(b) The department will allocate allowances in whole ton increments from the CSAPR NO_x annual trading program budgets for the 2017 control period and beyond in the following manner:

1. (1) Five percent of the CSAPR NO_x annual trading program budget will be allocated to the new unit set-aside account.
2. (2) Allowances totaling the average emissions for the three most recent calendar years of all CSAPR NO_x annual units in New York State for which at least three full calendar years of emissions data are available before the allocation submission deadline for the control period under section 244.4 of this Part will be proportionally allocated to each of such individual CSAPR NO_x annual units. For purposes of this paragraph, emissions data indicating zero emissions will be deemed available for a unit for any reporting period for which the unit either reports zero emissions or does not report emissions data after being required to report emissions data for that reporting period or a previous reporting period.

3. (3) After the department allocates based on paragraphs (1) and (2) of this subdivision, the EERET account will receive the remainder of allowances from the CSAPR NO_x annual trading program budget except any allowances reserved for an Indian country new unit set-aside under 40 CFR 97.410(a)(14)(vi) (see Table 1, section 200.9 of this Title).

   1. (i) The EERET account will be allocated a minimum of 10 percent of the CSAPR NO_x annual trading program budget.
   2. (ii) If paragraphs (1)-(3) of this subdivision result in an EERET account allocation of less than 10 percent of the CSAPR NO_x annual trading program budget, the allowances allocated under paragraph (2) of this subdivision will be reduced proportionally by the amounts necessary to ensure that 10 percent of the CSAPR NO_x annual trading program budget is allocated to the EERET account.