UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION II AIR PROGRAMS BRANCH

Technical Support Document

for

EPA’s Notice of Proposed Rulemaking

for the

New York State Implementation Plan Revision:

Approval and Promulgation of Air Quality Implementation Plans; New York State; Redesignation of Areas for 1997 Annual and 2006 24-hour Fine Particulate Matter and Approval of the Associated Maintenance Plan

January 2014

Table of Contents

  TOC \o "1-3" \h \z \u    HYPERLINK \l "_Toc358881951"  I. INTRODUCTION   PAGEREF _Toc358881951 \h  3

  HYPERLINK \l "_Toc358881952"  II. BACKGROUND	  PAGEREF _Toc358881952 \h  3

  HYPERLINK \l "_Toc358881953"  III. REQUIREMENTS FOR REDESIGNATION	  PAGEREF _Toc358881953 \h  5

  HYPERLINK \l "_Toc358881954"  IV. EPA’S REVIEW OF NEW YORK’S REDESIGNATION REQUEST	  PAGEREF _Toc358881954 \h  6

  HYPERLINK \l "_Toc358881955"  A. Attainment	  PAGEREF _Toc358881955 \h  6

  HYPERLINK \l "_Toc358881956"  B. The area has met all applicable requirements under section 110 and part D of the CAA	  PAGEREF _Toc358881956 \h  10

  HYPERLINK \l "_Toc358881957"  C. Fully approved SIP under 110(k) of the CAA	  PAGEREF _Toc358881957 \h  15

  HYPERLINK \l "_Toc358881958"  D. The air quality improvement must be permanent and enforceable	  PAGEREF _Toc358881958 \h  15

  HYPERLINK \l "_Toc358881959"  E. The area must have a fully approved maintenance plan under section 175A of the CAA	  PAGEREF _Toc358881959 \h  22

  HYPERLINK \l "_Toc358881960"  V. SUMMARY AND RECOMMENDATIONS	  PAGEREF _Toc358881960 \h  32

  HYPERLINK \l "_Toc358881961"  Appendix A- Projected Emissions and Control Measure Benefits Summary 2007-2025	  PAGEREF _Toc358881961 \h  32

  HYPERLINK \l "_Toc358881962"  Appendix B – New York Control Measure Description	  PAGEREF _Toc358881962 \h  40

I. INTRODUCTION

This document provides technical review of the New York State’s June 27, 2013 request to redesignate the New York portion of the New York-N.New Jersey-Long Island, NY-NJ-CT nonattainment area (“NYNAA”), from nonattainment to attainment for the 1997 annual and the 2006 24-hour PM2.5 NAAQS. The redesignation submittal includes New York’s maintenance plan for the areas to ensure continued attainment.

II. BACKGROUND

General

On July 18, 1997 (62 FR 36852), the Environmental Protection Agency (EPA) established the 1997 PM2.5 National Ambient Air Quality Standard (NAAQS), including an annual standard of 15.0 micrograms per cubic meter (µg/m3) based on a 3-year average of annual mean PM2.5 concentrations and a 24-hour (or daily) standard of 65 µg/m3 based on a 3-year average of the 98th percentile of 24-hour concentrations. On October 17, 2006, at 71 FR 61144, EPA retained the annual average standard at 15 μg/m3 but revised the 24-hour standard to 35 μg/m3, based again on the three-year average of the 98th percentile of 24-hour concentrations.

On January 5, 2005, at 70 FR 944, as supplemented on April 14, 2005, at 70 FR 19844, EPA designated the NY-NJ-CT nonattainment area as nonattainment for the 1997 PM2.5 air quality standards. In that action, EPA defined the nonattainment area to include the following ten New York counties: Bronx, Kings, Nassau, New York, Orange, Queens, Richmond, Rockland, Suffolk, and Westchester.

On November 13, 2009, at 74 FR 58688, EPA promulgated designations for the 24-hour standard set in 2006, designating the NY-NJ-CT nonattainment area as nonattainment for the 2006 24-hour PM2.5 NAAQS. The nonattainment area boundaries for NY-NJ-CT nonattainment area for the 2006 PM2.5 NAAQS were identical to the boundaries for the 1997 PM2.5 NAAQS, including all tens counties that were previously designated nonattainment in 2005. The November 13, 2009 action also clarified that the NY-NJ-CT nonattainment area was classified as unclassifiable/attainment for the 1997 24-hour PM2.5 NAAQS. EPA did not promulgate designations for the annual average NAAQS promulgated in 2006 since that NAAQS was essentially identical to the 1997 annual PM2.5 NAAQS.

In the final rulemaking action dated November 10, 2010 (75 FR 69589), EPA determined, pursuant to CAA section 179(c), that  the entire NY-NJ-CT nonattainment area had attained the 1997 annual PM2.5 NAAQS, based upon quality assured, quality controlled, and certified ambient air monitoring data for the period of 2007-2009.

EPA finalized, on December 31, 2012 (77 FR 76867), the determination that the entire NY-NJ-CT nonattainment area had attained the 2006 24-hour PM2.5 NAAQS, based upon quality assured, quality controlled, and certified ambient air monitoring data that showed that the area had monitored attainment of the 2006 24-hour PM2.5 NAAQS  for the 2007-2009 and 2008-2010 monitoring periods.

The 3-year ambient air quality data for the last four 3-year monitoring periods (2007-2009, 2008-2010, 2009-2011, and 2010-2012)  indicated no violations for the 1997 annual PM2.5 and 2006 PM2.5 NAAQS.  As a result, on June 27, 2013, New York requested redesignation of the NYNAA to attainment for the 1997 annual PM2.5 and 2006 24-hour PM2.5 NAAQS. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient, complete, quality-assured data is available for the Administrator to determine that the area has attained the standard and the area meets the other CAA redesignation requirements under 107(d)(3)(E).

Clean Air Interstate Rule (CAIR) and Cross State Air Pollution Rule (CSAPR or the Transport Rule)

On May 12, 2005, EPA published CAIR, which requires significant reductions in emissions of SO2 and NOx from electric generating units (EGUs) to limit the interstate transport of these pollutants and the ozone and PM2.5 they form in the atmosphere.  See 70 FR 25162.  The D.C. Circuit initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). In response to the D.C. Circuit’s decision, EPA issued the Transport Rule, also known as CSAPR, to address interstate transport of NOx and SO2 in the eastern United States.  See 76 FR 48208 (August 8, 2011).

On December 30, 2011, the D.C. Circuit issued an order addressing the status of CSAPR and CAIR in response to motions filed by numerous parties seeking a stay of CSAPR pending judicial review. In that order, the Court stayed CSAPR pending resolution of the petitions for review of that rule in EME Homer City Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The Court also indicated that EPA was expected to continue to administer CAIR in the interim until judicial review of CSAPR was completed.

On August 21, 2012, the D.C. Circuit issued a decision to vacate CSAPR.  In that decision, it also ordered EPA to continue administering CAIR “pending the promulgation of a valid replacement.”  EME Homer City, 696 F.3d at 38. The D.C. Circuit denied all petitions for rehearing on January 24, 2013.

On March 29, 2013, the U.S. Solicitor General petitioned the Supreme Court to review the D.C. Circuit Court’s decision on CSAPR. On June 24, 2013, the Supreme Court granted the petition to review the decision. The Supreme Court’s decision to review the case does not alter the current status of CAIR or CSAPR.

New York’s submittal and EPA modeling demonstrate that the attainment of the 1997 annual and 2006 24-hour PM2.5 NAAQS will be maintained with or without the implementation of CAIR or CSAPR. To the extent that attainment is due to emission reductions associated with CAIR, EPA is proposing to determine that those reductions are sufficiently permanent and enforceable for purposes of CAA sections 107(d)(3)(E)(iii) and175A.

As directed by the D.C. Circuit, CAIR remains in place and enforceable until EPA promulgates a valid replacement rule to substitute for CAIR.

New York’s SIP revision lists CAIR among the federal trading programs that have resulted in permanent and enforceable emissions reductions that have led to attainment of the PM2.5 NAAQS.  New York rules, 6 NYCRR Parts 243, 244, and 245, effective on October 19, 2007, implement the CAIR trading program in New York.  CAIR was, thus, in place and achieving emission reductions when the NY-NJ-CT nonattainment area began monitoring attainment of the 1997 annual and the 2006 24-hour PM2.5 standards during the 2007–2009 period. The quality assured, certified monitoring data continues to show the area in attainment with the 1997 and 2006 PM2.5 standards through 2012.

In addition, air quality modeling analysis conducted during the CSAPR rulemaking process also demonstrated that the counties in the NY-NJ-CT nonattainment area will have PM2.5 levels below the 1997 annual and 2006 24-hour PM2.5 NAAQS in both 2012 and 2014 without taking into account emissions reductions from CAIR or CSAPR.  See “Air Quality Modeling Final Rule Technical Support Document”, App. B, B-18, B-19. This modeling is also available in the docket for this proposed redesignation.

III. REQUIREMENTS FOR REDESIGNATION

Under the CAA, designations can be revised if sufficient data is available to warrant such revisions. Section 107(d)(3)(E) of the CAA identifies five specific requirements that an area must meet in order to be redesignated from nonattainment to attainment.

The area must have attained the applicable NAAQS.

The area must meet all applicable requirements under section 110 and part D of the CAA.

The area must have a fully approved SIP under section 110 (k) of the CAA.

The air quality improvement must be permanent and enforceable.

The area must have a fully approved maintenance plan pursuant to section 175A of the CAA.

EPA has provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (April 16,1992, 57 FR 13498, and supplemented on April 28, 1992, 57 FR 18070) and has provided further guidance on processing redesignation requests in the following documents:

1. ‘‘Procedures for Processing Requests to Redesignate Areas to Attainment,’’ Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereafter referred to as the ‘‘Calcagni Memorandum’’);

2. ‘‘State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,’’ Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;

3. ‘‘Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,’’ Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and

4. “Implementation Guidance for the 2006 24-hour PM2.5 NAAQS,’’ Memorandum from Stephen  D. Page, Director, Office of Air Quality Planning and Standards, March 2, 2012.

Withdrawn by EPA on June 6, 2013

IV. EPA’S ANALYSIS OF NEW YORK’S REDESIGNATION REQUEST

New York’s redesignation request was evaluated in accordance with the redesignation criteria set forth in section 107(d)(3)(E) of the Clean Air Act.  EPA’s analysis of the effect of the January 4, 2013 D.C. Circuit Decision Regarding PM2.5 Implementation under Subpart 4 is discussed fully in the proposed rulemaking.

A. Attainment

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). In this action for this rulemaking, EPA is proposing to determine that the NY-NJ-CT nonattainment area is continuing to attain the 1997 annual and the 2006 24-hour PM2.5 NAAQS.

1997 annual PM2.5 NAAQS

An area may be considered to be attaining the 1997 annual PM2.5 NAAQS if it meets the NAAQS as determined in accordance with 40 CFR 50.7 and Appendix N of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the three-year average of annual means must be less than or equal to 15 μg/m3 at all relevant monitoring sites in the subject area. The relevant data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS). The monitors meet data completeness requirements when “at least 75 percent of the scheduled sampling days for each quarter have valid data.” The use of less than complete data is subject to the approval of EPA, which may consider factors such as monitoring site closures/moves, monitoring diligence, and nearby concentrations in determining whether to use such data.

As previously indicated in Section II., EPA has finalized determinations that the NY-NJ-CT nonattainment area had attained the 1997 annual PM2.5 NAAQS. EPA has also reviewed more recent quality-assured data for the NY-NJ-CT nonattainment area and found that the NYNAA continued to attain the 1997 annual PM2.5 NAAQS through 2012.

Table 1, below, shows the four most recent design values by county (i.e. 3-year average) of annual mean PM2.5 concentrations) for the 2007-2009, 2008-2010, 2009-2011, and 2010-2012 time periods for the 1997 annual PM2.5 NAAQS for the NY-NJ-CT PM2.5 nonattainment area monitors. Table 2, below, shows the design value by county  for the 98th percentile 24-hour PM2.5 concentrations for the 2007-2009, 2008-2010, 2009-2011, and 2010-2012 time periods for the 2006 24-hour PM2.5 NAAQS for the NY-NJ-CT PM2.5 nonattainment area monitors.

(μg/m3)

[The 1997 annual PM2.5 NAAQS is 15.0 μg/m3]

County

AQS Monitor  ID

3-Year design values

2007-2009	2008-2010	2009-2011	2010-2012

NEW YORK

Bronx

Kings

Nassau

New York

Orange

Queens

Richmond

Rockland

Suffolk

Westchester

NEW JERSEY

Bergen

Essex

Hudson

Mercer

Middlesex

Monmouth

Morris

Passaic

Somerset

Union

CONNECTICUT

Fairfield

New Haven

36-005-0080/110

36-047-0122

36-059-0008

36-061-0128/0134

36-071-0002

36-081-0124

36-085-0055

NM

36-103-0002

36-119-1002

34-003-0003

34-0013-003

34-017-2002

34-021-0008

34-023-0006

NM

34-027-0004

34-031-0005

NM

34-039-0006/2003

09-001-0010

09-009-1123

13.9

12.2

10.3

12.1

9.3

10.6

11.6

NM

9.7

10.6

11.3

INC

13.1

10.8

10.4

NM

9.6

11.3

NM

11.6

11.3

11.4

12.5

10.8

9.5

12.1

8.5

10.0

10.5

NM

8.9

9.6

9.8

INC

11.6

10.0

8.8

NM

8.7

9.8

NM

10.3

10.0

10.3

11.9

10.3

8.9

11.7

8.2

9.4

9.8

NM

8.4

9.1

9.2

INC

11.1

9.7

7.9

NM

8.5

9.3

NM

9.6

9.4

9.6

9.8

9.9

INC

11.8

8.1

9.1

9.7

NM

8.4

INC

9.2

9.5

11.1

9.5

8.0

NM

8.4

9.3

NM

9.7

9.4

      9.4

INC- Counties listed as INC did not meet 75 percent data completeness requirement for the relevant time period.

NM- No monitor located in county

Air monitoring data indicates that the NY-NJ-CT nonattainment area continue to meet the 1997 annual PM2.5 NAAQS. EPA has concluded that NY-NJ-CT nonattainment area is continuing to attain the 1997 annual PM2.5 NAAQS. Therefore, the statutory criterion for attainment of the 1997 annual PM2.5 NAAQS (40 CFR 50.7 and Appendix N of part 50) has been met.

2006 24-hour PM2.5 NAAQS

An area may be considered to be attaining the 2006 24-hour PM2.5 NAAQS if it meets the NAAQS as determined in accordance with 40 CFR 50.13 and Appendix N of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the 98th percentile 24-hour concentration, as determined in accordance with 40 CFR part 50, Appendix N, is less than or equal to 35 μg/m3 at all relevant monitoring sites in the subject area over a 3-year period. The relevant data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in EPA’s AQS. The monitors meet data completeness requirements when “at least 75 percent of the scheduled sampling days for each quarter have valid data.” The use of less than complete data is subject to the approval of EPA, which may consider factors such as monitoring site closures/moves, monitoring diligence, and nearby concentrations in determining whether to use such data.

EPA previously finalized the determination that the NY-NJ-CT nonattainment area had attained the 2006 24-hour PM2.5 NAAQS, as noted in Section II.  The ambient air monitoring data submitted by New York shows PM2.5 concentrations attaining the 24-hour PM2.5 NAAQS for 2007-2009 and 2008-2010 time periods.  EPA has also reviewed more recent quality-assured data for the NY-NJ-CT nonattainment area and found that the NYNAA continued to attain the 2006 24-hour PM2.5 NAAQS through 2012.

Table 2, below, shows the design value by county for the 98th percentile 24-hour PM2.5 concentrations for the 2007-2009, 2008-2010, 2009-2011, and 2010-2012 time periods for the 2006 24-hour PM2.5 NAAQS for the NY-NJ-CT PM2.5 nonattainment area monitors.

(μg/m3)

[The 24-hour PM2.5 NAAQS is 35 μg/m3]

County

AQS Monitor ID

3-Year design values

2007-2009	2008-2010	2009-2011	2010-2012

NEW YORK

Bronx

Kings

Nassau

New York

Orange

Queens

Richmond

Rockland

Suffolk

Westchester

NEW JERSEY

Bergen

Essex

Hudson

Mercer

Middlesex

Monmouth

Morris

Passaic

Somerset

Union

CONNECTICUT

Fairfield

New Haven

36-005-0080/133

36-047-0122

36-059-0008

36-061-0134/0079

36-071-0002

36-081-0124

36-085-0055

NM

36-103-0002

36-119-1002

34-003-0003

34-013-0003

34-017-1003

34-021-0008

34-023-0006

NM

34-027-3001

34-031-0005

NM

34-039-0006

09-001-0010/1123

09-009-0027

33

30

28

32

26

30

29

NM

26

29

31

INC

32

29

27

NM

26

30

NM

31

31

31

29

27

25

29

24

28

26

NM

25

28

28

INC

29

27

23

NM

23

26

NM

27

28

29

28

25

23

28

23

26

24

NM

23

25

25

INC

28

26

20

NM

23

25

NM

24

26

28

24

24

INC

26

23

24

24

NM

22

INC

23

23

26

25

19

NM

21

24

NM

24

24

25

NM- No monitor located in county.

INC- All counties listed as INC did not meet 75 percent data completeness requirement for the relevant time period.

Air monitoring data indicates that the NY-NJ-CT nonattainment area continues to meet the 2006 24-hour PM2.5 NAAQS. EPA has concluded that the NY-NJ-CT nonattainment area is continuing to attain the 2006 24-hour PM2.5 NAAQS. Therefore, the statutory criterion for attainment of the 2006 24-hour PM2.5 NAAQS (40 CFR 50.13 and Appendix N of part 50) has been met.

B. The area has met all applicable requirements under section 110 and part D of the CAA

EPA has determined that the NYNAA has met all SIP requirements applicable for purposes of this redesignation under section 110 of the CAA (General SIP Requirements) and that, upon final approval of the 2007 attainment year emissions inventory, as discussed below in this proposed rulemaking, it will have met all applicable SIP requirements under part D of Title I of the CAA, in accordance with CAA section 107(d)(3)(E)(v). In addition, EPA has proposed to find that all applicable requirements of the New York SIP for purposes of redesignation have been approved in accordance with CAA section 107(d)(3)(E)(ii).

1.  Section 110 SIP requirements

Section 110(a)(2) of Title I of the CAA delineates the general requirements for a SIP, which include enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in CAA section 110(a)(2) include, but are not limited to the following:

- Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing;

- Provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality;

- Implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD));

- Provisions for the implementation of part D requirements for New Source Review (NSR) permit programs;

- Provisions for air pollution modeling; and

- Provisions for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D) of the CAA requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants in accordance with the NOx SIP Call, October 27, 1998 (63 FR 57356), amendments to the NOx SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and CAIR, May 12, 2005 (70 FR 25162). However, the CAA section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area’s designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area’s designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state.  Thus, EPA does not believe that these requirements are applicable requirements for purposes of redesignation.

In addition, EPA believes that the other CAA section 110(a)(2) elements not connected with nonattainment plan submissions and not linked with an area’s attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after it is redesignated. EPA concludes that the CAA section 110(a)(2) and part D requirements which are linked with a particular area’s designation and classification are the relevant measures to evaluate in reviewing a redesignation request, and that CAA section 110(a)(2) elements not linked in the area’s nonattainment status are not applicable for purposes of redesignation. This approach is consistent with EPA’s existing policy on applicability of conformity (i.e., for redesignations) and oxygenated fuels requirement.  See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida final rulemaking (60 FR 62748, December 7, 1995).  See also the discussion on this issue in the Cincinnati, Ohio redesignation (65 FR at 37890, June 19, 2000) and in the Pittsburgh, Pennsylvania redesignation (66 FR at 53099, October 19, 2001).

New York submitted Section 110 ‘‘infrastructure SIPs’’ required under CAA section 110(a)(2) to EPA for the 1997 PM2.5 NAAQS (dated October 2, 2008) and 2006 PM2.5 NAAQS (dated March 15, 2010).   EPA has reviewed the New York SIP and has concluded that it meets the general SIP requirements under section 110(a)(2) of the CAA to the extent they are applicable for purposes for redesignating the NYNAA to attainment for the 1997 annual PM2.5 NAAQS, and the 2006 24-hour PM2.5 NAAQS. EPA took final action approving New York’s infrastructure SIP submittals on June 20, 2013 (78 FR 37122).  The requirements under section 110(a)(2) of the CAA are, however, statewide requirements that are not linked to the PM2.5 nonattainment status of the NYNAA. Therefore, EPA believes that these SIP elements are not applicable requirements for purposes of review of New York’s PM2.5 redesignation request.

 2. Title I, part D nonattainment requirements

Subpart 1 of part D of Title I of the CAA sets forth the basic nonattainment requirements applicable to all nonattainment areas. All areas that were designated nonattainment for the 1997 and 2006 PM2.5 NAAQS were designated under this subpart of the CAA, and the requirements applicable to them are contained in sections 172 and 176.

Section 172 Requirements

Under CAA section 172, states with nonattainment areas must submit plans providing for timely attainment and meet a variety of other requirements. As mentioned, EPA has finalized determinations that the NY-NJ-CT nonattainment area had attained the 1997 annual and 2006 24-hour PM2.5 NAAQS.

New York’s obligation to submit an attainment demonstration, RACT/RACM, RFP, contingency measures, and other planning SIPs related to the attainment of the PM2.5 NAAQS has been suspended due to EPA’s determination that the NY-NJ-CT nonattainment area has attained the 1997 annual and 2006 24-hour PM2.5 NAAQS. New York submitted a SIP revision (PM2.5 attainment plan) for attaining the 1997 annual PM2.5 NAAQS on October 27, 2009.  The requirements to submit PM2.5 attainment plans were suspended as a result of the determination of attainment and it was not necessary for New York to submit a plan for the 2006 24-hour PM2.5 NAAQS. The only remaining requirement to be considered after the determination of attainment is the emission inventory required under CAA section 172(c)(3).

The General Preamble for Implementation of Title I also discusses the evaluation of these requirements in the context of EPA’s consideration of a redesignation request. The General Preamble sets forth EPA’s view of applicable requirements for purposes of evaluating redesignation requests when an area is attaining the standard.  See General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).

A component of the attainment plan specified under section 172(c)(1) is the requirement to provide for the “implementation of all reasonably available control measures as expeditiously as practicable “(RACM). Since RACM is an element of the attainment demonstration, see General Preamble (57 FR 13560), for the same reason the attainment demonstration no longer applies by its own terms, RACM also no longer applies to areas that EPA has determined have clean air.  Furthermore, EPA has consistently interpreted this provision to require only implementation of such potential RACM measures that could advance attainment. Thus where an area is already attaining the standard, no additional RACM measures are required. EPA’s interpretation that the statute requires only implementation of the RACM measures that would advance attainment was upheld by the United States Court of Appeals for the Fifth Circuit (Sierra Club v. EPA, 314 F. 3d 735, 743-745, 5th Cir, 2002) and by the United States Court of Appeals for the D.C. Circuit (Sierra Club v. EPA, 294 F. 3d 155, 162-163, D.C. Cir.2002).

Because attainment has been reached for the NY-NJ-CT nonattainment area, no additional measures are needed to provide for attainment. CAA section 172(c)(1) requirements for an attainment demonstration and RACT/RACM are no longer considered to be applicable requirements for as long as the area continues to attain the standard until redesignation. See 40 CFR 51.1004(c).

The RFP requirement under CAA section 172(c)(2) is similarly not relevant for purposes of redesignation. CAA section 172(c)(2) provides that state implementation plan (SIP) provisions in nonattainment areas must require “reasonable further progress.” The term “reasonable further progress” is defined in section 171(1) as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date.”  Thus, by definition, the “reasonable further progress” provision under requires only such reductions in emissions as are necessary to attain the NAAQS.  If an area has attained the NAAQS, the purpose of the RFP requirement has been fulfilled, and since the area has already attained, showing that the State will make RFP towards attainment “[has] no meaning at that point.”  General Preamble, 57 FR 13498, 13564 (April 16, 1992).

Section 172(c)(3) requires submission and  approval of a comprehensive, accurate, and current inventory of actual emissions. As part of the maintenance plan submitted by New York on June 27, 2013, the State has submitted an attainment year inventory that meets this requirement. For purposes of the PM2.5 NAAQS, the emissions inventory should address not only direct emissions of PM2.5, but also emissions of all precursors with the potential to participate in PM2.5 formation, i.e., SO2, NOX, VOC and ammonia (NH3). The 2007 attainment year emissions inventory submitted by New York in the June 27, 2013 submission addressed PM2.5, SO2, and NOx, VOC and NH3 emissions.

The emissions cover the general source categories of point sources, area sources, onroad sources and nonroad sources.  The proposed approval of the 2007 attainment year emissions inventory in this rulemaking action will, when finalized, meet the requirements of CAA section 172(c)(3).

EPA’s detailed evaluation of the base year inventories for all pollutants are addressed in section VII.E.2.(a), Attainment Emissions Inventory, of the proposed rulemaking, and the additional Technical Support document entitled, SECTION  1, 2007 Base Year Inventory SIP for the New York Metropolitan 10-County PM2.5 Nonattainment Area, Technical Support Documentation

Section 172(c)(4) of the CAA requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and CAA section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since the PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a nonattainment New Source Review (NSR) program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in the memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994 entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.”  New York’s approved PSD program will become effective in the NYNAA area upon redesignation to attainment.

Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the standard. Because attainment has been reached in the NY-NJ-CT nonattainment area, no additional control measures are needed to provide for attainment.

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes the New York SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.

CAA section 172(c)(9) provides that SIPs in nonattainment areas “shall provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the [NAAQS] by the attainment date applicable under this part. Such measures shall be included in the plan revision as contingency measures to take effect in any such case without further action by the State or [EPA].”  This contingency measure requirement is inextricably tied to the reasonable further progress and attainment demonstration requirements. Because attainment has been reached for the 1997 annual and the 2006 24-hour PM2.5 NAAQS, contingency measures are not applicable for redesignation.

Section 176 conformity requirements

Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine transportation conformity applies to transportation plans, programs and projects that are developed, funded or approved under Title 23 of the United States Code (U.S.C.) and the Federal Transit Act. The requirement to determine general conformity applies to all other federally supported or funded projects. State transportation conformity SIP revisions must be consistent with Federal transportation conformity regulations relating to consultation, enforcement and enforceability that EPA promulgated pursuant to its authority under the CAA.

EPA interprets the conformity SIP requirements as not applying for purposes of evaluating a redesignation request under section 107(d) because state conformity rules are still required after redesignation and Federal conformity rules apply where state rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding this interpretation); see also 60 FR 62748 (December 7, 1995) (redesignation of Tampa, Florida).

C. Fully approved SIP under 110(k) of the CAA

 Section 107(d)(3)(E)(ii) of the CAA requires that for an area to be redesignated the Administrator has fully approved the applicable implementation plan for the area under section 110(k).

Upon final approval of New York’s 2007 attainment year emissions inventory, EPA will have fully approved the SIPs for the NYNAA for the 1997 annual and 2006 24-hour PM2.5 NAAQS under section 110(k) for all requirements applicable for purposes of redesignation.

EPA is proposing to approve the 2007 attainment year emissions inventory (submitted as part of its maintenance plan) for the NYNAA nonattainment area as meeting the requirement of section 172(c)(3) of the CAA for the 1997 annual and 2006 PM2.5 NAAQS.  Therefore, New York will have satisfied all applicable requirements under part D of Title I of the CAA.

 D. The air quality improvement must be permanent and enforceable

The improvement in air quality must be due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable federal air pollution control regulations and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)).  EPA proposes to determine that the air quality improvement in the NYNAA is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other state adopted measures.

As indicated in the proposal, the NY-NJ-CT nonattainment area has come into attainment with the 1997 annual and the 2006 24-hour PM2.5 NAAQS beginning with the 2007-2009 time period.  The area has remained in attainment and the air quality has improved. The PM2.5 maximum and average concentrations for NYNAA monitors shows a downward trend over the past decade.

Figure 1 below shows generally decreasing 1997 annual maximum concentrations for the NY-NJ-CT nonattainment area beginning in 2001 and continuing through 2010.

Figure   SEQ Figure \* ARABIC  1

Figure 2 shows generally decreasing 2006 24-hour maximum concentrations for the NY-NJ-CT nonattainment area beginning in 2001 and continuing through 2010.

Figure 3 shows the downtrend of average 1997 annual design values for the NY-NJ-CT nonattainment area

Figure   SEQ Figure \* ARABIC  3

Figure 4 shows the downtrend of average 2006 24-hour design values for the NY-NJ-CT nonattainment area

Figure   SEQ Figure \* ARABIC  4

New York’s maximum design values in the NY-NJ-CT nonattainment area have not exceeded the annual NAAQS since 2007, New Jersey’s maximum design values have not exceeded the annual NAAQS since 2006, and Connecticut’s maximum design value has not exceeded the annual NAAQS since 2003.  For the 2006 24-hour PM2.5 NAAQS, New York’s and New Jersey’s maximum design values have not exceeded the NAAQS since 2008, and Connecticut’s maximum design value has not exceeded the NAAQS since 2007. Table 3 below shows the decreasing maximum design values for each state in the nonattainment area as a percentage of the NAAQS

Table 3 Maximum Design Values

The improvement in air quality can be attributable to the federal and SIP approved state control measures that provide for PM2.5, and PM2.5 precursors emission reductions from 2002 through PM2.5 NAAQS attainment beginning in 2007-2009 (see Table 4). The tables below also indicate the maintenance plan measures with quantifiable emission reductions that New York is relying on to demonstrate maintenance.

Table 4 - List of Post-2002 New York Control Measures for PM2.5 and Precursors

Name of Control  Measure	Type of measure	Targeted Pollutants	Maintenance Plan Measure	State Citation

NOx	PM2.5	SO2	VOC	NH3

Architectural and Industrial Maintenance Coatings	State

X

	6 NYCRR 205

Reasonably Available Control Technology for Major Facilities	State	X

	X

	6 NYCRR 212.10

Solvent Metal Cleaning Process	State

X

	6 NYCRR 226

Reasonably Available Control Technology for Major Facilities of Oxides of Nitrogen	State	X

	X	6 NYCRR 227-2

Portland Cement Plants	State	X

6 NYCRR 220-1

Glass Plants	State	X

6 NYCRR 220-2

Surface Coating Processes, Commercial and Industrial Adhesives, Sealants and Primers	State

X

X	6 NYCRR 228

Graphic Arts	State

X

	6 NYCRR 234

Portable Fuel Container Spillage Control	State

X

X	6 NYCRR 239

New York I/M Program	State	X

	X

X	6 NYCRR 217

Residential Woodstove NSPS	Federal rule	X	X

X

X

	CAIR	Federal rule	X

X

Federal Tier 2 Gasoline Sulfur Program	Federal rule

	X

	X

	Federal Clean Diesel Program	Federal rule	X	X	X	X

X

	Control of Emissions from Nonroad Large Sparking Engines, and Recreational Engines (Marine and Land-based)	Federal rule	X	X

X

X

	Control of Emissions of Air Pollution from  Nonroad Diesel Engines and Fuel	Federal rule	X	X	X

	X

Table 5 shows federal and state post 2007-2009 maintenance plan measures with creditable emissions reductions, including measures that have been adopted, but not yet implemented, that New York is relying on to demonstrate maintenance.

Table 5-List of 2007-2009 New York Maintenance Plan Control Measures for PM2.5 and Precursors

Name of Control Measure	Type of Measure	Targeted Pollutants	Maintenance Plan Measure	State Citation

NOx	PM2.5	SO2	VOC	NH3

EGU- Oil	State	X

X	X

X	6 NYCRR Part 227

EGU- Gas	State	X

	X

X	6 NYCRR Part 227 and 228

Low Sulfur Distillate and Residual Fuel Strategies	State

X	X

	X	6 NYCRR Parts 225

Asphalt	State

X

X	6 NYCRR Part 241

Consumer Products	State

X

X	6 NYCRR Parts 231

Oil Combustion Sources	State

X

X	6 NYCRR Parts 227

Natural Gas Combustion	State

X

X	6 NYCRR Parts 227

New York Combustion Regulation	State	X	X	X

	X	6 NYCRR Parts 227

New York Low Emission Vehicle Program (LEV II)	State	X	X

X

X	6 NYCRR Part 218

Heavy Duty Highway Rule- Vehicle Standards and Diesel Fuel Sulfur Co Federal Rule	X	X	X	X

X

	Nonroad Diesel Engines	Federal Rule	X	X

X

X

	Locomotive Engines and Marine Compression-Ignition Engines Less than 30 Liters per Cylinder	Federal Rule	X	X

X

X

	Phase 2 Standards for Non-Road Spark Ignition Non-handheld Engines at or below 19 kW	Federal Rule	X

	X

X

	Phase 2 Standards  for Small Spark Ignition Handheld Engines at or below 19 kW	Federal Rule	X

	X

X

	Recreational Vehicles (includes snowmobiles, off-highway motorcycles, and all-terrain vehicles)	Federal Rule	X

	X

X

	Gasoline Boats and personal watercraft, outboard engines	Federal Rule	X X

X

X

New York’s submittal also included additional measures to provide additional assurance that New York’s air quality will continue to comply with the 1997 annual and 2006 24-hour PM2.5 NAAQS.  Those measures are listed in Table 6 below.

Table 6-List of Additional New York Control Measures (Non-quantifiable) for PM2.5 and Precursors

Name of Control Measure	Type of Measure	Targeted Pollutants	State Citation

NOx	PM2.5	SO2	VOC	NH3

	Heavy Duty Diesel Vehicle Defeat Device Settlement	Federal Settlement	X

	Diesel Idling Rule Amendments	State	X	X

6 NYCRR Part 217

New York Low Emission Vehicle Program (LEV III)	State	X	X

6 NYCRR Part 218

Personal Watercraft	State	X	X

6 NYCRR Part 210

Hot Mix Asphalt Production Plants	State	X

	6 NYCRR Part 212.12

Best Available Retrofit Technology (BART)	State	X	X	X

	6 NYCRR Part 249

Ultra Low Sulfur Heating Oil	State

	X

	ECL 19-0325

A control measures benefits summary showing projected emission reductions through 2025 is included in Appendix A, Projected Emissions and Control Measure Benefits Summary 2007-2025. A description of New York’s control measures can be found in the New York’s redesignation request and maintenance plan submittal, New York’s October 27, 2009 PM2.5 Attainment Plan SIP submittal, Sections 5.5 and 6, which is included in Appendix B of this TSD, and/or in the Federal or New York state rules referenced.

New York has demonstrated that actual enforceable emission reductions are responsible for the air quality improvement. EPA proposes to find that the combination of existing EPA-approved SIP and Federal measures contribute to the permanence and enforceability of reduction in ambient PM2.5 levels that have allowed New York to attain the 1997 PM2.5 and 2006 PM2.5 NAAQS.

E. The area must have a fully approved maintenance plan under section 175A of the CAA

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate NYNAA from nonattainment area to attainment for the 1997annual PM2.5 NAAQS and the 2006 24-hour PM2.5 NAAQS, New York submitted a SIP revision to provide for maintenance for at least 10 years after the effective date of redesignation to attainment. EPA believes this maintenance plan meets the requirements for approval under section 175A of the CAA.

1.  What is required in a maintenance plan?

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future PM2.5 violations. The Calcagni Memorandum, dated September 4, 1992, provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: (1) An attainment emissions inventory; (2) a maintenance demonstration showing maintenance for 10 years; (3) a commitment to maintain the existing monitoring network; (4) verification of continued attainment; and (5) a contingency plan to prevent or correct future violations. As is discussed more fully below, EPA proposes to find that the New York maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the New York SIP.

2.  Analysis of the maintenance plan

The maintenance demonstration must demonstrate effective safeguards of the NAAQS for at least 10 years following the redesignation showing that future PM2.5 and precursor emissions will not exceed the level of the attainment year.

States are required to submit the following inventory elements to satisfy the redesignation/ maintenance plan inventory requirements:

Maintenance Plan Attainment Inventory. Maintenance plan provisions include a comprehensive, accurate, and current emissions inventory from all point, area, nonroad and onroad mobile sources for the PM2.5 nonattainment area. States are required to develop an attainment inventory to identify the level of emissions in the area that is sufficient to attain the NAAQS. This inventory should include the emissions during the time period associated with the monitoring data showing attainment.

Maintenance Plan Interim Year Inventory. At a minimum, emissions should be projected to a midpoint year between the attainment year and the endpoint/10-year inventory. This inventory provides a summary of controlled emissions for point, area, nonroad and onroad mobile sources for the PM2.5 nonattainment area for the interim year inventory.

Maintenance Plan Projected Final Year Inventory. Emissions should be projected from the attainment year to at least 10 years into the future.  This inventory provides a summary of controlled emissions for point, area, nonroad and onroad mobile sources at the endpoint/10-year period.

For the NYNAA nonattainment area, 2007 emissions were projected to 2017 and 2025. New York must demonstrate, with the control programs identified in this SIP, that total 2017 or 2025 projected emissions do not exceed the 2007 emission levels.

EPA’s detailed evaluation of the 2007 Attainment and 2017 and 2025 Projection Inventories, including evaluating the effect of the D.C. Circuit’s remand of EPA’s implementation rule on the maintenance plan, are addressed in Section VI.E.2.(a)-(c) of the proposed rulemaking, and the document, Section 2, 2007 Attainment and 2017 and 2025 Projection Inventories for the New York Metropolitan 10-County PM2.5 Nonattainment Areas  PM2.5 Redesignation Full Maintenance Plan SIP, Technical Support Document, and the document Section 3, Emission Inventory Requirements for the NYC 10-County PM2.5 Nonattainment Area PM2.5 Redesignation/Full Maintenance Plan Demonstration Checklist.

Maintenance Demonstration Thru 2025

CAA section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the area “for at least 10 years after the redesignation.”  EPA has interpreted this as a showing of maintenance “for a period of 10 years following redesignation.”  See Calcagni Memorandum. Where the emissions inventory method of showing maintenance is used, its purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory.  See Calcagni Memorandum.

As discussed in detail in the proposed rulemaking and in the documents referenced above (i.e. Section 2 and Section 3), the State’s maintenance plan submission expressly documents that the NYNAA emissions inventories will remain below the attainment year inventories through at least 2025.

As explained in the proposal, levels of all PM2.5 precursors are projected to decrease substantially between 2007 and 2025.  EPA believes that it is highly improbable that sudden increases would occur that could exceed the attainment year inventory levels in 2025.

 μg/m3 or more, indicating a margin of safety in the event of any emissions increase. As shown in Table 1, for the 1997 annual NAAQS of 15 μg/m3, the 2010-2012 for the NY-NJ-CT PM2.5 nonattainment area value was 11.8 μg /m3.  As shown in Table 2, for the 2006 PM2.5 NAAQS of 35 μg /m3, the design value for 2010-2012 for the NY-NJ-CT PM2.5 nonattainment area was 26 μg /m3.

Air quality concentrations showed a significant downward trend over time for the NY-NJ-CT PM2.5 nonattainment area for both the 1997 and 2006 PM2.5 NAAQS.  Figures 1-4 in Section IV.D show the declining trend in design value maximums and average arithmetic mean design values for both the 1997 annual and 2006 24-hour NAAQS.

Additional emissions reductions will occur now, and in the future, from EPA’s Mercury and Air Toxics Standards (MATS).

Federal Mercury and Air Toxics Standards

On December 16, 2011, the EPA promulgated the MATS to reduce emissions of toxic pollutants from power plants.  MATS was updated on March 28, 2013. The rule includes emission limits for mercury, particulate matter, SO2, acid gases and certain individual metals.

EPA estimates that there are approximately 1,400 units affected by this action, which includes approximately 1,100 existing coal-fired units and 300 oil fired units at about 600 power plants.  There are 73 facilities in New Jersey, Pennsylvania, Delaware, New York and Connecticut that could potentially be affected by the MATS.

Monitoring Network

New York has committed to tracking the air quality for continued attainment of the PM2.5 NAAQS, and will work with EPA prior to making any changes to the existing PM2.5 air monitoring network.

The State is obligated to work with EPA each year through the air monitoring network review process, as required by 40 CFR part 58 to determine: 1) the adequacy of the PM2.5 monitoring network; 2) if additional monitoring is needed; and 3) if/when sites can be discontinued or relocated.  Any changes to the monitoring network, including replacing or moving monitor(s) to new locations, as necessary, will be made through the air monitoring network review process. This review process undergoes a public comment period, and is subject to approval by the EPA. Air monitoring data will continue to be quality assured according to requirements in 40 CFR 58.

Copies of EPA’s air monitoring network approval letters for New York can be found in the technical support documents for the determinations of attainment for the NY-NJ-CT nonattainment area, which is included in the docket of this rulemaking.

EPA has proposed to conclude that the New York has met the requirement for continuing to operate an appropriate air monitoring network.

Verification of continued attainment

Continued attainment of the PM2.5 NAAQS in the state depends, in part, on the state's efforts towards tracking indicators of continued attainment during the maintenance period. New York’s plan for verifying continued attainment of the 1997 and 2006 PM2.5 standards consists of continued operation of New York’s PM2.5 air monitoring network in accordance with the requirements of 40 CFR part 58.  New York will also verify continued attainment by determining whether emission levels from New York’s emission inventory, which is developed every three years, are adequate.

EPA proposes to approve New York’s plans for verifying continued attainment of the PM2.5 NAAQS.

Contingency measures in the attainment plan

Section 175A of the CAA requires that a maintenance plan include such contingency provisions as EPA deems necessary to ensure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state.  The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented.  The maintenance plan must include a requirement that the state will implement all measures with respect to control of the pollutant(s) that were contained in the SIP before redesignation of the area to attainment.  See section 175A(d) of the CAA.

As required by 175A of the CAA, New York has included contingency provisions in the maintenance plan to address possible future PM2.5 air quality problems. However, instead of providing a specific schedule and procedure for the adoption and implementation of contingency measures, New York has identified the list of measures that are currently being pursued by the State, which will be adopted once the New York’s rulemaking process has been concluded.  New York expects these rules to be adopted within the next few years.  These measures include the following:

New NOx and PM control limits on distributed generation sources that are not already subject to state or federal limits (6 NYCRR Part 222- Distributed Generation)

Additional VOC emission reductions from gasoline dispensing facilities and gasoline transport vehicles (Revisions to 6 NYCRR Part 230- Gasoline Dispensing Sites and Transport Vehicles)

New York has also identified two recently adopted rules as contingency measures: Revisions to 6 NYCRR Part 225- Fuel Composition and Use (adopted April 5, 2013) , and Revisions to 6 NYCRR Part 228- Surface Coating Processes, Commercial and Industrial Adhesives, Sealants, and Primers (adopted June 5, 2013) .  Although New York included these measures in the list of control measures that the State was relying on to demonstrate maintenance (see Section VI.D. for the list of identified maintenance control measures), and while EPA supports the adoption and implementation of these rules to reduce PM2.5 emissions, EPA is proposing that these two measures do not qualify as contingency measures since they have already been adopted and used for maintenance.  Regardless, EPA notes that PM2.5 levels are sufficiently below the NAAQS indicating a sufficient margin of safety in the event of emissions increase.  2010-2012 design values are below the NAAQS by more than 3 μg/m3 for both the 1997 annual and 2006 24-hour PM2.5 NAAQS.  Tables 1 and 2 and Figures 1-4 show the design values and design value trends for the NY-NJ-CT PM2.5 nonattainment area.  EPA proposes that it is unlikely that New York will violate the PM2.5 NAAQS, as design values in all counties in the NY-NJ-CT nonattainment area are well below the NAAQS, and continue to decrease.

New York has affirmed that all control measures in the maintenance plan have been implemented, or adopted with future implementation dates.  New York has also noted in their submittal that the control measures that have led to expeditious attainment of the annual and 24-hour PM2.5 NAAQS are SIP implemented measures that cannot be repealed or relaxed without equivalent reductions from other sources(s) (e.g. CAA section 110 anti-backsliding provisions).

μg/m3 for the 1997 annual NAAQS, and 32.0 ug/m3 for the 24-hour 2006 NAAQS.  The “modeled differential” between the modeled design values and the PM2.5 NAAQS indicates that there are excess emission reductions available for contingency based on EPA CSAPR modeling.

EPA proposes to find that New York’s maintenance plan includes appropriate contingency measures to promptly correct any violation of the NAAQS that occurs after redesignation.

V. SUMMARY AND RECOMMENDATIONS

EPA has proposed to approve New York’s request to redesignate the NYNAA from nonattainment to attainment for the 1997 annual and the 2006 24-hour PM2.5 NAAQS.

EPA has determined that the NYNAA meets the requirements for redesignation under 107(d)(3)(E) of the CAA.  Specifically, EPA has determined that the areas have:  (1) attained the applicable NAAQS; (2) met all applicable requirements under section 110 and part D of the CAA; (3) a fully approved SIP under section 110 (k) of the CAA; (4) permanent and enforceable air quality improvement; (5) and a fully approved maintenance plan that provides for continued maintenance of the 1997 annual and the 2006 24-hour PM2.5 NAAQS.

Appendix A, Projected Emission Reductions from New Control Strategies

SCC	2007 (tons)	2017 Growth& Control (tons)	2025 Growth

& Control (tons)	SCC Category

Part 228 ‐ VOC- Surface Coating Processes, Commercial and Industrial Adhesives, Sealants and Primers

2401005000	3.54	3.72	3.87	Surface Coating /Auto Refinishing /Total: All Solvent Types

2461200000	3,129.49	3,283.77	3,397.51	Misc Non‐industrial: Commercial /Adhesives & Sealants /Total: All Solvent T

2440020000	2,268.73	640.89	528.93

‐ VOC- Asphalt Pavement and Asphalt Based Surface Coating

2401008000	130.12	130.12	130.12	Surface Coating /Traffic Markings /Total: All Solvent Types

ECL 19‐0325-Ultra Low Sulfur Heating Oil ‐ PM2.5

2101004000	0.05	0.06	0.06	Stationary Fuel Comb /Electric Utility /Distillate Oil /Total: Boilers…

2102004000	17.66	14.80	14.37	Stationary Fuel Comb /Industrial /Distillate Oil /Total: Boilers and IC Eng

2103004001	330.35

	234.08	216.00	Stationary Fuel Comb /Commercial/Institutional /Distillate Oil /Total: Boil

2103004002	506.28	358.75	331.04	Stationary Fuel Comb /Commercial/Institutional /Distillate Oil /Total: Boil

2104004000	848.86	671.97	584.85	Stationary Fuel Comb /Residential /Distillate Oil /Total: All Combustor Typ

TOTAL	1,703.20	1,279.65	1,146.32

	Ultra Low Sulfur-Heating Oil‐ PM10

2101004000	2.01	2.31	2.36	Stationary Fuel Comb /Electric Utility /Distillate Oil /Total: Boilers…

2102004000	73.60	61.66	59.89	Stationary Fuel Comb /Industrial /Distillate Oil /Total: Boilers and IC Eng

2103004001	428.93	303.94	280.46	Stationary Fuel Comb /Commercial/Institutional /Distillate Oil /Total: Boil

2103004002	506.28	358.75	331.04	Stationary Fuel Comb /Commercial/Institutional /Distillate Oil /Total: Boil

2104004000	1,102.18	872.50	759.38	Stationary Fuel Comb /Residential /Distillate Oil /Total: All Combustor…

TOTAL	2,112.99	1,599.15	1,433.13

Appendix B –Control Measures Descriptions

CONTROL MEASURES DESCRIPTIONS

This chapter discusses the particulate matter related control measures implemented, or expected to be implemented in New York, in the Northeast/Mid-Atlantic Regions, and nationally.  This appendix focuses on those measures designed to decrease PM2.5, NOx, SO2, VOC, and NH3 or a combination of these pollutants.  This section provides additional details on the control measures discussed in the proposal and New York’s submittal.  Included are State and Federal measures relied on to demonstrate maintenance.

State Measures

Architectural and Industrial Maintenance (AIM) Coating:

6 NYCRR Part 205 (latest revision effective 1/1/05): Sets limits on the VOC content of materials defined as architectural coatings and industrial maintenance coatings.

Reasonably Available Control Technology for Major Facilities:

6 NYCRR Section 212.10 (latest revision effective 9/22/94): Measure which continues to achieve emission reductions as it requires major stationary sources to apply RACT to all emission points of NOx and VOC.

Solvent Metal Cleaning Processes:

6 NYCRR Part 226 (latest revision effective 5/7/03): This RACT regulation sets guidelines and operating requirements for the cleaning of metal surfaces by VOC-containing substances.

Reasonably Available Control Technology (RACT) for Major Facilities of Oxides of Nitrogen (NOx):

6 NYCRR Subpart 227-2 (previous revision effective 2/11/04): Updated the existing subpart 227-2, which contains NOx emission limits for boilers of various sizes and combustion turbines, with additional/more stringent NOx limits.

Vehicle Inspection and Maintenance Program (I/M):

Enhanced I/M program which has reduced mobile source emissions through the following actions:

Enhanced Motor Vehicle Inspection/Maintenance Program (March 1996);

New York Vehicle Inspection Program – NYVIP (March 2006);

New York Metropolitan Area Enhanced I/M Program (June 2009).

State Measures: NOx

Hot Mix Asphalt Production Plants:

6 NYCRR Section 212.12: Introduced requirements for annual burner tune-ups on asphalt plant burners and stockpile moisture control in an effort to reduce the amount of fuel burned and the ensuing NOx emissions. These requirements were effective in 2011. The regulation also requires an analysis of low-NOx burner technology for future burner replacements at existing plants, and requires new plants to have low-NOx burners installed (effective 9/30/2010).

Portland Cement Plants:

6 NYCRR Subpart 220-1: Requires an updated RACT analysis at portland cement plants (currently two exist in NY). Equipment deemed as RACT was required to be operating by July 1,

2012 (revised; effective 7/11/2010).

Glass Plants:

6 NYCRR Subpart 220-2: Requires a RACT analysis from glass plants (currently four affected in NY). Equipment deemed as RACT was required to be operating by July 1, 2012 (revised; effective 7/11/2010).

Reasonably Available Control Technology (RACT) for Major Facilities of Oxides of Nitrogen (NOx):

6 NYCRR Subpart 227-2: Updates the presumptive NOx RACT emission limits for boilers and combustion engines, with a compliance date of July 1, 2014. Also includes a requirement for case-by-case RACT analyses for combined cycle/cogeneration combustion turbines. (revised; effective 7/8/2010)

State Measures: VOC

Surface Coating Processes, Commercial and Industrial Adhesives, Sealants and Primers:

6 NYCRR Part 228: Achieves VOC reductions through two basic components: sale and manufacture restrictions that limit the VOC content of specified adhesives, sealants and primers sold in New York State; and use restrictions that apply primarily to commercial/industrial applications (revised; effective 9/30/2010).

Graphic Arts:

6 NYCRR Part 234: Expands the current regulation's applicability to include letterpress printing and establishes more stringent RACT for VOCs for facilities that engage in flexographic, offset lithographic and rotogravure printing (revised; effective 7/8/2010).

Consumer Products:

6 NYCRR Part 235: Existing regulation was updated to implement additional VOC product content limits (revised; effective 10/15/2009).

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6 NYCRR Part 239: Existing regulation was revised with the following changes: eliminate existing automatic shutoff feature, fill height, and flow rate standards; simplify compliance testing requirements; and, require certification of portable fuel containers (revised; effective

7/30/2009)

Asphalt Pavement and Asphalt Based Surface Coating:

6 NYCRR Part 241: Updates the permissible VOC content limits for pavement and surface coatings (1/1/2011).

State Measures: Multiple Pollutants/Other

Best Available Retrofit Technology (BART):

6 NYCRR Part 249: This regulation, adopted from a federal program aimed at reducing the impacts of visibility impairing pollutants in Class I areas, targets emissions of SO2, NOx, and PM10 from certain categories of stationary sources which began operation between 1962 and 1977.  NYSDEC identified 19 subject facilities in New York State. Facilities are complying through a variety of options including unit shutdown, emission caps, add-on control technology, and process modifications. Compliance is required by January 1, 2014 (new; effective

5/6/2010).

Ultra Low Sulfur Heating Oil:

ECL §19-0325: This law mandates lower sulfur heating fuel in New York State. The law required the sulfur content of all oil sold for use in residential, commercial, or industrial heating within the state to be no greater than 15 ppm by July 1, 2012. This decreases the allowable limit from the current range of 2,000 to 15,000 ppm (new; effective 7/20/2010).

Federal Measures

Tier 2 Gasoline Sulfur Program:

Phased in from 2004-2007, and now in full effect, the program requires refiners to meet an annual corporate average gasoline sulfur level of 30 ppm (with no individual batch exceeding 80 ppm). This represents up to a 90 percent reduction in sulfur content from uncontrolled levels (effective 4/10/00).

Cleaner Diesel Fuel Program:

This program refers to a collection of mobile-source related regulations. Under this program, a 15 ppm Ultra Low Sulfur Diesel (ULSD) specification was phased in for highway diesel fuel from 2006-2010. Additionally, a low sulfur (500 ppm) and ULSD fuel specification is being phased in for nonroad, locomotive, and marine engines from 2007-2014.

Control of Emissions from Nonroad Large Spark-Ignition Engines, and Recreational Engines (Marine and Land-Based):

A variety of previously unregulated nonroad engines were targeted for NOx, carbon monoxide (CO), and hydrocarbon emission reductions with this rulemaking. Various standards went into effect for the different engine types between 2004 and 2007 (effective 1/7/03).

Control of Emissions of Air Pollution from Nonroad Diesel Engines and Fuel:

This rule established NOx and PM emissions standards for nonroad diesel engines that began being phased-in in 2008. EPA cites sulfur oxide reductions of greater than 99 percent from its nonroad diesel fuel sulfur reductions. These fuel sulfur reductions were implemented with an interim step of 500 ppm in June, 2007, with the final 15 ppm limit in place in June, 2010 (effective 8/30/04).

Control of Emissions of Air Pollution from Locomotive Engines and Marine Compression-Ignition Engines Less Than 30 Liters per Cylinder:

A three-part emission control strategy targeting PM and NOx emissions from locomotives and marine diesel engines. The strategies consist of standards for existing engines (beginning 2008), near-term “Tier 3” emission standards for newly-built engines (phased-in beginning 2009), and long-term “Tier 4” emission standards for newly-built engines (phased-in beginning 2014 for marine diesel engines and 2015 for locomotives). This strategy became effective 7/7/2008.

 The document is available at http://www.epa.gov/crossstaterule/pdfs/AQModeling.pdf

 Preliminary monitoring data for the first three quarters of 2013 also indicates continued attainment

 Preliminary monitoring data for the three quarters of 2013 also indicates continued attainment

 This interpretation was adopted in the General Preamble, see 57 FR 13498, and has been upheld as applied to the Clean Data Policy as well as to nonattainment SIP submissions.  See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir 2002)

 Guidance on transportation conformity SIPs can be found at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf

 CAA section 176(c)(4)(E) requires states to submit revisions to their SIPs to reflect certain Federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from MVEBs that are established in control strategy SIPs and maintenance plans.

 77 Fed. Reg. 9304 (February 16, 2012)

 78 Fed. Reg 24073 (April 24, 2013)

  PAGE   \* MERGEFORMAT  4

  PAGE   \* MERGEFORMAT  21

Figure   SEQ Figure \* ARABIC  2


[Federal Register Volume 76, Number 136 (Friday, July 15, 2011)]
[Rules and Regulations]
[Pages 41687-41689]
[FR Doc No: 2011-17928]

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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 172

[Docket No. FDA-2010-F-0103]

Food Additives Permitted for Direct Addition to Food for Human
Consumption; Hydroxypropyl Cellulose

AGENCY: Food and Drug Administration, HHS.

ACTION: Final rule.

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

SUMMARY: The Food and Drug Administration (FDA) is amending the food
additive regulations for hydroxypropyl cellulose by lowering the
minimum permitted viscosity from 145 centipoises (cPs) to 10 cPs and to
permit its use as a binder in dietary supplements. This action is in
response to a petition filed by Nisso America, Inc.

DATES: This rule is effective July 15, 2011. Submit either electronic
or written objections and requests for a hearing by August 15, 2011.
See section VII of this document for information on the filing of
objections.

ADDRESSES: You may submit either electronic or written objections and
requests for a hearing, identified by Docket No. FDA-2010-F-0103, by
any of the following methods:

Electronic Submissions

    Submit electronic objections in the following way:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.

Written Submissions

    Submit written objections in the following ways:
     Fax:<PHONE_NUMBER>.
     Mail/Hand delivery/Courier (for paper, disk, or CD-ROM
submissions): Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
    Instructions: All submissions received must include the Agency name
and Docket No. FDA-2010-F-0103 for this rulemaking. All objections
received will be posted without change to http://www.regulations.gov,
including any personal information provided. For detailed instructions
on submitting objections, see the ``Objections'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or
objections received, go to http://www.regulations.gov and insert the
docket number, found in brackets in the heading of this document, into
the ``Search'' box and follow the prompts and/or go to the Division of
Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Laura Dye, Center for Food Safety and
Applied Nutrition (HFS-265), Food and Drug Administration, 5100 Paint
Branch Pkwy., College Park, MD 20740-3835,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    In a notice published in the Federal Register of April 8, 2010 (75
FR 17928), FDA announced that Nisso America Inc., 45 Broadway, Suite
2120, New York, NY 10006, filed a food additive petition (FAP 0A4780).
The petition proposed to amend the food additive regulations in Sec.
172.870 (21 CFR 172.870), by lowering the minimum permitted viscosity
of hydroxypropyl cellulose (HPC) identified in Sec.  172.870(a)(1) from
145 cPs to 10 cPs and to permit its use as a binder in dietary
supplements.
    Section 172.870 includes both high-substituted HPC, which contains
not more than 4.6 hydroxypropyl groups per anhydroglucose unit (Sec.
172.870(a)(1)), and low-substituted HPC, which contains on average 0.1
to 0.4 hydroxypropyl groups per anhydroglucose unit (Sec.
172.870(a)(2)). High-substituted HPC can be used, in accordance with
good manufacturing practice, as an emulsifier, film former, protective
colloid, stabilizer, suspending agent and thickener (Sec.
172.870(b)(1)). Low-substituted HPC can be used, in accordance with
good manufacturing practice, as a binder and disintegrator in tablets
or wafers containing dietary supplements (Sec.  172.870(b)(2)). It is
the high-substituted HPC regulated under Sec.  172.870(a)(1) and (b)(1)
that is the subject of this petition.

II. Evaluation of Safety

    Under the general safety standard in section 409 of the Federal
Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 348), a food
additive cannot be approved for a particular use unless a fair
evaluation of the data available to FDA establishes that the additive
is safe for that use. FDA's food additive regulations (21 CFR 170.3(i))
define safe as ``a reasonable certainty in the minds of competent
scientists that the substance is not harmful under the intended
conditions of use.'' To establish with reasonable certainty that

a food additive is not harmful under its intended conditions of use,
FDA considers the estimated human dietary intake of the additive, the
additive's toxicological data, and other relevant information (such as
published literature) available to the Agency.
    Both high-substituted HPC (the subject of this petition) and low-
substituted HPC are forms of cellulose and cellulose derivatives. The
safety of cellulose and cellulose derivatives has been studied
extensively in animals and humans. These studies show that cellulose
and cellulose derivatives pass unchanged through the gastrointestinal
tract and can be quickly detected in the feces of test animals and
humans when consumed, confirming that the consumption of cellulose and
cellulose derivatives at the proposed viscosity and use level will not
result in toxicity. The Joint Food and Agriculture Organization and the
World Health Organization (FAO/WHO) Expert Committee for Food Additives
(JECFA) has evaluated the food uses of modified celluloses, including
HPC, and has concluded that, as a group, modified celluloses are of
very low toxicity at the levels of intake necessary to achieve the
desired effect and do not pose a hazard to health (Ref. 1). Viscosity
is not specified by the JECFA as a factor related to the safety of
these additives.
    Although there is no available safety testing directly on HPC with
a viscosity of < 145 cPs, there have been numerous studies on the
viscosity related safety effect for other modified celluloses. Most of
the safety studies we reviewed analyzed the use of cellulose and
cellulose derivatives. All of these studies support the assertion that
there is no safety effect arising from a change in viscosity. Because
high-substituted HPC with a minimum viscosity of 10 cPs is not expected
to have significantly different biological properties than those
cellulose and cellulose derivatives which have been studied, or the
high and low-substituted HPC currently permitted under Sec.  172.870,
FDA concludes that the proposed use of high-substituted HPC with a
minimum viscosity of 10 cPs is safe.
    Lastly, because high-substituted HPC with a minimum viscosity of 10
cPs is intended to be used for the same purposes as are currently
permitted for either high and low-substituted HPC, including as a
binder in dietary supplements, FDA concludes that the proposed changes
to Sec.  172.870 will not result in an increase in the combined overall
daily intake of high-substituted and low-substituted HPC. Thus,
permitting the use of high-substituted HPC with a minimum viscosity of
10 cPs for use as a binder in dietary supplements will not result in an
increased intake or harm to human health under the established
conditions of use.

III. Conclusion

    FDA reviewed data in the petition and other available relevant
material to evaluate the safety of the petitioned use of high-
substituted HPC with a minimum viscosity of 10 cPs as an emulsifier,
film former, protective colloid, stabilizer, suspending agent, or
thickener in food, and as a binder in dietary supplements. Based on
this information, FDA concludes that the proposed use of the additive
is safe and will achieve its intended technical effect under the
proposed conditions of use. Therefore, the regulations in 21 CFR part
172 should be amended as set forth in this document.

IV. Public Disclosure

    In accordance with Sec.  171.1(h) (21 CFR 171.1(h)), the petition
and the documents that FDA considered and relied upon in reaching its
decision to approve the petition will be made available for inspection
at the Center for Food Safety and Applied Nutrition by appointment with
the information contact person (see FOR FURTHER INFORMATION CONTACT).
As provided in Sec.  171.1(h), the Agency will delete from the
documents any materials that are not available for public disclosure
before making the documents available for inspection.

V. Environmental Impact

    The Agency has previously considered the environmental effects of
this rule as announced in the notice of filing for FAP 0A4780 (75 FR
17928). No new information or comments have been received that would
affect the Agency's previous determination that there is no significant
impact on the human environment and that an environmental impact
statement is not required.

VI. Paperwork Reduction Act of 1995

    This final rule contains no collection of information. Therefore,
clearance by the Office of Management and Budget under the Paperwork
Reduction Act of 1995 is not required.

VII. Objections

    Any person who will be adversely affected by this regulation may
file with the Division of Dockets Management (see ADDRESSES) either
electronic or written objections. Each objection shall be separately
numbered, and each numbered objection shall specify with particularity
the provisions of the regulation to which objection is made and the
grounds for the objection. Each numbered objection on which a hearing
is requested shall specifically so state. Failure to request a hearing
for any particular objection shall constitute a waiver of the right to
a hearing on that objection. Each numbered objection for which a
hearing is requested shall include a detailed description and analysis
of the specific factual information intended to be presented in support
of the objection in the event that a hearing is held. Failure to
include such a description and analysis for any particular objection
shall constitute a waiver of the right to a hearing on the objection.
It is only necessary to send one set of documents. It is no longer
necessary to send three copies of all documents. Identify documents
with the docket number found in brackets in the heading of this
document. Any objections received in response to the regulation may be
seen in the Division of Dockets Management between 9 a.m. and 4 p.m.,
Monday through Friday.

VIII. Section 301(ll) of the Federal Food, Drug, and Cosmetic Act

    FDA's review of this petition was limited to section 409 of FD&C
Act. This final rule is not a statement regarding compliance with other
sections of the FD&C Act. For example, the Food and Drug Administration
Amendments Act of 2007, which was signed into law on September 27,
2007, amended the FD&C Act to, among other things, add section 301(ll)
(21 U.S.C. 331(ll)). Section 301(ll) of the FD&C Act prohibits the
introduction or delivery for introduction into interstate commerce of
any food that contains a drug approved under section 505 of the FD&C
Act (21 U.S.C. 355), a biological product licensed under section 351 of
the Public Health Service Act (42 U.S.C. 262), or a drug or biological
product for which substantial clinical investigations have been
instituted and their existence has been made public, unless one of the
exceptions in section 301(ll)(1) to (ll)(4) applies. In our review of
this petition, FDA did not consider whether section 301(ll) of the FD&C
Act or any of its exemptions apply to food containing this additive.
Accordingly, this final rule should not be construed to be a statement
that a food containing this additive, if introduced or delivered for
introduction into interstate commerce, would not violate section
301(ll) of the FD&C Act. Furthermore, this language is included in all
food additive final rules and therefore should not be construed to be a
statement of the likelihood that section 301(ll) of the FD&C Act
applies.

IX. References

    The following reference has been placed on display in the Division
of Dockets Management (see ADDRESSES) and may be seen by interested
persons between 9 a.m. and 4 p.m., Monday through Friday. (FDA has
verified the Web site address, but FDA is not responsible for any
subsequent changes to the Web sites after this document publishes in
the Federal Register).
    1. Evaluations of the Joint FAO/WHO Expert Committee on Food
Additives (JECFA), Hydroxypropyl Cellulose Toxicology Monograph 687,
FAS 26-JECFA 35/85, 1989; http://apps.who.int/ipsc/database/evaluations/search.aspx.

List of Subjects in 21 CFR Part 172

    Food additives, Reporting and recordkeeping requirements.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Director, Center for Food Safety and Applied
Nutrition, 21 CFR part 172 is amended as follows:

PART 172--FOOD ADDITIVES PERMITTED FOR DIRECT ADDITION TO FOOD FOR
HUMAN CONSUMPTION

0
1. The authority citation for 21 CFR part 172 continues to read as
follows:

    Authority: 21 U.S.C. 321, 341, 342, 348, 371, 379e.

0
2. Section 172.870 is amended by revising paragraphs (a)(1) and (b)(1)
to read as follows:

Sec.  172.870  Hydroxypropyl cellulose.

* * * * *
    (a) * * *
    (1) A cellulose ether containing propylene glycol groups attached
by an ether linkage that contains, on an anhydrous basis, not more than
4.6 hydroxypropyl groups per anhydroglucose unit. The additive has a
minimum viscosity of 10 centipoises for a 10 percent by weight aqueous
solution at 25 degrees C.
* * * * *
    (b) * * *
    (1) The additive identified in paragraph (a)(1) of this section is
used or intended for use as an emulsifier, film former, protective
colloid, stabilizer, suspending agent, or thickener in food, in
accordance with good manufacturing practice. The additive also may be
used as a binder in dietary supplements, in accordance with good
manufacturing practice.
* * * * *

    Dated: July 6, 2011.
Susan M. Bernard,
Acting Director, Office of Regulations, Policy and Social Sciences,
Center for Food Safety and Applied Nutrition.
[FR Doc. 2011-17928 Filed 7-14-11; 8:45 am]
BILLING CODE 4160-01-P


UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, DC

                         Issued by the Department of Transportation on
February 23, 2005

CORRECTED NOTICE*

             NOTICE OF ACTION TAKEN -- DOCKET OST-2005-20279

________________________________________________________________________
____________________________________

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).

Application of      Federal Express Corporation    filed    1/31/05
for:

XX  Exemption for two years under 49 U.S.C. 40109 to provide the
following service:

Scheduled foreign air transportation of property and mail between the
United States and Kazakhstan and beyond, via intermediate points, and to
integrate this authority with its other existing world-wide authorities.

Applicant rep:    G. Bailey Leopard<PHONE_NUMBER>      DOT Analyst:
Sylvia Moore<PHONE_NUMBER>

D I S P O S I T I O N

XX  Granted

The above action was effective when taken:   Februrary 23, 2005  through
  February 23, 2007

Action taken by:   Paul L. Gretch, Director

		    Office of International Aviation

XX  The authority granted is consistent with the overall state of
aviation relations between the United States and Kazakhstan.

Except to the extent exempted or waived, this authority is subject to
the terms, conditions, and limitations indicated:  XX  Holder’s
Certificates of Public Convenience and Necessity

	   XX  Standard Exemption Conditions (attached)

Conditions:  The route integration authority granted is subject to the
condition that any service provided under the exemption shall be
consistent with all applicable agreements between the United States and
the foreign countries involved.  Furthermore, (a) nothing in the award
of the route integration authority requested should be construed as
conferring upon Federal Express rights (including fifth-freedom
intermediate and/or beyond rights) to serve markets where U.S. carrier
entry is limited unless Federal Express notifies us of its intent to
serve such a market and unless and until the Department has completed
any necessary selection procedures to determine which carrier(s) should
be authorized to exercise such rights; and (b) should there be a request
by any carrier to use the limited-entry route rights that are included
in Federal Express’ authority by virtue of the route integration
exemption granted here, but that are not then being used by Federal
Express, the holding of such authority by route integration will not be
considered as providing any preference for Federal Express in a
competitive carrier selection proceeding to determine which carrier(s)
should be entitled to use the authority.

*Corrects earlier Notice of Action Taken dated February 23, 2005.

2

The authority granted to serve intermediate and beyond points is limited
to countries with which the United States has signed open-skies
agreements and/or countries for which the carrier holds authority to
serve under certificates or exemptions issued by the Department, and for
which it holds route integration authority by virtue of either the
present action or other action of the Department.

________________________________________________________________________
______________

On the basis of data officially noticeable under Rule 24(g) of the
Department's regulations, we found the applicant qualified to provide
the services authorized.

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action was consistent with Department
policy; (2) grant of the exemption was consistent with the public
interest; and (3) 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, 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:

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

U.S. Carrier Exemption Conditions

In the conduct of the operations authorized, the U.S. carrier
applicant(s) shall:

(1)  Hold at all times effective operating authority from the government
of each country served;

(2)  Comply with applicable requirements concerning oversales contained
in 14 CFR 250 (for scheduled operations, if authorized);

(3)  Comply with the requirements for reporting data contained in 14 CFR
241;

(4)  Comply with requirements for minimum insurance coverage, and for
certifying that coverage to the Department, contained in 14 CFR 205;

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

(6)  Comply with all applicable requirements of the Federal Aviation
Administration and with all applicable U.S. Government requirements
concerning security, including, but not limited to, 49 CFR Part 1544.
To assure compliance with all applicable U.S. Government requirements
concerning security, the holder shall, before commencing any new service
(including charter flights) to or from a foreign airport, 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; and

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

The authority granted shall be effective only during the period when the
holder is in compliance with the conditions imposed above.

								05/2004

 Initially, Federal Express intends to offer fifth-freedom services
between Hong Kong and Kazakhstan on  Hong Kong-Almaty-Paris-U.S.
flights.


[Federal Register Volume 78, Number 51 (Friday, March 15, 2013)]
[Notices]
[Pages 16493-16494]
[FR Doc No: 2013-05949]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. OR13-15-000]

ExxonMobil Canada Energy, Flint Hills Resources Canada, LP,
Imperial Oil, NOVA Chemical (Canada) Ltd., PBF Holding Company LLC,
Toledo Refining Company, LLC, Pennzoil-Quaker State Canada, Inc.,
Phillips 66 Canada ULC, St. Paul Park Refining Co. LLC, Suncor Energy
Marketing, Inc., United Refining Company v. Enbridge Energy, Limited
Partnership; Notice of Complaint

    Take notice that on March 5, 2013, pursuant to sections 1(6), 3(1),
9, 13(1), and 15(1) of the Interstate Commerce Act (ICA), 49 U.S.C.
App. 1(6), 3(1), 9, 13, and 15(1), Rule 206 of the Federal Energy
Regulatory Commission's (Commission) Rules of Practice and Procedure,
18 CFR 385.206 and section 343.2 of the Commission's Procedural Rules
Applicable to Oil Pipeline Proceedings, 18 CFR 343.2, ExxonMobil Canada
Energy, Flint Hills Resources Canada, LP, Imperial Oil, NOVA Chemical
(Canada) Ltd., PBF Holding Company LLC, Toledo Refining Company, LLC,
Pennzoil-Quaker State Canada, Inc., Phillips 66 Canada ULC, St. Paul
Park Refining Co. LLC, Suncor Energy Marketing, Inc., and United
Refining Company (Complainants) filed a formal complaint against
Enbridge Energy, Limited Partnership (Respondent) alleging that,
Respondent's Nomination Verification Procedure, section 6(c)(3) of its
FERC Tariff No. 41.3.0 violates sections 1(6) and 15(1) of the ICA by
imposing unjust and unreasonable, unjustly discriminatory and unduly
preferential, terms and conditions for the use of Respondent's
pipeline.
    The Complainants certify that copies of the complaint were served
on the Respondent.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to

become a party must file a notice of intervention or motion to
intervene, as appropriate. The Respondent's answer and all
interventions, or protests must be filed on or before the comment date.
The Respondent's answer, motions to intervene, and protests must be
served on the Complainants.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the web site that enables subscribers to receive email
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please email
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5:00 p.m. Eastern Time on March 25, 2013.

    Dated: March 7, 2013.
Kimberly D. Bose,
Secretary.
[FR Doc. 2013-05949 Filed 3-14-13; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 78, Number 141 (Tuesday, July 23, 2013)]
[Notices]
[Page 44110]
[FR Doc No: 2013-17591]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 14510-000]

 FFP Project 124, LLC; Notice of Preliminary Permit Application
Accepted for Filing and Soliciting Comments, Motions To Intervene, and
Competing Applications

    On April 2, 2013, FFP Project 124, LLC filed an application for a
preliminary permit, pursuant to section 4(f) of the Federal Power Act
(FPA), proposing to study the feasibility of a hydropower project to be
located at the US Army Corps of Engineers' (Corps) Red River Lock & Dam
1 on the Red River near the town of Marksville in Catahoula
Parish, Louisiana. The sole purpose of a preliminary permit, if issued,
is to grant the permit holder priority to file a license application
during the permit term. A preliminary permit does not authorize the
permit holder to perform any land-disturbing activities or otherwise
enter upon lands or waters owned by others without the owners' express
permission.
    The proposed project would consist of the following: (1) A 575-
foot-long, 270-foot-wide forebay with a 200-foot-long retaining wall;
(2) a 200-foot-long, 270-foot-wide powerhouse containing four
generating units with a total capacity of 36.8 megawatts; (3) a 500-
foot-long, 270-foot-wide tailrace with a 200-foot-long retaining wall;
(4) a 4.16/69 kilo-Volt (kV) substation; and (5) a 0.4-mile-long, 69kV
transmission line. The proposed project would have an average annual
generation of 163,200 megawatt-hours, and operate as directed by the
Corps.
    Applicant Contact: Mr. Daniel Lissner, Free Flow Power Corporation,
239 Causeway Street, Suite 300, Boston, MA 02114.<PHONE_NUMBER>.
    FERC Contact: Christiane Casey<EMAIL_ADDRESS>(202)
502-8577.
    Deadline for filing comments, motions to intervene, competing
applications (without notices of intent), or notices of intent to file
competing applications: 60 days from the issuance of this notice.
Competing applications and notices of intent must meet the requirements
of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and
competing applications may be filed electronically via the Internet.
See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's
Web site http://www.ferc.gov/docs-filing/efiling.asp. Commenters can
submit brief comments up to 6,000 characters, without prior
registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information
at the end of your comments. For assistance, please contact FERC Online
Support at<EMAIL_ADDRESS>or toll free at 1-866-208-3676,
or for TTY,<PHONE_NUMBER>. Although the Commission strongly encourages
electronic filing, documents may also be paper-filed. To paper-file,
mail an original and five copies to: Kimberly D. Bose, Secretary,
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426.
    More information about this project, including a copy of the
application, can be viewed or printed on the ``eLibrary'' link of
Commission's Web site at http://www.ferc.gov/docs-filing/elibrary.asp.
Enter the docket number (P-14510) in the docket number field to access
the document. For assistance, contact FERC Online Support.

    Dated: July 16, 2013.
 Kimberly D. Bose,
 Secretary.
[FR Doc. 2013-17591 Filed 7-22-13; 8:45 am]
BILLING CODE 6717-01-P