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 Environmental Protection Agency 40 CFR Part 52
[EPA-R02-OAR-2010-0131, FRL-9146-4]
 AGENCY: Environmental Protection Agency (EPA).
 ACTION: Final rule.
 SUMMARY: The EPA is approving a proposed revision to the New York State Implementation Plan (SIP) for ozone concerning the control of volatile organic compounds. The proposed SIP revision consists of amendments to Title 6 of the New York Codes, Rules and Regulations Part 235, “Consumer Products” and Part 239, “Portable Fuel Container Spillage Control.” The intended effect of this action is to approve control strategies, required by the Clean Air Act, which will result in emission reductions that will help achieve attainment of the national ambient air quality standards for ozone.
 DATES: *Effective Date:*
                         This rule will be effective 
                        *June 28, 2010.*
 ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2010-0131. All documents in the docket are listed on the 
                        *http://www.regulations.gov*
                         Web site. Although listed in the index, some information is not publicly available, 
                        *e.g.,*
                         CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through 
                        *http://www.regulations.gov*
                         or in hard copy at the Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, NY 10007-1866. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is 212-637-4249.
 FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber (
                        *wieber.kirk@epa.gov*), Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3381.


SUPPLEMENTARY INFORMATION: Table of Contents I. What is the history and time frame for State Implementation Plan (SIP) submissions? II. What was included in New York's submittals? III. What comments did EPA receive in response to its proposal? IV. What is EPA's conclusion? V. Statutory and Executive Order Reviews I. What is the history and time frame for State Implementation Plan (SIP) submissions? EPA's Phase 1 8-hour ozone implementation rule, published on April 30, 2004 (69 FR 23951), referred to as the Phase 1 Rule, specifies that states must submit attainment demonstrations to EPA by no later than three years from the effective date of designation, that is, submit them by June 15, 2007. On November 9, 2005, EPA published Phase 2 of the 8-hour ozone implementation rule (70 FR 71612), referred to as the Phase 2 Rule, which addressed the control obligations that apply to areas designated nonattainment for the 8-hour national ambient air quality standard. Among other things, the Phase 1 and Phase 2 Rules outline the SIP requirements and deadlines for various requirements in areas designated as moderate nonattainment. For such areas, reasonably available control technology (RACT) plans were due by September 2006 (40 CFR 51.912(a)(2)). The rules further require that modeling and attainment demonstrations, reasonable further progress plans, reasonably available control measure (RACM) analysis, projection year emission inventories, motor vehicle emissions budgets and contingency measures were all due by June 15, 2007 (40 CFR 51.908(a), and (c)). II. What was included in New York's submittals? On October 21, 2009 and November 23, 2009, the New York State Department of Environmental Conservation (NYSDEC), submitted to EPA proposed revisions to the SIP which included State adopted revisions to two regulations which consist of, respectively, Title 6 of the New York Code of Rules and Regulations (6 NYCRR) Part 235, “Consumer Products” with a State effective date of October 15, 2009 and 6 NYCRR Part 239, “Portable Fuel Container Spillage Control” with a State effective date of July 30, 2009. These revisions will provide volatile organic compound (VOC) emission reductions to address, in part, attainment of the 1997 8-hour ozone standard in the New York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area which is composed of the five boroughs of New York City and the surrounding counties of Nassau, Suffolk, Westchester and Rockland. These revisions will also address, in part, the RACT and RACM requirements by providing VOC emission reductions statewide. III. What comments did EPA receive in response to its proposal? On March 2, 2010 (75 FR 9373), EPA proposed to approve the proposed revisions to the New York SIP for ozone concerning the amendments to 6 NYCRR Parts 235 and 239. The reader is referred to that proposal for a more detailed discussion of this action. No comments were received in response to that proposal. IV. What is EPA's conclusion? EPA has evaluated New York's submittal for consistency with the Clean Air Act, EPA regulations, and EPA policy. EPA has determined that the revisions made to Part 235 and Part 239 of Title 6 of the New York Codes, Rules and Regulations, entitled, “Consumer Products” and “Portable Fuel Container Spillage Control,” respectively, meet the 
                    ( print page 29898)
                    SIP revision requirements of the Clean Air Act with the following exceptions. The provisions related to innovative products exemptions in subpart 239-5, variances in subpart 239-7 and alternate test methods in subpart 239-8 do not explicitly require submission of an innovative product exemption, variance or alternative test method to EPA for approval into the SIP. Since the rule does not explicitly state that innovative product exemptions, variances or alternative test methods have to be submitted to EPA for approval in the SIP, there is the possibility that such exemptions, variances and alternatives will not be submitted for review and approval into the SIP and therefore will not, even though approved by the State, become federally enforceable. Failure to submit such exemptions, variances or alternatives to EPA for review and approval can lead to sources not understanding that the original rule still applies and can be enforced by the United States. In order to be federally enforceable, any exemption, variance or alternative test method approved by NYSDEC must be approved by EPA into the SIP. Therefore, EPA is approving the proposed revisions to Part 239, “Portable Fuel Container Spillage Control” with a State effective date of July 30, 2009, as part of the New York SIP with the understanding that the specific application of provisions associated with innovative product exemptions, variances, and alternate test methods, pursuant to Part 239, must be submitted to EPA as SIP revisions. EPA is also approving the proposed revisions to Part 235, “Consumer Products” with a State effective date of October 15, 2009, as part of the New York SIP. V. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: Is not a “significant regulatory action” subject to review by the Office of Management and Budget underExecutive Order 12866 (58 FR 51735, October 4, 1993);
                Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 
                    *et seq.*);
                Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 
                    *et seq.*);
                Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
                Does not have Federalism implications as specified inExecutive Order 13132 (64 FR 43255, August 10, 1999);
                Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
                Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001);
                Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
                Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, underExecutive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. 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 action 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 action is not a “major rule” as defined by 5 U.S.C. 804(2). 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 July 27, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
Incorporation by reference
Intergovernmental relations
Ozone
Reporting and recordkeeping requirements
Volatile organic compounds
 Dated: April 27, 2010. Judith A. Enck, 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 52.1670 is amended by adding new paragraph (c)(114) to read as follows: § 52.1670
  
 (c) * * * (114) On October 21, 2009 and November 23, 2009, the New York State Department of Environmental Conservation (NYSDEC), submitted to EPA proposed revisions to the SIP concerning control strategies which will result in volatile organic compound emission reductions that will help achieve attainment of the national ambient air quality standards for ozone. (i) Incorporation by reference: (A) Title 6 of the New York Code of Rules and Regulations, Part 235, “Consumer Products,” with an effective date of October 15, 2009 and Part 239, “Portable Fuel Container Spillage Control,” with an effective date of July 30, 2009. (ii) Additional information: (A) Letters dated October 21, 2009 and November 23, 2009 from Assistant Commissioner J. Jared Snyder, NYSDEC, to George Pavlou, Acting Regional 
                            ( print page 29899)
                            Administrator, EPA Region 2, submitting the SIP revision for parts 235 and 239 respectively.
 3.In § 52.1679, the table is amended by revising the entries for Title 6, Part 235 and Part 239 to read as follows: § 52.1679
  New York State regulation
State effective date
Latest EPA approval date
Comments*         *         *         *         *         *         *Part 235, Consumer Products
10/15/09
5/28/10 [Insert FR page citation]*         *         *         *         *         *         *Part 239, Portable Fuel Container Spillage Control
7/30/09
5/28/10 [insert FR page citation]
The specific application of provisions associated with alternate test methods, variances and innovative products, must be submitted to EPA as SIP revisions.*         *         *         *         *         *         *


[FR Doc. 2010-12917 Filed 5-27-10; 8:45 am] BILLING CODE 6560-50-P