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 Protection Agency (EPA) . 

ACTION: Final rule. 

SUMMARY: This final rule approves state implementation plan 

(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's predictive 

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 

enforceable as part of the California SIP. 

DATES: This final rule is effective [insert date 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 electronically at 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 information may be publicly available only at the 

hard copy location (e.g., copyrighted material), and some may 

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 (74 FR 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 (74 FR 35838), EPA issued a correction to 

the proposed approval and on August 11, 2009 (74 FR 40123), EPA 

extended the comment period on the proposed approval to August 

31, 2009. For a detailed discussion of 'the rule revisions that 

California submitted, please refer to EPA1s proposed 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 (CRPE or "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 (74 FR 33198), and stated that 

"EPA must 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 "made the 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) (requiring enforceable 

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 (April 16, 

1992) (General Preamble) . 
regulation must 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 (CaRFG3 enforcement 

e~emption).~ EPA granted this enforcement exemption following a 

determination that the CaRFG3 regulations and associated 

enforcement mechanisms were sufficient to ensure that producers 

of California gasoline would in fact meet the CaRFG3 standards, 

which in turn, would ensure compliance with the Federal Phase I1 

4 RFG standards. EPA's rationale for the exemption was consistent 

with the analyses we used when we previously granted enforcement 

- - 

Id. at 13502. 

70 FR 75914 (December 21, 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 for benzene 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 California Air 

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 (July 10, 2009); 70 FR 75914 at 75918 

(December 21, 2005). See also 69 FR 48827 at 48832 (August 11, 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 regulations would provide emission benefits equivalent to 

the Federal Phase I1 RFG program, EPA extended the enforcement 

exemptions at 40 CFR 80.81 to refiners, importers, and blenders 

of CaRFG3. 8 

69 FR 48827 at 48829 (August 11, 2004) (proposed rule 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 (February 16, 1994); 63 FR 34818 (June 26, 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 (February 26, 1993). 

58 FR 11745 at 11746, 11749 (February 26, 1993). ' 69 FR 48827 at 48832 (August 11, 2004); 70 FR 75914 at 75918 (December 21, 

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 test 
As noted in our proposal for this action, CARB's 

compliance and enforcement program has not changed significantly 

since we 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 

effective December 31, 2009,12 improve 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 (February 26, 1993); 69 FR 48827 at 48832 (August 

11, 2004) . 74 FR at 33198 (July 10, 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 gasoline meeting alternative specifications will be 

equivalent to the emissions of a gasoline that meets CaRFG3 specifications. 

CARB most recently amended the Predictive Model Procedures on August 7, 2008 

See "California Procedures for Evaluating Alternative Specifications for 

Phase 3 Reformulated Gasoline Using the California Predictive Model," 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 (CARB Staff 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 limits14 provide 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 CARB1s staff report 

for the 2007 revisions to the CaRFG3 program (CARB Staff 

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 "a limit 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 Eva1 ua ting A1 terna tive 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 18 ppmw. See "Final Statement of 

Reasons for Rulemaking 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 

Reformulated Gasoline 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 fuel using supercritical fluid chromatography (SFC) is 

significantly more 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 

compliance provisions 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 "CARB produced the CaRFG3 Predictive Model as a 

way to predict whether various RFG compositions, or recipes, 

will result in acceptable emissions when used in motor 

l8 See "Staff Report: 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 "[tlhe C~RFG~ program and resulting emission 

reductions depend entirely on the Predictive ~odel." he 

commenter stated that in order for CaRFG3 to be enforceable, its 

requirements must 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 Predictive Model "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,fornia SIP as part of this action. CARB 

initially submitted the Predictive Model Procedures to EPA on 

June 15, 2004, and submitted revisions on February 3, 2009. The 

predictive Model Procedures are incorporated by reference into 
the 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 

2 1 equivalent emission reductions. See also Response 1 and 

footnote 10, above (describing CARB1s updates to the predictive 

Model Procedures). We believe that our approval of the 

Predictive Model 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) . 2 1 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 EPA1s TSD or supported by 

an adequate section 110(1) analysis. The commenter stated that 

"EPA proposes 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-substantive clarifying 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 would 
interfere with any applicable requirement concerning attainment 

and reasonable further progress. . . or any other applicable 

requirement of [the Act]." 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 

Predictive Model Procedures prior to their effective date23 to 

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 compliance measure, 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 compliance period, section 2261(b)(7) does not allow 

for exceedances of existing emission standards and, therefore, 

does not interfere with any applicable requirement concerning 

attainment, RFP, or any other applicable requirement of the 

Act. 2 6 

Moreover, this temporary measure expires on December 31, 

2009, after which the rule requires compliance with the revised 

Predictive Model Procedures and prohibits blending any higher 

volume of denatured ethanol into CARBOB than the amount 

2 4 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 California RFG 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. 2 7 

Because our approval of these revised regulations will not 

become effective until after this early compliance measure has 

expired, our approval of this provision has no effect on 

emissions and will not interfere with 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-approved RFG 

program does not contain any limit on the volume of denaturant 

that may be blended with gasoline. 2 9 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. 3 o 

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 regulation by the Bureau of 

Alcohol Tobacco and Firearms. See CARB Staff Report at pg. 40. 

29 See 13 CCR § 2262 (adopted September 18, 1992); 60 FR 43383 (August 21, 

1995). See also fn. 26, supra. 

30 The 4.76% denaturant limit in the pre-2007 CaRFG3 regulations was based on 

earlier versions of the ASTM standard specification for denatured fuel 
Finally, the CaRFG3 regulations were specifically designed 

to mitigate the increases in evaporative emissions (referred to 

as "permeation"31) from on-road vehicles resulting from the 

addition of ethanol to gasoline.32 The CARB Staff Report states 

that the revised CaRFG3 program would "eliminate or offset all 

ethanol permeation effects from motor 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 significant reductions 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 "offsetting emissions associated with higher sulfur levels" 

ethanol for blending with gasoline (ASTM 04806-99). See CARB Staff Report at 

pg. 40. 31 The Federal Complex Model 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 

gasoline produced 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 "averaging option" in section 2265.1 allows for 

fuel that does not comply with 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 

interfere with these demonstrations by 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 

compromised because 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 in particular section 2265.1, is consistent with the 

requirements of CAA § 110(1). 

Section 2265.1 contains detailed requirements for the 

offsets that must be achieved by 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 criteria34 and 

essentially allows for the production or importation of highersulfur batches of gasoline provided the emission impacts of the 

higher-sulfur batch are fully mitigated through subsequent 

cleaner batches of gasoline at the same facility. 35 The PM 

offset option provides gasoline producers 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 facility under 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 

Eva1 uating A1 ternative Specifications for Phase 3 Reformulated Gasoline Using 

the California Predictive Model, 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. 3 8 

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 (with sufficient 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 identify who 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 option must complete 

physical transfer, from the same facility, of California 

gasoline with a "final blend creditu4' in sufficient quantity and 

for the same emissions parameter (Nox, total ozone forming 

potential, or potency-weighted toxics) to fully offset the 

"final blend defi~it."~' This 90-day limit and the requirement 

to produce the "credit fuel" from the same facility provide a 

reasonable connection between 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 "the credit 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 accordance with a specified formula 

provided in the definition. 13 CCR 5 2260(a) (10.5). 4 1 "Final blend deficit" is defined as "the deficit from a final blend of 

gasoline that a producer or importer must offset" and must be calculated in 

accordance with a specific formula provided 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 impacts43 from 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 from noncompliant 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 option will 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-approved RFG 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 2265.1 provides 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 (adopted September 18, 1992); 60 FR 43383 (August 21, 

1995) . 
30 ppm. 4 5 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 associated with 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 California gasoline.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 

Proposed Approval 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 'information that 

establishes ... the offsets accrued.' 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 in many 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-enforce offsets because 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 Officer 
in 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 compliance provisions, enforcement 

mechanisms, and limitations on the Executive Officer's 

discretion to meet the enforceability requirements of CAA § 

110(a). 

Specifically, section 2265.5 provides gasoline producers 

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 

5 0 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 an AERP 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-weighted toxics 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 of permeation emissions from the gasoline 

for the same affected region and for the period the AERP will be 

in effect; the date(s) that the offsets will accrue and expire 

4 9 13 CCR § 2265.5(a) (3). 

50 13 CCR § 2265.5 (a) (6) . 
for each emission reduction strategy; and the proposed 

recordkeeping, reporting, monitoring, and testing procedures 

that the producer or importer plans to use to demonstrate 

continued compliance with the AERP. 51 

Following approval of an AERP, section 2265.5(h) (1) 

requires the producer or importer to provide the Executive 

Officer with 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 offsets actually 

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 determination whether 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 specified parties in 

addition to public notice, and provide a 30-day public 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 decisionmaking process 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 

enforceable prohibitions on, among other things, selling or 

producing gasoline that creates emissions associated with 

permeation except in compliance with 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 supporting documentation; and any net exceedance of 

NOx, total ozone forming potential, 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 adequate means 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 commenterfs assertion that the "incentive grants" 

option in section 2265.5(i) (3) 'allows for speculative and 

difficult-to-enforce offsets" 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 

- 

5 2 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 $50,000 and willful and intentional violations 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 requisite notifications 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 compliance plan provisions in 

sections 2265.1 and 2265.5, the addition of these provisions in 

section 2271 as circumstances in which 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's discretion 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 "notation 1" in EPA1s TSD "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 discretion provisions 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 discretion be 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 (PM offset 

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 

specifically how the Executive Officer is to exercise discretion 

in acting on a variance request and strengthen the 

enforceability of the rule. 

The SIP-approved version 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 

variance pr~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 (adopted September 18, 1992); 60 FR 43383 (August 21, 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 submit written and oral testimony at the hearing 

and to consider such testimony. 13 CCR § 2271(b), (c) (adopted September 18, 

1992); 60 FR 43383 (August 21, 1995). 
applicable section(s) would result in an extraordinary economic 

hardship; (2) that the public interest in mitigating 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 

reasonably be 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 

findings be made in accordance with detailed factors listed in 

section 2271(e). For example, in determining whether the public 

interest in mitigating the extraordinary hardship by issuing the 

variance outweighs the public interest in avoiding increased air 

emissions, the Executive Officer must "consider the 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. 5 7 Importantly, in evaluating the potential effect of 

the variance upon air quality, the Executive Officer must 

5 6 16 CCR 5 2271 (adopted September 18, 1992); 60 FR 43383 (August 21, 1995). 57 13 CCR 5 2271 (e) (2) (2007). 
estimate both the excess exhaust emissions and the excess 

evaporative hydrocarbon emissions that will result from granting 

the variance in accordance with specific calculations, including 

use of the California Predictive Model 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 (amended CARBOB 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 

individual producer or importer for the purpose of specifying an 

alternative method for determining whether a final blend of 

CARBOB complies with the standards for California 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 [the applicable 

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 individual producer or importer for the purpose 

of specifying how the requirements for certain notifications to 

CARB should be applied to the producer's or 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 

"because significant changes are being proposed to the 

California RFG 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 EPA1s 2005 determination have 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[] 

California gasoline from RFG regulation." The CaRFG3 

enforcement exemption applies only to certain federal RFG 

enforcement requirements and does not exempt California gasoline 

from any 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 ~dministrator is 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, EPA1s role 

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 "significant regulatory action" subject to review 

by the Office of Management and Budget under Executive 

Order 12866 (58 FR 51735, October 4, 1993); 

does not impose an information collection burden under the 

provisions of the Paperwork Reduction Act (44 U.S.C. 3501 

et seq.) ; 

is certified as not having a significant economic impact on 

a substantial number of small entities under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.); 
does not contain any unfunded mandate or significantly or 

uniquely affect small governments, as described in the 

Unfunded Mandates Reform Act of 1995 (public Law 104-4); 

does not have Federalism implications as specified in 

Executive Order 13132 (64 FR 43255, August 10, 1999); 

is not an economically significant regulatory action based 

on health or safety risks subject to Executive Order 13045 

(62 FR 19885, April 23, 1997); 

is not a significant regulatory action subject to Executive 

Order 13211 (66 FR 28355, May 22, 2001); 

is not subject to requirements of Section 12(d) of the 

National Technology Transfer and Advancement Act of 1995 

(15 U.S.C. 272 note) because application of those 

requirements would be inconsistent with the Clean Air 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 implications as 

specified by Executive Order 13175 (65 FR 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 rule may take effect, 

the agency promulgating the rule must 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 action must 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 review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be 

challenged later in proceedings to enforce its requirements (see 

section 307 (b) (2) ) . 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air pollution control, 

Incorporation by reference, Carbon monoxide, 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.