Background

The Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.) authorizes the Secretary of Agriculture to promulgate standards and other requirements governing the humane handling, housing, care, treatment, and transportation of certain animals by dealers, research facilities, exhibitors, carriers, and intermediate handlers. The Secretary of Agriculture has delegated the responsibility of enforcing the AWA to the Administrator of the Animal and Plant Health Inspection Service. The regulations established under the AWA are contained in title 9 of the Code of Federal Regulations (9 CFR), chapter I, subchapter A, parts 1, 2, and 3. Part 2 (referred to below as the regulations) generally provides administrative requirements and sets forth institutional responsibilities of regulated persons under the AWA. These administrative requirements and institutional responsibilities include the requirements for the licensing and registration of dealers, exhibitors, and research facilities, and standards for veterinary care, identification of animals, and recordkeeping. The provisions pertaining to licensing are contained in “Subpart A—Licensing,” §§ 2.1 through 2.12.

Under the regulations in § 2.1(a)(1), any person operating or intending to operate as a dealer, exhibitor, or operator of an auction sale, except persons who are exempted from the licensing requirements under § 2.1(a)(3) of the regulations, must have a valid license. The regulations in § 2.11(a) provide that a license will not be issued to any applicant who:

• Has not complied with the requirements of §§ 2.1, 2.2, 2.3, and 2.4 and has not paid the fees indicated in § 2.6;

• Is not in compliance with any of the regulations or standards in 9 CFR chapter I, subchapter A;

• Has had a license revoked or whose license is suspended, as set forth in § 2.10;

• Has pled nolo contendere (no contest) or has been found to have violated any Federal, State, or local laws or regulations pertaining to animal cruelty within 1 year of application, or after 1 year if the Administrator determines that the circumstances render the applicant unfit to be licensed;

• Is or would be operating in violation or circumvention of any Federal, State, or local laws; or

• Has made any false or fraudulent statements or provided any false or fraudulent records to the Department or other government agencies, or has pled nolo contendere (no contest) or has been found to have violated any Federal, State, or local laws or regulations pertaining to the transportation, ownership, neglect, or welfare of animals, or is otherwise unfit to be licensed and the Administrator determines that the issuance of a license would be contrary to the purposes of the AWA.

Under paragraph (b) of § 2.11, an applicant whose license application has been denied may request a hearing in accordance with the applicable rules of practice for the purpose of showing why the application for license should not be denied. The license denial shall remain in effect until the final legal decision has been rendered. Should the license denial be upheld, the applicant may again apply for a license 1 year from the date of the final order denying the application, unless the order provides otherwise.

Similarly, § 2.12 provides that a license may be terminated during the license renewal process or at any other time for any reason that an initial license application may be denied pursuant to § 2.11 after a hearing in accordance with the applicable rules of practice.

Although § 2.11(b) and § 2.12 refer to “the applicable rules of practice,” the regulations do not specify which rules of practice actually apply. In order to clarify this point, we are amending the administrative regulations of the Office of the Secretary in 7 CFR part 1, subpart H, “Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes” (7 CFR 1.130 through 1.151). Specifically, we are amending § 1.131, “Scope and applicability of this subpart,” to provide that the rules of practice contained in subpart H shall be applicable to all adjudicatory proceedings under the license denial and termination provisions of §§ 2.11 and 2.12.

This rule relates to internal agency management. Therefore, this rule is exempt from the provisions of Executive Orders 12866 and 12988. Moreover, pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity for comment are not required for this rule, and it may be made effective less than 30 days after publication in the Federal Register. In addition, under 5 U.S.C. 804, this rule is not subject to congressional review under the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121. Finally, this action is not a rule as defined by 5 U.S.C. 601 et seq., the Regulatory Flexibility Act, and thus is exempt from the provisions of that Act.

This rule contains no information collections or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

On February 28, 2005 (70 FR 9504), the NRC published in the Federal Register a direct final rule amending its regulations in 10 CFR 72.214 to revise the Holtec International HI-STORM 100 cask system listing within the “List of Approved Spent Fuel Storage Casks” to include Amendment No. 2 to the Certificate of Compliance. Amendment No. 2 modifies the present cask system design to include changes to materials used in construction, changes to the types of fuel that can be loaded, changes to shielding and confinement methodologies and assumptions, revisions to various temperature limits, changes in allowable fuel enrichments, and other changes to reflect current NRC staff guidance and use of industry codes. The direct final rule was to become effective on May 16, 2005. The NRC also concurrently published an identical proposed rule on February 28, 2005 (70 FR 9550).

In the February 28, 2005, direct final rule, NRC stated that if any significant adverse comments were received, a notice of timely withdrawal of the direct final rule would be published in the Federal Register. As a result, the direct final rule would not take effect.

The NRC received significant adverse comment on the direct final rule; therefore, the NRC is withdrawing the direct final rule. As stated in the February 28, 2005, direct final rule, NRC will address the comments received on the February 28, 2005, companion proposed rule in a subsequent final rule. The NRC will not initiate a second comment period on this action.

The FAA proposed to amend 14 CFR part 39 with an AD for all Airbus Model A310 series airplanes. That action, published in the Federal Register on February 15, 2005 (70 FR 7700), proposed to require measuring the clearance between the compensator and the guide assembly of probe no. 1 on the outboard fuel tanks, and performing corrective actions if necessary.

We provided the public the opportunity to participate in the development of this AD. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

The following table provides the estimated costs for U.S. operators to comply with this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Dornier Model 328-300 series airplanes. That action, published in the Federal Register on February 15, 2005 (70 FR 7689), proposed to require installing a drain hole in the lower skin of the left- and right-hand elevator horns.

We provided the public the opportunity to participate in the development of this AD. No comments have been submitted on the proposed AD or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

The following table provides the estimated costs for U.S. operators to comply with this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA published this direct final rule with a request for comments in the Federal Register on March 24, 2005 (70 FR 14976). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on July 7, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

On Thursday, March 23, 2005, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish a Class E surface area and to modify other Class E airspace at Valentine, NE (70 FR 14601). The proposal was to establish a Class E surface area at Valentine, NE and also to modify the Class E5 airspace area to bring Valentine, NE airspace into compliance with FAA directives. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to 14 CFR part 71 establishes Class E airspace designated as a surface area for an airport at Valentine, NE. The FAA has modified some existing instrument approach procedures (IAPs) and developed area navigation (RNAV) global positioning system (GPS) IAPs to serve Miller Field, Valentine, NE. Controlled airspace extending upward from the surface of the earth is needed to contain aircraft executing these IAPs. Weather observations will be provided by an Automatic Surface Observing System (ASOS) and communications will be direct with Denver Air Route Traffic Control Center.

This rule also revises the Class E airspace area extending upward from 700 feet above the surface at Valentine, NE. An examination of this Class E airspace area for Valentine, NE revealed noncompliance with FAA directives. This corrects identified discrepancies by eliminating the northwest extension to the airspace area, decreasing the width of the southeast extension from 2.6 miles to 2.5 miles each side of the 149° bearing from the Valentine nondirectional radio beacon (NDB), decreasing the length of the southeast extension in from 7.9 miles from the airport to 7 miles from the NDB, defining airspace of appropriate dimensions to protect aircraft departing and executing instrument approach procedures to Miller Field and brings the airspace area into compliance with FAA directives. Both areas will be depicted on appropriate aeronautical charts.

Class E airspace areas designated as surface areas are published in Paragraph 6002 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1 Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of the same Order. The Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority since it contains aircraft executing instrument approach procedures to Miller Field.

The Act creates two tariff rate quotas (TRQ), providing for temporary reductions for three years in the import duties on two categories of worsted wool fabrics suitable for use in making suits, suit-type jackets, or trousers: (1) for worsted wool fabric with average fiber diameters greater than 18.5 microns (new Harmonized Tariff Schedule of the United States (HTS) heading 9902.51.11), the reduction in duty is limited to 2,500,000 square meter equivalents or such other quantity proclaimed by the President; and (2) for worsted wool fabric with average fiber diameters of 18.5 microns or less (new HTS heading 9902.51.12), the reduction is limited to 1,500,000 square meter equivalents or such other quantity proclaimed by the President.

The Act requires that the tariff rate quotas be allocated. More specifically, the President must ensure that the tariff rate quotas are fairly allocated to persons (including firms, corporations, or other legal entities) who cut and sew men's and boys' worsted wool suits, suit-type jackets and trousers in the United States and who apply for an allocation based on the amount of such suits cut and sewn during the prior calendar year.

The Act requires that the President annually consider requests by U.S. manufacturers of certain worsted wool apparel to modify the limitation on the quantity of fabric that may be imported under the tariff rate quotas, and grants the President the authority to proclaim modifications to the limitations. In determining whether to modify the limitations, the President must consider specified U.S. market conditions with respect to worsted wool fabric and worsted wool apparel.

In Presidential Proclamation 7383, of December 1, 2000, the President authorized the Secretary of Commerce: (1) to allocate the imports of worsted wool fabrics under the tariff rate quotas; (2) to annually consider requests from domestic manufacturers of worsted wool apparel to modify the limitation on the quantity of worsted wool fabrics that may be imported under the tariff rate quotas; (3) to determine whether the limitations on the quantity of imports of worsted wool fabrics under the tariff rate quotas should be modified and to recommend to the President that appropriate modifications be made; and (4) to issue regulations to implement relevant provisions of the Act.

The Presidential Proclamation authorizing the Department of Commerce to issue regulations to implement these provisions was issued on December 1, 2000. Pursuant to the Act, the tariff rate quotas entered into force on January 1, 2001. Thus, there was good cause to find that in order to meet the statutory implementation date and to ensure that importers receive the benefit of the reduction in tariff rate as soon as possible, the otherwise applicable notice and comment procedures were impracticable and contrary to the public interest under 5 U.S.C. 553(b)(B). Moreover, for the same reason, there was good cause to find that the effective date of the interim rule should not be delayed until 30 days after its publication under 5 U.S.C. 553(d)(3). While the interim regulations became effective on January 22, 2001, the Department of Commerce solicited comments on the interim regulations and expressed particular interest in comments concerning any impact the regulations might have on small or medium sized businesses.

The Department of Commerce received the comments described below from a number of parties, including businesses, trade associations and counsel for other interested parties. Comments specifically pertaining to the allocation of previous years' tariff rate quotas have been omitted as moot.

Comment: Applicants should be allowed to include in reported production amounts worsted wool fabric cut and sewn on behalf of an owner.

Response: The legislation states that the allocation is to be based on the amount of men's and boys' suits cut and sewn in the U.S. during the prior calendar year and shall be granted to persons (including, firms, corporations, or other legal entities) who cut and sew men's and boys' worsted wool suits and suit-like jackets and trousers in the United States. The fabric TRQ allocated to a licensee is intended for the licensee's own production, or production on its behalf by contractors using the licensee's owned fabric, and not for the cutting and sewing of garments for others with fabric they do not own.

Comment: Persons involved in the production of men's and boys' worsted wool suits, suit-type jackets and trousers other than those who cut and sew such garments, such as importers of worsted wool fabric, should be allowed to apply for licenses.

Introduction

Section 18 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the “Act”), provides that states which desire to assume responsibility for the development and enforcement of occupational safety and health standards may do so by submitting, and obtaining Federal approval of, a state plan. Procedures for state plan submission and approval are set forth in regulations at 29 CFR part 1902. If the Assistant Secretary, applying the criteria set forth in Section 18(c) of the Act and 29 CFR 1902.3 and 1902.4, finds that the plan provides or will provide for state standards and enforcement which are “at least as effective” as Federal standards and enforcement, “initial approval” is granted. A state may commence operations under its plan after this determination is made, but the Assistant Secretary retains discretionary Federal enforcement authority during the initial approval period as provided by Section 18(e) of the Act. A state plan may receive initial approval even though, upon submission, it does not fully meet the criteria set forth in 29 CFR 1902.3 and 1902.4 if it includes satisfactory assurances by the state that it will take the necessary “developmental steps” to meet the criteria within a three-year period (29 CFR 1902.2(b)). The Assistant Secretary publishes a “certification of completion of developmental steps” when all of a state's developmental commitments have been satisfactorily met (29 CFR 1902.34).

When a state plan that has been granted initial approval is developed sufficiently to warrant a suspension of concurrent Federal enforcement activity, it becomes eligible to enter into an “operational status agreement” with OSHA (29 CFR 1954.3(f)). A state must have enacted its enabling legislation, promulgated standards, achieved an adequate level of qualified personnel, and established a system for review of contested enforcement actions. Under these voluntary agreements, concurrent Federal enforcement will not be initiated with regard to Federal occupational safety and health standards applicable to those issues covered by the state plan if the state program is providing an acceptable level of protection.

Following the initial approval of a complete plan, or the certification of a developmental plan, the Assistant Secretary must monitor and evaluate actual operations under the plan for a period of at least one year to determine, on the basis of actual operations under the plan, whether the criteria set forth in Section 18(c) of the Act and 29 CFR 1902.37 are being applied.

An affirmative determination under Section 18(e) of the Act (usually referred to as “final approval” of the state plan) results in the relinquishment of authority for Federal concurrent enforcement jurisdiction in the state with respect to occupational safety and health issues covered by the plan (29 U.S.C. 667(e)). Procedures for Section 18(e) determinations are found at 29 CFR part 1902, subpart D. In general, in order to be granted final approval, actual performance by the state must be “at least as effective” overall as the Federal OSHA program in all areas covered under the state plan.

An additional requirement for final approval consideration is that a state must meet the compliance staffing levels, or benchmarks, for safety inspectors and industrial hygienists established by OSHA for that state. This requirement stems from a 1978 court order by the U.S. District Court for the District of Columbia in AFL-CIO v. Marshall, C.A. No.74-406, that directed the Assistant Secretary to calculate for each state plan state the number of enforcement personnel needed to assure a “fully effective” enforcement program.

Another requirement for final approval consideration is that a state must participate in OSHA's Integrated Management Information System (IMIS). This is required so that OSHA can obtain the detailed program performance data necessary to continually evaluate whether the state's performance meets the statutory and regulatory criteria for final and continuing approval.

A history of the Oregon State Plan, a description of its provisions, and a discussion of the compliance staffing benchmarks established for Oregon are contained in the December 16, 2004 Federal Register notice (69 FR 75436) proposing that final approval under section 18(e) of the Act be granted. The Oregon State Plan was submitted on June 6, 1972, and initially approved on December 22, 1972 (37 FR 28628, Dec. 28, 1972). Concurrent Federal enforcement jurisdiction was suspended on January 23, 1975 (40 FR 18427, April 28, 1975). The Oregon State Plan was certified as having completed all developmental steps on September 15, 1982 (47 FR 42105, Sept. 24, 1982), and revised compliance staffing benchmarks for Oregon were approved on August 11, 1994 (59 FR 42493, Aug. 18, 1994).

Procedures for final approval of State plans are set forth at 29 CFR part 1902, subpart D. On December 16, 2004, OSHA published notice (69 FR 75436) that the Oregon State Plan was eligible for a determination as to whether final approval of the plan should be granted under Section 18(e) of the Act. The determination of eligibility was based on the monitoring of state operations for at least one year following certification, state participation in the Federal-state Integrated Management Information System, and staffing in accordance with the revised state compliance staffing benchmarks.

The December 16, 2004, Federal Register notice set forth a general description of the Oregon State Plan and summarized the results of Federal OSHA's monitoring of state operations during the period from October 1, 2002 through September 30, 2003. In addition to the information set forth in the notice itself, OSHA made available as part of the record extensive and detailed exhibits documenting the plan, including copies of the state legislation, administrative regulations, and procedural manuals under which Oregon operates its plan.

The most recent comprehensive evaluation report covering the period of October 1, 2002, through September 30, 2003, which was extensively summarized in the December 16, 2004, proposal and provided the principal factual basis for the proposed 18(e) determination, was included in the docket.

To assist and encourage public participation in the 18(e) determination, copies of all docket materials were available electronically at http://dockets.osha.gov, and were maintained in the OSHA Docket Office in Washington, DC, in the OSHA Regional Office in Seattle, and at the Oregon Occupational Safety and Health Division in Salem, Oregon. A summary of the December 16, 2004, notice, with an invitation for public comments, was published in Oregon on December 17, 2004, in The Oregonian.

The December 16, 2004, notice invited interested persons to submit, by January 18, 2005, written comments and views regarding the Oregon plan and whether final approval should be granted. An opportunity to request an informal public hearing also was provided. Seven comments were received in response to this proposal; none requested an informal hearing.

OSHA has encouraged interested members of the public to provide information and views regarding operations under the Oregon plan to supplement the information already gathered during OSHA's monitoring and evaluation of plan administration.

In response to the December 16, 2004, proposal, OSHA received comments from: John Kirkpatrick, Business Representative, International Union of Painters and Allied Trades, AFL-CIO [Ex. 5-1]; Jim Geisinger, Executive Vice President, Associated Oregon Loggers, Inc. [Ex. 5-2]; Brian Clarke, Corporate Safety Director, Hoffman Construction Companies [Ex.5-3]; Daniel J. Sabatino, Loss Control Consultant, Safety & Risk Management Consulting [Ex. 5-4]; Steven F. Ramsey, Loss Control Manager, Safeway, Inc.—Portland Division [Ex. 6-1]; Lynda Enos, Ergonomics Consultant, Human Fit [Ex. 6-2]; and Patrick M. Bridges, Oregon Home Builders Association [Ex. 6-3]. All seven comments expressed unqualified support for final approval. All of these comments indicated that Oregon has established and operates a safety and health program that effectively protects employees.

Specifically, the commenters commended the Oregon State Plan for, among other things: (1) Making significant progress in reducing work-related injuries; (2) having proactive and competent leadership; (3) maintaining a compliance, consultant and technical staff that is highly trained, very professional, accommodating, fair and technically accurate; (4) providing excellent web-based and classroom safety training (including for small businesses); (5) making extensive efforts to address ergonomics and safety issues in health care facilities; (6) developing partnerships with businesses and professional associations to provide high quality safety and health education and injury prevention activities and programs to employers, employees and safety and health professionals; (7) adopting an exemplary logging code which recognizes the unique and site-specific characteristics of the Pacific Northwest logging industry; and (8) creating innovative committees that provide grants to identify and create training programs for workplace safety and health, scholarships for dependents of workers killed or permanently disabled in workplace accidents, and funding to make workplace modifications to improve safety.

As required by 29 CFR 1902.41, in considering the granting of final approval to a state plan, OSHA has carefully and thoroughly reviewed all information available to it on the actual operation of the Oregon State Plan. This information has included all previous evaluation findings since certification of completion of the state plan's developmental steps, especially data for the period October 1, 2002 through September 30, 2003, and information presented in written submissions. Findings and conclusions in each of the areas of performance are as follows:

(1) Standards. Section 18(c)(2) of the Act requires state plans to provide for occupational safety and health standards which are at least as effective as Federal standards. See also 29 CFR 1902.3(c)(1) and 1902.4(b)(2)(i)-(ii). If the state adopts standards that are not identical to corresponding Federal standards, they must be promulgated through a procedure allowing for the consideration of all pertinent factual information and the participation of all interested persons (29 CFR 1902.4(b)(2)(iii)). Additionally, the state program must provide for prompt and effective standards setting actions when necessary to protect workers from new and unforeseen hazards, e.g., via the authority to promulgate emergency temporary standards (29 CFR 1902.4(b)(2)(v)). State standards must protect employees from exposure to hazards, e.g., by requiring the use of suitable protective equipment or technological controls (29 CFR 1902.4(b)(2)(vii)). Standards dealing with toxic materials or harmful physical agents must assure that each exposed employee will be protected throughout his or her working life (29 CFR 1902.4(b)(2)(i)). In addition, state standards generally must provide for furnishing employees with appropriate information regarding hazards in their workplaces, e.g., through labels, postings, and medical examinations (29 CFR 1902.4(b)(2)(vi)). Where applicable to products distributed or used in interstate commerce, state standards that differ from Federal standards must be required by compelling local conditions and not pose an undue burden on interstate commerce (29 CFR 1902.3(c)(2)).

In order to qualify for final state plan approval, a state program must be found to have adhered to its approved procedures (29 CFR 1902.37(b)(2)), to have timely adopted all Federal standards or standards that are at least as effective (29 CFR 1902.37(b)(3)), to have interpreted and applied its standards in a manner consistent with the Federal program (29 CFR 1902.37(b)(4)), and to have corrected any deficiencies resulting from administrative or judicial challenges to the state standards (29 CFR 1902.37(b)(5)).

Oregon's laws and regulations, previously approved by OSHA and made a part of the record in this proceeding, as written and applied, are in accord with all of the requirements for state standards set out above and in 29 CFR part 1902. As documented in the approved Oregon State Plan and OSHA's evaluation findings made a part of the record in this 18(e) determination proceeding, and as discussed in the December 16, 2004, notice, the Oregon plan provides for the adoption of standards and amendments thereto which are either identical or equivalent to Federal standards. And as noted in the 18(e) Evaluation Report and summarized in the December 16, 2004 Federal Register notice, in actual operation Oregon has adopted standards in a timely manner which are either identical to or at least as effective as Federal standards.

Although Oregon does not automatically adopt standards which are identical to the Federal standards, it usually adopts Federal standards by reference and sometimes adds state-initiated provisions under its own regulatory numbering system. Oregon OSHA (“OR-OSHA”) adopts standards through a promulgation process that provides notification to the public of its intent to adopt a standard. OR-OSHA publishes the proposed standard in the Secretary of State's Bulletin, asks for comments, and may hold hearings. After review of all comments, appropriate revisions are made and the standard is formally adopted and its effective date established. When OR-OSHA is considering substantive standard revisions, a committee of affected employers, employees, and other experts is convened to provide input and draft language before comments are requested from the public. Thus, OR-OSHA's standards development process is similar to Federal OSHA's and provides full opportunity for public input.

Some Oregon standards and related enforcement policies differ from their Federal counterparts, such as the state's enforcement policy requiring employers to pay for personal protective equipment, Oregon's additional rules for personal protective equipment and for explosives and blasting agents, and the state's different rules for air contaminants, bloodborne pathogens (needlestick devices), spray finishing, concrete and masonry construction, and fall protection in construction. Oregon has also adopted a number of standards which do not have Federal counterparts, including those relating to workplace safety committees, crane operator training, thiram, reinforced plastics manufacturing, ornamental tree and shrub services, and some forest activities (logging) requirements.

OSHA's monitoring has found that OR-OSHA has interpreted and applied its standards in a manner comparable to the Federal program. There have been administrative and judicial challenges to the standards in Oregon, but they have all been satisfactorily resolved.

Therefore, in accordance with Section 18(c)(2) of the Act and the pertinent provisions of 29 CFR 1902.3, 1902.4 and 1902.37, OSHA finds that the Oregon program, in actual operation, provides for standards adoption, correction (when found deficient), interpretation, and application at least as effective as the Federal program.

(2) Variances. A state plan is expected to have authority and procedures for granting variances comparable to the Federal program (29 CFR 1902.4(b)(2)(iv)). The Oregon State Plan contains such provisions in laws and regulations which have been previously approved by OSHA. In order to qualify for final state plan approval, permanent variances granted must assure employment equally as safe and healthful as would be provided by compliance with the standard (29 CFR 1902.37(b)(6)). Temporary variances granted must assure compliance as early as possible (29 CFR 1902.37(b)(7)). As noted in the 18(e) Evaluation Report and the December 16, 2004 notice, Oregon granted three permanent variances during the 18(e) evaluation period, and all were processed in accordance with state procedures and the criteria in 29 CFR part 1902. During the Section 18(e) evaluation period, no temporary variances were granted.

Accordingly, OSHA finds that the Oregon program is able to effectively grant variances from its occupational safety and health standards.

(3) Enforcement. Section 18(c)(2) of the Act and 29 CFR 1902.3(d)(1) require state programs to enforce standards in a manner that is and will continue to be at least as effective in providing safe and healthful employment and places of employment as the Federal program. See also Section 18(c)(4) of the Act and 29 CFR 1902.3(g). The state must require employer and employee compliance with all applicable standards, rules and orders (29 CFR 1902.3(d)(2)) and must have the legal authority for standards enforcement, including compulsory process (29 CFR 1902.4(c)(2)).

The Oregon occupational safety and health statutes and implementing regulations, previously approved by OSHA, establish employer and employee compliance responsibility and contain legal authority for standards enforcement in terms at least as effective as those in the Federal Act. In order to be qualified for final approval, the state must have adhered to all approved procedures to ensure an at least as effective compliance program (29 CFR 1902.37(b)(2)). The 18(e) Evaluation Report indicates no significant lack of adherence to such procedures.

(a) Inspections. In order to qualify for final approval, the state program, as implemented, must allocate sufficient resources toward high-hazard workplaces while providing adequate attention to other covered workplaces (29 CFR 1902.37(b)(8)). See also 29 CFR 1902.4(c)(2)(i). Data contained in the 18(e) Evaluation Report noted that Oregon relies on injury and illness claims data from the state workers' compensation system as the primary means to identify employers for high-hazard, programmed safety and health inspections. This site-specific targeting is augmented by workers' compensation claim severity classifications, an employer's history, and other factors to arrive at a ranking on an inspection list. Separate lists are made for general industry, construction, logging, and health. Oregon's strategic plan is focused on reducing silica exposures, lead in construction exposures, and fall hazards. The state has targeted inspections in the following industries with high rates of injuries and illnesses: Agriculture, construction, lumber/wood, food/kindred products, and health care. During the period from October 2002 through September 2003, 76% of Oregon's safety inspections and 44% of health inspections were programmed. During this period, 40% of programmed safety inspections and 25% of programmed health inspections uncovered serious, willful, or repeat violations. This is less than the percentage of Federal programmed inspections with serious violations; however, state officials assert that fewer serious violations per inspection are expected in Oregon because of a higher frequency of inspections, workplace safety committee (and employer safety and health program) requirements, and a large consultation program. Therefore, OSHA has concluded that the state's inspection targeting system is satisfactory.

(b) Employee Notice and Participation in Inspections. State plans must provide for inspections in response to employee complaints and must provide an opportunity for employees and their representatives to point out possible violations through such means as employee participation during the inspection (29 CFR 1902.4(c)(2)(i)-(iii)).

Oregon has procedures similar to those used by Federal OSHA for processing and responding to complaints and providing for employee participation in inspections. The data indicate that during the evaluation period the state was timely in responding to employee complaints, responding to 95% of serious safety and health complaints by inspection within the prescribed time frame of 5 working days. In addition, OR-OSHA provided complainants with timely response letters 94% of the time. During FY 2003, Oregon responded to 729 safety and health complaints.

Like Federal OSHA, the state has procedures which require that employees have an opportunity to participate in inspections, either through representation on the walkaround or through a reasonable number of employee interviews. No problems have been noted concerning employee participation in Oregon inspections.

In addition, the state plan must provide that employees be informed of their protections and obligations under the Act by such means as the posting of notices (29 CFR 1902.4(c)(2)(iv)). Also, the state plan must ensure that employees have access to information about their exposure to regulated agents (29 CFR 1902.4(c)(vi)).

To inform employees and employers of their protections and obligations, Oregon requires that a poster approved by OSHA be displayed in all covered workplaces. Requirements for the posting of the poster and other notices such as citations, contests, hearings and variance applications are set forth in the previously approved state law and regulations which are at least as effective as Federal requirements. Information about employee exposure to regulated agents is provided through state standards which are identical to or at least as effective as the Federal. No problems have been noted regarding notice of these actions to employers and employees. Therefore, OSHA has concluded that the state's performance in this area is effective.

(c) Nondiscrimination. State plans are expected to protect employees against discharge or discrimination for exercising their rights under the state's program. The state program must include provisions providing for employer sanctions and employee confidentiality (29 CFR 1902.4(c)(2)(v)). Section 654.062(5) of the Oregon Safe Employment Act and state regulations provide for discrimination protection equivalent to that provided by Federal OSHA. Under Oregon law, the Bureau of Labor and Industries (BOLI) has jurisdiction for discrimination cases. OR-OSHA contracts with BOLI for discrimination complaint processing. A total of 54 complaints alleging discrimination were investigated during the evaluation period, four of which were found to be meritorious. Oregon met the 90-day time limit for completing discrimination investigations 67% of the time. The state's goal is to complete investigations within 90 days in 85% of cases. OR-OSHA is actively working with BOLI to improve case determination timeliness, to ensure that a review of the “prima facie” elements is conducted for every discrimination complaint, and to create case file documentation whenever a decision is made not to conduct an investigation. The administrator of the Civil Rights Division of BOLI has expressed BOLI's commitment to addressing OSHA's concerns. BOLI's investigations showed substantial improvement in FY 2004, when 21 of 23 cases reviewed contained “prima facie” analysis. BOLI takes appropriate action through administrative and court litigation on merit cases where the employer does not voluntarily comply with the state's proposed remedy. Therefore, OSHA concludes that Oregon's performance in this area is satisfactory.

(d) Restraint of Imminent Danger; Protection of Trade Secrets. A state plan is required to provide for the prompt restraint of imminent danger situations (29 CFR 1902.4(c)(2)(vii)) and to provide adequate safeguards for the protection of trade secrets (29 CFR 1902.4(c)(2)(viii)). The state has provisions concerning imminent danger and protection of trade secrets in its law, regulations, and operations manual which are at least as effective as the corresponding federal provisions. Oregon has authority to issue a red warning notice to prohibit the use of a machine, piece of equipment, or place of employment in imminent danger and other situations. Oregon responded to 59 imminent danger complaints during the evaluation period, 98% of the time within 24 hours. There were no Complaints About State Program Administration (CASPAs) filed concerning the protection of trade secrets during the report period.

(e) Right of Entry; Advance Notice. A state program must have a right to enter and inspect all covered workplaces, and a compulsory process to enforce those rights, such that its inspection authority is equivalent to that of Federal OSHA (Section 18(c)(3) of the Act and 29 CFR 1902.3(e)). In addition, the state is expected to prohibit advance notice of inspection, allowing exceptions thereto no broader than those provided for under the Federal program (29 CFR 1902.3(f)). Section 654.067 of the Oregon Safe Employment Act provides for an inspector's right to enter and inspect all covered workplaces in terms substantially identical to those in the Federal Act. The Oregon law also prohibits advance notice, and implementing procedures for exceptions to this prohibition are substantially identical to the Federal procedures.

In order to be found qualified for final approval, a state is expected to take action to enforce its right of entry when denied (29 CFR 1902.37(b)(9)) and to adhere to its advance notice procedures. During the evaluation period, there were 14 denials of entry. Entry was achieved in all cases, the same as for Federal OSHA during the period. During the evaluation period, no advance notice of inspections was given.

(f) Citations, Penalties, and Abatement. A state plan is expected to have authority and procedures for promptly notifying employers and employees of violations identified during inspections, for issuing first-instance and other sanctions against employers found in violation of standards, and for promptly notifying employers of penalties (29 CFR 1902.4(c)(2)(x) and (xi)).

In order to be qualified for final approval, the state, in actual operation, must be found to conduct competent inspections in accordance with approved procedures and to obtain adequate information to support resulting citations (29 CFR 1902.37(b)(10)). The state must issue citations, proposed penalties and failure-to-abate notifications in a timely manner (29 CFR 1902.37(b)(11)), propose penalties for first-instance and other violations in a manner that is at least as effective as the Federal program (29 CFR 1902.37(b)(12)), and ensure the abatement of hazards (including via the issuance of failure-to-abate notices and appropriate penalties) (29 CFR 1902.37(b)(13)).

The Oregon plan, through its law, regulations, and operations manual, has established a system, similar to the Federal program, that provides for the prompt issuance of citations delineating violations and establishing reasonable abatement periods, requires the posting of such citations for employee information, and allows for the proposal of appropriate penalties. In addition to issuing citations, the state issues “Orders to Correct.” The Order to Correct carries no penalty but requires abatement and may serve as the basis for repeated and failure-to-abate violations. Its use is limited and occurs primarily when a small construction employer who has failed to establish a required safety committee agrees to implement an “innovative” safety committee. It is also used to require the correction of safety and health hazards in the rare situation when a citation cannot be issued within 180 days and when legal estoppel issues interfere with issuing a citation. Procedures for the Oregon occupational safety and health compliance program are set out in the Oregon Field Inspection Reference Manual, which has been determined to contain policies and procedures at least as effective as those in the Federal compliance manual.

The 18(e) Evaluation Report notes overall adherence by Oregon to its inspection procedures. Oregon cited an average of 2.9 violations per inspection. 40% of safety and 25% of health violations were cited as serious, willful, or repeat. The percentages of serious safety and health violations were lower than the comparable Federal percentages, but state officials assert that fewer serious violations per inspection are expected in Oregon because of a higher frequency of inspections, workplace safety committee (and employer safety and health program) requirements, and a large consultation program. No systemic problems relating to violation classification have been found. The state continues to provide compliance officers with specific training and direction to ensure that violations are properly classified. Oregon's lapse time from the opening conference to issuance of a citation averaged 38 days for safety and 74 days for health. Though the state's health citations lapse time was greater than the national average of 63 days, it dropped to 69 days by the middle of FY 2004.

Oregon's procedures for calculating penalties are different than OSHA's. The state uses lower base penalty amounts to calculate the probability/severity-based (gravity-based) penalty, applies different calculations to combined or grouped violations, and applies different calculations for penalty adjustment factors. Although these differences result in lower average penalties in Oregon ($365 for serious violations in FY 2003), no deficiencies in program operations attributable to these differences were noted.

Ninety-six percent (96%) of safety violations in Oregon had abatement periods of fewer than 30 days, and 97% of health violations had abatement periods of fewer than 60 days. This surpasses Federal performance.

Although an Oregon statute affords employers the right to withhold the results of voluntary safety and health self-audits conducted by private consultants, this self-audit privilege is very limited, has never been invoked by employers, and has had no negative impact on the state's ability to identify and cite violations. While OSHA and the U.S. Department of Labor believe that a self-audit privilege is inappropriate and unnecessary, such a policy in Oregon, as limited, does not present a sufficient basis for finding the state plan deficient or for withholding final approval status. See 69 FR 75446 (Dec. 16, 2004).

(g) Contested Cases. A state plan must have procedures for employers to contest citations, penalties and abatement requirements at full administrative or judicial hearings. Employees must have an opportunity to participate as parties in proceedings resulting from an employer's contest (29 CFR 1902.4(c)(2)(xii)). Oregon's contest procedures and procedures for ensuring employees' participation rights are contained in the law, regulations, and operations manual that have been made a part of the record in this proceeding. The Oregon plan provides for the review of contested cases by the Workers' Compensation Board, an independent administrative board. Decisions of the Board may be appealed to the Oregon Court of Appeals. OR-OSHA had fewer violations vacated, fewer serious violations reclassified, and smaller penalty reductions after appeal than Federal OSHA during the same period.

Whenever appropriate, the state must seek administrative and judicial review of adverse adjudications. Additionally, the state must take necessary and appropriate action to correct any deficiencies in its program which may be caused by an adverse administrative or judicial determination. See 29 CFR 1902.37(b)(14). There was no OR-OSHA appellate level contested case activity during the evaluation period. OR-OSHA has had a number of appellate challenges in prior years, and has been successful in upholding basic employee rights (e.g., complainant confidentiality and participation in inspections) as well as program authorities (e.g., inspection targeting and expansion of inspection scope).

(h) Enforcement Conclusion. In summary, OSHA finds that enforcement operations provided under the Oregon plan are competently planned and conducted, and are overall at least as effective as Federal OSHA enforcement.

(4) Public Employee Program. Section 18(c)(6) of the Act requires that a state with an approved plan maintain an effective and comprehensive safety and health program applicable to all employees of public agencies of the state and its political subdivisions. That program must be as effective as the standards contained in an approved plan. 29 CFR 1902.3(j) requires that a state's program for public employees be as effective as its program for private employees covered by the plan. The Oregon plan provides a program in the public sector which is comparable to the private sector program, including with respect to the assessment of penalties for serious violations. In Oregon, injury and illness rates in the public sector are comparable to private sector rates.

During the 18(e) evaluation period, the state conducted 4.9% of its total inspections in the public sector, and results were comparable to the private sector. Because Oregon's performance in the public sector is comparable to that in the private sector, OSHA concludes that the Oregon program meets the criteria in 29 CFR 1902.3(j).

(5) Staffing and Resources. Section 18(c)(4) of the Act requires state plans to provide the qualified personnel necessary for the enforcement of standards. See also 29 CFR 1902.3(h). In accordance with 29 CFR 1902.37(b)(1), one factor which OSHA must consider in evaluating a plan for final approval is whether the state has a sufficient number of adequately trained and competent personnel to discharge its responsibilities under the plan.

The Oregon plan provides for 52 safety compliance officers and 28 industrial hygienists as set forth in the Oregon FY 2003 and FY 2004 grant applications. This staffing level exceeds the revised “fully effective” health and safety staffing benchmarks for Oregon of 47 safety compliance officers and meets the benchmark of 28 industrial hygienists approved by OSHA on August 11, 1994 (59 FR 42493, Aug. 18, 1994). At the close of the evaluation period, the state had 98% of safety and 96% of health compliance officer positions filled.

Oregon staff are trained by internally developed and conducted training sessions as well as by courses offered through the OSHA Training Institute. Development plans are created annually for each staff member to meet individual needs. In addition, the state develops a biennial training plan to provide a process through which major rule changes and shifts in technology can be addressed division-wide.

Because Oregon has allocated sufficient enforcement staff to meet the revised benchmarks, and personnel are trained and competent, the requirements for final approval set forth in 29 CFR 1902.37(b)(1) and in the court order in AFL-CIO v. Marshall are being met by the Oregon plan.

Section 18(c)(5) of the Act requires that the state devote adequate funds to administration and enforcement of its standards. See also 29 CFR 1902.3(i). Oregon has consistently provided state matching funds well in excess of Federal funding. In the Fiscal Year 2005 initial grant award, the state has provided 72.6% of the total budget for its occupational safety and health program. Total initial funding for the state program in Fiscal Year 2005 is $18,604,237. ($5,105,000 Federal, $13,499,237 state).

As noted in the 18(e) Evaluation Report, Oregon's funding exceeds Federal requirements in absolute terms; moreover, the state allocates its resources to the various aspects of the program in an effective manner. On this basis, OSHA finds that Oregon has provided sufficient funding and resources for the various activities carried out under the plan.

(6) Records and Reports. State plans must assure that employers submit reports to the Secretary in the same manner as if the plan were not in effect (Section 18(c)(7) of the Act and 29 CFR 1902.3(k)). The plan must also provide assurance that the designated agency will make reports to the Secretary in such form and containing such information as the Secretary may from time to time require (section 18(c)(8) of the Act and 29 CFR 1902.3(1)).

Oregon employer recordkeeping requirements are identical to those of Federal OSHA (including all recent Federal revisions) with regard to the recording and reporting of injuries, illnesses and fatalities, although they differ in other areas. The state participates in the BLS Annual Survey of Occupational Injuries and Illnesses and the Census of Fatal Occupational Injuries. Oregon OSHA has elected not to participate in the OSHA Data Initiative, but has access to workers' compensation claims rates for employer-specific injury/illness information. The state participates and has assured its continuing participation with OSHA in the Integrated Management Information System (IMIS) as a means of providing reports on its activities to OSHA.

For the foregoing reasons, OSHA finds that Oregon has met the requirements of sections 18(c)(7) and (8) of the Act on employer and state reports to the Secretary.

(7) Voluntary Compliance. A state plan is required to undertake programs to encourage voluntary compliance by employers and employees (29 CFR 1902.4(c)(2)(xiii)). Oregon operates an on-site consultation program funded under Section 21(d) of the Act which is separate from its OSHA-approved state plan. This program provides consultation services to private sector employers focusing on small, high hazard employers. Two safety and two health positions are allocated for Oregon under this contract. During the evaluation period, Oregon's 21(d) consultants conducted 130 visits of which 93 were health consultations and 37 were safety consultations. These consultants played an important role in the implementation of a required employer recognition and exemption program by participating with state-funded consultants in 28 Safety and Health Achievement Recognition Program (SHARP) evaluation teams during the evaluation period.

Oregon provides additional consultative services to public and private employers with 19 safety and 13 health consultants that are 100% state-funded. (About 13% of OR-OSHA's annual consultations are conducted in the public sector.) This large state-funded consultation program does not make referrals to enforcement and does not require the posting of hazards and therefore the private sector aspect of this program is not considered part of the approved state plan. It is evaluated to assure that it does not have a negative impact on the mandated state program activities. The state believes that this program has added to the overall effectiveness of OR-OSHA and, to date, no negative impact on the Oregon State Plan has been identified.

OR-OSHA's Web site offers an extensive inventory of training opportunities: on-line registration for a large variety of workshop classes, on-line training modules for Hispanic workers and for loggers, classes jointly developed with labor and the construction industry, and on-line interactive courses. On-line compliance assistance resources include a Spanish-English Dictionary of Occupational Safety and Health Terms, technical publications in Spanish, training materials, and an ergonomics Web page. OR-OSHA also offers special assistance for small businesses, including “brown bag” safety and health program workshops and on-line resources. During FY 2003, 14,927 participants, including 6,286 from five targeted industries, attended OR-OSHA training sessions and conferences.

Oregon's employer recognition programs include Voluntary Protection Programs, with 7 certified sites, and its Safety and Health Achievement Recognition Program (SHARP), with 82 sites (and 84 additional employers working towards SHARP). OR-OSHA also has 20 partnerships, alliances and other cooperative agreements.

Accordingly, OSHA finds that Oregon has established and is administering an effective voluntary compliance program.

(8) Injury/Illness Rates. As a factor in its section 18(e) determination, OSHA must consider whether the Bureau of Labor Statistics' annual occupational safety and health survey and other available Federal and state measurements of program impact on worker safety and health indicate that trends in worker safety and health injury and illness rates under the state program compare favorably with those under the Federal program. See 29 CFR 1902.37(b)(15). Although Oregon's injury/illness rates are somewhat higher than the national rates, they have declined steadily during the past decade, at a rate greater than the national experience. Oregon's lost workday case incidence rate declined from 5.6 in 1988 to 3.2 in 2001, while the national rate declined from 4.0 in 1989 to 2.8 in 2001. Oregon's lost workday case rate has declined by 43% while the national rate has declined by 30%. Oregon's lost workday case rate for the private sector remained at 3.2 for 2001 and 2002, slightly higher than the national rate of 2.8 for both years. Oregon's total case rate was also slightly higher than the national rate in both 2001 (6.2 vs. 5.7 national) and 2002 (6.0 vs. 5.3 national), but in 2003 moved closer to the national rate when Oregon's rate declined 6.7% (5.6 vs. 5.0 national). (Injury-illness data for 2002 and 2003 are not directly comparable to 2001 or prior years due to a change in OSHA's recordkeeping requirements.)

In construction, Oregon's lost workday case rate dropped from 4.3 in 1999 and 2000 to 3.8 in 2001, remaining below the national rate for all three years, but was slightly higher than the national rate in 2002 (4.0 Oregon vs. 3.8 national). In manufacturing, Oregon's lost workday case rate was 4.3 in 2001, slightly higher than the 4.1 national rate, while in 2002 Oregon's rate of 4.1 was identical to the national. Oregon's lost workday case rate for public sector employment was 2.9 in 2001 and 3.1 in 2002, still comparing favorably to its 3.2 private sector rate. Oregon's number of accepted disabling workers' compensation claims has also declined steadily over the past decade, from 31,530 in 1994 to 23,482 in 2002, and the accepted disabling claims rate declined from 1.7 in 1998 to 1.5 in 2002.

OSHA finds that during the evaluation period trends in worker injury and illness in Oregon were comparable to those in states with federal enforcement.

OSHA has carefully reviewed the record developed during the above described proceedings, including all comments received thereon. The present Federal Register document sets forth the findings and conclusions resulting from this review.

In light of all the facts presented on the record, the Assistant Secretary has determined that, with the exception of the issue of temporary labor camps in agriculture, general industry, construction and logging, the Oregon State Plan for occupational safety and health, which has been monitored for at least one year subsequent to certification, is in actual operation at least as effective as the Federal program and meets the statutory criteria for state plans in Section 18(e) of the Act and implementing regulations at 29 CFR part 1902. Accordingly, the Oregon State Plan, with the exception of temporary labor camps, is hereby granted final approval under Section 18(e) of the Act and implementing regulations at 29 CFR part 1902, effective May 12, 2005.

Under this 18(e) determination, Oregon will be expected to maintain a state program which will continue to be at least as effective as operations under the Federal program in protecting employee safety and health at covered workplaces. This requirement includes submitting all required reports to the Assistant Secretary as well as submitting plan supplements documenting state-initiated program changes, changes required in response to adverse evaluation findings, and responses to mandatory Federal program changes. In addition, Oregon must continue to allocate sufficient safety and health enforcement staff to meet the benchmarks for state compliance staffing established by the Department of Labor, or any revision to those benchmarks.

The determination that the criteria set forth in Section 18(c) of the Act and 29 CFR part 1902 are being applied in actual operations under the Oregon plan terminates OSHA authority for federal enforcement of its standards in Oregon with respect to those issues covered under the state plan (with the exception of temporary labor camps in agriculture, general industry, construction and logging). Section 18(e) provides that upon making this determination “the provisions of sections 5(a)(2), 8 (except for the purpose of carrying out subsection (f) of this section), 9, 10, 13, and 17 * * * shall not apply with respect to any occupational safety and health issues covered under the plan, but the Secretary may retain jurisdiction under the above provisions in any proceeding commenced under section 9 or 10 before the date of determination.”

Accordingly, with the exception of temporary labor camps, Federal authority over worksites covered by the Oregon State Plan is relinquished, as of the effective date of this determination, with respect to the issuance of citations for violations of OSHA standards (Sections 5(a)(2) and 9); the conduct of inspections (except those necessary to conduct evaluations of the plan under Section 18(f), and other inspections, investigations or proceedings necessary to carry out Federal responsibilities which are not specifically preempted by section 18(e)) (Section 8); the conduct of enforcement proceedings in contested cases (Section 10); proceedings to correct imminent dangers (Section 13); and the proposal of civil penalties and the initiation of criminal proceedings for violations of the Act (Section 17). Because this 18(e) determination does not cover temporary labor camps, this action will not result in any change to present Federal enforcement authority at those sites.

Federal authority under provisions of the Act not listed in section 18(e) is unaffected by this determination. Thus, for example, the Assistant Secretary retains authority under section 11(c) of the Act with regard to complaints alleging discrimination against employees because of the exercise of any right afforded to the employee by the Act, although such complaints may be initially referred to the state for investigation. Any proceeding initiated by OSHA under sections 9 and 10 of the Act prior to the date of this final determination remain under Federal jurisdiction. The Assistant Secretary also retains authority under section 6 of the Act to promulgate, modify or revoke occupational safety and health standards which address the working conditions of all employees, including those in states which have received an affirmative 18(e) determination. In the event that a state's 18(e) status is subsequently withdrawn and Federal authority reinstated, all Federal standards, including any standards promulgated or modified during the 18(e) period, would be federally enforceable in the state.

In accordance with section 18(e), this determination relinquishes Federal OSHA authority with regard to occupational safety and health issues covered by the Oregon plan (except for temporary labor camps), but OSHA retains full authority over issues which are not subject to state enforcement under the plan. Thus, for example, Federal OSHA retains its authority to enforce all provisions of the Act, and all Federal standards, rules or orders, as applicable to the safety or health of employees in private sector establishments on Indian reservations and tribal trust lands, including tribal and Indian-owned enterprises; Federal agencies; the U.S. Postal Service and its contractors; contractors on U.S. military reservations, except those working on U.S. Army Corps of Engineers dam construction projects; and private sector maritime employment on or adjacent to navigable waters, including shipyard operations and marine terminals. These employers remain subject to Federal OSHA jurisdiction. In addition, Federal OSHA may subsequently initiate the exercise of jurisdiction over any issue (hazard, industry, geographical area, operation or facility) for which the state is unable to provide effective coverage for reasons which OSHA determines are not related to the required performance or structure of the state plan.

As provided by section 18(f) of the Act, the Assistant Secretary will continue to evaluate the manner in which the state is carrying out its plan. Section 18(f) and regulations at 29 CFR part 1955 provide procedures for the withdrawal of Federal approval should the Assistant Secretary find that the state has subsequently failed to comply with any provision or assurance contained in the plan. Additionally, the Assistant Secretary may initiate proceedings to revoke an 18(e) determination and reinstate concurrent Federal authority under procedures set forth in 29 CFR 1902.47, et seq., if the Assistant Secretary's evaluations show that the state has substantially failed to maintain a program which is at least as effective as operations under the Federal program, or if the state does not submit program change supplements to the Assistant Secretary as required by 29 CFR part 1953. See 29 CFR 1902.43(a)(4).

29 CFR part 1952 contains, for each state having an approved plan, a Subpart generally describing the plan and setting forth the Federal approval status of the plan. 29 CFR 1902.43(a)(3) requires that notices of affirmative 18(e) determinations be accompanied by changes to part 1952 reflecting the final approval decision. This notice makes changes to subpart D of part 1952 to reflect the final approval of the Oregon plan.

The table of contents for part 1952, subpart D, has been revised to reflect the following changes:

A new Section 1952.104, Final approval determination, which formerly was reserved, has been added to reflect the determination granting final approval of the plan. This section contains a more accurate description of the current scope of the plan than the one contained in the initial approval decision.

Section 1952.105, Level of Federal enforcement, has been revised to reflect the state's 18(e) status. This replaces the former description of the relationship of state and Federal enforcement under an Operational Status Agreement voluntarily suspending Federal enforcement authority, which was entered into on January 23, 1975. Section 1952.105 describes the issues over which Federal authority has been terminated, and the issues for which it has been retained in accordance with the discussion of the effects of the 18(e) determination set forth earlier in the present Federal Register notice.

OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) that this determination will not have a significant economic impact on a substantial number of small entities. Final approval would not place small employers in Oregon under any new or different requirements, nor would any additional burden be placed upon the state government beyond the responsibilities already assumed as part of the approved plan.

Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), emphasizes consultation between Federal agencies and the states and establishes specific review procedures the Federal government must follow as it carries out policies which affect state or local governments. OSHA has included in the Supplementary Information section of today's final approval decision a detailed explanation of the relationship between Federal OSHA and the state plan states under the Occupational Safety and Health Act. Although it appears that the specific consultation procedures provided in section 6 of Executive Order 13132 are not mandatory for final approval decisions under the Act because they neither impose a burden upon the state nor involve preemption of any state law, OSHA has nonetheless consulted extensively with Oregon throughout the period of 18(e) evaluation. OSHA has reviewed the Oregon final approval decision proposed today, and believes it is consistent with the principles and criteria set forth in the Executive Order.

This document was prepared under the direction of Jonathan L. Snare, Acting Assistant Secretary of Labor for Occupational Safety and Health. It is issued under Section 18 of the Occupational Safety and Health Act of 1970, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902; and Secretary of Labor's Order No. 5-2002 (67 FR 65008, Oct. 22, 2002).

On March 31, 2005, we published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Fireworks Displays Within the Fifth Coast Guard District in the Federal Register (70 FR 16463). We received one letter commenting on the proposed rule. No public meeting was requested, and none was held.

The Coast Guard will establish 34 permanent safety zones that will be enforced for fireworks displays occurring throughout the year that are held on an annual basis and normally held in one of 34 locations. The 34 locations are: Patuxent River Solomons Island, MD; Middle River, MD; Northeast River, MD; Potomac River, Charles County, MD; Baltimore Inner Harbor, Patapsco River, MD; Northwest Harbor (Western Section), Patapsco River, MD; Northwest Harbor (East Channel), Patapsco River, MD; Washington Channel, Upper Potomac River, Washington, DC; Dukeharts Channel, Potomac River, Coltons Point, MD; Severn River and Spa Creek, Annapolis, MD; Miles River, St. Michaels, MD; Chesapeake Bay, Chesapeake Beach, MD; Choptank River, Cambridge, MD; Chester River, Kent Island Narrows, MD; Atlantic Ocean, Ocean City, MD; Isle of Wight Bay, MD; Assawoman Bay, Fenwick Island, MD; Atlantic Ocean, Rehoboth Beach, DE; Indian River Bay, DE; Little Egg Harbor, NJ; Barnegat Bay, NJ; Delaware Bay, North Cape May, NJ; Delaware River, Philadelphia, PA; Morehead City Harbor Channel, Morehead City, NC; Green Creek and Smith Creek, Oriental, NC; Pamlico River, Washington, NC; Neuse River, New Bern, NC; Cape Fear River, Southport, NC; Cape Fear River, Wilmington, NC; Upper Potomac River, Alexandria, VA; Potomac River, Prince William County, VA; Chincoteague Channel, Chincoteague, VA; Atlantic Ocean, Virginia Beach, VA; and Elizabeth River, Southern Branch, Norfolk, VA. The Coast Guard received over 50 applications in these areas between January 2004 and January 2005. Previously a temporary safety zone was typically established on an emergency basis for each display.

Each year organizations in the Fifth Coast Guard District sponsor fireworks displays in the same general location and time period. Each event uses a barge or an on-shore site as the fireworks launch platform. A safety zone is used to control vessel movement within a specified distance surrounding the launch platforms to ensure the safety of persons and property. Coast Guard personnel on scene will allow persons within the safety zone if conditions permit. The Coast Guard will publish notices in the Federal Register if an event sponsor reported a change to the listed event venue or date. Coast Guard Captains of the Port will give notice of the enforcement of each safety zone by all appropriate means to provide the widest publicity among the affected segments of the public. This will include publication in the Local Notice to Mariners and Marine Information Broadcasts. Marine information and facsimile broadcasts may also be made for these events, beginning 24 to 48 hours before the event is scheduled to begin, to notify the public. Fireworks barges or launch sites on land used in the locations stated in this rulemaking will also have a sign on the port and starboard side of the barge or mounted on a post 3 feet above ground level when on land and facing the water labeled “FIREWORKS—DANGER—STAY AWAY”. This will provide on scene notice that the safety zone is or will be enforced on that day. This notice will consist of a diamond shaped sign 4 foot by 4 foot with a 3-inch orange retro-reflective border. The word “DANGER” shall be 10 inch black block letters centered on the sign with the words “FIREWORKS” and “STAY AWAY” in 6 inch black block letters placed above and below the word “DANGER” respectively on a white background. There will also be a Coast Guard patrol vessel on scene 30 minutes before the display is scheduled to start until 30 minutes after its completion to enforce the safety zone.

The enforcement period for these safety zones is from 5:30 p.m. (e.s.t.) to 1 a.m. (e.s.t.). However, vessels may enter, remain in, or transit through these safety zones during this timeframe if authorized by the Captain of the Port or designated Coast Guard patrol personnel on scene, as provided for in 33 CFR 165.23.

This rule is to provide for the safety of life on navigable waters during the event.

One letter was received commenting on this rule. The comments in the letter indicated that the costs of the signs that provide on scene notice with the words “FIREWORKS” “DANGER” “STAY AWAY” would be prohibitive to fireworks production companies. Additionally, the comments indicated that the fireworks signs would bring undue attention to the presence of explosives in a particular area. The Coast Guard considers the cost associated to comply with this regulation fair and reasonable to ensure a safe event. The cost estimate provided in the comments significantly overstated the actual cost of signage required by this rule. The signs required by this rule will be posted only on the days this rule is enforced, which will not cause undue attention to the presence of explosives in the area. This rule's objective is to provide mariners on scene notice and clearly establish safety zones by using highly visible signs to ensure boating traffic stays well clear of designated fireworks fall out areas. No change was made to this regulation as a result of the comments received.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

This finding is based on the short amount of time that vessels would be restricted from the zones, and the small zone sizes positioned in low vessel traffic areas. Vessels would not be precluded from getting underway, or mooring at any piers or marinas currently located in the vicinity of the safety zones. Advance notifications would also be made to the local maritime community by issuing Local Notice to Mariners. Marine information and facsimile broadcasts may also be made to notify the public. Additionally, the Coast Guard anticipates that these safety zones will only be enforced 2 to 3 times per year.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule will effect the following entities some of which may be small entities: The owners and operators of vessels intending to transit or anchor in the safety zones during the times these zones are enforced.

These safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The enforcement period will be short in duration and in many of the zones vessels can transit safely around the safety zones. Generally, blanket permission to enter, remain in, or transit through these safety zones will be given except during the period that the Coast Guard patrol vessel is present. Before the enforcement period, we will issue maritime advisories widely.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, because it would 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.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule fits the category selected from paragraph (34)(g), as it would establish 34 safety zones.

A draft “Environmental Analysis Check List” and a draft “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES. Comments on this section will be considered before we make the final decision on whether the rule should be categorically excluded from further environmental review.

I. Background

On December 27, 2004 (69 FR 77149), EPA published a notice of proposed rulemaking (NPR) for the District of Columbia. The NPR proposed approval of the VOC emission standards for AIM coatings. The formal SIP revision was submitted by the District on April 16, 2004 and supplemented on September 20 and November 26, 2004. Other specific requirements of the District'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. EPA received adverse comments on the December 27, 2004 NPR. A summary of the comments submitted and EPA's responses are provided in Section II of this document.

EPA is aware that concerns have been raised about the achievability of VOC content limits of some of the product categories under the District's AIM coatings rule. 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 District and manufacturers to explore ways to ensure that the rule achieves the intended VOC emission reductions, and to address this issue in evaluating the amount of VOC emission reduction credit attributable to the rule.

A private citizen and the Sherwin Williams Company (SWC) submitted adverse comments on EPA's December 27, 2004 (69 FR 77149) proposed approval of the District's AIM coatings rule The SWC submitted its adverse comments in letter to EPA dated January 26, 2005. The SWC's comment letter also includes, by reference, the comments it previously submitted to the District on its proposed version of the AIM coatings rule during the District's adoption process and to the Ozone Transport Commission (OTC) in a letter dated January 11, 2001.1 Lastly, the SWC's January 26, 2005 letter of comment to EPA also includes, by reference, the Petition for Reconsideration and Request for Stay, 42 U.S.C.A. Subsection 7607(d)(7)(B): Environmental Protection Agency's Approval and Promulgation of Air Quality Improvement Plans; Pennsylvania; Control of Volatile Organic Compound Emissions from AIM Coatings submitted by the SWC to EPA on January 20, 2005 (hereafter the Petition for Reconsideration).2 The following summarizes the comments submitted to EPA on the December 27, 2004 (69 FR 77149) proposed approval of the District's AIM coatings rule and EPA's response to those comments.

A. Comment: The Products Should Contain No VOCs—A private citizen submitted a comment to EPA by e-mail on December 27, 2005. The commenter states that no VOCs, zero emissions and zero pollution should be allowed from any product allowed to be used or sold.

Response: EPA disagrees with this comment. Aside from issues associated with the technological infeasibility of all paints and coatings used or sold to contain no VOCs, it is important to understand EPA's role with regard to review and approval or disapproval of rules submitted by states as SIP revisions. EPA can only take action upon the final adopted version of a state's regulation as submitted by that state in its SIP revision request. It is not within EPA's authority, by its rulemaking on the SIP revision or otherwise, to change or modify the text or substantive requirements of a state regulation. Therefore, EPA cannot modify the District's AIM regulation as recommended in the comment.

B. Comment: Using Flawed Data Violates the Data Quality Objectives Act and Administrative Procedures Act—The commenter asserts that the District's 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 (Pub. L. 106-554; H.R. 5658)). The data at issue is contained in what the commenter characterizes as a “study prepared by E.H. Pechan & Associates” (Pechan Study) in 2001. The alleged flaws relate to projected VOC emissions reductions calculated in the Pechan Study. The commenter asserts that 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 (54 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 approve the proposed District's AIM coatings rule as a revision to the SIP.3 These same issues are also raised in the commenter's Petition for Reconsideration.

Response: EPA disagrees with this comment. What the commenter characterizes as the Pechan Study is not at issue in this rulemaking. The Pechan Study was not submitted to EPA by the District in its SIP revision requesting that EPA approve its AIM coatings rule.4 The validity of the Pechan Study data is not at issue in this rulemaking because the District did not request approval of a quantified amount of VOC emission reduction from the enactment of its regulation. Rather, this AIM coatings regulation has been submitted by the District, and is being approved by EPA, on the basis that it strengthens the existing District SIP. The commenter does not dispute that the District's 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, 42 U.S.C. 7410(k)(3); 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, 42 U.S.C. 7416. EPA must disapprove state plans, and revisions thereto, that are less stringent than a standard or limitation provided by Federal law. See section 110(k) of the Act, 42 U.S.C. 7410(k); see also Duquesne Light v. EPA, 166 F.3d 609 (3d Cir. 1999). The Pechan Study is not part of the District's submission in support of its AIM coatings rule. Because the District's April 16, 2004 submission (supplemented on September 20 and November 26, 2004) does not seek approval of 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 should approve this SIP revision.5 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 District's AIM coatings rule be at least as stringent as the otherwise applicable Federal AIM coatings rule set forth at 40 CFR 59.400, subpart D.6

EPA has concluded that the District's AIM coatings rule meets the criteria for approvability. It is worth noting that EPA agrees with the commenter's conclusion that the District AIM coatings rule is more stringent than the Federal AIM coatings rule, though not for the reasons given by the commenter, i.e., that the commenter's “better” data demonstrates that OTC Model AIM coatings rule achieves a 54 percent, as opposed to the Pechan Study's 31 percent reduction in VOC emissions beyond that required by the Federal AIM coatings rule. Rather, EPA has determined that the District's AIM coatings rule is, on its face, more stringent than the Federal AIM coatings rule. Examples of categories for which the District'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's VOC content limit for non-flat high gloss coatings is 380 grams/liter while the District's 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 District's AIM coatings rule's is 400 grams/liter. Examples of categories for which the District's 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 low-solids 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 District's AIM coatings rule is as stringent or more stringent than the Federal AIM coatings rule.

C. Comment: EPA's Determination That the District of Columbia AIM Coatings Rule Is as Least as Stringent as the Federal AIM Coatings Rule Is Inadequate—EPA determined that the District's AIM coating rule is as stringent, or more stringent, than the otherwise applicable Federal AIM coatings rule because the VOC content limit of each product category of the District's AIM coatings rule is equal to or below the VOC content limit of the Federal AIM coatings rule. The commenter claims that EPA's determination is inadequate for at least three reasons: (i) EPA's comparison of VOC content fails to include an “ozone impact analysis;” (ii) EPA acknowledged that the stringent VOC content limits of the rule might result in “behavioral changes;” and (iii) EPA failed to consider that more stringent VOC content limits might result in more use of products, or use of products with VOCs of higher reactivity, and that this would make the District's AIM coatings rule less stringent in terms of ozone impacts. The commenter raised these arguments in a Petition for Reconsideration concerning EPA's approval of the comparable Pennsylvania AIM coatings rule, asserting that EPA's “on its face” stringency finding is insufficient to meet the requirements of the CAA and that EPA's reliance on Union Elec. Co. v. EPA, 427 U.S. 246 (1976) to support its approval of the rule was misplaced. As noted previously, SWC has incorporated this Petition for Reconsideration in its comments opposing approval of the District's AIM coatings rule.

Response: EPA disagrees that these comments provide a basis for disapproval of the District's AIM coating rule as a SIP revision. First, with respect to the comparison of the stringency of the District AIM coatings rule and the Federal AIM coatings rule, EPA believes that the VOC content levels of the respective rule for each category is the appropriate basis of comparison. The current Federal AIM coatings rule achieves reductions of VOC content for each individual coating category, and an aggregate amount of VOC content for all of the categories covered by the rule. These mass-based VOC content limits apply to each category of product and, based upon an analysis of the types of products used and the amount of products used in a given area, are estimated to result in a given amount of mass based VOC emission reductions. As we have previously noted in this rulemaking, the District did not request approval of a quantified amount of VOC emission reduction from the enactment of its regulation; the ozone impacts of the VOC reductions from the District's AIM coatings rule will be determined at a subsequent point in time. Even though the specific amount of VOC emission reduction credit attributable to the District's AIM coatings rule is not at issue in EPA's approval of the rule into the SIP in this rulemaking, EPA believes that the category-by-category comparison of VOC content between the Federal AIM coatings rule and the District's coating rule is a reasonable way to assess whether the latter is at least as stringent as the former. The commenter did not dispute that the District's AIM coatings rule is overall more stringent than the Federal AIM coatings rule in terms of its tighter VOC limits, and in fact states in its comments that it believes that the OTC model AIM coatings rule will achieve a 54 percent VOC emissions reduction relative to the Federal AIM coatings rule.

Second, with respect to what the commenter refers to as “behavioral changes,” EPA did note in its approval of comparable State AIM coatings rules in Pennsylvania and New York (and reiterates in today's action) that it had concerns with respect to some of the product categories 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, thereby circumventing the rule's intended VOC emission reductions.” EPA further stated that it would address these types of concerns when evaluating credit for VOC emission reductions. The commenters appear to suggest that because product users might engage in “behavioral changes” such as adding solvent to products, which would be illegal under the District's AIM coatings rule, EPA cannot consider the District's AIM coatings rule to be at least as stringent as the Federal AIM coatings rule. To the contrary, EPA believes that the potential for illegal behavior should not be a basis for concluding that the District's AIM coatings rule is not as stringent as the Federal AIM coatings rule, and accordingly should not be a basis for disapproving the SIP revision. EPA appropriately assumes, for purposes of approving such a rule, that manufacturers, distributors, and users will abide by the law, or that the District or EPA will ultimately insure that they do. EPA reiterates, however, that the specific amount of credit attributable to the rule is not at issue in this action, and EPA concludes that the mere potential for illegal behavior is not a basis for determining that the District's AIM coatings rule is not as stringent as the Federal AIM coatings rule.

Third, concerning the possibility that more stringent limits will result in more frequent painting, or painting with products that contain more highly reactive VOCs, EPA notes that the commenter already raised these issues with the District and the District ascertained that such concerns did not outweigh the overall benefits of the rule in the area. Similarly, EPA believes that these concerns are not a basis for determining that the District's AIM coatings rule is not at least as stringent as the Federal AIM coatings rule as a whole. At the outset, it must be noted that the District did not elect to develop and submit to EPA an AIM coatings rule based upon VOC relative reactivity, as the commenter implicitly suggests the District should have. EPA must act on the AIM coatings rule submitted by the District, not on one that the commenters would have preferred. Were the District to have submitted such an AIM coatings rule, EPA agrees with the commenter that the District would have needed to establish that the limits it imposed are in fact more stringent than those otherwise required by the Federal AIM coatings rule. In addition, EPA notes that as a general matter EPA believes that its approval of such a rule could not be inconsistent with the requirements of section 110(l) and section 193 of the CAA, as applicable. A determination of consistency with those statutory provisions would be made in the context of approval of a specific rule based upon relative reactivity. Because neither the District's AIM coatings rule nor the Federal AIM coatings rule is premised upon VOC relative reactivity, it is neither possible nor required that EPA compare the relative stringency of the rules on this basis in this rulemaking.

In criticizing the District's AIM coatings rule, the commenter has hypothesized that users will necessarily use more product, or that manufacturers will necessarily choose to use more reactive VOCs to meet a more stringent limit, at least with respect to one specific category of product (the commenter alleges that an applicator would have to use 50 percent more of the compliant waterborne clear wood finish to achieve the dry film thickness equivalent to current, federally compliant solvent-based varnish). EPA believes that the commenter's assertions are speculative in nature and do not provide compelling evidence that the District's AIM coatings rule is not at least as stringent as the otherwise applicable Federal AIM coatings rule. EPA believes that it would be arbitrary and capricious to disapprove the District's AIM coatings rule based on the speculative behavior of the persons who will apply the coatings (e.g., that the applicators necessarily will use more of a product or will necessarily violate the law by adulterating a complying product).7 This is especially so when the regulation at issue is both facially more stringent and conceded by the commenter to be more stringent overall (i.e., will result in greater VOC emissions reductions), than the otherwise applicable Federal AIM coatings rule, and any supposed increase in ozone from tighter VOC content limits is confined to one, or at the most a limited number of product categories, not to the regulation as a whole, which provides limits on 53 categories of AIM coatings. See Duquesne Light Co. v. EPA 166 F.3d 609, 613 (3d Cir. 1999) (in approving a SIP revision, EPA is not required “to engage in a formalistic exercise by conducting a fuller demonstration of the stringency of” a definition contained in a SIP, when “[s]uch a ‘demonstration’ would be a technical formality as the stringency of that definition is not only apparent on the face of the definition, but also conceded by Duquesne”) (emphasis added). We believe that there is no plausible basis to reject this regulation, which is more stringent than Federal law overall, merely because the commenter has speculated that even more reductions might be achieved by selectively raising the VOC content limits for some product categories covered by the comprehensive regulation.

Finally, in response to the District's AIM coatings rule, EPA believes that it is likely that manufacturers will produce, and users will use, products that are lower in VOC content. While an important consideration, EPA believes that coatings performance is not exclusively dependent upon VOC content, as evidenced by the fact that manufacturers already produce coatings that meet these limits for sale and use.

For these reasons EPA disagrees that these comments form a basis to conclude that EPA's “on its face” stringency finding is insufficient to meet the requirements of the CAA and that EPA's reliance on Union Elec. Co. v. EPA, 427 U.S. 246 (1976) to support its approval of the District's AIM rule is misplaced.

D. The CAA and Its Regulations Require That Data or Evidence Assessing the Air Quality Impacts Associated With a SIP Revision Must Be Submitted in Support of the SIP Revision. The commenter alleges that the section 110(a)(K) authorizes EPA to require, and that EPA regulations in 40 CFR part 51 (subparts G and F and Appendix v) demand, that states submit data and modeling in support of a SIP revision for the purposes of predicting its impact on air quality. The commenter raises these arguments in the Petition for Reconsideration to urge that EPA require Pennsylvania to submit such data and modeling in support of its AIM coatings rule. As noted previously, SWC has incorporated this Petition for Reconsideration in its comments opposing approval of the District's AIM coatings rule.

Response: EPA disagrees with this comment with regard to its approval of state AIM coatings rules in general and in the specific instance of its approval of the District's AIM coatings rule. Section 110(K) of the Act authorizes EPA to prescribe the modeling and data to be provided in a state plan or plan revision. The statute commits to EPA's discretion whether and what type of data or modeling a state should submit in support of a SIP revision for the purposes of predicting the impact of that SIP revision on air quality. EPA's regulations in 40 CFR part 51, cited by the commenter, apply only to control strategy plans. Control strategy plans are by definition a combination of measures to achieve the aggregate reduction necessary for attainment and maintenance of the NAAQS. 40 CFR 51.100 (n). A state regulation to control VOCs from a source or source category, such as the District's AIM coatings rule, is a single control measure and is not, by itself, a control strategy for an ozone nonattainment area subject to the requirements of part D of the CAA. As such, submittal of such a control measure as a SIP revision is not required to meet the requirements of 40 CFR part 51 for submittal of a control strategy SIP or SIP revision. Rate-of-progress and attainment plans are control strategy plans for ozone nonattainment areas.

Section 182 of the CAA sets out the plan submissions and requirements for ozone nonattainment areas. The requirements and schedules mandated by section 182 provide evidence that compliance with the CAA contemplates the submittal of control measures as SIP revisions separately from control strategy plans. For example, the states which comprise ozone nonattainment areas were required to submit corrections to previously SIP-approved reasonably available control technology (RACT) requirements by May 15, 1991 (6 months from the November 15, 1990 date of enactment of the 1990 CAA) and to submit newly applicable RACT provisions as SIP revisions by November 15, 1992 (2 years from the date of enactment of the 1990 CAA). Submittal of these state rules to impose RACT on a widely divergent range of source categories of VOC as SIP revisions required no data or modeling with regard to their individual impact on the NAAQS for ozone for approval by EPA. The first control strategy plan SIP revision required by section 182 of the CAA (the 15 percent ROP plan) was not due to EPA until November 15, 1993 (3 years after the date of enactment of the 1990 CAA). The attainment demonstration plans were not due to EPA until November 15, 1994 (4 years after the date of enactment). With regard to ozone nonattainment areas, these attainment demonstrations plans are the only plans which the CAA requires be based on photochemical grid modeling or any other analytical method determined by the Administrator of EPA.

EPA disagrees with the commenter's contention that every type of SIP revision submitted to EPA must be supported by data and modeling to assess its impact on ambient air quality and the NAAQS. As numerous of EPA's SIP approval Final actions published in the Federal Register amply demonstrate, EPA has approved hundreds of SIP revisions submitted by states consisting of state rules to control VOCs from stationary sources and source categories where such approvals did not require data and modeling to assess the individual rules' impacts on the NAAQS. The CAA and EPA's regulations found in 40 CFR part 51 for the requirements of state plans and plan revisions provide EPA the flexibility to determine and require such technical support as EPA deems necessary for approval depending upon the nature of the SIP revision.

For all these reasons, EPA disagrees that it cannot approve the District's AIM coatings rule SIP revision because the District's submittal does not include data and modeling to assess its AIM coatings rules's individual impact on the NAAQS for ozone.

E. Comment: The District of Columbia AIM Coatings Rule Was Adopted in Violation of Clean Air Act Section 183(e)(9)—The commenter states 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 commenter notes that the District'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) 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 commenter believes that the District failed to engage in that required consultation, and, therefore (1) the District violated section 183(e)(9) in its adoption of the District 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 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 or 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 AIM 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, September 11, 1998. 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 id. at 48857. Accordingly, the District 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 submission for inclusion in 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 District'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 the District, 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). Therefore, there is no validity to the commenter's assertion that the District failed to consult with EPA in the adoption of its AIM coatings rule. EPA was fully cognizant of the requirements of the District's AIM coatings rule before its formal adoption by the District.8 For all these reasons, EPA disagrees that the District violated section 183(e)(9) in its adoption of the its AIM coatings rule, and disagrees that approval of the District AIM coatings rule by EPA is in violation of or prohibited by sections 110(a)(2)(A) and (a)(2)(E) of the Act.

F. Comment: The District of Columbia's 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 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 CAA section184(c)(2)-(4). The commenter asserts that these purported violations of the Act prevented the District from adopting the District's AIM coatings rule, and now prevent EPA from validly approving it as a revision to the District's 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. Section 184 is a voluntary process and the OTC may opt for that process or another. 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 the District did, basing its AIM coatings rule on the model developed within the context of the OTC. In developing its own rule from the OTC model, the District 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.9

G. Comment: The District of Columbia's AIM Coatings Rule Violates the Commerce Clause and the Equal Protection of the U.S. Constitution—The commenter's title heading of this comment states that the District's AIM coatings rule violates the Equal Protection Clause of the U.S. Constitution, but the text that follows that title heading provides no arguments or assertions to support this claim. In both the title heading and the text that follows, the commenter claims that the District's AIM coatings rule also violates the Commerce Clause of Article I, section 8, of the U.S. Constitution, because it allegedly imposes an unreasonable burden on interstate commerce. The commenter asserts that because the District's AIM coatings rule contains VOC limits and other provisions that differ from the Federal AIM coatings rule in 40 CFR 59.400, the rule imposes unreasonable restrictions and burdens on the flow of coatings in interstate commerce. The commenter further claims that the burdens of the District's AIM coatings rule are excessive and outweigh the benefits of the rule.

Response: As indicated previously, the commenter provides no arguments or assertions as to the claim made in the title heading of this comment that the District's AIM coatings rule violates the Equal Protection Clause of the U.S. Constitution (see pages 13-14 of the letter dated January 26, 2005 from the Counsel for the Sherwin-Williams Company to Makeba Morris, Chief, Air Quality Planning Branch, U.S. EPA Region III, regarding EPA's Proposal to Approve SIP Revision Submitted by the State of Maryland Concerning Architectural and Industrial Maintenance (AIM) Coatings). Moreover, the text of the comment following the title heading does not reference or even make mention of the Equal Protection Clause. Lastly, in no other comment submitted by SWC on EPA's December 27, 2004 (69 FR 77149) proposed approval of the District's AIM coatings rule is there any mention or reference to the Equal Protection Clause of the U.S. Constitution. EPA does not believe that any provision of the District's AIM rule violates the Equal Protection Clause of the U.S. Constitution.

Regarding the comment that the District's AIM coatings rule violates the Commerce Clause of the U.S. Constitution, 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 commenter's practical concerns caused by differing state regulations, but disagrees with the commenter's view that the District 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 District's 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 District's 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 District 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 District in adopting their AIM coatings rule is to protect the public health of the citizens of the District. 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 District's 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 District's AIM coatings rule are not so overwhelming as to trump the District's interest in the protection of public health. First, the District's 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 District's rule excludes coatings sold or manufactured for use outside the state or for shipment to others (section 751.1). The District's 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 District's AIM coatings rule is not constructed in such as way that it has the practical effect of requiring extraterritorial compliance with the District's VOC limits. The District's 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 the District; (2) reformulating nonconforming products for sale in the District 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 the District'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 (2d Cir. 2000) (state label requirement for light bulbs containing mercury sold in that state not an impermissible restriction). It may be that the District's AIM coatings rule will have the effect of reducing the availability of coatings or increasing the cost of coatings within the District, 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 District's 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 the District, and does not appear to have the effect of unfairly benefitting in-state 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 (2d 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 District's 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 section183(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 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 the District 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. The District may have additional burdens to insure compliance with its rule, but for purposes of this action, EPA presumes that the District takes appropriate actions to enforce it as necessary. The EPA has no grounds for disapproval of the SIP revision based upon the Commerce Clause comment.

H. Comment: The Emission Limits and Compliance Schedule in the District of Columbia AIM Coatings Rule Are Neither Necessary nor Appropriate To Meet Applicable Requirements of the Clean Air Act—The commenter claims that the District AIM coatings rule is not “necessary or appropriate” for inclusion in the District SIP, because EPA did not direct the District to achieve VOC reductions through the AIM coatings rule, but left it to the District to decide how such reduction can be achieved. The commenter further claims that the District AIM coatings rule is not necessary or appropriate for inclusion in the District SIP because of the numerous alleged procedural and substantive failings on the part of the District 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 first 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.10 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, the District needs reductions to satisfy the requirements for rate-of-progress (ROP) and attainment plans (including contingency measures) for the reclassified Metropolitan Washington DC severe 1-hour ozone nonattainment area. It is the District'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 needed to satisfy the ROP and attainment plan requirements for its 1-hour ozone severe nonattainment area. Because commenters might find it more necessary or appropriate to obtain the needed VOC emission reductions elsewhere is not a basis for EPA to disapprove the rule implementing the District's determination of the best approach to obtain the needed reductions.

The District's April 16, 2004 SIP revision submittal (supplemented on September 20 and November 24, 2004) provides evidence and certification that it has the legal authority to adopt its AIM coatings rule and that it has followed all of the requirements in the District's law and constitution that are related to adoption of a SIP revision. As noted in BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2004):

The commenter has offered no proof, such as a court decision, that the District's AIM coatings rule clearly violates local law. EPA therefore is relying on the District's certification that it had the legal authority to adopt its AIM coatings rule and that it has followed all of the requirements in the District's law that are related to adoption of this SIP revision.

I. Comment: EPA's Action To Approve or Disapprove the District's AIM Coatings Rule Is a “Significant Regulatory Action” as Defined by Executive Order 12866, 58 FR 51735 (September 30, 1993).

Response: EPA disagrees with this comment. 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. The commenter alleges that EPA's approval of the District's AIM coatings rule is a “significant regulatory action” because it meets several of the following criteria specified in Executive Order 12866: “[it will have] an annual effect on the economy of $100 million or more or [it will] adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities * * *” However, this action merely approves existing state law as meeting Federal requirements. EPA's approval of this SIP revision imposes no additional requirements beyond those imposed by state law. Accordingly, this action meets none of the criteria listed above. Any cost or any material adverse effects on the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities exist, if at all, due to the District's approval of its state AIM coatings rule, not by EPA's approval of that rule into the District's SIP. If EPA failed to act on the District's AIM coatings rule, the effects of the rule would not be changed because this rule went effect in the District on January 1, 2005. Nothing that EPA might do at this point in time alters that fact.

Furthermore, the District voluntarily adopted its version of the OTC model AIM coatings rule and, as the commenter itself acknowledges, EPA could not impose this control measure on the District. Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997). EPA's approval of this state rule merely fulfills its statutory obligation under the Act to review SIP submissions and approve state choices, provided that they meet the criteria of the Act.

J. Comment: The District of Columbia Has Not Analyzed the Cost-Effectiveness of Any Reasonably Available Alternatives to the Proposed Rule—The commenter states that the District has an obligation to perform a thorough evaluation of the cost-effectiveness of the District AIM coatings rule, including a comparison with the cost-effectiveness of reasonably available alternatives. The rule, and related rulemaking materials, do not analyze the cost-effectiveness of any reasonably available alternatives to the proposed rule. The commenter claims that this omission demonstrates the arbitrary and capricious nature of the rule, and clearly is a direct violation of the laws of the District of Columbia.

Response: EPA disagrees with this comment. The cost per ton figure determined by the District in its economic analysis, and its decision to rely upon information from California, are all decisions which fall within a state's purview, and issues regarding those decisions are rightly raised by interested parties to the state during its regulatory adoption The District's April 16, 2004 SIP revision submittal (supplemented on September 20 and November 24, 2004) provides evidence and certification that it that it has the legal authority to adopt its AIM coatings rule and that it has followed all of the requirements in the District's law that are related to adoption of a SIP revision. (See EPA's response to Comment II. H.). See BCCA Appeal Group v. EPA, 355 F.3d 817 n.11 at 830 (EPA may rely on the state's certification that it has complied with applicable state requirements for promulgating a rule submitted as a revision to its SIP).

K. Comment: Additional Comments Submitted to the OTC and Commonwealth of Virginia Included, by Reference, in the Comments Submitted to EPA on the December 27, 2004 Proposed Approval of District's AIM Coatings Rule (69 FR 77149)—As previously noted the SWC has included, by reference, in its comments to EPA on the proposed approval of the District's AIM rule the comments it submitted to the OTC in a letter dated January 11, 2001 (and its attachments). The SWC has also included, by reference, the comments it submitted to the District during its adoption process. Most of theses comments have already been summarized and responded to previously in Comments A-K as the SWC also submitted them directly to EPA on its proposed rulemaking. The following summarizes the remaining comments submitted to the District during its rule adoption process:

(1) The commenter has significant concerns with the proposed standards for certain paints and coatings, e.g., interior wood clear and semi-transparent stains, interior wood vanishes, interior wood sanding sealers, exterior wood primers, and floor coatings. The commenter asserts that the District'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 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 the District due to seasonal variations in temperature and humidity.

(2) The commenter asserts that the economic analysis of the District'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 commenter contends that the cost figure is inappropriate given the differences in the stringency of the current requirements for AIM coatings in the District versus California, and therefore, the District needs to make an independent determination of the cost of VOC reductions from its proposed AIM coatings regulation.

(3) The commenter is concerned that the California Air Resources Board (CARB) suggested control measure (SCM) has been adopted in only 25 of the 35 air districts in California since it was first issued in June 1977. In 22 of the districts that have adopted the SCM, there are significant modifications and revisions, typically in the VOC limits for one or more AIM coating categories. Such modifications and revisions are necessary in those categories where there are no known substitute products, where it is shown that no substitute is necessary, since the increase in VOC emissions is marginal.

(4) The commenter is concerned that the proposed rule does not allow averaging of VOC content for various coatings produced by a manufacturer, which the CARB SCM allows.

(5) The commenter is concerned that there are no suitable substitutes for all the applications for these 5 categories of products, e.g., interior wood clear and semi-transparent stains, interior wood vanishes, interior wood sanding sealers, exterior wood primers, and floor coatings. No water-based substitute meets performance standard for many applications, and their use can cause grain raising, lapping and a panelization problem, and that the District has not addressed these issues.

(6) The commenter suggests that there should be numerous exemptions that should be included in the District's rule, such as low-temperature products manufactured by the commenter intended for use in colder weather when ozone is not an issue. If more consumers use coatings in non-summer months, some of the summer ozone problems will disappear. Low temperature products should be encouraged with incentives, not regulated out of the market.

(7) The commenter is concerned that the CARB report contains numerous flaws which prevent it from being a valid basis for the proposed AIM rule.

(8) The commenter was not aware of the Districts prior hearing regarding the proposed rule and requests a hearing for an opportunity to present live testimony regarding the proposed rule, prior to the District taking any action on the proposal.

Response: With regard to the comments submitted to the OTC, and to the District on its proposed AIM coatings rule and subsequently, by reference, to EPA on its December 27, 2004 proposed approval of the District's April 16, 2004 SIP revision request (supplemented on September 20 and November 24, 2004), it is important to understand EPA's role with regard to review and approval or disapproval of rules submitted by states as SIP revisions. EPA can only take action upon the final adopted version of a state's regulation as submitted by that state in its SIP revision request. It is not within EPA's authority, by its rulemaking on the SIP revision or otherwise, to change or modify the text or substantive requirements of a state regulation. Therefore, EPA cannot modify the District's AIM coatings regulation to address the commenter's concerns.

The District's reliance upon both technical and cost analyses from California in its decisions with regard to the provisions in its final AIM coatings rule, its decisions to not include provisions for averaging, and its decisions to not provide exemptions 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 SWC commented to the District on these matters during the adoption of its AIM coatings rule. A complete SIP revision submission from a state includes a compilation of timely comments properly submitted to the state on the proposed SIP revision and the state's response thereto (40 CFR part 51, appendix V, 2.1 (h)). EPA has reviewed the District's SIP revision submittal and has determined that comments the SWC submitted to the District (which the SWC has incorporated by reference as comments on this rulemaking), along with the District's responses to those comments, are included therein.

With regard to the SWC's comment that it was not aware of the public hearing held by the District regarding the proposed rule and its request for an additional hearing to present live testimony regarding the District's proposed AIM rule, EPA notes that in addition to the public hearing held on July 9, 2003 to which the SWC's comment refers (notice of which was published in the Washington Times), the District held a second public hearing on its AIM coatings rule on November 15, 2004 (notice of which was also published in the Washington Times). The SWC did not attend this second public hearing. EPA's review of the District's April 16, 2004 SIP revision request (supplemented on September 20 and November 24, 2004) indicates that the District satisfied the requirements of section 110(a) of the CAA with regard to providing public notice and public hearings on its AIM coatings rule SIP revision.

The District's April 16, 2004 SIP revision submittal (supplemented on September 20 and November 24, 2004) provides evidence and certification that it that it has the legal authority to adopt its AIM coatings rule and that it has followed all of the requirements in the District's law that are related to adoption of this SIP revision. (See EPA's response to Comment II. H.). In the context of a SIP approval, EPA's review of these state decisions is limited to whether the SIP revision meets the 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, BCCA Appeal Group v. EPA, 355 F.3d 817, n.11 at 830.

EPA is approving the District's SIP revision for the control of VOC emissions from AIM coatings rule submitted on April 16, 2004, and supplemented on September 20 and November 24, 2004. The District's AIM coatings rule is part of the District's strategy to satisfy the CAA's requirements for a severe ozone nonattainment area and to achieve and maintain the ozone standard in the Metropolitan Washington, DC ozone nonattainment area.

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.).

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).

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 July 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, pertaining to the District of Columbia's AIM coatings rule, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On June 7, 2004 (69 FR 31780), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of a Virginia regulation pertaining to the control of VOC from AIM coatings. The formal SIP revision was submitted by the Virginia Department of Environmental Quality (VADEQ) on February 23, 2004. The specific requirements of Virginia'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. EPA received adverse comments on the June 7, 2004 NPR. A summary of the comments submitted and EPA's responses are provided in Section II of this document.

EPA is aware that concerns have been raised about the achievability of VOC content limits of some of the product categories under the Virginia AIM coatings rule. 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 Virginia 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.

The National Paint and Coatings Association (NPCA) is one of the adverse commenters on EPA's June 7, 2004 proposed approval of Virginia's AIM coatings rule. The NPCA's comments include, by reference, the comments it previously submitted to Virginia on the proposed version of the AIM coatings rule during the Commonwealth's adoption process as transmitted by VADEQ in its February 23, 2004 SIP revision submittal to EPA. The NPCA also includes, by reference, the comments submitted by the Sherwin Williams Company (SWC) to EPA on the June 7, 2004 proposed approval of Virginia's AIM coatings rule. The SWC is the other adverse commenter on EPA's June 7, 2004 proposed approval of Virginia's AIM coatings rule. The SWC also includes, by reference, the comments it submitted to Virginia on the proposed version of the AIM coatings rule during the Commonwealth's adoption process, and the comments it submitted to the Ozone Transport Commission in a letter dated January 11, 2001.

The following summarizes the comments submitted by the NPCA and the SWC to EPA on the June 7, 2004 proposed approval of Virginia's AIM coatings rule and EPA's response to those comments.

A. Comment: Using Flawed Data Violates the Data Quality Objectives Act and Administrative Procedures Act—The commenters assert that the Virginia 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 (Pub. L. 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 projected emissions reductions calculated in the Pechan Study.

The commenters assert that 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 (54 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 Virginia's AIM coatings rule as a SIP revision.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 Virginia in its request that EPA approve its AIM coatings rule.2 The validity of the Pechan Study data is not at issue because Virginia did not request approval of a quantified amount of VOC emission reduction from the enactment of its regulation. Rather, this AIM coatings regulation has been submitted by Virginia, and is being considered by EPA, on the basis that it strengthens the existing Virginia SIP. The commenters do not dispute that the Virginia 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, 42 U.S.C. 7410(k)(3); 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, 42 U.S.C. 7416. EPA must disapprove state plans, and revisions thereto, that are less stringent than a standard or limitation provided by Federal law. See section 110(k) of the Act, 42 U.S.C. 7410 (k); see also Duquesne Light v. EPA, 166 F.3d 609 (3d Cir. 1999).

The Pechan Study is not part of Virginia's submission in support of its AIM coatings rule. Because Virginia's February 23, 2004 submission does not seek approval of 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 should approve this SIP revision.3 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 Virginia's AIM coatings rule be at least as stringent as the otherwise applicable Federal AIM coatings rule set forth at 40 CFR 59.400, subpart D.4

EPA has concluded that the Virginia AIM coatings rule meets the criteria for approvability. It is worth noting that EPA agrees with the commenters' conclusion that the Virginia 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 54 percent, as opposed to the Pechan Study's 31 percent reduction in VOC emissions beyond that required by the Federal AIM coatings rule. Rather, EPA has determined that the Virginia's AIM coatings rule is, on its face, more stringent than the Federal AIM coatings rule. Examples of categories for which Virginia'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 Virginia 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 Virginia AIM coatings rule's is 400 grams/liter. Examples of where Virginia 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 low-solids 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, EPA believes that Virginia's AIM coatings rule is as stringent or more stringent than the Federal AIM coatings rule. Further, EPA has received no comments that the Virginia AIM coatings rule is less stringent than the Federal AIM coatings rule.

B. Comment: The Virginia 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 emission limitation for AIM coatings pursuant to Clean Air Act section 183(e). The commenters note that Virginia's AIM coatings rule seeks to impose 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) 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 Virginia failed to engage in that required consultation, and, therefore, that: (1) Virginia violated section 183(e)(9) in its adoption of the Virginia 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(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 commenters erroneously construe this as a requirement for permission rather than informational consultation. Further, the final Federal AIM coatings regulations at 40 CFR 59.410 explicitly provide 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 (September 11, 1998). 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 id. at 48857. Accordingly, Virginia 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 submission for inclusion into 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 Virginia'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 Virginia, 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).

Therefore, there is no validity to the commenters' assertion that Virginia failed to consult with EPA in the adoption of its AIM coatings rule. EPA was fully cognizant of the requirements of the Virginia AIM coatings rule before its formal adoption by Virginia.5 For all these reasons, EPA disagrees that Virginia violated section 183(e)(9) in its adoption of the its AIM coatings rule, and disagrees that approval of the Virginia AIM coatings rule by EPA is in violation of or prohibited by sections 110(a)(2)(A) and (a)(2)(E) of the Act.

C. Comment: The Virginia 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 Clean Air Act section 184(c)(1) 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 Clean Air Act section 184(c)(2)-(4). The commenters assert that these purported violations of the Clean Air Act prevent Virginia from adopting the Virginia AIM coatings rule, and now prevent EPA from validly approving that rule as a revision to the Virginia 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. Section 184 is a voluntary process and the OTC may opt for that process or another. 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 Virginia 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, Virginia 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.6

On May 25, 2004 (69 FR 29674), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of a Maryland regulation pertaining to the control of VOC from AIM coatings. The formal SIP revision was submitted by the Maryland Department of the Environment (MDE) on March 19, 2004. Other specific requirements of Maryland'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 June 24, 2004, EPA received adverse comments on its May 25, 2004 proposed rulemaking. A summary of the comments submitted and EPA's responses are provided in Section II of this document.

EPA is aware that concerns have been raised about the achievability of VOC content limits of some of the product categories under the Maryland AIM coatings rule. 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 Maryland 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.

A. The National Paint and Coatings Association (NPCA) is one of commenters on EPA's May 25, 2004 NPR proposing approval of Maryland's AIM coatings rule. The NPCA has submitted to EPA, by reference, the same comments it previously submitted to MDE on Maryland's proposed version of its AIM coatings rule during the State's adoption process. The NPCA also commented that it endorses and incorporates by reference the comments submitted by the Sherwin Williams Company (SWC) to EPA on the May 25, 2004 NPR proposing approval of Maryland's AIM coatings rule. The following summarizes the comments presented to Maryland by the NPCA during the State's adoption of its AIM rule and EPA's response to those comments as they pertain to its May 25, 2004 NPR proposing approval of Maryland's AIM coatings rule:

1. Comment: The NPCA has developed an alternative proposal to the Maryland AIM coatings rule (Ozone Transport Commission (OTC) model rule). The NPCA believes that its proposal should be considered by MDE as a viable alternative to the OTC model rule.

2. Comment: The NPCA suggests revising the Maryland AIM coatings rule to include an averaging program, modeled after the California Air Resources Board (CARB) program, and administered on a regional basis.

3. Comment: The NPCA suggests revising the Maryland AIM coatings rule to include a coating-specific variance provision.

4. Comment: The NPCA suggests revising the Maryland AIM coatings rule to include a scheduled technology assessment by MDE and/or OTC AIM workgroup on the appropriateness of implementing all of the future VOC limits.

5. Comment: The NPCA suggests revising the Maryland AIM coatings rule to make the reporting requirements consistent with other OTC states' AIM coating rules by amending section 13. Reporting Requirements, to eliminate the annual reports for clear brushing lacquers, rust preventive coatings, and specialty primers, sealers and undercoaters. The NPCA recommends MDE replace this requirement with one that only requires the manufacturers to maintain records of the sales of these AIM products and report these sales only when requested by MDE.

6. Comment: NPCA suggests revising the Maryland AIM coatings rule to make section 06. Most Restrictive VOC limit, consistent with other OTC states' rules by adding the following four additional categories to the list: Calcimine recoaters, impacted immersion coatings, nuclear coatings, and thermoplastic rubber coating and mastic.

7. Comment: The NPCA suggests revising the Maryland AIM coatings rule to eliminate the special labeling requirement for conversion varnishes which requires manufacturers to prominently display the words “For Professional Use Only” on each can of conversion varnish to make the labeling requirements of the Maryland AIM coatings rule consistent with other OTC states' AIM rules.

Response: With regard to the comments submitted by the NPCA to Maryland on its proposed AIM coatings rule and subsequently, by reference, to EPA on its May 25, 2004 proposed approval of Maryland's March 19, 2004 SIP revision request, it is important to understand EPA's role with regard to review and approval or disapproval of rules submitted by states as SIP revisions. EPA can only take action upon the final adopted version of a state's regulation as submitted by that state in its SIP revision request. It is not within EPA's authority, by its rulemaking on the SIP revision or otherwise, to change or modify the text or requirements of a state regulation. Therefore, EPA cannot modify Maryland's AIM regulation as suggested in the comments submitted by the NPCA. 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, Maryland's March 19, 2004 submission of its AIM coatings rule to EPA includes the necessary documentation to demonstrate that it met these requirements. Maryland's March 19, 2004 SIP revision submission is 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. Maryland's March 19, 2004 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 Maryland's responses to those comments.

B. As noted previously, SWC is the other commenter on EPA's May 25, 2004 NPR proposing approval of Maryland's AIM coatings rule. As stated previously, the comments from NPCA incorporate by reference and endorse these comments submitted by SWC. The following summarizes the comments submitted by SWC and the NPCA (by reference) and EPA's responses:

1. Comment: Using Flawed Data Violates the Data Quality Objectives Act and Administrative Procedures Act—The commenters assert that the Maryland 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 (Pub. L. 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 projected emissions reductions calculated in the Pechan Study. The commenters assert that 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 (54 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 Maryland AIM coatings rule as a SIP revision.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 Maryland in its request that EPA approve its AIM coatings rule.2 The validity of the Pechan Study data is not at issue because Maryland did not request approval of a quantified ount of VOC emission reduction from the enactment of its regulation.3 Rather, this AIM coatings regulation has been submitted by Maryland, and is being considered by EPA, on the basis that it strengthens the existing Maryland SIP. The commenters do not dispute that the Maryland 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, 42 U.S.C. 7410(k)(3); 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, 42 U.S.C. 7416. EPA must disapprove state plans, and revisions thereto, that are less stringent than a standard or limitation provided by Federal law. See section 110(k) of the Act, 42 U.S.C. 7410(k); see also Duquesne Light v. EPA, 166 F.3d 609 (3d Cir. 1999).

The Pechan Study is not part of Maryland's submission in support of its AIM coatings rule. Because Maryland's March 19, 2004 submission does not seek approval of 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 should approve this SIP revision.4 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 Maryland's AIM coatings rule be at least as stringent as the otherwise applicable Federal AIM coatings rule set forth at 40 CFR 59.400, subpart D.5

EPA has concluded that the Maryland AIM coatings rule meets the criteria for approvability. It is worth noting that EPA agrees with the commenters' conclusion that the Maryland 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 54 percent, as opposed to the Pechan Study's 31 percent reduction in VOC emissions beyond that required by the Federal AIM coatings rule. Rather, EPA has determined that the Maryland AIM coatings rule is, on its face, more stringent than the Federal AIM coatings rule. As stated on page 1945, under “Comparison to Federal Standards” in the Maryland Bulletin, Volume 30, Issue 26 (December 26, 2003): “[T]his proposed action is more restrictive or stringent than the corresponding Federal standards * * *.” Examples of categories for which Maryland'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's VOC content limit for non-flat high gloss coatings is 380 grams/liter while the Maryland 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 Maryland AIM coatings rule's is 400 grams/liter. Examples of categories for which the Maryland 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 low-solids 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, EPA believes that Maryland's AIM coatings rule is as stringent or more stringent than the Federal AIM coatings rule. Further, EPA has received no comments that the Maryland AIM coatings rule is less stringent than the Federal AIM coatings rule.

2. Comment: The MD 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 emission limitation for AIM coatings pursuant to Clean Air Act section 183(e). The commenters note that Maryland's AIM coatings rule seeks to impose 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) 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 Maryland failed to engage in that required consultation, and that, therefore, (1) Maryland violated section 183(e)(9) in its adoption of the Maryland 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(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 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 AIM 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 (September 11, 1998). 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 id. at 48857. Accordingly, MDE 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 submission for inclusion into 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 Maryland'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 Maryland, 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).

Therefore, there is no validity to the commenters' assertion that Maryland failed to consult with EPA in the adoption of its AIM coatings rule. EPA was fully cognizant of the requirements of the Maryland AIM coatings rule before its formal adoption by Maryland.6 For all these reasons, EPA disagrees that Maryland violated section 183(e)(9) in its adoption of the its AIM coatings rule, and disagrees that approval of the Maryland AIM coatings rule by EPA is in violation of or prohibited by section 110(a)(2)(A) and (a)(2)(E) of the Act.

3. Comment: The MD 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 Clean Air Act section 184(c)(l) 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 Clean Air Act section 184(c)(2)-(4). The commenters assert that these purported violations of the Clean Air Act prevent Maryland from adopting the Maryland AIM coatings rule, and now prevent EPA from validly approving them as a revision to the Maryland 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. Section 184 is a voluntary process and the OTC may opt for that process or another. 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 Maryland 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, Maryland 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.7

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.

4. Comment: The MD AIM Coatings Rule Violates the Commerce Clause and the Equal Protection Clause of the U.S. Constitution—The commenters' title heading of this comment states that the Maryland AIM coatings rule violates the Equal Protection Clause of the U.S. Constitution, but the text that follows that title heading provides no arguments or assertions to support this claim. In both the title heading and the text that follows, the commenters claim that the Maryland AIM coatings rule violates the Commerce Clause of Article I, section 8, of the U.S. Constitution, because it allegedly imposes an unreasonable burden on interstate commerce. The commenters assert that because the Maryland AIM coatings rule contains VOC limits and other provisions that differ from the Federal AIM coatings rule in 40 CFR 59.400, the rule imposes unreasonable restrictions and burdens on the flow of coatings in interstate commerce. The commenters further clarify that the burdens of the Maryland AIM coatings rule are excessive and outweigh the benefits of the rule. The commenters argue that EPA should disapprove the SIP revision on this basis.

Response: As indicated previously, the commenters provide no arguments or assertions as to the claim made in the title heading of this comment that the Maryland AIM coatings rule violates the Equal Protection Clause of the U.S. Constitution (see pages 12-13 of the letter dated June 24, 2005 from SWC to Docket ID No. MD166-3111, EPA Proposal To Approve SIP Revision Submitted by the State of Maryland Concerning Architectural and Industrial Maintenance (AIM) Coatings). Moreover, the text of the comment following the title heading does not reference or even make mention of the Equal Protection Clause. Lastly, in no other comment submitted by SW on EPA's May 25, 2004 proposed approval of Maryland's AIM coatings rule is there any mention or reference to the Equal Protection Clause of the U.S. Constitution. EPA does not believe that any provision of the Maryland AIM coatings rule violates the Equal Protection Clause of the U.S. Constitution.

Regarding the comment that Maryland's AIM coatings rule violates the Commerce Clause of the U.S. Constitution, 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 Maryland 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 Maryland 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 Maryland 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 Maryland 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 Maryland in adopting the Maryland AIM coatings rule is to protect the public health of the citizens of Maryland. 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 Maryland 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 Maryland AIM coatings rule are not so overwhelming as to trump the state's interest in the protection of public health. First, the Maryland 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. COMAR 26.11.33.01(B)(1)(a) and (b). The Maryland 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 Maryland 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 Maryland 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 Maryland; (2) reformulating nonconforming products for sale in Maryland 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 Maryland'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 (2d Cir. 2000) (state label requirement for light bulbs containing mercury sold in that state not an impermissible restriction). It may be that the Maryland 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 Maryland 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 Maryland, and does not appear to have the effect of unfairly benefitting in-state 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 (2d 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 Maryland 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 section183(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 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 creating 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 Maryland 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. Maryland may have additional burdens to insure compliance with its rule, but for purposes of this action, EPA presumes that Maryland take appropriate actions to enforce it as necessary. EPA has no grounds for disapproval of the SIP revision based upon the commenters' Commerce Clause comment.

5. Comment: The MD AIM Coatings Rule Is Arbitrary and Capricious Because the Record Supporting It Is Deficient—The commenters assert that the Maryland AIM coatings rule violates the Maryland law as being arbitrary and capricious, because the record supporting Maryland's actions is deficient in numerous areas. First, the commenters allege that MDE has not undertaken any independent cost analyses, and instead relied solely on information used by CARB to support the suggested control measure (SCM). Second, the commenters assert that MDE failed to address any relevant differences between climatic conditions or the markets for the regulated products in Maryland and California. Finally, the commenters assert that Maryland's adoption of its AIM coatings rule is arbitrary and capricious because its does not include an averaging provision for inclusion in Maryland SIP as advocated by the commenters.

Response: EPA disagrees with this comment. The cost per ton figure determined by Maryland 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 rightly raised by interested parties to the state during its regulatory adoption process. Maryland's March 19, 2004 SIP revision submittal provides evidence that it has the legal authority to adopt its AIM coatings rule and that it has followed all of the requirements in the State law that are related to adoption of the plan. As noted in BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2004):

6. Comment: The Emission Limits and Compliance Schedule in the MD AIM Coatings Rule Are Neither Necessary nor Appropriate To Meet Applicable Requirements of the Clean Air Act—The commenters claim that the Maryland AIM coatings rule is not “necessary or appropriate” for inclusion in the Maryland SIP, because EPA did not direct Maryland to achieve VOC reductions through the AIM coatings rule, but left it to the State to decide how such reductions can be achieved. The commenters further claim that the Maryland AIM coatings rule is not necessary or appropriate for inclusion in the Maryland SIP because of the numerous alleged procedural and substantive failings on the part of MDE in promulgating the rule. The commenters assert that prior to proposing a SIP revision, the state must first provide reasonable notice and a public hearing, thereby implying that Maryland failed to do so.

Response: EPA disagrees with this comment. If fulfillment of the “necessary or appropriate” condition of section 110(a)(2)(A) required EPA first to determine that a measure was necessary or appropriate and then to 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.8 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, 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, 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 that state adopt a specific control measure cannot dictate whether a specific measure is necessary or appropriate.

In this particular instance, EPA identified an emission reduction shortfall associated with Maryland's 1-hour ozone attainment demonstration SIPs for the Baltimore and Philadelphia areas, and required Maryland (and Delaware, New Jersey and Pennsylvania in the case of the Philadelphia area) to address the shortfalls (See, 64 FR 70460 (December 16, 1999) and 66 FR 586 (January 3, 2001)). Maryland also needs reductions to satisfy the requirements for rate-of-progress (ROP) and attainment plans (including contingency measures) for the reclassified Metropolitan Washington DC severe 1-hour ozone nonattainment area. 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 needed to satisfy the ROP and attainment plan requirements for its 1-hour ozone severe nonattainment areas. Because commenters might find it more necessary or appropriate to obtain the needed VOC emission reductions elsewhere is not a basis for EPA to disapprove the rule implementing Maryland's determination of the best approach to obtain the needed reductions.

EPA also disagrees with the commenters' view of Maryland's public notice and hearing procedure. In its March 19, 2004 SIP revision submittal, the MDE included copies of the public notices published in six newspapers throughout the State of Maryland, including the Baltimore Sun and Washington Post, announcing its intent to adopt the AIM coatings rule, to submit the rule to EPA as a SIP revision, and to hold a public hearing (providing date, time, venue), and instructions for submitting comments. From the documentation provided in its March 19, 2004 submittal and from the fact that both commenters testified and submitted written comments pursuant to the hearing and these published notices, EPA believes that Maryland fulfilled the requirements of section 110(a) of the Act with respect to reasonable notice and a public hearing in connection with SIP revision submissions. As stated previously, Maryland's March 19, 2004 SIP revision submittal provides evidence that it has the legal authority to adopt its AIM coatings rule and that it has followed all of the requirements in the State law and constitution that are related to adoption of the plan (see EPA's response to Comment B.5.). See BCCA Appeal Group v. EPA, 355 F.3d 817, n.11 at 830. (EPA may rely on the state's certification that it has complied with applicable state requirements for promulgating a rule submitted as a revision to its SIP.)

7. Comment: The commenters claim that EPA's action to approve or disapprove Maryland's AIM coatings rule is a “significant regulatory action” as defined by Executive Order 12866, 58 FR 51735 (September 30, 1993).

Response: EPA disagrees with this comment. 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. The commenters allege that EPA's approval of the Maryland AIM coatings rule is a “significant regulatory action” because it meets several of the following criteria specified in Executive Order 12866: “[it will have] an annual effect on the economy of $100 million or more or [it will] adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities * * *.” However, this action merely approves existing state law as meeting Federal requirements. EPA's approval of this SIP revision imposes no additional requirements beyond those imposed by state law. Accordingly, this action meets none of the criteria listed above. Any cost or any material adverse effects on the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities exist, if at all, due to Maryland's approval of its state AIM coatings rule, not by EPA's approval of that rule into the Maryland SIP. If EPA failed to act on the Maryland AIM coatings rule, the effects of the rule would not be changed because this rule went effect in Maryland on January 1, 2005. Nothing that EPA might do at this point in time alters that fact.

Furthermore, Maryland voluntarily adopted its version of the OTC model AIM coatings rule and, as the commenters themselves acknowledge, EPA legally could not impose this control measure on the State. Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997). EPA's approval of this state rule merely fulfills its statutory obligation under the Act to review SIP submissions and approve state choices, provided that they meet the criteria of the Clean Air Act.

EPA is approving the Maryland SIP revision for the control of VOC emissions from AIM coatings rule submitted on March 19, 2004. The Maryland AIM coatings rule is part of Maryland's strategy to satisfy the requirements of its severe ozone nonattainment areas and to achieve and maintain the ozone standard throughout the State of Maryland.

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 (Pub. L. 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 requirement, 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.).

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).

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 July 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, pertaining to Maryland's AIM coatings rule, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

I. Background

On December 23, 2004 (69 FR 76889), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland and for the Commonwealth of Virginia. The NPR proposed approval of non-regulatory measures that include use of low-or-no-VOC content paints by certain State and local government agencies; auxiliary power units on locomotives; sale of reformulated consumer products in the Northern Virginia area; accelerated retirement of portable fuel containers by certain State and local government agencies; and, renewable energy measures (wind-power purchases by certain local government agencies). On February 19, 2004 and February 25, 2004, respectively, the Maryland Department of the Environment (MDE) and the Virginia Department of Environmental Quality (VA DEQ) each submitted the formal revisions to their SIPs.

The States submitted program descriptions that projected VOC and nitrogen oxides (NOX) tons per day (TPD) emission reductions attributable to each specific measure. Those estimates are provided in Table 1.

A more detailed analysis of all these voluntary emission reduction program measures can be found in the Technical Support Document (TSD) for this action. That TSD is included in both the hard copy and E-docket for this rulemaking.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding section 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

Other specific requirements of the bundle of voluntary emission reduction program measures and the rationale for EPA's proposed action are explained in the NPR and will not be restated here.

We received four sets of comments via letter and/or electronically during the public comment period. None of the comments were adverse to our proposed approval.

Three of the letters strongly supported the proposed approval of the nonregulatory measures in the Maryland and Virginia SIP revisions. Two of these letters observed that there is nothing voluntary about the State commitments in these SIP revisions even though these measures are titled “voluntary measures” by EPA. EPA agrees that the observation made in the comments is correct and reiterates EPA's policy regarding such measures. EPA's “voluntary measures” policies are to cover those emissions reduction strategies that are undertaken but are not made enforceable against the source through a traditional regulatory process or those strategies which are new or innovative. However, EPA ensures that the measures are enforceable against the state by requiring the state to commit to monitor the implementation and effectiveness of the measure and, where a reduction credit is sought by the SIP, to make-up any shortfall in emissions reductions.

The fourth letter was not opposed or adverse to the proposed action but rather asserted that there was a typographical error with regards to the emission reduction credit claimed by the Commonwealth of Virginia for the Arlington County wind power purchase measure. The comment letter asserts that the SIP sought no reduction credit from the measure. EPA has reexamined the SIP revision submitted by Virginia and agrees that EPA mistakenly proposed to credit the Arlington County wind power purchase measure with emission reduction credit. On page 7-78 of section 7.6 entitled “Voluntary Bundle” of the document entitled “Plan to Improve Air Quality in the Washington, DC-MD-VA Region, State Implementation Plan (SIP) “Severe Area SIP” Demonstrating Rate of Progress for 2002 and 2005; Revision to 1990 Base Year Emissions; and Severe Area Attainment Demonstration for the Washington DC-MD-VA Nonattainment Area” (dated February 19, 2004) in Virginia's February 25, 2004 SIP revision plainly states that “credits will not be awarded for purchases in Virginia jurisdictions.”

Table 1 of this document reflects this change from Table 2 of the NPR.

EPA's review of this material indicates that Maryland's February 19, 2004 SIP submittal of non-regulatory voluntary emission reduction program measures for the Washington area meet the applicable requirements of EPA guidance and policy for approval. EPA is approving the following voluntary emission reduction program measures into the Maryland SIP: Montgomery County Regional Wind Power Purchase, Low-VOC Paints Program, and Gas Can Replacement Program. Specifically, EPA is approving those measures found in section 7.6 entitled “Voluntary Bundle” of the document entitled “Plan to Improve Air Quality in the Washington, DC-MD-VA Region, State Implementation Plan (SIP) “Severe Area SIP” Demonstrating Rate of Progress for 2002 and 2005; Revision to 1990 Base Year Emissions; and Severe Area Attainment Demonstration for the Washington DC-MD-VA Nonattainment Area” (dated February 19, 2004) and Appendix J to this plan. This February 19, 2004 document and its Appendix J were submitted to EPA by Maryland on February 19, 2004. EPA is crediting the Maryland SIP with the emission reductions for these measures shown in Table 2 of this document for the Washington area.

EPA's review of this material indicates that Virginia's February 25, 2004 SIP submittal of non-regulatory voluntary emission reduction program measures for the Washington area meet the applicable requirements of EPA guidance and policy for approval. EPA is approving the following voluntary emission reduction program measures into the Virginia SIP: Low-VOC Paints Program, Sale of Reformulated Consumer Products, Gas Can Replacement Program, Remote Sensing Device Program, Arlington County Regional Wind Power Purchase, Auxiliary Power Units on Locomotives, Alternative Fueled Vehicle (AFV) Purchase Program, and Diesel Bus Retrofit Program. Specifically, EPA is approving those measures found in section 7.6 entitled “Voluntary Bundle” of the document entitled “Plan to Improve Air Quality in the Washington, DC-MD-VA Region, State Implementation Plan (SIP) “Severe Area SIP” Demonstrating Rate of Progress for 2002 and 2005; Revision to 1990 Base Year Emissions; and Severe Area Attainment Demonstration for the Washington DC-MD-VA Nonattainment Area” (dated February 19, 2004) and Appendix J to this plan. This February 19, 2004 document and its Appendix J were submitted to EPA by Virginia on February 25, 2004. EPA is crediting the Virginia SIP with the emission reductions shown in Table 2 of this document for the Washington area.

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 (Pub. L. 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.).

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).

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 July 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 to approve Maryland and Virginia voluntary emission reduction program measures may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA. Information is organized as follows:

On March 8, 2005, EPA published in the Federal Register, a proposal to approve the Spokane, Washington CO serious Attainment Plan, revisions to the Washington State Inspection and Maintenance (I/M) Program, and certain source-specific SIP revisions relating to Kaiser Aluminum and Chemical Corporation. See 70 FR 11179.

EPA provided a 30-day review and comment period and solicited comments on our proposal published in the March 8, 2005, Federal Register. No comments were received on the proposed rulemaking. EPA is now taking final action on the SIP revisions consistent with the published proposal.

In this action, the EPA is approving revisions to the Washington State Implementation Plan. Specifically, we are approving the following elements of the Spokane CO Attainment Plan, submitted on September 20, 2001 and November 22, 2004:

A. Procedural requirements, under section 110(a)(2) of the Act;

B. Base year emission inventory, under sections 172(c)(3) and 187(a)(1) and periodic inventories under 187(a)(5) of the Act;

C. Attainment demonstration, under section 187(a)(7) of the Act;

D. The TCM program under 187(b)(2)182(d)(1) and 108(f)(1)(A) of the Act;

E. VMT forecasts under section 187(a)(2)(A) of the Act;

F. Contingency measures under section 187(a)(3) of the Act;

G. The conformity budget under section 176(c)(2)(A) of the Act and § 93.118 of the transportation conformity rule (40 CFR part 93, subpart A),

H. Administrative Order No. DE 01AQIS-3285 and Order No. DE 01AQIS-3285, Amendment #1 relating to Kaiser Aluminum and Chemical Corporation, Mead Works.

We are also approving a SIP revision submitted on September 26, 2001, to two sections of Washington Administrative Code (WAC) 173-422, Motor Vehicle Emission Inspection, to provide an inspection schedule for motor vehicles between 5 and 25 years old.

A Technical Support Document on file at the EPA Region 10 office contains a detailed analysis and rationale in support of the Spokane Serious Area Carbon Monoxide Plan and the WAC revisions.

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 (Pub. L. 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.).

The Congressional Review Act, 5 U.S.C. section 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. section 804(2).

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 July 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).)

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2005 TAC of Alaska plaice in the BSAI was established as 6,800 metric tons by the 2005 and 2006 final harvest specifications for groundfish in the BSAI (70 FR 8979, February 24, 2005).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS, has determined that the Alaska plaice TAC in the BSAI has been reached. Therefore, NMFS is requiring that further catches of Alaska plaice in the BSAI be treated as a prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the prohibition of retention of Alaska plaice in the BSAI.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.