02-9493. 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:

Final 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. By this action, EPA is approving the NYSDEC's request to redesignate the New York portion of the New York—Northern New Jersey—Long Island CO nonattainment area to attainment of the NAAQS for CO.

EPA is approving the New York request because it meets the redesignation requirements set forth in the Clean Air Act (CAA). In addition, EPA is approving New York's CO maintenance plan because it provides for continued attainment of the CO NAAQS.

EPA is also approving the New York CO attainment demonstration that was submitted by NYSDEC on November 15, 1992. This action provides for full approval of the New York State Implementation Plan (SIP) 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.

In a related matter, EPA is approving New York's March 22, 2000 submittal 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.

Finally, EPA is using today's action as an opportunity to establish a Carbon Monoxide section in the Code of Federal Regulations (CFR) Subpart for the New York SIP. This is an administrative change designed to make the CFR more clear to the reader.

EFFECTIVE DATE:

This action will be effective May 20, 2002.

ADDRESSES:

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

Environmental Protection Agency, Region II Office, Air Programs Branch, 290 Broadway, 20th Floor, New York, New York 10007-1866 New York 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, 290 Broadway, New York, New York 10007-1866, [phone]

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background

2. Public Comments

3. New Code of Federal Regulations (CFR) Section

4. Conclusion

5. Administrative Requirements

1. Background

The New York portion of the New York—Northern New Jersey—Long Island CO nonattainment area is classified as a moderate 2 area (an area that has a design value of 12.8—16.4 parts per million (ppm)). This area, which is part of the New York—Northern New Jersey—Long Island Consolidated Metropolitan Statistical Area (CMSA), includes the Counties of Bronx, Kings, New York, Queens, Richmond, Nassau, and Westchester. 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. The area was classified moderate 2 because it had a design value of 13.5 ppm based on 1988 and 1989 data. (See 56 FR 56694 (November 6, 1991) and 57 FR 56762 (November 30, 1992), codified at 40 CFR part 81, § 81.333.) This design value was based on ambient CO data recorded in Kings County, New York.

On September 21, 1990, New York submitted a revision to the New York SIP to attain the CO air quality standard in the Brooklyn portion of the New York City metropolitan area (Downtown Brooklyn Master Plan). On November 13, 1992, New York submitted to EPA proposed revisions to its CO SIP that addressed each of the requirements for a moderate CO nonattainment area. Finally, on March 21, 1994, New York submitted to EPA additional information pertaining to its CO SIP. On September 15, 1995 (60 FR 47911), EPA proposed approval of these three submittals and on July 26, 1996 (61 FR 38594) EPA finalized those approvals. EPA did not act upon New York's CO attainment demonstration in those actions because it relied on emission reductions from the enhanced inspection and maintenance program which was not approved at that time.

On November 23, 1999, the State of New York submitted a CO redesignation request and a maintenance plan for the New York portion of the New York—Northern New Jersey—Long Island CMSA. This submittal contained evidence that public hearings were held on September 7, 1999 for the CO redesignation request including a maintenance plan and on September 9, 1999 for the Downtown Brooklyn Master Plan. The State submitted the final Downtown Brooklyn Master Plan SIP revision on March 22, 2000.

On May 7, 2001, (66 FR 22922), EPA approved the New York Inspection and Maintenance program, thereby, removing the last obstacle to approval of the CO attainment demonstration. With an approvable attainment demonstration, EPA also could take actions on the State's redesignation request. Accordingly, EPA proposed approval of the State's redesignation request on August 30, 2001 (66 FR 45806). The reader is referred to the proposal for a detailed discussion of EPA's action. The comment period was originally October 1, 2001 but was later extended to November 15, 2001 because of disruptions in communications related to the events of September 11, 2001.

2. Public Comments

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

3. New Code of Federal Regulations (CFR) Section

EPA is using this action as an opportunity to add a new section to 40 CFR Part 52 entitled “Control strategy: Carbon Monoxide” to clearly identify the State's CO implementation plan and attainment status. This is an administrative change designed to display this action as well as previous CFR entries pertaining exclusively to CO in New York in a more clear and accessible format. Future CFR entries pertaining to CO in New York State will also be included in this section.

This section will now include a summary of the September 29, 1993 (58 FR 50851) EPA approval of a CO redesignation request and maintenance plan for Onondaga County. The details of this approval can be found in 40 CFR 52.1670(c)(86). In addition, today's rulemaking on the New York metropolitan area CO SIP will be incorporated into the new section. Any future actions pertaining specifically to the New York CO SIP will also be included here.

4. Conclusion

EPA has evaluated New York's submittals for consistency with the CAA and Agency regulations and policy. EPA is approving New York's 1992 CO attainment demonstration along with the required control measures because it demonstrates attainment of the CO standard and meets CAA requirements. EPA is approving New York's CO maintenance plan because it meets the requirements set forth in section 175A of the CAA. In addition, the Agency is approving the request for redesignating the New York portion of the New York—Northern New Jersey—Long Island CO nonattainment area to attainment, because New York State has demonstrated compliance with the requirements of section 107(d)(3)(E) for redesignation. Additionally, EPA is approving the update to the Downtown Brooklyn Master Plan dated March 22, 2000. Finally, EPA is establishing a new section of the CFR to present the New York CO SIP.

5. 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. 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). This rule will be effective May 20, 2002.

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 June 18, 2002. 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

40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Intergovernmental relations
• Reporting and recordkeeping requirements

40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

Dated: April 2, 2002.

Jane M. Kenny,

Regional Administrator, Region 2.

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 52.1682 is added to read as follows:

§ 52.1682

Control strategy: Carbon monoxide.

(a) Approval—The November 13, 1992 revision to the carbon monoxide state implementation plan for Onondaga County. This revision included a maintenance plan which demonstrated continued attainment of the National Ambient Air Quality Standard for carbon monoxide through the year 2003.

(b) Approval—The November 13, 1992 and March 21, 1994 revisions to the carbon monoxide state implementation plan for the New York portion of the New York—Northern New Jersey—Long Island Carbon Monoxide nonattainment area. This included an attainment demonstration and the control measures needed to attain the National Ambient Air Quality Standard for carbon monoxide. In addition, the September 21, 1990 Downtown Brooklyn Master Plan and revision dated March 22, 2000 is a component of the carbon monoxide attainment plan. The November 23, 1999, request to redesignate the New York portion of the New York—Northern New Jersey—Long Island Carbon Monoxide nonattainment area from nonattainment to attainment of the National Ambient Air Quality Standard for carbon monoxide. As part of the redesignation request, the State submitted a maintenance plan which demonstrated continued attainment of the National Ambient Air Quality Standard for carbon monoxide through the year 2012.

PART 81—[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

Subpart C—Section 107 Attainment Status Designations

2. In § 81.333, the table for “New York—Carbon monoxide” is amended by revising the entry for “New York—N. New Jersey—Long Island Area:” to read as follows:

§ 81.333

New York.

* * * * *

New York—Carbon Monoxide

Designated area	Designation		Classification
	Date1	Type	Date1	Type
New York-N. New Jersey-Long Island Area: Bronx County Kings County Nassau County New York County Queens County Richmond County Westchester County	5/20/02	Attainment
*         *         *         *         *         *         *
1 This date is November 15, 1990, unless otherwise noted.

* * * * *