National Volatile Organic Compound Emission Standards for Aerosol Coatings, 29595-29607 [E9-14580]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 74, Number 119 (Tuesday, June 23, 2009)]
[Rules and Regulations]
[Pages 29595-29607]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-14580]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 59

[EPA-HQ-OAR-2006-0971; FRL-8920-7]
RIN 2060-AP33


National Volatile Organic Compound Emission Standards for Aerosol 
Coatings

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: This action amends the National Volatile Organic Compound 
Emission Standards for Aerosol Coatings (aerosol coatings reactivity 
rule), which establishes national reactivity-based emission standards 
for the aerosol coatings category (aerosol spray paints) under section 
183(e) of the Clean Air Act. These amendments add compounds and 
associated reactivity factors to Table 2--Reactivity Factors based on 
petitions EPA received from regulated entities, and clarify which 
volatile organic compounds are to be quantified in compliance 
determinations. Additionally, this final rule makes certain changes 
related to the notice required for a company to certify that it will 
assume the responsibility for compliance with recordkeeping and 
reporting requirements for a regulated entity, and it also addresses 
which party is liable following such a certification. Further, in this 
action we make minor revisions and corrections to the aerosol coatings 
reactivity rule. Finally, in this action we are extending the deadline 
for submitting the initial notifications required in one section of the 
aerosol coatings regulations for 30 days, until July 31, 2009.

DATES: Effective Date: This final rule is effective on June 23, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2006-0971. All documents in the docket are listed on the 
https://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information 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 through https://www.regulations.gov or in hard copy at 
the EPA Docket Center, Docket ID No. EPA-HQ-OAR-2006-0971, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Docket 
ID No. EPA-HQ-OAR-2006-0971 is (202) 566-9744.

FOR FURTHER INFORMATION CONTACT: For information concerning the aerosol 
coatings reactivity rule, contact Ms. J. Kaye Whitfield, U.S. EPA, 
Office of Air Quality Planning and Standards, Sector Policies and 
Programs Division, Natural Resources and Commerce Group (E143-03), 
Research Triangle Park, North Carolina 27711, telephone number: (919) 
541-2509, facsimile number (919) 541-3470, e-mail address: 
whitfield.kaye@epa.gov. For information concerning the Clean Air Act 
(CAA) section 183(e) Consumer and Commercial Products Program, contact 
Mr. Bruce Moore, U.S. EPA, Office of Air Quality Planning and 
Standards, Sector Policies and Programs Division, Natural Resources and 
Commerce Group (E143-03), Research Triangle Park, North Carolina 27711, 
telephone number: (919) 541-5460, facsimile number (919) 541-3470, e-
mail address: moore.bruce@epa.gov.

SUPPLEMENTARY INFORMATION:

[[Page 29596]]

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

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

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. To determine whether you would be affected by this action, you 
should examine the applicable industry description in section I.E of 
the promulgation preamble, published at 73 FR 15604 (March 24, 2008). 
If you have any questions regarding the applicability of this action to 
a particular entity, consult the appropriate EPA contact listed in the 
FOR FURTHER INFORMATION CONTACT section of this notice.
    Docket. The docket number for the National Volatile Organic 
Compound Emission Standards for Aerosol Coatings (40 CFR parts 59 and 
51, subpart E) is Docket ID No. EPA-HQ-OAR-2006-0971.
    World Wide Web (WWW). In addition to being available in the docket, 
an electronic copy of this action will also be available on the WWW 
through the Technology Transfer Network (TTN). Following signature, a 
copy of the action will be posted on the TTN's policy and guidance page 
for newly proposed or promulgated rules at the following address: 
https://www.epa.gov/ttn/oarpg/. The TTN provides information and 
technology exchange in various areas of air pollution control.
    Judicial Review. Under section 307(b)(1) of the CAA, judicial 
review of the final rule is available only by filing a petition for 
review in the U.S. Court of Appeals for the District of Columbia 
Circuit by August 24, 2009. Under CAA section 307(b)(2), the 
requirements established by this final action may not be challenged 
separately in any civil or criminal proceedings brought by EPA to 
enforce these requirements.
    Section 307(d)(7)(B) of the CAA further provides that ``only an 
objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review.'' This section also 
provides a mechanism for EPA to convene a proceeding for 
reconsideration, ``if the person raising the objection can demonstrate 
to EPA that it was impracticable to raise such an objection [within the 
period for public comment] or if the grounds for such objection arose 
after the period for public comment (but within the time specified for 
judicial review) and if such objection is of central relevance to the 
outcome of the rule.'' Any person seeking to make such a demonstration 
to EPA should submit a Petition for Reconsideration to the Office of 
the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the 
person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT 
section, and the Air and Radiation Law Office, Office of General 
Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., 
Washington, DC 20004.
    Organization of This Document. The information presented in this 
action is organized as follows:

I. Background
II. Summary of the Final Standards and Changes Since Proposal
    A. Amendments to Tables 2A, 2B, and 2C--Reactivity Factors
    B. Clarification to Part 59, Subpart E
    C. The Certification Process for the Assumption of Recordkeeping 
and Reporting Obligations
    D. Liability Following Sec.  59.511(g) Certification
    E. Other Revisions
    F. Extension of Deadline for Initial Notifications and Finding 
and Statement of Good Cause
    G. Basis for Making This Rule Effective on the Date of 
Publication
III. Response to Significant Comments
    A. Table 2 to Subpart E of Part 59--Reactivity Factors
    B. Assumption of Responsibility for Recordkeeping and Reporting
    C. Form of the Sec.  59.511(g) Notice
    D. Liability Following Sec.  59.511(g) Certification
    E. Other
IV. Summary of Impacts
    A. Environmental Impacts
    B. Energy Impacts
    C. Cost and Economic Impacts
    V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Background

    On March 24, 2008, EPA published national emission standards for 
aerosol spray paints under section 183(e) of the CAA (73 FR 15604, 
which are codified in the Code of Federal Regulations (CFR) at 40 CFR 
part 59, subpart E (sections 59.500-59.516)). Section 183(e) of the CAA 
requires the control of volatile organic compounds (VOC) emissions from 
certain categories of consumer and commercial products for purposes of 
reducing VOC emissions contributing to ozone formation and 
nonattainment of the ozone national ambient air quality standards. 
States have previously promulgated rules for aerosol spray paints based 
upon

[[Page 29597]]

reductions of VOC by mass and by relative reactivity. EPA concluded 
that a national rule based upon the relative reactivity approach 
achieves more reduction in ozone formation than may be achieved by a 
mass-based approach for this specific product category. The final 
aerosol coatings rule revised EPA's regulatory definition of VOC to 
include certain compounds that would otherwise be exempt, in order to 
account for all reactive compounds in aerosol coatings that contribute 
to ozone formation. Therefore, certain compounds that would not be VOC 
under the otherwise applicable definition count towards the applicable 
reactivity limits under the aerosol coatings regulation.
    Originally, the compliance date for the action, as established in 
the rule (73 FR 15604), was January 1, 2009. Regulated entities were 
required to submit initial notification 90 days in advance of the 
compliance date; in this case, initial notifications were due on 
October 1, 2008.
    Subsequently, on December 24, 2008, EPA published amendments (73 FR 
78994) to the rule to move the applicability and initial compliance 
dates for aerosol coatings from January 1, 2009, to July 1, 2009, and 
make initial notifications due on the compliance date, as opposed to 90 
days in advance of the compliance date. These changes were necessary to 
(1) allow EPA time to conduct this rulemaking, and add compounds (and 
their associated reactivity factors) that are currently used in aerosol 
coatings, but were not included in Tables 2A, 2B, or 2C; and (2) allow 
regulated entities sufficient time to develop initial notifications 
based on the revised tables.
    The rule (73 FR 15604) also has a provision in Sec.  59.511(j) that 
allows regulated entities to petition EPA to add compounds to Tables 
2A, 2B, and 2C--Reactivity Factors of subpart E, 40 CFR part 59. One of 
this final action's objectives is to address petitions filed under this 
provision.

II. Summary of the Final Amendments and Changes Since Proposal

A. Amendments to Table 2A to Subpart E of Part 59--Reactivity Factors

    In this action, EPA is finalizing the addition of 128 compounds and 
their reactivity factors to Table 2A in response to petitions received 
in accordance with Sec.  59.511(j) of the rule. EPA also is adding 
Chemical Abstract Service (CAS) numbers for each compound or class of 
compounds listed in Table 2A to make it easier for regulated entities 
to find a specific chemical. In Table 2A of the proposed rule (72 FR 
38951), EPA did not list CAS numbers for two entries: ``C8 
Disubstituted Benzenes'' and ``C9 Styrenes.'' In this final rule, in 
response to inquiries from affected entities, EPA has added CAS numbers 
for these entries and listed chemical synonyms for selected entries. 
The reactivity factors for these compounds have not been changed. The 
final Table 2A lists ``C8 Disubstituted Benzenes (xylenes, mixed 
isomers)'' with CAS 1330-20-7 and RF 7.48, and ``C9 styrenes (vinyl 
toluene, mixed isomers)'' with CAS 25013-15-4 and RF 1.72. The final 
Table 2A is sorted in order of CAS number.

B. Clarification to Part 59, Subpart E

    In the aerosol coatings reactivity rule, we amended the definition 
of VOC in 40 CFR 51.100(s) for the purposes of determining compliance 
with the regulation (as described in 40 CFR part 59--National Volatile 
Organic Compound Emission Standards for Consumer and Commercial 
Products) so that any organic compound in the volatile portion of an 
aerosol coatings is counted towards the product's reactivity-based 
limit. However, the text of Sec.  51.100(s)(7) adopted in the March 24, 
2008, rule was not clear that compounds listed in both Sec. Sec.  
51.100(s)(1) and 51.100(s)(5) were to be counted as VOC for determining 
compliance. In this final action, we are changing the previously 
amended definition of VOC in part 51 to clarify that compounds that are 
excluded from the definition of VOC under both 40 CFR 51.100(s)(1) and 
(s)(5) are to be counted as VOC for the purposes of determining 
compliance with the aerosol coatings reactivity rule in 40 CFR part 59, 
subpart E.

C. The Certification Process for the Assumption of Recordkeeping and 
Reporting Obligations

    As provided in Sec. Sec.  59.501(b)(4), 59.510(b) and 59.511(g), a 
manufacturer, importer or distributor may choose to certify that it 
will assume the responsibility of maintaining records and submitting 
reports required under this subpart for a regulated entity. To assume 
that responsibility, the entity making the certification submits a 
document as described in Sec.  59.511(g). In this action, EPA will 
finalize the following amendments to Sec.  59.511(g):
    EPA is amending Sec.  59.511(g) to call the certification document 
a ``notice'' rather than a ``report.'' EPA is finalizing this change 
because it believes that the word ``notice'' is a more accurate word to 
describe the document.
    EPA is finalizing a method to ensure that both the certifying 
entity and the regulated entity have full knowledge of what 
responsibilities are being assumed by the certifying entity. 
Specifically, EPA is amending Sec.  59.511(g) to provide that the 
certifying entity will sign the Sec.  59.511(g) notice and then send 
the notice to EPA and to the regulated entity. EPA has concluded that 
this method will provide the right balance between (1) making the 
burden of providing the certification notice reasonable, so as not to 
discourage manufacturers and others from taking on the recordkeeping 
and reporting obligations of regulated entities, and (2) making sure 
that both parties are aware of what responsibilities the certifying 
entity is assuming from the regulated entity as a result of the notice.
    In this final action, Sec.  59.511(g)(3) will be amended to provide 
a more detailed description of what responsibilities are being assumed 
by the certifying entity and other related information about the 
division of responsibility between the certifying entity and regulated 
entity, and how the recordkeeping and reporting requirements will be 
met. Specifically, certification notices will be required to include 
identification of the products covered by the notice and the location 
or locations where the records will be maintained, among the other 
information required.
    EPA is adding a provision to Sec.  59.511(g) (to be numbered 
(g)(4)) requiring that the certifying document contain a statement that 
the certifying entity understands that the failure to fulfill the 
responsibilities that it is assuming may result in an enforcement 
action against it.
    EPA is revising the provision that was Sec.  59.511(g)(4) and will 
now appear in Sec.  59.511(g)(5) to clarify that the certification 
notice must be signed by the responsible official for the certifying 
entity. Before this revision, the provision required the signature of 
the responsible official for ``the company'' which did not clearly 
identify the certifying entity as the entity signing the notice.
    In addition to these amendments to Sec.  59.511(g), EPA is amending 
certain provisions related to the notices in Sec.  59.511(g):
    EPA is adding the word ``distributors'' to Sec.  59.501(b)(4) to 
make clear that distributors as well as manufacturers and importers can 
be a certifying entity. The language currently in Sec.  59.501(b)(4) 
only refers to ``manufacturers and importers,'' while the language in 
Sec.  59.511(g) refers to ``manufacturers, importers and 
distributors.'' This amendment will make these two

[[Page 29598]]

provisions consistent and avoid any confusion as to whether 
distributors may be a certifying entity.
    EPA is amending Sec.  59.510(b) to replace the phrase ``certifying 
manufacturer'' with ``certifying entity'' in order to make clear that 
Sec.  59.510(b) applies to all certifying entities and not just those 
certifying entities who are manufacturers.
    EPA requested comment on whether the 59.511(g) notice should be a 
certain form or contain certain language to fulfill the requirements of 
this section. Based on the comments received, the EPA is not imposing 
any specific language or format for the certification notices in the 
final rule. However, EPA intends to work with interested parties to 
develop an optional model for the certification notices. Further, EPA 
reserves the right to take action in the future if the Agency in the 
future determines that particular language or format should be a 
requirement we will propose amendments to the rule.

D. Liability Following Sec.  59.511(g) Certification

    This final rule allows a party referred to in this rule as the 
``certifying entity,'' to assume certain recordkeeping and reporting 
requirements from a regulated entity. However, EPA believes it is 
essential to ensure that the recordkeeping and reporting 
responsibilities are fulfilled after this transfer occurs. To that end, 
in this final rule, both the certifying entity and regulated entity 
will have joint liability for the recordkeeping and reporting 
requirements covered by a notice submitted under Sec.  59.511(g), such 
that both would be liable for the failure to keep records or submit 
reports and for inaccurate records or reports.

E. Other Revisions

    Finally, in this action, we are finalizing minor revisions and 
edits to include corrections to EPA regional office addresses, and 
several minor changes and corrections to Table 2A. Specifically, we are 
finalizing the deletion for the listing for Di (2-ethylhexyl phthalate) 
(CAS 117-81-7) for which there is no applicable reactivity factor; 
eliminate a duplicate listing of Butanol (CAS 71-36-3); and correcting 
the CAS number for Isobutane (CAS 75-28-5) and the reactivity factor 
for Ethylene Glycol Monobutyl Ether [2-Butoxyethanol] (CAS 111-76-2). 
Given the multiple ways to name individual organic compounds, in this 
action, Table 2A has been sorted according to CAS number to make it 
easier for regulated entities to find a specific chemical.

III. Response to Significant Comments

    During the public comment period, we received a total of three 
comment letters. A summary of all comments received on this rule, as 
well as complete responses to each of these comments are presented in 
the docket (EPA-HQ-OAR-2006-0971).

A. Table 2 to Subpart E of Part 59--Reactivity Factors

    Comment: One commenter expressed concern about the time required to 
add chemical compounds to Table 2, given that reactivity factors may 
have to be updated in the future based on current research efforts by 
leading scientists.
    Another commenter requested that the Table 2A values for four 
compounds be replaced with more recently determined values. The 
commenter states that obtaining ozone reduction benefits from the 
proposed reactivity based aerosol coatings rule requires that the 
reactivity factors assigned to the regulated compounds accurately 
represent how efficiently they form ozone. The commenter believes that 
the assigned reactivity factors are ``certainly and significantly in 
error,'' with the largest magnitude errors for compounds whose maximum 
incremental reactivity (MIR) values were upper limit MIR values.
    Response: The commenters raise two important processes that will 
continue to require periodic regulatory action into the future: (1) The 
addition of compounds to Table 2, including those compounds for which 
reactivity factors have already been proposed by EPA, or are in use by 
other authorities (e.g., California Air Resources Board (CARB)) for 
this source category, and (2) the revision of the reactivity factors in 
Table 2 to reflect our evolving understanding of photochemical ozone 
formation.
    The first issue, the addition of compounds to Table 2A for which 
reactivity factors have been established, is the main focus of this 
rulemaking. When EPA promulgated the final rule on March 24, 2008 (73 
FR 15604), EPA anticipated the need to add compounds to Table 2, 
especially prior to the initial compliance date for the rule. Affected 
parties were encouraged to request additions to Table 2 by June 1, 
2008, to ensure that the compounds were added prior to the initial 
compliance date. On December 24, 2008 (73 FR 78994), the compliance 
date was extended from October 1, 2008, to July 1, 2009. In this 
current rulemaking, we have responded to all of the requests for 
additions that we received prior to the April 2, 2009, proposal. Even 
after that date, EPA has continued to receive requests to add compounds 
to Table 2. We expect that the number of requests to add compounds will 
decline as regulated entities work to come into compliance with the new 
rule. However, EPA recognizes that there will be a continuing need to 
add compounds to Table 2 into the future as new compounds are 
identified for use in this source category.
    The addition of compounds to Table 2 must be accomplished through 
formal rulemaking with opportunities for public comment. Given the 
resources involved in formal rulemaking, EPA does not believe that it 
is appropriate for the Agency to respond to each petition for addition 
of compounds with a separate rulemaking as we receive them. Therefore, 
EPA intends to issue a rulemaking addressing additions to Table 2, as 
appropriate.
    The second action, updating the reactivity factors to reflect the 
evolving scientific information is beyond the scope of the current 
rulemaking. The reactivity scale used in both EPA's and CARB's aerosol 
coatings rules is based on the 2000 version of Carter's Maximum 
Incremental Reactivity (MIR) scale.\1\ Since 2000, Carter has updated 
the MIR scale a number of times to incorporate new information about 
chemical reaction mechanisms and rates, and to incorporate new 
compounds. The commenter points to Carter's very recent update of the 
MIR scale completed in March 2009.\2\ This analysis was completed for 
CARB, and CARB has not formally adopted these values to determine 
compliance with their aerosol coatings regulation.
---------------------------------------------------------------------------

    \1\ Carter, W.P.L., Additions and Corrections to the SAPRC-99 
Maximum Incremental Reactivity (MIR) Scale, prepared for California 
Air Resources Board Contract No. 97-314, November 29, 2000.
    \2\ Carter, W.P.L. (2009) Updated Maximum Incremental Reactivity 
Scale for Regulatory Applications, prepared for California Air 
Resources Board, Contract 07-339, March 23, 2009.
---------------------------------------------------------------------------

    At this time, the reactivity factors in EPA's Table 2 are 
consistent with those values used by CARB in its aerosol coatings 
regulation. We believe the reactivity factors currently in Table 2 
should be retained to maintain consistency and stability of both CARB 
and EPA's reactivity-based regulations.
    EPA recognizes that current reactivity factors may need to be 
revised in the future to reflect the most recent scientific 
information. Before adding new compounds or updating reactivity values 
for existing compounds in Table 2 through formal rulemaking procedures, 
EPA will ensure that the supporting data will have undergone 
appropriate scientific review. Before pursuing such a rulemaking, EPA 
will

[[Page 29599]]

work with CARB to determine an appropriate timeline and process for 
incorporating changes to the reactivity factors used in both our 
regulations and to determine, where appropriate and necessary, whether 
changes to the reactivity-based limits in those regulations should be 
made as well.

B. Assumption of Responsibility for Recordkeeping and Reporting

    Comment: One commenter opposed adding a provision to Sec.  
59.511(g) requiring that the certification notice contain a statement 
that upon assuming the recordkeeping and reporting requirements in the 
rule, the certifying entity understands that the failure to fulfill 
these requirements may result in an enforcement action against it. The 
commenter stated that this statement is unnecessary because the 
regulations are clear that a certifying entity's election to maintain 
records and fulfill reporting requirements for a regulated entity is a 
regulatory requirement and that, as with any other regulatory 
requirement, failure to fulfill these requirements carries with it a 
regulatory penalty in the form of enforcement activity. The commenter 
further states that adding this regulatory requirement creates 
additional regulatory requirements and another potential violation in 
the event that the required statement is missing from a certifying 
entity's notice.
    Response: EPA agrees that the current regulations provide that a 
certifying entity's notice that it will assume recordkeeping and 
reporting requirements for a regulated entity imposes a regulatory 
requirement on that certifying entity that could result in an 
enforcement action against it if the requirements are not met. However, 
EPA believes that the inclusion of an express statement to that effect 
in the certification notice under Sec.  59.511(g) will assure that each 
entity signing a certification notice is aware of the potential 
consequences for failing to meet the obligations that it is taking on 
by signing the certification notice, even if the entity has not 
carefully read the regulations. Finally, neither this commenter nor 
anyone else has identified any substantial burden that will arise from 
including such a statement in the certification notice.
    Comment: EPA received a comment opposing EPA's proposal to add 
language to Sec.  59.511(g)(3) to clarify the responsibilities of the 
certifying entity. As the basis for their opposition, this commenter 
noted that the regulations indicate that ``any or all'' of the 
recordkeeping and reporting requirements can be assumed, and that 
certifying entities must be clear about the extent of the recordkeeping 
and reporting that they will assume. The commenter stated that there 
will be instances where several different manufacturers will make 
products for a single customer, in which case the manufacturer (the 
certifying entity) must clearly state which products or product lines 
they are assuming the recordkeeping and reporting responsibilities for. 
With such a clear statement of the certifying entity, the customer (the 
regulated entity) will then be able to take steps to be sure that any 
other products that are being made for it by other manufacturers are 
the subject of a Sec.  59.511(g) notice from the appropriate 
manufacturer.
    Response: The scenario described by this commenter--where a given 
regulated entity gets products from multiple suppliers, and so any 
certification notices from those suppliers must clearly state which 
products are covered by the notice--is exactly why EPA concludes that 
Sec.  59.511(g)(3) should expressly require that the certification 
notice include an ``identification of the products covered by the 
notice.'' This identification of the scope of each certification notice 
will allow the regulated entity to determine which products are covered 
by certification notices (and, thus, are products for which the 
recordkeeping and reporting obligations will be fulfilled by a 
certifying entity) and which products have recordkeeping and reporting 
obligations that are still the responsibility of the regulated entity. 
Similarly, EPA will be able to review the notices and determine who has 
the recordkeeping and reporting responsibilities for the various 
products. Conversely, a certification notice that does not clearly 
identify the products covered by the notice will create confusion and 
ambiguity for all parties.
    Comment: With respect to the alternative options for assuring that 
both the certifying entity and the regulated entity are aware of their 
responsibilities for recordkeeping and reporting following a 
certification notice, one commenter recommends that the certifying 
entity be required to send the Sec.  59.511(g) notice to the regulated 
entity when it is submitted to EPA. The commenter supports this 
recommendation by explaining that, with this approach, the regulated 
entity will have the notice in its records, and the certifying entity 
will be able to comply with Sec.  59.511(g) without waiting for a reply 
from the regulated entity. If the certifying entity sends the regulated 
entity a notice regarding these responsibilities, then both parties 
will have full knowledge of the responsibilities being assumed by the 
certifying entity. The alternative option proposed by EPA--to have both 
parties sign the certification notice before it is submitted to EPA--
would be burdensome, according to the commenter. In support of this 
conclusion, the commenter gave the example of one manufacturer who 
makes products for over 400 different customers, and stated that 
obtaining the signature of all of these customers would be ``an 
overwhelming proposition.'' The commenter further notes that most 
manufacturers make private label products for customers and will be in 
the position of maintaining the records and fulfilling the reporting 
obligations for their customers.
    Response: In choosing between the two options proposed, EPA has 
balanced the conflicting goals of (1) making the burden of providing 
the certification notice reasonable, so as not to discourage 
manufacturers and others from taking on the recordkeeping and reporting 
obligations of regulated entities, and (2) making sure that both 
parties are aware of what responsibilities are being shifted as a 
result of the notice. Although having both parties sign the notice 
fulfills the second goal, EPA's conclusion is that the option of having 
the certifying entity sign the notice and then send it to the regulated 
entity will provide the right balance between these two goals. In 
making this decision, EPA notes the following points in addition to the 
points discussed above. First, part of EPA's original basis for 
allowing certifying entities to assume the recordkeeping and reporting 
obligations was that the certifying entity may be able to fulfill the 
obligations more accurately, and with less burden than the regulated 
entity. This point is supported by one of this commenter's points on 
another issue: that it is the manufacturers who have the data and 
information that must be kept and reported (a point that commenters 
make in discussing their opposition to the joint liability of 
certifying entities and regulated entities, which is discussed below). 
Second, at the point in time when the certifying entity submits the 
certification notice to EPA with a copy to the regulated entity, the 
certifying entity becomes responsible for the recordkeeping and 
reporting requirements covered by the notice, even before the notice 
reaches the regulated entity. Thus, any lack of communications between 
the certifying entity and the regulated entity in advance of the notice 
being sent might result in some initial duplication of

[[Page 29600]]

effort, but will not result in any gap of recordkeeping and reporting.

C. Form of the Sec.  59.511(g) Notice

    Comment: EPA received comment that Sec.  59.511(g) indicates the 
essential elements that must be included in the notice, and that these 
elements are clear and fairly concise. This commenter suggests that it 
is not necessary to require a specific form or format. Finally, the 
commenter states it is willing to work with EPA on a format that is 
acceptable to the Agency and user-friendly for the industry.
    Response: At this time, EPA is not imposing any specific language 
or format for the certification notices, and intends to work with the 
commenter and other interested parties to develop an optional model for 
the certification notices. EPA may however, propose further amendments 
to the rule in the future if the Agency determines that particular 
language or format should be a requirement.

D. Liability Following Sec.  59.511(g) Certification

    Comment: One commenter does not believe that any additional 
language should be added regarding joint liability for the 
recordkeeping and reporting under Sec.  59.511(g). The commenter states 
that, in most cases, all the data that needs to be maintained and 
reported is in the hands of the certifying entity. According to the 
commenter, the regulated entity, even if it wanted to, would not be 
able to fulfill the recordkeeping and reporting responsibilities. 
Because of this practical limitation, the commenter urges EPA to reject 
any additional language which imposes joint liability for a failure in 
the recordkeeping and reporting functions under Sec.  59.511.
    Response: Joint liability is a common enforcement approach under 
the CAA. Here, EPA believes that joint liability is essential to ensure 
that the recordkeeping and reporting responsibilities are fulfilled. 
This joint liability gives regulated entities the appropriate incentive 
to rely only on reputable parties to fulfill their recordkeeping and 
reporting responsibilities.

E. Other

    Comment: EPA received comments from one commenter in a cover letter 
and through the resubmission of comments submitted in response to the 
July 16, 2007, proposed rule, ``National Volatile Organic Compound 
Emission Standards for Aerosol Coatings'' (40 CFR parts 51 and 59, 
subpart E; 72 FR 38952).
    Response: With respect to the resubmission of its 2007 comments 
document, EPA took final action on the proposed rule on March 24, 2008 
(40 CFR parts 51 and 59, subpart E; 73 FR 15621), and responded to the 
comments at that time. Moreover, the 2007 comments do not apply to the 
issues being considered in the current rulemaking.
    Comment: In its cover letter, the commenter above makes three 
points. The first two points criticize statements that EPA made in its 
November 2007 Response to Comments document (which was prepared for the 
March 2008 final rule) and address issues that are outside the scope of 
the current rulemaking.
    Finally, the commenter makes one point that specifically addresses 
the current rulemaking. The commenter states that EPA is significantly 
expanding the number of compounds on Table 2A in this rulemaking, and 
that this is a major change that should lead EPA to reconsider the 
fundamental approach that this regulation is taking. Specifically, the 
commenter contends that the rule will not achieve real ozone reductions 
in the areas that need the reductions, and that the rule encourages the 
substitution of hazardous air pollutants for other compounds used in 
aerosol coatings.
    Response: With respect to the commenter's 2007 comments and the two 
comments that criticize aspects of EPA's November 2007 response to 
comments document, EPA will not address those comments here because 
they are outside the scope of this rulemaking. With respect to the 
comment that this rulemaking is a significant expansion of the rule 
that warrants a reconsideration of the fundamental approach in the 
March 24, 2008, final action, EPA does not dispute that this rulemaking 
is expanding the number of compounds on Table 2A, but the Agency 
disagrees that this is a major change in the rule, or a significant 
expansion of the scope of the rule that raises the issues that the 
commenter seeks to have EPA reconsider. Finally, EPA notes that CAA 
section 307(d)(7)(B) provides the proper vehicle for a person seeking 
reconsideration of issues from a past rule, and the commenter here has 
neither stated that it is proceeding under this provision nor explained 
why it believes it meets the threshold requirements for such 
reconsideration.
    Comment: Another commenter requested a statement in the final rule 
that addresses the ``harmonization'' of CARB and US EPA MIR values, 
since both have either promulgated or proposed aerosol coatings rules 
that use these values.
    Response: EPA agrees with the commenter that, in general, 
maintaining consistency between the reactivity factors used by EPA and 
CARB is important for the efficient and effective implementation of EPA 
and CARB's reactivity-based regulations. In developing this current 
regulation, EPA has made an effort to make the requirements as 
consistent as possible with the requirements of CARB's aerosol coatings 
regulation within the limits of our authority and responsibilities 
under the CAA. EPA and CARB's rules, however, are promulgated under 
different statutory authorities through separate formal rulemaking 
processes in different regulatory agencies; so, some differences can be 
expected. The reactivity factors that are currently included in EPA's 
rule are consistent with the reactivity values currently applied in 
CARB's aerosol coatings regulation. As discussed in Section III.A., EPA 
recognizes that the current reactivity factors may need to be revised 
in the future to reflect the evolving scientific information. As stated 
previously, before adding new compounds or updating reactivity values 
for existing compounds in Table 2 through formal rulemaking procedures, 
EPA will ensure that the supporting data will have undergone 
appropriate scientific review. Also, before pursuing such a revision, 
EPA will work with CARB to determine an appropriate timeline and 
process for incorporating changes to the reactivity factors used in 
both our regulations and to determine, where appropriate and necessary, 
whether changes to the reactivity-based limits in those regulations 
should be made as well.

F. 30-Day Extension of Deadline for Initial Notifications and Finding 
and Statement of Good Cause

    In this final rule, EPA is extending the deadline for the initial 
notifications required under Section 59.511(b) for 30 days, until July 
31, 2009. This extension is being granted without the notice and 
comment proceedings described in Section 307(d)(3) of the Clean Air Act 
for good cause, as authorized under Section 307(d)(1).\3\
---------------------------------------------------------------------------

    \3\ Under Section 307(d)(1), in the text that appears after the 
list of actions to which Section 307(d) applies, the statute 
provides that the requirements of Section 307(d) do not apply ``in 
the case of any rule or circumstance referred to in subparagraphs 
(A) or (B) of subsection 553(b) of Title 5.'' Section 553(b)(B) of 
Title 5 provides that notice and comment proceedings are not 
required ``when the agency for good cause finds (and incorporates 
that the finding and a brief statement of reasons thereof in the 
rule[ ] issued) that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to public interest.''

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

[[Page 29601]]

    EPA finds that good cause exists to extend the deadline for initial 
notifications by 30 days without notice and comment proceedings because 
(1) the amendments made in this rule affect the initial notifications 
under 59.511(b) and the certification notices allowed under Section 
59.511(g) (which for practical reasons need to be submitted at or 
before the deadline for initial notifications), and (2) these 
amendments are being promulgated a short time before the previous 
deadline for initial notifications of July 1, 2009. Given these 
circumstances, the Agency has concluded that it would not be fair or in 
the public interest to require regulated entities to submit the initial 
notifications by July 1, 2009, or to expect those entities who are 
electing to submit certification notices to do so by July 1, 2009.
    The Agency finds that good cause is shown here on the grounds that 
notice and comment proceedings are unnecessary. Courts have recognized 
that notice and comment is ``unnecessary'' where the rule is ``a minor 
rule or amendment in which the public is not particularly interested.'' 
Texaco, Inc v. Federal Power Comm., 412 F.2d 740, 743 n.6 (3\d\ Cir 
1969) (quoting Attorney General's Manual on Administrative Act (1947) 
at 12-13). See also Utility Solid Waste Activities Group v. EPA, 236 
F.3d 749, 755 (D.C. Cir. 2001) (``unnecessary'' applies to ``those 
situations in which the administrative rule is a routine determination, 
insignificant in nature and impact, and inconsequential to the industry 
and to the public.''); Northern Arapahoe Tribe v. Hodel, 808 F.2d 741, 
751 (10th Cir. 1987) (`` `Unnecessary' means unnecessary so far as the 
public is concerned, as would be the case if a minor or merely 
technical amendment in which the public is not particularly interested 
were involved.'') (quoting S. Rep. No. 752, 79th Cong., 1st Sess. 14 
(1945)). Here, EPA finds that the extension of the deadline for 
submitting initial notifications by 30 days is a minor amendment in 
which the public is not particularly interested because (1) it does not 
affect the compliance date for the rule, (2) it only affects the date 
by which EPA will receive certain reports from regulated entities, and 
(3) the extension of 30 days is short.\4\ For these reasons, EPA finds 
that it has good cause to extend this deadline without notice and 
comment proceedings.
---------------------------------------------------------------------------

    \4\ EPA further notes that when the Agency previously proposed a 
seven-month extension of the compliance date in November 2008, it 
received only one comment. See 73 FR 78,994, 78,995 (col. 2) 
(December 24, 2008). Because this significantly longer extension of 
the compliance date (not just the deadline for certain reports) 
resulted in only one comment, and because of the nature of that 
comment (see 73 FR at 78,992), EPA concludes that a notice and 
comment proceeding to extend the deadline for submitting initial 
notifications would not likely result in any comments.
---------------------------------------------------------------------------

G. Basis for Making This Rule Effective on the Date of Publication

    Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b), generally provides that rules may not take effect earlier than 
30 days after they are published in the Federal Register. However, EPA 
is issuing this final rule under section 307(d)(1) of the Clean Air 
Act, which states:

    ``The provisions of section 553 through 557 * * * of Title 5 
shall not, except as expressly provided in this section, apply to 
actions to which this subsection applies.'' Thus, section 553(d) of 
the APA does not apply to this rule. EPA is nevertheless acting 
consistently with the policies underlying APA section 553(d) in 
making this rule effective on June 23, 2009. APA section 553(d)(3) 
provides an exception when the agency finds good cause exists for a 
period less than 30 days before effectiveness. We find good cause 
exists to make this rule effective upon publication because doing so 
alleviates potential confusion and implementation difficulties that 
could arise if these amendments were not in effect until 30 days 
after the date of publication. For example, the extension of the 
deadline for initial notifications needs to become effective before 
July 1, 2009 to avoid confusion and implementation difficulties.

IV. Summary of Impacts

    This section presents a summary of the impacts expected as a result 
of this rule.

A. Environmental Impacts

    There are no adverse environmental impacts anticipated from 
compliance with this rule.

B. Energy Impacts

    There are no adverse energy impacts anticipated from compliance 
with this rule.

C. Cost and Economic Impacts

    There are no adverse economic impacts anticipated from compliance 
with this rule.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action'' that raises novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the EO. Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden; 
it only proposes amendments and minor corrections to the aerosol 
coatings reactivity rule by adding compounds and associated reactivity 
factors to Table 2--Reactivity Factors based on petitions EPA received 
from regulated entities; and clarifies which VOC are to be quantified 
in compliance determinations. Additionally, certain changes are being 
made related to the notice required for a company to certify that it 
will assume the responsibility for compliance with recordkeeping and 
reporting requirements for a regulated entity, and who is liable 
following such certification. Finally, in this action we make minor 
revisions and corrections to the aerosol coatings reactivity rule.
    However, the OMB has previously approved the information collection 
requirements contained in the existing regulations, i.e., the National 
Volatile Organic Compound Emission Standards for Aerosol Coatings, 40 
CFR parts 51 and 59, subpart E (73 FR 15604, March 24, 2008) under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2060-0617. The OMB control numbers for 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small

[[Page 29602]]

organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of this rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This rule 
will not impose any new requirements on small entities. We have 
determined that small businesses will not incur any adverse impacts 
because EPA is only making minor corrections and amendments to the 
Aerosol Coatings rule, and these corrections and amendments do not 
create any new requirements or burdens. No costs are associated with 
these amendments. We continue to be interested in the potential impacts 
of the rule on small entities and welcome comments on issues related to 
such impacts.

D. Unfunded Mandates Reform Act

    This rule 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. 
This action only makes amendments and minor corrections to the aerosol 
coatings reactivity rule by adding compounds and associated reactivity 
factors to Table 2--Reactivity Factors based on petitions EPA received 
from regulated entities; and clarifies which VOC are to be quantified 
in compliance determinations. Additionally, certain changes are being 
made related to the notice required for a company to certify that it 
will assume the responsibility for compliance with recordkeeping and 
reporting requirements for a regulated entity, and who is liable 
following such certification. Finally, in this action we make minor 
revisions and corrections to the aerosol coatings reactivity rule. 
Thus, this rule is not subject to the requirements of sections 202 or 
205 of the Unfunded Mandates Reform Act (UMRA).
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. It only proposes 
amendments and minor corrections to the aerosol coatings reactivity 
rule by adding compounds and associated reactivity factors to Table 2--
Reactivity Factors based on petitions EPA received from regulated 
entities; and clarifies which volatile organic compounds are to be 
quantified in compliance determinations. Additionally, certain changes 
are being made related to the notice required for a company to certify 
that it will assume the responsibility for compliance with 
recordkeeping and reporting requirements for a regulated entity, and 
who is liable following such certification. Finally, in this action we 
make minor revisions and corrections to the aerosol coatings reactivity 
rule.

E. Executive Order 13132: Federalism

    EO 13132, entitled ``Federalism'' (64 FR 43255, August 10, 1999), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have Federalism implications.'' ``Policies 
that have Federalism implications'' is defined in the EO to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.''
    This rule does not have Federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in EO 13132. This action only makes amendments and minor 
corrections to the aerosol coatings reactivity rule by adding compounds 
and associated reactivity factors to Table 2--Reactivity Factors based 
on petitions EPA received from regulated entities; and clarifies which 
VOC are to be quantified in compliance determinations. Additionally, 
certain changes are being made related to the notice required for a 
company to certify that it will assume the responsibility for 
compliance with recordkeeping and reporting requirements for a 
regulated entity, and who is liable following such certification. 
Finally, in this action we make minor revisions and corrections to the 
aerosol coatings reactivity rule.
    Thus, EO 13132 does not apply to this rule.
    In the spirit of EO 13132, and consistent with EPA policy to 
promote communications between EPA and State and local governments, EPA 
specifically solicits comment on this rule from State and local 
officials.

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

    This action does not have tribal implications, as specified in EO 
13175 (65 FR 67249, November 9, 2000). This action only makes 
amendments and minor corrections to the aerosol coatings reactivity 
rule by adding compounds and associated reactivity factors to Table 2--
Reactivity Factors based on petitions EPA received from regulated 
entities; and clarifies which VOC are to be quantified in compliance 
determinations. Additionally, certain changes are being made related to 
the notice required for a company to certify that it will assume the 
responsibility for compliance with recordkeeping and reporting 
requirements for a regulated entity, and who is liable following such 
certification. Finally, in this action we make minor revisions and 
corrections to the aerosol coatings reactivity rule. Thus, EO 13175 
does not apply to this action.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

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

    This action is not a ``significant energy action'' as defined in EO 
13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Further, we have concluded that this rule is not likely to have 
any adverse energy effects because it only makes amendments and minor 
corrections to the aerosol coatings reactivity rule by adding compounds 
and associated reactivity factors to Table 2--Reactivity Factors based 
on petitions EPA received from regulated entities; and clarifies which 
VOC are to be quantified in compliance determinations. Additionally, 
certain changes are being made related to the notice required for a 
company to certify that it will assume the responsibility for 
compliance with recordkeeping and reporting requirements for a 
regulated entity, and who is liable following such certification. 
Finally, in this action we make minor revisions and corrections to the 
aerosol coatings reactivity rule.

I. National Technology Transfer and Advancement Act

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

[[Page 29603]]

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. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

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

    EO 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive 
policy on environmental justice. Its main provision directs Federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA has concluded that it is not practicable to determine whether 
there would be disproportionately high and adverse human health or 
environmental effects on minority and/or low income populations from 
this rule. The rule only makes amendments and minor corrections to the 
aerosol coatings reactivity rule by adding compounds and associated 
reactivity factors to Table 2--Reactivity Factors based on petitions 
EPA received from regulated entities; and clarifies which VOC are to be 
quantified in compliance determinations. Additionally, certain changes 
are being made related to the notice required for a company to certify 
that it will assume the responsibility for compliance with 
recordkeeping and reporting requirements for a regulated entity, and 
who is liable following such certification. Finally, in this action we 
make minor revisions and corrections to the aerosol coatings reactivity 
rule.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing the final rule 
amendment and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication of this final rule amendment in the Federal 
Register. The final rule amendment is not a ``major rule'' as defined 
by 5 U.S.C. 804(2). This final rule is effective on June 23, 2009.

List of Subjects

40 CFR Part 51

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

40 CFR Part 59

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

    Dated: June 15, 2009.
Lisa P. Jackson,
Administrator.

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

PART 51--[AMENDED]

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

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


0
2. Section 51.100(s)(7) is revised to read as follows:


Sec.  51.100  Definitions.

* * * * *
    (s) * * *
    (7) For the purposes of determining compliance with EPA's aerosol 
coatings reactivity based regulation (as described in 40 CFR part 59--
National Volatile Organic Compound Emission Standards for Consumer and 
Commercial Products) any organic compound in the volatile portion of an 
aerosol coating is counted towards the product's reactivity-based 
limit, as provided in 40 CFR part 59, subpart E. Therefore, the 
compounds that are used in aerosol coating products and that are 
identified in paragraphs (s)(1) or (s)(5) of this section as excluded 
from EPA's definition of VOC are to be counted towards a product's 
reactivity limit for the purposes of determining compliance with EPA's 
aerosol coatings reactivity-based national regulation, as provided in 
40 CFR part 59, subpart E.
* * * * *

PART 59--[AMENDED]

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

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


0
4. Section 59.501 is amended by revising paragraph (b)(4) and the first 
sentence of paragraph (f)(3)(i) to read as follows:


Sec.  59.501  Am I subject to this subpart?

* * * * *
    (b) * * *
    (4) If you are a manufacturer, importer, or distributor, you can 
choose to certify that you will provide any or all of the recordkeeping 
and reporting requirements of Sec. Sec.  59.510 and 59.511 by following 
the procedures of Sec.  59.511(g) and (h).
* * * * *
    (f) * * *
    (3) * * *
    (i) You must submit an initial notification no later than July 31, 
2009, or on or before the date that you start manufacturing aerosol 
coating products that are sold in the United States, whichever is 
later. * * *
* * * * *

0
5. Section 59.510 is amended by revising paragraph (b) to read as 
follows:


Sec.  59.510  What records am I required to maintain?

* * * * *
    (b) By providing the written certification to the Administrator in 
accordance with Sec.  59.511(g), the certifying entity accepts 
responsibility for compliance with the recordkeeping requirements of 
this section with respect to any products covered by the written 
certification, as detailed in the written certification. Failure to 
maintain the required records may result in enforcement action by EPA 
against the certifying entity in accordance with the enforcement 
provisions applicable to violation of these provisions by regulated 
entities. If the certifying entity revokes its certification, as 
allowed by Sec.  59.511(h), the regulated entity must

[[Page 29604]]

assume responsibility for maintaining all records required by this 
section.

0
6. Section 59.511 is amended as follows:
0
a. By revising the first sentence in paragraph (b) introductory text.
0
b. By revising the first sentence of paragraph (e) introductory text.
0
c. By revising paragraph (g) introductory text.
0
d. By revising paragraphs (g)(3) and (g)(4).
0
e. By adding paragraph (g)(5).


Sec.  59.511  What notifications and reports must I submit?

* * * * *
    (b) You must submit an initial notification no later than July 31, 
2009, or on or before the date that you first manufacture, distribute, 
or import aerosol coatings, whichever is later.* * *
* * * * *
    (e) If you claim the exemption under Sec.  59.501(e), you must 
submit an initial notification no later than July 31, 2009, or on or 
before the date that you first manufacture aerosol coatings, whichever 
is later. * * *
* * * * *
    (g) If you are a manufacturer, importer, or distributor who chooses 
to certify that you will maintain records for a regulated entity for 
all or part of the purposes of Sec.  59.510 and this section, you must 
submit a notice to the appropriate EPA Regional Office listed in Sec.  
59.512. At the same time that this notice is sent to the appropriate 
EPA Regional Office, a copy of the notice must be sent to the regulated 
entity for which you are accepting responsibility for recordkeeping and 
reporting requirements. A