[Federal Register Volume 65, Number 76 (Wednesday, April 19, 2000)]
[Rules and Regulations]
[Pages 20909-20911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9543]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY41-210; FRL-6572-9]


Approval and Promulgation of Air Quality Implementation Plans; 
New York; Approval of Carbon Monoxide State Implementation Plan 
Revision; Removal of the Oxygenated Gasoline Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving a State Implementation Plan (SIP) 
revision submitted by the State of New York on August 30, 1999. That 
revision removes New York's oxygenated gasoline program as a carbon 
monoxide control measure from the State's SIP. EPA is approving that 
revision because EPA has also determined that the New York--Northern 
New Jersey--Long Island carbon monoxide nonattainment area has attained 
the carbon monoxide National Ambient Air Quality Standards.

EFFECTIVE DATE: This rule will be effective May 19, 2000.

ADDRESSES: Copies of the state submittal 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 York State Department of Environmental Conservation, 50 Wolf Road, 
Albany, New York 12233

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 York's 
winter-time oxygenated gasoline (oxyfuel) program is no longer needed 
to ensure that air quality levels remain healthful. As a consequence of 
these determinations, EPA is approving a State Implementation Plan 
(SIP) revision submitted by the State of New York on August 30, 1999. 
That revision removes New York'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 additional detail regarding this determination, the 
reader is referred to the proposal for today's action, published in the 
October 8, 1999 Federal Register (64 FR 54851). Additional detail 
regarding that determination can also be found in EPA's proposed and 
final rules removing oxyfuel in New Jersey, which are published in the 
September 9, 1999 Federal Register (64 FR 48970) and the November 22, 
1999 Federal Register (64 FR 63690), respectively. In addition, EPA's 
direct final action approving the removal of the oxyfuel program in 
Connecticut can be found in the December 1, 1999 Federal Register (64 
FR 67188). It should be noted that there were no adverse comments 
associated with the proposed removal of the winter-time oxyfuel program 
in New York State.
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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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    EPA intends to propose action on the remainder of New York's August 
30, 1999 CO SIP revision in a separate notice which will be published 
in the Federal Register shortly. Neither New

[[Page 20910]]

York's redesignation request nor any of the other elements in that 
submittal are directly related to, or required for, the action EPA is 
finalizing today.

Conclusion

    EPA is finalizing a rulemaking to approve New York's August 30, 
1999 SIP revision to remove the State's oxygenated gasoline program 
from the federally-approved SIP. Therefore, sections of New York's 
regulation Part 225-3, ``Fuel Composition and Use--Gasoline'', 
specifically those that provide for the oxyfuel program, are removed 
from the SIP. See Sec. 52.1670 Identification of Plan, in the 
regulations section of this notice, for further detail on the sections 
of New York's Part 225-3 which pertain to the oxyfuel program and which 
are removed from the State's CO 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.

Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 13132

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by state and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts state law unless the 
Agency consults with state and local officials early in the process of 
developing the proposed regulation. 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, 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 Clean Air Act.
    Thus, the requirements of section 6 of the Executive Order do not 
apply to this rule.

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 
Executive Order 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. This rule is not subject to 
Executive Order 13045 because it does not involve decisions intended to 
mitigate environmental health or safety risks.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects 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 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.

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 final 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 Clean Air 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 Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air 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

[[Page 20911]]

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 promulgated 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 approves 
changes to the SIP 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. 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 June 19, 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: March 23, 2000.
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 HH--New York

    2. Section 52.1670 is amended by adding new paragraph (c)(96) to 
read as follows:


Sec. 52.1670  Identification of plan.

* * * * *
    (c) * * *
* * * * *
    (96) Revisions to the New York State Implementation Plan (SIP) for 
carbon monoxide concerning the oxyfuel program, dated August 30, 1999, 
submitted by the New York State Department of Environmental 
Conservation (NYSDEC).
    3. The table in Sec. 52.1679 is amended by removing the existing 
entry for Subpart 225-3, ``Fuel Composition and Use--Gasoline,'' and 
adding a new entry for Subpart 225-3 in numerical order to read as 
follows:


Sec. 52.1679  EPA--approved New York State regulations.

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                                         State
           State regulation            effective          EPA approved date                   Comments
                                          date
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*                  *                  *                  *                  *                  *
                                                        *
Part 225-3, ``Fuel Composition and        9/2/93  [4/19/00 and citation of this     This action removes the
 Use--Gasoline;'' sections 225-3.1,                document].                        following sections of Part
 225-3.2, 225-3.3, 225-3.6, 225-3.8,                                                 225-3, which pertain to the
 225-3.10.                                                                           oxygenated gasoline
                                                                                     program, from the State's
                                                                                     CO SIP: sections 225-3.4,
                                                                                     225-3.5, 225-3.7, 225-3.9.
                                                                                     The Variance adopted by the
                                                                                     State pursuant to section
                                                                                     225-3.8 becomes applicable
                                                                                     only if approved by EPA as
                                                                                     a SIP revision.
*                  *                  *                  *                  *                  *
                                                        *
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[FR Doc. 00-9543 Filed 4-18-00; 8:45 am]
BILLING CODE 6560-50-P