68080 Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 

December 17; and December 20 through 

December 22, 2004. 

This deviation from the operating 

regulations is authorized under 33 CFR 

117.35, and will be performed with all 

due speed in order to return the bridge 

to normal operation as soon as possible.

Dated: November 9, 2004. 

John L. Grenier, 

Captain, U.S. Coast Guard, Acting 

Commander, First Coast Guard District.

[FR Doc. 04–25965 Filed 11–22–04; 8:45 am] 

BILLING CODE 4910–15–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[PA211–4231; FRL–7835–4] 

Approval and Promulgation of Air 

Quality Implementation Plans, 

Pennsylvania; Control of Volatile 

Organic Compound Emissions From 

AIM Coatings

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving a State 

Implementation Plan (SIP) revision 

submitted by the Commonwealth of 

Pennsylvania. This revision pertains to 

the control of volatile organic 

compounds (VOC) emissions from 

architectural and industrial 

maintenance (AIM) coatings. EPA is 

approving this SIP revision in 

accordance with the Clean Air Act (CAA 

or the Act).

EFFECTIVE DATE: This final rule is 

effective on December 23, 2004.

ADDRESSES: Copies of the documents 

relevant to this action are available for 

public inspection during normal 

business hours at the Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103; the 

Air and Radiation Docket and 

Information Center, U.S. Environmental 

Protection Agency, 1301 Constitution 

Avenue, NW., Room B108, Washington, 

DC 20460; and Pennsylvania 

Department of Environmental 

Protection, Bureau of Air Quality, P.O. 

Box 8468, 400 Market Street, Harrisburg, 

Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Rose 

Quinto, (215) 814–2182, or by e-mail at 

quinto.rose@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background 

On March 11, 2004 (69 FR 11580), 

EPA published a notice of proposed 

rulemaking (NPR) for the 

Commonwealth of Pennsylvania. The 

NPR proposed approval of a 

Pennsylvania regulation pertaining to 

the control of VOC from AIM coatings. 

The formal SIP revision was submitted 

by the Pennsylvania Department of 

Environmental Protection (PADEP) on 

December 3, 2003. The specific 

requirements of Pennsylvania’s SIP 

revision for AIM coatings and the 

rationale for EPA’s proposed action are 

explained in the NPR and will not be 

restated here. On April 12, 2004, EPA 

received timely comments from two 

parties on the March 11, 2004 NPR. 

Some of the timely comments were 

adverse to EPA’s March 11, 2004 

proposed rulemaking. EPA also received 

late comments from one party. While 

EPA is not obligated to consider late 

comments, EPA has elected to do so in 

this instance. A summary of the 

comments submitted and EPA’s 

responses are provided in Section II of 

this document. 

On October 19, 2004, the PADEP 

submitted a supplement to its December 

3, 2003 SIP revision. The supplement 

includes a nonsubstantive correction 

notice published in the Pennsylvania 

Bulletin, 33 Pa. B. 5618 (November 15, 

2003) which corrects numbering and 

typographical errors that appeared at 33 

Pa. B. 5297 (October 25, 2003) in the 

adoption of Chapter 130, Subchapter C. 

(relating to architectural and 

maintenance coatings). The subsections 

in Subchapter C. Architectural and 

Industrial Maintenance Coatings have 

been corrected to number as subsections 

130.601—130.611. The supplement also 

includes the codified version of the 

Pennsylvania AIM coating regulation, 

25 Pa. Code, Subchapter C. Subsections 

130.601–130.611, effective October 25, 

2003. 

EPA is aware that concerns have been 

raised about the achievability of VOC 

content limits of some of the product 

categories under the Pennsylvania AIM 

coatings rule. EPA understands that 

under the Commonwealth’s rule these 

concerns may be addressed through a 

variance process, which we support, 

that may result in changes to the limits 

for certain categories. Although we are 

approving this rule today, the Agency is 

concerned that if the rule’s limits make 

it impossible for manufacturers to 

produce coatings that are desirable to 

consumers, there is a possibility that 

users may misuse the products by 

adding additional solvent, thereby 

circumventing the rule’s intended VOC 

emission reductions. We intend to work 

with the Commonwealth and 

manufacturers to explore ways to ensure 

that the rule achieves the intended VOC 

emission reductions, and we intend to 

address this issue in evaluating the 

amount of VOC emission reduction 

credit attributable to the rule. 

II. Public Comments and EPA 

Responses 

A. Comment: Request for 

Clarification—One commenter, the 

Department of the Navy on behalf of the 

Department of Defense (DOD), 

compliments PADEP and EPA for their 

effort to ensure that Pennsylvania 

attains and maintains compliance with 

the National Ambient Air Quality 

Standards (NAAQS). The DOD requests 

clarification of the Applicability 

subsection of Pennsylvania’s rule (citing 

to 25 Pa. Code subsection 130.601). The 

DOD states that in response to the 

difficulty military installations have had 

with managing hazardous materials, the 

military services adopted and 

implemented an innovative approach to 

managing hazardous materials, 

including AIM coatings that are used in 

the military installations. The DOD 

explains that this approach establishes a 

single point of control and 

accountability over the purchase, 

receipt and distribution of hazardous 

materials to the various organizations 

around a military installation. This 

‘‘single point of control’’ receives, 

approves, and processes all requests for 

hazardous materials submitted by the 

various organizations on an installation. 

The DOD goes on to state that once the 

materials are ordered, purchased and 

obtained by this ‘‘single point of 

control,’’ this unit ‘‘supplies’’ the 

various organizations with requested 

amounts of particular hazardous 

material for use. The DOD requests that 

a definition be added to Pennsylvania’s 

regulation that would state that the term 

‘‘Supply’’ or ‘‘Supplied’’ does not 

include internal transactions within a 

business or government entity, and that 

the term only applies to transactions 

between manufacturers/commercial 

distributors that sell, or otherwise 

provide AIM coating products to 

businesses/governmental entities/

individuals. Alternatively, the DOD 

requests that either PADEP provide a 

written reply clarifying whether the 

terms ‘‘supply or ‘‘supplied’’ apply to 

‘‘the single point of contact’’ at military 

installations, or that EPA clarify this 

issue in its response to comments. 

Response: Throughout its comments 

to EPA, the DOD refers to the 

Pennsylvania AIM coatings rule as a 

proposed regulation. In fact, this AIM 

coatings regulation has been fully 

adopted by the Commonwealth of 

Pennsylvania (see 33 Pa. B. 5297, 

October 25, 2003, 33 Pa. B. 5618, 

Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 68081

1One of the commenters has submitted a 

‘‘Request for Correction of Information’’ (RFC) dated 

June 2, 2004, to EPA’s Information Quality 

Guidelines Office in Washington, DC. EPA is 

evaluating and will respond separately to the RFC, 

which raises substantively similar issues to those 

raised by this comment.

November 15, 2003 and 25 Pa. Code 

Subsections 130.601–130.611) and was 

submitted to EPA for approval as 

revision to the Pennsylvania SIP on 

December 3, 2003. EPA’s March 11, 

2004 NPR proposed approval of 

Pennsylvania’s request that its fully 

adopted AIM coatings regulation be 

made part of the SIP. EPA can only take 

action on a SIP revision as it is 

submitted by a state, and cannot, 

through its rulemaking action, alter the 

state’s submission. EPA, however, does 

hereby clarify that it interprets that the 

‘‘single point of control’’ system that the 

military services have developed to 

manage hazardous materials does not 

subject military installations to the rule 

in as much as they do not sell, offer for 

sale or manufacture architectural 

coating products. The DOD does have 

the obligation under section 130.601 of 

the rule to ensure that the products a 

person ‘‘applies or solicits’’ meet the 

requirements of the rule. 

B. Comment: Paperwork 

Requirements for End Users—The DOD 

comments that a few scattered 

references to the ‘‘end user’’ in 

Pennsylvania’s AIM coatings rule 

subject the end user of AIM coatings to 

additional reporting and monitoring 

requirements (e.g., prove that every time 

a coating is used, it is not thinned 

beyond allowable limits). The DOD goes 

on to state that as it is DOD’s practice 

to use coatings as specified by the 

manufacturer, as an end user it will be 

subjected to additional burdensome 

paperwork requirements without any 

demonstrable reductions in VOC 

emissions. The DOD, therefore request 

that 25 Pa. Code subsection 130.603 (c) 

Thinning and (d) Rust Preventative 

Coatings be deleted from Pennsylvania’s 

AIM coatings rule. (From its context, it 

is clear that the DOD’s comment is in 

reference to 130.603(d) Thinning and (e) 

Rust Preventative Coatings in 

Pennsylvania’s AIM coatings 

regulation.)

Response: Pennsylvania’s AIM 

coatings rule does not use the term ‘‘end 

user’’ but rather the term ‘‘the person 

who solicits and applies.’’ As indicated 

in EPA’s response to Comment A, EPA’s 

March 11, 2004 NPR proposed approval 

of Pennsylvania’s request that its fully 

adopted AIM coatings rule be made part 

of the SIP. EPA can only take action on 

a SIP revision as it is submitted by a 

state, and cannot, through its 

rulemaking action, alter the state’s 

submission. EPA, cannot, therefore, 

delete paragraphs (d) Thinning and (e) 

Rust Preventative Coatings from section 

130.603 of the Pennsylvania AIM 

coatings rule by its rulemaking on the 

SIP revision submission. EPA, however, 

does hereby clarify that it does not 

interpret 130.603 (d) and (e) to require 

the person who solicits and applies to 

keep records ‘‘to prove that every time 

a coating is used, it is not thinned 

beyond allowable limits.’’ Rather each 

manufacturer is to comply with 

subsection 130.604(a)(2) Thinning 

Recommendations, and indicate on the 

label or lid its recommendations 

regarding thinning of the coating or 

specify that the coating is to be applied 

without thinning. So long as the person 

who solicits and applies coatings (or 

end user) does so in accordance with 

the VOC limits found in Table 1 of 

Pennsylvania’s AIM coatings rule, that 

person would be in compliance. 

C. Comment: Container Labeling 

Requirements—In its final comment, the 

DOD states that while manufacturers of 

any architectural coatings are required 

to display certain information, such as 

VOC content, on the container, they are 

not required to identify the applicable 

coating category on the container. The 

DOD comments that for easy verification 

of VOC compliance by the user, 25 Pa. 

Code subsection 130.604 should be 

amended to require the coating category 

be listed next to VOC content. 

Response: For the purposes satisfying 

the requirements for approval as a SIP 

revision, EPA has determined that the 

container labeling requirements found 

at section 130.604 of Pennsylvania’s 

AIM coatings rule are adequate. 

D. Comment: The Pennsylvania AIM 

Coatings Rule is Based on Flawed 

Data—Additional comments on EPA’s 

March 11, 2004 NPR proposing approval 

of Pennsylvania’s AIM coatings rule 

have been submitted on behalf of the 

Sherwin Williams Company and from 

the National Paint and Coatings 

Association (NPCA), hereafter referred 

to as the commenters. The comments 

from NPCA reference and endorse the 

comments submitted on behalf of the 

Sherwin Williams Company and 

reiterate the comments made to the 

Commonwealth by NPCA during 

Pennsylvania’s rule adoption process. 

The commenters assert that the 

Pennsylvania AIM coatings rule is based 

on flawed data and that the use of this 

data violates the Data Quality Objectives 

Act (‘‘DQOA’’) (Section 515(a) of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Public Law 106–554; H.R. 5658)). The 

data at issue is contained in what the 

commenters characterize as a ‘‘study 

prepared by E.H. Pechan & Associates’’

(‘‘Pechan Study’’) in 2001. The alleged 

flaws relate to emissions reductions 

calculated in the Pechan Study; certain 

of the underlying data and data analyses 

are allegedly ‘‘unreproduceable.’’

Further, the commenters assert that if 

better data were used, the OTC model 

AIM coatings rule would achieve greater 

VOC emissions reductions, relative to 

the Federal AIM coatings rule, than was 

calculated in the Pechan Study (51 

percent reduction versus 31 percent 

reduction), even if certain source 

categories were omitted from regulation 

under the OTC rule. For these reasons, 

the commenters state that EPA must not 

approve the proposed Pennsylvania 

AIM coatings rule as a revision to the 

SIP.1

Response: EPA disagrees with this 

comment. What the commenters 

characterize as the Pechan Study is not 

at issue in this rulemaking. The Pechan 

Study was not submitted to EPA by the 

Commonwealth in support of its AIM 

coatings rule. Further, even if the 

Pechan Study had been submitted by 

the Commonwealth the validity of that 

data would not be at issue because, at 

this time, Pennsylvania is not asking for 

approval of any quantified amount of 

VOC emission reduction from the 

enactment of its regulation. Rather, this 

regulation has been submitted by the 

Commonwealth, and is being 

considered by EPA, on the basis that it 

strengthens the existing Pennsylvania 

SIP. The commenters do not dispute 

that the Pennsylvania AIM coatings rule 

will, in fact, reduce VOC emissions. 

Section 110 of the Act provides the 

statutory framework for approval/

disapproval of SIP revisions. Under the 

Act, EPA establishes NAAQS for certain 

pollutants. The Act establishes a joint 

Federal and state program to control air 

pollution and to protect public health. 

States are required to prepare SIPs for 

each designated ‘‘air quality control 

region’’ within their borders. The SIP 

must specify emission limitations and 

other measures necessary for that area to 

meet and maintain the required 

NAAQS. Each SIP must be submitted to 

EPA for its review and approval. EPA 

will review and must approve the SIP 

revision if it is found to meet the 

minimum requirements of the Act. See

Section 110(k)(3) of the Act; see also 

Union Elec. Co. v. EPA, 427 U.S. 246, 

265, 96 S.Ct. 2518, 49 L.Ed.2d 474 

(1976). The Act expressly provides that 

the states may adopt more stringent air 

pollution control measures than the Act 

requires with or without EPA approval. 

See Section 116 of the Act. EPA only 

has power to disapprove state plans, 

68082 Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 

2After submission of a request for approval of a 

quantified amount of emissions reductions credit 

due to the AIM coatings rule, EPA will evaluate the 

credit attributable to the rule. Whatever 

methodology and data the State uses in such a 

request, the issue of proper credit will become ripe 

for public comment and any comments received 

will be responded to at that time.

and revisions thereto, that are less 

stringent than a standard or limitation 

provided by Federal law. See Section 

110(k) of the Act; see also Duquesne 

Light v. EPA, 166 F.3d 609 (3d Cir. 

1999).

The Pechan Study is not part of the 

Commonwealth’s submission in support 

of its AIM coatings rule. Because the 

Commonwealth’s December 3, 2003 

submission is not claiming a specific 

amount of emissions reductions, the 

level of emissions reductions that might 

be calculable using data contained in 

the Pechan Study is irrelevant to 

whether EPA can approve this SIP 

revision.2 The only relevant inquiry at 

this time is whether this SIP revision 

meets the minimum criteria for approval 

under the Act, including the 

requirement that the Commonwealth’s 

AIM coatings rule be at least as stringent 

as the Federal AIM coatings rule set 

forth at 40 CFR 59.400, subpart D.

As set forth herein, EPA has 

concluded that the Pennsylvania AIM 

coatings rule meets the criteria for 

approvability. It is worth noting that 

EPA agrees with the commenters’

conclusion that the Pennsylvania AIM 

coatings rule is more stringent than the 

Federal AIM coatings rule, though not 

for the reasons given by the 

commenters, i.e., that the commenters’

‘‘better’’ data demonstrates that OTC 

Model AIM coatings Rule achieves a 51 

percent, as opposed to the Pechan 

Study’s 31 percent reduction in VOC 

emissions beyond that required by the 

Federal AIM coatings rule. Rather, the 

Pennsylvania AIM coatings rule is, on 

its face, more stringent than the Federal 

AIM coatings rule. The preamble of the 

Pennsylvania AIM coatings rule states: 

‘‘This final-form rulemaking sets 

specific VOC content limits, in grams 

per liter, for 48 AIM coating categories 

and requires more stringent VOC 

content limits than the Federal rule.’’ 33 

Pa. B. 5297 (October 25, 2003). 

Examples of where Pennsylvania’s AIM 

coatings rule is facially more stringent 

than the Federal AIM coatings rule 

include, but are not limited to, the VOC 

content limit for non-flat high gloss 

coatings and antifouling coatings. The 

Federal AIM coatings rule VOC content 

limit for non-flat high gloss coatings is 

380 grams/liter while the Pennsylvania 

AIM coatings rule’s limit is 250 grams/

liter, and the Federal AIM coatings 

rule’s VOC content limit for anti-fouling 

coatings is 450 grams/liter while the 

Pennsylvania AIM coatings rule’s is 400 

grams/liter. Examples of where 

Pennsylvania AIM coatings rule is as 

stringent, but not more stringent, than 

the Federal AIM coatings rule include, 

but are not limited to, the VOC content 

limit for antenna coatings and lowsolids coatings. In both rules the VOC 

content limits for these categories are 

530 grams/liter and 120 grams/liter, 

respectively. Thus, on a category by 

category basis, the Pennsylvania AIM 

coatings rule is as stringent or more 

stringent than the Federal AIM coatings 

rule. Further, EPA has received no 

comments that the Pennsylvania AIM 

coatings rule is less stringent than the 

Federal rule. 

E. Comment: Approval of the 

Pennsylvania AIM Coatings rule as a 

SIP Revision Violates Clean Air Act 

Sections 110(a)(2)(A) and 110(a)(2)(E)—

With respect to Sections 110(a)(2)(A) 

and 110(a)(2)(E) of the Act, the 

commenters assert that Pennsylvania 

cannot give the assurances required by 

these provisions of the Act since each 

provision requires that a state be able to 

assure that SIP revisions ‘‘meet 

applicable requirements’’ of the Act, 

and that no ‘‘Federal or State law’’

prohibits the state from ‘‘carrying out 

such implementation plan or portion 

thereof.’’ Such assurance cannot be 

given, the commenters allege, because 

the Pennsylvania AIM coatings rule 

violates the DQOA, Sections 183(e)(9) 

and 184(c) of the Act, and Sections 

4004.2 and 4005 of the Pennsylvania Air 

Pollution Control Act (PAPCA). 

Response: For the reasons set forth 

herein and in responses to comments D. 

and F.–J., EPA disagrees that the 

Pennsylvania AIM coatings rule violates 

the DQOA, the provisions of the CAA or 

the PAPCA. Therefore, nothing prevents 

Pennsylvania from giving the assurances 

contemplated by Sections 110(a)(2)(A) 

and (a)(2)(E) of the Act. 

Section C. of the preamble of 

Pennsylvania’s rule states: ‘‘The final 

form rulemaking is being made under 

section 5 of the Air Pollution Control 

Act (35 P.S. subsection 4005), which 

grants the [Pennsylvania Environmental 

Quality Board (the EQB)] the authority 

to adopt regulations for the prevention, 

control, reduction and abatement of air 

pollution.’’ See C. Statutory Authority, 

33 Pa. B. 5297 (October 25, 2003). The 

EQB made the Finding that ‘‘This 

rulemaking is necessary and appropriate 

for administration and enforcement of 

the authorizing acts identified in 

Section C of this preamble.’’ See J. 

Findings, paragraph (4), 33 Pa. B. 5306 

(October 25, 2003). 

Under 4004.2 of the PAPCA, in order 

for the Commonwealth to adopt a rule 

for the State Implementation Plan that is 

more stringent than its comparable 

Federal requirement, the EQB must find 

that the rule is reasonably necessary to 

achieve and maintain the NAAQS or 

find the rule is necessary to avoid the 

impositions of sanctions under the Act. 

For the Pennsylvania AIM coatings rule, 

the EQB made those Findings. See J. 

Findings, paragraphs (5) and (6), 33 Pa. 

B. 5306 (October 25, 2003). The EQB, 

acting under the authorizing statutes, 

ordered that the regulations of the 

PADEP are amended by adding 

Subsections 130.601–130.611 (as 

correctly renumbered 33 Pa. B. 5618, 

November 18, 2003) as set forth in 

Annex A, which has been codified as 25 

Pa. Code Chapter 130, Subchapter C—

the Pennsylvania AIM coatings rule—

that is the subject of this SIP revision. 

Further the EQB ordered that its 

Chairperson submit the Order and 

Annex A to the Office of the General 

Counsel and the Office of the Attorney 

General for review and approval as to 

legality and form, as required by law. 

The EQB also ordered that its 

Chairperson submit its Order and 

Annex A to the Independent Regulatory 

Review Committee (IRRC) and the 

Senate and House Environmental 

Resources and Energy Committees as 

required by Pennsylvania’s Regulatory 

Review Act. The EQB also ordered that 

its Chairperson certify the Order and 

Annex A and deposit them with the 

Legislative Reference Bureau as required 

by law. Finally the EQB ordered that its 

Order shall take effect immediately 

upon publication in the Pennsylvania 

Bulletin. See K. Order, paragraphs (a)–

(e), 33 Pennsylvania Bulletin 5306 

(October 25, 2003). The Order was 

adopted by the Board at its July 15, 2003 

meeting. Between the July 15, 2003 

adoption date of the Order and the 

October 25, 2003 date of its publication 

in the Pennsylvania Bulletin, the 

reviews as to legality and form of 25 Pa. 

Code Chapter 130, Subchapter C—the 

Pennsylvania AIM coatings rule were 

performed. The PADEP Office of 

General Counsel approved 25 Pa. Code, 

Chapter 130, Subchapter C as to its 

legality and form on July 24, 2003. The 

IRRC approved 25 Pa. Code, Chapter 

130, Subchapter C as to its legality and 

form on September 12, 2003. The Office 

of the Attorney General for the 

Commonwealth of Pennsylvania 

approved 25 Pa. Code, Chapter 130, 

Subchapter C as to its legality and form 

on October 3, 2003. EPA, in its review 

of the SIP revision submission of the 

Pennsylvania AIM coatings rule, has 

Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 68083

3While EPA reviewed the model AIM coatings 

rule and the draft Pennsylvania version of that rule, 

EPA had no authority conferred under the Clean Air 

Act to dictate the exact language or requirements of 

the rule beyond the general requirement that the 

Pennsylvania rule, in order to be approvable as a 

SIP revision, must be at least as stringent as its 

Federal counterpart.

found no reason to indicate that the 

review performed by PADEP’s Office of 

the General Counsel, the IRRC and the 

Office of the Attorney General for the 

Commonwealth of Pennsylvania as to 

the legality of its AIM coatings rule 

under State law, is insufficient. 

(Documentation of the approvals by the 

Office of General Counsel, the IRRC and 

the Office of the Attorney General have 

been made part of the administrative 

record of this final rulemaking). 

F. Comment: The PA AIM Coatings 

Rule Was Adopted in Violation of Clean 

Air Act Section 183(e)(9)—The 

commenters state that in 1998, after a 

seven-year rule development process, 

EPA promulgated its nationwide 

regulations for AIM coatings pursuant to 

Section183(e) of the Act. The 

commenters note that Pennsylvania’s 

AIM coatings rule imposes numerous 

VOC emission limits that will be more 

stringent than the corresponding limits 

in EPA’s regulation. The commenters 

assert that Section 183(e)(9) of the Act 

requires that any state which proposes 

regulations to establish emission 

standards other than the Federal 

standards for products regulated under 

Federal rules shall first consult with the 

EPA Administrator. The commenters 

believe that Pennsylvania failed to 

engage in that required consultation, 

and, therefore (1) Pennsylvania violated 

Section 183(e)(9) in its adoption of the 

Pennsylvania AIM coatings rule, and (2) 

approval of the AIM coatings rule by 

EPA would violate, and is, therefore, 

prohibited by Sections 110(a)(2)(A) and 

(a)(2)(E) of the Act.

Response: EPA disagrees with this 

comment. Contrary to the implication of 

the commenters, Section 183(3)(9) does 

not require states to seek EPA’s 

permission to regulate consumer 

products. By its explicit terms, the 

statute contemplates consultation with 

EPA only with respect to ‘‘whether any 

other state or local subdivision has 

promulgated or is promulgating 

regulations or any products covered 

under [section 183(e)].’’ The 

commenters erroneously construe this 

as a requirement for permission rather 

than informational consultation. 

Further, the final Federal architectural 

coatings regulations at 40 CFR 59.410 

explicitly provides that States and their 

political subdivisions retain authority to 

adopt and enforce their own additional 

regulations affecting these products. See 

also, 63 FR 48848, 48884. In addition, 

as stated in the preamble to the final 

rule for architectural coatings, Congress 

did not intend Section 183(e) to 

preempt any existing or future State 

rules governing VOC emissions from 

consumer and commercial products. See

63 FR 48848, 48857. Accordingly, 

PADEP retains authority to impose more 

stringent limits for architectural 

coatings as part of its SIP, and its 

election to do so is not a basis for EPA 

to disapprove the SIP. See, Union Elec 

Co. v. EPA, 427 U.S. at 265–66 (1976). 

Although national uniformity in 

consumer and commercial product 

regulations may have some benefit to 

the regulated community, EPA 

recognizes that some localities may 

need more stringent regulation to 

combat more serious and more 

intransigent ozone nonattainment 

problems. 

Further, there was ample consultation 

with EPA prior to the Commonwealth’s 

adoption of its AIM coatings rule. On 

March 28, 2001 the OTC adopted a 

Memorandum of Understanding (MOU) 

on regional control measures, signed by 

all the member states of the OTC, 

including Pennsylvania, which 

officially made available the OTC model 

rules, including the AIM coatings model 

rule. See the discussion of this MOU in 

the Report of the Executive Director, 

OTC, dated July 24, 2001, a copy of 

which has been included in 

administrative record of this final 

rulemaking. 

That MOU includes the following 

text, ‘‘WHEREAS after reviewing 

regulations already in place in OTC and 

other States, reviewing technical 

information, consulting with other 

States and Federal agencies, consulting 

with stakeholders, and presenting draft 

model rules in a special OTC meeting, 

OTC developed model rules for the 

following source categories * * * 

architectural and industrial 

maintenance coatings * * *’’ (a copy of 

the signed March 28, 2001 MOU has 

been placed in the administrative record 

of this final rulemaking). 

EPA Region III and the 

Commonwealth of Pennsylvania 

negotiated the adoption of the OTC 

model rules in the FY 2003 Work Plan 

for PADEP’s annual State Assistance 

Grant under Section 105 of the Act. The 

commitment included in the Grant 

Work Plan (which was approved and 

funded by EPA under Section 105 of the 

Act) stated that the PADEP would 

continue to submit outstanding rules 

developed in accordance with the 

March 28, 2001 OTC MOU as SIP 

revisions by September 9, 2003. The 

relevant page of the FY 2003 Grant 

Work Plan has been placed in the 

administrative record of this final 

rulemaking. 

Therefore, there is no validity to the 

commenters’ assertion that 

Pennsylvania failed to consult with EPA 

in the adoption of its AIM coatings rule. 

EPA was fully cognizant of the 

requirements of the Pennsylvania AIM 

coatings rule before its formal adoption 

by the Commonwealth.3 For all these 

reasons, EPA disagrees that 

Pennsylvania violated Section 183(e)(9) 

in its adoption of the its AIM coatings 

rule, and disagrees that approval of the 

Pennsylvania AIM coatings rule by EPA 

is in violation of or prohibited by 

Section 110(a)(2)(A) and (a)(2)(E) of the 

Act.

G. Comment: The PA AIM Coatings 

Rule Was Adopted in Violation of Clean 

Air Act Section 184(c), and Approval of 

the SIP Revision Would, Itself, Violate 

That Section—The commenters believe 

the OTC violated Section 184(c)(l) of the 

Act by failing to ‘‘transmit’’ its 

recommendations to the Administrator, 

and that the OTC’s violation was 

compounded by the Administrator’s 

failure to review the Model Rule 

through the notice, comment and 

approval process required by CAA 

Sections 184(c)(2)–(4). These alleged 

violations of the Act should have 

prevented Pennsylvania from adopting 

the Pennsylvania AIM coatings Rules, 

and now prevent EPA from validly 

approving them as a revision to the 

Pennsylvania SIP. 

Response: EPA disagrees with this 

comment. Section 184(c)(1) of the Act 

states that ‘‘the [OTC] may, after notice 

and opportunity for public comment, 

develop recommendations for 

additional control measures to be 

applied within all or a part of such 

transport region if the commission 

determines such measures are necessary 

to bring any area in such region into 

attainment by the dates provided by this 

subpart.’’ It is important to note that the 

OTC model AIM coatings rule was not 

developed pursuant to Section 184(c)(1), 

which provision is only triggered 

‘‘[u]pon petition of any State within a 

transport region established for ozone 

* * *.’’ No such petition preceded the 

development of the model AIM coatings 

rule. Nor, for that matter, was 

development of a rule upon State 

petition under Section 184(e)(1) meant 

to be the exclusive mechanism for 

development of model rules within the 

OTC. Nothing in Section 184 prevents 

the voluntary development of model 

rules without the prerequisite of a state 

petition. This provision of the Act was 

not intended to prevent OTC’s 

68084 Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 

development of model rules which 

states may individually choose to adapt 

and adopt on their own, as 

Pennsylvania did, basing its AIM 

coatings rule on the model developed 

within the context of the OTC. In 

developing its State rule from the OTC 

model, Pennsylvania was free to adapt 

that rule as it saw fit (or to leave the 

OTC model rule essentially unchanged), 

so long as its rule remained at least as 

stringent as the Federal AIM coatings 

rule. 

As previously stated, on March 28, 

2001, the OTC member states signed a 

MOU on regional control measures, 

including the AIM coatings model rule. 

The OTC did not develop 

recommendations to the Administrator 

for additional control measures. The 

MOU stated that implementing these 

rules will help attain and maintain the 

1-hour standard for ozone and were 

therefore made available to the states for 

use in developing their own regulations. 

Even though the OTC did not develop 

the model AIM coatings rule pursuant to 

Section 184(c)(1) of the Act, 

nevertheless it provided ample 

opportunity for OTC member and 

stakeholder comment by holding several 

public meetings concerning the model 

rules including the AIM coatings model 

rule. The sign-in sheets or agenda for 

four meetings held in 2000 and 2001 at 

which the OTC AIM coatings model was 

discussed (some of which reflect the 

attendance of a representative of the 

EPA and/or the commenters), have been 

placed in the administrative record for 

this final rulemaking.

H. Comment: The PA AIM Coatings 

Rule Was Adopted in Violation of the 

Pennsylvania Air Pollution Control Act 

(PAPCA)—The commenters assert that 

the General Assembly of the 

Commonwealth of Pennsylvania, when 

it amended the PAPCA in 1992, 

addressed the issue of consumer 

product regulation, not by delegating 

rulemaking authority to the EQB, but by 

conferring limited enforcement 

authority upon PADEP. The 

commenters state that the Legislature 

authorized PADEP to enforce the 

Federal standards, not to promulgate its 

own more stringent standards. The 

commenters cite to a provision of the 

PAPCA which confers upon the PADEP 

the power and duty to develop and 

submit to EPA procedures to implement 

and enforce the regulations which EPA 

adopts under Section 183(e) of the Act 

to reduce emissions from consumer and 

commercial products, provided the 

PADEP will receive the credits 

attributed to the Federal consumer and 

commercial products regulations under 

Section 182 of the CAA regulations, and 

that the PADEP has the resources to 

implement and enforce the program. 35 

P.S. subsection 4004. The commenters 

also cite to the PAPCA subsection 4005 

for the proposition that the EQB’s 

rulemaking authority powers are 

specifically enumerated in thirteen 

explicit subsections, none of which 

mention consumer products (with a 

footnote to an exception in 4005(a)(13) 

related to aerospace coatings). The 

commenters also point to PAPCA 

subsection 4004.2 to note that it is the 

Legislature’s expressed intent that 

delegated rulemaking authority not be 

broadly construed but is limited by a 

requirement that any rule adopted by 

the EQB under the PAPCA be no more 

stringent than a specific Federal rule. 

The commenters conclude, therefore, 

that if Pennsylvania chooses to regulate 

AIM coatings beyond the levels set by 

EPA, that choice must be made by the 

Pennsylvania General Assembly in the 

form of a specific statute or by 

delegating additional specific 

rulemaking authority to the EQB, and as 

such delegation is absent, the 

Pennsylvania AIM coatings rule is 

unlawful as a matter of Pennsylvania 

law. 

Response: EPA disagrees with this 

comment. The commenters’ citations to 

the PAPCA are incomplete with regard 

to the ability of the Commonwealth to 

adopt air pollution control regulations 

that are more stringent than comparable 

Federal requirements. The commenters 

fail to note the provisions under PAPCA 

subsection 4004.2(b) whereby the 

Commonwealth may adopt a rule for the 

State Implementation Plan that is more 

stringent than its comparable Federal 

requirement, if the EQB finds that the 

rule is reasonably necessary to achieve 

and maintain the NAAQS or necessary 

to avoid the impositions of sanctions 

under the Act. Pennsylvania adopted its 

AIM coatings rule to achieve additional 

VOC reductions from AIM coatings. The 

Pennsylvania AIM coatings rule is a part 

of the Commonwealth’s strategy to 

achieve and maintain the ozone 

standard throughout the 

Commonwealth. The Federal AIM 

coatings rule was promulgated in 1998. 

To capture additional VOC emission 

reductions, the Commonwealth adopted 

its more stringent AIM coatings rule in 

October of 2003. As EPA notes in its 

response to Comment B., the 

Pennsylvania AIM coatings rule sets 

specific VOC content limits, in grams 

per liter, for 48 AIM coating categories 

and requires, for certain categories, 

more stringent VOC content limits than 

the Federal Rule. As indicated in EPA’s 

response to Comment D., EPA 

acknowledges that under the PAPCA, in 

order for the EQB to adopt a rule for the 

State Implementation Plan that is more 

stringent than its comparable Federal 

requirement, the EQB must find that the 

rule is reasonably necessary to achieve 

and maintain the NAAQS or to avoid 

the imposition of sanctions. For the 

Pennsylvania AIM coatings rule, the 

EQB made those Findings. See J. 

Findings, paragraphs (5) and (6), 33 

Pennsylvania Bulletin 5306 (October 25, 

2003). Consequently, EPA believes that 

the EQB has made the requisite findings 

for the adoption of rules and regulations 

more stringent than those required by 

the Act. Moreover, the Office of General 

Counsel for PADEP, the 

Commonwealth’s IRRC, and the Office 

of the Attorney General for the 

Commonwealth of Pennsylvania have 

each approved the Pennsylvania AIM 

coatings rule with regard to its legality 

and form under Pennsylvania law. See 

EPA’s response to Comment E. EPA, in 

its review of the SIP revision 

submission of the Pennsylvania AIM 

coatings rule, has found no reason to 

indicate that the review performed by 

PADEP’s Office of the General Counsel, 

the IRRC and the Office of the Attorney 

General for the Commonwealth of 

Pennsylvania as to the legality of its 

AIM coatings rule under State law, is 

insufficient. EPA has, therefore, 

determined pursuant to Section 

110(a)(2)(E) of the Clean Air Act and 40 

CFR section 51, appendix V, that 

Pennsylvania has provided the 

necessary assurances that it has 

adequate authority to implement the SIP 

revision and that it has followed all the 

procedural requirements of 

Pennsylvania’s laws and constitution in 

adopting the SIP revision submitted to 

EPA. 

I. Comment: The Pennsylvania AIM 

Coatings Rule Violates the Commerce 

Clause of the U.S. Constitution—The 

commenters claim that the Pennsylvania 

AIM coatings rule violates the 

Commerce Clause of Article I, Section 8, 

of the U.S. Constitution, because it 

imposes an unreasonable burden on 

interstate commerce. The commenters 

assert that because the Pennsylvania 

AIM coatings rule contains VOC limits 

and other provisions that differ from the 

Federal AIM coatings rule in 40 CFR 

59.400, the rule causes an unreasonable 

restriction on coatings in interstate 

commerce. The commenters further 

assert that the burdens of the 

Pennsylvania AIM coatings rule are 

excessive and outweigh the benefits of 

the rule. The commenters suggest that 

EPA should disapprove the SIP revision 

on this basis. 

Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 68085

Response: EPA agrees with this 

comment only to the extent that it 

acknowledges that AIM coatings are 

products in interstate commerce and 

that state regulations on coatings 

therefore have the potential to violate 

the Commerce Clause. EPA understands 

the commenters’ practical concerns 

caused by differing state regulations, but 

disagrees with the commenters’ view 

that the Pennsylvania AIM coatings rule 

impermissibly impinges on interstate 

commerce. A state law may violate the 

Commerce Clause in two ways: (i) By 

explicitly discriminating between 

interstate and intrastate commerce; or 

(ii) even in the absence of overt 

discrimination, by imposing an 

incidental burden on interstate 

commerce that is markedly greater than 

that on intrastate commerce. The 

Pennsylvania AIM coatings rule does 

not explicitly discriminate against 

interstate commerce because it applies 

evenhandedly to all coatings 

manufactured or sold for use within the 

state. At most, therefore, the 

Pennsylvania AIM coatings rule could 

have an incidental impact on interstate 

commerce. In the case of incidental 

impacts, the Supreme Court has applied 

a balancing test to evaluate the relative 

impacts of a state law on interstate and 

intrastate commerce. See, Pike v. Bruce 

Church, Inc., 397 U.S. 137 (1970). 

Courts have struck down even 

nondiscriminatory state statutes when 

the burden on interstate commerce is 

‘‘clearly excessive in relation to the 

putative local benefits.’’ Id. at 142.

At the outset, EPA notes that it is 

unquestionable that the Commonwealth 

has a substantial and legitimate interest 

in obtaining VOC emissions for the 

purpose of attaining the ozone NAAQS. 

The adverse health consequences of 

exposure to ozone are well known and 

well established and need not be 

repeated here. See, e.g., National 

Ambient Air Quality Standards for 

Ozone: Final Response to Remand, 68 

FR 614, 620–25 (January 6, 2003). Thus, 

the objective of the Commonwealth in 

adopting the Pennsylvania AIM coatings 

rule is to protect the public health of the 

citizens of Pennsylvania. The courts 

have recognized a presumption of 

validity where the state statute affects 

matters of public health and safety. See, 

e.g., Kassel v. Consolidated Freightways 

Corp. of Delaware, 450 U.S. 662, 671 

(1980). Moreover, even where the state 

statute in question is intended to 

achieve more general environmental 

goals, courts have upheld such statutes 

notwithstanding incidental impacts on 

out of state manufacturers of a product. 

See, e.g, Minnesota v. Clover Leaf 

Creamery, et al., 449 U.S. 456 

(1981)(upholding state law that banned 

sales of milk in plastic containers to 

conserve energy and ease solid waste 

problems). 

The commenters assert, without 

reference to any facts, that the 

Pennsylvania AIM coatings rule 

imposes burdens and has impacts on 

consumers that are ‘‘clearly excessive in 

relation to the purported benefits 

***’’ By contrast, EPA believes that 

any burdens and impacts occasioned by 

the Pennsylvania AIM coatings rule are 

not so overwhelming as to trump the 

state’s interest in the protection of 

public health. First, the Pennsylvania 

AIM coatings rule does not restrict the 

transportation of coatings in commerce 

itself, only the sale of nonconforming 

coatings within the state’s own 

boundaries. The state’s rule excludes 

coatings sold or manufactured for use 

outside the state or for shipment to 

others. 25 Pa. Code. 130.601(1). The 

Pennsylvania AIM coatings rule cannot 

be construed to interfere with the 

transportation of coatings through the 

state en route to other states. As such, 

EPA believes that the cases concerning 

impacts on the interstate modes of 

transportation themselves are 

inapposite. See, e.g., Bibb v. Navajo 

Freight Lines, 359 U.S. 520 (1938). 

Second, the Pennsylvania AIM 

coatings rule is not constructed in such 

as way that it has the practical effect of 

requiring extraterritorial compliance 

with the state’s VOC limits. The 

Pennsylvania AIM coatings rule only 

governs coatings manufactured or sold 

for use within the state’s boundaries. 

The manufacturers of coatings in 

interstate commerce are not compelled 

to take any particular action, and they 

retain a range of options to comply with 

the rule, including, but not limited to: 

(1) Ceasing sales of nonconforming 

products in Pennsylvania; (2) 

reformulating nonconforming products 

for sale in Pennsylvania and passing the 

extra costs on to consumers in that state; 

(3) reformulating nonconforming 

products for sale more broadly; (4) 

developing new lines of conforming 

products; or (5) entering into 

production, sales or marketing 

agreements with companies that do 

manufacture conforming products. 

Because manufacturers or sellers of 

coatings in other states are not forced to 

meet Pennsylvania’s regulatory 

requirements elsewhere, the rule does 

not impose the type of obligatory 

extraterritorial compliance that the 

courts have considered unreasonable. 

See, e.g., NEMA v. Sorrell, 272 F.3d 104 

(2nd Cir. 2000) (state label requirement 

for light bulbs containing mercury sold 

in that state not an impermissible 

restriction). It may be that the 

Pennsylvania AIM coatings rule will 

have the effect of reducing the 

availability of coatings or increasing the 

cost of coatings within the State, but 

courts typically view it as the 

prerogative of the state to make 

regulatory decisions with such impacts 

upon its own citizens. NPCA v. City of 

Chicago, 45 F.3d 1124 (7th Cir. 1994), 

cert. denied, 515 U.S. 1143 (1995) (local 

restriction on sales of paints used by 

graffiti artists may not be the most 

effective means to meet objective, but 

that is up to the local government to 

decide). 

Third, the burdens of the 

Pennsylvania AIM coatings rule 

typically do not appear to fall more 

heavily on interstate commerce than 

upon intrastate commerce. The effect on 

manufacturers and retailers will fall on 

all manufacturers and retailers 

regardless of location if they intend 

their products for sale within 

Pennsylvania, and does not appear to 

have the effect of unfairly benefitting instate manufacturers and retailers. The 

mere fact that there is a burden on some 

companies in other states does not alone 

establish impermissible interference 

with interstate commerce. See, Exxon 

Corp. v. Maryland, 437 U.S. 117, 126 

(1978). 

In addition, EPA notes that courts do 

not typically find violations of the 

Commerce Clause in situations where 

states have enacted state laws with the 

authorization of Congress. See, e.g., 

Oxygenated Fuels Assoc., Inc. v. Davis,

63 F. Supp. 1182 (E.D. Cal. 2001) (state 

ban on MTBE authorized by Congress); 

NEMA v. Sorell, 272 F.3d 104 (2nd Cir. 

2000) (RCRA’s authorization of more 

stringent state regulations confers a 

‘‘sturdy buffer’’ against Commerce 

Clause challenges). Section 183(e) of the 

Act governs the Federal regulation of 

VOCs from consumer and commercial 

products, such as coatings covered by 

the Pennsylvania AIM coatings rule. 

EPA has issued a Federal regulation that 

provides national standards, including 

VOC content limits, for such coatings. 

See 40 CF 59.400 et seq. Congress did 

not, however, intend Section 183(e) to 

pre-empt additional state regulation of 

coatings, as is evident in Section 

183(e)(9) which indicates explicitly that 

states may regulate such products. 

EPA’s regulations promulgated pursuant 

to the Act recognized that states might 

issue their own regulations, so long as 

they meet or exceed the requirements of 

the Federal regulations. See, e.g., the 

National Volatile Organic Compound 

Emission Standards for Architectural 

Coatings, 40 CFR 59.410, and the 

68086 Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 

4As noted in Virginia v. EPA, 108 F.3d 1397 (DC 

Cir. 1997), EPA does have the authority within the 

mechanism created by Section 184 of the Act to 

order states to adopt control measures 

recommended by the OTC, if EPA agrees with and 

approves that recommendation. 108 F.3d, n.3 at 

1402. As we have previously stated, the OTC model 

AIM coatings rule was not developed pursuant to 

the Section 184 mechanism; EPA therefore has no 

authority to order that Pennsylvania or any other 

state adopt this measure in order to reduce VOC 

emissions.

Federal Register which published the 

standards, 63 FR 48848, 48857 

(September 11, 1998). Thus, EPA 

believes that Congress has clearly 

provided that a state may regulate 

coatings more stringently than other 

states. 

In Section 116 of the Act, Congress 

has also explicitly reserved to states and 

their political subdivisions the right to 

adopt local rules and regulations to 

impose emissions limits or otherwise 

abate air pollution, unless there is a 

specific Federal preemption of that 

authority. When Congress intended to 

create such Federal preemption, it does 

so through explicit provisions. See, e.g.,

Section 209(a) of the Act, which 

pertains to state or local emissions 

standards for motor vehicles; and 

Section 211 of the Act which pertains to 

fuel standards. Moreover, the very 

structure of the Act is based upon 

‘‘cooperative federalism,’’ which 

contemplates that each state will 

develop its own state implementation 

plan, and that states retain a large 

degree of flexibility in choosing which 

sources to control and to what degree in 

order to attain the NAAQS by the 

applicable attainment date. Union 

Electric Co. v. EPA, 427 U.S. 246 (1976). 

Given the structure of the Act, the mere 

fact that one state might choose to 

regulate sources differently than another 

state is not, in and of itself, contrary to 

the Commerce Clause.

Finally, EPA understands that there 

may be a practical concern that a 

plethora of state regulations could create 

a checkerboard of differing requirements 

would not be the best approach to 

regulating VOCs from AIM coatings or 

other consumer products. Greater 

uniformity of standards does have 

beneficial effects in terms of more cost 

effective and efficient regulations. As 

EPA noted in its own AIM coatings rule, 

national uniformity in regulations is 

also an important goal because it will 

facilitate more effective regulation and 

enforcement, and minimize the 

opportunities for undermining the 

intended VOC emission reductions. 63 

FR 48856–48857. However, EPA also 

recognizes that Pennsylvania and other 

states with longstanding ozone 

nonattainment problems have local 

needs for VOC reductions that may 

necessitate more stringent coatings 

regulations. Under Section 116 of the 

Act, states have the authority to do so, 

and significantly, many states in the 

Northeast have joined together to 

prepare and promulgate regulations 

more restrictive than the Federal AIM 

coatings rule to apply uniformly across 

that region. This regional collaboration 

provides regional uniformity of 

standards. Pennsylvania may have 

additional burdens to insure compliance 

with its rule, but for purposes of this 

action EPA presumes that the 

Commonwealth take appropriate actions 

to enforce it as necessary. The EPA has 

no grounds for disapproval of the SIP 

revision based upon the commenters’

Commerce Clause comment. 

J. Comment: The Emission Limits and 

Compliance Schedule in the 

Pennsylvania AIM Coatings Rule are 

Neither Necessary nor Appropriate to 

Meet Applicable Requirements of the 

Clean Air Act—The commenters claim 

that the Pennsylvania AIM coatings rule 

is not ‘‘necessary or appropriate’’ for 

inclusion in the Pennsylvania SIP, 

because EPA did not direct 

Pennsylvania to achieve VOC 

reductions through the AIM coatings 

rule, but left it to the State to decide 

how such reduction can be achieved. 

The commenters further assert that the 

Pennsylvania AIM coatings rule is not 

necessary or appropriate for inclusion in 

the Pennsylvania SIP because of the 

numerous procedural and substantive 

failings on the part of PADEP in 

promulgating the rule. 

Response: EPA disagrees with this 

comment. If fulfillment of the 

‘‘necessary or appropriate’’ condition of 

Section 110(a)(2)(A) required EPA to 

determine that a measure was necessary 

or appropriate and require a state to 

adopt that measure, this condition 

would present a ‘‘catch 22’’ situation. 

EPA does not generally have the 

authority to require the State to enact 

and include in its SIP any particular 

control measure, even a ‘‘necessary’’

one.4 However, under Section 

110(a)(2)(a) a control measure must be 

either ‘‘necessary or appropriate’’

(emphasis added); the use of the 

disjunctive ‘‘or’’ does not provide that a 

state must find that only a certain 

control measure and no other measure

will achieve the required reduction. 

Rather, a state may adopt and propose 

for inclusion in its SIP any measure that 

meets the other requirements for 

approvability so long as that measure is 

at least as appropriate, though not 

exclusive, means of achieving emissions 

reduction. See also, Union Elec. Co. v. 

EPA, 427 U.S. 246, 264–266 (1976) 

(holding that ‘‘necessary’’ measures are 

those that meet the ‘‘minimum 

conditions’’ of the Act, and that a state 

‘‘may select whatever mix of control 

devices it desires,’’ even ones more 

stringent than Federal standard, to 

achieve compliance with a NAAQS, and 

that ‘‘the Administrator must approve 

such plans if they meet the minimum 

requirements’’ of Section 110(a)(2) of 

the Act). Clearly, in light of the Act and 

the case law, EPA’s failure to specify the 

state adoption of a specific control 

measure cannot dictate whether a 

measure is necessary or appropriate.

In this particular instance, EPA 

identified an emission reduction 

shortfall associated with Pennsylvania’s 

1-hour ozone attainment demonstration 

SIP, and required Pennsylvania to 

address the shortfall (See, 64 FR 70428 

and 66 FR 54143). It is the 

Commonwealth’s prerogative to develop 

whatever rule or set of rules it deems 

necessary or appropriate such that the 

rule or rules will collectively achieve 

the additional emission reductions for 

attainment of the 1-hour ozone standard 

as identified by EPA. 

As stated previously, the 

Commonwealth’s December 3, 2003 SIP 

revision submittal, supplemented by 

further documentation added to the 

administrative record by EPA to 

respond to comments submitted on its 

March 11, 2004 NPR, provides evidence 

that it that it has the legal authority to 

adopt its AIM rule and that it has 

followed all of the requirements in the 

Commonwealth law and constitution 

that are related to adoption of the plan. 

K. Comment: The Written Comments 

Submitted by the Commenters to the 

Pennsylvania EQB, the Pennsylvania 

IRRC and the PADEP on Pennsylvania’s 

Proposed Version of its AIM Coatings 

Rule Are Incorporated by Reference into 

the Comments Submitted to EPA on its 

March 11, 2004 NPR Proposing 

Approval of the Final, Adopted 

Pennsylvania AIM Coatings Rule—In 

their letters submitted to EPA as 

comment to EPA’s proposed approval of 

the Pennsylvania AIM coatings rule, the 

commenters incorporate by reference a 

letter from Madelyn K. Harding, 

Sherwin Williams Company to the 

Pennsylvania EQB dated February 20, 

2002 and its attachments; a letter from 

W. Lance H. Hernsarth, Sherwin 

Williams Company to Kathleen 

McGinty, Secretary of the Pennsylvania 

DEP, dated April 21, 2003 and its 

attachment; a letter from Harvey P. Sass, 

Sherwin Williams Company to 

Commissioner John R. McGinley, Jr., 

IRRC, dated September 5, 2003 and its 

attachment; and NPCA’s Statement 

Before Pennsylvania Independent 

Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 68087

Regulatory Review Commission, dated 

September 12, 2003. The following 

summarizes the comments presented to 

Pennsylvania and incorporated by 

reference by the commenters: 

(1) The commenters have significant 

concerns with the proposed standards 

for certain paints and coatings, e.g., 

interior wood clear and semitransparent stains, interior wood 

vanishes, interior wood sanding sealers, 

exterior wood primers, and floor 

coatings. The commenters assert that 

Pennsylvania’s proposed AIM coatings 

regulation is based upon the inaccurate 

assumption that compliant coatings are 

available or can be developed which 

will satisfy customer requirements and 

meet all of the performance 

requirements of these categories. The 

commenters contend that such coatings 

are not effectively within the limits of 

current technology and that this 

inaccurate assumption will result in 

increased and earlier repainting which 

can damage floors in Pennsylvania due 

to seasonal variations in temperature 

and humidity.

(2) The commenters contend that 

PADEP has not considered the increase 

in emissions resulting from the 

performance issues and consequential 

repainting. 

(3) The commenters suggest changes 

to the VOC standards for only a few of 

the product categories proposed by 

Pennsylvania in its AIM coatings 

regulation, and claim that the version of 

the AIM coatings rule it counterproposes will achieve significant 

reductions beyond the Federal AIM 

coatings rule (26.5 tons/day) which is 

very close to the amount of emission 

reductions determined by PADEP for 

the Pennsylvania proposed regulation. 

(4) The commenters state that 

Pennsylvania’s proposed AIM coatings 

rule is unreasonably stringent and 

unnecessary for the protection of public 

health, welfare and safety, and it is 

arbitrary and capricious as the record 

does not support the emission reduction 

claims. 

(5) The commenters contend that 

Pennsylvania’s proposed AIM coatings 

rule will have a significant adverse 

impact on the commenters, and that the 

PADEP can issue a regulation that 

achieves substantial VOC reductions 

beyond the Federal AIM coatings rule 

without causing serious adverse impact 

on potential sales of certain products. A 

further comment contends that due to 

Pennsylvania’s climate, the added costs 

of heating trucks and warehouses to 

transport and store coatings will 

adversely impact manufacturers, 

shippers, end users and on society in 

the form of more energy consumption. 

(6) The commenters assert that the 

economic analysis of Pennsylvania’s 

proposed AIM coatings rule is 

inaccurate because it uses a cost figure 

of $6400 per ton of emissions reduced 

based upon an economic analysis done 

for California. The commenters contend 

that the cost figure is inappropriate 

given the differences in the stringency 

of the current requirements for AIM 

coatings in Pennsylvania versus 

California, and therefore, Pennsylvania 

needs to make an independent 

determination of the cost of VOC 

reductions from its proposed AIM 

coatings regulation. 

(7) The commenters indicate that both 

the Consumer Products regulation and 

AIM coatings rule proposed by 

Pennsylvania are based on rule 

developments in California. However, 

Pennsylvania’s proposal includes the 

California averaging provision for 

consumer products but does not do so 

for AIM. The commenters assert that the 

failure to include the California 

averaging provision in the Pennsylvania 

AIM coatings rule is arbitrary and 

capricious, and places an unequal 

burden on the architectural coating 

industry. 

(8) The commenters also submitted 

comments to the Commonwealth of 

Pennsylvania regarding its proposed 

AIM coatings rule asserting that the EQB 

and PADEP do not have authority under 

the Commerce Clause and the 

Pennsylvania Air Pollution Control Act 

(PAPCA) to adopt the proposed AIM 

coatings rule. 

Response: As previously stated in this 

document, EPA disagrees with the 

commenter’s assertion that the adoption 

of the AIM coatings regulation by the 

Commonwealth is in violation of the 

PAPCA. Please see EPA’s response to 

Comment H. With regard to the 

comments regarding the Commerce 

Clause, please see EPA’s response to 

Comment I. 

With regard to the other comments 

submitted by the commenters to the 

Commonwealth on its proposed AIM 

coatings rule that they have 

incorporated by reference in their 

comments to EPA on EPA’s March 11, 

2004 proposed approval, EPA’s 

response is that it is important to 

understand EPA’s role and 

responsibilities with regard to the 

review and approval, or disapproval, of 

rules submitted as SIP revisions. Prior to 

approving a SIP revision request 

submitted by a state, EPA reviews the 

submission to ensure that the state 

provided the opportunity for comment 

and held a hearing(s) on the proposed 

state regulation that is at issue in the SIP 

revision pursuant to Section 110(a) of 

the Act. In this case, the Commonwealth 

of Pennsylvania’s December 3, 2003 

submission of its AIM coatings rule to 

EPA includes the necessary 

documentation to demonstrate that it 

met these requirements. The 

Commonwealth’s December 3, 2003 SIP 

revision submission is included in 

docket of this rulemaking. A complete 

SIP revision submission from a state 

includes copies of timely comments 

properly submitted to the state on the 

proposed SIP revision and the state’s 

responses to those comments. The 

Commonwealth of Pennsylvania’s 

December 3, 2003 submission of its AIM 

coatings rule as a SIP revision to EPA 

properly includes both the comments 

submitted on its proposed AIM coatings 

rule and the Commonwealth’s responses 

to those comments. (See both the 

document entitled, Architectural and 

Industrial Maintenance (AIM) Coatings, 

Comment and Response Document 

prepared by the DEP, dated February 27, 

2003 and 33 Pennsylvania Bulletin 5297 

(October 25, 2003)). 

The Commonwealth of Pennsylvania’s 

SIP revision submission of its AIM 

coatings rule does not request that EPA 

approve a specific amount of VOC 

emission reduction credit. As such, the 

comments regarding the 

Commonwealth’s emission reduction 

calculations are not germane to EPA’s 

rulemaking to approve Pennsylvania’s 

requested SIP revision. The 

Commonwealth’s responses to the 

timely comments on the proposed 

Pennsylvania AIM coatings rule made 

by the commenters to Pennsylvania are 

included in the Commonwealth’s 

December 3, 2003 submission to EPA for 

approval of the SIP revision.

The cost per ton figure determined by 

the Commonwealth in its economic 

analysis, its decision to rely upon 

information from California and its 

decision whether to include averaging 

provisions in its final AIM coatings rule 

are all decisions which fall within a 

state’s purview, and issues regarding 

those decisions are rightfully raised by 

interested parties to the State during its 

regulatory adoption process. Therefore, 

it was appropriate that the commenters 

commented to the Commonwealth on 

these matters during the adoption of its 

AIM coatings rule. EPA has reviewed 

the SIP revision submitted and has 

determined that the commenters’

comments on those issues they have 

incorporated by reference on this 

rulemaking, along with the 

Commonwealth’s responses to those 

issues, are included therein. In the 

context of a SIP approval, EPA’s review 

of these state decisions is limited to 

whether the SIP revision meets the 

68088 Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 

minimum criteria of the Act. Provided 

that the rule adopted by the state 

satisfies those criteria, EPA must 

approve such a SIP revision. See, Union 

Elec Co. v. EPA. 

With regard to the comments 

concerning the availability of complying 

coatings and the ability to develop 

complying coatings that can meet 

customer requirements and performance 

requirements, EPA notes (as did the 

Commonwealth in its responses to such 

comments) that the final version of the 

Pennsylvania AIM coatings regulation 

includes variance provisions at 

130.606–130.610. These provisions 

allow for variances from the VOC 

standards found in 130.603 to be 

granted by the PADEP to applicants 

which demonstrate technological 

infeasibility. EPA finds that the 

Commonwealth’s approach to address 

demonstrated technological infeasibility 

in its AIM coatings rule by the variance 

provisions of 130.606–130.610 is both 

reasonable and within its purview, and 

therefore approvable as a SIP revision. 

III. Final Action 

EPA is approving the Pennsylvania 

SIP revision for the control of VOC 

emissions from AIM coatings submitted 

on December 3, 2003 and supplemented 

on October 19, 2004. The Pennsylvania 

AIM coatings rule is part of the 

Commonwealth’s strategy to achieve 

and maintain the 1-hour ozone standard 

throughout the Commonwealth. 

IV. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

state law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under state law and does not impose 

any additional enforceable duty beyond 

that required by state law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Public Law 104–4). This rule also does 

not have tribal implications because it 

will not have a substantial direct effect 

on one or more Indian tribes, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes, as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. In reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. In this 

context, in the absence of a prior 

existing requirement for the State to use 

voluntary consensus standards (VCS), 

EPA has no authority to disapprove a 

SIP submission for failure to use VCS. 

It would thus be inconsistent with 

applicable law for EPA, when it reviews 

a SIP submission, to use VCS in place 

of a SIP submission that otherwise 

satisfies the provisions of the Clean Air 

Act. Thus, the requirements of section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) do not apply. This 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. This rule is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2).

C. Petitions for Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 24, 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, 

pertaining to Pennsylvania’s AIM 

coatings rule, may not be challenged 

later in proceedings to enforce its 

requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Reporting and recordkeeping 

requirements, Volatile organic 

compounds.

Dated: November 1, 2004. 

Donald S. Welsh, 

Regional Administrator, Region III.

■ 40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

■ 1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart NN—Pennsylvania

■ 2. Section 52.2020 is amended by 

adding paragraph (c)(227) to read as 

follows:

§ 52.2020 Identification of plan.

* * * * *

(c) * * * 

(227) Revisions pertaining to the 

control of volatile organic compound 

emissions from architectural and 

industrial maintenance coatings 

submitted on December 3, 2003 and 

October 19, 2004 by the Commonwealth 

of Pennsylvania Department of 

Environmental Protection: 

(i) Incorporation by reference. 

(A) Letters of December 3, 2003 and 

October 19, 2004 from the Pennsylvania 

Department of Environmental Protection 

transmitting Pennsylvania’s 

Architectural and Industrial 

Maintenance Coatings regulations. 

Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 68089

(B) 25 Pa. Code Chapter 130, 

Subchapter C. Architectural and 

Industrial Maintenance Coatings, 

Subsections 130.601–130.611, inclusive, 

effective October 25, 2003. 

(ii) Additional Material.—Remainder 

of the Commonwealth’s submittals 

pertaining to the revisions listed in 

paragraph (c)(227)(i) of this section.

[FR Doc. 04–25815 Filed 11–22–04; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

46 CFR Parts 10, 12, 28, 30 

[USCG–2004–18884] 

RIN 1625–ZA03 

Shipping and Transportation; 

Technical, Organizational and 

Conforming Amendments

AGENCY: Coast Guard, DHS.

ACTION: Final rule; corrections.

SUMMARY: This document contains 

corrections to the Shipping and 

Transportation; Technical, 

Organizational and Conforming 

Amendments final rule for Titles 46 and 

49 of the Code of Federal Regulations 

(USCG–2004–18884) published on 

September 30, 2004, in the Federal 

Register (69 FR 58336).

DATES: These corrections are effective 

November 23, 2004.

ADDRESSES: Documents as indicated in 

this preamble are available for 

inspection or copying at the Docket 

Management Facility, USCG–2004–

18884, U.S. Department of 

Transportation, room PL–401, 400 

Seventh Street, SW., Washington, DC, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

You may also find this docket on the 

Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If 

you have questions on these corrections, 

call Robert Spears, Project Manager, 

Standards Evaluation and Development 

Division (G–MSR–2), Coast Guard, at 

202–267–1099. If you have questions on 

viewing, or submitting material to the 

docket, call Andrea M. Jenkins, Program 

Manager, Docket Operations, 

Department of Transportation, 

telephone 202–366–0271.

SUPPLEMENTARY INFORMATION: 

Background 

Each year titles 46 and 49 of the Code 

of Federal Regulations are updated on 

October 1. That rule, which became 

effective September 30, 2004, corrected 

organization names and addresses, 

revised authority citations for certain 

parts to reflect our move to the 

Department of Homeland Security 

(DHS) in March 2003, and made other 

technical and editorial corrections 

throughout titles 46 and 49. Neither that 

rule nor this rule makes any substantive 

change to the existing regulations. 

Need for Correction 

The final rule that was published on 

September 30, 2004, contains errors 

which may prove to be misleading and 

need to be clarified. This rule makes 

those clarifications.

List of Subjects 

46 CFR Part 10 

Reporting and recordkeeping 

requirements, Schools, Seamen. 

46 CFR Part 12 

Reporting and recordkeeping 

requirements, Seamen. 

46 CFR Part 28 

Fire prevention, Fishing vessels, 

Marine safety, Occupational safety and 

health, Reporting and recordkeeping 

requirements, Seamen. 

46 CFR Part 30 

Cargo vessels, Foreign relations, 

Hazardous materials transportation, 

Penalties, Reporting and recordkeeping 

requirements, Seamen.

■ For the reasons discussed in the 

preamble, the Coast Guard amends 46 

CFR parts 10, 12, 28, and 30 as follows:

PART 10—LICENSING OF MARITIME 

PERSONNEL

■ 1. The authority citation for part 10 

continues to read as follows:

Authority: 14 U.S.C. 633; 31 U.S.C. 9701; 

46 U.S.C. 2101, 2103, and 2110; 46 U.S.C. 

Chapter 71; 46 U.S.C. 7502, 7505, 7701, 8906; 

Department of Homeland Security Delegation 

No. 0170.1. Sec. 10.107 is also issued under 

the authority of 44 U.S.C. 3507.

§ 10.805 [Amended]

■ 2. In § 10.805(f), remove the words 

‘‘The expiration date of a certificate of 

registry issued without an expiration 

date shall be determined in accordance 

with § 10.811.’’

PART 12—CERTIFICATION OF 

SEAMEN

■ 3. The authority citation for part 12 

continues to read as follows:

Authority: 31 U.S.C. 9701; 46 U.S.C. 2101, 

2103, 2110, 7301, 7302, 7503, 7505, 7701; 

Department of Homeland Security Delegation 

No. 0170.1.

■ 4. Revise § 12.02–3(b)(3) to read as 

follows:

§ 12.02–3 Where documents are issued. 

(a) * * * 

(b) * * * 

(3) The written examinations are 

forwarded to the Commanding Officer, 

National Maritime Center by Merchant 

Marine Details. Any Marine Inspection 

Office at which an applicant with a 

temporary permit appears may request 

and obtain the examination in the case 

from the Commanding Officer, National 

Maritime Center. Any Marine Inspection 

Office which doubts the propriety of 

issuing a permanent certificate in lieu of 

a temporary permit which has been 

issued by a foreign Merchant Marine 

Detail shall inform the Commanding 

Officer, National Maritime Center fully 

as to the circumstances.

§ 12.15–5 [Amended]

■ 5. In § 12.15–5(c), remove the word 

‘‘therefore’’ and add, in its place, the 

word ‘‘therefor’’.

PART 28—REQUIREMENTS FOR 

COMMERCIAL FISHING INDUSTRY 

VESSELS

■ 6. The authority citation for part 28 

continues to read as follows:

Authority: 46 U.S.C. 3316, 4502, 4505, 

4506, 6104, 10603; Department of Homeland 

Security Delegation No. 0170.1.

§ 28.30 [Amended]

■ 7. In § 28.30(a), after the words 

‘‘subchapter S’’, remove the words ‘‘of 

this chapter’’; and before the words 

‘‘subchapter S’’, add the words ‘‘33 

CFR’’.

PART 30—GENERAL PROVISIONS

■ 8. The authority citation for part 30 

continues to read as follows:

Authority: 46 U.S.C. 2103, 3306, 3703; 

Pub. L. 103–206, 107 Stat. 2439; 49 U.S.C. 

5103, 5106; Department of Homeland 

Security Delegation No. 0170.1; Section 

30.01–2 also issued under the authority of 44 

U.S.C. 3507; Section 30.01–05 also issued 

under the authority of Sec. 4109, Pub. L. 

101–380, 104 Stat. 515.

§ 30.15–1 [Amended]

■ 9. In § 30.15–1(a) remove the word 

‘‘therefore’’ and add, in its place, the 

word ‘‘therefor’’.

§ 30.30–11 [Amended]

■ 10. In § 30.30–11(b) remove the word 

‘‘therefore’’ and add, in its place, the 

word ‘‘therefor’’.