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Subpart 235-11: Alternative Control Plan For Consumer Products

(Statutory authority: Environmental Conservation Law, §§ 1-0101, 3-0301, 3-0303, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305, 71-2103 and 71-2105)

[Filed 09/15/09. Effective 30 days after filing.]

[This is page 1 of 1 of this Subpart. A complete list of Subparts in this regulation appears in the Chapter 3 contents page. A list of sections in this Subpart appears below.]

For administrative information about this posting, contact: Division of Air Resources. The Bureau of Air Quality Planning at (518) 402-8396 is the contact for technical questions pertaining to this rule.

Contents:

Sec.

§235-11.1 Alternative control plan for consumer products

The purpose of this Subpart is to provide an alternative method to comply with the Table of Standards specified in section 235-3.1(a) of this Part. This alternative is provided by allowing responsible ACP parties the option of voluntarily entering into separate alternative control plans for consumer products, as specified in this Subpart and Subparts 235-1 through 235-11 of this Part. Only responsible ACP parties for consumer products may enter into an ACP. When approved by the director, Division of Air Resources, Department of Environmental Conservation, the Alternative Control Plan (ACP) will be submitted to the United States Environmental Protection Agency as a State Implementation Plan revision for approval.

(a) Any manufacturer of consumer products which have been granted an ACP agreement by the CARB under the provisions in sections 94540-94555 of title 17 of the California Code of Regulations (see Table 1, section 200.9 of this Title) shall be exempt from the Table of Standards in section 235-3.1(a) of this Part for the period of time that the CARB ACP agreement remains in effect provided that all ACP products within the CARB ACP agreement are contained in the Table of Standards in section 235-3.1(a) of this Part. Any manufacturer claiming such an ACP agreement on this basis must submit to the director, Division of Air Resources, Department of Environmental Conservation a copy of the CARB ACP decision (i.e., the Executive Order), including all conditions established by CARB applicable to the exemption.

(b) Manufacturers of consumer products that have been granted an ACP agreement under the ACP provision in sections 94540-94555 of title 17 of the California Code of Regulations (see Table 1, section 200.9 of this Title) based on California specific data, or that have not been granted an exemption by the CARB may seek an ACP agreement in accordance with subdivisions (c) through (m) of this section.

(c) Requirements and process for approval of an ACP.

(1) To be considered by the director, Division of Air Resources, Department of Environmental Conservation for approval, an application for a proposed ACP shall be submitted in writing to the director, Division of Air Resources, Department of Environmental Conservation by the responsible ACP party and shall contain all of the following:

(i) an identification of the contact persons, phone numbers, names and addresses of the responsible ACP party which is submitting the ACP application and will be implementing the ACP requirements specified in the ACP agreement;

(ii) a statement of whether the responsible ACP party is a small business or a one-product business, as defined in section 235-2.1 (ey) and (dr) of this Part;

(iii) a listing of the exact product brand name, form, available variations (flavors, scents, colors, sizes, etc.), and applicable product category(ies) for each distinct ACP product that is proposed for inclusion in the ACP;

(iv) for each proposed ACP product identified in subparagraph (iii) of this paragraph, a demonstration to the satisfaction of the director, Division of Air Resources, Department of Environmental Conservation that the enforceable sales records to be used by the responsible ACP party for tracking product sales meet the minimum criteria specified in clause (e) of this subparagraph. To provide this demonstration, the responsible ACP party shall do all of the following:

(a) provide the contact persons, phone numbers, names, street and mail addresses of all persons and businesses who will provide information that will be used to determine the enforceable sales;

(b) determine the enforceable sales of each product using enforceable sales records as defined in section 235-2.1(bg) of this Part;

(c) demonstrate, to the satisfaction of the director, Division of Air Resources, Department of Environmental Conservation, the validity of the enforceable sales based on enforceable sales records provided by the contact persons or the responsible ACP party;

(d) calculate the percentage of the gross New York State sales, as defined in section 235-2.1(dm) of this Part which is comprised of enforceable sales; and

(e) determine which ACP products have enforceable sales which are 75 percent or more of the gross New York State sales. Only ACP products meeting this criteria shall be allowed to be sold in the State of New York under an ACP;

(v) for each of the ACP products identified in clause (iv)(e) of this paragraph, the inclusion of the following:

(a) legible copies of the existing labels for each product;

(b) the VOC content and LVP content for each product. The VOC content and LVP content shall be reported for two different periods, as follows:

(1) the VOC and LVP contents of the product at the time the application for an ACP is submitted; and

(2) any VOC and LVP contents of the product, which have occurred at any time within the four years prior to the date of submittal of the application for an ACP, if either the VOC or LVP contents have varied by more than plus/minus ten percent (±10.0%) of the VOC or LVP contents reported in subclause (1) of this clause;

(vi) a written commitment obligating the responsible ACP party to date-code every unit of each ACP product approved for inclusion in the ACP. The commitment shall require the responsible ACP party to display the date-code on each ACP product container or package no later than five working days after the date an ACP agreement approving an ACP is signed by the director, Division of Air Resources, Department of Environmental Conservation;

(vii) an operational plan covering all the products identified under clause (iv)(e) of this paragraph for each compliance period that the ACP will be in effect. The operational plan shall contain all of the following:

(a) an identification of the compliance periods and dates for the responsible ACP party to report the information required by the director, Division of Air Resources, Department of Environmental Conservation in the ACP agreement approving an ACP. The length of the compliance period shall be chosen by the responsible ACP party provided, however, that no compliance period shall be longer than 365 days. The responsible ACP party shall also choose the dates for reporting information such that all required VOC content and enforceable sales data for all ACP products shall be reported to the director, Division of Air Resources, Department of Environmental Conservation at the same time and at the same frequency;

(b) an identification of specific enforceable sales records to be provided to the director, Division of Air Resources, Department of Environmental Conservation for enforcing the provisions of this Part and the ACP agreement approving an ACP. The enforceable sales records shall be provided to the director, Division of Air Resources, Department of Environmental Conservation no later than the compliance period dates specified in clause (a) of this subparagraph;

(c) for a small business or a one-product business which will be relying to some extent on surplus trading to meet its ACP limits, a written commitment from the responsible ACP party(ies) that they will transfer the surplus reductions to the small business or one-product business upon approval of the ACP;

(d) for each ACP product, all VOC content levels which will be applicable for the ACP product during each compliance period. The plan shall also identify the specific method(s) by which the VOC content will be determined and the statistical accuracy and precision (repeatability and reproducibility) calculated for each specified method;

(e) the projected enforceable sales for each ACP product at each different VOC content for every compliance period that the ACP will be in effect;

(f) a detailed demonstration showing the combination of specific ACP reformulations or surplus trading (if applicable) that is sufficient to ensure that the ACP emissions will not exceed the ACP limit for each compliance period that the ACP will be in effect, the approximate date within each compliance period that such reformulations or surplus trading are expected to occur, and the extent to which the VOC contents of the ACP products will be reduced (i.e., by ACP reformulation). This demonstration shall use the equations specified in Subparts 235-2 and 235-3 of this Part for projecting the ACP emissions and ACP limits during each compliance period. This demonstration shall also include all VOC content levels and projected enforceable sales for all ACP products to be sold in the State of New York during each compliance period;

(g) a certification that all reductions in the VOC content of a product will be real, actual reductions that do not result from changing product names, mischaracterizing ACP product reformulations that have occurred in the past, or any other attempts to circumvent the provisions of this Part;

(h) written explanations of the date-codes that will be displayed on each ACP product's container or packaging;

(i) a statement of the approximate dates by which the responsible ACP party plans to meet the applicable VOC content limit for each product in the ACP;

(j) an operational plan (reconciliation of shortfalls plan) which commits the responsible ACP party to completely reconcile any shortfalls in any and all cases, even, to the extent permitted by law, if the responsible ACP party files for bankruptcy protection. The plan for reconciliation of shortfalls shall contain all of the following:

(1) a clear and convincing demonstration of how shortfalls of up to 5 percent, 10 percent, 15 percent, 25 percent, 50 percent, 75 percent and 100 percent of the applicable ACP limit will be completely reconciled within 90 working days from the date the shortfall is determined;

(2) a listing of the specific records and other information that will be necessary to verify that the shortfalls were reconciled as specified in this clause; and

(3) a commitment to provide any record or information requested by the director, Division of Air Resources, Department of Environmental Conservation to verify that the shortfalls have been completely reconciled;

(viii) a declaration, signed by a legal representative for the responsible ACP party, which states that all information and operational plans submitted with the ACP application are true and correct.

(2) (i) In accordance with the time periods specified in subdivision (d) of this section, the director, Division of Air Resources, Department of Environmental Conservation shall issue an ACP agreement approving an ACP which meets the requirements of this Part. The director, Division of Air Resources, Department of Environmental Conservation shall specify such terms and conditions as are necessary to ensure that the emissions from the ACP products do not exceed the emissions that would have occurred if the ACP products subject to the ACP had met the VOC content limits specified in section 235-3.1(a) of this Part. The ACP shall also include:

(a) only those ACP products for which the enforceable sales are at least 75 percent of the gross New York State sales, as determined in clause (iv)(e) of this paragraph;

(b) a reconciliation of shortfalls plan meeting the requirements of this Part; and

(c) operational terms, conditions, and data to be reported to the director, Division of Air Resources, Department of Environmental Conservation to ensure that all requirements of this Part are met.

(ii) The director, Division of Air Resources, Department of Environmental Conservation shall not approve an ACP submitted by a responsible ACP party if the director, Division of Air Resources, Department of Environmental Conservation determines, upon review of the responsible ACP party's compliance history with past or current ACPs or the requirements for consumer products in this Subpart and Subparts 235-1 through 235-11 of this Part, that the responsible ACP party has a recurring pattern of violations and has consistently refused to take the necessary steps to correct those violations.

(d) ACP approval time frames.

(1) The director, Division of Air Resources, Department of Environmental Conservation shall take appropriate action on an ACP within the following time periods:

(i) Within 30 working days of receipt of an ACP application, the director, Division of Air Resources, Department of Environmental Conservation shall inform the applicant in writing that either:

(a) the application is complete and accepted for filing; or

(b) the application is deficient, and identify the specific information required to make the application complete.

(ii) Within 30 working days of receipt of additional information provided in response to a determination that an ACP application is deficient, the director, Division of Air Resources, Department of Environmental Conservation shall inform the applicant in writing that either:

(a) the additional information is sufficient to make the application complete, and the application is accepted for filing; or

(b) the application is deficient, and identify the specific information required to make the application complete.

(iii) If the director, Division of Air Resources, Department of Environmental Conservation finds that an application meets the requirements of subdivision (c) of this section, then he or she shall issue an ACP agreement in accordance with the requirements of this Part. The director, Division of Air Resources, Department of Environmental Conservation shall act to approve or disapprove a complete application within 90 working days after the application is deemed complete.

(2) Before the end of each time period specified in this Subpart, the director, Division of Air Resources, Department of Environmental Conservation and the responsible ACP party may mutually agree to a longer time period for the director, Division of Air Resources, Department of Environmental Conservation to take the appropriate action.

(e) Recordkeeping and availability of requested information.

(1) All information specified in the ACP agreement approving an ACP shall be maintained by the responsible ACP party for a minimum of three years after such records are generated. Such records shall be clearly legible and maintained in good condition during this period.

(2) The records specified in paragraph (1) of this subdivision shall be made available to the director, Division of Air Resources, Department of Environmental Conservation or his or her authorized representative:

(i) immediately upon request, during an on-site visit to a responsible ACP party;

(ii) within five working days after receipt of a written request from the director, Division of Air Resources, Department of Environmental Conservation; or

(iii) within a time period mutually agreed upon by both the director, Division of Air Resources, Department of Environmental Conservation and the responsible ACP party.

(f) Violations.

(1) Any person who commits a violation of this Part is subject to the penalties specified in applicable New York State laws and regulations. Failure to meet any requirement of this Part or any condition of an applicable ACP agreement shall constitute a single, separate violation of this Part for each day until such requirement or condition is satisfied, except as otherwise provided in paragraphs (2) through (8) of this subdivision.

(2) False reporting of any information contained in an ACP application, or any supporting documentation or amendments thereto, shall constitute a single, separate violation of the requirements of this Part for each day that the approved ACP is in effect.

(3) Any exceedance during the applicable compliance period of the VOC content specified for an ACP product in the ACP agreement approving an ACP shall constitute a single, separate violation of the requirements of this Part for each ACP product which exceeds the specified VOC content that is sold, supplied, offered for sale, or manufactured for use in the State of New York.

(4) Any of the following actions shall each constitute a single, separate violation of the requirements of this Part for each day after the applicable deadline until the requirement is satisfied:

(i) failure to report data (i.e., missing data) or failure to report data accurately (i.e., inaccurate data) in writing to the director, Division of Air Resources, Department of Environmental Conservation regarding the VOC content, LVP content, enforceable sales, or any other information required by any deadline specified in the applicable ACP agreement;

(ii) false reporting of any information submitted to the director, Division of Air Resources, Department of Environmental Conservation for determining compliance with the ACP requirements;

(iii) failure to completely implement the reconciliation of shortfalls plan that is set forth in the ACP agreement, within 30 working days from the date of written notification of a shortfall by the director, Division of Air Resources, Department of Environmental Conservation; and

(iv) failure to completely reconcile the shortfall as specified in the ACP agreement, within 90 working days from the date of written notification of a shortfall by the director, Division of Air Resources, Department of Environmental Conservation.

(5) False reporting or failure to report any of the information specified in subparagraph (g)(2)(ix) of this section, or the sale or transfer of invalid surplus reductions, shall constitute a single, separate violation of the requirements of this Part for each day during the time period for which the surplus reductions are claimed to be valid.

(6) Except as provided in paragraph (7) of this subdivision, any exceedance of the ACP limit for any compliance period that the ACP is in effect shall constitute a single, separate violation of the requirements of this Part for each day of the applicable compliance period. The director, division of Air Resources, Department of Environmental Conservation shall determine whether an exceedance of the ACP limit has occurred as follows:

(i) if the responsible ACP party has provided all required information for the applicable compliance period specified in the ACP agreement approving an ACP, then the director, Division of Air Resources, Department of Environmental Conservation shall determine whether an exceedance has occurred using the enforceable sales records and VOC content for each ACP product, as reported by the responsible ACP party for the applicable compliance period;

(ii) if the responsible ACP party has failed to provide all the required information specified in the ACP agreement for an applicable compliance period, the director, Division of Air Resources, Department of Environmental Conservation shall determine whether an exceedance of the ACP limit has occurred as follows:

(a) for the missing data days, the director, Division of Air Resources, Department of Environmental Conservation shall calculate the total maximum historical emissions, as specified in section 235-2.1(fl) of this Part;

(b) for the remaining portion of the compliance period which are not missing data days, the director, Division of Air Resources, Department of Environmental Conservation shall calculate the emissions for each ACP product using the enforceable sales records and VOC content that were reported for that portion of the applicable compliance period;

(c) the ACP emissions for the entire compliance period shall be the sum of the total maximum historical emissions, determined pursuant to clause (a) of this subparagraph, and the emissions determined pursuant to clause (b) of this subparagraph;

(d) the director, Division of Air Resources, Department of Environmental Conservation shall calculate the ACP limit for the entire compliance period using the VOC content limit applicable to each ACP product and the enforceable sales records specified in clause (b) of this subparagraph. The enforceable sales for each ACP product during missing data days, as specified in clause (a) of this subparagraph, shall be zero;

(e) an exceedance of the ACP limit has occurred when the ACP emissions, determined pursuant to clause (c) of this subparagraph, exceeds the ACP limit, determined pursuant to clause (d) of this subparagraph.

(7) If a violation specified in this subdivision occurs, the responsible ACP party may, pursuant to this paragraph, establish the number of violations as calculated according to the following equation:

NEV = (ACP Emissions - ACP Limit) × 1 Violation/40 Pounds

where,

NEV = number of ACP limit violations

ACP Emissions = the ACP emissions for the compliance period

ACP Limit = the ACP limit for the compliance period

The responsible ACP party may determine the number of ACP limit violations pursuant to this paragraph only if it has provided all required information for the applicable compliance period, as specified in the ACP agreement approving the ACP. By choosing this option, the responsible ACP party waives any and all legal objections to the calculation of the ACP limit violations pursuant to this paragraph.

(8) In assessing the amount of penalties for any violation occurring pursuant to paragraphs (1) through (7) of this subdivision, the circumstances identified in applicable New York State health and safety laws and regulations shall be taken into consideration.

(9) A cause of action against a responsible ACP party under this Subpart shall be deemed to accrue on the date(s) when the records establishing a violation are received by the director, Division of Air Resources, Department of Environmental Conservation.

(10) The responsible ACP party is fully liable for compliance with the requirements of this Part, even if the responsible ACP party contracts with or otherwise relies on another person to carry out some or all of the requirements of this Part.

(g) Surplus reductions and surplus trading.

(1) The director, Division of Air Resources, Department of Environmental Conservation shall issue surplus reduction certificates which establish and quantify, to the nearest pound of VOC reduced, any surplus reductions achieved by a responsible ACP party operating under an ACP. The surplus reductions can be bought from, sold to, or transferred to a responsible ACP party operating under an ACP, as provided in paragraph (2) of this subdivision. All surplus reductions shall be calculated by the director, Division of Air Resources, Department of Environmental Conservation at the end of each compliance period within the time specified in the approved ACP. Surplus reduction certificates shall not constitute instruments, securities, or any other form of property.

(2) The issuance, use, and trading of all surplus reductions shall be subject to the following provisions:

(i) for the purposes of this Part, VOC reductions from sources of VOCs other than consumer products subject to the VOC content limits specified in section 235-3.1(a) of this Part may not be used to generate surplus reductions;

(ii) surplus reductions are valid only when generated by a responsible ACP party, and only while that responsible ACP party is operating under an approved ACP;

(iii) surplus reductions are valid only after the director, division of Air Resources, Department of Environmental Conservation has issued an ACP agreement pursuant to paragraph (1) of this subdivision;

(iv) any surplus reductions issued by the director, Division of Air Resources, Department of Environmental Conservation may be used by the responsible ACP party who generated the surplus until the reductions expire, are traded, or until the ACP is canceled pursuant to subdivision (k) of this section;

(v) surplus reductions cannot be applied retroactively to any compliance period prior to the compliance period in which the reductions were generated;

(vi) except as provided in clause (vii)(b) of this paragraph, only small or one-product businesses selling products under an approved ACP may purchase surplus reductions. An increase in the size of a small business or one-product business shall have no effect on surplus reductions purchased by that business prior to the date of the increase;

(vii) while valid, surplus reductions can be used only for the following purposes:

(a) to adjust either the ACP emissions of either the responsible ACP party who generated the reductions or the responsible ACP party to which the reductions were traded, provided the surplus reductions are not to be used by any responsible ACP party to further lower its ACP emissions when its ACP emissions are equal to or less than the ACP limit during the applicable compliance period; or

(b) to be traded for the purpose of reconciling another responsible ACP party's shortfalls, provided such reconciliation is part of the reconciliation of shortfalls plan approved by the director, Division of Air Resources, Department of Environmental Conservation pursuant to clause (c)(1)(vii)(j) of this section;

(viii) a valid surplus reduction certificate shall be in effect starting five days after the date of issuance by the director, Division of Air Resources, Department of Environmental Conservation, for a continuous period equal to the number of days in the compliance period during which the surplus reduction was generated. The surplus reduction shall then expire at the end of its effective period;

(ix) at least five working days prior to the effective date of transfer of surplus reductions, both the responsible ACP party which is selling surplus reductions and the responsible ACP party which is buying the surplus reductions shall, either together or separately, notify the director, Division of Air Resources, Department of Environmental Conservation in writing of the transfer. The notification shall include all of the following:

(a) the date the transfer is to become effective;

(b) the date the surplus reductions being traded are due to expire;

(c) the amount (in pounds of VOCs) of surplus reductions that are being transferred;

(d) the total purchase price paid by the buyer for the surplus reductions;

(e) the contact persons, names of the companies, street and mail addresses, and phone numbers of the responsible ACP parties involved in the trading of the surplus reductions; and

(f) a copy of the director, Division of Air Resources, Department of Environmental Conservation-issued surplus reductions certificate, signed by both the seller and buyer of the certificate, showing transfer of all or a specified portion of the surplus reductions. The copy shall show the amount of any remaining non-traded surplus reductions, if applicable, and shall show their expiration date. The copy shall indicate that both the buyer and seller of the surplus reductions fully understand the conditions and limitations placed upon the transfer of the surplus reductions and accept full responsibility for the appropriate use of such surplus reductions as provided in this Subpart;

(x) surplus reduction certificates shall only be traded between ACP product(s) for consumer products.

(3) Limited-use surplus reduction certificates for early reformulations of ACP products.

(i) For the purposes of this paragraph , early reformulation means an ACP product which is reformulated to result in a reduction in the product's VOC content, and which is sold, supplied, or offered for sale in the State of New York for the first time during the one-year (365-day) period immediately prior to the date on which the application for a proposed ACP is submitted to the director, Division of Air Resources, Department of Environmental Conservation. Early reformulation does not include any reformulated ACP products which are sold, supplied, or offered for sale in the State of New York more than one year prior to the date on which the ACP application is submitted to the director, Division of Air Resources, Department of Environmental Conservation.

(ii) If requested in the application for a proposed ACP, the director, Division of Air Resources, Department of Environmental Conservation shall, upon approval of the ACP, issue surplus reduction certificates for early reformulation(s) of ACP product(s), provided that all of the following documentation has been provided by the responsible ACP party to the satisfaction of the director, Division of Air Resources, Department of Environmental Conservation:

(a) accurate documentation showing that the early reformulation(s) reduced the VOC content of the ACP product(s) to a level which is below the pre-ACP VOC content of the product(s), or below the applicable VOC content limit(s) specified in section 235-3.1(a) of this Part, whichever is the lesser of the two;

(b) accurate documentation demonstrating that the early reformulated ACP product(s) was sold in the State of New York retail outlets within the time period specified in subparagraph (i) of this paragraph;

(c) accurate sales records for the early reformulated ACP product(s) which meet the definition of enforceable sales records in section 235-2.1(bh) of this Part, and which demonstrate that the enforceable sales for the ACP product(s) are at least 75.0 percent of the gross New York State sales for the product(s), as specified in subparagraph (c)(1)(iv) of this section;

(d) accurate documentation for the early reformulated ACP product(s) which meets the requirements specified in subparagraphs (c)(1)(iii) through (iv) of this section, clauses (c)(1)(vii)(g) through (h) of this section, and subparagraph (c)(1)(viii) of this section, and which identifies the specific test methods for verifying the claimed early reformulation(s) and the statistical accuracy and precision of the test methods as specified in clause (c)(1)(vii)(i) of this section.

(iii) Surplus reduction certificates issued pursuant to this paragraph shall be calculated separately for each early reformulated ACP product by the director, Division of Air Resources, Department of Environmental Conservation according to the following equation:

SR = Enforceable Sales × ((VOC Content)initial - (VOC Content)final )/100

where,

SR = surplus reductions for the ACP product, expressed to the nearest pound,

Enforceable Sales = the enforceable sales for the early reformulated ACP product, expressed to the nearest pound of ACP product,

VOC Content initial = the pre-ACP VOC content of the ACP product, or the applicable VOC content limit specified in section 235-3.1 of this Part, whichever is the lesser of the two, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product,

VOC Content final = the VOC content of the early reformulated ACP product after the early reformulation is achieved, expressed to the nearest 0.1 pounds of VOC per 100 pounds of ACP product.

(iv) The use of surplus reduction certificates issued pursuant to this paragraph shall be subject to all of the following provisions:

(a) surplus reduction certificates shall be used solely to reconcile the responsible ACP party's shortfalls, if any, generated during the first compliance period occurring immediately after the issuance of the ACP agreement approving an ACP, and shall not be used for any other purpose;

(b) surplus reduction certificates shall not be transferred to, or used by, any other responsible ACP party;

(c) except as provided in this paragraph, surplus reduction certificates shall be subject to all requirements applicable to surplus reductions and surplus trading, as specified in paragraphs (1) and (2) of this subdivision.

(h) Reconciliation of shortfalls.

(1) At the end of each compliance period, the responsible ACP party shall make an initial calculation of any shortfalls occurring in that compliance period, as specified in the ACP agreement approving the ACP. Upon receipt of this information, the director, Division of Air Resources, Department of Environmental Conservation shall determine the amount of any shortfall that has occurred during the compliance period, and shall notify the responsible ACP party of this determination.

(2) The responsible ACP party shall implement the reconciliation of shortfalls plan as specified in the ACP agreement approving the ACP, within 30 working days from the date of written notification of a shortfall by the director, Division of Air Resources, Department of Environmental Conservation.

(3) All shortfalls shall be completely reconciled within 90 working days from the date of written notification of a shortfall by the director, Division of Air Resources, Department of Environmental Conservation, by implementing the reconciliation of shortfalls plan specified in the ACP agreement approving the ACP.

(4) All requirements specified in the ACP agreement approving an ACP, including all applicable ACP limits, shall remain in effect while any shortfalls are in the process of being reconciled.

(i) Notification of modifications to an ACP by the responsible ACP party.

(1) Modifications that do not require director, Division of Air Resources, Department of Environmental Conservation pre-approval: The responsible ACP party shall notify the director, Division of Air Resources, Department of Environmental Conservation, in writing, of any change in an ACP product's:

(i) product name;

(ii) product formulation;

(iii) product form;

(iv) product function;

(v) applicable product category(ies);

(vi) VOC content;

(vii) LVP content;

(viii) date-codes; or

(ix) recommended product usage directions, no later than 15 working days from the date such a change occurs. For each modification, the notification shall fully explain the following:

(a) the nature of the modification;

(b) the extent to which the ACP product formulation, VOC content, LVP content, or recommended usage directions will be changed;

(c) the extent to which the ACP emissions and ACP limit specified in the ACP agreement will be changed for the applicable compliance period; and

(d) the effective date and corresponding date-codes for the modification.

(2) Modifications that require director, Division of Air Resources, Department of Environmental Conservation pre-approval: The responsible ACP party may propose modifications to the enforceable sales records or reconciliation of shortfalls plan specified in the ACP agreement approving the ACP. Any such proposed modifications shall be fully described in writing and forwarded to the director, Division of Air Resources, Department of Environmental Conservation. The responsible ACP party shall clearly demonstrate that the proposed modifications will meet the requirements of this Part. The director, Division of Air Resources, Department of Environmental Conservation shall act on the proposed modifications using the procedure set forth in subdivision (d) of this section. The responsible ACP party shall meet all applicable requirements of the existing ACP until such time as any proposed modification(s) is approved in writing by the director, Division of Air Resources, Department of Environmental Conservation.

(3) Other modifications: Except as otherwise provided in paragraphs (1) and (2) of this subdivision, the responsible ACP party shall notify the director, Division of Air Resources, Department of Environmental Conservation, in writing, of any information learned of by the responsible ACP party which may alter any of the information submitted pursuant to the requirements of subdivision (c) of this section. The responsible ACP party shall provide such notification to the director, Division of Air Resources, Department of Environmental Conservation no later than 15 working days from the date such information is known to the responsible ACP party.

(j) Modification of an ACP by the director, Division of Air Resources, Department of Environmental Conservation.

(1) If the director, Division of Air Resources, Department of Environmental Conservation determines that:

(i) the enforceable sales for an ACP product are no longer at least 75 percent of the gross New York State sales for that product;

(ii) the information submitted pursuant to the approval process set forth in subdivision (c) of this section is no longer valid; or

(iii) the ACP emissions are exceeding the ACP limit specified in the ACP agreement approving an ACP, then the director, Division of Air Resources, Department of Environmental Conservation shall modify the ACP as necessary in accordance with Part 621 of this Title and the procedures therein to ensure that the ACP meets all requirements of this Part and that the ACP emissions will not exceed the ACP limit.

(2) If any applicable VOC content limits specified in section 235-3.1(a) of this Part are modified by the Department of Environmental Conservation in a future rule making, the director, Division of Air Resources, Department of Environmental Conservation shall modify the ACP limit specified in the ACP agreement approving an ACP to reflect the modified VOC content limits as of their effective dates.

(k) Cancellation of an ACP.

(1) An ACP shall remain in effect until:

(i) the ACP reaches the expiration date specified in the ACP agreement;

(ii) the ACP is modified by the responsible ACP party and approved by the director, Division of Air Resources, Department of Environmental Conservation, as provided in subdivision (i) of this section;

(iii) the ACP is modified by the director, Division of Air Resources, Department of Environmental Conservation, as provided in subdivision (j) of this section;

(iv) the ACP includes a product for which the VOC content limit specified in section 235-3.1(a) of this Part is modified. The ACP will terminate on the effective date(s) of the modified standard; or

(v) the ACP is cancelled pursuant to paragraph (2) of this subdivision.

(2) The director, Division of Air Resources, Department of Environmental Conservation shall cancel an ACP if any of the following circumstances occur:

(i) the responsible ACP party demonstrates to the satisfaction of the director, Division of Air Resources, Department of Environmental Conservation that the continuation of the ACP will result in an extraordinary economic hardship;

(ii) the responsible ACP party violates the requirements of the approved ACP, and the violation(s) results in a shortfall that is 20 percent or more of the applicable ACP limit (i.e., the ACP emissions exceed the ACP limit by 20 percent or more);

(iii) the responsible ACP party fails to meet the requirements of subdivision (h) (reconciliation of shortfalls) of this section within the time periods specified in subdivision (h) of this section; and

(iv) the responsible ACP party has demonstrated a recurring pattern of violations and has consistently failed to take the necessary steps to correct those violations.

(3) The responsible ACP party for an ACP which is canceled pursuant to this Subpart and who does not have a valid ACP to immediately replace the canceled ACP shall meet all of the following requirements:

(i) all remaining shortfalls in effect at the time of ACP cancellation shall be reconciled in accordance with the requirements of subdivision (h) of this section; and

(ii) all ACP products subject to the ACP shall be in compliance with the applicable VOC content limits in section 235-3.1(a) of this Part immediately upon the effective date of ACP cancellation.

(4) Any violations incurred pursuant to subdivision (f) of this section shall not be cancelled or in any way affected by the subsequent cancellation or modification of an ACP pursuant to subdivisions (i), (j), or (k) of this section.

(l) Treatment of information. The information required by subparagraphs (c)(1)(i) through (ii) of this section and subparagraph (g)(2)(ix) of this section is public information which may not be claimed as confidential. All other information submitted to the director, Division of Air Resources, Department of Environmental Conservation to meet the requirements of this Part shall be handled in accordance with the procedures specified in applicable New York State laws and regulations.

(m) Other applicable requirements. A responsible ACP party may transfer an ACP to another responsible ACP party, provided that all of the following conditions are met:

(1) The director, division of Air Resources, Department of Environmental Conservation shall be notified, in writing, by both responsible ACP parties participating in the transfer of the ACP and its associated ACP agreement. The written notifications shall be postmarked at least five working days prior to the effective date of the transfer and shall be signed and submitted separately by both responsible parties. The written notifications shall clearly identify the contact persons, business names, mail and street addresses, and phone numbers of the responsible parties involved in the transfer.

(2) The responsible ACP party to which the ACP is being transferred shall provide a written declaration stating that the transferee shall fully comply with all requirements of the ACP agreement approving the ACP and this Part.