21546 Federal Register / Vol. 73, No. 78 / Tuesday, April 22, 2008 / Rules and Regulations 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES—Continued 

State citation 

(9 VAC 5) Title/subject State effective date EPA approval date Explanation [former SIP citation] 

5–91–700 .................... Calibration of exhaust gas analyzers ..................... 10/1/02 4/22/08 [Insert page 

number where the 

document begins].

5–91–710 .................... Upgrade of analyzer system ................................... 10/1/02 4/22/08 [Insert page 

number where the 

document begins].

Part XI Manufacturer Recall 

5–91–720 .................... Vehicle manufacturers recall .................................. 10/1/02 4/22/08 [Insert page 

number where the 

document begins].

* * * * * * * 

Part XII On-road Testing 

5–91–740 .................... General requirements ............................................. 6/29/05 4/22/08 [Insert page 

number where the 

document begins].

5–91–750 .................... Operating procedures; violation of standards ......... 6/29/05 4/22/08 [Insert page 

number where the 

document begins].

5–91–760 .................... Schedule of civil charges ........................................ 6/29/05 4/22/08 [Insert page 

number where the 

document begins].

Part XIV ASM Exhaust Emission Standards 

5–91–790 .................... ASM start-up standards .......................................... 10/1/02 4/22/08 [Insert page 

number where the 

document begins].

5–91–800 .................... ASM final standards ................................................ 10/1/02 4/22/08 [Insert page 

number where the 

document begins].

* * * * * * * 

* * * * * 

[FR Doc. E8–8394 Filed 4–21–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[Docket No. EPA–R02–OAR–2008–0011, 

FRL–8554–8] 

Approval and Promulgation of 

Implementation Plans; New York 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; technical 

amendment. 

SUMMARY: The Environmental Protection 

Agency (EPA) is promulgating an 

amendment to its rulemaking action 

taken on November 27, 1998, which 

removed Part 211.2 of Title 6 of the New 

York Code of Rules and Regulations 

(NYCRR) from the State Implementation 

Plan (SIP) for the State of New York. 

Part 211.2 is a general prohibition 

against air pollution. As stated in the 

November 27, 1998 notice, EPA 

intended to remove all such general 

duty provisions from the New York SIP, 

which do not reasonably relate to the 

attainment and maintenance of the 

National Ambient Air Quality Standards 

(NAAQS), and other air quality goals of 

the Clean Air Act. General duty 

provisions in Title 6 of the NYCRR 

include those pertaining to nuisance 

odors. In this action, EPA is amending 

its previous rulemaking to include a 

mistakenly omitted citation to Part 

200.1(d) of Title 6 of the NYCRR. Part 

200.1(d) provides the definition of ‘‘air 

contaminant or air pollutant,’’ which 

includes the word ‘‘odor.’’ It has 

recently been brought to EPA’s attention 

that the word ‘‘odor’’ in the definition 

of ‘‘air contaminant or air pollutant’’

was erroneously retained in the SIP. By 

amending the previous rulemaking, EPA 

is removing the word ‘‘odor’’ from the 

federally-approved definition of ‘‘air 

contaminant or air pollutant,’’ because 

the definition as currently written, in 

part, does not have a reasonable 

connection to the NAAQS and related 

air quality goals of the Clean Air Act. 

The intended effect of this amendment 

is to make the previous rulemaking on 

New York SIP submittals for national 

primary and secondary ambient air 

quality standards consistent with the 

requirements of the Clean Air Act. 

DATES: This correction is effective on 

April 22, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Steven Riva, Air Programs Branch, 

Environmental Protection Agency, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866, (212) 637–4074. 

SUPPLEMENTARY INFORMATION: 

I. Amendment to SIP Correction Action 

On November 27, 1998 (63 FR 65557), 

EPA published notice of a direct final 

rulemaking action under section 

110(k)(6) of the Clean Air Act, as 

amended, 42 U.S.C. 7401 et seq. (the 

Act), to correct the federally-approved 

New York State Implementation Plan 

(SIP). This notice took effect on January 

26, 1999, after a 60 day public comment 

period in which EPA received no 


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Federal Register / Vol. 73, No. 78 / Tuesday, April 22, 2008 / Rules and Regulations 21547 

comments on the rule. The intended 

effect of that rulemaking was to remove 

all general duty provisions from the SIP, 

which EPA determined were 

erroneously approved because those 

provisions do not have a reasonable 

connection to the national ambient air 

quality standards (NAAQS) such that 

EPA could rely on them as NAAQS 

attainment and maintenance strategies. 

Accordingly, the November 27, 1998 

rulemaking removed Part 211.2 of Title 

6 of the New York Code of Rules and 

Regulations (NYCRR) from the SIP. Part 

211.2 is a general prohibition against air 

pollution. General duty provisions in 

Title 6 of the NYCRR include those 

pertaining to nuisance odors. It has 

recently been brought to EPA’s attention 

that Part 200.1(d) of Title 6 of the 

NYCRR contains an odor provision that 

was erroneously omitted from EPA’s 

prior action to remove such provisions 

from the SIP. Moreover, EPA has 

determined that the Act does not 

provide EPA with any specific authority 

to regulate odor. Therefore, EPA’s prior 

SIP correction notice is now being 

amended to include the omitted odor 

provision, so that all odor provisions are 

effectively removed from the SIP, 

consistent with the purpose of the Act 

and as originally intended by EPA. 

EPA has determined that today’s 

action falls under the ‘‘good cause’’

exemption in section 553(b)(3)(B) of the 

Administrative Procedure Act (APA) 

which, upon finding ‘‘good cause,’’

authorizes agencies to dispense with 

public participation where public notice 

and comment procedures are 

‘‘impracticable, unnecessary or contrary 

to the public interest.’’ EPA has 

determined that public notice and 

comment for today’s action is 

unnecessary because the intended result 

of EPA’s November 27, 1998 

rulemaking, which is encompassed by 

today’s action, has previously been 

subject to a 60-day public notice and 

comment period, during which EPA did 

not receive any comments. Today’s 

action merely amends the prior 

rulemaking to include a mistakenly 

omitted citation, ensuring that EPA’s 

publicly noticed intention to remove all 

general duty provisions from the SIP is 

realized. In addition, EPA has 

determined that public notice and 

comment is unnecessary because, in 

light of the fact that EPA lacks any 

specific authority to regulate odor under 

the Act, no comments EPA might 

receive would result in any change in 

the outcome of today’s action. 

EPA also finds that there is good 

cause under APA section 553(d)(3) for 

this amendment to become effective on 

the date of publication of this action. 

Section 553(d)(3) of the APA allows an 

effective date less than 30 days after 

publication ‘‘as otherwise provided by 

the agency for good cause found and 

published with the rule.’’ 5 U.S.C. 

553(d)(3). The purpose of the 30-day 

waiting period prescribed in APA 

section 553(d)(3) is, among other things, 

to give affected parties a reasonable time 

to adjust their behavior and prepare 

before the final rule takes effect. Today’s 

rule, however, does not create any new 

regulatory requirements such that 

affected parties would need time to 

prepare before the rule takes effect. 

Rather, today’s rule merely corrects an 

error. For these reasons, EPA finds good 

cause under APA section 553(d)(3) for 

this correction to become effective on 

the date of publication of this action. 

II. New York SIP Correction 

On November 27, 1998 (63 FR 65557), 

EPA published a direct final rulemaking 

to remove all general duty provisions 

from the federally-approved New York 

SIP that do not reasonably relate to 

attainment and maintenance of the 

NAAQS, including those pertaining to 

nuisance odors. Specifically, EPA 

removed part 211.2 of Title 6 of the New 

York Code Rules and Regulations 

(NYCRR), entitled ‘‘Air Pollution 

Prohibited,’’ from the federallyapproved New York SIP. Part 211.2 

prohibits, among other things, odors 

that ‘‘unreasonably interfere with the 

comfortable enjoyment of life or 

property.’’ It has recently been brought 

to EPA’s attention that 6 NYCRR Part 

200.1(d) contains an odor provision that 

EPA erroneously did not remove from 

the New York SIP. EPA has determined 

that the definition of ‘‘air contaminant 

or air pollutant’’ at 6 NYCRR 200.1(d), 

as it relates to ‘‘odor,’’ does not have a 

reasonable connection to the NAAQS 

and related air quality goals of the Clean 

Air Act (Act) and is not properly part of 

the SIP. 

EPA last approved 6 NYCRR 200.1(d) 

as part of the New York SIP on May 22, 

2001. Part 200.1(d) provides the 

definition of ‘‘air contaminant or air 

pollutant,’’ which is defined as ‘‘A 

chemical, dust, compound, fume, gas, 

mist, odor, smoke, vapor, pollen, or any 

combination thereof.’’ Such a definition, 

as it specifically relates to ‘‘odor,’’ is not 

designed to control or impact NAAQS 

pollutants such that EPA could rely on 

it as a NAAQS attainment and 

maintenance strategy. After it came to 

the attention of EPA that the definition 

of ‘‘air contaminant or air pollutant’’

contained in Part 200.1(d) was not 

properly removed from the federallyapproved New York SIP, EPA in turn 

brought the matter to the attention of the 

New York State Department of 

Environmental Conservation (NYSDEC). 

In a February 6, 2008 e-mail from 

NYSDEC to EPA, NYSDEC confirmed 

EPA’s understanding that the definition 

as it relates to odor was not properly 

removed from the federally-approved 

New York SIP in the November 27, 1998 

EPA rulemaking action. 

EPA is now amending the November 

27, 1998 SIP action. That action was 

done pursuant to section 110(k)(6) of the 

Act, to correct the New York SIP by 

removing general duty provision part 

211.2 from the SIP, which includes a 

provision pertaining to odor. In today’s 

action, EPA is reaffirming that such 

general duty provisions are not 

reasonably related to the NAAQS or 

other air quality goals of the Act, and 

were erroneously approved into the SIP. 

In addition, EPA has determined that it 

lacks any specific authority to regulate 

odor under the Act. Section 110(k)(6) of 

the amended Act provides: ‘‘Whenever 

the Administrator determines that the 

Administrator’s action approving, 

disapproving, or promulgating any plan 

or plan revision (or part thereof), area 

designation, redesignation, 

classification or reclassification was in 

error, the Administrator may in the 

same manner as the approval, 

disapproval, or promulgation revise any 

such action as appropriate without 

requiring any further submission from 

the State. Such determination and the 

basis thereof shall be provided to the 

State and the public.’’ It should be noted 

that section 110(k)(6) has also been used 

by EPA to delete an improperly 

approved odor provision from the 

Wyoming SIP. 61 FR 47058 (1996). 

Since the State of New York’s Part 

200.1(d) definition of ‘‘air contaminant 

or air pollutant’’ has no reasonable 

connection to the NAAQS-related air 

quality goals of the Act as it specifically 

relates to ‘‘odor,’’ EPA is amending its 

original action to include the removal of 

the word ‘‘odor’’ from the federallyapproved definition. This amendment’s 

effect is to complete the intended 

removal of all general duty provisions 

from the New York SIP, specifically 

those pertaining to odor. 

Nothing in this action should be 

construed as establishing a precedent 

for any future action related to 

corrections or revisions of SIPs. Each 

SIP correction or revision shall be 

considered separately in light of specific 

technical, economic and environmental 

factors, and in relation to relevant 

statutory and regulatory requirements. 

III. Summary of EPA’s Action 

EPA is taking action to amend its 

November 27, 1998 (63 FR 65557) 


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21548 Federal Register / Vol. 73, No. 78 / Tuesday, April 22, 2008 / Rules and Regulations 

rulemaking action to correct the 

federally-approved New York SIP. 

Specifically, this action has the effect of 

removing the word ‘‘odor’’ from the 

definition of ‘‘air contaminant or air 

pollutant’’ at 6 NYCRR Part 200.1(d), so 

that ‘‘odor’’ is no longer part of the 

federally-approved New York SIP. 

IV. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

is therefore not subject to review by the 

Office of Management and Budget. In 

addition, this action does not impose 

any enforceable duty or contain any 

unfunded mandate as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4), or require prior 

consultation with State officials as 

specified by Executive Order 12875 (58 

FR 58093, October 28, 1993), or involve 

special consideration of environmental 

justice related issues as required by 

Executive Order 12898 (59 FR 7629, 

February 16, 1994). Because this action 

is not subject to notice-and-comment 

requirements under the Administrative 

Procedure Act or any other statute, it is 

not subject to the provisions of the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

This rule also does not have tribal 

implications because it will 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, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does 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). This action merely 

corrects an error, it does not impose any 

new requirements on sources or allow a 

state to avoid adopting or implementing 

other requirements, and does not alter 

the relationship or the distribution of 

power and responsibilities established 

in the Act. This rule also is not subject 

to Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant and because 

the Agency does not have reason to 

believe that the rule concerns an 

environmental health risk or safety risk 

that may disproportionately affect 

children. 

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 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. 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.). 

Under 5 U.S.C. 801(a)(1)(A) as added 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, EPA 

submitted 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 General Accounting 

Office prior to publication of this rule in 

today’s Federal Register. This rule is 

not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(2). 

Under section 307(b)(1) of the Act, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by June 23, 2008. 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) of the Act.) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Hydrocarbons, Incorporation by 

reference, Intergovernmental relations, 

Oxides of Nitrogen, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: April 4, 2008. 

Alan J. Steinberg, 

Regional Administrator, Region 2. 

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 52.1679, is amended by 

revising the entry for part 200 to read as 

follows: 

§ 52.1679 EPA-approved New York State 

regulations. 

New York State regulation State effective 

date 

Latest EPA approval 

date Comments 

Title 6: 

* * * * * * * 

Part 200, General Provisions Sections 200.1, 

200.6, 200.7 and 200.9.

2/25/00 4/22/08. [FR page citation].The word odor is removed from the Subpart 

200.1(d) definition of ‘‘air contaminant or air 

pollutant’’. 

Redesignation of non-attainment areas to attainment areas (200.1(av)) does not relieve a 

source from compliance with previously applicable requirements as per letter of Nov. 13, 

1981 from H. Hovey, NYSDEC. 

Changes in definitions are acceptable to EPA 

unless a previously approved definition is necessary for implementation of an existing SIP 

regulation. 


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Federal Register / Vol. 73, No. 78 / Tuesday, April 22, 2008 / Rules and Regulations 21549 

New York State regulation State effective 

date 

Latest EPA approval 

date Comments 

EPA is including the definition of ‘‘federally enforceable’’ with the understanding that (1) the 

definition applies to provisions of a Title V permit that are correctly identified as federally enforceable, and (2) a source accepts operating 

limits and conditions to lower its potential to 

emit to become a minor source, not to ‘‘avoid’’

applicable requirements. 

EPA is approving incorporation by reference of 

those documents that are not already federally 

enforceable. 

* * * * * * * 

[FR Doc. E8–8657 Filed 4–21–08; 8:45 am] 

BILLING CODE 6560–50–P 

NATIONAL SCIENCE FOUNDATION 

45 CFR Part 615 

RIN 3145–AA49 

Testimony and Production of Records 

AGENCY: National Science Foundation. 

ACTION: Final rule. 

SUMMARY: The National Science 

Foundation (NSF) is amending part 615 

on testimony and the production of 

records in title 45 of the Code of Federal 

Regulations (CFR). This technical 

amendment clarifies that, in connection 

with a legal proceeding between private 

litigants, NSF’s Inspector General has 

the same discretion to permit an Office 

of Inspector General (OIG) employee to 

testify or produce official records and 

information in response to a request as 

NSF’s General Counsel has when such 

a request is made to any other NSF 

employee. This final rule is an 

administrative simplification that makes 

no substantive change in NSF policy or 

procedures for providing testimony or 

producing official records and 

information in connection with a legal 

proceeding. 

DATES: Effective Date: April 22, 2008. 

FOR FURTHER INFORMATION CONTACT: Eric 

S. Gold, Assistant General Counsel, 

Office of the General Counsel, National 

Science Foundation, telephone (703) 

292–8060 and e-mail egold@nsf.gov. 

SUPPLEMENTARY INFORMATION: NSF 

promulgated part 615 of title 45 of the 

Code of Federal Regulations, entitled, 

‘‘Testimony and Production of 

Records,’’ to establish policies and 

procedures to be followed when a 

request is made of an NSF employee to 

provide testimony or produce official 

records and information in connection 

with a legal proceeding. The provisions 

of this part are intended to: (1) Promote 

economy and efficiency in NSF’s 

operations; (2) minimize the possibility 

of involving NSF in controversial issues 

not related to its functions; (3) maintain 

the impartiality of NSF among private 

litigants; and (4) protect sensitive, 

confidential information and the 

deliberative process. 

To this end, in any legal proceeding 

between private litigants, an NSF 

employee (other than an OIG employee) 

is precluded from giving testimony or 

producing official records or 

information in response to a formal 

demand or informal request unless 

NSF’s General Counsel authorizes him 

or her to do so. The current regulation 

is silent on what authority, if any, the 

Inspector General has when information 

or testimony is sought from an OIG 

employee via a request. To dispel any 

confusion, NSF is amending its 

regulation to clarify that the Inspector 

General has the discretion to approve 

the production of official information, 

as well as the giving of testimony, in 

response to both a formal demand and 

an informal request made to an OIG 

employee. 

Executive Order 12866 

OMB has determined this rule to be 

nonsignificant. 

Regulatory Flexibility Act of 1980 (5 

U.S.C. 605(b)) 

This proposed regulatory action will 

not have a significant adverse impact on 

a substantial number of small entities. 

Unfunded Mandates Act of 1995 (Sec. 

202, Pub. L. 104–4) 

This proposed regulatory action does 

not contain a Federal mandate that will 

result in the expenditure by State, local, 

and tribal governments, in aggregate, or 

by the private sector of $100 million or 

more in any one year. 

Paperwork Reduction Act of 1995 (44 

U.S.C., Chapter 35) 

This regulatory action will not impose 

any additional reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act. 

Federalism (Executive Order 13132) 

This proposed regulatory action does 

not have Federalism implications, as set 

forth in Executive Order 13132. It 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. 

List of Subjects in 45 CFR Part 615 

Testimony and production of records. 

■ Accordingly, under the authority of 42 

U.S.C. 1870, NSF amends the Code of 

Federal Regulations, Title 45, Chapter 

VI, as follows: 

Title 45—Public Welfare—Chapter VI—

National Science Foundation 

PART 615—[AMENDED] 

■ 1. The authority citation for part 615 

continues to read as follows: 

Authority: 42 U.S.C. 1870(a). 

■ 2. Section 615.7 is revised to read as 

follows: 

§ 615.7 Legal proceedings between private 

litigants: Office of Inspector General 

employees. 

Notwithstanding the requirements set 

forth in §§ 615.1 through 615.6, when an 

employee of the Office of Inspector 

General is issued a demand or receives 

a request to provide testimony or 

produce official records and 

information, the Inspector General or 

his or her designee shall be responsible 

for performing the functions assigned to 

the General Counsel with respect to 

such demand or request pursuant to the 

provisions of this part. 


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