[Federal Register Volume 84, Number 63 (Tuesday, April 2, 2019)]
[Rules and Regulations]
[Pages 12511-12513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06294]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2017-0094; FRL-9991-50-Region 2]


Approval and Promulgation of Implementation Plans: New York Ozone 
Section 185

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency is finalizing approval of 
the State of New York's Low Emissions Vehicle program as an alternative 
program to fulfill the Clean Air Act section 185 requirement for the 
New York portion of the New York-Northern New Jersey-Long Island, NY-
NJ-CT nonattainment area for the revoked 1979 1-hour ozone National 
Ambient Air Quality Standard. Clean Air Act section 185 requires fees 
to be paid by major sources located in ozone nonattainment areas 
classified as Severe or Extreme that have failed to attain the National 
Ambient Air Quality Standard by the required attainment date. The State 
of New York's Low Emissions Vehicle program is being approved as an 
alternate program because the reductions achieved by the program are at 
least equivalent to the reductions associated with the Clean Air Act 
section 185 fee program required for the New York portion of the NY-NJ-
CT nonattainment area.

DATES: This rule is effective on May 2, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R02-OAR-2017-0094. All documents in the docket are 
listed on the www.regulations.gov website. Although listed in the 
index, some information is not publicly available, e.g., confidential 
business information 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 through www.regulations.gov, or please contact the person 
identified in the For Further Information Contact section for 
additional availability information.

FOR FURTHER INFORMATION CONTACT: Gavin Lau, Environmental Protection 
Agency, Air Programs Branch, 290 Broadway, 25th Floor, New York, NY 
10007-1866, (212) 637-3708, or by email at [email protected].

SUPPLEMENTARY INFORMATION:
I. What action is the EPA taking?
II. What comments were received in response to the EPA's proposed 
action?
III. What is the EPA's conclusion?
IV. Statutory and Executive Order Reviews


[[Page 12512]]



I. What action is the EPA taking?

    The Environmental Protection Agency (EPA) is approving the State of 
New York's Low Emissions Vehicle (LEV II) program as an alternative 
program to fulfill the Clean Air Act (CAA) section 185 requirement for 
the New York portion of the New York-Northern New Jersey-Long Island, 
NY-NJ-CT nonattainment area for the revoked 1979 1-hour ozone National 
Ambient Air Quality Standard (NAAQS). The LEV II program will be 
incorporated into the federally enforceable SIP as an alternative CAA 
section 185 program. The reader is referred to the proposed rulemaking 
on this action published in the Federal Register (FR) on December 6, 
2018 (83 FR 62771) for additional details.

II. What comments were received in response to the EPA's proposed 
action?

    The EPA received two comments in response to the EPA's December 6, 
2018 proposed action. After reviewing the comments, the EPA has 
determined that the comments are generally in support of the EPA's 
proposed action. The comments also raise issues that are not germane to 
the EPA's proposed action and do not explain or provide a legal basis 
for how the proposed action should differ in any way. For this reason, 
the EPA will not provide a specific response to the comments and we are 
finalizing the action as proposed. The comments may be viewed under 
Docket ID Number EPA-R02-OAR-2017-0094 on the http://www.regulations.gov website.

III. What is the EPA's conclusion?

    The EPA has determined that New York's LEV II program is an 
approvable alternative program no less stringent than the program 
required by CAA section 185, consistent with the principles of CAA 
section 172(e). CAA section 172(e) provides that when the Administrator 
relaxes a NAAQS, the EPA must ensure that all areas which have not 
attained that NAAQS maintain ``controls which are not less stringent 
than the controls applicable to areas designated nonattainment before 
such relaxation.'' CAA section 185 fee program requirements apply to 
ozone nonattainment areas classified as Severe or Extreme that fail to 
attain by the required attainment date. The requirements of CAA section 
185 were applicable to the NY-NJ-CT nonattainment area for 2008 and 
2009 since the area failed to attain the 1-hour ozone NAAQS by its 
attainment data. The NY-NJ-CT area later was determined to attain the 
1-hour ozone NAAQS for 2008-2010 (77 FR 36163). Consistent with the 
principles of CAA section 172(e), a state can meet the 1-hour ozone 
section 185 obligation through either the fee program prescribed in 
section 185 of the CAA or an equivalent alternative program, if the 
state demonstrates that the alternative is not less stringent than the 
otherwise applicable section 185 fee program. The EPA has determined 
that the New York State Department of Environmental Conservation, on 
behalf of the State of New York, demonstrated that New York's LEV II 
program provided emission reductions no less stringent than a CAA 
section 185 fee program for 2008 and 2009 and that it is an approvable 
equivalent alternative program to fulfill the Clean Air Act section 185 
requirement for the New York portion of the New York-Northern New 
Jersey-Long Island, NY-NJ-CT nonattainment area for the revoked 1979 1-
hour ozone NAAQS. New York's LEV II emission standards continue to be 
in place and achieve reductions in VOC and NOX emissions.

IV. 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 under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive 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, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 June 3, 2019. 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

[[Page 12513]]

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, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

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

    Dated: March 18, 2019.
Peter D. Lopez,
Regional Administrator, Region 2.

    Part 52 chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart HH--New York

0
2. In Sec.  52.1670, the table in paragraph (e) is amended by adding 
the entry ``Section 185 fee program'' at the end of the table to read 
as follows:


Sec.  52.1670   Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved New York Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                     Applicable
                                   geographic or         New York
       Action/SIP element          nonattainment      submittal date   EPA approval date        Explanation
                                        area
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 185 fee program........  State-wide.......  1/31/2014,         4/2/2019, [insert  Approval of the Low
                                                     supplemented on    Federal Register   Emissions Vehicle
                                                     4/7/2014, 10/13/   citation].         Program (LEV II) as
                                                     2016, and 4/3/                        an alternative
                                                     2018.                                 section 185 fee
                                                                                           program
----------------------------------------------------------------------------------------------------------------


0
3. In Sec.  52.1683, add paragraph (r) to read as follows:


Sec.  52.1683   Control strategy: Ozone.

* * * * *
    (r) New York's Section 185 Equivalency Demonstration State 
Implementation Plan revision submittal on January 31, 2014, and 
supplemented on April 7, 2014, October 13, 2016, and April 3, 2018, for 
the use of the State of New York's Low Emissions Vehicle (LEV II) 
program as an alternative program to fulfill the Clean Air Act section 
185 requirement for the New York portion of the New York-Northern New 
Jersey-Long Island, NY-NJ-CT nonattainment area for the revoked 1979 1-
hour ozone National Ambient Air Quality Standard is approved.

[FR Doc. 2019-06294 Filed 4-1-19; 8:45 a.m.]
 BILLING CODE 6560-50-P


