### ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-RO9-OAR-2009-0344; FRL- 

### I Approval and Promulgation of Air Quality Implementation Plans; Reformulated Gasoline and Diesel Fuels; California AGENCY: 

### Environmental ProtectionAgency (EPA) 

### . ACTION: 

### Final rule. SUMMARY: 

### This final rule approves state implementationplan

(SIP)revisions submitted by the State of California on June 15, 

### 2004 and February 3, 

### 2009, relating to reformulated gasoline (RFG)and diesel fuel sold or supplied as motor vehicle fuels in California. The revisions relating to RFG include California Phase 3 

### RFG (CaRFG3)regulations, correction of errors and streamlined requirements for compliance with and enforcement of the CaRFG3 standards,and an update to the State'spredictive model to mitigate permeation emissions associated with the use of ethanol as a fuel additive. The revisions relating to diesel fuel include test methods for determining the aromatic hydrocarbon content in diesel fuel and reductions in the maximum allowable sulfur content for motor vehicle diesel fuel. The effect of today's action is to make these revisions federally enforceableas part of the California SIP. DATES: 

### This final rule is effective [insertdate 30 days after publication of this notice].ADDRESSES: 

### EPA has established a docket for this action under EPA-R09-OAR-2009-0344.The index to the docket for this action is available electronicallyat htt$1: : /VJV~W. ~eguldt io::s. 

### gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California.While all documents in the docket are listed in the index, some informationmay be publicly available only at the hard copy location (e.g.,copyrightedmaterial), and somemay not be publicly available in either location (e.g.,CBI).To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. Although listed in the index, some information is not publicly available, 

### i-e.,CBI or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. FOR FURTHER INFORMATION CONTACT: 

### Jeffrey Buss, EPA Region IX,

(415)947-4152,buss.jeffrey@epa.gov. SUPPLEMENTARY INFORMATION: 

### Throughout this document, " 

### we'

I I 

### and "our'' refer to EPA. I. Summary of Proposed Actions 

### On July 10, 2009 (74FR 331961,EPA proposed to approve revisions to the California regulations for reformulated gasoline (RFG)sold or supplied in California, as submitted on

### June 15, 2004 and February 3, 2009,and revisions to the regulations for diesel fuel sold or supplied in ~alifornia, as submitted on February 3,2009,as revisions to the ~alifornia SIP. On July 21, 2009 (74FR 35838), EPA issued a correction to the proposed approval and onAugust 11, 2009 (74FR 40123),EPA extended the comment period on the proposed approval to August 31, 2009. For a detailed discussion of 'therule revisions that California submitted,please refer to EPA1sproposed rule and Technical Support Document which can be found in the docket for this rulemaking. 11. EPA's Response to Comments 

### We received one comment letter on August 31, 2009 from the Center on Race, Poverty & 

### the ~nvironment(CRPEor "the comrnenter")on behalf of the ~ssociation of ~rritated ~esidents, Comite West Goshen, Comite Unido de plainview, ~omite ~esidentes Organizados a1 Servicio del Ambiente,Committee for a Better Arvin, La Nueva Esperanza deAlpaugh,El Quinto Sol de America, South Shafter Project Committee, Shafter Chapter League of United Latin American Citizens,United for a Change in Tooleville, and La Voz de Tonyville. We have summarized the comments and provided responses below. 

### Comment I: 

### CRPE stated that EPA must determine that CaRFG3 is enforceable before approving the SIP revision. Specifically, the commenter asserted that EPA is inappropriately relying on a

### federal RFG enforcement exemption granted in 2005 to support its conclusion that the CaRFG3 amendments to the SIP satisfy the requirements of CAA § 

### 110(a) 

### . The commenter summarized portions of the rationale EPA provided in our proposed approval (74FR 33198),and stated that "EPAmust evaluate the final rule to determine whether the rule is enforceable under § 

### 110(a),not whether the rule is equivalent in practice to federal requirements." The commenter asserted that EPA has neither "madethe requisite finding that the provisions are enforceable,"nor "made the case that equivalence in practice to federal requirements constitutes enforceability for the purposes of § 

### 110(a)." 

### Response 1: Section 110(a)(2)(A)of the CAA requires that each SIP include 'enforceable emission limitations and other control measures, means, or techniques. 

### . . as may be necessary

or appropriate to meet the applicable requirements of this chapter." See 

### also CAA § 

### 172(c)(6) 

### (requiringenforceable

measures in nonattainrnent area plans). EPA has stated in interpretive guidance that to be enforceable in practice, a

measure must "specify clear,unambiguous,and measurable requirements" and must include a legal means to ensure that

1 

### sources are in compliance. For example, an enforceable SIP

'State Implementation Plans; General Preamble for the ~mplemenation of ~itle I of the Clean Air Act Amendments of 1990,"57 FR 13498 at 13568 (April16, 1992) (GeneralPreamble)

### .

### regulationmust clearly spell out the requirements, the regulated sources or activities, the recordkeeping and monitoring requirements,and test procedures to determine whether sources are in ~ompliance.~ we continue to believe that the revisions to the California RFG regulations that we are approving today satisfy these enforceability requirements of CAA § 

### 110(a) 

### . First,as the commenter notes, in 2005 EPA exempted refiners,blenders and importers of CaRFG3 sold for use within California from certain enforcement provisions in the federal RFG regulations found at 40 CFR 80.81 (CaRFG3enforcement e~emption).~ EPA granted this enforcement exemption following a determination that the CaRFG3 regulations and associated enforcementmechanisms were sufficient to ensure that producers of California gasoline would in fact meet the CaRFG3 standards, which in turn,would ensure compliancewith the Federal Phase I1

4 

### RFG standards. EPA's rationale for the exemption was consistent with the analyseswe used when we previously granted enforcement

- - Id. at 13502. 70 FR 75914 (December21, 2005). EPA made three determinations to support the enforcement exemption: (1)that emission reductions from CaRFG3 would be equal to or greater than the emission reductions from Federal Phase I1 RFG standards; (2)that the content standard forbenzene in CaRFG3 would be equivalent in practice to the Federal Phase I1 RFG standard and that the oxygen content standard of 2.0 weight percent would be met in Federal RFG areas; and (3)that the CaliforniaAir Resources Board (CARB)compliance and enforcement program is sufficiently rigorous to ensure that Federal Phase I1 RFG requirements would be met in practice. 74 FR 33196 at 33198 (July10, 2009); 70 FR 75914 at 75918

(December21, 2005).See also 69 FR 48827 at 48832 (August11, 2004).exemptions to refiners, importers,and blenders of California Phase 2 gasoline (CaRFG2)under both the Federal Phase I and Phase I1 RFG programs. 5 Specifically,EPA determined in those prior actions that it was appropriate to exempt producers of California gasoline from certain sampling and testing, record keeping,and reporting provisions in the federal RFG regulations that deal solely with demonstrating compliance with the federal RFG

## standard^.^ EPA found that these federal enforcement provisions were duplicative and unnecessary, because the California RFG program was sufficiently stringent and enforceable to ensure compliance with

7 the federal standards. Thus, following a determination that the CaRFG3 regulationswould provide emission benefits equivalent to the Federal Phase I1 RFG program, EPA extended the enforcement exemptions at 40 CFR 80.81to refiners, importers, and blenders of CaRFG3. 8

69 FR 48827 at 48829 (August 11, 2004) (proposedrule to extend California enforcement exemptions to CaRFG3). EPA had previously exempted gasoline subject to California's Phase 2 RFG regulations (CaRFG2)from certain enforcement requirements under the Federal Phase I RFG program. See 59 FR 7813 (February16, 1994); 63 FR 34818 (June26, 1998). These enforcement exemptions expired on December 31, 1999,but EPA continued the exemptions beyond that date following a determination that the CaRFG2 regulations would provide emission benefits equivalent to the Federal Phase I1 RFG program. 64 FR 49992 (September 15, 1999). The 2005 action extended these California enforcement exemptions to CaRFG3. 58 FR 11745 at 11749 (February26, 1993). 58 FR 11745 at 11746, 11749 (February26, 1993). 

## ' 69 FR 48827 at 48832 (August11, 2004); 70 FR 75914 at 75918 (December21, 2005). Note that the CaRFG3 enforcement exemptions do not excuse producers of California gasoline from federal RFG standards,but rather exempt them only from certain enforcement requirements designed to demonstrate compliance with the federal RFG standards. EPA retains its authority to sample and testAs noted in our proposal for this action,CARB's compliance and enforcement program has not changed significantly sincewe made our 2005 finding regarding its adeq~acy.~ Thus, we believe that the analyses underlying the CaRFG3 enforcement exemption support our conclusion that the CaRFG3 regulations are enforceable,consistent with the requirements of CAA § 110(a). Moreover,many of the regulatory revisions that we are approving today improve the enforceability of California's RFG program. For example, CARB amended the Predictive Model ~roceduresl~ to, among other things, update the motor vehicle emissions inventory vehicle mix, update the reactivity adjustment factors, and add new motor vehicle exhaust emissions

11 test data. These revised modeling procedures, which become effectiveDecember 31, 2009,12improve the reliability of emission predictions for alternative gasoline specifications subject to CaRFG3 standards.

California gasoline to make sure that it meets all applicable federal standards. 58 FR at 11746 (February26, 1993); 69 FR 48827 at 48832 (August 11, 2004).

74 FR at 33198 (July10, 2009). We also reviewed CARB's most recent annual enforcement report,which indicates that fuels inspection and enforcement cases have slightly increased in recent years. Id. at fn. 12. The California 'predictive Model Procedures" are used to determine whether the emissions of a gasolinemeeting alternative specifications will be equivalent to the emissions of a gasoline that meets CaRFG3 specifications. CARB most recently amended the PredictiveModel Procedures on August 7, 2008 See "CaliforniaProcedures for Evaluating Alternative Specifications for Phase 3 Reformulated Gasoline Using the California PredictiveModel,"CARB, Amended August 7, 2008, at pg. 4; 13 CCR 5 2265. 11 See 'Staff Report: Initial Statement of Reasons, Proposed Amendments to California Phase 3 Gasoline Regulations,"CARB, Stationary Source Division, April 27, 2007 (CARBStaff Report),at pp. 15-20. l2 13 CCR 5 2265.Additionally, the CaRFG3 standards in 13 CCR § 2262 lower the sulfur content cap limit from 30 parts per million (ppm)to 20 ppm starting December 31, 2011." Cap limits14provide an upper limit for fuel properties for all compliance options and allow for enforcement of the requirements throughout the gasoline distribution system.15 According to CARB1sstaff report for the 2007 revisions to the CaRFG3 program (CARBStaff Report), refiners will generally not be able to produce complying gasoline with sulfur limits higher than 20 ppm - that is,any gasoline found as having a sulfur content of greater than 20 ppm will most likely be non-complying gasoline.l6 The sulfur content cap limit of 20 ppm enables CARB to enforce against producers or importers of any gasoline exceeding this level of sulfur,which will cover most non-complying gasoline formulations. 17

13 The declining sulfur content cap and associated compliance requirements are described more specifically in section 2261(b)(1)(A). l4 A "cap limit" is "alimit that applies to all California gasoline throughout the gasoline distribution system, in accordance with 13 CCR sections 2262.3(a),2262.4 (a),and 2262.5 (a)and (b) ." California Procedures for Eva1uatingA1ternative Specifications for Phase 3 Reformulated Gasoline Using the California Predictive Model, last amended April 25, 2008, at pg. 8 (definitions). See CARB Staff Report, Executive Summary, at pg. ix. l6 According to CARB, sulfur levels in CaRFG3 currently average about 10 ppmw, with 95 percent of production being below 18ppmw. See "Final Statement of Reasons forRulemaking Including Summary of Comments and Agency Responses," CARB, June 14, 2007 (CARB FSOR) at pg. 17. 17 See "Updated Information Digest: 2007 Amendments to the Phase 3 California ReformulatedGasoline Regulations,"CARB [undated];see also CARB Staff Report, at pp. ix, 35.ina ally, 

### several test method requirements have been updated. For example, the new test method for measuring olefins in fuelusing supercritical fluid chromatography (SFC)is significantlymore precise than the previous method,which was based on manual measurements of olefin content in fuel. The

new test method for measuring the distillation temperature of RFG adopts the updated American Society of Testing and Materials

(ASTM)standard,which corrects errors in the test method's precision statements and requires a temperature sensor centering device. These updates improve the accuracy of the temperature readings. 19 

### In sum,we believe that the analyses underlying the CaRFG3 enforcement exemption and our review of updates to the complianceprovisions and test methods in the CaRFG3 program demonstrate that the CaRFG3 regulations are practically enforceable,consistent with the requirements of CAA § 

### 110(a). 

### Comment 2: 

### The commenter asserted that CaRFG3 is not enforceable because the predictive Model is neither in the SIP

nor part of this SIP revision. Specifically,the commenter asserted that "CARBproduced the CaRFG3 PredictiveModel as a way to predict whether various RFG compositions, or recipes, will result in acceptable emissionswhen used inmotor

l8 See "StaffReport: Initial Statement of Reasons, Public Hearing to Consider Amending the Test Methods Designated for Determining Olefin Content and Distillation Temperatures of Gasoline," CARB, September 29, 2000, at pg. 2. l9 ~d. at 4.vehicles,"and that "[tlheC~RFG~ program and resulting emission reductions depend entirely on the Predictive ~odel."

### he commenter stated that in order for CaRFG3 to be enforceable, its requirementsmust be clearly spelled out, and that these requirements are contained within the Predictive Model. The commenter also asserted that in order for the CaRFG3 emissions reductions to be creditable to attainment or Reasonable Further Progress (RFP)demonstrations,the Predictive Model must be included in the SIP. Finally, the commenter asserted that this argument is "not merely a symbolic procedural argument" and that SIP approval of the PredictiveModel "ensures that CARB does not change the model,perhaps unwittingly or even underhandedly weakening it, without first subjecting any such change to EPA scrutiny under § 101.' The commenter reiterated its assertion that EPA has not made the necessary determination that the submitted SIP revisions are enforceable. Response 2: We are approving the Predictive Model Procedures into the Cali,forniaSIP as part of this action. CARB initially submitted the PredictiveModel Procedures to EPA on June 15, 2004,and submitted revisions on February 3, 2009. The predictive Model Procedures are incorporatedby reference intothe CaRFG3 

### regulation^,^'which require that producers or importers of gasoline comply with the predictive ~odel Procedures in evaluating whether gasoline meeting alternative specifications in lieu of CaRFG3 specifications will achieve

21 equivalent emission reductions. See 

### alsoResponse 1 and footnote 10,above (describingCARB1supdates to the predictive Model Procedures). We believe that our approval of the PredictiveModel Procedures into the SIP addresses the comenter's concerns about the enforceability of the CaRFG3 program, in addition to the crediting of CaRFG3 emissions reductions to attainment or Reasonable Further Progress (RFP) demonstrations. 

### Comment 3: The comenter stated that EPA had failed to adequately evaluate whether the proposed SIP revisions satisfy the requirements of CAA § 110(1). Specifically,the comenter asserted that EPA's analysis did not adequately support the Agency's conclusion that the proposed revisions do not interfere with applicable requirements concerning attainment and RFP, or other applicable requirements. The comenter asserted that EPA's proposal contained "the same conclusory statement for both the CaRFG3 and diesel fuel rules that, 'because the submitted SIP revisions strengthen the requirements of the approved SIP,

20 See 13 CCR §§ 2260(a)(8.51,2260(a)(19.7),and 2265(a)(2) . 21 13 CCR § 2265(a)(2).EPA has determined that approval of these regulations is consistent with CAA section 110(1).' 74 FR 33198-33199." he commenter noted that EPA had provided more detailed analyses in its Technical Support Document (TSD)but stated that in several cases, EPA had not provided the requisite section 110(1) analysis. For example, the commenter stated, EPA's proposed approval of section 2261(b)(7)of title 13,California Code of Regulations (CCR)was not addressed in EPA1sTSD or supportedby

an adequate section 110(1)analysis. The commenter stated that "EPAproposes to approve § 2261(b) (4) , (5) , and (6)because they do not affect emission reductions,but does not provide the same conclusion for § 2261(b)(7) 

## ." As a second example, the commenter stated that EPA's TSD did not address the increase of the maximum denaturant content from 4.76% to 5.00% as set forth in 13 CCR § 2262.9. The commenter stated that EPA had identified changes to this provision as "non-substantiveclarifying changes,"but that increasing the allowable denaturant content is a "substantive non-clarifying change." The commenter asserted that EPA's failure to consider the potential interference of these changes with applicable requirements is arbitrary and capricious. Response 3: Section 110(1)of the CAA states that EPA "shall not approve a revision of a [SIP] if the revision wouldinterfere with any applicable requirement concerning attainment and reasonable further progress. 

### . 

## . or any other applicable requirement of [theAct]." 42 U.S.C. § 7410(1). As explained in the TSD for our proposal,most of the CaRFG3 program revisions are either improvements or minor clarifications that will not affect emissions. To the extent that some substantive changes may result in increased emissions, as explained further below,we believe these potential emissions increases are offset by other substantial program improvements that reduce emissions and therefore, considered together,will not interfere with any applicable requirement concerning attainment of the National Ambient Air Quality Standards (NAAQS),RFP, or any other applicable requirement of the Act.22 First, as to the comrnenter's assertion that EPA did not adequately evaluate 13 CCR § 2261(b)(7)in the CaRFG3 regulations, we have evaluated this provision and concluded that our approval of it satisfies section 110(1)requirements. Section 2261(b)(7)contains a temporary measure that allows gasoline producers and importers that comply with the revised PredictiveModel Procedures prior to their effective date23to

2 2 We note also that California Health & Safety Code 5 43013.1 requires that the CaRFG3 regulations preserve the emissions and air quality benefits of the CaRFG2 program. 23 The updates to the Predictive Model Procedures,which become effective December 31, 2009, were the most significant of the recent revisions to the CaRFG3 program. 13 CCR 5 2265;CARB Staff Report at 1. See also fn. 10, supra.blend higher volumes of denatured ethanol into California Reformulated Blendstock for Oxygenate Blending (CARBOB)than the amount specified by the common carrier pipeline specifications. 24 CARB adopted this provision as an early compliancemeasure, to temporarily allow for some flexibility to increase denatured ethanol blending provided the resulting gasoline meets all emission reduction requirements calculated in accordance with the revised Predictive Model Procedures. 25 AS such, even during the early complianceperiod, section 2261(b)(7)does not allow for exceedances of existing emission standards and, therefore, does not interferewith any applicable requirement concerning attainment,RFP, or any other applicable requirement of the Act.26 Moreover, this temporary measure expires on December 

### 31, 2009, after which the rule requires compliancewith the revised PredictiveModel Procedures and prohibits blending any higher volume of denatured ethanol into CARBOB than the amount

24 A producer or importer may elect to blend higher volumes of ethanol into CARBOB under section 2261(b)(7) only if the producer or importer satisfies numerous notification,recordkeeping,and reporting requirement to ensure that all emission reduction requirements are met. 13 CCR § 2261(b)(7);see also CARB FSOR at pg. 4. 25 See 13 CCR § 2261(b)(7)(B)(1);CARB FSOR at pg. 4. 26 We note also that the SIP-approved CaliforniaRFG regulations do not regulate the composition of denatured ethanol that can be blended with CARBOB to produce CaRFG. See 13 CCR §§ 2260-2262.1 (adopted September 18, 1992); 60 FR 43383 (August 21, 1995). Use of denatured ethanol as an oxygenate in California gasoline became more widespread following California's prohibition of MTBE in California gasoline starting December 31, 2003. 13 CCR § 2262.6.specified by the common carrier pipeline specifica'tion. 27
Because our approval of these revised regulations will not become effective until after this early compliancemeasure has expired, our approval of this provision has no effect on emissions and will not interferewith applicable requirements under CAA § 110(1). Second,as to the commenter's assertion that EPA did not adequately evaluate the increase in maximum allowed denat~rant~~ content from 4.76% to 5.00%under 13 CCR § 2262.9, we have evaluated this provision also and concluded that it satisfies section 110(1)requirements. California's SIP-approvedRFG program does not contain any limit on the volume of denaturant that may be blended with gasoline. 29 As such, the addition of this limit to the SIP program does not interfere with any applicable requirement concerning attainment of the NAAQS or any other applicable requirement of the Act. Additionally,we note that this change was designed to align the CaRFG3 program with the current ASTM standards and does not alter any emission reduction requirements. 3o

27 13 CCR §§ 2261(b)(7)(A),2265. 2R A denaturant is added to ethanol to ensure that it cannot be ingested,and to allow for ethanol to be transported and handled as an industrial fluid rather than a controlled substance subject to regulationby the Bureau of Alcohol Tobacco and Firearms. See CARB Staff Report at pg. 40. 29 See 13 CCR § 2262 (adoptedSeptember 18, 1992); 60 FR 43383 (August21, 1995). See also fn. 26,supra. 30 The 4.76% denaturant limit in the pre-2007 CaRFG3 regulationswas based on earlier versions of the ASTM standard specification for denatured fuelFinally, the CaRFG3 regulationswere specifically designed to mitigate the increases in evaporative emissions (referredto

as "permeation"31) from on-roadvehicles resulting from the addition of ethanol to gasoline.32 The CARB Staff Report states that the revised CaRFG3 program would "eliminateor offset all ethanol permeation effects frommotor vehicles and a significant portion of the permeation effect from off-road

### application^."^^ Although the proposed revisions were not expected to fully mitigate the emissions impact of the increase in permeation emissions from off-road sources,these relatively small emission increases are outweighed by the significantreductions in emissions from on-road sources,together with the updated compliance provisions that improve the enforceability of the program, as discussed above in Response 1. As such, the CaRFG3 rule revisions do not interfere with any applicable requirement concerning attainment or RFP, or any other applicable requirement of the Act, consistent with CAA § 110(1). 

### Comment 4: The comrnenter asserted that EPA's approval of the "offsettingemissions associatedwith higher sulfur levels"

ethanol for blending with gasoline (ASTM04806-99). See CARB Staff Report at pg. 40. 31 The Federal ComplexModel at 40 CFR 5 80.45 does not take permeation emissions from ethanol use into account. 32 See 13 CCR 5 2262.6; CARB Staff Report, Executive Summary,pp. i,xviii. Starting December 31,2003, the CaRFG3 regulations prohibited California gasolineproduced with MTBE and placed a conditional ban on the use of any oxygenate other than ethanol as a replacement for MTBE in California gasoline. Id. at ii. 33 Id. at xvii, xviii.

### compliance option would violate CAA § 

### 110(1).The cornenter stated that the "averagingoption" in section 2265.1 allows for fuel that does not complywith CaRFG3 to be averaged with cleaner batches of gasoline - 

### i.e.,that it allows for noncompliant fuel to be sold and the excess pollution from use of such noncompliant fuel to be offset with credits from cleaner batches from that facility. The commenter asserted that "EPA 

### proposes to approve this provision with one sentence of analysis,"despite a relatively complex compliance scheme. Specifically,the commenter raised three concerns about this provision: First, the commenter stated that attainment and RFP demonstrations rely on transportation emission inventories based

on CaRFG3 compliant fuel, and that the "averaging option"may interferewith these demonstrationsby allowing producers or importers to produce noncompliant fuel during the ozone season (May-October)and "offset the deficit"up to three months later. Second, the commenter stated that attainment and RFP demonstrations relying on CaRFG3 emission reductions could be compromisedbecause there is no geographic requirement for the "credit" fuel to be used in the same airshed as the noncompliant fuel

### . Third, the commenter stated that the rule allows for tripling the allowable sulfur content of certain fuels, from 10

### ppm up to the federal 30 ppm sulfur standard,which could result in substantial increases in emissions. Response 4: 

### We disagree and believe that our approval of the "offsetting"compliance option referenced by the commenter, and inparticular section 2265.1,is consistent with the requirements of CAA § 

### 110(1). Section 2265.1 contains detailed requirements for the offsets that must be achievedby a producer or importer who elects to comply with the "[Predictive Model] emissions offsetting compliance option" under section 2264.2(d) ('PM offset option"). The PM offset option is available only to producers and importers that meet specified criteria34and essentially allows for the production or importation of highersulfur batches of gasolineprovided the emission impacts of the higher-sulfurbatch are fully mitigated through subsequent cleaner batches of gasoline at the same facility. 35 

### The PM offset optionprovides gasolineproducers and importers some flexibility in meeting the 20 parts per million by weight (ppmw) sulfur content flat limit in the CaRFG3 regulations, 36 

### which is

34 For example, the producer or importer must not be subject to any outstanding requirements to provide offsets at the same production facility or import facilityunder section 2264(c). 13 CCR 5 2264.2(d)(1)(E). 35 13 CCR 5 2265.1. 36 13 CCR 5 2262. A "flat limit" is 'a single limit for a fuel property that applies to all California gasoline sold or supplied from a California production facility or import facility." CARB, California Procedures for Eva1uatingA1ternativeSpecifications for Phase 3 Reformulated Gasoline Using the California PredictiveModel, last amended April 25, 2008, at pg. 8 (definitions).

### lower than the federal sulfur content limit of 30 ppm37

### and became effective on December 31, 2003. 38 

### Specifically, section 2265.1(a) contains detailed notification,reporting, and recordkeeping requirements that enable CARB to ensure that the increased emissions from highersulfur batches permitted under the PM offset option are in fact fully mitigated. For example, subsection (a)(2)(A)requires that a producer or importer electing to use the PM offset option provide to the Executive Officer in writing,before the start of physical transfer of the gasoline from the production or import facility,specific information about,among other things: the percent change in emissions values for NOx, total ozone forming potential, and potency-weighted toxics for the targeted alternative fuel specifications;the production facility or import facility name,batch name,blend identity,grade of California gasoline,and location (withsufficient specificity to allow CARB inspectors to locate and sample the gasoline); the designated emissions offsetting limit for Reid vapor pressure, sulfur content,benzene content,aromatics content, olefins content,and other fuel characteristics; and within 24 hours after the start of the physical transfer, the date and time of

- -- 37 40 CFR 5 80.195(a) (1)

. 38 CARB, Final Regulation Order, "Amendments to the California Reformulated Gasoline Regulations to Postpone Imposition of the CaRFG3 Standards and the Prohibition of MTBE and Oxygenates Other Than Ethanol in California Gasoline from December 31, 2002 to December 31, 2003,"Adopted November 8,2002,at 13 CCR 5 2261(b)(1)(B) .

### the start of physical transfer from the production or import facility. This information enables CARB to identifywho is blending fuels with elevated sulfur levels,how much is being blended, the potential air pollution impacts of the elevated sulfur level,and the specific time that the physical transfer of the gasoline from the production or import facility is completed. 39 

### Then,within 90 days after the start of physical transfer of such higher-sulfur gasoline,the producer or importer who has elected to comply with the PM 

### offset optionmust complete physical transfer, from the same facility,of California gasoline with a "finalblend creditu4'in sufficient quantity and for the same emissions parameter (Nox, 

### total ozone forming potential,or potency-weighted toxics) to fully offset the

"finalblend defi~it."~' This 90-day limit and the requirement to produce the "credit fuel" from the same facilityprovide a reasonable connectionbetween the emissions from the noncompliant fuel and the offsetting emission reductions.

39 13 CCR 5 2265.l(a)(2)(A). See also CARB FSOR at pg. 25. 40 'Final blend credit" is defined as "thecredit from a final blend of gasoline that may be used to offset a producer's or importer's final blend deficit" and must be calculated in accordancewith a specified formula provided in the definition. 13 CCR 5 2260(a)(10.5). 41 "Finalblend deficit" is defined as "thedeficit from a final blend of gasoline that a producer or importer must offset" and must be calculated in accordance with a specific formulaprovided in the definition. 13 CCR 5 2260(a)(10.7). For purposes of complying with the PM offset option, section 2265.1(c) also requires that the "final blend deficit" be multiplied by a specific factor that increases the amount of required offsets from the "credit"blend.

### Finally, the testing and recordkeeping requirements of 13 CCR § 

### 2270 have been revised to apply to any producer or importer that has elected to be subject to the PM offset option pursuant to section 2264.2(d). As such,each producer or importer who elects to be subject to the PM offset option is required to, among other things: sample and test for numerous characteristics of the final blend produced or imported, including the sulfur,aromatic hydrocarbon, olefin, oxygen,and benzene content;maintain, for two years from the date of each sampling,records showing the sample date, identity of blend sampled,container or other vessel sampled, final blend volume, and fuel characteristics;and provide to the Executive Officer any such records within 20 days of a written request. 42 

### To the extent that the emissions from noncompliant fuel may occur during the ozone season and the deficit offset three months later, or that "credit"fuel may be used in an airshed that has better air quality than the airshed where the noncompliant fuel is used, as the commenter notes may occur, these possibilities do not alter our section 110(1)analysis. The likelihood of adverse air pollution impacts43from such

42 13 CCR § 2270(a). 43 We note that these emissions effects are not likely to occur. ~ccording to CARB, unlike most other fuel properties governed by the CaRFG3 rules, increases in sulfur levels in individual batches do not result in immediate emission increases in vehicles using the batch, and although sulfur degrades catalyst performance the effect is reversible. See CARB FSOR at pg. 24; CARB Staff Report at pg. 36.events is counterbalanced by a similar likelihood of air quality improvements,i.e.,that emission reductions from credit fuel may occur during the ozone season or within a more polluted airshed, to offset emissions fromnoncompliant fuel produced outside of the ozone season or in a less polluted airshed.. In any event, we believe the rigorous monitoring, recordkeeping and reporting requirements in section 2265.1,together with the detailed requirements for calculating offsets,as discussed above,will ensure that any emissions increases resulting from noncompliant fuel permitted under the PM offset optionwill be offset by an equivalent or greater amount of emission reductions. It is important to note that, even taking into account the PM offset option, the CaRFG3 sulfur content limits that we are approving today are substantially more stringent than the sulfur content limits in California's SIP-approvedRFG program,which establishes a flat limit of 40 ppm and an option to establish a higher sulfur limit accompanied by offset requirements. 44 Furthermore,we note that section 2265.1provides an alternative compliance option only for purposes of meeting California's more stringent sulfur content flat limit of 20 ppmw and does not alter the applicability of the federal sulfur content limit of

44 See 13 CCR § 2262.2 (adoptedSeptember 18, 1992); 60 FR 43383 (August21, 1995).

### 30 ppm. 45 

### As such, in no event may a higher-sulfur batch of gasoline that qualifies for the PM offset option under section 2264.2(d)exceed the federal sulfur content limit of 30 ppmw. In sum,given the detailed recordkeeping,reporting,and testing requirements associatedwith the PM offset option, the detailed criteria for calculation of the required offsetting emission reductions, the substantial strengthening of the sulfur content limits in comparison to the SIP-approved limits,and the upper bound of 30 ppmw in the federal regulations,we believe that our approval of the PM offset option does not interfere with any applicable requirement concerning attainment,RFP, or any other applicable requirement of the Act. Finally, as to the cornrnenter's assertion that the rule allows for tripling the allowable sulfur content of certain fuels, we disagree. As explained above, the current CaRFG3 standards establish a 20 ppmw sulfur content flat limit for producers and refiners of Californiagasoline.46 The offsetting compliance option in section 2265.1 allows a producer to mitigate the excess emissions of a gasoline batch that exceeds

45 40 CFR 5 80.195(a)(1)

### . See also "Technical Support Document for EPA's ProposedApproval of Rule Revisions for Reformulated Gasoline and Diesel Fuel Sold or Supplied as Motor Vehicle Fuels in California,"June 30, 2009 (TSD), at pg. 2. 46 13 CCR 5 2262. CARB has stated that sulfur levels in CaRFG3 currently average about 10 ppmw but has not established a sulfur cap limit at this level. See FSOR at pg. 17.the 20 ppmw sulfur content flat limit,but it does not allow any exceedance of the federal 30 ppm sulfur content limit. 

### Comment 5: The commenter asserted that the "~lternative Emission Reduction Plan (AERP)creates a loophole which compromises enforceability of the rule,"and that the CARB Executive Officer has discretion to approve an AERP without verifying the required emission reductions. Specifically, the commenter stated that the AERP does not contain adequate reporting,monitoring or verification provisions to ensure that the emission reductions are being carried out as proposed, and that the AERP "only requires the producer, importer, or third party to submit to the Executive Officer 'informationthat establishes 

## ... the offsetsaccrued.' 13 CCR 2265.5(i)(1). Furthermore, the commenter stated, "the types of emissions offsets allowed [by the AERP] are particularly prone to be speculative,and may inmany instances not actually produce the emissions reductions used to offset increased emissions from permeation." For example, the commenter stated, the "incentive grants" option in section 2265.5(i)(3)allows for speculative and difficult-to-enforceoffsetsbecause it allows entities to claim offsets "associated with incentive grants for cleaner-thanrequired engines, equipment and other sources of pollution

### ,.." he commenter asserted that standards for the Executive Officerin determining whether these emission reductions are real, additional,and enforceable are "wholly absent from the AERP and the rule." 

### Response 5: We disagree. The ~lternative 

### mission Reduction Plan (AERP)provision in 13 CCR § 2265.5 is a temporary flexibility option to ensure that emission increases caused by the addition of ethanol to gasoline are fully mitigated consistent with State law requirements. 47 We believe the rule contains adequate complianceprovisions, enforcement mechanisms, and limitations on the Executive Officer's discretion to meet the enforceability requirements of CAA § 110(a). Specifically, section 2265.5 provides gasolineproducers

an alternative option to offset emissions from ethanol permeation while refinery modifications are being made to allow the production of fuel formulations that fully comply with CaRFG3 standards.48 

### An AERP is available only to a producer or importer who, among other things,would satisfy all of the criteria for approval in the applicable Predictive Model Procedures "but for the elevated emissions assqciated with

47 See CARB FSOR at pg. 12 (citing California Health and Safety Code 5 43013.1(b) (1) ). 48 See CARB FSOR at pg. 37.

### permeati~n."~~ All AERPs sunset on December 31, 2011,with the 50 

### possibility of an extension of up to one year. Contrary to the commenter's assertion, section 2265.5 contains rigorous monitoring, reporting,and verification provisions to ensure that the proposed emission reductions under

an AERP will be achieved, in addition to specific procedures for Executive Officer action on anAERP application. First, section 2265.5 establishes detailed testing, recordkeeping and reporting requirements. An 

### application for an AERP must contain,among other things: calculations of the total emissions of oxides of nitrogen (NOx),total ozone forming potential, and potency-weightedtoxics that would be associated with the use of California gasoline were the producer or importer to eliminate the emissions associated with permeation from its gasoline; documentation of the amounts of these pollutants associated with the producer's or importer's gasoline; a demonstration that the emission reduction strategy(ies)in the AERP will result in equivalent or better emission benefits for these pollutants than would be achieved through elimination ofpermeation emissions from the gasoline for the same affectedregion and for the period the AERP will be in effect;the date(s) that the offsetswill accrue and expire

49 13 CCR § 2265.5(a) (3). 50 13CCR § 2265.5 (a) (6)

### .

### for each emission reduction strategy;and the proposed recordkeeping,reporting,monitoring, and testing procedures that the producer or importerplans to use to demonstrate continued compliance with the AERP.51 

### Following approval of anAERP, section 2265.5(h)

### (1) requires the producer or importer to provide the Executive Officerwith detailed information, before the start of physical transfer,about the estimated volume of the gasoline blend; the identity of the approved AERP and the NOx, total ozone forming potential, and potency-weighted toxics emission limits stated in that plan; supporting documentation, calculations, and emissions test data; and within 24 hours after the start of the physical transfer,the date and time of the start of physical transfer from the production or import facility. Section 2265.5(i)also requires the producer or importer to notify the Executive Officer in writing of the date that the offsetsactually accrued, together with all documentation, calculations, emissions test data,and other information that establishes the amounts of emission reductions. Together, these provisions provide clear information upon which the Executive Officer can base a determinationwhether the proposed emission reductions

(i.e.,the offsets)are real,additional, and enforceable, and

13 CCR § 2265.5 (b) .to actually verify the emission reductions following physical transfer of the gasoline blend. Second, section 2265.5(c)establishes specific procedures for the Executive Officer's action on an AERP application. Among other things, the Executive Officer is required to make

\ available for public review all documents pertaining to an AERP, provide notice of each application to specifiedparties in addition to public notice, and provide a 30-daypublic comment period, after which the Executive Officer may take final action to "either approve or deny" the AERP application. These procedures provide the public an opportunity to participate in the decisionmakingprocess on an AERP and limit the Executive Officer's discretion to either approving the application, if it satisfies the requirements specified in section 2265.5(b),or denying it if it does not. Finally, section 2265.5(e)establishes specific enforceableprohibitions on,among other things, selling or producing gasoline that creates emissions associated with permeation except in compliancewith an approved AERP; failure to meet any requirement of section 2265.5 or any condition of an approved AERP; false reporting of any information contained in

an AERP or supportingdocumentation; and any net exceedance of NOx, total ozone formingpotential, or potency-weighted toxics during the period of the AERP. Violations of these provisions

### are subject to civil penalties under section 43207 of the California Health and Safety Code." These clear prohibitions, together with the specific information and compliance provisions required in each AERP application, provide adequatemeans for CARB to take enforcement action where the proposed emission reductions are not achieved, as well as for other violations of AERP conditions. Taken together, these detailed compliance mechanisms

ensure that only those AERPs that satisfy the detailed requirements specified in section 2265.5(b)will be approved, and the procedural regulations provide an additional assurance of transparent decisionmaking processes. The commenterfsassertion that the "incentivegrants" option in section 2265.5(i)

### (3) 'allows for speculative and difficult-to-enforceoffsets" is not entirely clear. Section 2265.5(i)requires that the producer or importer subject to an AERP notify the ~xecutive Officer in writing and provide all supporting documentation of the amount of NOx, total ozone forming potential, and potency-weighted toxics associated with the proposed offsets or other reduction strategies,as provided

- 52 Health and Safety Code 5 43027 states that "[alny~ersdn who violates any provision of this part, or any rule, regulation, permit, variance, or order of the state board,pertaining to fuel requirements and standards. . . is strictly liable for a civil penalty of not more than thirty-five thousand dollars ($35,000)." H&SC 5 43027(c). Negligent violations can result in civil penalties of up to $50,000and willful and intentionalviolations can result in civil penalties of up to $250,000. H&SC 5 43027(a),(b).

### in the approved AERP, and the date(s) the offsets accrued. Section 2265.5(i)(3)lists "incentive grants for cleaner-thanrequired engines,equipment and other sources of pollution providing early or extra emission reductions" among the emission reduction strategies for which a producer or importer must provide the requisitenotifications to the Executive Officer. To the extent the comenter intended to argue that this provision allows for unenforceable offsets,we disagree for the reasons stated above. 53 

### Comment 6: 

### The comenter asserted that several elements of the proposed SIP revisions contain unenforceable "director's discretion"provisions and that EPA approval of these provisions would violate CAA § 

### 110(a)(2) (A). Specifically, the comenter stated that the new alternative complianceplan provisions in sections 2265.1and 2265.5,the addition of these provisions in section 2271 as circumstances inwhich a variance may be requested,and the amended CARBOB regulations in section 2266.5 all provide for director's discretion without adequate limits on such discretion. The comenter referenced a "notation 1" in EPA's TSD for the proposed rule,which states that "Director'sdiscretion is

53 We note, as a practical matter, that CARB has not received any applications for an AERP or a third-party AERP and does not expect any. See e-mail from Renee Littaua, Manager, Fuels Section,CARB,October 20, 2009.

### limited by explicit and replicable procedures within the rule that define how discretion is to be exercised and that assures equivalent emission reductions." As applied to 13 CCR §§ 

### 2265.5 and 2266.5, the commenter asserted that this notation 'appears

## ... to be an attempt by EPA to preemptively address concerns regarding director's discretion." The commenter cited several EPA policy statements regarding director's discretion provisions and appropriate limitations on such discretion, and stated that the "notation1" in EPA1sTSD "appear[s] to water down the requirement" that director's discretion provisions "tightly define how the discretion will be exercised to assure equivalent emission reductions." In sum, the commenter asserted that EPA has not shown that the director's discretionprovisions in sections 2265.1,2265.5, 2271, and the amended CARBOB regulations in section 2266.5 satisfy the requirements to "include explicit and replicable procedures which tightly define how the discretion will be exercised,much less how the discretion will be exercised 

### to assure equivalent emission reductions." 

### Absent more specific limitations on director's discretion or a requirement that each exercise of such discretionbe approved by EPA, the commenter stated, these provisions are unenforceable and violate CM§ 

### 110(a)(2)(A) 

### .

### Response 6: We disagree. As to sections 2265.1 (PMoffset option) and 2265.5 (AERPs),we believe these provisions are enforceable for the reasons discussed above in responses 

### 4 and 5, respectively. Accordingly, the addition of sections 2265.1 and 2265.5 to the provisions in section 2271 for which a person may seek a variance, consistent with the criteria outlined in section 2271, is permissible. Moreover, since our approval of section 2271 into the SIP in 1995,54 CARB has revised it to add further criteria governing the ~xecutive Officer's evaluation of a variance request. These rule revisions define even more specificallyhow the Executive Officer is to exercise discretion in acting on a variance request and strengthen the enforceability of the rule. The SIP-approvedversion of section 2271 requires that the Executive Officer's decision to grant or deny a variance be based "solely upon substantial evidence in the record of the variancepr~ceeding,"~~ and states that a variance may not be granted unless the Executive Officer makes all of the following findings: (1)that,because of reasons beyond the reasonable control of the applicant, requiring compliance with the

54 16 CCR § 2271 (adoptedSeptember 18, 1992); 60 FR 43383 (August21, 1995). 55 The Executive Officer is required to hold a public hearing on each application containing the required information,to make the application available to the public at least 20 days prior to the hearing, to provide a reasonable opportunity to submitwritten and oral testimony at the hearing and to consider such testimony. 13 CCR § 2271(b), (c) (adopted September 18, 1992); 60 FR 43383 (August21, 1995).

### applicable section(s)would result in an extraordinary economic hardship; (2)that the public interest inmitigating the extraordinary hardship by issuing the variance outweighs the public interest in avoiding any increased emissions of air contaminants which would result from issuing the variance; and (3)

### that the compliance plan proposed by the applicant can reasonablybe implemented and will achieve compliance as expeditiously as possible. 56 

### These requirements remain unchanged. CARB 

### has, however, revised section 2271 to require that each of these three findingsbe made in accordance with detailed factors listed in section 2271(e). For example, in determining whether the public interest inmitigating the extraordinary hardship by issuing the variance outweighs the public interest in avoiding increased air emissions, the Executive Officer must "considerthe potential effects of issuing or denying the variance on the applicant's customers, the producers of complying fuel, the general public, and upon air quality,"and must also consider whether granting the variance will place the applicant at a cost advantage over other persons, including those persons who produce complying gasoline. 57 

### Importantly, in evaluating the potential effect of the variance upon air quality, the Executive Officer must

56 16 CCR 5 2271 (adoptedSeptember 18, 1992); 60 FR 43383 (August21, 1995). 57 13 CCR 5 2271(e) (2) (2007).estimate both the excess exhaust emissions and the excess evaporativehydrocarbon emissions that will result from granting the variance in accordancewith specific calculations, including

use of the California PredictiveModel Procedures with specified

58 inputs. These new provisions tightly define how the ~xecutive Officer's discretion will be exercised to assure equivalent emission reductions. As to section 2266.5 (amendedCARBOB regulations),the commenter has not identified any discretionary provisions that

are of particular concern. In the absence of a more specific explanation,we have construed the comment to refer to several provisions in section 2266.5 that allow the ~xecutive Officer to enter into protocols for determining compliance. For example, section 2266.5(a) (2)(E)authorizes the Executive Officer to enter into a written protocol with an individualproducer or importer for the purpose of specifying an alternativemethod for determining whether a final blend of CARBOB complies with the standards forCalifornia gasoline, "as long as the executive officer reasonably determines that application of the protocol is not less stringent or enforceable than application of the express terms of [theapplicable standards]." Section 2266.5(b)(4)imposes identical conditions

on the ~xecutive Officer's authority to enter into a written 

## '' 13 CCR § 2271(e)(2)(B) (2007).protocol with an individualproducer or importer for the purpose of specifying how the requirements for certain notifications to CARB should be applied to the producer'sor importer's particular operations. We believe that section 2266.5 adequately defines how the Executive Officer's discretion is to be exercised for these limited purposes. 

### Comment 7: The commenter asserted that EPA must make another equivalency determination to maintain the RFG enforcement exemption for California. ~pecifically, the commenter stated that EPA "relies heavily on an earlier equivalency determination made in December 2005 in the context of an RFG enforcement exemption request approval,"that the relevance of the 2005 enforcement exemption is unclear, and that "becausesignificant changes are being proposed to the CaliforniaRFG regulations,EPA must make another equivalency determination to continue exempting California gasoline from RFG regulation." Response 7:We disagree. The CAA does not require that EPA revisit an equivalency determination for the RFG enforcement exemption each time we revise a SIP,and the commenter does not identify any such requirement. As explained in our response to comment 1,above,we have concluded that the rationale supporting the CaRFG3 enforcement exemption in 2005 continues to support our action today.

### To the extent the commenter intended to argue that the facts underlying EPA1s2005 determinationhave significantly changed, such that that prior determination is no longer valid,

we also disagree. Neither the CaRFG3 nor federal RFG compliance and enforcement programs have been significantly revised since our 2005 equivalency determinati~n.~'In the proposed rule we also stated that the revisions to the CaRFG3 regulations strengthen the requirements in the existing SIP. The commenter has not identified any factual changes that call into question our previous findings. Finally, we note that the commenter incorrectly suggests that the CaRFG3 enforcement exemption allows EPA to "exempt[] Californiagasoline from RFG regulation." The CaRFG3 enforcement exemption applies only to certain federal RFG enforcement requirements and does not exempt California gasoline fromany federal RFG standards. 60

111. 

### Final Action Under section 110(k)(3)of the Clean ~ir Act, EPA is approving revisions to the California regulations for reformulated gasoline (RFG)sold or supplied in California,as submitted on June 15,2004 and February 3,2009,and revisions

59 74 FR at 33198. 50 See fn. 8, supra.

### to the regulations for diesel fuel sold or supplied in California, as submitted on February 3, 2009,as revisions to the California SIP.

IV. Statutory and Executive Order Reviews 

### Under the Clean Air Act, the ~dministratoris required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions,EPA1srole is to approve state choices,provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: is not a "significantregulatory action" subject to review by the Office of Management and Budget under Executive Order 12866 (58FR 51735,October 4, 1993); does not impose an informationcollection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); 

### is certified as not having a significant economic impact on a substantialnumber of small entities under the Regulatory FlexibilityAct (5U.S.C. 601 et seq.);

### does not contain any unfunded mandate or significantly or uniquely affect small governments,as described in the Unfunded Mandates Reform Act of 1995 (publicLaw 104-4); does not have Federalism implications as specified 

### in Executive Order 13132 (64FR 43255,August 10, 1999); is not an economically significant regulatory action based

on health or safety risks subject to Executive Order 13045

(62FR 19885,April 23, 1997); is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355,May 22, 2001); is not subject to requirements of Section 12(d)of the National Technology Transfer and Advancement Act of 1995

(15U.S.C. 272 note) because application of those requirements would be inconsistent with the CleanAir Act; and does not provide EPA with the discretionary authority to address,as appropriate,disproportionate human health or environmental effects,using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629,February 16, 1994). In addition, this rule does not have tribal implicationsas specifiedby Executive Order 13175 (65FR 67249,November 9, 2000),because the SIP is not approved to apply in Indian country located in the state,and EPA notes that it will not

### impose substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 

### U.S.C. 801 et seq.,as added by the Small Business Regulatory Enforcement ~airness Act of 1996,generally provides that before a rulemay take effect, the agencypromulgating the rulemust submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S.House of Representatives,and the Comptroller General of the United States prior to publication of the rule in the Federal ~egister. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not 

### a "major rule" as defined by 5 

### U.S.C. 804(2). Under section 307(b) (1)of the Clean Air Act,petitions for judicial review of this actionmust be filed in the United States Court of Appeals for the appropriate circuit by [FEDERAL REGISTER OFFICE: insert date 60 days from date of publication of this document in the Federal Register]. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial reviewmay be filed,and shall not postpone the

### effectiveness of such rule or action. This actionmay not be 

### challenged later inproceedings to enforce its requirements (see section 307(b)(2) ) 

### .
List of Subjects

40 CFR Part 52 

### Environmental protection,Air pollution control, Incorporationby reference,Carbonmonoxide, Hydrocarbons, Intergovernmental relations,Oxides of Nitrogen,Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

~uthority:42 U.S.C.

### 7401 

### et seq.

December 11, 

### 2009 Date: /s/ Laura Yoshii, Acting Regional Administrator, Region IX.