[Federal Register Volume 87, Number 210 (Tuesday, November 1, 2022)]
[Proposed Rules]
[Pages 65714-65719]
[FR Doc No: 2022-23019]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2022-0169; FRL-9610-01-R2

Approval of Air Quality Implementation Plans; New York; Gasoline
Dispensing Stage I, Stage II, and Transport Vehicles

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a 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 regulations in New
York's Codes, Rules and Regulations (NYCRR) applicable to gasoline
dispensing sites and transport vehicles. The intended effect of today's

action is to approve control strategies, required by the Clean Air Act,
which will result in emission reductions that will help attain and
maintain national ambient air quality standards for ozone and will
reduce volatile organic compounds throughout the State.

DATES: Written comments must be received on or before December 2, 2022.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2022-0169 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Ysabel Banon, Environmental Protection
Agency, Air Programs Branch, Region 2, 290 Broadway, New York, New York
10007-1866, at<PHONE_NUMBER>, or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Summary of New York's SIP Revision
III. The EPA's Evaluation of New York's SIP Revision
IV. The EPA's Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background

    On March 3, 2021, the New York State Department of Environmental
Conservation (NYSDEC) submitted a revision to its SIP. The submitted
SIP revision included changes resulting from New York's repeal and
replacement of Title 6 of New York Codes, Rules and Regulations
(NYCRR), part 230, ``Gasoline Dispensing Sites and Transport
Vehicles.'' These revisions to 6 NYCRR part 230 eliminate Stage II
vapor recovery systems requirements and require the decommissioning of
existing Stage II vapor recovery systems; strengthen Stage I vapor
recovery requirements; and require that transport vehicles meet current
federal United States Department of Transportation (DOT) requirements.
On September 17, 2021, NYSDEC submitted a supplemental analysis, ``New
York State Stage II Removal Analysis 2020,'' to demonstrate its
justification of Stage II removal; this analysis is included in the
docket for this action. Attendant revisions to 6 NYCRR section 200,
``General Provisions,'' section 200.9, Table 1, ``Referenced
material'', related to 6 NYCRR part 230 have been addressed under a
separate rulemaking at 87 FR 52337, effective September 26, 2022.

Ozone Requirements

    New York is classified as nonattainment for the 2008 and 2015 ozone
national ambient air quality standards (NAAQS) for the New York portion
of the New York-Northern New Jersey-Long Island, NY-NJ-CT area (also
known as the New York Metropolitan Area, or NYMA).\1\ New York is also
a member state of the Ozone Transport Region (OTR), which means it must
meet certain requirements for nonattainment areas regardless of its
attainment status. The Clean Air Act (CAA) section 182(b)(2)(A)
requires that for ozone nonattainment areas classified as moderate or
above, states must revise their SIPs to include provisions to implement
Reasonably Available Control Technology (RACT) for each category of
volatile organic compound (VOC) sources covered by a Control Techniques
Guidelines (CTG) document. The CAA section 184(b)(1)(B) extends the
RACT obligation to all areas of states within the OTR. States subject
to RACT requirements are required to adopt controls that are at least
as stringent as those found within the CTG either via the adoption of
regulations, or by issuance of single source orders or permits that
outline what the source is required to do to meet RACT.
---------------------------------------------------------------------------

    \1\ The New York portion of the NYMA is composed of the five
boroughs of New York City and the surrounding counties of Nassau,
Suffolk, Westchester, and Rockland. See 40 CFR 81.333.
---------------------------------------------------------------------------

Stage I Vapor Recovery Systems

    Stage I vapor recovery systems are systems that capture hydrocarbon
vapors, such as VOCs, displaced from storage tanks at gasoline
dispensing facilities (GDFs) during gasoline tank truck deliveries.
When gasoline is delivered into an aboveground or underground storage
tank, vapors that were taking up space in the storage tank are
displaced by the gasoline entering the storage tank. The Stage I vapor
recovery systems route these displaced vapors into the transport
vehicle's (delivery truck's) tank. Some vapors are vented to the
atmosphere when the storage tank exceeds a specified pressure
threshold, however, the Stage I vapor recovery systems greatly reduce
the displaced vapors being released into the atmosphere. Stage I vapor
recovery systems have been in place since the 1970s, and the EPA
guidance regarding use of Stage 1 systems to control VOC emissions from
this source category (gasoline service stations) has been in place
since 1975.\2\
---------------------------------------------------------------------------

    \2\ See U.S. EPA, ``Design Criteria for Stage I Vapor Control
Systems--Gasoline Service Stations,'' (Nov. 1975, EPA Online
Publication EPA-450/R-75-102), available at https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=20013S56.txt; U.S. EPA, ``Control Techniques
Guidelines for the Oil and Natural Gas Industry'' (Nov. 2016 EPA
Online Publication EPA-453/B-16-001), available at https://www.epa.gov/sites/default/files/2016-10/documents/2016-ctg-oil-and-gas.pdf (providing control techniques guidelines for control of VOC
emissions from the gasoline service station source category); and
U.S. EPA, ``Control of Volatile Organic Compound Leaks from Gasoline
Tank Trunks and Vapor Collection System,'' (Dec. 1978 EPA Online
Publication EPA-450/2-78-051), available at https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=2000M9RD.txt (providing guidelines related to
the control of VOC leaks from and test procedures for gasoline tank
trunks and vapor collection systems at terminals, bulk plants and
service stations).
---------------------------------------------------------------------------

    In more recent years, the California Air Resources Board (CARB) has
required Stage I vapor recovery systems capable of achieving vapor
control efficiencies higher than those achieved by traditional Stage I
systems. These newer systems are commonly referred to as Enhanced Vapor
Recovery (EVR) systems. One of the essential components of these CARB
Stage I EVR systems are improved pressure/vacuum vent valves (CARB EVR
Pressure/Vacuum (P/V) vent valves). These valves are manufactured with
better quality materials and construction than non-CARB EVR P/V vent
valves and are thus expected to decrease emissions by reducing P/V vent
valve failures that make Stage 1 vapor recovery systems less effective.

Stage II Vapor Recovery Systems and Onboard Refueling Vapor Recovery
Systems

    Stage II vapor recovery systems and onboard refueling vapor
recovery (ORVR) systems are two types of emission control systems that
capture fuel vapors from vehicle gas tanks during refueling. Stage II
vapor recovery systems are installed at gasoline

dispensing facilities and capture the refueling fuel vapors at the
gasoline pump. The Stage II system carries the captured vapors back to
an underground storage tank at the GDF to prevent the vapors from
escaping to the atmosphere. ORVR systems are carbon canisters installed
directly on automobiles to capture the fuel vapors evacuated from the
gasoline tank before they reach the nozzle. The fuel vapors captured in
the carbon canisters are then combusted in the engine when the
automobile is in operation.
    Stage II vapor recovery systems and vehicle ORVR systems were
initially both required by the 1990 Amendments to the CAA. Section
182(b)(3) of the CAA requires moderate and above ozone nonattainment
areas to implement Stage II vapor recovery programs. CAA section
184(b)(2) also requires states in the OTR to implement Stage II or
comparable measures. CAA section 202(a)(6) required EPA to promulgate
regulations for ORVR for light-duty vehicles (passenger cars). EPA
adopted these ORVR requirements on April 6,1994, at which point, in
accordance with CAA section 202(a)(6), moderate ozone nonattainment
areas were no longer subject to the CAA section 182(b)(3) Stage II
vapor recovery program requirements. ORVR equipment has been phased in
for new passenger vehicles beginning with model year 1998 and starting
with model year 2001 for light-duty trucks and most heavy-duty gasoline
powered vehicles. See, 59 FR 16262, April 6, 1994. ORVR equipment has
been installed on nearly all new gasoline-powered light-duty vehicles,
light-duty trucks, and heavy-duty vehicles since 2006. See, 77 FR
28772, May 16, 2012.
    Historically, Stage II vapor recovery systems have provided VOC
reductions in ozone nonattainment areas and certain attainment areas of
the OTR. However, Congress recognized that ORVR systems and Stage II
vapor recovery systems would eventually become largely redundant
technologies, and CAA section 206(a)(6) provided authority to EPA to
allow states to remove Stage II vapor recovery programs from their SIPs
after EPA finds that ORVR is in ``widespread use.'' Effective May 16,
2012, EPA determined in a rulemaking that ORVR systems are in
widespread use nationwide for control of gasoline emissions during
refueling of vehicles at GDFs. See, 77 FR 28772, May 16, 2012. As of
2012, EPA estimated in a guidance document that by the end of 2020 more
than 94 percent of gasoline refueling nationwide would occur with ORVR-
equipped vehicles.\3\ Thus, Stage II vapor recovery programs have
become largely redundant control systems and Stage II vapor recovery
systems achieve an ever-declining emissions benefit as more ORVR-
equipped vehicles continue to enter the on-road motor vehicle fleet.\4\
---------------------------------------------------------------------------

    \3\ See Appendix Table A-1 of EPA's Guidance Document,
``Guidance on Removing Stage II gasoline Vapor Control Programs from
State Implementation Plans and Assessing Comparable Measures'' (EPA-
557/B-12-001; August 7, 2012).
    \4\ In areas where certain types of vacuum-assist Stage II vapor
recovery systems are used, the differences in operational design
characteristics between ORVR and some configurations of these Stage
II vapor recovery systems actually result in lower overall control
system efficiency than what could have been achieved individually by
either ORVR or the Stage II vapor recovery system.
---------------------------------------------------------------------------

    The EPA's May 16, 2012, rulemaking also took two other relevant
actions. First, the EPA also exercised its authority under CAA section
202(a)(6) to waive certain federal statutory requirements for Stage II
vapor recovery systems at GDFs. As a result, new ozone nonattainment
areas classified serious or above do not need to adopt Stage II vapor
recovery programs. Second, the EPA stated that any state currently
implementing Stage II vapor recovery programs may submit SIP revisions
that would allow for the phase-out of Stage II vapor recovery systems.

II. Summary of New York's SIP Revision

    The version of 6 NYCRR part 230 that is currently incorporated into
the New York SIP was last revised in 1998. See, 63 FR 23665, April 30,
1998.
    On March 3, 2021, NYSDEC submitted to the EPA a SIP revision to
incorporate into the New York SIP changes to the New York regulations
resulting from its repeal and replacement of 6 NYCRR part 230,
``Gasoline Dispensing Sites and Transport Vehicles.'' On September 17,
2021, NYSDEC submitted supplemental material including an analysis
justifying its Stage II removal based on data for the year 2020.
    In its rulemaking to revise part 230, NYSDEC explains that the
changes being addressed in today's proposed action will reduce VOC
emissions from GDFs and transport vehicles across the State. A gasoline
dispensing site is a federally regulated GDF if it has gasoline storage
tank(s) greater than 250 gallons.

Stage I

    NYSDEC's SIP submittal includes New York regulations that adopt
EPA's control measures for federal ``enhanced'' Stage I vapor recovery,
submerged fill, dual-point vapor control systems, new performance test
requirements and best management practices outlined in 40 CFR part 63,
subpart CCCCCC (Subpart 6C). The updated part 230's incorporation of
federal ``enhanced'' Stage I controls will provide better vapor capture
efficiency during the loading of gasoline storage tanks than the
existing SIP regulation currently requires. The SIP revision would also
extend these same federal requirements to medium-sized GDFs with annual
throughputs between 800,000 and 1,200,000 gallons to achieve further
reductions in emissions from the New York portion of the NYMA.
    New York's revised part 230 includes submerged filling requirements
for all gasoline storage tanks at GDFs that have gasoline storage tanks
with capacities greater than 60 gallons, to be consistent with the
State Fire Code. New York explains that this will minimize the
generation of gasoline vapors caused by splash loading. Submerged
filling reduces vapor emissions by dispensing gasoline through a fill
pipe that extends to within 6 inches of the bottom of the tank.
    The updated part 230 submitted for SIP approval incorporates the
federal requirements of Subpart 6C to equip new or reconstructed
gasoline storage tanks with dual-point vapor control systems. Equipping
storage tanks with both an entry port for a gasoline fill pipe and a
separate exit port for a vapor connection is necessary to maintain a
proper seal when the vapor recovery line is disconnected. As with the
federal Stage I vapor recovery requirements, NYSDEC's submitted SIP
revision would extend this requirement to medium-sized GDFs in the New
York portion of the NYMA to achieve greater reductions in VOC
emissions. The SIP revision would also require performance testing for
vapor recovery systems in accordance with the federal performance test
requirements once every three years, which NYSDEC explains will ensure
more consistent vapor capture at GDFs and would extend the federal
testing requirements to medium-sized GDFs in the New York portion of
the NYMA. Other federal requirements included in the revised part 230
submitted as part of this SIP revision include best management
practices to minimize the amount of VOC released from spills and
uncovered gasoline storage containers. These measures will apply to all
GDFs with annual throughputs of 120,000 gallons or greater.
    NYSDEC's SIP revision does include some exemptions from Stage I
requirements. Gasoline storage tanks

with a capacity of less than 550 gallons and which are used exclusively
for farm tractors engaging in agricultural or snowplowing activity and
automobile dismantling facilities would be exempt from the Stage I
requirements, because it would not be cost effective to require these
facilities to install vapor recovery systems. Auto dismantling
facilities would also be exempt from the Stage I requirements because,
since they are not handling gasoline delivered by cargo truck, there
are no cargo trucks into which to return captured vapors. Instead,
these facilities fill storage tanks with gasoline collected from
drained and dismantled vehicles. There are approximately 800 of these
auto dismantling facilities located throughout New York State which
handle a small volume of gasoline per year.
    NYSDEC's submitted SIP revision would require test companies to
certify that Stage I vapor recovery system tests will be performed in
accordance with federal regulation testing procedures and protocols.
The SIP revision would also incorporate a revised version of 6 NYCRR
Sec.  230.7 that removes the information regarding registration
schedules from the prior version because the schedules for compliance
have already been completed. The SIP revision would expand on the
federal requirements by requiring medium-sized GDFs located in the New
York portion of the NYMA with annual throughput between 800,000 and
1,200,000 gallons to come into compliance with the applicable
requirements that would otherwise apply to large GDFs within six months
of the effective date of February 12, 2021, to achieve greater VOC
emission reductions in the ozone nonattainment area.

Transport Vehicles

    The proposed SIP revision would require leak testing and test
markings that coincide with the Federal DOT testing and marking
requirements at 49 CFR 180.415 & 180.407(h), making these testing and
marking requirements consistent at the state and federal level. See, 6
NYCRR section 230.6 and Table 1 in 6 NYCRR section 200.9. Gasoline
transport vehicle recordkeeping retention requirements would be raised
from 2 years to 5 years (see, 6 NYCRR section 230.7), which aligns with
the recordkeeping requirements in the federal Subpart 6C. Furthermore,
no operator of a gasoline transport vehicle would be allowed to
transfer gasoline into a gasoline storage tank with a Stage I vapor
recovery system unless the transport vehicle operator ensures that
prescribed gasoline transfer operator practices are met to prevent VOC
emissions, such as the 6 NYCRR section 230.6(b)(2) requirement that
operators ensure the tank truck vapor return equipment is compatible in
size and forms a vapor tight connection with the vapor balance
equipment on the gasoline storage tank.

Stage II

    The proposed SIP revision would also require decommissioning and
removal of all Stage II vapor recovery systems, due to the equipment's
incompatibility with ORVR systems. GDFs required to remove Stage II
vapor recovery systems must do so by 12 months after the effective date
of the State rule. Within 30 days of the decommissioning of the Stage
II vapor recovery system, the GDF must provide documentation to the
NYSDEC of the procedures it used to demonstrate that the Stage II
system has been decommissioned in accordance with part 230 and has
passed the CARB Vapor Recovery Test Procedure TP-201.3--Determination
of 2-inch WC Static Pressure Performance of Vapor Recovery Systems of
Dispensing Facilities. See, 6 NYCRR 230.3(d)(1)(x).

SIP Demonstration

    NYSDEC's March 3, 2021, SIP revision and the updated analysis
submitted on September 17, 2021, include a narrative demonstration
supporting the discontinuation of the Stage II vapor recovery program.
This demonstration, discussed in greater detail below, consists of an
analysis showing that the Stage II vapor recovery controls now provide
only de minimis emission reductions due to the prevalence of ORVR-
equipped vehicles in New York in 2020.

Withdrawal of Prior SIP Submittal

    Additionally, NYSDEC is also requesting withdrawal of its prior
January 31, 2011, submittal to the EPA requesting inclusion in the SIP
of a collection of RACT variances given to GDFs for Stage II
requirements under part 230, since these variances would no longer be
needed once Stage II vapor recovery systems are not required. Given
this withdrawal, the January 31, 2011, SIP submittal is no longer
before the EPA.

III. EPA's Evaluation of New York's SIP Revision

    The EPA reviewed NYSDEC's March 3, 2021, proposed SIP revision to
update the 6 NYCRR part 230, ``Gasoline Dispensing Sites and Transport
Vehicles,'' portion of the New York SIP to reflect NYSDEC's repeal and
replacement of 6 NYCRR part 230 that was effective as of February 12,
2021, along with the analysis New York submitted on September 17, 2021,
to demonstrate justification of Stage II removal for the year 2020, and
the accompanying SIP narrative. EPA concludes that NYSDEC's proposed
SIP revision is consistent with EPA's widespread use rule (77 FR 28772,
May 16, 2012) and EPA's ``Guidance on Removing Stage II Gasoline Vapor
Control Programs from State Implementation Plans and Assessing
Comparable Measures'' (EPA-457/B-12-001; August 7, 2012) (referred to
below as the ``EPA Guidance Document'').
    In reviewing the proposed SIP revision, the EPA must ensure that:
1) In accordance with CAA section 110(l)'s non-interference
requirement, NYSDEC has demonstrated that the proposed action would not
interfere with attainment of the National Ambient Air Quality Standards
(NAAQS) for ozone; 2) in accordance with CAA section 184(b)(2)'s
``comparable measures'' requirement, that the proposed action would
achieve comparable or greater emission reductions than the gasoline
vapor recovery requirements contained in CAA section 182(b)(3); and 3)
that the proposed action satisfies the anti-backsliding requirements of
CAA section 193. As discussed below, the EPA finds that NYSDEC has
demonstrated widespread use of ORVR systems throughout the motor
vehicle fleet and that implementation of the rule in the proposed SIP
revision would comply with CAA sections 110(l), 184(b)(2), and 193.
    CAA section 110(l) specifies that the EPA cannot approve a SIP
revision if it would interfere with attainment of NAAQS or reasonable
further progress towards attainment, or any other applicable
requirement of the CAA; this is commonly referred to as ``anti-
backsliding.'' New York's SIP revision submittal includes a CAA section
110(l) anti-backsliding demonstration (based on equations provided in
the EPA Guidance Document) \5\ that shows there would be zero potential
loss of emission reductions from removing Stage II vapor recovery
systems in 2020. If the value is zero or negative, this would indicate
that removing Stage II systems would not increase refueling emissions.
Thus, the SIP revision will not interfere with attainment of NAAQS,
reasonable further progress towards attainment, or

any other applicable requirement of the CAA.
---------------------------------------------------------------------------

    \5\ For further discussion of this equation, see The EPA
Guidance Document at 13-14.
---------------------------------------------------------------------------

    Because New York is located in the northeast OTR, under CAA section
184(b)(2)'s ``comparable measures'' requirement, the State must show
that its SIP revisions include control measures capable of achieving
emission reductions comparable to those achievable through Stage II
Systems under CAA section 182(b)(3). As stated in the EPA Guidance
Document, ``the comparable measures requirement is satisfied if phasing
out a Stage II control program in a particular area is estimated to
have no, or a de minimis, incremental loss of area-wide emission
control.'' NYSDEC conducted a statewide comparable measure analysis in
accordance with the EPA Guidance Document that shows that phasing out
the Stage II program would result in zero or de minimis \6\ incremental
loss of area wide emission control. The revision to the SIP thus
satisfies the comparable measures requirement of CAA section 184(b)(2).
As stated in the EPA Guidance Document, ``the comparable measures
requirement is satisfied if phasing out a Stage II control program in a
particular area is estimated to have no, or a de minimis, incremental
loss of area-wide emission control.'' According to NYSDEC's analysis,
the increment is -0.0215. The EPA Guidance Document explains that a
zero or negative increment value indicates that removing Stage II,
``would not increase the refueling emissions inventory because the
higher efficiency from ORVR and the incompatibility emissions offset
the increment due to non-ORVR vehicles being refueled at Stage II
GDFs.'' \7\ Thus, compliance with CAA section 184(b)(2) is demonstrated
and the revision to the SIP satisfies the comparable measures
requirement.
---------------------------------------------------------------------------

    \6\ The EPA Guidance Document explains that the incremental
emissions control that Stage II achieves beyond ORVR is de minimis
if it is less than 10 percent of the area-wide emissions inventory
associated with refueling highway motor vehicles. The EPA Guidance
Document at 6.
    \7\ EPA Guidance Document at 14.
---------------------------------------------------------------------------

    Similarly, CAA section 193, which applies to nonattainment areas
for any air pollutant in states that adopted Stage II control programs
into their SIP prior to November 15, 1990, prohibits modification of
any control requirement unless the modification insures equivalent or
greater emission reductions for that air pollutant. The State used the
EPA Guidance Document's ``Delta Equation'' to show the removal of Stage
II Systems will have no impact on area-wide emission reductions based
on the difference between Stage II and ORVR efficiencies. The State
demonstrated that for the year 2020, the ORVR program provides 41.9%
greater emission reductions than the Stage II control program alone. In
addition, NYSDEC's SIP revision submittal includes calculations
illustrating that the overall emissions effect of removing the Stage II
vapor recovery program would be zero tons in 2020. Thus, compliance
with CAA section 193 is demonstrated because the SIP modification
insures equivalent or greater emission reductions.
    With respect to Stage I vapor recovery requirements, NYSDEC's
proposed SIP revision adopts the control measures for federal
``enhanced'' Stage I vapor recovery, submerged fill, dual-point vapor
control systems, new performance test requirements and best management
practices outlined in Subpart 6C. The updated part 230 included in the
proposed SIP revision incorporates federal ``enhanced'' Stage I
controls, which will provide better vapor capture efficiency during the
loading of gasoline storage tanks than the existing regulation
currently requires. Thus, the proposed SIP revisions meet the
requirements of CAA sections 110(l), 184(b)(2) and 193.
    New York's January 31, 2011, submittal to EPA of RACT variances for
SIP approval that listed gasoline dispensing facilities receiving
variances from Stage II control requirements and provided associated
economic feasibility analysis is being withdrawn because the portion of
6 NYCRR part 230 that regulated Stage II vapor recovery systems has
been repealed. As stated above, given this withdrawal, the January 31,
2011, SIP submittal is no longer before EPA and will not be
incorporated into the New York SIP.

IV. Proposed Action

    The EPA proposes to approve NYSDEC's March 3, 2021, proposed
revision to the New York SIP that would replace the version of Title 6
of the New York Codes, Rules and Regulations, Part 230, ``Gasoline
Dispensing Sites and Transport Vehicles,'' currently included in the
New York SIP with the version having a State effective date of February
12, 2021. The EPA is proposing to approve this SIP revision because it
meets all applicable requirements of the Clean Air Act and EPA
guidance, and it will not interfere with attainment or maintenance of
the ozone NAAQS. Attendant revisions to 6 NYCRR part 200, ``General
Provisions,'' section 200.9, Table 1, ``Referenced material,'' related
to 6 NYCRR part 230 have been addressed under a separate rulemaking at
87 FR 52337, effective September 26, 2022.
    The EPA is soliciting public comment on the issues discussed in
this proposed rulemaking action. These comments will be considered
before taking final action.

IV. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text
that includes incorporation by reference. In accordance with
requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference revisions to 6 NYCRR part 230, ``Gasoline Dispensing Sites
and Transport Vehicles,'' as described in section III. of this
preamble. The EPA has made, and will continue to make, these materials
generally available through www.regulations.gov and at the EPA Region 2
Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. 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 proposed 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);
     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 this action does not involve technical standards; 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, this proposed rule revising the New York SIP to
incorporate changes to 6 NYCRR part 230 and Table 1 in 6 NYCRR 200.9 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Volatile organic compounds, Intergovernmental relations,
Ozone, Reporting and recordkeeping requirements.

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

Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2022-23019 Filed 10-31-22; 8:45 am]
BILLING CODE 6560-50-P


			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on July 14, 2004

NOTICE OF ACTION TAKEN -- DOCKETS OST-2004-17916

________________________________________________________________________
__________________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Applicant:  Titan Airways Limited				Date Filed:  May 20, 2004

Relief requested:  Exemption from 49 U.S.C. § 41301 to engage in
charter foreign air transportation of persons, property and mail between
the United Kingdom and the United States; and to conduct other charters
in accordance with Part 212 of the Department’s rules.

If renewal, date and citation of last action:  New authority

Applicant representative:  Don H. Hainbach<PHONE_NUMBER>

DOT Analyst:  Gordon H. Bingham<PHONE_NUMBER>

Responsive pleadings:  Continental Airlines, Inc. (Continental) filed an
answer stating that we should either deny Titan’s request insofar as
it seeks London Heathrow (Heathrow) authority or defer action on its
request until such time as U.S. carriers are given competitive access at
Heathrow.  Continental states that while Titan’s application provides
virtually no information on its proposed charter operations, type of
aircraft, or its ownership and fitness, it seeks broad authority that
would allow it to provide unlimited charter service between Heathrow and
the United States.  Continental states that the Department should not
grant blanket Heathrow-U.S. authority to a U.K-designated carrier when
the carrier has not provided the relevant operating, ownership or
fitness information provided by other U.K. carrier applicants.  Titan
filed a reply stating that it is based at Stansted and because it
anticipates that its London-U.S. services will be operated from that
airport, it asks that we not encumber its exemption authority with a
Heathrow restriction.  Titan further states that that Continental’s
effort to link Titan’s bilaterally-authorized charter rights with the
extrabilateral scheduled service rights Continental seeks at Heathrow is
not valid.  No further comments were filed.

DISPOSITION

Action:  Approved							Action date:  July 14, 2004

Effective dates of authority granted:  July 14, 2004-July 14, 2005

Basis for approval (bilateral agreement/reciprocity):  July 23, 1977,
Air Services Agreement between the United States and the United Kingdom
of Great Britain and Northern Ireland, as amended (the Agreement).

Except to the extent exempted/waived, this authority is subject to the
terms, conditions, and limitations indicated:  X  Standard exemption
conditions (attached)

Special conditions/Partial grant/Denial basis/Remarks:  Titan Airways
Limited (Titan) submitted its application pursuant to the May 25, 1989,
Exchange of Notes (1989 Exchange of Notes) between the United States and
the United Kingdom under which the aviation authorities of each country
will normally accept, on a reciprocal basis, the other government’s
fitness and citizenship determinations in regard to carriers seeking
authority to conduct certain bilateral services, including the authority
sought by Titan.  Based on the record in this case, we found that Titan
is operationally and financially qualified to conduct the proposed
services, and that it is substantially owned and effectively controlled
by homeland nationals.  We make this finding based on the 1989 Exchange
of Notes.  By memorandum dated June 1, 2004, the FAA advised us that it
knew of no reason why we should act unfavorably on Titan’s
application.

2

The Department is sensitive to the concerns raised by Continental
regarding Heathrow access and is continuing to seek expanded
opportunities for U.S. carriers at Heathrow.  However, we do not believe
that the concerns raised by Continental warrant withholding
bilaterally-agreed authority from a designated U.K. carrier while we
seek to secure such opportunities for U.S. carriers.  Our determination
here is based on the fact that the authority sought by Titan involves
rights available to designated carriers of the United Kingdom under the
Agreement, and the applicant is properly designated by its government to
conduct the proposed services.  As to Continental’s concerns that
Titan’s request is devoid of relevant fitness and ownership and
control information, we note as was said above, that Titan submitted its
application pursuant to the 1989 Exchange of Notes between the U.S. and
the U.K. under which the aviation authorities of each country will
normally accept, on a reciprocal basis, the other government’s fitness
and citizenship determinations in regard to carriers seeking authority
to conduct certain bilateral services, including the authority sought by
Titan.

Action taken by:   Paul L. Gretch, Director

		      Office of International Aviation

________________________________________________________________________
_________

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) the applicant was qualified to perform the
proposed operations; (2) our action was consistent with Department
policy; (3) grant of the authority was consistent with the public
interest; and (4) grant of the authority would not constitute a major
regulatory action under the Energy Policy and Conservation Act of 1975.
To the

extent not granted/deferred/dismissed, we denied all requests in the
referenced Docket.  We may amend, modify, or revoke the authority
granted in this Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set
forth in this Notice under the Department’s regulations, 14 CFR §
385.30, may file their petitions within seven (7) days after the date of
issuance of this Notice.  This action was effective when taken, and the
filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide
Web at:

http://dms.dot.gov//reports/reports_aviation.asp

Attachment

In the conduct of the operations authorized, the foreign carrier
applicant(s) shall:

(1)  Not conduct any operations unless it holds a currently effective
authorization from its homeland for such operations, and it has filed a
copy of such authorization with the Department;

(2)  Comply with all applicable requirements of the Federal Aviation
Administration, including, but not limited to, 14 CFR Parts 129, 91, and
36, and with all applicable U.S. Government requirements concerning
security, including, but not limited to, 49 CFR Part 1546 or 1550, as
applicable.  To assure compliance with all applicable U.S. Government
requirements concerning security, the holder shall, before commencing
any new service (including charter flights) from a foreign airport that
would be the holder’s last point of departure for the United States,
contact its International Principal Security Inspector (IPSI) to advise
the IPSI of its plans and to find out whether the Transportation
Security Administration has determined that security is adequate to
allow such airport(s) to be served;

(3)  Comply with the requirements for minimum insurance coverage
contained in 14 CFR Part 205, and, prior to the commencement of any
operations under this authority, file evidence of such coverage, in the
form of a completed OST Form 6411, with the Federal Aviation
Administration’s Program Management Branch (AFS-260), Flight Standards
Service (any changes to, or termination of, insurance also shall be
filed with that office);

(4)  Not operate aircraft under this authority unless it complies with
operational safety requirements at least equivalent to Annex 6 of the
Chicago Convention;

(5)  Conform to the airworthiness and airman competency requirements of
its Government for international air services;

(6)  Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR Part 203,
concerning waiver of Warsaw Convention liability limits and defenses;

(7)  Agree that operations under this authority constitute a waiver of
sovereign immunity, for the purposes of 28 U.S.C. 1605(a), but only with
respect to those actions or proceedings instituted against it in any
court or other tribunal in the United States that are: (a)  based on its
operations in international air transportation that, according to the
contract of carriage, include a point in the United States as a point of
origin, point of destination, or agreed stopping place, or for which the
contract of carriage was purchased in the United States; or (b)  based
on a claim under any international agreement or treaty cognizable in any
court or other tribunal of the United States.  In this condition, the
term "international air transportation" means "international
transportation" as defined by the Warsaw Convention, except that all
States shall be considered to be High Contracting Parties for the
purpose of this definition;

(8)  Except as specifically authorized by the Department, originate or
terminate all flights to/from the United States in its homeland;

(9)  Comply with the requirements of 14 CFR Part 217, concerning the
reporting of scheduled, nonscheduled, and charter data;

(10) If charter operations are authorized, except as otherwise provided
in the applicable aviation agreement, comply with the Department's rules
governing charters (including 14 CFR Parts 212 and 380); and

(11) Comply with such other reasonable terms, conditions, and
limitations required by the public interest as may be prescribed by the
Department, with all applicable orders or regulations of other U.S.
agencies and courts, and with all applicable laws of the United States.

This authority shall not be effective during any period when the holder
is not in compliance with the conditions imposed above.  Moreover, this
authority cannot be sold or otherwise transferred without explicit
Department approval under Title 49 of the U.S. Code.

					05/2004

  Titan is properly licensed and designated (Note No. 48 dated June 29,
2004) by the Government of the United Kingdom to perform the proposed
services.