[Federal Register Volume 66, Number 169 (Thursday, August 30, 2001)]
[Proposed Rules]
[Pages 45806-45811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21933]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY51-225; FRL-7047-3]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; State of New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: On November 23, 1999, the New York State Department of 
Environmental Conservation (NYSDEC) submitted a request to EPA to 
redesignate the New York portion of the New York-Northern New Jersey-
Long Island Carbon Monoxide (CO) nonattainment area from nonattainment 
to attainment of the National Ambient Quality Standard (NAAQS) for CO. 
In today's action, EPA is proposing to approve this request from the 
State of New York because it meets the redesignation requirements set 
forth in the Clean Air Act. In addition, EPA is proposing to approve 
the New York CO maintenance plan because it provides for continued 
maintenance of the CO NAAQS.
    EPA is also proposing to approve the New York CO attainment 
demonstration that was submitted by NYSDEC on November 15, 1992. This 
would provide for full approval of the New York State Implementation 
Plan (SIP) for CO.
    Finally, EPA is proposing approval of New York's revision of the 
Downtown Brooklyn Master Plan component of the CO attainment 
demonstration. This removes several transportation control measures 
from the SIP that have been demonstrated as no longer necessary to 
attain and maintain the NAAQS for CO. The intended effect of this 
action is to approve a plan that demonstrates that the CO standard has 
been attained and will continue to be attained.

DATES: Comments must be received on or before October 1, 2001.

ADDRESSES: Written comments should be addressed to: Raymond Werner, 
Chief, Air Programs Branch, Environmental Protection Agency, Region 2 
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    Copies of the State submittal and EPA's Technical support document 
are available for public inspection during normal business hours, by 
appointment, at the following addresses:
    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, Division 
of Air Resources, 50 Wolf Road, Albany, New York 12233

FOR FURTHER INFORMATION CONTACT: Henry Feingersh, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-4249.

[[Page 45807]]


SUPPLEMENTARY INFORMATION:

Table of Contents

1. What is required by the Clean Air Act and how does it apply to 
New York?
2. What was included in New York's submittal and does it meet the 
Clean Air Act requirements?
3. What are EPA's findings?
4. What are EPA's Conclusions?
5. Administrative requirements

1. What Is Required by the Clean Air Act and How Does It Apply to 
New York?

    Under the Clean Air Act as amended in 1990 (CAA), designations can 
be revised if sufficient data is available to warrant such revisions.
    Section 107(d)(3)(E) of the CAA identifies five specific 
requirements that an area must meet in order to be redesignated from 
nonattainment to attainment.
    a. The area must have attained the applicable NAAQS.
    b. The area must have a fully approved SIP under section 110(k) of 
the CAA.
    c. The air quality improvement must be permanent and enforceable.
    d. The area must have a fully approved maintenance plan pursuant to 
section 175A of the CAA.
    e. The area must meet all applicable requirements under section 110 
and Part D of the CAA.
    The New York portion of the New York-Northern New Jersey-Long 
Island CO nonattainment area is classified as a moderate 2 area (i.e., 
the CO design value of 12.8-16.4 parts per million, or ppm). The entire 
non-attainment area is part of the New York-Northern New Jersey-Long 
Island Consolidated Metropolitan Statistical Area (CMSA). The New York 
portion of the non-attainment area consists of the Counties of Bronx, 
Kings, New York, Queens, Richmond, Nassau, and Westchester (referred to 
in this document as the New York City metropolitan area, or NYCMA). The 
remainder of New York State is in attainment for CO.
    This area was designated nonattainment for CO under the provisions 
of sections 186 and 187 of the CAA. Because the area had a design value 
of 13.5 ppm based on 1988 and 1989 data, the area was classified 
moderate 2. (See 56 FR 56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30, 
1992), codified at 40 CFR 81.333.) This design value was based on 
ambient CO data recorded in Kings County, New York. For moderate 2 CO 
nonattainment areas, the CAA required that air quality attain the 
National Ambient Air Quality Standard (NAAQS) by December 31, 1995. On 
April 24, 1996, the State of New Jersey submitted a request for a one 
year extension of the attainment date to December 31, 1996 as allowed 
for in the CAA. On July 31, 1996 and June 27, 1996, the States of New 
York and Connecticut respectively submitted letters to EPA concurring 
with New Jersey's request. EPA granted the request for a one year 
extension to December 31, 1996 in a November 5, 1996 Federal Register 
document. The three States had applied for this extension since there 
was an exceedance of the CO NAAQS in the CMSA in 1994. This extension 
was granted pursuant to section 186(a)(4).

2. What Was Included in New York's Submittal and Does It Meet the 
Clean Air Act Requirements?

    In an effort to comply with the CAA and to ensure continued 
attainment of the NAAQS, on August 30, 1999, the State of New York 
submitted a CO redesignation request and maintenance plan for the New 
York portion of the CO nonattainment area.
    On March 22, 2000, New York submitted a related SIP revision which 
requested removal of a number of transportation control Measures (TCMs) 
from the SIP because these measures have been demonstrated to no longer 
be necessary to provide for attainment and maintenance of the CO 
standard. This proposed revision is contained in a document entitled 
``Update to the Downtown Brooklyn Master Plan Component of the Carbon 
Monoxide Attainment Demonstration.''
    Public hearings were held on September 7, 1999 for the CO 
redesignation request and on September 9, 1999 for the Downtown 
Brooklyn Master Plan SIP revision.
    New York is requesting the removal of two sets of transportation 
control measures (TCMs). Three of these TCMs were identified in the 
November 15, 1992 CO attainment demonstration and 11 from the Downtown 
Brooklyn Master Plan (DBMP). NYSDEC has provided demonstration 
sufficient to warrant their removal from the SIP.
    While EPA's approval of the November 15, 1992 CO attainment 
demonstration did not include removal of these TCMs, NYSDEC's modeling 
analysis demonstrates attainment of the NAAQS without relying on the 
emissions reductions associated with these TCMs. The proposed CO 
redesignation request demonstrates attainment and maintenance of the CO 
NAAQS without these TCMs, so their removal from the NYCMA CO SIP is 
approvable.
    NYSDEC presents intersection analyses to determine if there is a 
continued need for the 11 unimplemented TCMs from the DBMP. The 
analyses followed the general procedures and methodologies consistent 
with the 1992 NYCMA CO SIP, with the exception of using EPA receptor 
guidance rather than New York City Environmental Quality Review (CEQR) 
and using the CAL3QHCR dispersion model. The Updated DBMP demonstrated 
attainment and maintenance of the CO NAAQS without these TCMs, so their 
removal from the NYCMA CO SIP is approvable.
    The following is a brief description of how the State has fulfilled 
each of the CAA redesignation requirements.

a. The Area Must Have Attained the Applicable NAAOS

    New York's CO monitoring data shows that from calendar year 1992 
through calendar year 1999, no violations of the CO NAAQS have 
occurred. A violation occurs when more than one exceedance of the 
standard occurs at the same CO monitor during a calendar year.
    In addition, in order to demonstrate attainment of the CO NAAQS, 
the data must be quality-assured and not show a violation of the 
standard for the last two consecutive years. New York's CO data has 
been quality assured and shows no more than one exceedance of the NAAQS 
per year over the most recent two complete years of data (1999 and 
2000).
    Therefore, EPA finds that the New York portion of the CMSA has met 
the first statutory criterion for attainment of the CO NAAQS (40 CFR 
50.9 and appendix C).
    Furthermore, air quality data for the remainder of the CMSA shows 
that the entire nonattainment area has met the CO NAAQS from 1995 to 
the present.

b. The Area Must Have a Fully Approved SIP Under Section 110(k) of the 
CAA

    New York's August 30, 1999 CO SIP revision is fully approved by EPA 
as meeting all the requirements of section 110(a)(2)(I) of the CAA, 
including the requirements of Part D (relating to nonattainment), which 
were due prior to the date of New York's redesignation request. The 
1990 CAA required that nonattainment areas meet specific new 
requirements depending on the severity of the nonattainment 
classification. Requirements for New York include an attainment 
demonstration, forecast of vehicle miles traveled, the preparation of a 
1990 emission inventory with periodic updates, the development of 
contingency measures, implementation of an enhanced inspection and

[[Page 45808]]

maintenance (I/M) program, and adherence to the conformity rules.
Previously Approved Requirements
    New York's vehicle miles traveled forecast, emissions inventory, 
and contingency measures were approved on July 25, 1996 (61 FR 38594) 
as part of the New York CO SIP.
    New York's attainment demonstration would have been approved in an 
earlier notice except that it relied on credit from the New York 
enhanced motor vehicle inspection and maintenance (I/M) program. New 
York's analysis demonstrated that all of the modeled intersections 
attained the 8-hour carbon monoxide standard of 9 ppm. Since air 
quality values at the most congested intersections was determined to 
not exceed the standard, New York has demonstrated that the entire area 
will be in attainment for CO. New York used appropriate modeling 
techniques and modeling inputs in its demonstration.
    New York's enhanced I/M program was implemented in November 1997. 
After the State successfully demonstrated how much emissions reduction 
credit the program deserves, EPA published a final approval of the 
enhanced I/M program on May 7, 2001 (66 FR 22922).
    EPA is proposing to approve the attainment demonstration at this 
time.
Conformity
    Section 176 of the CAA contains requirements related to conformity. 
Although EPA's regulations (see 40 CFR 51.390) require that states 
adopt transportation conformity provisions in their SIPs for areas 
designated nonattainment, or that are subject to an EPA approved 
maintenance plan, EPA has decided that a transportation conformity SIP 
is not an applicable requirement for purposes of evaluating a 
redesignation request under section 107(d) of the CAA.
    EPA's decision is based on a combination of two factors. First, the 
requirement to submit SIP revisions to comply with the conformity 
provisions of the CAA continues to apply to areas after redesignation 
to attainment. Therefore, the State remains obligated to adopt the 
transportation conformity rules even after redesignation and would risk 
sanctions for failure to do so. Unlike most requirements of section 110 
and part D, which are linked to the nonattainment status of the area, 
the conformity requirements apply to both nonattainment and maintenance 
areas. Second, EPA's federal conformity rules require performance of 
conformity analyses in the absence of approved state rules. Therefore, 
a delay in approving State rules does not relieve an area from the 
obligation to implement conformity requirements. Specifically, New York 
submitted adopted transportation conformity regulations on August 12, 
1998. However, on March 2, 1999 the U.S. Court of Appeals for the D.C. 
Circuit struck down five provisions of the federal transportation 
conformity regulation (EDF v. EPA, 167 F.3d 641--D.C. Cir. 1999). 
Having preceded the court's decision, New York State includes all five 
of these provisions in its adopted State regulation as presented in 
Table 1.

                                                     Table 1
----------------------------------------------------------------------------------------------------------------
                                                                                   Relevant section of the New
                                                Relevant section of the Federal     York State Transportation
         Description of the provision              Transportation Conformity      Conformity Regulation (6NYCRR
                                                  Regulation (40 CFR Part 93)               Part 240)
----------------------------------------------------------------------------------------------------------------
Allowed emission budgets in submitted SIPs to   93.118(e)(1)...................  240.19(e)(1).
 become adequate for conformity purposes
 either by a letter from EPA making such a
 finding or automatically 45 days after the
 SIP was submitted.
Allowed areas 120 days after disapproval of a   93.120(a)(2)...................  240.21(a)(2).
 submitted control strategy SIP before the
 start of a conformity freeze.
Allowed states to quantify a safety margin      93.124(b)......................  240.25(b).
 based on excess emission reduction from
 stationary or area sources and to incorporate
 this safety margin into the transportation
 conformity budget.
Allowed projects that had completed the NEPA    93.102(c)(1)...................  240.3(c)(1).
 process and had been subject to a conformity
 determination to continue during a lapse.
Allowed non-federally funded projects to        93.121(a)(1)...................  240.22(a)(1).
 continue during a conformity lapse.
----------------------------------------------------------------------------------------------------------------

    Because New York State's transportation conformity regulation 
contains these five provisions, EPA cannot proceed with an approval of 
the State's regulation at this time.
    Nevertheless, areas are subject to the conformity requirements 
regardless of whether they are redesignated to attainment and must 
implement conformity under Federal rules, if State rules are not yet 
approved. Accordingly, EPA believes it is appropriate to evaluate New 
York's redesignation request independent of the status of the State's 
conformity regulation.
Part D New Source Review Requirements
    Consistent with the October 14, 1994 EPA guidance from Mary D. 
Nichols, entitled ``Part D New Source Review (Part D NSR) Requirements 
for Areas Requesting Redesignation to Attainment,'' EPA is not 
requiring full approval of a Part D NSR program by New York as a 
prerequisite to redesignation to attainment. Under this guidance, 
nonattainment areas may be redesignated to attainment notwithstanding 
the lack of a fully approved Part D NSR program so long as the program 
is not relied upon for maintenance. New York has not relied on a NSR 
program to maintain air quality within the CO standard. Moreover, 
because the New York portion of the CO nonattainment area is being 
redesignated to attainment by this action, New York's Prevention of 
Significant Deterioration (PSD) requirements will be applicable to new 
or modified sources of CO.

c. The Air Quality Improvement Must Be Permanent and Enforceable

    New York has implemented a number of measures to control motor 
vehicle CO emissions. Emission reductions achieved through the 
implementation of these control measures are enforceable. These 
measures include the Federal

[[Page 45809]]

Motor Vehicle Control Program, Federal reformulated gasoline 
regulation, and New York's pre-1990 modifications to its inspection and 
maintenance (I/M) program.
    The State of New York has demonstrated that actual enforceable 
emission reductions are responsible for the air quality improvement and 
that the CO emissions in the base year are not artificially low due to 
local economic downturn. EPA finds that the combination of existing 
EPA-approved SIP and federal measures contribute to the permanence and 
enforceability of reduction in ambient CO levels that have allowed New 
York to attain the NAAQS since 1992.

d. The Area Must Have a Fully Approved Maintenance Plan Pursuant to 
Section 175A of the CAA

    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
The plan must demonstrate continued attainment of the applicable NAAQS 
for at least ten years after the Administrator approves a redesignation 
to attainment. Eight years after the redesignation, the state must 
submit a revised maintenance plan which demonstrates attainment for the 
ten years following the initial ten-year period. To provide for the 
possibility of future NAAQS violations, the maintenance plan must 
contain contingency measures, with a schedule for implementation 
adequate to assure prompt correction of any air quality problems. In 
this notice, EPA is approving the State of New York's maintenance plan 
because EPA finds that New York's submittal meets the requirements of 
section 175A.
1996 Attainment Year Inventory
    Section 172(c)(3) and 187(a)(1) of the CAA requires that CO plan 
provisions include a comprehensive, accurate, and current emission 
inventory from all sources of relevant pollutants in the nonattainment 
area. In addition, page 8, section 5a of the September 4, 1992 
memorandum from John Calcagni, former Director, Air Quality Management 
Division, to EPA Regional Air Division Directors entitled ``Procedures 
for Processing Requests to Redesignate Areas to Attainment,'' requires 
States to ``develop an attainment inventory to identify the level of 
emissions in the area which is sufficient to attain the NAAQS. This 
inventory should be consistent with EPA's most recent guidance on 
emission inventories for nonattainment areas available at the time and 
should include emissions during the time period associated with the 
monitoring data showing attainment.''
    On November 23, 1999, New York submitted its CO redesignation 
request and maintenance plan to EPA. On March 22, 2000, New York 
submitted its update to the New York State Implementation Plan for 
Carbon Monoxide, entitled ``Update to the Downtown Brooklyn Master Plan 
Component of the Carbon Monoxide Attainment Demonstration.'' Finally, 
on May 25, 2001, New York submitted its Final Proposed Revision for 
redesignating the New York CO nonattainment area to attainment of the 
CO standard.
    New York included the requisite inventory in the CO SIP. The base 
year for the inventory was 1996, using a three-month CO season of 
December 1996 through February 1997. The inventory covers the seven 
counties in the NYCMA.
    The 1996 emissions inventory is also classified as the attainment 
year inventory for the CO redesignation plan. The calendar year 1996 
inventory can be considered representative of attainment conditions 
because the NAAQS were not violated during 1996. The inventory included 
peak average wintertime daily emissions from stationary point, 
stationary area, off-highway mobile, and highway mobile sources of CO. 
These emission estimates were prepared in accordance with EPA guidance. 
EPA is approving the CO emissions inventory for the entire NYCMA CO 
nonattainment area.
Demonstration of Maintenance-Projected Inventories
    New York estimates that total CO emissions will decrease from 
4,510.7 tons per day in the 1996 base year to 3,539 tons per day in 
2012. Such a reduction in CO emissions clearly supports the State's 
contention that the CO NAAQS will be maintained into the foreseeable 
future. These projected inventories were prepared in accordance with 
EPA guidance. The projections in Table 2 show that future CO emissions 
are expected to be below the level of emissions in the base year after 
the benefits of the Federal Motor Vehicle Control Program, reformulated 
gasoline and pre-1996 basic I/M program are taken into consideration. 
These improvements are expected to occur despite the fact that New York 
took into account the effects of growth due to economic activities and 
population changes on stationary and off-highway sources.

 Table 2.--1996 Base Year and Projected 2000, 2007 and 2012 Carbon Monoxide Emission Inventories With Post-1996
                                                    Controls
                                          [Tons/Peak Winter Season Day]
----------------------------------------------------------------------------------------------------------------
                                   1996 CO emission    2000 projected CO   2007 projected CO   2012 projected CO
  NYCMA nonattainment area by      inventory  (tons   emission inventory  emission inventory  emission inventory
        source category                per day)         (tons per day)      (tons per day)      (tons per day)
----------------------------------------------------------------------------------------------------------------
Point..........................                86.20                  91                  99                 106
Area...........................               699.50                 708                 720                 735
Off-Highway Mobile.............               219                    232                 254                 267
Highway Mobile.................              3506                   2860                2381                2431
                                --------------------------------------------------------------------------------
    Total......................              4510.70                3891                3454                3539
----------------------------------------------------------------------------------------------------------------

Transportation Conformity Budgets
    The submittal included transportation conformity budgets based on 
the control strategies, growth projections and assumptions used in the 
attainment demonstration and maintenance plans for the CO nonattainment 
area. Table 3 presents the 2000, 2007 and 2012 carbon monoxide 
transportation conformity budgets in tons of CO per winter day. These 
budgets are consistent with the State's emission baseline and projected 
inventories for highway mobile sources. EPA announced its findings that 
the budgets are adequate for transportation conformity purposes on 
March 27, 2000 (65 FR 16196). EPA is now proposing to approve these 
budgets.

[[Page 45810]]



       Table 3.--Carbon Monoxide Transportation Conformity Budgets
                         [Tons of CO/winter day]
------------------------------------------------------------------------
                                                            CO  (tons/
                          Year                              winter day)
------------------------------------------------------------------------
2000....................................................            2860
2007....................................................            2381
2012....................................................            2431
------------------------------------------------------------------------

Monitoring Network
    New York has committed to continue to operate its existing air 
monitoring network and quality assurance program in accordance with 40 
CFR part 58 to ensure the development of complete and accurate emission 
inventory and air monitoring data.
Verification of Continued Attainment
    Continued attainment of the CO NAAQS in New York depends, in part, 
on the State's efforts toward tracking indicators of continued 
attainment during the maintenance period. The State has projected CO 
emissions out to 2012 with interim years of 2000 and 2007. The State 
has also committed to track actual vehicle miles traveled (VMT) on an 
annual basis as part of the demonstration that growth above and beyond 
that predicted will not result in a change of attainment determination. 
This tracking process will be used along with the latest EPA emission 
model to ensure that the 1996 baseline attainment emissions are not 
exceeded.
    In addition to tracking changes in VMT, New York will use a process 
based on planned development to identify areas at risk of exceeding the 
CO standard. This process will rely on information collected by the New 
York City Departments of City Planning, the New York City Department of 
Transportation, the New York State Department of Transportation, or 
other agencies that undertake major investment studies associated with 
transportation projects. Additionally, the New York State Department of 
Environmental Conservation is to be informed by New York City of any 
planned commercial developments larger than 300,000 square feet. Any 
project(s) that meets the State's criteria will be considered an area 
at potential risk for violating the CO standard and would be required 
to mitigate any projected violations of the NAAQS.
    Finally, the State previously identified the Long Island City and 
Downtown Brooklyn Business Districts as areas at risk of violating the 
CO standard because in the 1992 attainment demonstration these areas 
showed the potential for future exceedance of the CO standard. However, 
that attainment demonstration did not take credit for the benefits of 
the now implemented enhanced motor vehicle I/M program. With these 
credits, the State has demonstrated that these areas would not exceed 
the CO standard in the future. Accordingly, New York's request to 
remove the DBMP TCMs from the SIP is approved.
    EPA is proposing to approve New York State's plans for verifying 
continued attainment of the CO standard and for identifying areas at 
risk of exceeding the CO standard.
Contingency Plan
    The level of CO emissions in New York will largely determine its 
ability to stay in compliance with the CO NAAQS in the future. Despite 
the State's best efforts to demonstrate continued compliance with the 
NAAQS, it is possible that the ambient air pollutant concentrations 
exceed or violate the NAAQS based upon some unforeseeable condition. In 
order to meet this challenge, the CAA requires states to develop 
contingency measures to offset these conditions. New York has committed 
to use its winter-time Reid Vapor Pressure (RVP) regulation as its 
contingency measure. New York State's Subpart 225-3 ``Fuel Composition 
and Use--Volatile Motor Fuel'' permits the commissioner to set a winter 
RVP level for gasoline if such a level is necessary for air quality 
purposes. This regulation was adopted on June 30, 1993 and was approved 
by EPA in 61 FR 38594 as part of New York's 1992 CO SIP.

e. The Area Must Meet All Applicable Requirements Under Section 110 and 
Part D of the CAA

    In section 2.b. of this document EPA sets forth the basis for its 
conclusion that New York has a fully approved SIP which meets the 
applicable requirements of section 110 and Part D of the CAA. EPA notes 
that section 110 also requires that states include in their SIPs, where 
applicable, oxygenated gasoline programs. The oxygenated fuels program 
was removed from the New York SIP because the entire CMSA, including 
the New York portion, was attaining the CO NAAQS. (See 65 FR 20909 
(April 19, 2000)). Since oxygenated fuel was removed from the SIP 
because it was no longer required, its removal does not pose a problem 
for the redesignation of the New York portion of the CMSA from 
nonattainment to attainment for the CO NAAQS.

3. What Are EPA's Findings?

    EPA has determined that the information received from the NYSDEC 
constitutes complete redesignation requests under the general 
completeness criteria of 40 CFR part 51, appendix V, sections 2.1 and 
2.2.
    Additionally, the New York redesignation request meets the five 
requirements of section 107(d)(3)(E), noted earlier.

4. What Are EPA's Conclusions?

    EPA is proposing to approve New York's request for redesignating 
the New York portion of the New York Northern New Jersey-Long Island CO 
nonattainment area to attainment, because the State has demonstrated 
compliance with the requirements of section 107(d)(3)(E) for 
redesignation. EPA is also proposing to approve the New York CO 
maintenance plan because it meets the requirements set forth in section 
175A of the CAA. In addition, EPA is proposing to approve the New York 
CO attainment demonstration that was submitted on November 15, 1992. 
Finally, EPA is proposing to approve the removal from the SIP of the 3 
TCMs identified in the November 15, 1992 CO attainment demonstration 
and the 11 TCMs from the DBMP.

5. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. This proposed action merely proposes to approve state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. Accordingly, the Administrator 
certifies that this proposed 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). This proposed rule also does not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes,

[[Page 45811]]

as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
nor will it 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 proposes to approve a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This proposed 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 Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
state to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed 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 proposed 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations.

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

    Dated: August 20, 2001.
William J. Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 01-21933 Filed 8-29-01; 8:45 am]
BILLING CODE 6560-01-P