215 F.3d 61 (D.C. 2000)
Allied Local and Regional Manufacturers Caucus, et al.,Petitionersv.U.S. Environmental Protection Agency, RespondentNational Paint & Coatings Association, et al., Intervenors
Nos. 98-1526, 98-1527
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 1999Decided June 16, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
On Petitions for Review of Orders of theEnvironmental Protection Agency
C. Boyden Gray argued the cause for petitioner DunnEdwards Corporation.  With him on the briefs were James R. Wrathall and IJay Palansky.  Daniel H. Squire entered  an appearance.
William M. Smiland argued the cause for petitioners  Allied Local and Regional Manufacturers Caucus, et al.  With  him on the briefs were Christopher G. Foster and Albert M.  Cohen.
Scott J. Jordan, Attorney, U.S. Department of Justice,  argued the cause for respondent.  With him on the brief were  Lois J. Schiffer, Assistant Attorney General, and Geoffrey L.  Wilcox, Attorney, U.S. Environmental Protection Agency.Eric G. Hostetler, Attorney, U.S. Department of Justice,  entered an appearance.
Nancy S. Bryson, Richard J. Mannix, Robert L. Rhodes  and Rena I. Steinzor were on the brief for intervenors.Thomas J. Graves entered an appearance.
Before:Ginsburg, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Petitioners in these consolidated  cases challenge final regulations promulgated by the Environmental Protection Agency (EPA) to limit the content of  volatile organic compounds in architectural coatings, including  paints.  The regulations were issued pursuant to section  183(e) of the Clean Air Act, which directs the agency to  regulate emissions from consumer and commercial products  to help achieve the national ambient air quality standard for  ozone.  Petitioners are Dunn-Edwards Corporation, a large  paint manufacturer, and Allied Local and Regional Manufacturers Caucus, an association of manufacturers and distributors of architectural coatings.  Intervening on EPA's side are  other industry groups--including the National Paint & Coatings Association, a trade association of some 400 paint and  coatings manufacturers and distributors--which urge us to  uphold the regulations.


2
Petitioners challenge the regulations on a multitude of  grounds, including their asserted inconsistency with the Clean  Air Act, the Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and the Commerce Clause.  We conclude that EPA's regulations are lawful and deny the petitions for  review.


3
* The Clean Air Act, 42 U.S.C.       7401 et seq., directs EPA  to establish national ambient air quality standards for harmful air pollutants.  See 42 U.S.C.      7408(a).  One of the  pollutants so identified and regulated by the agency is  ground-level ozone.  See 40 C.F.R.      50.9.  Although in the  upper atmosphere ozone occurs naturally and forms a protective layer that shields human beings from the harmful effects  of the sun's ultraviolet rays, at ground level, man-made ozone  can have a wide array of negative effects on human health,  crops, and forests.1  See EPA, Study of Volatile Organic  Compound Emissions From Consumer and Commercial Products, Report to Congress 1-1 (1995) (J.A. at 518) [hereinafter  Report].


4
Section 183(e) of the Clean Air Act, added as part of the  1990 amendments to that Act, is aimed at mitigating the  problem of ground-level ozone.  See Clean Air Act Amendments of 1990, Pub. L. No. 101-549,      183(e), 104 Stat. 2399,  2444-47 (codified at 42 U.S.C.      7511b(e)).  Ozone is formed  when nitrogen oxides (NOx) react with volatile organic compounds (VOCs) in the presence of sunlight.  See Report at  1-1 (J.A. at 518).  Section 183(e) directs EPA to regulate  emissions of VOCs from consumer and commercial products  in order to help states achieve the national ambient air  quality standard (NAAQS) for ozone.2


5
Section 183(e) contains a number of directions to EPA.First, it instructs the agency to "conduct a study of the  emissions of volatile organic compounds into the ambient air  from consumer and commercial products (or any combination  thereof)" in order to "(i) determine their potential to contribute to ozone levels which violate the national ambient air  quality standard for ozone" and "(ii) establish criteria for  regulating consumer and commercial products."  42 U.S.C.       7511b(e)(2)(A).  The section further directs that the study  be completed, and a report submitted to Congress, "not later than 3 years after November 15, 1990."  Id.


6
Upon submission of the report, section 183(e) requires the  EPA to "list those categories of consumer or commercial  products that [it] determines, based on the study, account for  at least 80 percent of the VOC emissions, on a reactivityadjusted basis, from consumer or commercial products in  areas that violate the NAAQS for ozone."  Id.       7511b(e)(3)(A).  The statute then directs the agency "to  divide the list into 4 groups establishing priorities for regulation" based on the criteria developed in the study.  Id.  Finally, the statute requires the EPA to regulate one group  every two years until all four have been regulated.  See id.


7
After passage of the 1990 amendments, EPA instituted a  formal regulatory negotiation process, aimed at achieving consensus on the development of VOC regulations for paint  and architectural coatings.  Representatives of the affected  industry were included on the negotiation committee.  Complete consensus could not be reached, however, and the  process was terminated in 1994.  See National Volatile Organic Compound Emission Standards for Architectural Coatings, Final Rule, 63 Fed. Reg. 48,848, 48,850 (1998) [hereinafter Final Rule].


8
In March 1995, EPA submitted its statutorily-required  report to Congress.  The report concluded that "[c]onsumer  and commercial products, while individually small sources of  VOC emissions, contribute significantly to the ozone nonattainment problem."  Report at 2-1 (J.A. at 523).  VOC  emissions from these products, the report said, constitute  approximately 28% of all man-made VOC emissions.  See id.  at 2-8 (J.A. at 530).  In compliance with Congress' direction,  the report also set forth "criteria for regulating consumer and  commercial products under the Act."  Id. at 4-1 (J.A. at 557).The eight criteria listed by the agency were:


9
(1) utility


10
(2) commercial demand


11
(3) health or safety functions


12
(4) emissions of 'highly reactive' compounds


13
(5) availability of alternatives


14
(6) cost-effectiveness of controls


15
(7) magnitude of annual VOC emissions


16
(8) regulatory efficiency

Id. at 4-2 (J.A. at 558).3

17
In March 1995, EPA also published the statutorilymandated list of categories of consumer or commercial products that together account for at least 80% of VOC emissions  from such products in ozone nonattainment areas on a reactivity-adjusted basis.  See Consumer and Commercial Products, Notice of Product Category List and Schedule for Regulation, 60 Fed. Reg. 15,264 (1995) [hereinafter Notice of  Product Category List].  Per Congress' instruction, EPA  divided those categories into four groups, establishing priorities for regulation.  Architectural coatings were included in  the first group, along with certain household consumer products and automobile refinish coatings.  EPA determined that  these three categories account for about 30% of the VOC  emissions from all consumer and commercial products.  See  Consumer and Commercial Products:  Schedule for Regulation, Final Listing, 60 Fed. Reg. 48,792, 48,793 (1998) [hereinafter Final Listing].  According to EPA, the architectural  coatings category alone accounts for about 9% of the emissions from all consumer and commercial products, making it  "one of the largest emissions sources among the consumer  and commercial products categories."  Final Rule, 63 Fed.  Reg. at 48,850;  see National Volatile Organic Compound  Emission Standards for Architectural Coatings, Proposed  Rule, 61 Fed. Reg. 32,729, 32,731 (1996) [hereinafter Proposed Rule];  Report at 2-6 (J.A. at 528).


18
In September 1998, EPA published its final rules and  listing.  As proposed, the agency listed architectural coatings,  along with consumer products and automobile refinish coatings, in the first group of consumer and commercial product  categories subject to regulation under section 183(e).  See  Final Listing, 63 Fed. Reg. at 48,792.  At the same time, it  issued a rule specifying limits on the permissible VOC content  of products in each of the categories.  See National Volatile  Organic Compound Emission Standards for Automobile Coatings, 63 Fed. Reg. 48,806 (1998);  National Volatile Organic  Compound Emission Standards for Consumer Products, 63  Fed. Reg. 48,819 (1998);  National Volatile Organic Compound  Emission Standards for Architectural Coatings, 63 Fed. Reg.  48,848 (1998).


19
Petitioners Dunn-Edwards and Allied challenge EPA's initial study and report to Congress, as well as the list and rule  that followed.4  They assert that EPA has misinterpreted the Clean Air Act and that its regulations are arbitrary and  capricious.  By contrast, intervenor National Paint & Coatings Association, which, like Allied, participated in the unsuccessful attempt at regulatory negotiation, supports EPA's  regulations, describing them as a "comprehensive set of reasonable limits that are tough but fair, and which can contribute significantly to ozone emissions reductions as mandated  by the [Act]."  NPCA Br. at 2-3.

II

20
In assessing petitioners' claim that EPA has misconstrued  the statute, we are guided by the standards set forth in  Chevron U.S.A. Inc. v. Natural Resources Defense Council,  Inc., 467 U.S. 837, 842-44 (1984).  Under Chevron's first step,  we ask whether Congress "has directly spoken to the precise  question at issue," in which case we "must give effect to the  unambiguously expressed intent of Congress."  Id. at 842-43.If "the statute is silent or ambiguous with respect to the  specific issue," however, we move to Chevron's second step.Id. at 843.  Under step two, we must defer to the agency's  interpretation so long as it is "based on a permissible construction of the statute," id., and is "reasonable in light of the  Act's text, legislative history, and purpose," Southern Cal.  Edison Co. v. FERC, 116 F.3d 507, 511 (D.C. Cir. 1997).


21
As petitioners note, we also have the power to set aside a  final rule promulgated under the Clean Air Act if the rule is  "arbitrary, capricious, an abuse of discretion, or otherwise not  in accordance with law."  42 U.S.C.      7607(d)(9)(A).  To  determine whether EPA's rules are "arbitrary and capricious," we apply the same standard of review under the Clean  Air Act as we do under the Administrative Procedure Act  (APA), 5 U.S.C.      706(2)(A).  See Ethyl Corp. v. EPA, 51  F.3d 1053, 1064 (D.C. Cir. 1995);  Chemical Mfrs. Ass'n v.  EPA, 28 F.3d 1259, 1263-64 (D.C. Cir. 1994).  In that regard, we look for guidance to Motor Vehicle Manufacturers Ass'n  v. State Farm Mutual Automobile Insurance, 463 U.S. 29, 43  (1983).  Under the standard set forth in that case, we must  affirm the EPA's rules if the agency has considered the  relevant factors and articulated a " 'rational connection between the facts found and the choice made.' " Id. at 43  (quoting Burlington Truck Lines v. United States, 371 U.S.  156, 168 (1962)).


22
In the following parts, we apply these standards to petitioners' challenge to the architectural coatings rule and related  EPA decisions.

III

23
Petitioners' principal argument is that the Clean Air Act  requires EPA to regulate VOCs according to their "reactivity," and that EPA failed to do so.  "Reactivity," as defined by  petitioners, is " 'the amount of ozone formed per unit amount  ... of VOC added [to a given atmospheric mixture].' "Dunn-Edwards Br. at 3 n.4 (quoting National Research  Council, Rethinking the Ozone Problem in Urban and Regional Air Pollution 153 (1991) (J.A. at 165)) (alterations in  original).  In petitioners' view, EPA ignored reactivity and  instead regulated VOCs according to their "mass"--i.e., according to the amount of VOCs contained in a product.


24
In this blunt form, petitioners' attack on the EPA is  factually incorrect.  As the EPA notes, it did "consider[ ]  reactivity in prioritizing and selecting product categories to  be listed for regulation."  Final Listing, 63 Fed. Reg. at  48,795.  It did so by using available reactivity data to divide  VOCs into three groups:  negligibly reactive, reactive, and  highly reactive.  See id.


25
EPA designated as negligibly reactive those compounds the  data showed to have insignificant ozone-forming potential.See id.  To make that designation, EPA relied on data  derived from the "method now normally used for identifying  negligibly reactive VOC," the so-called "kOH method."  Report at 3-4 (J.A. at 549).  "kOH reactivity data," the agency  said, "have been obtained or estimated for nearly all VOC  species of interest."  Id. at 3-5 (J.A. at 550);  see also id. at 34 (J.A. at 549) (describing kOH method).  Compounds determined to be negligibly reactive on the basis of that data were  excluded altogether from the VOC emissions inventory and  from the related regulations.  See Final Listing, 63 Fed. Reg.  at 48,795.5


26
To differentiate between the remaining reactive VOCs,  EPA included data derived from the "Incremental Reactivity"  method, a method "more appropriate for rating reactive  VOC."  Report at 3-4 (J.A. at 549).  EPA used this data to  identify ten classes of VOCs that are highly reactive under  most conditions.  See Final Listing, 63 Fed. Reg. at 48,79596.  The agency then identified the product categories known  to contain these highly reactive compounds, and estimated the  quantity of highly reactive compounds emitted by those product categories.  See id. at 48,796.  Finally, EPA adjusted the  mass emissions figures for those product categories by applying a reactivity adjustment factor to the mass emissions of  their highly reactive VOCs.  See id.


27
Petitioners recognize that EPA did, at least in this tripartite categorical form, regulate according to reactivity.  Their  contention is that this is not enough.  Rather, petitioners  urge that the statute requires EPA to determine the reactivity of each individual VOC species, and to use each VOC's  relative reactivity in promulgating the final regulations.  Petitioners' argument is based on their analysis of three provisions of the Clean Air Act.


28
* Section 183(e) of the Clean Air Act directs EPA "to conduct  a study of the emissions of volatile organic compounds into  the ambient air from consumer and commercial products (or  any combination thereof) in order to--(i) determine their  potential to contribute to ozone levels which violate the  national ambient air quality standard for ozone...."  42 U.S.C.      7511b(e)(2)(A).  Petitioners contend that the phrase  "potential to contribute" as used in this provision is synonymous with the term "reactivity."Accepting petitioners' contention that the Clean Air Act  requires a determination of reactivity, however, does not  resolve the question of whether reactivity must be determined on an individual VOC-by-VOC, rather than categorical,  basis.  Allied contends that the above-quoted provision requires EPA to determine the reactivity of "each" volatile  compound.  See Allied Br. at 14.  Had Congress used the  word "each" in the statute, the first step of the Chevron test  might well dictate victory for Allied.  But Congress did not  use that word.  Instead, it directed EPA to study emissions  of volatile organic compounds "from consumer and commercial products (or any combination thereof) in order to ...  determine their potential to contribute to ozone levels."  42  U.S.C.      7511b(e)(2)(a) (emphasis added).  The express reference to "any combination thereof," and the direction to determine "their potential" rather than "each's potential" (or even,  "their potentials"), renders it impossible to regard the statute  as unambiguously expressing an intent that each VOC be  analyzed individually.  To the contrary, and moving to the  second step of the Chevron test, these references support the  reasonableness of EPA's contention that Congress authorized  the agency to proceed on a category-by-category basis.


29
EPA's reading of the statute is further supported by the  provision requiring EPA to complete its study and submit its  report within three years.  See id. Relatively little data is  currently available on the comparative reactivity of individual  VOC species.  See Report at 2-10, 3-5 (J.A. at 532, 550)  (noting that Incremental Reactivity data is only available for  "some 328 VOC species or groups of species").  According to  EPA's figures, not seriously contested by petitioners, a detailed reactivity study of a single VOC species would take two  months to accomplish.  See EPA, Response to Comments on  Section 183(e) Study and Report to Congress 2-75 (1998)  (J.A. at 740) [hereinafter Response to Comments].  As "there  are approximately 1,000 different VOC species associated  with the architectural coating industry alone," id., EPA estimates that a truly species-specific analysis of reactivities  would require 166 years of testing.  Accordingly, EPA reasonably concluded that in light of the three-year statutory  timetable, Congress could not have expected it to proceed on  a species-specific basis.


30
In reply to this argument, Dunn-Edwards suggests that  EPA could have streamlined the task by confining its analysis  to the smaller universe of those VOCs most commonly found  in architectural coatings.  "EPA need not," Dunn-Edwards  says, "have determined the reactivity of every VOC."  DunnEdwards Reply Br. at 6.  Instead, a "reactivity-based regulation could be implemented using information on only the three  VOCs accounting for almost all emissions from waterborne  architectural coatings and the eight VOCs accounting for  almost 80% of emissions from solventborne architectural coatings."  Id. at 6.  Individual analyses of just those eleven,  Dunn-Edwards argues, could readily have been completed  within the statutory timetable.


31
This reply has two problems.  First, Congress directed  EPA to study and regulate the VOC emissions from all  "consumer or commercial products," not only from architectural coatings.  While the streamlined approach Dunn Edwards suggests might accomplish the task for the product  category of principal concern to petitioner, that does not  answer EPA's contention that the agency would still have  been unable to meet the statutory deadline across the board.


32
Moreover, and more important, in making this suggestion  Dunn-Edwards effectively abandons the purity of the argument it predicated on Chevron step one.  By contending that  EPA could have accomplished its task within the time available by studying only eleven of the VOCs contained in  architectural coatings, Dunn-Edwards must accept that the  statute does not require a separate evaluation of each VOC's  individual reactivity.  And if the statutory language permits  the agency to regulate by analyzing only the eleven most  significant VOCs, it is hard to see why it bars EPA from  instead taking the analytical approach it preferred:  excluding  from regulation those VOCs with negligible reactivity, giving regulatory priority to product categories containing the ten  classes of most highly reactive VOCs, and regulating the  balance of reactive compounds according to the mass of their  emissions.  It may be, as petitioners contend, that theirs is  the better approach;  but that is not a question for this court.Under Chevron, we are bound to uphold agency interpretations as long as they are reasonable--"regardless whether  there may be other reasonable, or even more reasonable,  views."  Serono Lab., Inc. v. Shalala, 158 F.3d 1313, 1321  (D.C. Cir. 1998).


33
Finally, Dunn-Edwards implicitly suggests that EPA was  unfaithful to section 183(e)(2)(A) because, rather than "determine [VOCs'] potential to contribute to ozone levels" by doing  its own testing, the agency relied on a review of the existing  scientific literature.  See Dunn-Edwards Br. at 12.  But  nothing in section 183(e) declares that the only way to "determine" potential is through the agency's own studies--something Congress did demand in other sections of the Clean Air  Act.  See, e.g., 42 U.S.C.      7511f (directing EPA to study the  role of ozone precursors in tropospheric ozone formation, and  commanding that the "Administrator shall utilize all available  information and studies, as well as develop additional information, in conducting the study required by this section")  (emphasis added).  Nor is there anything unreasonable about  the agency's conclusion that it could "determine" VOCs' potential to contribute by examining data in the existing literature.  To the contrary, "EPA typically has wide latitude in  determining the extent of data-gathering necessary to solve a  problem.  We generally defer to an agency's decision to  proceed on the basis of imperfect scientific information, rather than to 'invest the resources to conduct the perfect  study.' "  Sierra Club v. EPA, 167 F.3d 658, 662 (D.C. Cir.  1999) (quoting American Iron & Steel Inst. v. EPA, 115 F.3d  979, 1004 (D.C. Cir. 1997)).

B

34
As a second source of statutory support for their argument  that the Clean Air Act requires a VOC-specific approach, petitioners note that in establishing "criteria for regulating  consumer and commercial products," Congress directed EPA  to take into consideration "[t]hose consumer and commercial  products which emit highly reactive volatile organic compounds into the ambient air."  42 U.S.C.      7511b(e)(2)(B)(iii).But EPA expressly complied with this congressional command, adopting as one of its criteria "emissions of highly  reactive compounds."  See Report at 4-6 (J.A. at 562).  As  noted above, the agency implemented this criterion by identifying ten classes of VOCs as "highly reactive," and using that  classification to give priority to consumer and commercial  products that emitted those highly reactive compounds.  See  Final Listing, 63 Fed. Reg. at 48,796.  Accordingly, this  statutory citation does not add to the weight of petitioners'  challenge.

C

35
Finally, petitioners note that section 183(e)(3)(A) requires  EPA to "list those categories of consumer or commercial  products" that "account for at least 80 percent of the VOC  emissions, on a reactivity-adjusted basis, from consumer or  commercial products in areas that violate the NAAQS for  ozone."  42 U.S.C.      7511b(e)(3)(A).  EPA is then directed to  "divide the list into 4 groups establishing priorities for regulation," and to regulate one group every two years until all have  been regulated.  Id.


36
To comply with these requirements, EPA first used the  methodology we have described above:  it divided VOCs into  three sets, exempting those with negligible reactivity and  applying an (upward) reactivity adjustment factor to the mass  emissions of products with highly reactive ingredients.  After  ranking product categories based on eight regulatory criteria,  see supra Part I, EPA developed the required list of regulated categories by starting with the highest ranked category  and proceeding through successive categories until the list  accounted for 80% of the emissions, adjusted for reactivity.See Final Listing, 63 Fed. Reg. at 48,796.  The agency  identified architectural coatings as "one of the largest sources of VOC emissions among categories of consumer and commercial products," id. at 48,797, and therefore included it  within the first group of regulated categories.


37
Because EPA did not evaluate each VOC's individual reactivity, petitioners contend that "products containing lessreactive compounds were included in an early group when,  instead, they should have been exempted or regulated, if at  all, in later stages."  Allied Br. at 20.  Petitioners argue that  these two possibilities--that some compounds were regulated  that should have been exempted, and that architectural coatings as a category were given priority regulation when they  should have been regulated in one of the later groups-render EPA's methodology inconsistent with the statute's  command to account for VOC emissions "on a reactivityadjusted basis."  We disagree.


38
First, the possibility that some compounds that were regulated should not have been regulated at all is not likely  enough to undermine EPA's methodology.  As explained  above, EPA expressly exempted from regulation those compounds determined to have negligible reactivity.  Moreover,  pre-existing EPA regulations allow companies to apply to  have a compound excluded from the definition of VOC, and  thereby exempted from regulation, based on evidence that it  is negligibly reactive.  See Final Listing, 63 Fed. Reg. at  48,798 (citing 40 C.F.R.      51.100(s)).  Working with industry,  EPA has exempted more than 100 VOC species (42 compounds and 2 classes of compounds) under this provision.See Response to Comments at 2-90 (J.A. at 755);  Final  Listing, 63 Fed. Reg. at 48,798.  Since data necessary to  determine negligible reactivity are available for "nearly all  VOC species of interest," Report at 3-5 (J.A. at 550), and  since even petitioners concede that all VOCs have some  potential to contribute to ozone formation, see Oral Arg. Tr.  at 27;  see also Final Listing, 63 Fed. Reg. at 48,797, petitioners' challenge does not cast doubt on EPA's regulatory  process.


39
Nor is the second possibility, that in a perfect regulatory  world architectural coatings would not be in the first group of regulated products, of great moment in evaluating the reasonableness of EPA's method of regulation.  There is no serious  argument that architectural coatings would not appear somewhere on even a perfect regulatory list, given their status as  one of the largest sources of VOC emissions among consumer  and commercial products.  Indeed, section 183(e) directs the  EPA to list those categories of consumer or commercial  products that account for "at least" 80% of VOC emissions on  a reactivity-adjusted basis--implying that it could list categories accounting for 100% of such emissions.  As to exactly  where on that list architectural coatings should have ranked,  we can only say what we have repeatedly said before:  An  "agency is entitled to the highest deference in deciding priorities among issues, including the sequence and grouping in  which it tackles them."  Associated Gas Distribs. v. FERC,  824 F.2d 981, 1039 (D.C. Cir. 1987);  see Sierra Club v.  Thomas, 828 F.2d 783, 797 (D.C. Cir. 1987).  Moreover, we  must be particularly deferential in a case like this, where  Congress--by instructing EPA to set priorities using multiple, nondeterminative criteria6--has necessarily indicated an  intention to delegate substantial discretion to the agency.


40
In sum, we conclude that nothing in the Clean Air Act  unambiguously requires the EPA to analyze the reactivity of  each VOC on an individual basis, and that EPA's more  categorical approach is a reasonable interpretation of the  reactivity-related requirements of the Act.  Accordingly, the  architectural coatings rule survives review under the standard set by the Supreme Court in Chevron.

D

41
Petitioners contend that even if the Clean Air Act does not  require EPA, as a matter of statutory construction, to regulate VOCs based on an analysis of their relative individual  reactivities, the agency must nonetheless do so to avoid regulating in an arbitrary and capricious fashion.  As petitioners note, EPA's own report conceded that:  "[t]o be the  most effective, ozone control strategies ideally should be  based not only on mass VOC and NOx emissions but should  consider the relative photochemical reactivity of individual  species."  Report at 2-1 (J.A. at 523);  see also Notice of  Product Category List, 60 Fed. Reg. at 15,266.  The key  words in the quoted sentence, however, are "to be the most  effective" and "ideally."  Indeed, in the sentence following the  one just quoted, EPA went on to state:


42
Reactivity data on VOC, especially those compounds usedto formulate consumer and commercial products, is ex-tremely limited.  Better data, which can be obtained onlyat great expense, is needed if the EPA is to considerrelative photochemical reactivity in any VOC controlstrategy.  In the meantime, a practical approach is to acton the basis of mass VOC emissions.


43
Report at 2-1 (J.A. at 523).  In short, the agency concluded  that the methodology it adopted, and which we have described above, was the "most appropriate way to meet the  statutory requirements, given the limitations and uncertainties surrounding the reactivity issue."  Report at 3-10 (J.A.  at 555).


44
Our role, of course, is to determine neither whether EPA's  approach was "ideal," nor whether it was the "most appropriate," but only whether it was reasonable.  See Ethyl Corp. v.  EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (en banc) ("We must  look at the decision not as the chemist, biologist or statistician  that we are qualified neither by training nor experience to be,  but as a reviewing court exercising our narrowly defined duty  of holding agencies to certain minimal standards of rationality.");  see also State Farm, 463 U.S. at 43.  For the reasons  discussed in Part III.A-C above, we conclude that it was.See Animal Legal Defense Fund, Inc. v. Glickman, 204 F.3d  229, 234 (D.C. Cir. 2000) (noting overlap between analysis  under Chevron and State Farm).  We agree with the agency  that its general reliance on the mass of VOC emissions,  coupled with the exemption for those VOCs known to be negligibly reactive and the upward adjustment for those  known to be highly reactive, constitutes a reasonable approach given both "the uncertainties and inconsistencies of  reactivity," Report at 2-10 (J.A. at 532), and "Congress's  direction that the EPA complete the study within three  years," Final Listing, 63 Fed. Reg. at 48,796.  In reaching  this conclusion, "[o]ur analysis is guided by the deference  traditionally given to agency expertise, particularly when  dealing with a statutory scheme as unwieldy and  science-driven as the Clean Air Act."  Appalachian Power  Co. v. EPA, 135 F.3d 791, 801-02 (D.C. Cir. 1998).

IV

45
In this Part, we consider a number of additional, miscellaneous charges leveled by petitioners against the architectural  coatings rule.  Some raise questions of statutory interpretation under the Clean Air Act, some charge EPA with arbitrary and capricious decisionmaking under that Act, and some  involve a combination of the two.


46
* Dunn-Edwards attacks the EPA study for "fail[ing] to  address the beneficial environmental and health effects of the  negative reactivity" of some VOCs.  Dunn-Edwards Br. at  12.  There is evidence, the company contends, showing that  the emissions of certain types of VOCs actually reduce ozone  levels.  The agency's failure to consider the positive health  effects of a restricted pollutant, Dunn-Edwards continues,  constitutes both a violation of the Clean Air Act and unreasonable agency action.  See Dunn-Edwards Br. at 13 (citing  American Trucking Ass'n v. EPA, 175 F.3d 1027, 1051 (D.C.  Cir. 1999), cert. granted, 68 U.S.L.W. 3496 (U.S. May 22,  2000)).


47
The answer to this challenge is that EPA did consider the  possible effects of negative reactivity.  See Response to Comments at 2-92 to 2-95 (J.A. at 757-760).  It concluded,  however, that the phenomenon was too rare and unpredictable to warrant changes in the regulatory structure.  See id.  at 2-92 to 2-93 (J.A. at 757-58) (concluding that "reduction of ozone by VOC occurs in very limited circumstances").  Negative reactivity, the agency determined, occurs "only in very  limited cases, with only a few species of VOC (not VOC  species typically used in consumer and commercial products),  and under specific meteorological conditions."  Id. at 2-154  (J.A. at 802).  Studies offered by petitioners were not to the  contrary.  See, e.g., J.A. at 985-86 (study describing "slightly  negative values" for two compounds in one-hour test in Los  Angeles, but noting that all compounds tested there showed  positive values in eight-hour tests).  Because EPA reasonably  considered, and discounted, the phenomenon of negative reactivity, we reject this challenge.

B

48
In a related attack, Dunn-Edwards contends that EPA's  rule may also be counterproductive because it "has the potential to increase ozone levels in two ways."  Dunn-Edwards  Br. at 21.  First, because the rule imposes limits on the mass  of VOCs in a product, rather than on the type (reactivity) of  the VOCs, it "allows for the possibility" that producers of  architectural coatings may substitute more reactive VOCs for  less reactive ones.  Id.  Although the reformulated products  would then emit a smaller quantity of VOCs as measured by  mass, they would generate more ozone over all.  Second,  Dunn-Edwards warns, "if performance is compromised" by  reducing the VOC content of architectural coatings, the overall volume of such products used to attain the same results  will increase--in the form of more coats, more touch-ups, and  more frequent recoating.  Id.


49
As the quoted portions of petitioner's argument suggests, it  is framed more as a series of theoretical possibilities than of  fact-based predictions.  Petitioners offer no evidence at all  that the VOC substitution they fear will occur.  EPA's own  view is that even if such substitution did occur, the benefit  from reducing the total mass of VOC emissions would outweigh any differences in relative reactivities of different  compounds.  See EPA, National Volatile Organic Compound  Emission Standards for Architectural Coatings, Background for Promulgated Standards 2-297 (1998) (J.A. at 437) [hereinafter Background].  In the absence of contrary evidence, it is  to the expert agency's prediction, rather than to the petitioner's, that we must defer.  See Her Majesty the Queen in  Right of Ontario v. EPA, 912 F.2d 1525, 1534 (D.C. Cir.  1990);  New York v. EPA, 852 F.2d 574, 580 (D.C. Cir. 1988).


50
EPA also found "no evidence or documentation to support  the[ ] claims [that] increased thinning, more priming, more  topcoating, and more frequent painting" would result if the  VOC content of architectural coatings were reduced.  Background at 2-293 (J.A. at 433).  To the contrary, the agency  cited evidence that low VOC content coatings perform well  and do not require additional coats to achieve the same  results as those with high VOC content.  See Background at  2-293 to 2-297 (J.A. at 433-37);  Proposed Rule, 61 Fed. Reg.  at 32,738;  see also Final Rule, 63 Fed. Reg. at 48,869 (finding  "no link between product quality and VOC content since  quality, high-performing products are available in a wide  range of VOC content levels in many product categories").In reply, Dunn-Edwards cites a California survey indicating  that between 1980 and 1990, total VOC emissions from architectural coatings increased by 16%, notwithstanding that the  VOC content of such coatings decreased by 37% during the  same period.  See Dunn-Edwards Reply Br. at 10.  Poorer  performance by the reduced VOC paint "may be responsible,"  Dunn-Edwards asserts.  Id.  And it may be that DunnEdwards is right.  But without evidence of cause-and-effect,  we cannot know.  Dunn-Edwards offers no evidence that the  increase in VOC emissions during the 1980s was due to the  poorer performance of the paints, rather than to the cause  suggested by the EPA:  an increase in the volume of paints  used during that time, spurred by growth in the population,  an improved economy, and an increase in construction.

C

51
The architectural coatings rule regulates the manufacture  and sale of coating products nationwide.  Allied contends that  this exceeds EPA's authority, which it asserts is limited to regulating manufacture and sale within "nonattainment" areas.  A nonattainment area is one that either does not meet  the national primary or secondary ambient air quality standard for ozone, or that contributes to ozone levels in a nearby  area that does not meet the standard.  See 42 U.S.C.       7407(d).  Allied's contention principally relies on two subsections of section 183(e).  First, subsection (2)(A) requires  EPA to study VOC emissions in order to determine their  potential "to contribute to ozone levels which violate the  national ambient air quality standard for ozone."  Id.       7511b(e)(2)(A)(i).  Second, subsection (3)(A) requires the  EPA to list, and then to regulate, those categories of products  that "account for at least 80 percent of the VOC emissions  ... from consumer or commercial products in areas that  violate the NAAQS for ozone."  Id.      7511b(e)(3)(A).


52
Neither of these provisions says anything about where the  regulated product itself must be manufactured or sold, or  about the geographic scope of EPA's regulatory authority.Rather, the first directs EPA to consider the potential of  emissions to contribute to ozone levels that violate the  NAAQS;  the second instructs it to regulate categories of  products that account for a specified percentage of emissions  in nonattainment areas.  As EPA concludes, this language  permits the agency to regulate nationwide in order to accomplish emissions reduction in nonattainment areas.


53
EPA's reading is bolstered by consideration of other provisions in the same section.  For example, subsection (3)(A)  also states that "[i]n order to carry out this section, the  Administrator may, by regulation, control or prohibit any  activity, including the manufacture or introduction into commerce, offering for sale, or sale of any consumer or commercial product."  Id.      7511b(e)(3)(A) (emphasis added);  see  also id.      7511b(e)(4) ("The regulations under this subsection  may include any system or systems of regulation as the  Administrator may deem appropriate.").  Similarly, subsection (1)(C) defines "regulated entities" as manufacturers and  distributors of consumer or commercial products for sale in  interstate commerce "in the United States," without geographic limitation.  Id.      7511b(e)(1)(C)(i).  Thus, although Congress did direct EPA to regulate VOCs in order to  improve conditions within nonattainment areas, nothing in the  statute limits its ability to regulate the manufacture and sale  of VOCs outside such areas if such regulation is reasonably  related to that end.7


54
EPA readily persuades us that nationwide regulation is  reasonably related to the statutory objective.  First, architectural coating products are widely distributed and easily transportable across area boundaries.  See Final Listing, 63 Fed.  Reg. at 48,804.  End-users (e.g., commercial painters) themselves may well utilize these products in different locations  from day to day.  See id.8  Accordingly, as EPA reasoned, a  national rule is necessary to "preempt opportunities for endusers to purchase such consumer and commercial products in  attainment areas and then use them in nonattainment areas,  thereby circumventing the regulations and undermining the  decrease in VOC emissions in nonattainment areas."  Final  Listing, 63 Fed. Reg. at 48,804.


55
Second, just as coating products are easily transportable,  so too are the VOCs they release and the ozone the VOCs create.  Ambient VOCs and ozone do not obey geographic  boundaries and can flow freely between attainment and nonattainment areas.  See Final Listing, 63 Fed. Reg. at 48,804;see also Virginia v. EPA, 108 F.3d 1397, 1400 (D.C. Cir.  1997).  Thus, EPA reasonably concluded that "emissions in  attainment areas can contribute to nonattainment in adjoining  nonattainment areas," and that a nationwide rule is therefore  consistent with its statutory mandate.  Final Listing, 63 Fed.  Reg. at 48,803.

D

56
Dunn-Edwards contends that because section 183(e) requires a study of "emissions of volatile organic compounds  into the ambient air," 42 U.S.C.      7511b(e)(2)(A), EPA violated its directive by focusing its study and rule on VOC content  rather than emissions.  That focus, petitioner suggests, assumes without foundation that all VOCs contained in a coating will be emitted into the ambient air.  But EPA did not  assume that all of a product's VOCs would be emitted.Rather, it employed a test to determine the mass of solvents  that would volatize, and limited its calculation of VOC content  to the latter alone.9


57
Dunn-Edwards also contends that even when VOCs are  emitted from a product, they may not become "available" in  the atmosphere to form ozone--for example, because they  may be emitted indoors rather than outside.  EPA considered this assertion during the rulemaking, and responded by pointing to recent studies suggesting that "close to 100 percent of  the VOC from paint is eventually emitted into the ambient  air."  Response to Comments at 2-64 (J.A. at 729).  Because  this conclusion is supported by substantial evidence, the  agency's decision to control VOC emissions through the regulation of VOC content is reasonable.10

E

58
Section 183(e) directs EPA to take into consideration five  factors in establishing criteria for regulating consumer and  commercial products, as well as in establishing regulatory  priorities among those products.  See 42 U.S.C.       7511b(e)(2)(B), (e)(3)(A).  Allied contends that EPA erred  by failing to consider the last three factors listed in the  statute:


59
(iii) Those consumer and commercial products whichemit highly reactive volatile organic compounds into theambient air.


60
(iv) Those consumer and commercial products which aresubject to the most cost-effective controls.


61
(v) The availability of alternatives (if any) to such con-sumer and commercial products which are of comparablecosts, considering health, safety, and environmental im-pacts.


62
Id.      7511b(e)(2)(B).11 We reject this challenge.


63
First, EPA did consider the three listed factors.  Each was  expressly included among the regulatory criteria adopted by  the agency, and was applied in establishing regulatory priorities.  See Report at 4-6 (J.A. at 562) (factor iii);  id. at 4-10 to  4-11 (J.A. at 566-67) (factor iv);  id. at 4-8 to 4-9 (J.A. at  564-65) (factor v);  see also Final Listing, 63 Fed. Reg. at  48,794 (listing criteria);  Notice of Product Category List, 60  Fed. Reg. at 15,266 (same);  Report at 4-12 to 4-13 (J.A. at  568-69) (describing application of the criteria);  EPA, National Air Pollution Control Techniques Advisory Committee  Meeting on Consumer and Commercial Products 53 (1995)  (J.A. at 700) (describing EPA's scoring of product categories  based on the criteria).


64
Second, EPA's consideration of these factors was adequate  to constitute reasoned decisionmaking.  As we have discussed  above, EPA considered the third factor by assigning greater  weight to those products that emit VOCs from one of the ten  classes of VOCs that are highly reactive, an approach we  regard as consistent with the statute and neither arbitrary  nor capricious.  See supra Part III.  EPA reasonably considered the fourth factor by assigning a higher priority to  categories of products that can reduce VOC emissions at  lowest cost.  See Report at 4-10 to 4-11 (J.A. at 566-67).12And EPA adequately considered the fifth factor, the availability of alternatives at comparable costs, by applying a criterion  that evaluated the possibility of reformulation of the product  and the availability of substitutes.  See Report at 4-8 to 4-9 (J.A. at 564-65);  see also Response to Comments at 2-27 (J.A.  at 714).13


65
In addition to alleging that EPA failed to consider these  three statutorily-enumerated factors, Allied contends that  EPA impermissibly considered two further factors not listed  in the statute:  "magnitude of annual VOC emissions" and  "regulatory efficiency and program considerations."  Final  Listing, 63 Fed. Reg. at 48,794;  see supra note 3.  Although  it is true that "an agency rule would be arbitrary and  capricious if the agency has relied on factors which Congress  has not intended it to consider," State Farm, 463 U.S. at 43,  that is not the case here.  Nothing in section 183(e) suggests  that Congress intended to limit EPA's consideration to the  five factors specified in the statute.  Indeed, the structure of  the section suggests the contrary.  Subsection (2)(A) first  directs the agency to "establish criteria";  subsection (2)(B)  then directs that "[i]n establishing the criteria," the agency  "shall take into consideration" the five listed factors.  The  reasonable inference taken by EPA is that while it must  consider the five listed factors, it is not barred from considering additional ones.  See George Warren Corp. v. EPA, 159  F.3d 616, 624 (D.C. Cir. 1998) (noting this court's "usual  reluctance to infer from congressional silence an intention to  preclude the agency from considering factors other than  those listed in a statute").


66
Moreover, the two additional criteria are reasonable in light  of the use to which Congress wanted all of the criteria to be  put:  establishing regulatory priorities among the categories  of consumer and commercial products.  See 42 U.S.C.       7511b(e)(3)(A).  We have already considered, and judged  permissible, EPA's accordance of greater regulatory priority  to product categories that emit greater masses of VOCs--the  first of the two additional criteria.  See supra Part III.  The  agency's consideration of the second additional factor, denominated as "regulatory efficiency," seems nothing more than regulatory common sense:  in determining priorities, EPA  considered which categories it could regulate quickly because,  for example, the agency had ongoing or recently completed  rulemakings concerning them, or because they raised factual  issues in common with other categories.  See Report at 4-12  to 4-13 (J.A. at 568-69).

V

67
So far, we have considered challenges to the architectural  coatings rule based on the Clean Air Act.  In this part, we  consider Allied's claims that the rule is contrary to the  Regulatory Flexibility Act (RFA)14 as amended by the Small  Business Regulatory Enforcement Fairness Act of 1996  (SBREFA),15 and to the Unfunded Mandates Reform Act  (UMRA).16


68
* Section 603(a) of the RFA requires that an agency, at the  time of issuance of a notice of proposed rulemaking, publish  an initial regulatory flexibility analysis which "shall describe  the impact of the proposed rule on small entities."  5 U.S.C.       603(a).  Section 603(c) requires that such an initial analysis  also describe "any significant alternatives to the proposed  rule which accomplish the stated objectives" of the applicable  statute while minimizing significant economic impact on small  entities.  Id.      603(c).  Allied contends that EPA failed to  comply with section 603(a) by failing to discuss two such  economic impacts:  "stigmatic harm" allegedly arising from  the agency's suggestion that it may impose more stringent  VOC limits in future regulations;17  and asset devaluation, in  that the coatings rule allegedly will render existing product formulas valueless.  Allied also contends that EPA failed to  comply with section 603(c) by failing to consider label directions as an alternative to VOC limits.


69
We are without jurisdiction to consider these challenges to  EPA's compliance with the initial regulatory flexibility analysis requirements of section 603.  Section 611(c) of the RFA  states that "[c]ompliance or noncompliance by an agency with  the provisions of this chapter shall be subject to judicial  review only in accordance with this section."  5 U.S.C.       611(c).  Section 611(a) specifically lists the sections of the  RFA subject to judicial review, and section 603 is not on the  list.18  See id.      611(a)(1), (2).


70
That, however, is not the end of the story.  As Allied points  out, although we may not review EPA's handling of these  issues in terms of the agency's compliance with the RFA, we  may consider them in determining whether EPA complied  with the overall requirement that an agency's decisionmaking  be neither arbitrary nor capricious.  See Clean Air Act, 42  U.S.C.      7607(d)(9)(A);  see also APA, 5 U.S.C.      706(2)(A).That was the law prior to passage of SBREFA's amendments  to the RFA, see Thompson v. Clark, 741 F.2d 401, 405 (D.C.  Cir. 1984);  Small Refiner Lead Phase-Down Task Force v.  EPA, 705 F.2d 506, 539 (D.C. Cir. 1983), and it was not  altered by those amendments.19


71
For an agency's decisionmaking to be rational, it must  respond to significant points raised during the public comment period.  See Home Box Office, Inc. v. FCC, 567 F.2d 9,  35-36 (D.C. Cir. 1977).  EPA did so here.  The agency stated  that it was not aware of any stigmatic harm of the kind urged  by Allied, and reasonably concluded that the comments submitted on the subject had "not provided enough detail to  allow the EPA to consider the issue further."  Background at  2-334 (J.A. at 474).  Allied's unadorned allegation in its brief,  that "[s]uch impacts are significant," Allied Br. at 23, adds no  further detail and no reason to require further agency response.  EPA also reasonably rejected the contention that it  was ignoring the regulation's impact on the value of existing product formulas, noting that to the contrary it was directly  considering that impact by analyzing the effect of the regulation on annual profits per product.  See Background at 2-334  (J.A. at 474).


72
To be regarded as rational, an agency must also consider  significant alternatives to the course it ultimately chooses.See State Farm, 463 U.S. at 48-51;  Grand Canyon Air Tour  Coalition v. FAA, 154 F.3d 455, 471 (D.C. Cir. 1998);  Public  Citizen v. Steed, 733 F.2d 93, 99 (D.C. Cir. 1984).  Allied  contends that the agency should have considered imposing a  requirement that labels contain directions for responsible use  of coating products, as an alternative to imposing VOC limits  on such products.20  But the agency did consider the possibility of imposing label directions as an addition to product  reformulation, and even in that respect found "it would be  impossible to predict the VOC reductions achieved by providing the consumer with directions for use."  Report at 2-14  (J.A. at 536).  Allied offers no response to this defect in the  labeling alternative, and no reason to believe that such an  approach would accomplish the objectives of the Clean Air  Act.  Accordingly, we reject Allied's challenges under the  RFA.21

B

73
Allied contends that EPA violated provisions of the Unfunded Mandates Reform Act that require preparation of a  written cost-benefit analysis, see 2 U.S.C.      1532(a)(2), and  selection of the "least costly, most cost-effective or least  burdensome alternative that achieves the objectives of the  rule," id.      1535(a).  UMRA itself expressly denies courts  jurisdiction to review compliance with the latter provision.See id.      1571(b)(1);  see also id.      1571(a).  And while the  Act permits limited judicial review of compliance with the  requirement to prepare a written cost-benefit analysis,22 that  requirement is not triggered unless the rule in question may  result in expenditures of $100 million or more in any one  year, see id.      1532(a).  Because EPA estimated the total  cost associated with the architectural coatings rule to be only  $32 million per year, see Final Rule, 63 Fed. Reg. at 48,855, it  concluded that UMRA was inapplicable.  See id. at 48,875-76.


74
Allied challenges EPA's cost estimate, but advances little  basis for such a challenge beyond the complaints we considered above in the context of Allied's RFA claim:  Petitioner  contends that EPA ignored the "stigmatic" costs it imposed  through its suggestion that more stringent VOC limits might be promulgated in the future, as well as the impact of the  coatings rule on the market value of existing product formulas.23  We concluded above that EPA dealt with these issues  in a reasonable manner and, given the limited judicial review  applicable to compliance with section 1532(a), see supra note  22, we have no warrant for inquiring further under UMRA.24

VI

75
Finally, we consider Allied's argument that in regulating  architectural coatings, Congress exceeded its constitutional  authority "[t]o regulate Commerce ... among the several  States."  U.S. Const., art. I,      8, cl. 3.  Dunn-Edwards does  not join in this attack, and the intervenor National Paint &  Coatings Association actively opposes it, preferring uniform  national regulation to the "multiple, divergent state rules"  that would otherwise hold sway.  NPCA Br. at 3.  The crux of Allied's argument is that EPA's regulation exceeds Congress' authority under the Commerce Clause because there is  an insufficient nexus between coatings manufacture, which it  describes as an intrastate event, and the interstate phenomenon of ozone formation.


76
Allied attempts to rely on the Supreme Court's decision in  United States v. Lopez, 514 U.S. 549 (1995), striking down the  Gun-Free School Zones Act25 which made it a federal crime  knowingly to possess a firearm in a school zone.  In United  States v. Morrison, 68 U.S.L.W. 4351 (U.S. May 15, 2000),  handed down last month, the Court relied on Lopez in holding  that Congress also lacked authority under the Commerce  Clause to provide a federal civil remedy for the victims of  gender-motivated violence.  In both cases, the Court agreed  that " 'Congress' commerce authority includes the power to  regulate those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially  affect interstate commerce.' "  Id. at 4354 (quoting Lopez, 514  U.S. at 558-59).  As Morrison explained, however, four considerations contributed to Lopez's conclusion that the GunFree School Zones Act did not fall within that category of  regulatable activity.  Not one of those considerations applies  to section 183(e) of the Clean Air Act.


77
The Court held, first, that "in those cases where we have  sustained federal regulation of intrastate activity based upon  the activity's substantial effects on interstate commerce, the  activity in question has been some sort of economic endeavor."  Id. at 4355 (citing Lopez, 514 U.S. at 559-60).  Morrison  noted that the criminal statute at issue in Lopez " 'had  nothing to do with "commerce" or any sort of economic  enterprise, however broadly one might define those terms.' "Id. at 4354 (quoting Lopez, 514 U.S. at 561).  It said that the  same was true of the federal civil remedy provision of the  Violence Against Women Act (VAWA).26  See id. at 4355.But the same cannot be said of the Clean Air Act provisions  concerning VOC emissions, which permit regulation only of:


78
(i) manufacturers, processors, wholesale distributors, orimporters of consumer or commercial products for saleor distribution in interstate commerce in the UnitedStates;  or


79
(ii) manufacturers, processors, wholesale distributors, orimporters that supply the entities listed under clause (i)with such products for sale or distribution in interstatecommerce in the United States.


80
42 U.S.C.      7511b(e)(1)(C).


81
Second, Morrison noted that in Lopez, the Gun-Free  School Zones Act, like VAWA, "contained 'no express jurisdictional element which might limit its reach to a discrete set  of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.' "  Morrison,  68 U.S.L.W. at 4355 (quoting Lopez, 514 U.S. at 562).  As  quoted above, however, EPA's regulation of VOCs is expressly limited to entities that act "in interstate commerce."  42  U.S.C.      7511b(e)(1)(C).


82
Third, Morrison pointed out that neither the Gun-Free  School Zones Act, " 'nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.' "  Id.  (quoting Lopez, 514 U.S. at 562).  The legislative history of  the Clean Air Act Amendments, by contrast, expressly describes the problem of interstate transport of ozone, see, e.g.,  S. Rep. No. 101-228, at 3, 13, 49 (1989), as well as its effects  on the national economy, see, e.g., id. at 8-9.


83
Finally, according to Morrison, the "decision in Lopez  rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was  attenuated," Morrison, 68 U.S.L.W. at 4355, which the Court  said was true of gender-motivated violence as well, see id. at  4356.  But, there is nothing attenuated about the interstate  effects of the activity regulated here.  We ourselves have  noted the interstate nature of the "ozone transport phenomenon," and the way in which it may render any given state  unable to achieve attainment because of ozone created hundreds of miles away.  See Virginia v. EPA, 108 F.3d 1397,  1400 (D.C. Cir. 1997).  The legislative history and EPA's report to Congress substantiate the heavy impact ozone pollution has on national health care costs and national agricultural production.  See S. Rep. No. 101-228, at 8-9 (1989);  Report  at 1-1 (J.A. at 518).  And the rulemaking record sustains the  proposition that the large majority of the products regulated  by the rule are distributed nationally, and then applied by  end-users in multiple locations, see 63 Fed. Reg. 48,792,  48,804--facts that are confirmed, and stressed, by the National Paint & Coatings Association, see NPCA Br. at 24.


84
In short, none of the considerations that led the Court to  find Congress' authority wanting in Lopez and Morrison has  any application to section 183(e) of the Clean Air Act.  In  Hodel v. Virginia Surface Mining and Reclamation Ass'n--a  case cited with approval by the Supreme Court in both Lopez  and Morrison, see Lopez, 514 U.S. at 557;  Morrison, 68  U.S.L.W. at 4354--the Court declared that it "agree[d] with  the lower federal courts that have uniformly found the power  conferred by the Commerce Clause broad enough to permit  congressional regulation of activities causing air or water  pollution, or other environmental hazards that may have  effects in more than one State."  452 U.S. 264, 282 (1981).Contrary to Allied's assertion, nothing contained in the  Court's recent Commerce Clause jurisprudence casts doubt  on the validity of that declaration here.

VII

85
For the foregoing reasons, we reject petitioners' challenges  to the architectural coatings rule and deny the petitions for  review.



Notes:


1
 Reporting on the Clean Air Act Amendments of 1990, the  Senate Environment and Public Works Committee explained the  impact of ground-level ozone on human health:
Ozone is fatal at high concentrations.  At lower concentrationsfound in many urban areas in the United States, extensiveresearch has shown that healthy adults and children begin toexhibit adverse health effects.  These include chest pains,shortness of breath, coughing, nausea, throat irritation, andincreased susceptibility to respiratory infections.
Potentially more troubling and less well understood are theeffects of long-term chronic exposure to summertime ozoneconcentrations found in many cities. Regular out-of-doors workor play during the hot, sunny summer months in the morepolluted cities may cause biochemical and structural changes inthe lung, paving the way for chronic respiratory diseases.
S. Rep. No. 101-228, at 6 (1989);  see also Consumer and Commercial Products:  Schedule for Regulation, Final Listing, 63 Fed. Reg.  48,792, 48,793 (1998).


2
 The statute defines a "consumer or commercial product" as  "any substance, product (including paints, coatings, and solvents), or  article (including any container or packaging) held by any person,  the use, consumption, storage, disposal, destruction, or decomposition of which may result in the release of volatile organic compounds."  42 U.S.C.      7511b(e)(1)(B).


3
 The first six criteria were derived from five factors specified in  the statute.  See 42 U.S.C.      7511b(e)(2)(B).  The last two were  added by the agency.  See infra Part IV.E.


4
 Dunn-Edwards challenges EPA's decisions only insofar as  they relate to architectural coatings.  Although Allied's brief suggested a challenge to the consumer products and automobile refinish coatings rules as well, at oral argument counsel made clear that  Allied's attack on those rules is identical to its attack on the  architectural coatings rule.  See Oral Arg. Tr. at 78-79.


5
 EPA labeled a compound negligibly reactive if its kOH value  was lower than that of ethane.  See Report at 3-5 (J.A. at 550).


6
 Congress directed EPA to establish regulatory priorities  based on criteria which "take into consideration" at least five listed  factors.  42 U.S.C.      7511b(e)(2)(B);  see also supra note 3;  infra  Part IV.E.


7
 For that reason, section 183(e) is different from Clean Air Act  section 165(a), which we considered in Alabama Power Co. v. Costle,  636 F.2d 323 (D.C. Cir. 1979).  The latter section expressly limits  EPA's permit authority to facilities "constructed in any area to  which [Part C] applies," 42 U.S.C.      7475(a) (emphasis added), i.e.,  to facilities constructed in nonattainment areas.  See Alabama  Power, 636 F.3d at 365.  Section 183(e) does not contain an analogous limitation.


8
 As the National Paint & Coatings Association wrote in its  intervening brief in support of the EPA:
A manufacturer or distributor, whether big or small, that sellsan architectural coatings product can never be sure where thatproduct will end up being used.  For example, a small manu-facturer in Maryland who manufacturers his paint solely inMaryland and sells his paint to contractors only in Marylandmay have his paint used in Washington, D.C. one day, Virginiathe next day, West Virginia the next day, and finally used topaint a weekend beach house in Delaware the next day.
NPCA Br. at 24.


9
 In EPA's test, the paint sample is weighed, heated, and  reweighed.  VOC content is calculated as the difference in the two  weights, after also subtracting the weight of water and any exempt  compounds.  Hence, solvents that do not volatize under the test  conditions are not measured as VOC.  See Response to Comments  at 2-56 (J.A. at 723).  In a footnote, Dunn-Edwards contends that  because paints are not heated when applied, this test "does not bear  the necessary relationship to actual conditions in which coatings are  used."  Dunn-Edwards Br. at 16 n.16 (citing Chemical Mfrs. Ass'n  v. EPA, 28 F.3d 1259, 1264 (D.C. Cir. 1994)).  EPA's rejoinder is  that heating simply accelerates the emissions of VOC, but does not  increase total emissions over time.  In the absence of contrary  evidence, we defer to the agency's expert opinion.


10
 Dunn-Edwards also contends that EPA was required to  account for reactivity variation caused by differences in the makeup  of the ambient air in different airsheds, noting that the agency  conceded that "ideally" ozone control strategies should consider the  conditions in specific airsheds.  See Dunn-Edwards Br. at 17 n.17  (citing Report at 2-1 (J.A. at 523)).  Nothing in the statutory  language, however, requires airshed-by-airshed analysis.  Nor does  this court's authority extend to requiring EPA to utilize the "ideal"  strategy, particularly not when the agency concludes that such a  strategy is not practical in light of the limitations of the existing  data.  See Report at 2-1 (J.A. at 523).


11
 The first two factors listed in the statute are:  "(i) The uses,  benefits, and commercial demand of consumer and commercial  products[;  and] (ii) The health or safety functions (if any) served by  such consumer and commercial products."  42 U.S.C.       7511b(e)(2)(B).


12
 EPA used cost-effectiveness data where it was available, and  where it was not, used a matrix that considered the availability of  alternatives and the mass of emissions from the product.  See  Report at 4-10 to 4-11 (J.A. at 566-67).


13
 EPA reasonably relied on consumer acceptance, as measured  by market share data, as a surrogate for cost data which was of  limited availability.  See Report at 4-8 to 4-9 (J.A. at 564-65);  see  also Response to Comments at 2-27 (J.A. at 714).


14
 5 U.S.C.       601 et seq.


15
 Pub. L. No. 104-121,       241-42, 101 Stat. 857, 864-68 (1996).


16
 2 U.S.C.       1501 et seq.


17
 In announcing the architectural coatings rule, EPA stated  that in the future "an additional study for this category may be warranted to determine the feasibility of additional reductions in  VOC limits."  Final Rule, 63 Fed. Reg. at 48,872.  Allied contends  not only that this announcement imposes a "stigma" on manufacturers, but that EPA would be without authority to issue such additional reductions.  EPA replies, inter alia, that this claim is unripe:The agency has not yet decided whether it will issue any further  regulations, and Allied has not established that it will suffer any  harm in the interim.  We agree.  See Grand Canyon Air Tour  Coalition v. FAA, 154 F.3d 455, 471 (D.C. Cir. 1998);  Florida  Power & Light Co. v. EPA, 145 F.3d 1414, 1419-21 (D.C. Cir. 1998).Allied "will have ample opportunity later to bring its legal challenge  at a time when harm is more imminent and more certain."  Ohio  Forestry Ass'n v. Sierra Club, 523 U.S. 726, 734 (1998).


18
 In its reply brief, Allied notes that unlike challenges to an  agency's compliance with section 603 (concerning initial regulatory  flexibility analyses), challenges to compliance with RFA section 604  (concerning final regulatory flexibility analyses) are included in the  jurisdictional list of section 611.  Allied suggests that the challenges  noted in the above text can be reformulated as challenges to  compliance with section 604.  In relevant part, that section requires  the agency to describe the steps it has taken "to minimize the  significant economic impact on small entities consistent with the  stated objectives of applicable statutes, including a statement of ...why each of the other significant alternatives to the rule considered  by the agency ... was rejected."  5 U.S.C.      604(a)(5) (emphasis  added).  For the reasons noted in the text, Allied has not established that the economic impacts and regulatory alternative it  contends EPA ignored can be classified as "significant."


19
 Prior to the amendments, section 611(b) stated:  "When an  action for judicial review of a rule is instituted, any regulatory  flexibility analysis for such rule shall constitute part of the whole  record of agency action in connection with the review."  5 U.S.C.       611(b) (1994).  In Thompson, 741 F.2d at 405, we held that those  words "mean[ ] that the reviewing court will consider the contents  of the preliminary or final regulatory flexibility analysis, along with  the rest of the record, in assessing not the agency's compliance with  the Regulatory Flexibility Act, but the validity of the rule under  other provisions of law," particularly the APA.  The current version  of section 611(b) contains the same words, with minor stylistic  alterations.


20
 The Clean Air Act authorizes, but does not require, "directions for use" as one of numerous possible means of achieving  emissions reduction.  42 U.S.C.      7511b(e)(1)(A) (defining "best  available controls" as the degree of emissions reduction achievable  through application of "the most effective equipment, measures,  processes, methods, systems or techniques, including chemical reformulation, product or feedstock substitution, repackaging, and  directions for use, consumption, storage, or disposal").


21
 Allied briefly raises two further RFA claims.  First, it  charges that the agency failed to comply with the requirement of  section 609(b) that it, inter alia, convene a review panel prior to  issuing the initial regulatory flexibility analysis.  This court, however, has no jurisdiction to review challenges to an agency's compliance with section 609(b).  See 5 U.S.C.      611(a)(1)-(2), (c).  Second,  Allied contends that EPA failed to comply with the requirement of  section 601(3) that it provide an opportunity for public comment  before adopting (as it did) a definition of the term "small business" different from that referenced in the statute.  See 5 U.S.C.       601(3);  15 U.S.C.      632(a).  Although we do have jurisdiction to  review a section 601 challenge, see 5 U.S.C.      611(a)(1)-(2), Allied's  challenge fails on the merits because EPA did provide an opportunity for public comment on its proposed definition.  See National  Volatile Organic Compound Emission Standards for Architectural  Coatings, Extension of Public Comment Period, 61 Fed. Reg.  46,410, 46,411 (1996);  Background at 2-373 to 2-375, 2-424 to 2-426  (J.A. at 480-82, 490-92).


22
 UMRA, 2 U.S.C.      1571(a)(2)(A), states that agency compliance with section 1532 is subject to judicial review only under 5  U.S.C.      706(1) (court may compel agency action unlawfully withheld).  If an agency fails to prepare the written statement required  by section 1532, "a court may compel the agency to prepare such  written statement," 2 U.S.C.      1571(a)(2)(B), but the failure may  "not be used as a basis for ... invalidating or otherwise affecting  [the] rule," id.      1571(a)(3).


23
  Allied's brief also asserts, without elaboration, that EPA  "excluded from its calculus losses to (1) retailers, (2) contractors, (3)  workers, and (4) consumers," and that each of these categories  "may alone reach $100,000,000 in any year."  Allied Br. at 25.  But  EPA did consider the effect of the rule on many of these groups, see  EPA, Draft Economic Impact Analysis and Regulatory Flexibility  Analysis of Air Pollution Regulations:  Architectural and Industrial Maintenance Coatings 2-32 to 2-40, 2-44 to 2-45 (J.A. at 3341, 45-46);  Background at 2-364 to 2-366 (J.A. at 1017-19), and  Allied offers neither support for nor explanation of the loss calculation it asserts.


24
  In a related argument, Dunn-Edwards contends that EPA  must consider costs in the course of examining "economic feasibility," a factor in the evaluation of "best available controls" under the  statute, 42 U.S.C.      7511b(e)(1)(A).  Dunn-Edwards argues that  EPA's cost estimate was arbitrary and capricious, largely because  the agency reduced its initial estimate after receiving cost estimates  submitted by commenters without determining the reliability of  those estimates.  In fact, EPA did evaluate the reasonableness of  the comments, utilizing data from only 11 out of 27 because the  others suffered from incompleteness or lack of clarity, or from a  failure to provide cost information on a per product basis.  See  Background at 2-304 to 2-305 (J.A. at 444-45).


25
 18 U.S.C.      922(q)(1)(A).


26
 42 U.S.C.      13981.


