that are not proven for the range of uses in a

category as dispositive of BAC simply because they have the lowest VOC

emissions.

High-VOC coatings, if essential to fill a necessary product niche,

could significantly influence the selection of BAC in development of a

national regulation and result in a higher VOC limit to allow their

continued production and use. High-VOC coatings would also impact the

selection of controls for RACT. However, the impact would be lessened

for RACT to the extent that regulations of the ``use'' of high-VOC

coatings through CTG could lead to a lower VOC limit for specific

applications and, hence, lower overall VOC emissions. Rules reflecting

a CTG's presumptive RACT control level could also include provisions

for more efficient coating application equipment, air pollution control

devices, process changes, and work practice standards to further reduce

VOC emissions. Thus, it is possible that a national regulation

utilizing BAC could be less stringent than a RACT rule triggered by

issuance of a CTG. We believe that this outcome is likely for many

coatings used in industrial manufacturing processes where higher VOC

coatings are often essential for product performance, but where on-site

emission reduction measures through RACT rules can mitigate the VOC

emissions to the atmosphere.

Because Congress explicitly provided for the use of CTG in lieu of

a national regulation pursuant to section 183(e), we believe it is

reasonable to assume that ``reasonably available control technology''

can be substantially as effective as ``best available control'' under

certain conditions and for some categories. Congress, however, did not

provide a distinct standard or methodology for EPA to consider when

determining whether CTG are substantially as effective as regulations.

Furthermore, the legislative history does not directly address this

issue. Given the ambiguity in the statute, we have chosen to make this

comparison based on reasonable considerations as set forth in the

proposed determination.

Most importantly, we do not consider the comparison of numerical

emission reduction estimates as the sole factor in the evaluation of

whether a CTG is ``substantially as effective.'' As discussed in the

proposed determination, other factors related to implementation and

enforcement are equally important in determining the overall emission

reduction effectiveness of each regulatory strategy. Such factors

include consideration of the most effective entity to target for

reductions (e.g., the product manufacturer or the product user), the

distribution and site of product use (e.g., distributed and used in an

established stationary facility or widely dispersed for use in varied

locations), and consistency with other control strategies (e.g., have

existing control strategies proved effective). Thus, in making the

determination that CTG for wood furniture, aerospace, and shipbuilding

and ship repair operations will be substantially as effective as

regulations pursuant to section 183(e), we did not rely solely on the

comparison of emission reduction estimates. We believe a proper

determination requires consideration of the estimates of BAC, the

corresponding emission reduction estimates, and the implementation and

enforcement factors described in the proposal.

2. Selecting BAC

Comment: In comparing potential emission reductions from a CTG

versus a national regulation, one commenter stated that we used

unsupported estimates of the stringency of BAC standards that we would

develop under a national regulation. The commenter suggested that our

estimated standards were themselves illegal under section 183(e)

because we did not consider all of the statutory factors in estimating

what would constitute BAC under a projected national regulation.

Response: We maintain that we performed the proper analysis

necessary to compare the potential emission reductions from a CTG to

the potential emission reductions from a national regulation for each

of these three product categories. As an initial matter, we note that

section 183(e) does not stipulate how to assess whether a CTG is

substantially as effective as a regulation in obtaining VOC emission

reductions. As explained in the proposed determination, neither the

statute nor the legislative history provides a distinct standard that

Congress directed us to use for this analysis (62 FR 44672, 44674,

August 22, 1997).

We acknowledge that the statute is ambiguous regarding how we are

to make the determination that a CTG for a given product category would

be substantially as effective as a national regulation in achieving VOC

emission reductions. We believe that it is reasonable to interpret the

provisions to allow a comparison of the estimated VOC emission

reductions achievable by the alternative mechanisms of a CTG or a

regulation. Moreover, we believe it is appropriate to interpret the

provisions to allow us to choose a reasonable means to estimate the

projected emission reductions. It would be unreasonable to require us,

in effect, to perform a complete rulemaking process before making an

informed determination that a CTG would be substantially as effective

as a national regulation.

As detailed more fully in the proposed determination, we concluded

that it would be reasonable to compare the expected VOC emission

reductions from existing CTG for these product categories with the

projected VOC reductions from national regulations that we might

develop for the same products. We noted explicitly in the proposed

determination that the projected VOC reductions from a national

regulation were, by necessity, estimates based upon the information

available to us. Contrary to the assertions of the commenter, we

believe that we had adequate information regarding the affected

industries and products to make reasonable estimates. For these three

product categories, we completed an in-depth and detailed review of the

industries during the development of national emission standards for

hazardous air pollutants (NESHAP) and CTG. Based upon this information,

as described in Docket No. A-96-23, we were informed about the

industries and the issues that would

[[Page 37777]]

potentially affect development of any national regulation governing

these products used in an industrial setting.

The commenter suggested that we had insufficient support for our

estimates, thereby invalidating the comparison of CTG to national

regulation. Taken to its logical extreme, however, the commenter's

argument would require us to proceed through every step of a rulemaking

process (e.g., regulatory development, proposal, response to comments,

interagency review, and drafting of a final regulation) before we could

have sufficient certitude about the level of control possible from a

national regulation to make a valid comparison with CTG. We do not

believe that section 183(e) requires such an extensive process in order

to make a valid comparison between the efficacy of a national

regulation and that of a CTG.

The commenter also stated that we underestimated the reductions

feasible through a national regulation, thereby invalidating the

comparison. We disagree because in making our estimation, we took into

account the very issues that would have been relevant in the

development of a national regulation. As detailed in the proposed

determination, we explained alternative approaches, industry issues,

and constraints for regulating each of the three product categories. We

could not, of course, predict with perfect accuracy what the emission

limits would have been for a national regulation. Such a determination

would be possible only after completion of an actual rulemaking

process. We did, however, utilize our expertise and familiarity with

the issues to give an informed estimation of the VOC limits in a

national regulation for these product categories. As the commenter

acknowledged, we must consider a variety of factors in assessing what

level of control is BAC for a product category. For a regulation with

national scope, that level is not necessarily the lowest possible VOC

content.

Even if we were conservative in estimating the potential VOC

reductions achievable through a national regulation or a CTG, we note

that the precise amount of reductions possible through one mechanism or

another is but one factor for consideration. As stated in the proposed

determination, we believe that we may take into account a variety of

different factors related to implementation and enforcement such as the

most effective entity to target for reductions (e.g., the product

manufacturer or the product user), the distribution and site of use of

the product (e.g., distributed and used in an established stationary

facility or widely dispersed for use in varied locations), and

consistency with other control strategies (e.g., have existing control

strategies proved effective) (62 FR 44675). Thus, for example, it might

be possible to achieve greater numeric reductions through a national

regulation rather than a CTG, but other factors might render a CTG

substantially as effective as or more effective than a national

regulation.

Simply put, some products are more suitable for control through a

national regulation at the point of manufacture and some products are

better controlled at the point of use instead. For example, VOC control

for a product like house paint is more effective through a regulation

governing manufacturers, whereas control of products used by a smaller

number of large sophisticated industrial end users is more effective

through a CTG. As explained in greater detail in the proposed

determination, we believe that these three product categories are

appropriate for VOC control through a CTG rather than a regulation for

a variety of reasons.

Comment: One commenter claimed that we provided incorrect estimates

of the potential VOC emission reductions from a national regulation for

wood furniture manufacturing coatings. Because we identified three

possible control technologies: waterborne coatings, high solids

coatings, and ultraviolet curable coatings, the commenter indicated

that properly estimated BAC standards should have reflected some

combination of these technologies. The commenter noted that we

concluded in the proposed determination that waterborne and high-solids

coatings are not necessarily compatible for all products. The commenter

stated that the primary reason for our rejection of certain

technologies was our concern that manufacturers would not be able to

produce the same quality of product and would therefore suffer

economically. The commenter stated that the proposed determination did

not indicate that we made any effort to verify the assertions of

manufacturers or to balance economic consequences against environmental

and health benefits.

Response: As previously noted, the data and information that we

used to support the BAC estimate came from extensive regulatory

negotiations under the Federal Advisory Committee Act (FACA) to support

development and promulgation of a NESHAP under section 112 of the Act

and a CTG under section 183(b) of the Act. We believe these data are

adequate to support an estimate of BAC for a national regulation

because we examined all available coating technologies and the total

VOC emissions from these coatings in these industries when developing

the existing CTG.

In the selection of the level of control that is BAC and evaluation

of its potential economic impacts, we believe it is reasonable to

consider the impact on coating users if necessary coatings were no

longer available. For the wood furniture manufacturing industry, sealer

and top-coat coatings must be compatible to ensure acceptable finishes

on the wood. Even though there may be lower VOC coatings that could

potentially justify a lower level for BAC, we believe it is necessary

to evaluate whether a limit based solely on such coatings would

eliminate the availability of necessary compatible sealers and top-

coats. We established BAC limits for wood furniture coatings based on

broadly defined coating types (e.g., top-coats and sealers) so that all

of the necessary coating technologies available within the coating type

(e.g., waterborne, high solids, and conventional) would remain

available to meet the needs of coating users to fill a product niche.

An alternative to establishing a single VOC content limit as BAC

considering all coating technologies would be to establish less broadly

defined categories of coatings with individual BAC limits for each type

of coating technology. As we discussed in the proposed determination,

we considered subcategorizing wood furniture coating types into several

technology groups: waterborne coatings with a BAC limit based only on

waterborne technology, high-solids coatings with BAC based only on

high-solids technology, and conventional coatings with BAC based only

on conventional coating technology. Although this approach might lead

to lower VOC limits for the individual coating technologies, we do not

believe it would automatically lead to the use of lower VOC coatings.

Regulations under section 183(e) regulate the manufacturer,

distributor, or processor of a coating; these regulations do not

regulate how or under what circumstances the end user can apply a

specific technology. Therefore, under this scenario, a wood furniture

manufacturer would be able to use a coating technology with a higher

VOC limit (e.g., solvent based) even if a lower VOC coating technology

(e.g., waterborne) could achieve the same results.

Alternatively, regulators can specifically address the use of

coating technologies with a CTG restricting the use of higher VOC

coating technology to

[[Page 37778]]

only those applications where the use of lower VOC technology is not

compatible with the specific sealer and top-coat system. Thus, a CTG

can include stricter requirements on the actual use of coating

technologies whereas a national regulation could not. Furthermore,

since regulators can more effectively monitor and enforce compliance

with requirements on the use of these products in wood furniture

manufacturing facilities, these facilities can be better targeted for

effective VOC reductions with a CTG.

In assessing the projected VOC emission reductions from a national

regulation, we had to consider the limitations imposed by section

183(e). We believe that for purposes of comparing the potential

emission reductions from a regulation for wood furniture coatings,

establishing a single BAC level that is the lowest achievable level

that does not preclude any necessary coating technology is appropriate.

Regarding our reliance on information provided by manufacturers on

coating technologies and economic impacts used to establish the

estimated BAC for this category, our assessment was based on

information from the regulatory negotiation process under FACA,

described above. The FACA committee was comprised of industry groups,

public interest groups, and governmental agencies and conducted

extensive discussions regarding the feasibility of coating

technologies, economic impacts, and environmental benefits. We believe

that such a process provided more reliable and less biased information

than the commenter suggested. We maintain that the information

developed during this FACA process is adequate to support estimates of

the VOC emission reductions from a potential national regulation for

purposes of making this determination.

Comment: One commenter criticized our estimates of the stringency

of BAC standards for aerospace and shipbuilding and ship repair

coatings. The commenter questioned our assertion that the best

available control measures (BACM) presented in the aerospace and

shipbuilding CTG ``represent the best performing sources in the

industry'' and, thus, would be ``similar if not equivalent'' to BAC.

The commenter stated that we did not indicate how BACM standards

represent the best performing sources or why the best performing

sources would be equivalent to BAC. The commenter concluded that there

are indications that properly written national regulations for these

products would be more stringent than those we used for comparison

purposes, and that it is impossible for us or the public to reach a

valid determination that CTG are substantially as effective as national

regulations for these product categories without more information and

more thorough analysis.

Response: We reaffirm our conclusion that the BACM levels of

control we presented in the aerospace and shipbuilding CTG represent

the best performing sources in the industry and, thus, would be similar

if not equivalent to BAC for these products for purposes of this

analysis. We indicated in our proposed determination that BACM was

based on data used to support development and promulgation of NESHAP

for the aerospace and shipbuilding and ship repair industries under

section 112 of the Act and CTG under section 183(b) of the Act. We

believe these data are adequate to support an estimate of BAC for a

national VOC regulation because we examined VOC emissions from these

coatings when developing the NESHAP and CTG.

Data analysis supporting development of the NESHAP includes the

selection of maximum achievable control technology (MACT) to reduce

emissions from aerospace and shipbuilding and ship repair coatings,

after considering the energy, environmental, and economic impacts of

the technology, and other costs. The MACT is based on industry sources

with the best performing emission reduction technology. While typically

there may be differences in the level of emission reduction provided by

MACT, BACM, BAC, and RACT, when there is a limited range of control

options for a specified industry, such as coating technologies, the

level of control may be identical. We determined that MACT, BAC, BACM,

and RACT were all identical for these industries based on the lowest

achievable emission levels for the aerospace and shipbuilding and ship

repair coatings.

In conducting our review of available data to make today's final

determination, we did not find any clear indications that properly

written national regulations based on BAC would be more stringent. Nor

did we receive any such information during the comment period for the

proposed determination. We believe that we have sufficient information

to make a valid comparison of the projected emission reductions from a

CTG and national regulation for each of these product categories. We

believe it is appropriate to make such determinations based on readily

available information, thereby maximizing the use of limited resources.

Furthermore, we believe this was the intent of the Congress in section

183(e)(3)(C), which gives the Administrator discretion to determine if

CTG would be substantially as effective as regulations and to issue CTG

in lieu of regulations when appropriate.

B. Emission Reductions Attributed to CTG

Comment: A commenter stated that we failed to quantify or support

our estimate of VOC emission reductions possible from CTG. The

commenter stated that in the discussion of the CTG for aerospace

facilities, we indicated that 1,288 tons per year (tpy) of the total

4,288 tpy estimated reductions would come from equipment and work

practice standards, but we did not provide any indication of how we

reached this number. For the wood furniture manufacturing CTG, the

commenter stated that we provided no allocation of the sources of

reduction at all. Finally, the commenter stated that we appear to have

reached the estimated 1,366 tpy in VOC reductions for the shipbuilding

and ship repair category without accounting for any reductions from

work practices.

Response: We do not agree that we failed to quantify and support

the estimates of VOC reductions from CTG for these three categories.

The docket for this action includes memoranda that document the

calculations made for each category (Docket No. A-96-23).

As discussed in the proposed determination and in the responses

above, the advantage of a CTG is that it targets VOC emission

reductions at the source. A CTG can limit the amount of VOC in a

coating when applied, including any VOC the user adds to the product as

manufactured (e.g., thinning solvents). Additionally, CTG can include

requirements for pollution control devices, process changes, work

practices, and other means which can further reduce emissions of VOC

from coating use and other sources (e.g., VOC emissions from equipment

cleaning and coating mixing). National regulations under section 183(e)

apply to manufacturers, processors, wholesale distributors, and

importers of commercial products such as these industrial coatings and,

therefore, could only limit the amount of VOC in the coatings as sold

and distributed.

For CTG that include recommended requirements for process changes

or control equipment, the additional VOC emission reductions are

typically a function of the amount of coating applied. Therefore, with

estimates of the amount of coating applied, emission

[[Page 37779]]

reductions resulting from such requirements can often be quantified.

The aerospace CTG recommended such requirements for coating application

equipment. This equipment improves the efficiency of the coating

operation resulting in less VOC emissions. Since the VOC reductions

correlate with the amount of coating used, we were able to quantify the

additional reductions associated with the CTG's recommended requirement

and consider them in making our proposed determination (Docket No. A-

96-23).

The commenter is correct that we did not allocate and account for

additional VOC emission reductions associated with the CTG for

shipbuilding and wood furniture manufacturing. As discussed in the

proposed determination, we expect the CTG to achieve additional VOC

reductions since RACT VOC limits regulate coatings as-applied (i.e.,

including any VOC added after purchase). It was also discussed that CTG

recommend work practice standards for the cleaning of coating

equipment. Since VOC are used to clean coating equipment, these work

practices will potentially achieve additional VOC reductions from the

industrial facilities that we could not achieve with a regulation

governing the VOC content of products as manufactured. In making our

estimate of VOC reductions from a CTG, we could not definitively

quantify additional emission reductions from such limits and work

practices, based on available data. In these cases, the full benefit of

a CTG over a national regulation may not be completely quantifiable. In

this respect, we agree that our estimation of the reductions from the

CTG may be conservative and that we would anticipate greater

reductions. However, even without quantifying and allocating the

precise amount of projected VOC reductions, we concluded that a CTG

would be substantially as effective for each category. We do not

believe that section 183(e) requires us to quantify precisely the

projected reductions from a potential regulation or CTG before we can

reasonably make our determination.

Comment: The development of the existing wood furniture

manufacturing CTG was a coordinated effort between industry, State, and

local agencies and environmental groups. The commenter asserted that

the advantage of a CTG over a national regulation is its ability to

reduce emissions from coatings as they are used in the actual workplace

setting. The commenter suggested that coatings purchased from vendors

are often modified prior to application due to the variety of wood

species and application equipment used in the industry. Attempting to

control VOC emissions by reducing VOC in the product as manufactured

would, therefore, be less effective for this product category. The

commenter suggested that a CTG is a proven mechanism for reducing VOC

emissions from this industry by placing limits on the coatings as

applied and including work practice standards to reduce VOC emissions

from other associated operations. The commenter supported our

determination that CTG are substantially as effective as a national

regulation for this product category.

Response: We concur with these comments for this product category.

We recently promulgated a NESHAP for the wood furniture manufacturing

industry under section 112 of the Act, and issued a final CTG for this

industry under section 183(b) of the Act on May 20, 1996. As discussed

above, in making our determination under section 183(e), we considered

several factors related to implementation, enforcement, and estimated

emission reductions from CTG and a national regulation for this product

category. In estimating emission reductions, we considered pertinent

information regarding the wood furniture industry that was gathered

during the development of the NESHAP and CTG. Based on the analysis of

this industry information, as documented in Docket No. A-96-23, we

determined that a CTG would be substantially as effective as a national

regulation under section 183(e) for wood furniture manufacturing

coatings.

Comment: One commenter suggested that CTG are better targeted to

reduce VOC emissions from solvent use in ozone nonattainment areas and

that there are valid reasons for such reductions in most of these

areas, except for those that are NOX-limited. The commenter

claimed that national regulations would impose additional restrictions

in ozone attainment areas, for which the commenter believes there is no

environmental justification. In addition, the commenter asserted that

such national regulations would impose unnecessary costs on the users

of products and on solvent producers. The commenter supported our

determination that CTG are substantially as effective as national

regulations under section 183(e) in reducing VOC emissions from these

product categories.

Response: As discussed in previous responses, we made our

determination to issue CTG for these product categories based upon

consideration of various factors including implementation, enforcement,

and emission reductions. In weighing whether to implement national

regulations versus CTG, we also considered the nature of the product

and its use. For example, we believe that a national regulation is an

appropriate means to reduce emissions in accordance with section 183(e)

for products that are, by their nature, easily transported across area

boundaries, are widely distributed, and are used by widely varied types

of end users in widely varied locations. Examples of such products are

architectural coatings, consumer products (household and personal

care), and automobile refinish coatings. Therefore, for this and other

reasons, we promulgated national regulations for those three product

categories on September 11, 1998 (63 FR 48792).

In the case of wood furniture, aerospace, and shipbuilding and ship

repair coatings, we considered the fact that they are industrial

coatings which, by their nature, are typically used by specific end

users in specific locations. Furthermore, after purchasing these

industrial coatings, end users often modify them to meet the specific

needs of the industrial application. Because of the fixed location of

their use and the ability to identify and locate the end users for

compliance assurance and enforcement purposes, we concluded that

control of VOC emissions from these product categories is more

effectively accomplished through requirements imposed on the user

rather than on the coating manufacturer. Thus, a CTG is a better

mechanism to achieve VOC emission reductions for these categories of

products. We do not agree with the commenter's assertion that there is

no environmental benefit to reducing VOC emissions from solvents in

ozone attainment areas (see the September 11, 1998 Federal Register

documents referenced above for a discussion of EPA's position on this

issue).

Comment: One commenter stated that since section 183(e) authorizes

the imposition of national regulations on only the product

manufacturers, processors, wholesalers, distributors, or importers or

suppliers thereof, a national regulation could not reach the end-user

operations that generate VOC emissions. For this reason, the commenter

agreed that a CTG would be substantially as effective, if not more

effective, than a national regulation in reducing VOC emissions from

aerospace coatings. The commenter's reasons for this were:

--A CTG can affect equipment and work practice standards resulting in

additional VOC emission reductions,

[[Page 37780]]

such as those associated with the use of solvents in cleaning

operations; and

--A CTG can affect the coatings ``as applied'' which is the most

effective way to control VOC emissions from aerospace coatings since

users sometimes add VOC-containing solvents to the coatings before

application.

Response: The commenter's points are in agreement with our

conclusions regarding aerospace coatings. As noted in the response

above, the EPA believes that some products are better suited to

regulation through national regulations.

Comment: One commenter stated that Congress recognized that the

nature, distribution, and use of some products would make a CTG a more

effective control option and, therefore, specifically authorized EPA to

issue CTG in lieu of national regulations.

The commenter agreed with us that CTG are substantially as

effective as national regulations for the three categories under

discussion here. Specifically, the commenter stated that site specific

factors and the ability of end-users to control VOC emissions with

equipment and work practices support the selection of CTG in lieu of

regulations for these three categories.

Response: We agree with these statements regarding these products.

There are many sources of VOC emissions from industrial facilities,

only one of which is the actual use of commercial coating products.

Other steps in the overall process involve the use of VOC and result in

VOC emissions. Such steps include the cleaning of surfaces prior to

application of a coating, the mixing and amendment of coatings prior to

use, the cleaning of equipment and work spaces after coating use, and

the storage and transfer of VOC used in these operations.

C. Estimated Number of Affected Facilities

Comment: One commenter claimed that we failed to explain how the

difference in the number of facilities covered by CTG and national

regulations would affect emission reductions. Specifically, the

commenter noted that for wood furniture coatings, we estimated that

only 950 of the 4,500 facilities in nonattainment areas would be

covered by a CTG. The commenter also noted that we estimated a

shipbuilding and ship repair CTG would cover just 100 of the 187

facilities in nonattainment areas. Similarly, with regard to aerospace

coatings, the commenter noted that we estimated a CTG would cover only

64 percent of sources. In each case, the commenter questioned our

statements that sources not covered by the CTG would not use

significant amounts of the coatings. The commenter stated that we

failed to support our contention that facilities not covered by CTG

would not contribute significantly to VOC emissions.

Response: The commenter is correct that the two regulatory

approaches could potentially impact a different number of sources. We

do not agree, however, that we failed to explain this fact. As

discussed in the proposed determination, CTG affect ``major sources''

of VOC emissions by triggering requirements for State rules applicable

in nonattainment areas. Section 182 of the Act requires certain States

to adopt rules for major sources of VOC for which the EPA issues CTG.

Therefore, to estimate the number of sources in ozone nonattainment

areas potentially affected by a CTG, we assumed that minor sources

would not be subject to RACT and, thus, not be covered by the CTG. In

contrast, a regulation affecting the manufacturers, processors,

distributors, or importers of a product could potentially result in VOC

emission reductions at all facilities that use the product, regardless

of size. Therefore, we assumed that all facilities using the product in

ozone nonattainment areas would be affected by a national regulation.

We estimated the number of potentially affected facilities under

each regulatory option (Docket No. A-96-23). In doing so, we relied on

estimates of the number, size, and location of facilities from data

developed to support NESHAP and CTG for these categories. To determine

if facilities were ``major'' sources of VOC affected by the CTG, we

estimated VOC emissions based on both coating usage and other sources

of VOC emissions. We estimated that fewer wood furniture manufacturing

and shipbuilding and ship repair facilities would be covered by CTG

than by a national regulation because some facilities do not use enough

coatings to be major sources of VOC. We estimated that all aerospace

facilities are major sources of VOC and, therefore, that all such

facilities would be affected by either a CTG or a regulation.

To estimate the respective VOC emission reductions from a CTG or a

regulation, we assumed that the States would adopt and the entities

affected by each of these control strategies would comply with, the

recommended VOC limits and equipment and work practice standards

specified in the CTG or regulation. The estimated emission reductions

are described in Docket No. A-96-23.

Although fewer wood furniture facilities would be affected by a CTG

than a regulation, as described in the proposed determination and

docket, in ozone nonattainment areas we estimated that VOC reductions

per facility would be greater with a CTG and account for greater

overall VOC emission reductions compared to a national regulation.

Similarly, we estimated that the emission reductions for each aerospace

facility are greater with a CTG than a regulation, thereby resulting in

greater overall VOC emission reductions from a CTG. We estimated the

emission reductions for each shipbuilding and ship repair facility to

be comparable for either a CTG or a regulation. As noted above, a

national regulation can achieve emission reductions at all sources

whereas a CTG will achieve reductions at major sources in most

nonattainment areas. Therefore, we estimated greater potential emission

reductions from a regulation for this product category since more

shipbuilding facilities would be affected by a national regulation than

by a CTG. However, as indicated in the above response to ``Emission

Reductions Attributed to CTG,'' we were not able to quantify

completely, and therefore did not give full credit for, the estimated

amount of reductions from a CTG for shipbuilding and ship repair

coatings. The estimated VOC emission reductions from a CTG and a

national regulation were, however, comparable even without quantifying

and allocating the precise amount of projected VOC reductions from a

CTG.

As noted in the proposed determination, the numerical amount of

emission reductions is not the sole relevant factor in determining

whether a CTG will be substantially as effective as a regulation. We

believe that a CTG will be substantially as effective as a regulation

in reducing VOC emissions from each of these three categories based on

consideration of the following:

Estimates of VOC emission reductions.

The product's distribution and place of use.

The most effective entity to target in order to control

VOC emissions.

Consistency with other control strategies.

For each of these three categories we have considered these factors

as part of our analysis. With respect to the amounts of emission

reduction possible, we have concluded that the CTG will probably

provide more reductions than a regulation for wood furniture coatings

and aerospace coatings and will probably provide comparable reductions

for shipbuilding and ship repair coatings. We have also examined the

[[Page 37781]]

distribution and typical place of use for these products. Unlike other

categories of products such as personal care products, these coatings

tend to be used by a relatively small number of large commercial

facilities, rather than by a large number of small users. This pattern

of use and distribution makes it more feasible to focus upon VOC

emission control at the point of use rather than upon reformulation at

the place of manufacture. The EPA or States can thus more effectively

assure compliance and enforce VOC emission controls for these products

through a CTG than for some other product categories.

Finally, we do not contend that facilities excluded from coverage

under the CTG approach will not contribute to VOC emissions. We agree

that a CTG will not cover all sources and, therefore, that emissions

from unaffected sources will not be subject to control under rules

reflecting the CTG's presumptive RACT control level. We remain

concerned about these VOC emissions. In enacting section 183(e),

Congress recognized that even small amounts of emissions from a large

number of small sources can, in the aggregate, contribute significantly

to ozone nonattainment. The purpose of our regulatory program under

section 183(e) is to achieve meaningful aggregate VOC emission

reductions from the many sources reflected on the list of categories of

consumer and commercial products identified for regulation. However, we

must utilize the regulatory tools provided in the statute. As discussed

above, section 183(e) allows the EPA to promulgate national regulations

or to issue CTG for each product category. Under either approach, we

cannot prevent all VOC emissions. Instead, we must choose the method we

deem most appropriate to achieve necessary VOC reductions from each

product category. We have concluded for the reasons stated above that

CTG are the most effective mechanism to obtain VOC emission reductions

from the product categories covered by today's final determination and

that national regulations are the most effective mechanisms for some

other product categories. This should not suggest that we believe that

any remaining VOC emissions under either approach are not significant.

For purposes of today's final action the determination is which of the

two statutorily provided alternatives will best achieve necessary VOC

emission reductions for these three product categories.

III. What is our Final Action?

We have made our final decision to list wood furniture

manufacturing coatings, aerospace coatings, and shipbuilding and ship

repair coatings for regulation in the first group of consumer and

commercial product categories to be regulated under section 183(e) of

the Act. We have determined that CTG are substantially as effective as

regulations under section 183(e) of the Act in reducing VOC emissions

from wood furniture manufacturing, aerospace, and shipbuilding and ship

repair coatings which contribute to violations of the ozone NAAQS. We

based this determination on a comparison of existing CTG and projected

national regulations. For CTG, we utilized the final wood furniture

manufacturing CTG (61 FR 25223, May 20, 1996), the final aerospace CTG

(63 FR 15006, March 22, 1998), and the final shipbuilding and ship

repair CTG (61 FR 44050, August 27, 1996). For national regulations, we

estimated the level of control possible for each product category. As a

result of this comparison, we have concluded that CTG are substantially

as effective as national regulations to obtain reductions of VOC

emissions which contribute to ozone in areas which violate the ozone

NAAQS. Accordingly, we have determined that we may issue CTG in lieu of

national regulations for these three product categories.

IV. Administrative Requirements

A. Docket

The docket is an organized and complete file of all the information

submitted to or otherwise considered by the EPA in the development of

this proposed determination. The principal purposes of the docket are:

(1) to allow interested parties to identify and locate documents

readily so that they can intelligently and effectively participate in

the rulemaking process, and (2) to serve as the record in case of

judicial review (section 307(d)(7)(A) of the Act).

B. Paperwork Reduction Act

This action does not involve any information collection

requirements subject to an Office of Management and Budget (OMB) review

under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

C. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA

must determine whether regulatory actions are significant and,

therefore, subject to OMB review and the requirements of the Executive

Order. The Executive Order defines ``significant regulatory action'' as

one that is likely to lead to a rule that may:

(1) have an annual effect on the economy of $100 million or more,

or adversely and materially affect a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety in State, local, or tribal governments or communities;

(2) create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs, or the rights and obligation of recipients

thereof; or

(4) raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

Pursuant to the terms of Executive Order 12866, the EPA has

determined that this action is a ``significant regulatory action''

because it raises novel legal or policy issues arising out of legal

mandates. As such, the EPA submitted this action to OMB for review. Any

changes made in response to OMB suggestions or recommendations are

documented in the public record.

D. Executive Order 12875: Enhancing Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local,

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or unless EPA consults with those governments. If EPA

complies by consulting, Executive Order 12875 requires EPA to provide

to OMB a description of the extent of EPA's prior consultation with

representatives of affected State, local, and tribal governments, the

nature of their concerns, copies of any written communications from the

governments, and a statement supporting the need to issue the

regulation. In addition, Executive Order 12875 requires EPA to develop

an effective process permitting elected officials and other

representatives of State, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's action does not create a mandate on State, local, or tribal

governments. The action does not impose any new enforceable duties on

these entities. Accordingly, the

[[Page 37782]]

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

this action.

E. Regulatory Flexibility Act/Small Business Regulatory Enforcement

Fairness Act of 1996

The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601, et

seq.), as amended by the Small Business Regulatory Enforcement Fairness

Act (SBREFA) of 1996, requires the EPA to give special consideration to

the effect of Federal regulations on small entities and to consider

regulatory options that might mitigate any such impacts. The EPA is

required to prepare a regulatory flexibility analysis and coordinate

with small entity stakeholders if the EPA determines that a rule will

have a significant economic impact on a substantial number of small

entities. Small entities include small businesses, small not-for-profit

enterprises, and small government jurisdictions.

The EPA has determined that it is not necessary to prepare a

regulatory flexibility analysis in connection with today's action

because it does not impose any new requirements on small entities.

Today's action is a final listing decision and final determination that

already existing CTG are substantially as effective as regulations to

achieve VOC emission reductions. Because these CTG already exist and

those entities required to comply with these CTG are already obligated

to do so, today's decision imposes no new requirements on small

entities. The EPA has likewise determined that today's action will not

have a significant economic impact on a substantial number of small

entities within the meaning of the RFA because the final decision to

list these categories of products for regulation and the determination

that CTG are substantially as effective as national regulations in

reducing VOC emissions which contribute to ozone levels in areas which

violate the NAAQS for ozone will impose no new obligations on small

entities.

In addition, EPA notes that the determination that CTG are

substantially as effective as regulations for control of VOC emissions

from these product categories will not have an impact on small entities

as contemplated by the RFA. The EPA does not directly regulate any

small entities through issuance of CTG. Instead, EPA issues CTG to

provide States with guidelines on appropriate RACT-based rules to

obtain VOC emission reductions from the affected sources within certain

nonattainment areas. The EPA's issuance of a CTG does trigger an

obligation on the part of the States to issue State regulations, but

the States are not obligated to issue regulations identical to the

Agency's CTG. The CTG issued by the EPA include a presumptive norm to

guide States, but States may deviate from the CTG with a proper showing

to the Agency. Thus, States retain discretion in determining to what

degree to follow the CTG and in determining which sources would be

covered by the resulting State regulations.

F. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of UMRA, the EPA

must prepare a written statement, including cost-benefit analysis, for

proposed or final rules with ``Federal mandates'' that may result in

estimated costs to State, local, or tribal governments in the

aggregate, or to the private sector, of $100 million or more in any one

year. Before promulgating an EPA rule for which a written statement is

needed, section 205 of the UMRA generally requires the EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective, or least burdensome alternative

that achieves the objectives of the rule. The provisions of section 205

do not apply when they are inconsistent with applicable law. Moreover,

section 205 allows the EPA to adopt an alternative other than the least

costly, most cost-effective, or least burdensome alternative if the

Administrator publishes with the final rule an explanation why the EPA

did not adopt the alternative. Before the EPA establishes any

regulatory requirements that may significantly or uniquely affect small

governments, including tribal governments, it must have developed under

section 203 of UMRA a small government agency plan. The plan must

provide for notifying potentially affected small governments, enabling

officials of affected small governments to have meaningful and timely

input in the development of EPA regulatory proposals with significant

Federal intergovernmental mandates, and informing, educating, and

advising small governments on compliance with the regulatory

requirements.

The EPA has determined that because the final listing action and

final determination that CTG are substantially as effective as

regulations impose no requirements, today's action does not contain a

Federal mandate that may result in expenditures of $100 million or more

for State, local, and tribal governments, in the aggregate, or the

private sector in any one year. In addition, EPA has determined that

today's action does not include regulatory requirements that would

significantly or uniquely affect small governments. Thus, today's

action is not subject to the requirements of sections 202, 203, and 205

of UMRA.

G. Submission to Congress and the General Accounting Office

The Congressional Review Act, 5 U.S.C. 801, et seq., as added by

the SBREFA of 1996, generally provides that before a rule may take

effect, the agency promulgating the rule must submit a rule report,

which includes a copy of the rule, to each House of the Congress and to

the Comptroller General of the United States. The EPA will submit a

report containing this rule and other required information to the

United States Senate, the United States House of Representatives, and

the Comptroller General of the United States prior to publication of

the rule in the Federal Register. A major rule cannot take effect until

60 days after it is published in the Federal Register. This action is

not a ``major rule'' as defined by 5 U.S.C. Sec. 804(2). This rule will

be effective July 13, 1999.

H. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement

Act (NTTAA) of 1995, Pub. L. 104-113, Section 12(d) (15 U.S.C. 272

note), directs the EPA to use voluntary consensus standards in its

regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., materials specifications, test methods,

sampling procedures, business practices, etc.) that are developed or

adopted by voluntary consensus standard bodies. The NTTAA requires the

EPA to provide Congress, through OMB, explanations when the EPA decides

not to use available and applicable voluntary consensus standards.

This action does not involve any technical standards that would

require EPA consideration of voluntary consensus standards pursuant to

Sec. 12(d) of the NTTAA. This action does not establish any such

standards.

[[Page 37783]]

I. Executive Order 13045: Protection of Children from Environmental

Health Risks and Safety Risks

Executive Order 13045, ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies

to any rule that: (1) is determined to be ``economically significant''

as defined under Executive Order 12866, and (2) concerns an

environmental health or safety risk that EPA has reason to believe may

have a disproportionate effect on children. If the regulatory action

meets both criteria, the EPA must evaluate the environmental health or

safety effects of the planned rule on children and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the EPA.

The EPA interprets Executive Order 13045 as applying only to those

regulatory actions that are based on health or safety risks, such that

the analysis required under section 5-501 of the Executive Order has

the potential to influence the regulation. This action is not subject

to Executive Order 13045 because it is not an ``Economically

Significant'' rule as defined under Executive Order 12866 and because

it is based on technology performance and not on health or safety

risks.

J. Executive Order 13084: Consultation and Coordination with Indian

Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to OMB, in a separately identified section of

the preamble to the rule, a description of the extent of EPA's prior

consultation with representatives of affected tribal governments, a

summary of the nature of their concerns, and a statement supporting the

need to issue the regulation. In addition, Executive Order 13084

requires EPA to develop an effective process permitting elected

officials and other representatives of Indian tribal governments ``to

provide meaningful and timely input in the development of regulatory

policies on matters that significantly or uniquely affect their

communities.''

Today's action does not significantly or uniquely affect the

communities of Indian tribal governments. Today's action does not

impose any new requirements. Accordingly, the requirements of section

3(b) of Executive Order 13084 do not apply to this action.

Dated: July 1, 1999.

Carol M. Browner,

Administrator.

[FR Doc. 99-17493 Filed 7-12-99; 8:45 am]

BILLING CODE 6560-50-P