72118 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[Region 2 Docket No. NY70–279, FRL–7845–

8] 

Approval and Promulgation of 

Implementation Plans; New York State 

Implementation Plan Revision; 1-Hour 

Ozone Control Program

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a revision to 

the New York State Implementation 

Plan (SIP) for ozone concerning the 

control of volatile organic compounds. 

The SIP revision consists of 

amendments to title 6 of the New York 

Codes, Rules and Regulations, part 205, 

‘‘Architectural and Industrial 

Maintenance Coatings.’’ This SIP 

revision consists of a control measure 

needed to meet the shortfall emissions 

reduction identified by EPA in New 

York’s 1-hour ozone attainment 

demonstration SIP. The intended effect 

of this action is to approve a control 

strategy required by New York’s SIP 

which will result in emission reductions 

that will help achieve attainment of the 

national ambient air quality standard for 

ozone.

EFFECTIVE DATE: This rule will be 

effective January 12, 2005.

ADDRESSES: A copy of the New York’s 

submittal is available at the following 

addresses for inspection during normal 

business hours:

Environmental Protection Agency, 

Region 2 Office, Air Programs Branch, 

290 Broadway, 25th Floor, New York, 

New York 10007–1866. 

New York State Department of 

Environmental Conservation, Division 

of Air Resources, 625 Broadway, 

Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Kirk 

J. Wieber, Air Programs Branch, 

Environmental Protection Agency, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866, (212) 637–3381 or 

Wieber.Kirk@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. What Is Required by the Clean Air 

Act and How Does It Apply to New 

York? 

Section 182 of the Clean Air Act (the 

Act) specifies the mandatory State 

Implementation Plan (SIP) submittal 

requirements for areas classified as 

nonattainment for the 1-hour ozone 

national ambient air quality standards 

(NAAQS) and when SIP submissions 

must be made to EPA by the states. The 

specific requirements vary depending 

upon the severity of the ozone problem. 

The New York–Northern New Jersey–

Long Island area is classified as a severe 

1-hour ozone nonattainment area. Under 

section 182, severe ozone nonattainment 

areas were required to submit 

demonstrations of how they would 

attain the 1-hour standard. On 

December 16, 1999 (64 FR 70364), EPA 

proposed approval of New York’s 1-

hour ozone attainment demonstration 

SIP for the New York–Northern New 

Jersey–Long Island nonattainment area. 

In that rulemaking, EPA identified an 

emission reduction shortfall associated 

with New York’s 1-hour ozone 

attainment demonstration SIP, and 

required New York to address the 

shortfall. In a related matter, the Ozone 

Transport Commission (OTC) developed 

six model rules which identified control 

measures for a number of source 

categories and estimated emission 

reduction benefits from implementing 

these model rules. These model rules 

were designed for use by states in 

developing their own regulations to 

achieve additional emission reductions 

to close emission shortfalls. 

On February 4, 2002 (67 FR 5170), 

EPA approved New York’s 1-hour ozone 

attainment demonstration SIP. This 

approval included an enforceable 

commitment submitted by New York to 

adopt additional control measures to 

close the shortfall identified by EPA for 

attainment of the 1-hour ozone 

standard. 

EPA is aware that concerns have been 

raised about the achievability of VOC 

content limits of some of the product 

categories. Although we are approving 

this rule today, the Agency is concerned 

that if the rule 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 states and 

manufacturers to explore ways to ensure 

that the rules achieve the intended VOC 

emission reductions, and we intend to 

address this issue in evaluating the 

amount of VOC emission reduction 

credit attributable to the rules. 

II. What Was Included in New York’s 

Submittal? 

On November 4, 2003 Carl Johnson, 

Deputy Commissioner, New York State 

Department of Environmental 

Conservation (NYSDEC), submitted to 

EPA a revision to the SIP which 

included revisions to title 6 of the New 

York Codes, Rules and Regulations 

(NYCRR), part 205, ‘‘Architectural and 

Industrial Maintenance (AIM) 

Coatings.’’ It was supplemented on 

November 21, 2003. The revisions to 

part 205 (also referred to as the New 

York AIM coatings rule) will provide 

volatile organic compound (VOC) 

emission reductions to address, in part, 

the shortfall identified by EPA. New 

York used the OTC model rule as a 

guideline to develop part 205. 

On January 13, 2004, EPA determined 

that the SIP revision submitted by New 

York containing revisions to part 205 

was administratively complete pursuant 

to the criteria found in title 40, part 51, 

appendix V of the Code of Federal 

Regulations. On January 16, 2004 (69 FR 

2557), EPA proposed approval of part 

205. For a detailed discussion on the 

content and requirements of the 

revisions to New York’s part 205, the 

reader is referred to EPA’s proposed 

rulemaking action. 

III. What Comments Did EPA Receive 

in Response to Its Proposal? 

In response to EPA’s January 16, 2004 

proposed rulemaking action, EPA 

received comments from two interested 

parties; (1) Richard M. Cogen, Nixon 

Peabody LLP, on behalf of the SherwinWilliams Company, and (2) James Sell, 

on behalf of the National Paint and 

Coating Association. A summary of the 

comments received and EPA’s responses 

are as follows:

A. Comment: The New York AIM 

Coatings Rule Is Based on Flawed Data 

A commenter asserts that the New 

York 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 

commenter has characterized as ‘‘a 

study prepared by E.H. Pechan and 

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 

commenter asserts 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 commenter states that EPA must not

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 72119

1This commenter 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.

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.

approve the New York AIM coatings 

rule as a revision to the SIP.1

Response: EPA disagrees with this 

comment. The Pechan Study is not at 

issue in this rulemaking. The Pechan 

Study was not submitted to EPA by the 

State in support of its AIM coatings rule. 

Further, even if the Pechan Study had 

been submitted by the State, the validity 

of that data would not be at issue 

because, at this time, New York 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 State, and is being considered by 

EPA, on the basis that it strengthens the 

existing New York SIP. The commenter 

does not dispute that the New York 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 section 110 

of the Act. See also Union Electric 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 the 

authority to disapprove specific SIP 

revisions that are less stringent than a 

standard or limitation provided by 

Federal law (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 New 

York’s submission in support of its AIM 

coatings rule. Because New York at this 

time is not claiming a specific amount 

of emissions reductions, the level of 

emissions reductions rightly or wrongly 

calculated by 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 State AIM coatings 

rule be at least as stringent as the 

Federal AIM coatings rule set forth at 40 

CFR 59.400.

As set forth above, EPA has 

concluded that the New York AIM 

coatings rule meets the criteria for 

approvability. It is worth noting that 

EPA agrees with the commenter’s 

conclusion that the New York AIM 

coatings rule is more stringent than the 

Federal AIM coatings rule, though not 

for the reasons given by the commenter 

(i.e., that its ‘‘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 New York AIM coatings rule is, on 

its face, more stringent. The preamble of 

the New York AIM coatings rule states: 

‘‘The revisions set specific VOC limits 

(in grams per liter) for 52 coating 

categories and require compliance with 

those limits by January 1, 2005. These 

new limits are more stringent than the 

Federal AIM coatings rule for 40 

categories and more stringent than the 

current State rule for 31 categories (page 

4, New York State Register, Rule Making 

Activities, November 12, 2003).’’

Examples of where New York’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 New York 

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 

New York AIM coatings rule is 400 

grams/liter. An example of where the 

New York AIM coatings rule is as 

stringent, but not more stringent, than 

the Federal AIM coatings rule is the 

VOC content limit for antenna coatings 

and low-solids coatings. In both the 

State and Federal rules, the VOC 

content limits for these categories is 530 

grams/liter and 120 grams/liter, 

respectively. Thus, on a category by 

category basis, the New York AIM 

coatings rule is as stringent or more 

stringent than the Federal AIM coatings 

rule. Further, EPA has received no 

comments that the New York AIM 

coatings rule is less stringent than the 

Federal rule. 

B. Comment: Approval of the New York 

AIM Coatings Rule as a SIP Revision 

Violates Sections 110(a)(2)(A) and 

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

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

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

commenter asserts that New York 

cannot give the assurances required by 

these provisions of the Act since each 

provision requires that a state be able to 

assure that a SIP revision meets 

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 commenter alleges, the New 

York AIM coatings rule violates the 

DQOA, sections 183(e)(9), and 184(c) of 

the Act, the New York State 

Environmental Quality Review Act, the 

New York State Administrative 

Procedures Act and the New York 

Environmental Conservation Law.

Response: For the reasons set forth in 

responses to comments A, C, D, E and 

F, EPA disagrees that the New York AIM 

coatings rule violates the DQOA, the 

Act, the New York State Environmental 

Quality Review Act, the New York State 

Administrative Procedures Act, and the 

New York Environmental Conservation 

Law. Therefore, nothing prevents New 

York from giving the assurances under 

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

Act. 

C. Comment: The New York AIM 

Coatings Rule Was Adopted in Violation 

of Section 183(e)(9) of the Clean Air Act 

A commenter states that in 1998, after 

a seven-year rule development process, 

EPA promulgated its nationwide 

regulations for AIM coatings pursuant to 

section 183(e) of the Act. The 

commenter notes that New York’s AIM 

coatings rule imposes numerous VOC 

emission limits that will be more 

stringent than the corresponding limits 

in EPA’s regulation. The commenter 

asserts that section 183(e)(9) 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 commenter 

believes that New York failed to engage 

in that required consultation, and 

therefore, (1) New York violated section 

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

York AIM coatings rule, and (2) EPA

72120 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 

3While EPA reviewed the AIM model rule and 

the draft New York 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 New 

York rule, in order to be approvable as a SIP 

revision, must be at least as stringent as its Federal 

counterpart.

approval of this rule would violate, and 

be 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 commenter, section 183(e)(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 on any products covered 

under [section 183(e)].’’ The commenter 

erroneously construes 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) of the Act to 

preempt any existing or future state 

rules governing VOC emissions from 

consumer and commercial products. See

63 FR 48848, 48857. Accordingly, 

NYSDEC 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 

Electric Co. v. EPA, 427 U.S. 246, 265–

66 (1976). EPA favors national 

uniformity in consumer and commercial 

product regulation, but recognizes that 

some localities may need more stringent 

regulations to combat more serious and 

more intransigent ozone nonattainment 

problems. 

Further, there was ample consultation 

with EPA prior to the State’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 

New York, which officially made 

available the OTC model rules, 

including the AIM 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. It should also be noted 

that the March 28, 2001 MOU, was 

transmitted to Robert Brenner, Assistant 

Administrator for the Office of Air and 

Radiation of EPA, and to various EPA 

Regional offices, as was the July 24, 

2001 Report of the Executive Director. 

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). 

Moreover, NYSDEC provided EPA 

Region 2 the opportunity to review and 

comment on the New York AIM 

coatings rule in its draft and proposed 

versions. Given all of the above, there is 

no validity to the commenter’s assertion 

that New York failed to consult with 

EPA in the adoption of its AIM coatings 

rule. EPA was fully cognizant of the 

requirements of the New York AIM 

coatings rule before its formal adoption 

by the State.3 For all of the above 

mentioned reasons, EPA disagrees that 

New York violated section 183(e)(9) in 

its adoption of its AIM coatings rule, 

and disagrees that approval of the New 

York AIM coatings rule by EPA is in 

violation of or prohibited by sections 

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

D. Comment: The New York AIM 

Coatings Rule Was Adopted in Violation 

of Section 184(c) of the Clean Air Act, 

and Approval of the SIP Revision 

Would, Itself, Violate That Section 

The commenter believes 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 section 184(c)(2)–(4) 

of the Act. These alleged violations of 

the Act should have prevented New 

York from adopting its AIM coatings 

rule, and now prevent EPA from validly 

approving them as a revision to the New 

York SIP. 

Response: EPA disagrees with this 

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

states that ‘‘the Commission (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 ‘‘Upon 

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(c)(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 development of model 

rules which states may individually 

choose to adapt and adopt on their own, 

as New York 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, New York 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 stated above, on March 28, 2001, 

the OTC and member states, signed a 

MOU on regional control measures 

which officially made available to the 

public the model rules, including the 

AIM 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 its 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 signin 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 

commenter), have been placed in the 

administrative record for this final 

rulemaking.

E. Comment: The New York AIM 

Coatings Rule Was Adopted in Violation 

of Section 19–0303 of the New York 

Environmental Conservation Law (ECL) 

The Commenter asserts that NYSDEC 

violated section 19–0303(3) of the ECL

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 72121

because the New York AIM coatings 

rule applies statewide even though 

additional control measures are needed 

only for the New York City metropolitan 

area. The commenter contends that by 

failing to adequately consider comments 

which suggested that the rules could be 

tailored more closely to that 

metropolitan area, the State failed to 

observe the law’s requirement to ‘‘give 

due recognition to the fact that’’ relevant 

differences in air quality or emission 

characteristics among geographical areas 

in the State may call for differential 

applicability of emission reduction 

requirements among differing 

geographical areas. 

The commenter also asserts that 

NYSDEC violated section 19–0303(4) of 

the ECL because it failed to prepare a 

sufficient regulatory impact assessment. 

Specifically, the commenter contends 

that among other failings, New York 

relied upon grossly inadequate data as 

discussed above, failed to perform any 

State-specific cost or impact studies, 

and failed to analyze the costeffectiveness of any reasonably available 

alternatives to the New York AIM 

coatings rule. 

In addition, the commenter asserts 

that NYSDEC violated section 19–

0303(5) of the ECL because it failed to 

provide notice in the State 

Environmental Notice Bulletin of the 

OTC’s March 2001 recommendation 

with respect to the OTC model rule on 

which the New York AIM coatings rule 

is closely based, or to solicit public 

review of the model rule. 

Response: EPA disagrees with this 

comment. The New York final AIM 

coatings rule was adopted by the State 

pursuant to the provisions of sections 1–

0101, 3–0301, 19–0103, 19–0105, 19–

0301, and 19–0305 of the ECL, which 

grants the NYSDEC the authority to 

adopt regulations for the prevention, 

control, reduction and abatement of air 

pollution. NYSDEC has found that this 

regulation is necessary for the State to 

attain ambient air quality standards 

(New York State Register, Rule Making 

Activities, March 19, 2003, page 8 and 

New York State Register, Rule Making 

Activities, November 12, 2003, page 7, 

both of which are part of NYSDEC’s 

AIM coatings rule SIP revision 

submittal). With respect to the 

commenter’s assertion that the AIM 

coatings rule was only needed for the 

New York City metropolitan area, it is 

the State’s prerogative as to whether it 

adopts a rule applicable statewide or 

nonattainment area specific. New York 

adopted its AIM coatings rule to achieve 

VOC emission reductions necessary to 

attain the 1-hour ozone standard in the 

New York—Northern New Jersey—Long 

Island nonattainment area, but also, 

New York adopted its AIM coatings rule 

applicable statewide in order to make 

progress towards reducing 8-hour ozone 

levels in recently designated 

nonattainment areas located in New 

York State that are outside of the New 

York City metropolitan area. See New 

York State Register, Rule Making 

Activities, March 19, 2003, page 8. 

In addition, though the State could 

have decided to limit the application of 

the rule to selected areas of the State, it 

elected to apply its AIM coatings rule 

statewide. Rather than opting for a 

county by county variation in regulatory 

limits affecting the sales and use of 

products, New York opted for a unitary 

system. Doing so may reduce the burden 

on manufacturers to have to track the 

point of sale and use of products and 

enhances the effectiveness and 

enforceability of the rule by helping to 

minimize the opportunity for use of 

noncomplying products within 

nonattainment areas. We do not 

consider the State’s decision to opt for 

statewide applicability of the limits 

unreasonable. In any event, New York’s 

decision to implement its AIM coatings 

rule with wider geographic scope than 

that of a specific nonattainment area is 

simply not a grounds for EPA to 

disapprove the regulation under section 

110 of the Act. As explained elsewhere, 

states retain the ability under the Act to 

regulate such products so long as they 

at least meet the requirements of the 

Federal AIM rule. 

With respect to the commenter’s 

assertion concerning the need for a 

regulatory impact statement, EPA 

disagrees. NYSDEC did prepare a 

regulatory impact statement which 

included a cost impact study. Since in 

most respects the New York AIM 

coatings rule is very similar to the 

California Air Research Board (CARB) 

‘‘Suggested Control Measure for 

Architectural Coatings,’’ NYSDEC 

utilized the cost information that 

supported the CARB action. Though 

NYSDEC undertook no independent 

cost analysis, it reviewed and analyzed 

the information used by CARB and 

included this information in its 

regulatory impact statement. The CARB 

cost information reflects information 

supplied by manufacturers who market 

AIM coatings nationally. These 

manufacturers are representative of 

those affected by the New York AIM 

coatings rule. Therefore, EPA has 

determined that the analysis and 

conclusions provided for the CARB 

action are sufficient for the New York 

AIM coatings rule. 

With respect to the comment 

concerning the OTC model rule, EPA 

does not agree that New York should 

have solicited public review of the OTC 

model rule. In development of the 

model rule, the OTC Stationary and 

Area Sources Committee met with 

numerous stakeholders on several 

occasions (See EPA’s response to 

Comment D) to discuss and to solicit 

comments on specific aspects of the 

control measures being considered, 

including the AIM model rule. It is also 

important to note that the NYSDEC held 

public hearings on April 28, 2003, April 

30, 2003, and May 2, 2003, for the 

proposed New York AIM coatings rule. 

In addition, in its review of the SIP 

revision submission of the New York 

AIM coatings rule, EPA has found no 

reason to indicate that the review 

performed by NYSDEC’s Counsel’s 

Office, as to the legality of its AIM 

coatings rule under State law, is 

insufficient. Therefore, EPA has 

determined, pursuant to section 

110(a)(2)(E) of the Act and 40 CFR part 

51, appendix V, that New York 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 the 

New York constitution and laws in 

adopting the SIP revision submitted to 

EPA. 

F. Comment: The State Violated the 

State Administrative Procedure Act 

(SAPA) and State Environmental 

Quality Review Act (SEQRA) in Its 

Adoption of the New York AIM Coatings 

Rule 

The commenter states that NYSDEC’s 

adoption of the New York AIM coatings 

rule was subject to SAPA. Section 

202(5)(b) of the SAPA requires that 

NYSDEC publish and make available to 

the public an assessment of public 

comment on the proposed rule, 

including a summary and analysis of the 

issues raised by the comments and 

significant alternatives suggested in the 

comments. Section 202(5)(b) of the 

SAPA also required that the assessment 

include a statement of the reasons why 

any significant alternatives were not 

incorporated into the rule. The 

commenter stated that NYSDEC violated 

section 202(5)(b) of the SAPA because 

its assessment of public comments (the 

‘‘Response to Comments’’ document) 

failed completely to identify or respond 

to a number of comments and failed to 

provide a statement as to why several 

alternatives suggested by the commenter 

and others were not incorporated into 

the rule. 

Section 202–a(1) of the SAPA requires 

that, in promulgating the New York AIM 

coatings rule, NYSDEC consider 

utilizing approaches designed to avoid

72122 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 

undue deleterious economic effects or 

overly burdensome impacts on affected 

persons. The commenter stated that 

NYSDEC violated section 202–a(1) of 

the SAPA by failing to give adequate 

consideration to approaches suggested 

by the commenters that would have 

avoided undue deleterious economic 

effect and other undue impacts on the 

regulated community.

SEQRA requires that agencies in New 

York review the environmental impact 

of actions that they propose to take ‘‘as 

early as possible in the formulation of 

a proposal for actions.’’ Section 8–

0109(4) of the ECL. Such review must 

evaluate whether the proposed action 

‘‘may have a significant effect’’ on the 

environment. To fulfill its obligations 

under SEQRA, State agencies in New 

York must take a ‘‘hard look’’ at the 

potential environmental impact of their 

proposals and make a reasoned 

elaboration of the basis for their impact 

determination. 

The commenter stated that in 

promulgating the New York AIM 

coatings rule, NYSDEC violated these 

basic requirements of SEQRA. The 

commenter contends that NYSDEC 

failed to review the impact of the rule 

early enough in its rulemaking process. 

The commenter further asserted that 

NYSDEC should have performed, but 

failed to perform, an environmental 

impact analysis, and should have 

rendered a determination of significance 

at the point at which it endorsed a 

proposal for action in March 2001 

(when it approved the OTC’s MOU, 

committing to pursue adoption of the 

OTC model rule). The commenter went 

on to state that NYSDEC compounded 

this ‘‘violation’’ by failing to perform an 

adequate evaluation of the 

environmental impacts of the New York 

AIM coatings rule either at the time that 

it formally proposed them or at the time 

of adoption. It contends that NYSDEC’s 

failings in that regard included, but 

were not limited to, its failure to obtain 

or consider any State-specific 

information, its failure to assess the 

impacts of requiring use of products that 

will not be suitable for their intended 

purpose, the reliance on data of 

insufficient quality, and its failure to 

reasonably consider available 

alternatives. It is the commenter’s 

position that these violations of SAPA 

and SEQRA are grounds to invalidate 

the New York AIM coatings rule under 

State law and cause the State to be 

without sufficient authority to 

implement them. 

Response: EPA disagrees with the 

commenter’s assertion concerning 

SAPA. New York did in fact include an 

assessment of public comments in its 

November 4, 2003, SIP revision 

submittal which was also included in 

the November 12, 2003, New York State 

Register for the State’s final approval of 

the New York AIM coatings rule. This 

assessment included responses to 

specific comments and to comments in 

general. Failure to quote comments 

provided to NYSDEC verbatim does not 

constitute failure to respond to such 

comments. After review of the 

comments and NYSDEC’s responses, 

EPA has determined that the NYSDEC 

responses are sufficient. In addition, 

NYSDEC does not have to consider 

every conceivable alternative to the 

rulemaking proposal (McKinney’s 

section 8–0109, subdivisions 2(d), 4 of 

the ECL; 6 NYCRR section 617.14(f)(5)), 

but can focus on those alternatives 

which can be implemented and which 

are consistent with the objectives of the 

rulemaking. 

EPA also disagrees with the 

commenter’s assertion concerning 

SEQRA. SEQRA requires that ‘‘all 

agencies determine whether the actions 

they directly undertake, fund or approve 

may have a significant impact on the 

environment, and, if it is determined 

that the action may have a significant 

adverse impact, prepare or request an 

environmental impact statement.’’

Adoption of the New York AIM coatings 

rule will result in a positive impact to 

the environment by achieving VOC 

emission reductions necessary to attain 

the 1-hour standard in the New YorkNorthern New Jersey-Long Island 

nonattainment area and will also make 

progress towards reducing 8-hour ozone 

levels statewide. Therefore, since the 

impact will not be adverse, an 

environmental impact statement was 

not necessary.

As stated earlier, in its review of the 

SIP revision submission of the New 

York AIM coatings rule, EPA has found 

no reason to indicate that the review 

performed by NYSDEC’s Counsel’s 

Office, as to the legality of its AIM 

coatings rule under State law, is 

insufficient. Therefore, EPA has 

determined, pursuant to section 

110(a)(2)(E) of the Act and 40 CFR part 

51, appendix V, that New York 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 the 

New York constitution and laws in 

adopting the SIP revision submitted to 

EPA. 

G. Comment: The New York AIM 

Coatings Rule Violates the Equal 

Protection Clause of the U.S. 

Constitution 

A commenter claimed that the New 

York AIM coatings rule violates The 

Equal Protection Clause of the United 

States Constitution because the Equal 

Protection Clause entitles persons, 

including corporate entities, to equal 

protection under the law. The New York 

AIM coatings rule allows only ‘‘small 

manufacturers’’ (defined as those who 

manufacture less than 3,000,000 gallons 

per year) to seek a limited short-term 

exemption from the rules based on an 

inability to meet the VOC content limits 

due to economic and/or technical 

infeasibility. This exemption would 

provide small manufacturers with 

additional time to acquire the 

technology for producing compliant 

coatings. The commenter contends that 

this exemption, which is not available 

to large manufacturers (even if they 

could satisfy the economic and/or 

technical infeasibility requirement) is 

not rationally related to any legitimate 

legislative purpose. The commenter 

further states that it also is 

unconstitutionally protectionist and 

discriminates against both large 

manufacturers and out-of-state 

manufacturers. It is the commenter’s 

position that large manufacturers, like 

small manufacturers, should not be 

required to comply with infeasible 

limits, and should be provided with 

equal protection under the law. The 

commenter suggested that EPA should 

disapprove the New York AIM coatings 

rule SIP revision because of this alleged 

abridgment of its Constitutional rights. 

Response: EPA disagrees with the 

commenter’s allegations that the New 

York AIM coatings rule violates the 

Equal Protection Clause of the 

Fourteenth Amendment to the U.S. 

Constitution. The mere fact that the 

State has elected to treat ‘‘small’’ and 

‘‘large’’ manufacturers of coatings 

differently does not, in and of itself, 

constitute a violation of the 

Constitution. 

The Equal Protection Clause provides, 

inter alia, that ‘‘[n]o State shall * * * 

deny to any person within its 

jurisdiction the equal protection of the 

laws.’’ U.S. Const. amend XIV section 1. 

This clause is generally understood to 

mean that similar persons will be dealt 

with in a similar fashion under a state 

law. This does not mean, however, that 

a government may never classify 

persons and treat them differently. The 

ability of a state to differentiate between 

persons depends upon the nature of the 

classification scheme and the nature of

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 72123

the rights at issue. The New York AIM 

coatings rule does not affect 

fundamental rights and it does not 

adversely affect suspect classes. In the 

case of state statute that relates solely to 

matters of economics or general social 

welfare, the statute need only rationally 

relate to a legitimate governmental 

purpose. 

It is primarily the role of the courts to 

decide when a state action is rationally 

related to a legitimate governmental 

purpose. Nevertheless, based upon the 

administrative record for the New York 

AIM coatings rule, EPA believes that the 

State would pass that test. First, the 

State had a legitimate interest in 

drawing a distinction between large and 

small manufacturers. Its stated purpose 

for treating small manufacturers 

differently was to provide them with 

assistance to comply with the rule. See, 

‘‘Assessment of Public Comments on 

Proposed Revisions to 6 NYCRR part 

205, Architectural and Industrial 

Maintenance (AIM) Coatings,’’ Response 

#48.

The State explained that it is 

obligated, by State law, to: ‘‘consider 

implementation approaches that will 

minimize adverse impacts * * * on 

small businesses * * * including 

establishing different compliance or 

reporting requirements or timetables 

that take into account the resources 

available to small businesses * * * and 

exempt such entities from compliance 

with the rule so long as the public 

health, safety, or general welfare is not 

endangered.’’ Id., (explaining 

requirements of section 202–b of the 

New York Administrative Procedures 

Act). Following this statutory 

requirement, the State indicated that it 

had identified the small manufacturers 

in the State, evaluated their product 

lines, and targeted the regulatory 

exemption in such a way that it would 

provide necessary relief to small 

businesses, yet not undermine the 

overall VOC emission reduction 

objectives of the New York AIM 

coatings rule. 

The State noted that it elected to 

create the exemption in order: ‘‘To 

ensure that those businesses which have 

limited product lines and little if any 

research and development resources do 

not face crippling financial impacts 

from the adoption of the rule and have 

an opportunity and sufficient time to 

come into compliance.’’ In addition, the 

State also explained why it decided not 

to extend the exemption to all 

manufacturers, regardless of size and 

economic resources: ‘‘[t]he effect of 

adopting such a broad based exemption 

would be to swallow the whole rule. 

The [state] could not rely on any VOC 

reductions from the adoption of the 

proposed rule if every manufacturer 

could apply for an exemption that 

would never expire.’’ Id. The State thus 

has a number of legitimate interests in 

creation of the small business 

exemption, including: (i) Compliance 

with State law; (ii) assuring that small 

manufacturers are not unnecessarily put 

out of business with the attendant 

economic and social costs; and (iii) 

assuring the overall effectiveness of the 

rule to achieve the intended VOC 

emission reduction goals for protection 

of public health. 

To achieve these legitimate goals, EPA 

believes that the State has chosen an 

approach that is rationally related to the 

intended effect. The State targeted the 

exemption to what it decided were 

companies that would have more 

limited research and development 

resources. It made the exemption 

temporary so that these small 

companies would eventually 

manufacture coatings that would meet 

the VOC limits. One might disagree with 

the approach that the State has taken, 

but EPA concludes that the approach is 

rationally related to the intended goals. 

Courts have required that a such law 

need only have such a rational basis to 

pass muster under the Equal Protection 

Clause, not that it be perfect. See, NPCA

v. City of Chicago, 45 F.3d 1124, 1127–

28 (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, but also not 

irrational to meet the objective). 

In addition, EPA believes the 

commenter has not shown that there is 

no rational basis for this distinction. 

The commenter simply asserts that 

larger manufacturers should be treated 

in the same way as smaller 

manufacturers and that the provision is 

not related to any legitimate legislative 

purpose. EPA notes, however, that 

Congress and EPA have drawn 

distinctions in control requirements 

applicable under the Act based on the 

size of the entities subject to the 

requirements and either exempted 

smaller entities or subjected them to less 

stringent requirements. See, e.g., section 

182(b)(3) of the Act which provides 

exempting smaller service stations from 

certain requirements; 40 CFR 86.708–

94(a)(1)(i)(B)(1)(iv) which provides for 

exemptions for small volume motor 

vehicle manufacturers from certain 

requirements. EPA also notes that the 

Regulatory Flexibility Act requires 

Federal agencies to examine the impacts 

of regulations on small entities, 

including small businesses, and 

determine whether small businesses 

should be subject to different and less 

burdensome regulatory requirements 

than larger entities. Consequently, there 

is a rational basis for a distinction 

between larger and smaller entities. 

Finally, EPA notes that the 

commenter asserts without any 

justification that this provision of the 

New York AIM coatings rule 

discriminates against out-of-state 

manufacturers. EPA does not believe 

that this provision does so. The New 

York AIM coatings rule’s limited shortterm exemption provision applies to 

small manufacturers, as defined by the 

rule, regardless of whether they are 

located within or outside of New York 

State. 

Given the legitimate interest of the 

State, and the rational relationship 

between the goals and the State’s 

approach, EPA concludes that it should 

not disapprove the New York AIM 

coatings rule based upon the Equal 

Protection Clause. 

H. Comment: The New York AIM 

Coatings Rule Violates the Commerce 

Clause of the U.S. Constitution 

The commenter claimed that the New 

York 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 commenter 

asserted that because the New York 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 commenter further 

asserted that the burdens of the New 

York AIM coatings rule are excessive 

and outweigh the benefits of the rule. 

The commenter suggested that EPA 

should disapprove the SIP revision on 

this basis. 

Response: EPA agrees 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 commenter’s practical 

concerns caused by differing state 

regulations, but disagrees with the 

commenter’s view that the New York 

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 New York AIM coatings 

rule does not explicitly discriminate 

against interstate commerce, because it

72124 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 

applies evenhandedly to all coatings 

manufactured or sold for use within the 

state. The New York AIM coatings rule’s 

limited short-term exemption provision 

applies to small manufacturers, as 

defined by the rule, regardless of 

whether they are located within or 

outside of New York State. 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 State has a 

substantial and legitimate interest in 

obtaining VOC emissions reductions 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 614620–61425 (January 6, 2003). 

Thus, the New York AIM coatings rule 

is protective of the public health of the 

citizens of New York State. 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 commenter asserts, without 

reference to any facts, that the New York 

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 the burdens of the 

New York AIM coatings rule are not so 

overwhelming as to trump the State’s 

interest in the protection of public 

health. First, the New York 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. New York AIM Coatings, subpart 

205.1(b). The New York 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 New York AIM coatings 

rule is not constructed in such a way 

that it has the practical effect of 

requiring extraterritorial compliance 

with the state’s VOC limits. The New 

York 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 wide 

range of options to comply with the 

rule, including but not limited to: (i) 

Ceasing sales of nonconforming 

products in New York; (ii) reformulating 

nonconforming products for sale in New 

York and passing the extra costs on to 

consumers in that state; (iii) 

reformulating nonconforming products 

for sale more broadly; (iv) developing 

new lines of conforming products; or (v) 

entering into production, sales or 

marketing agreements with companies 

that do manufacture conforming 

products. Because manufacturers or 

retailers of coatings in other states are 

not forced to meet New York’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 is 

not an impermissible restriction). The 

New York AIM coatings rule may 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 regard to such impacts upon its 

own citizens. See NPCA v. City of 

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

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

(while local restriction on sales of paints 

used by graffiti artists may not be the 

most effective means to meet objective, 

it is up to the local government to 

decide). 

Third, the burdens of the New York 

AIM coatings rule do not appear to fall 

more heavily on interstate commerce 

than upon intrastate commerce. The 

effect on manufacturers and retailers 

will fall on manufacturers and retailers, 

regardless of location, if they intend 

their products for sale within New York, 

and does not appear to have the effect 

of unfairly benefitting instate 

manufacturers or 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 

have not found 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 New York AIM coatings rule. EPA 

has issued a Federal regulation that 

provides national standards, including 

VOC content limits, for such coatings. 

See 40 CFR 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 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 intends 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; 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

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 72125

4As noted in Virginia v. EPA, 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 previously stated, the OTC AIM 

model rule was not developed pursuant to the 

section 184 mechanism; EPA therefore has no 

authority to order that New York or any other state 

adopt this measure in order to reduce VOC 

emissions.

sources to control and to what degree in 

order to attain the NAAQS by the 

applicable attainment date. See 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 

that might not be the simplest 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 New York 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 clearly have the authority to 

do so. New York may have additional 

burdens to insure compliance with its 

rule, but for purposes of this action EPA 

presumes that the State will take 

appropriate actions to enforce it as 

necessary. Because the New York AIM 

coatings rule meets the requirements of 

section 110(a)(2) of the Act, EPA has an 

obligation to approve the rule. EPA has 

no grounds for disapproval of the New 

York AIM coatings rule based upon the 

commenters commerce clause comment. 

I. Comment: The Emission Limits and 

Compliance Schedule in the New York 

AIM Coatings Rule Are Neither 

Necessary Nor Appropriate to Meet 

Applicable Requirements of the Clean 

Air Act 

The commenter claims that the New 

York AIM coatings rule is not 

‘‘necessary or appropriate’’ for inclusion 

in the New York SIP, because EPA did 

not direct New York to achieve VOC 

reductions through the AIM coatings 

rule, but left it to the State to decide 

how such reduction can be achieved. 

The commenter further asserts that the 

New York AIM coatings rule is also not 

necessary or appropriate for inclusion in 

the New York SIP because of the 

numerous procedural and substantive 

failings on the part of NYSDEC 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 an appropriate (and not 

necessarily exclusive), means of 

achieving emissions reduction. See also, 

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

264–266 (1976) in which the Court held 

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).’’ Clearly, in light of 

the Act and the caselaw, EPA’s failure 

to specify state adoption of a specific 

control measure cannot dictate whether 

a control measure is necessary or 

appropriate.

In this particular instance, EPA 

identified an emission reduction 

shortfall associated with New York’s 1-

hour ozone attainment demonstration 

SIP, and required New York to address 

the shortfall. See, 64 FR 70364 and 67 

FR 5170. It is the State’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 State’s 

November 4, 2003, SIP revision 

submittal provides evidence that it has 

the legal authority to adopt the New 

York AIM coatings rule and that it has 

followed all of the requirements in the 

State’s law and constitution that are 

related to adoption of the New York 

AIM coatings rule. 

J. Comment: Comments Submitted to 

the NYSDEC on New York’s Proposal of 

Its AIM Coatings Rule Are Incorporated 

by Reference in Sherwin-Williams’

Letter to EPA Submitted as Comment to 

EPA’s January 16, 2004 Proposed 

Approval of the New York AIM Coatings 

Rule 

In its February 17, 2004, letter 

submitted to EPA as comment to EPA’s 

proposed approval of the New York 

AIM Coatings Rule, the commenter 

incorporated by reference a ‘‘Statement 

on behalf of the Sherwin-Williams 

Company on proposed 6 NYCRR Part 

205’’ presented to the NYSDEC at the 

Legislative Public Hearing, dated May 2, 

2003 and ‘‘Comments of the SherwinWilliams Company’’ to the NYSDEC, 

dated May 12, 2003. The following 

summarizes the comments that were 

presented to the NYSDEC and thereby 

incorporated by reference by the 

commenter: 

(1) The commenter has significant 

concerns with the proposed standards 

for interior wood clear and semitransparent stains, interior wood 

varnishes, interior wood sanding 

sealers, exterior wood primers, and floor 

coatings. The commenter asserts that 

New York’s proposed AIM coatings rule 

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 

commenter contends 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 New York due to 

seasonal variations in temperature and 

humidity. 

(2) The commenter contends that 

NYSDEC has not considered the 

increase in emissions resulting from the 

performance issues and repainting. 

(3) The commenter has suggested 

changes to the VOC standards for only 

a few of the 52 product categories 

proposed by New York in its AIM 

coatings rule, and claims that the 

version of the AIM coatings rule it 

counter-proposes will achieve 

significant reductions beyond the 

National AIM coatings rule. 

(4) The commenter states that New 

York’s proposed AIM coatings rule will

72126 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 

have a significant adverse impact on the 

commenter and the NYSDEC can issue 

another regulation that achieves 

substantial VOC reductions beyond the 

Federal AIM coatings rule without 

causing serious adverse impact on 

potential sales of certain products. 

(5) The commenter contends that the 

reporting requirements and related 

compliance provisions of New York’s 

proposed AIM coatings rule are 

unreasonable. 

(6) The commenter states that New 

York’s proposed AIM coatings rule is 

arbitrary and capricious because it does 

not include reasonable alternatives and 

because the small business limited 

short-term exemption provision should 

be available to all manufacturers. 

(7) The commenter asserts that the 

economic analysis of New York’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. It contends that the cost 

figure is inappropriate given the 

differences in the stringency of the 

current requirements for AIM coatings 

in New York versus California, and 

therefore, New York needs to make an 

independent determination of the cost 

of VOC reductions from its proposed 

AIM coatings regulation. 

(8) The commenter has indicated that 

both the Consumer Products regulation 

and AIM coatings rule proposed by New 

York are based on rulemakings in 

California. However, New York’s 

proposal includes the California 

averaging provision for consumer 

products but does not do so for AIM. 

The commenter asserts that failure to 

include the California averaging 

provisions in the New York AIM 

coatings rule is arbitrary and capricious, 

and places an unequal burden on the 

architectural coating industry. 

(9) The commenter also submitted 

comments to NYSDEC regarding it 

proposed AIM coatings rule challenging 

that the NYSDEC does not have 

authority under the State ECL 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 

NYSDEC is in violation of the ECL. 

Please see EPA’s response to Comment 

E. With regard to the other comments 

submitted by the commenter to the 

NYSDEC on its proposed AIM coatings 

rule that it has incorporated by 

reference in its comments to EPA on 

EPA’s February 16, 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 state submitted SIP 

revision, pursuant to section 110(a) of 

the Act, EPA reviews the submission to 

ensure that the state provided the 

opportunity for comment and held a 

hearing(s) on the state regulation that is 

at issue in the proposed SIP revision. In 

this case, New York’s November 4, 

2003, SIP submittal and its November 

21, 2003, supplemental SIP submittal to 

EPA, of its AIM coatings rule include 

the necessary documentation to 

demonstrate that it met these 

requirements. New York’s SIP revision 

submissions are included in the 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. 

New York’s November 4, 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 

States responses to those comments. See 

both the documents entitled, 

Assessment of Public Comments on 

Proposed Revisions to 6 NYCRR part 

205, Architectural and Industrial 

Maintenance (AIM) Coatings and New 

York State Register, Rule Making 

Activities, Notice of Adoption, pg. 2, 

November 12, 2003. 

The New York 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 State’s emission reduction 

calculations are not germane to EPA’s 

current rulemaking to approve New 

York’s November 4, 2003, and the 

supplemental November 21, 2003, SIP 

revision. The State’s responses to the 

comments made by the commenter in its 

May 12, 2003, letter submitted to the 

NYSDEC as part of its timely comments 

on the proposed New York AIM 

coatings rule are included in the States’

submission to EPA for approval of the 

SIP revision. (Comments were to be 

submitted to the NYSDEC on its 

proposed SIP revision by May 12, 2003). 

The cost per ton figure determined by 

New York in its regulatory impact 

statement, its decision to rely upon 

information from California, its decision 

on whether to include reasonable 

alternatives, its choice not to include 

averaging provisions in its AIM coatings 

rule, its choice of reporting 

requirements and its choice to include 

a small business limited short-term 

exemption are all decisions which fall 

within the 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 

commenter comment to the State on 

these matters during the adoption of its 

AIM coatings rule. EPA has reviewed 

the SIP revision submitted and has 

determined that the commenter’s 

comments on those issues it has 

incorporated by reference in this 

rulemaking, along with the NYSDEC’s 

responses to those issues, are included 

therein. In the context of a SIP approval, 

EPA’s review of state decisions is 

limited to whether the rule meets the 

minimum criteria of the Act. Provided 

that the rule adopted by the state 

satisfies this criteria, EPA must approve 

such plans. See, Union Electric Co. v. 

EPA. 

With regard to the commenter’s 

comments concerning the availability of 

complying coatings and the ability to 

develop complying coatings that can 

meet customer requirements and 

performance requirements, EPA notes 

that NYSDEC addressed these 

comments in its Assessment of Public 

Comments document. NYSDEC 

researched various AIM coatings 

surveys and performance studies which 

‘‘demonstrate the technical feasibility of 

the proposed limits and that coatings 

reformulated to meet these limits 

perform as expected.’’ NYSDEC 

determined that quality AIM coatings 

are available in all categories which 

comply with the VOC content limits 

specified in the proposed New York 

AIM coatings rule, and therefore, New 

York adopted the proposed limits into 

its final AIM coatings rule. It is the 

State’s prerogative 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. EPA has 

determined that New York’s SIP 

revision was complete in that it 

included the commenter’s comments 

and NYSDEC sufficiently responded to 

them. EPA has also determined that this 

SIP revision meets the minimum criteria 

for approval under the Act, including 

the requirement that the revision be at 

least as stringent as the Federal AIM 

coatings rule set forth at 40 CFR 59.400.

IV. What Is EPA’s Conclusion? 

EPA has determined that the 

comments, received in response to the 

January 16, 2004 proposed rulemaking 

action, do not alter its proposed 

determination that the SIP revision 

submitted by New York is fully 

approvable. EPA has evaluated New 

York’s submittal for consistency with 

the Act, EPA regulations, and EPA

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 72127

policy. EPA has determined that the 

revisions made to title 6 of the New 

York Codes, Rules and Regulations, part 

205, entitled, ‘‘Architectural and 

Industrial Maintenance Coatings’’, 

effective November 22, 2003, meet the 

SIP revision requirements of the Act 

and, therefore, EPA has made the final 

determination that New York’s AIM 

coatings rule is approvable. 

V. Statutory and Executive Order 

Reviews 

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 

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 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 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.). 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Act, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by February 11, 2005. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See section 

307(b)(2).

List of Subjects 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 23, 2004. 

Kathleen Callahan, 

Acting Regional Administrator, Region 2.

■ Part 52, chapter I, title 40 of the Code 

of Federal Regulations 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 HH—New York

■ 2. Section 52.1670 is amended by 

adding new paragraph (c)(105) to read as 

follows:

§ 52.1670 Identification of plans.

* * * * *

(c) * * * 

(105) Revisions to the State 

Implementation Plan submitted on 

November 4, 2003 and supplemented on 

November 21, 2003, by the New York 

State Department of Environmental 

Conservation, which consists of a 

control strategy that will achieve 

volatile organic compound emission 

reductions that will help achieve 

attainment of the national ambient air 

quality standard for ozone. 

(i) Incorporation by reference: 

(A) Regulation Part 205, 

‘‘Architectural and Industrial 

Maintenance Coatings.’’ of title 6 of the 

New York Code of Rules and 

Regulations, filed on October 23, 2003, 

and effective on November 22, 2003.

■ 3. In § 52.1679, the table is amended by 

revising the entry under title 6 for part 

205 to read as follows.

§ 52.1679 EPA-approved New York State 

regulations.

New York State regulation State effective date Latest EPA approval date Comments 

Title 6: 

* * * * * * * 

Part 205, Architectural and Industrial Maintenance 

Coatings.

11/22/2004 ......................... 12/13/2004 and FR page 

citation.

72128 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Rules and Regulations 

New York State regulation State effective date Latest EPA approval date Comments 

* * * * * * * 

[FR Doc. 04–27261 Filed 12–10–04; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 65 

[Docket No. FEMA–P–7640] 

Changes in Flood Elevation 

Determinations

AGENCY: Federal Emergency 

Management Agency, Emergency 

Preparedness and Response Directorate, 

Department of Homeland Security.

ACTION: Interim rule.

SUMMARY: This interim rule lists 

communities where modification of the 

Base (1% annual-chance) Flood 

Elevations (BFEs) is appropriate because 

of new scientific or technical data. New 

flood insurance premium rates will be 

calculated from the modified BFEs for 

new buildings and their contents.

DATES: These modified BFEs are 

currently in effect on the dates listed in 

the table below and revise the Flood 

Insurance Rate Map(s) in effect prior to 

this determination for the listed 

communities. 

From the date of the second 

publication of these changes in a 

newspaper of local circulation, any 

person has ninety (90) days in which to 

request through the community that the 

Mitigation Division Director of the 

Emergency Preparedness and Response 

Directorate reconsider the changes. The 

modified BFEs may be changed during 

the 90-day period.

ADDRESSES: The modified BFEs for each 

community are available for inspection 

at the office of the Chief Executive 

Officer of each community. The 

respective addresses are listed in the 

table below.

FOR FURTHER INFORMATION CONTACT:

Doug Bellomo, P.E., Hazard 

Identification Section, Emergency 

Preparedness and Response Directorate, 

Federal Emergency Management 

Agency, 500 C Street, SW., Washington, 

DC 20472, (202) 646–2903.

SUPPLEMENTARY INFORMATION: The 

modified BFEs are not listed for each 

community in this interim rule. 

However, the address of the Chief 

Executive Officer of the community 

where the modified BFE determinations 

are available for inspection is provided. 

Any request for reconsideration must 

be based on knowledge of changed 

conditions or new scientific or technical 

data. 

The modifications are made pursuant 

to Section 201 of the Flood Disaster 

Protection Act of 1973, 42 U.S.C. 4105, 

and are in accordance with the National 

Flood Insurance Act of 1968, 42 U.S.C. 

4001 et seq., and with 44 CFR part 65. 

For rating purposes, the currently 

effective community number is shown 

and must be used for all new policies 

and renewals. 

The modified BFEs are the basis for 

the floodplain management measures 

that the community is required to either 

adopt or to show evidence of being 

already in effect in order to qualify or 

to remain qualified for participation in 

the National Flood Insurance Program 

(NFIP). 

These modified BFEs, together with 

the floodplain management criteria 

required by 44 CFR 60.3, are the 

minimum that are required. They 

should not be construed to mean that 

the community must change any 

existing ordinances that are more 

stringent in their floodplain 

management requirements. The 

community may at any time enact 

stricter requirements of its own, or 

pursuant to policies established by other 

Federal, State, or regional entities. 

The changes in BFEs are in 

accordance with 44 CFR 65.4. 

National Environmental Policy Act 

This rule is categorically excluded 

from the requirements of 44 CFR part 

10, Environmental Consideration. No 

environmental impact assessment has 

been prepared. 

Regulatory Flexibility Act 

The Mitigation Division Director of 

the Emergency Preparedness and 

Response Directorate certifies that this 

rule is exempt from the requirements of 

the Regulatory Flexibility Act because 

modified base flood elevations are 

required by the Flood Disaster 

Protection Act of 1973, 42 U.S.C. 4105, 

and are required to maintain community 

eligibility in the NFIP. No regulatory 

flexibility analysis has been prepared. 

Regulatory Classification 

This interim rule is not a significant 

regulatory action under the criteria of 

Section 3(f) of Executive Order 12866 of 

September 30, 1993, Regulatory 

Planning and Review, 58 FR 51735. 

Executive Order 12612, Federalism 

This rule involves no policies that 

have federalism implications under 

Executive Order 12612, Federalism, 

dated October 26, 1987. 

Executive Order 12778, Civil Justice 

Reform 

This rule meets the applicable 

standards of Section 2(b)(2) of Executive 

Order 12778.

List of Subjects in 44 CFR Part 65 

Flood insurance, Floodplains, 

Reporting and record keeping 

requirements.

■ Accordingly, 44 CFR part 65 is 

amended to read as follows:

PART 65—[AMENDED]

■ 1. The authority citation for part 65 

continues to read as follows:

Authority: 42 U.S.C. 4001 et seq.; 

Reorganization Plan No. 3 of 1978, 3 CFR, 

1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 

3 CFR, 1979 Comp., p. 376.

§ 65.4 [Amended]

■ 2. The tables published under the 

authority of § 65.4 are amended as 

follows: