[Federal Register Volume 70, Number 176 (Tuesday, September 13, 2005)]
[Rules and Regulations]
[Pages 53930-53935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18016]
[[Page 53930]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[OAR-2003-0200; FRL-7966-2]
RIN 2060-AM98
Revisions to the California State Implementation Plan and
Revision to the Definition of Volatile Organic Compounds (VOC)--Removal
of VOC Exemptions for California's Aerosol Coating Products Reactivity-
based Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is finalizing approval of a new consumer products
regulation as part of the California State Implementation Plan (SIP)
for ozone under the Clean Air Act (CAA) as amended in 1990. This
California regulation adopts a new approach to reducing ozone formation
from volatile organic compounds (VOC) in aerosol coating products. The
EPA is also approving the use of California's Tables of Maximum
Incremental Reactivity (MIR) to allow implementation of their rule.
This action also revises EPA's definition of VOCs so that compounds
which we previously identified as negligibly reactive and exempt from
EPA's regulatory definition of VOCs now count towards a product's
reactivity-based VOC limit for the purpose of California's aerosol
coatings regulation. These revisions were previously proposed in the
Federal Register on January 7, 2005 (70 FR 1640) and are expected to
help in California's efforts to attain the National Ambient Air Quality
Standards (NAAQS) for ozone.
DATES: This final rule is effective on October 13, 2005.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. OAR-2003-0200. All documents in the docket are listed in
the EDOCKET index at http://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in EDOCKET or in hard copy at the
Revisions to the California State Implementation Plan Docket, Docket ID
No. OAR-2003-0200, EPA/DC, EPA West, Room B102, 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: Stanley Tong, Rulemaking Office, (AIR-
4), Environmental Protection Agency, Region IX, 75 Hawthorne St., San
Francisco, CA 94105; telephone number: (415) 947-4122; fax number:
(415) 947-3579; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
This action applies to persons that sell, supply, offer for sale,
apply, or manufacture for use in California, any aerosol coating,
aerosol clear coating and aerosol stain product subject to the limits
in California's Aerosol Coating Products regulation. The regulation
prohibits the commercial application of non-complying aerosol coating
products.
B. Throughout This Document, ``We,'' ``Us'' and ``Our'' Refer to EPA
C. Submitted Regulations
On January 7, 2005 (70 FR 1640), EPA proposed to approve the
following regulations into the California SIP.
Table 1.--Submitted Regulations
------------------------------------------------------------------------
Regulation title Adopted Submitted
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Aerosol Coating Products...................... 5/1/2001 3/13/2002
Tables of Maximum Incremental Reactivities 5/1/2001 3/13/2002
(MIR) Values.................................
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We proposed to approve these regulations because we determined that
they complied with the relevant CAA requirements. We also proposed to
change our definition of VOCs so that compounds which we previously
identified as negligibly reactive and exempt from EPA's regulatory
definition of VOCs will now count towards a product's reactivity-based
VOC limit for the purpose of California's aerosol coatings regulation.
The January 7, 2005 proposed action contains more information on the
California Air Resources Board's (CARB's) regulations and our
evaluation.
D. Outline
The information in this preamble is organized as follows:
I. Background Information
A. What is Photochemical Reactivity?
B. What Does CARB's Regulation Do?
II. Response to Major Comments
A. Comments Supporting the Proposed Approval
B. Response to Questions Posed by EPA in the Proposal
C. Comments Asking EPA to Update and Expand its Reactivity
Policy
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background Information
A. What Is Photochemical Reactivity?
There are thousands of individual species of VOC chemicals that can
combine with nitrogen oxides (NOX) and the energy from
sunlight to form ozone. The impact of a given VOC on formation of
ground-level ozone is sometimes referred to as its ``reactivity.'' It
is generally understood that not all VOCs are equal in their effects on
ground-level ozone formation. Some VOCs react extremely slowly and
changes in their emissions have limited effects on ozone pollution
episodes. Some VOCs form ozone more quickly, or they may form more
ozone than other VOCs. Others not only form ozone themselves, but also
enhance ozone formation from other VOCs. By distinguishing between more
reactive and less reactive VOCs, however, it should be possible to
decrease ozone concentrations further or more efficiently than by
controlling all VOCs equally.
Assigning a value to the reactivity of a compound is a complex
undertaking. Reactivity is not simply a property of the compound
itself; it is a property of both the compound and the environment in
which the compound is found. The reactivity of a single compound varies
with VOC-NOX ratios, meteorological conditions, the mix of
other VOCs in the atmosphere, and the time interval of interest.
Designing an effective regulation that takes account of these
interactions is difficult, and implementing and enforcing such a
regulation carries the extra burden of characterizing and tracking the
full chemical composition of VOC emissions. The January 7, 2005
proposal (70 FR 1640) contains additional background information on
photochemical reactivity. Recently, EPA has issued guidance to States
regarding the use of VOC reactivity information in the development of
ozone control measures. This guidance is published elsewhere in today's
Federal Register.
[[Page 53931]]
B. What Does CARB's Regulation Do?
The CARB has been exploring the use of reactivity-based regulations
since the early 1990s as a means of achieving further ozone reductions.
For example, in 1991, the CARB incorporated a reactivity scale for
weighting vehicle emissions of individual VOC species in their low
emitting vehicle and clean fuels regulation. In 2001, the CARB adopted
an aerosol coatings regulation \1\ that set reactivity-based VOC limits
for six general coating categories and 29 speciality coating
categories. The reactivity-based limits for the general coatings took
effect on June 1, 2002 and the limits for the speciality coatings took
effect on January 1, 2003. The CARB had previously controlled VOC
emissions from aerosol coatings in California by limiting the mass of
VOCs in the product, with limits expressed as maximum allowable percent
of mass of VOC. The CARB's new approach incorporates the concept of VOC
photochemical reactivity. This concept relies on the fact that the same
weight/amount of some VOCs (e.g., xylene) has the potential to form
more ozone, or to form ozone more quickly, than the same weight/amount
of other VOCs (e.g., propane) once they are emitted into the ambient
air under the same conditions. The EPA's action to approve CARB's
regulation into the SIP enables CARB to include the ozone reductions
achieved by their aerosol coatings regulation into their State SIP
plan.
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\1\ http:www.arb.ca.gov/colsprod/reg/apt.pdf or Title 17,
California Code of Regulations, Division 3, Chapter 1, Subchapter
8.5, Article 3.
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The CARB's aerosol coatings regulation applies to aerosol coatings,
aerosol clear coatings and aerosol stains. It applies to any person who
sells, supplies, offers for sale, applies or manufactures for use in
California any aerosol coating subject to the limits in the regulation.
The regulation prohibits the commercial application of non-complying
aerosol coating products.
All aerosol coating products covered by the CARB's regulation were
required to meet the new reactivity-based limits by January 1, 2003.
The regulation contains a sell-through provision whereby products
manufactured prior to the effective date of the regulation could be
sold, supplied, offered for sale, or applied up to 3 years after that
date.
The CARB believes that some VOC mass-based limits in the previous
version of their rule presented particularly difficult reformulation
challenges for manufacturers of water-based coatings, and the State
concluded that it may not be feasible to achieve additional VOC
reductions from a traditional VOC mass-based program. The CARB hopes to
target VOC emissions reductions to better control a product's
contribution to ozone formation by encouraging reductions of higher
reactivity VOCs, rather than by treating all VOCs in a product alike
through a mass-based rule. The submitted regulation, therefore,
consists of reactivity-based limits that replace the existing mass-
based VOC limits for aerosol spray coatings.
To discriminate among VOCs, the CARB has used a version of the MIR
scale (W. P. L. Carter, ``Development of Ozone Reactivity Scales for
Volatile Organic Compounds,'' Journal of the Air and Waste Management
Association, 44, p.881-899, July 1994.) The MIR scale is designed using
certain assumptions about meteorological and environmental conditions
where ozone production is most sensitive to changes in hydrocarbon
emissions and, therefore, is intended to represent conditions where VOC
emission controls will be most effective. The MIR scale is expressed as
grams of ozone formed per gram of organic compound reacted. Each
compound is assigned an individual MIR value, which enables the
reactivities of different compounds to be compared quantitatively.
Individual MIR values now exist for many commonly used compounds, and a
list of these individual values comprises a scale. Today's action
approves into the SIP, the CARB's reactivity-weighted emission limits
and the associated MIR scale.
The EPA believes that reactivity-based approaches such as the one
developed by the CARB can be more efficient and effective than
traditional approaches that do not distinguish among VOCs based on
reactivity. In particular, reactivity-based approaches may be useful in
areas where significant VOC emission controls are already in place and
further mass-based emissions reductions may be difficult or very
expensive to achieve. In such situations, regulations that distinguish
between individual VOCs and create an incentive to shift production and
use from more reactive VOCs to less reactive VOCs may provide the
flexibility necessary to continue progress towards attainment of the
ozone NAAQS.
To support the CARB's aerosol coating reactivity-based program, EPA
is modifying our regulatory definition of VOC under 40 CFR 51.100(s) so
that compounds previously excluded from the definition of VOC will now
be counted towards a product's reactivity-based VOC limit for the
limited purpose of the CARB's regulation.
II. Response to Major Comments
In our proposal to approve the CARB's aerosol coatings reactivity-
based regulation and associated MIR tables into the SIP, and to change
our definition of VOC, EPA indicated that interested parties could
request that EPA hold a public hearing on the proposed action. The EPA
received no requests for a public hearing.
The EPA also provided for a 60-day public comment period in the
proposal. We received six comment letters. One letter was submitted
from a regulatory agency and five letters were submitted from industry
and trade associations. The major comments fell into 3 categories: (1)
Comments supporting the proposed approval, (2) Response to questions
posed by EPA in the proposal, and (3) Comments asking EPA to update and
expand its reactivity policy. All comment letters are contained in the
docket (OAR-2003-0200) for this action. In today's final action, we
have summarized the significant comments and provided the Agency's
responses.
A. Comments Supporting the Proposed Approval
Comment: All six comment letters supported the approval of the
CARB's reactivity-based regulation into the SIP.
One commenter (84-1-2) stated that reactivity-based regulations for
consumer products, where technologically feasible, were a more
effective form of regulation. Another commenter (87-2-4) stated the
approval provided the aerosol coatings industry with a relatively
stable and reliable regulatory arena at least in the State of
California and further indicated (87-2-5) that the CARB had already
taken steps to make sure the reactivity-based regulatory program
remained enforceable and scientifically accurate by updating the MIR
tables in December 2003.
Response: This final rulemaking approves the CARB's aerosol
coatings reactivity-based regulation into the SIP.
B. Response to Questions Posed by EPA in the Proposal
The EPA requested comments on the following areas in the proposed
rule: how reactivity-based programs might affect industry compliance
(e.g., compliance testing) and recordkeeping costs; and how industry
and regulatory agency costs and staff requirements might change with
respect to detailed emission inventories, manufacturing or material
costs, product quality and price.
Comment: Two commenters (82-2-1) and (85-3-4) stated the MIR
concept
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allows formulators greater flexibility and cost effectiveness in
meeting regulatory requirements, and that the simplicity of determining
MIR values for hydrocarbon solvents creates the incentive for the
substitution and use of solvents with relatively low contribution to
ozone formation in aerosol coating applications.
One commenter (85-2-5) stated that reactivity-based regulations in
general do not present significant or insurmountable problems regarding
enforceability. This commenter stated that while calculating a product
weighted average MIR is arithmetically slightly more complex than
simply adding up the percent of each ingredient classified as a VOC,
this slight increase in complexity does not deter enforceability
determinations, which were primarily based on the product formulations.
The commenter (85-3-3) further stated that there was nothing
inherent in reactivity-based regulations that should unreasonably
increase industry costs and that in both mass-based and reactivity-
based cases, industry needed to keep records and the most significant
costs were in the research and development process to develop and
assess new product formulation technologies.
Another commenter (87-3-1) stated that quantifying compliance and
recordkeeping costs relative to the implementation of a regulation was
a difficult task for large, medium and small members of the industry
and there were significant obstacles to gathering this type of
information. Consequently, they stated they were unable to respond with
any accurate data at this time without further clarification on the
exact level of data needs.
Response: From the industry and trade associations responses, EPA
concludes that in general, industry compliance and recordkeeping costs
are not expected to be significantly different between mass-based and
reactivity-based regulations and that generally, expenditures for
formulation and research and development efforts exceed expenditures
for compliance determination.
The EPA's concern in posing this question was whether reactivity-
based programs resulted in a significant increase in compliance
determination costs. This does not appear to be the case for industry,
however, we are unsure of the potential impact on regulatory agencies
since we did not receive any replies from regulatory agencies on this
question. We believe that because reactivity-based programs rely on
identifying and quantifying all the individual VOC ingredients in a
coating to determine compliance, it appears reasonable to conclude that
they can be more complex and costly than the traditional ``bake and
weigh'' method employed in EPA Method 24 to determine compliance with a
mass-based VOC limit. We recognize that some regulatory agencies such
as the CARB have extensive laboratory capabilities and capable staff to
conduct the required analysis using gas chromatography, however other
States and local regulatory agencies may not have these capabilities
and may need to investigate acquiring these resources and skills before
developing their own reactivity-based regulations to ensure their
programs are enforceable and have the opportunity to succeed.
C. Comments Asking EPA To Update and Expand Its Reactivity Policy
Comment: One commenter (83-3-2) believed EPA should encourage other
States to evaluate opportunities to incorporate reactivity-based
approaches into their VOC emissions and ozone control regulatory
programs, and should not limit the use of photochemical reactivity to
situations where further mass-based limits are difficult to achieve.
The commenter further urged EPA to state clearly that the technical
support provided by California would not necessarily represent what
would be required in each case to support a reactivity-based approach.
Another commenter (85-2-4) stated that scientific studies provide a
clear picture that both VOC mass and reactivity should be considered in
ozone control strategies. This commenter also indicated that while
reactivity reductions may not be appropriate for many consumer products
or some other sources of VOC emissions, for some sources, reactivity
reductions will represent the most cost-effective way to reduce ozone
formation. The commenter (85-3-5) further stated that EPA should update
and broaden its policies regarding reactivity and ozone attainment and
(85-4-1) urged EPA to initiate a scientific-based policy review of its
ozone attainment strategies to assure that the latest scientific
studies are incorporated to encourage the most effective, and cost-
effective control strategies.
Another commenter (87-3-2) stated that it was important that the
Federal agency charged with stewardship over environmental issues be
receptive to reactivity-based regulations. They further stated that
many of the consumer products that could be addressed in this
rulemaking have been regulated several times already and that further
efforts to lower the mass-based VOC limits could be impossible without
seriously altering the performance characteristics of the product or
eliminating it from the marketplace altogether.
Response: Recently, EPA has issued interim guidance to States,
which is published elsewhere in today's Federal Register encouraging
them to consider recent scientific information on VOC reactivity in the
development of ozone control measures. This interim guidance summarizes
recent scientific findings, provides examples of innovative
applications of reactivity information in the development of VOC
control measures, and clarifies the relationship between innovative
reactivity-based policies and EPA's current definition of VOC at 40 CFR
51.100(s). The EPA will continue to work with the CARB and other
interested parties through the Reactivity Research Working Group (RRWG)
(http://www.cgenv.com/Narsto/reactinfo.html) to improve the scientific
foundation of VOC reactivity-based regulations. The EPA will update its
guidance to States as new information becomes available.
III. Final Action
By this final rulemaking, EPA is approving: the CARB's aerosol
coatings reactivity-based regulation and associated MIR tables into the
SIP; the use of the CARB Method 310 to determine compliance with the
CARB's reactivity-based regulation, granting SIP credit for the
equivalent mass-based reductions achieved by the CARB's regulation, and
modifying our regulatory definition of VOC at 40 CFR 51.100(s) to
support the CARB's regulation.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735; October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to the Office of Management and Budget (OMB)
review and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
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(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 obligations 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.
For the change in definition of VOCs, EPA has determined that this
final rulemaking is not a ``significant regulatory action'' under the
terms of Executive Order 12866 and is therefore not subject to the OMB
review. For the approval of the CARB's rule into the SIP, the OMB has
exempted this regulatory action from Executive Order 12866 review.
B. Paperwork Reduction Act
For the change in the definition of VOCs, this action does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The change in the
definition of VOCs only reinstates, for the purposes of determining
compliance with California's aerosol coatings rule, compounds which
were previously exempted from the definition of VOC. The change in the
definition of VOCs does not impose any information collection
requirements.
For the approval of the CARB's regulation into the SIP, this final
rulemaking does not contain any information collection requirements
that would require any person to provide information to EPA, however
the CARB's regulation contain requirements for the aerosol coating
industry to provide information to the CARB.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act (RFA)
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with this final rule.
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 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 final rule on
small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
This final action will not impose any requirements on small entities.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements but simply act on requirements that
the State is already imposing.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local, and Tribal governments, in
the aggregate, or the private sector, of $100 million or more in any 1
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of 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.
For the change in the definition of VOCs, today's rulemaking
contains no Federal mandates (under the regulatory provisions of title
II of the UMRA) for State, local, or Tribal governments or the private
sector.
For the approval of the CARB's regulation into the SIP, EPA has
determined that the approval action does not include a Federal mandate
that may result in estimated costs of $100 million or more to either
State, local, or Tribal governments in the aggregate, or to the private
sector. This Federal action approves pre-existing requirements under
State or local law, and imposes no new requirements. Accordingly, no
additional costs to State, local, or Tribal governments, or to the
private sector, result from this action.
Thus, today's rule is not subject to the requirements of sections
202 and 205 of the UMRA.
In addition, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments in accordance with section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 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
Executive Order 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 rulemaking does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national
[[Page 53934]]
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. Today's final rulemaking does not impose any
new mandates on State or local governments. The change to the
definition of VOCs merely assists the CARB in implementing its aerosol
coatings reactivity regulation. The approval of this regulation into
the SIP acts on a State regulation implementing a Federal standard, and
does not alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, Executive Order 13132
does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
Tribal implications, as specified in Executive Order 13175. The change
to the definition of VOCs merely assists the CARB in implementing its
aerosol coatings reactivity regulation and does not impose any direct
compliance costs. The approval of the CARB's regulation into the SIP
acts on a State regulation and does not alter the relationship between
the Federal government and Indian Tribes, as specified in Executive
Order 13175. Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under 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 Agency 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 Agency.
While this final action is not subject to the Executive Order
because it is not economically significant as defined in Executive
Order 12866, we have reason to believe that ozone has a
disproportionate effect on active children who play outdoors. (See 62
FR 38856 and 38859; July 18, 1997). However, we do not expect today's
approval of the CARB's regulation into the SIP to result in an adverse
impact, as it is intended to at least achieve the same ozone reductions
as the mass-based limits they supplant. Also, we do not expect today's
change to the definition of VOC to result in any adverse impact,
because it increases the number of compounds subject to regulation as
VOCs for the purpose of California's aerosol coatings reactivity-based
regulation.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
No. 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. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
For the change in definition of VOCs, this final rulemaking does
not involve technical standards. Therefore, EPA did not consider the
use of any voluntary consensus standards. For the approval of the
CARB's regulation into the SIP, the State regulation references
standard test methods and makes modifications to methods adopted by the
American Society for Testing and Materials (ASTM) D3074-94, D3063-94,
and D2879-97 to support the regulatory objectives. These ASTM methods
can be obtained through the ASTM Web site at: http://www.astm.org.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing 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 30 days after publication in the
Federal Register.
K. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 14, 2005. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. [See section 307(b)(2)].
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compound.
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Reporting and recordkeeping requirements, Volatile
organic compound.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 2, 2005.
Stephen L. Johnson,
Administrator.
0
Parts 51 and 52, Chapter I, title 40 of the Code of Federal Regulations
are amended as follows:
[[Page 53935]]
PART 51--[AMENDED]
0
1. The authority citation for Part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
0
2. Section 51.100 is amended by adding paragraph (s)(6) to read as
follows:
Sec. 51.100 Definitions.
* * * * *
(s) * * *
(6) For the purposes of determining compliance with California's
aerosol coatings reactivity-based regulation, (as described in the
California Code of Regulations, Title 17, Division 3, Chapter 1,
Subchapter 8.5, Article 3), any organic compound in the volatile
portion of an aerosol coating is counted towards that product's
reactivity-based limit. Therefore, the compounds identified in
paragraph (s) of this section as negligibly reactive and excluded from
EPA's definition of VOCs are to be counted towards a product's
reactivity limit for the purposes of determining compliance with
California's aerosol coatings reactivity-based regulation.
* * * * *
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--California
0
2. Section 52.220 is amended by adding paragraph (c)(338) to read as
follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(338) New and amended regulations for the following agency were
submitted on March 13, 2002, by the Governor's designee.
(i) Incorporation by reference.
(A) California Air Resources Board.
(1) California Code of Regulations, Title 17, Division 3, Chapter
1, Subchapter 8.5, Consumer Products, Article 3, Aerosol Coating
Products, Sections 94520 to 94528, and Subchapter 8.6, Maximum
Incremental Reactivity, Article 1, Tables of Maximum Incremental
Reactivity (MIR) Values, Sections 94700 to 94701, both adopted on May
1, 2001.
* * * * *
[FR Doc. 05-18016 Filed 9-12-05; 8:45 am]
BILLING CODE 6560-50-P