Approval and Promulgation of Implementation Plans; New York 15 and 9 Percent Rate of Progress Plans, Phase I Ozone Implementation Plan

AGENCY:

Environmental Protection Agency.

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a State Implementation Plan revision submitted by New York which is intended to meet several Clean Air Act requirements. Specifically, EPA is approving the 1990 base year ozone emission inventory (for all ozone nonattainment areas in New York); the 1996 and 1999 ozone projection emission inventories; the demonstration that emissions from growth in vehicle miles traveled will not increase total motor vehicle emissions and, therefore, offsetting measures are not necessary; the photochemical assessment monitoring stations network; and enforceable commitments. EPA is also approving New York's 15 Percent Rate of Progress Plan and the 9 Percent Reasonable Further Progress Plan. The intended effect of this action is to approve programs required by the Clean Air Act which will result in emission reductions that will help achieve attainment of the one-hour national ambient air quality standard for ozone.

EFFECTIVE DATE:

This rule will be effective June 11, 2001.

ADDRESSES:

Copies of the State's submittals are available at the following addresses for inspection during normal business hours:

Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, NY 10007-1866.

New York State Department of Environmental Conservation, Division of Air Resources, 50 Wolf Road, Albany, New York 12233.

Environmental Protection Agency, Air and Radiation Docket and Information Center, Air Docket (6102), 401 M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

Kirk J. Wieber, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, NY 10007-1866, (212) 637-3381.

SUPPLEMENTARY INFORMATION:

I. Background

On November 3, 1999 (64 FR 59706), EPA proposed approval of New York's State Implementation Plan (SIP) submittal of November 15, 1993, September 4, 1997, and February 2, 1999. These SIP submittals address the requirements for the one severe ozone nonattainment area in New York, the New York-Northern New Jersey-Long Island Nonattainment Area. The New York portion of the New York-Northern New Jersey-Long Island Area is composed of New York City and the counties of Nassau, Suffolk, Westchester, Rockland, and seven towns in Orange County—Blooming Grove, Chester, Highlands, Monroe, Tuxedo, Warwick and Woodbury. The primary focus of this Federal Register action is the New York portion of the New York-Northern New Jersey-Long Island Area (referred to as the New York Metro Area).

The following Clean Air Act (CAA) requirements were included in the November 3, 1999 proposal: the 1990 base year emission inventory as revised on February 2, 1999 (Volatile organic compounds (VOC), Nitrogen oxides (NO_X) and Carbon monoxide (CO) for areas designated nonattainment for ozone since 1991 in New York); the 1996 and 1999 ozone projection emission inventories; 15 Percent Rate-Of-Progress (ROP) and 9 Percent Reasonable Further Progress (RFP) Plans; contingency measures (EPA will be acting on the contingency measures in a separate Federal Register notice); demonstration that emissions from growth in vehicle miles traveled will not increase motor vehicle emissions and, therefore, offsetting measures are not necessary; preliminary modeling efforts completed before the submittal of the 1-hour ozone attainment demonstration; enforceable commitments for Phase II of the 1-hour ozone SIP development and approval process as defined in EPA's November 3, 1999 proposed approval; photochemical assessment monitoring stations network; and transportation conformity budgets for 1996 and 1999. EPA is approving these transportation conformity budgets since they were submitted as SIP revisions. However, it should be noted that these budgets are no longer used in conformity determinations because New York has since submitted budgets for 2002, 2005, and 2007. On June 9, 2000 (65 FR 36690), EPA found these budgets to be adequate for conformity purposes.

EPA has determined that New York has satisfied EPA's Phase I requirement for the clean fuel fleet program and Ozone Transport Commission NO_X Memoranda of Understanding.

A detailed discussion of the SIP revisions and EPA's rationale for approving them is contained in the November 3, 1999 proposal and will not be restated here. The reader is referred to the proposal for more details.

II. Public Comments

No comments were received in response to EPA's proposed action on this New York SIP revision.

III. Enhanced Inspection and Maintenance (I/M) Program

In EPA's November 3, 1999 proposal, EPA proposed to approve emission credits for the 15 Percent ROP and 9 Percent RFP Plans, pending EPA's verification of New York's enhanced motor vehicle inspection and maintenance (I/M) program's effectiveness.

On May 24, 1999 New York submitted to EPA an enhanced I/M program evaluation report/program effectiveness demonstration. Following EPA's evaluation of the enhanced I/M program effectiveness demonstration, the Agency has determined that New York's enhanced I/M program will provide adequate emission reductions compared to the emission reductions credited in the 15 Percent ROP and 9 Percent RFP Plans. On May 7, 2001 at (66 FR 22922) EPA approved New York's enhanced I/M program effectiveness demonstration. Accordingly, the emission reduction credits associated with New York's enhanced I/M program have been taken into consideration in today's approval of New York's 15 Percent ROP and 9 Percent RFP Plans.

IV. Conclusion

EPA has evaluated New York's submittals for consistency with the CAA and Agency regulations and policy. EPA is approving New York's: 1990 base year emission inventory as revised on February 2, 1999 (VOC, NO_X and CO for areas designated nonattainment for ozone since 1991 in New York); 1996 and 1999 ozone projection emission inventories; photochemical assessment monitoring station network; demonstration that emissions from growth in vehicle miles traveled will not increase total motor vehicle emissions; preliminary modeling efforts completed before the submittal of the 1-hour ozone attainment demonstration; transportation conformity budgets for 1996 and 1999; and enforceable commitments for Phase II of the 1-hour ozone SIP development and approval process. EPA is also approving the 15 Percent ROP and 9 Percent RFP Plans.

V. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this final action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This final 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 final 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 proposes to approve 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). For the same reason, this final rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This final rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 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 CAA. This final rule also is not subject to Executive Order 13045 (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 CAA. 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 CAA. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this final rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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. This rule is not a “major” rule as defined by 5 U.S.C. section 804(2). This rule will be effective June 11, 2001.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 9, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Hydrocarbons
• Intergovernmental relations
• Nitrogen oxides
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart HH—New York

2. Section 52.1683 is amended by adding new paragraph (h) to read as follows: