[Federal Register Volume 64, Number 224 (Monday, November 22, 1999)]
[Rules and Regulations]
[Pages 63690-63693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30238]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NJ37-2-203; FRL-6477-3]


Approval and Promulgation of Air Quality Implementation Plans; 
New Jersey; Approval of Carbon Monoxide State Implementation Plan 
Revision; Determination of Carbon Monoxide Attainment; Removal of 
Oxygenated Gasoline Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In today's action, the EPA is finalizing its determination 
that the New York--Northern New Jersey--Long Island carbon monoxide 
nonattainment area has attained the carbon monoxide National Ambient 
Air Quality Standards. As a consequence of this determination, EPA is 
approving a State Implementation Plan revision submitted by the State 
of New Jersey on August 7, 1998. The intended effect of the revision is 
to remove New Jersey's oxygenated gasoline program as a carbon monoxide 
control measure from the State's SIP.

EFFECTIVE DATE: This rule will be effective November 22, 1999.
ADDRESSES: Copies of the state submittal(s) 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, New York 10007-1866.
New Jersey Department of Environmental Protection, Bureau of Air 
Quality Planning, 401 East State Street, CN027, Trenton, New Jersey 
08625.

FOR FURTHER INFORMATION CONTACT: Michael P. Moltzen, Air Programs 
Branch, 290 Broadway, 25th Floor, New York, NY 10007-1866, (212) 637-
3710.

SUPPLEMENTARY INFORMATION: EPA is determining that the New York--
Northern New Jersey--Long Island carbon monoxide (CO) nonattainment 
area 1 has attained the health-related CO National Ambient 
Air Quality Standards (NAAQS). EPA is also determining that New 
Jersey's winter-time oxygenated gasoline (oxyfuel) program is no longer 
needed to ensure that air quality levels remain healthful. As a 
consequence of

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these determinations, EPA is approving a State Implementation Plan 
(SIP) revision submitted by the State of New Jersey on August 7, 1998. 
That revision removes New Jersey's oxyfuel program as a CO control 
measure from the State's CO SIP. It has been determined that the 
program is no longer necessary to keep ambient CO concentrations below 
the CO NAAQS. For detail regarding this determination, the reader is 
referred to the proposal for today's action, published in the September 
9, 1999 Federal Register (64 FR 48970). It should be noted that there 
were no adverse comments associated with the proposed removal of the 
winter-time oxyfuel program.
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    \1\ This area is comprised of counties in Northern New Jersey, 
downstate New York and Southwestern Connecticut. The Connecticut 
portion of the area was redesignated to attainment on March 10, 1999 
at 64 FR 12005. The remainder of the area is still designated 
nonattainment.
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    Additional details regarding the applicability of the oxyfuel 
program in New Jersey, EPA's authority to approve oxyfuel removal from 
a state's SIP, and the further demonstration that oxyfuel removal from 
the New York and Connecticut parts of the area, as well as New Jersey, 
is now technically justifiable and appropriate and will maintain 
healthy CO air quality concentrations, can be found in the proposal for 
this action and a similar proposal on New York's oxyfuel program, 
published in the October 8, 1999 Federal Register (64 FR 54851).

Conclusion

    EPA is taking final action to approve New Jersey's August 7, 1998 
SIP revision to remove the State's oxygenated gasoline program from the 
federally approved SIP. EPA's authority to approve removal of a state's 
oxyfuel program is set forth at Clean Air Act section 211(m)(6). EPA 
has determined that the criteria of section 211(m)(6) have been 
satisfied and removal of the oxyfuel program at this time is 
appropriate.
    EPA is making its approval of today's action effective upon the 
date of publication in the Federal Register, based upon a finding of 
good cause. Approval of this action would give final assurance of fuel 
specification requirements to the industry supplying gasoline to New 
Jersey. Due to the impending oxyfuel program start date of November 1, 
on September 17, 1999, EPA issued ``no enforcement action assurance'' 
for New Jersey until this SIP change was effective, or until the 
scheduled end of the program on February 29, whichever came first. Good 
cause for making this rule effective upon publication is to remove, as 
soon as possible, the need for EPA's commitment not to enforce the 
oxyfuel program in New Jersey. Good cause is also to provide, as soon 
as possible, normal regulatory assurance regarding fuel specifications 
which is desired by industry.

Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Orders on Federalism

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of state, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.
    On August 4, 1999, President Clinton issued a new executive order 
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999)), 
which will take effect on November 2, 1999. In the interim, the current 
Executive Order 12612, (52 FR 41685 (October 30, 1987)), on federalism 
still applies. This rule will not have a substantial direct effect on 
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 12612. 
The rule affects only two states, and does not alter the relationship 
or the distribution of power and responsibilities established in the 
Clean Air Act.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) Concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under section 5-501 of the Order has the potential to 
influence the regulation. This SIP revision is not subject to E.O. 
13045 because it finalizes approval of a state program revision, and it 
is not economically significant under E.O. 12866.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

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E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Act do not create any new 
requirements but simply approve requirements that the State is already 
imposing. Therefore, because the Federal SIP approval does not create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Act, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The Act 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a federal mandate that may result in estimated 
annual costs to state, local, or tribal governments, in the aggregate, 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action does not include a 
federal mandate that may result in estimated annual costs of $100 
million or more to either state, local, or tribal governments in the 
aggregate, or to the private sector. This federal action proposes to 
approve amendments to state or local law, and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 21, 2000. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations.

    Dated: November 8, 1999.
William J. Muszynski,
Acting Regional Administrator, Region 2.

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

PART 52--[AMENDED]

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

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

Subpart FF--New Jersey

    2. Section 52.1570 is amended by adding new paragraph (c)(68) to 
read as follows:


Sec. 52.1570  Identification of plan.

* * * * *
    (c) * * *
    (68) Revisions to the New Jersey State Implementation Plan (SIP) 
for carbon monoxide concerning the oxyfuel program, dated August 7, 
1998, submitted by the New Jersey State Department of Environmental 
Protection (NJDEP).
    (i) Incorporation by reference:
    Amendments to Title 7, Chapter 27 of the New Jersey Administrative 
Code Subchapter 25, ``Control and Prohibition of Air Pollution by 
Vehicular Fuels,'' effective August 17, 1998 (as limited in section 
52.1605).
    3. Section 52.1605 is amended by revising the entry for Subchapter 
25 under the heading Title 7, Chapter 27, to read as follows:


Sec. 52.1605  EPA--approved New Jersey regulations.

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          State regulation                State effective date         EPA approved date          Comments
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*                  *                  *                  *                  *                  *
                                                        *
Title 7, Chapter 27
 
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                                                        *
    Subchapter 25, ``Control and      August 17, 1998.............  November 22, 1999 and
     Prohibition of Air Pollution by                                 Federal Register.
     Vehicular Fuels;''.
 
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[FR Doc. 99-30238 Filed 11-19-99; 8:45 am]
BILLING CODE 6560-50-P