ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA - R09 - OAR - 2011 - 0544 ; FRL - ] Approval and Promulgation of Implementations Plans; California Air Resources Board – Ocean - Going Vessels Clean Fuel Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule. SUMMARY: EPA is taking final action to approve a revision to
the California State Implementation Plan (SIP) submitted by the California Air Resources Board (CARB or Board ). Th i s revision

concern s a regulation that reduc e s emissions o f diesel particulate matter (PM) , oxides of nitrogen ( NO x ) , sulfur di oxide (SO 2 ) and other pollutants from ocean - going vessels (OGV)

o pera t ing within 24 miles of the California baseline
. In a proposed rule published on July 11, 2011, EPA proposed to approve CARB’s OGV Clean Fuel R egulation in addition to two CARB regulations related to i n - u se h eavy - d uty d iesel

- f ueled t ruck s and b us es and d rayage trucks. In today’s action, EPA is taking final action on CARB’s OGV C lean F uel R egulation and will take final action on CARB’s truck and bus, and drayage truck regulations in a separate document. Final approval of the regulation and incorporation of i t int o the California SIP make s it fed era l l y enforceable.
DATE S : Effective Date : This rule is effective on [Insert date 302

days from the date of publication in the Federal Register]
. ADDRESSES: EPA has established docket number EPA

- R09

- OAR

- 2011

- 0544 for this action. The index to the docket is available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the dock et 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., Confidential Business Information ). To inspect the hard cop y materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Roxanne Johnson, EPA Region IX, (415) 947

- 4150, j ohnson.roxanne@epa.gov. SU PPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents
I. EPA’s Proposed Action
I I . Public Comments and EPA Responses
I II . F inal A ction
I V . Statutory and Executive Order Reviews
I. EPA’s Proposed Action3

On July 11, 2011 (76 FR 40652), EPA proposed to approve the title 13, California Code of Regulations (CCR), section 2299.2 (“Fuel Sulfur and Other Operational Requirements for Ocean

- Going Vessels within California Wa ters and 24 Nautical Miles of the California Baseline”) (referred to herein as the California Air Resources Board’s (C ARB ’s) “ Ocean

- Going Vessel (OGV) C lean F uel
R egulation , ” or simply, “OGV R egulation ”) as a revision to the California State Implementation Plan (SIP). We proposed to approve CARB’s OGV Regulation under section 110(k)(3) of the Clean Air Act (CAA or “Act”). In our July 11, 2011 proposed rule, EPA proposed to approve two other CARB r egulat ions in addition to CARB’s OGV R egulation
. The two other rules apply to certain i n - u se h eavy - d uty d iesel

f ueled t ruck s and b us es and d rayage trucks. In today’s action, EPA is taking final action on CARB’s OGV R egulation and will take final action on CARB’s truck and bus, and drayage truck regulations in a separate document
. EPA proposed to approve the OGV R egulation based on the version of the amended r egulation released for public comment on April 26, 2011 and submitted by CARB to EPA in connection with a request to “parallel process” the r egulation for SIP approval
purposes on May 11, 2011 , and for which a public hearing was scheduled by CARB for June 23, 2011 . Our July 11, 2011 proposed4

rule provides detailed information on the State’s procedural steps culminating in the public release of the proposed OGV Regulation that formed the basis for EPA’s proposed approval , on the amendments to the original OGV R egulation (which had been adopted by CARB in 2008 ) , and on EPA’s “ parallel process ” procedure used to evaluate and propose action on proposed SIP revision s prior to final adoption and submittal to EPA. The reader is directed to the July 11, 2011 proposed rule for this detailed information. See pages 40653

- 40654 of EPA’s July 11, 2011 proposed rule. The OGV R egulation was developed by CARB to reduce oxides of nitrogen ( NO x ), sulfur dioxide ( SO 2 ) and PM emissions from

ocean - going vessels and to meet CAA requirements
. NO x is a precursor responsible for the formation of ozone, and NO x and SO 2 are precursors for fine particulate matter (PM 2.5 ). 1 At elevated levels, ozone and PM 2.5 harm human health and the environment by contributing to premature mortality, aggravation of respiratory and cardiovascular disease , decreased lung function, visibility impairment, and damage to vegetation and ecosystems. California has a number of nonattainment areas for the National Ambient Air Quality Standards (NAAQS) for ozone and

1 SO 2 belongs to a family of compounds referred to as sulfur oxide (S O x ). PM 2.5 precursors include SO 2 , NO x , volatile organic compounds, and ammonia. See 40 CFR 51.1000. CARB generally uses the term, sulfur oxides (S0 x ); herein, we use SO 2 to refer to the same pollutant type.5

PM 2.5 , and the CAA requires states to submit SIP revisions that ensure reasonable further progress and that demonstrate attainment of the NAAQS within such areas. See, generally , part D of title I of the CAA. Reductions from the OGV R egulation play a critical role in assuring that areas such as the Sout h Coast Air Basin (which includes the Los Angeles metropolitan area and Orange County) meet the NAAQS for ozone and PM 2.5 . CARB’s OGV Regulation (13 CCR section 2299.2) requires the use of low sulfur marine distillate fuels (instead of heavy fuel oil or residual fuel ) to reduce PM, NO x , and SO 2 exhaust emissions from the use of auxiliary diesel and diesel

- electric engines, main propulsion engine s , and auxiliary boilers on

ocean - going vessels (OGV s ). The regulation applies to owners and operators of OG V s that operate in, among other areas, all waters within 24 miles of the California baseline (except a specific

area off Point Conception )
. The regulation does not include, among other vessels, OGVs that pass through waters impacted by the OGV Regulation b ut do not enter California internal or estuarine waters or call at a port, roadstead 2 or terminal facility; OGVs owned or operated by any governmental entity (unless used for commercial purposes); and OGVs when compliance with the regulation is reasonably determined by the master of

2 “Roadstead” means any facility that is used for the loading, unloading, and anchoring of ships. See 13 CCR section 2299.2(d)(31).6

the vessel to endanger the safety of the vessel, its crew, its cargo or its passengers because of severe weather conditions, equipment failure, fuel contamination or other extraordinary reasons beyond the master’s re asonable control. See 13 CCR 2299.2(c)(1), (3) and (5). Unless specifically exempted, the regulation applies to both U.S.

- flagged and foreign

- flagged
OGVs. Section 2299.2(e)(1) specif ies allowable fuels and fuel sulfur content limits for auxiliary diesel e ngines, main engines and auxiliary boilers that must be met while the OGV is operating in the areas impacted by the OGV Regulation
. In the first phase , beginning July 1, 2009, auxiliary diesel engines, main engines and auxiliary boilers on subject OGVs mus t use either marine gas oil (MGO), with a maximum of 1.5 percent sulfur by weight, or marine diesel oil (M D O), with a maximum of 0.5 percent sulfur by weight. The “Phase 1 ” sulfur content limit
for MGO is lowered from 1.5% to 1.0% beginning on August 1, 20 12. Phase 2, beginning January 1, 2014, requires use of either MGO with a maximum of 0.1% sulfur by weight or MDO with a maximum of 0.1% sulfur by weight
. As such, the OGV Regulation establishes more stringent requirements than otherwise required7

under Federal law, at least until January 1, 2015. 3 Other provisions in the OGV Regulation include recordkeeping, reporting, and monitoring requirements [13 CCR

s ection 2299.2(e)(2) ]; penalties for non

- compliance [13 CCR

s ection 2299.2(f) ]; exemptions based on t he need for essential modifications [13 CCR s ection 2299.2(g) ]; in

- lieu noncompliance fees under certain circumstances [13 CCR s ection 2299.2(h) ]; test methods [13 CCR s ection 2299.2(i) ]; and a sunset clause upon issuance of written findings by the CARB E xecutive Officer that Federal requirements are in place that will achieve equivalent emissions reductions within the w aters impacted by the OGV Regulation and are being enforced within th ose w aters [13 CCR s ection 2299.2(j) ]. The reader is directed to the proposed rule (page 40656

- 40657 ) for additional information on the content of the OGV Regulation
.

3 In 2008, the International Ma ritime Organization (IMO) adopted amendments to MARPOL Annex VI (International Convention for the Prevention of Air Pollution From Ships) to further reduce air emissions from ships. Among other provisions, the 2008 amendments to MARPOL Annex VI allowed for the creation of Emission Control Areas (ECA) by member states allowing them to implement more stringent requirements than otherwise provided for in Annex VI upon approval by the IMO. In 2010, the IMO approved a joint application by the U.S. and Canada for the creation of an ECA, referred to as the North American ECA. Under the North American ECA, OGVs traveling within a 200 nautical mile zone of the North American coastline are required to use fuels with no more than 1% sulfur beginning in August 2012 and no more than 0.1% sulfur beginning in January 2015. EPA is implementing the provi sions of MARPOL Annex VI through its ocean

- going vessel rule (75 FR 22895). Under these regulations, both U.S.

- and foreign

- flagged ships subject to the engine and fuel stand ards of MARPOL Annex VI must comply with the appli cable Annex VI provisions when they enter U.S. ports or operate in most internal U.S. waters including the Great Lakes , excluding steamships
.8

In our July 11, 2011 proposed rule, we described the basis for our evaluation of the OGV R egulation. Specifically, we noted that SIP s must include enforceable emission limitations and other control measures, means, or techniques , as well as schedules and timetables for compliance, as may be necessary to meet the requirements of the Act [ see CAA section 110(a)(2)(A) ] ; must provide necessary assurances that the State will have adequate personnel, funding, and authority under State law to carry out such SIP (and is not prohibited by any provision of Federal to State law from carrying out such SIP)[see CAA section 110(a)(2)(E)]; must be adopted by a State after reasonable notice and public hearing [see CAA section 110(l)] , and must not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act [see CAA section 110(l)]. 4 In our July 11, 2011 proposed rule, we proposed approval of the OGV R egulation based on our conclusion that the regulation would meet the applicable procedural and substantive requirements of the Clean Air Act for SIPs and SIP revisions described in the previous paragraph.

4 CAA s ection 193 , which prohibits any pre - 1990 SIP control requirement relating to nonattainment pollutants in nonattainment areas from being modified unless the SIP is revised to insure equivalent or greater emission reduction s of such air pollutants , does not apply to the OGV Regulation because it does not repre sent pre

- 1990 SIP control requirements.9

First, with respect to the procedural requirements of CAA section 110(l), we noted the extensive public process that CARB conduct ed prior to the adoption of the original version of the
OGV R egulation in 2008 and the extensive public process that CARB conducted for the recent amendments to the regulation. We anticipated that we w ould conclude that CARB had met the applicable procedural requirements for SIP revisions upon submittal by CARB of the final adopted regulation as a SIP revision with the necessary public process documentation. On September 21 , 2011, CARB submitted the final adopted version of the OGV R egulation to EPA as a revision to the California SIP, and on November 2 , 2011, supplemen ted the Septe mber 21, 2011 submittal wit h evidence of approval of the regulation by the California Office of Administrative Law. CARB’s September 21 , 2011 submittal includes the documentation of the adoption and public process for the am endments to the OGV Regulation t hat we had anticipated in our July 11, 2011 proposed rule. Thus, we conclude that CARB has met the procedural requirements under CAA section 110( l ) for reasonable public notice and hearing prior to adoption of SIPs and SIP revisions
. Second, in our July 11, 2011 proposed rule, we described the general and specific authority granted to CARB under the California Health and Safety Code (H & SC) to adopt and implement10

the OGV R egulation. Moreover, we indicated that we kn e w of no obstacle under Federal or State law in CARB’s ability to implement the regulation
. In this regard, we recognized that a challenge on preemption grounds had been brought against the OGV
R egulation, but we also recognized that CARB’s ability to adopt
and enforce the OGV R e gulation had been upheld by the Ninth Circuit Court of Appeals in Pac ific Merch ant Shipping Ass ’n . v. Goldstene , No. 09

- 17765 (9th Cir. March 28, 2011) , and based on that decision, we concluded that CARB had the ability to implement and enforce the OGV Regulation. Third, in our July 11, 2011 proposed rule, w e evaluat ed the enforceability of the OGV R egulation with respect to applicability and exemptions ; standard of conduct and compliance dates ; sunset provisions; discretionary provisions ; and test
met hods, recordkeeping and reporting , 5 and concluded that the regulation would be enforceable for the purposes of CAA section 110(a)(2) for the following reasons:

T he regulation would be sufficient ly clear as to which persons and which vehicles or engines are affected by the regulations ;
T he regulation would be sufficiently specific so that the

5 These concepts are discussed in detail in an EPA memorandum from J. Craig Potter, EPA Assistant Administrator for Air and Radiation, et al. , titled “Review of State Implementation Plans and Revisions for Enforceabi lity and Legal Sufficiency,” dated September 23, 1987.11

persons affected by the regulations would be fairly on notice as to what the requirements and related compli ance dates are ;
T he sunset clause in the OG V Regulation would be acceptable because it would not be triggered unless and until the CARB
E xecutive O fficer makes a finding that federal requirements are in place that will achieve equivalent emissions reductio n within w aters impacted by the OGV Regulation and that are being enforced within those w ater s ;
T he “director’s discretion” provisions in the regulation would be sufficiently limited in scope and application; and

T he regulation would require use of appropriate test methods and would include adequate recordkeeping and reporting requirements sufficient to ensure compliance with the applicable requirements. Fourth, in our July 11, 2011 proposed rule, we noted that
t he State’s 2007 State Strategy to att ain the 1997 PM 2.5 and ozone NAAQS in areas like the South Coast Air Basin was rel ying

on the OGV R egulation, among other CARB regulations, to help achieve needed emissions reductions and thereby meet the aggregated State emissions reduction commitments ma de by CARB in connection with the regional air quality plans. As such, we concluded that the OGV R egulation would not interfere with RFP,12

attainment or any other applicable requirement of the Act in accordance with CAA section 110(l)
. Fifth, we took note of CARB information that states that, over the course of the first 20 months s ince the first phase of the OGV Regulation became effective (July 2009) (i.e., July 2009 through March 2011) , CARB enforcement staff ha d conducted over 450 vessel inspe ction s and that the compliance rate, as determined by CARB enforcement staff, is approximately 95%
. 6 In our July 11, 2011 proposed rule, we concluded, b ased on CARB’s enforcement activities since the effective date of the first phase of the OGV R egulation, that CARB has allocated adequate funding and personnel for the regulation. Based on the evaluation summarized above, w e concluded in our July 11, 2011 proposal that the OGV R egulation would be consistent with the relevant CAA requirements, polic ies and guidance
. The reader is directed to our July 11, 2011 proposed rule (pages 40657

- 40659 ) for a more detailed discussion of our evaluation of the OGV R egulation. Lastly, w e indicated in our July 11, 2011 proposed rule that i f the State substantially revises the OGV R egulation from the version that was released for public comment by the State

6 See page ES

- 2 in CARB’s Initial Statement of Reasons for Proposed Rulemaking, Proposed Amendments to the Regulations “Fuel Sulfur and Other Operational Requirements for Ocean

- Going Vessels Within California Waters and 24 Nautical Miles of the California Baseline , May 2011.13

and that was submitted for “parallel processing,” this w ould result in the need for additional proposed rulemaking on the regulation by EPA. On September 21 , 2011, CARB submitted the final OGV R egulation , that the CARB Executive Officer had adopted on September 13, 2011, to EPA as a revision to the California SIP. The final adopted version essentially mirrors the version of the regulation that had been released for public
comment a nd that had been submitted to EPA for parallel processing, and on which EPA had based the Agency’s proposed approval. Under California law, once adopted, a regulation must still be approved by the California Office of Administrative Law (OAL) to take effect. CARB’s OGV Regulation, as amended, was approved by OAL on October 27 , 2011, and became effective under State law that same day
. On November 2 , 2011, CARB submitted evidence of approval of the final adopted regulation by the California O AL to EPA as a supplement to CARB’s September 21, 2011 SIP revision. Because the final adopted OGV Regulation is essentially the same as the version of the regulation on which the proposed approval was based, we can rely on our evaluation of the proposed version of the regulation in taking today’s final action on the final adopted version of the regulation. II. Public Comments and EPA Responses14

Our July 11, 2011 propo sed rule provided a 30

- day comment period. During this period, we received one comment letter in connection with our proposed action on CARB’s OGV Regulation : a

one - page summary letter (dated August 10, 2011) from the Pacific Merchant Shipping Association (PMSA), an association representing ocean carriers servicing regula r trade routes into California ports
. The comment and our response are provided below.
PMSA Comment : PSMA indicates that it has consistently objected to the OGV R egulation and subsequent amendments on jurisdictional, legal and technical grounds and that it is opposed to their inclusion in the California SIP. PMSA requests that EPA disapprove the OGV R egulation in light of the need for uniform and consistent regulation in solving vessel emi ssion problems. PMSA notes that PMSA has endorsed the proposed amendments to Annex VI of MARPOL 73/78, approved in October 2008, and the creation of the joint U.S./Canada Emission Control Area (ECA), approved in March 2010. EPA Response : EPA’s July 11, 20 11 proposed rule recognizes the potential issue of preemption of CARB’s OGV R egulation. See 76 FR at 40658 . However, in our proposed rule, we also recognize that the Ninth Circuit Court of Appeals has ruled against the preemption arguments raised by PMSA i n connection with PMSA’s15

direct challenge to CARB’s OGV R egulation. See Pacific Merchant Shipping Ass’n v. Goldstene , 639 F.3d 1154 (9th Cir. 2011)
. Thus, in our July 11, 2011 proposed rule , we concluded that CARB has the requisite ability to implement and enforce the OGV Regulation , and PMSA’s summary comments do not change the controlling decision of the court . Thus, we are taking final action today to approve CARB’s OG V Regulation into the California SIP. 7 We do recognize the beneficial impacts of th e emissions reductions t hat will occur due to the creation of the joint U.S./Canada Emission Control Area (ECA) and implementation of a fuel sulfur content limit of 0.1% sulfur beginning on January 1, 2015. However, due to attainment needs and timing of at tainment requirements in the South Coast Air Basin , the State of California is relying on the OGV Regulation , which , unlike the corresponding requirement in the ECA, applies the 0.1% fuel sulfur content limit beginning on January 1, 2014
. The significance of the one

- year difference between the implementation date of the OGV Regulation and the ECA

7 At the time of our proposal, we did not know whether PMSA would appeal the decision by the Ninth Circuit to the U.S. Supreme Court. PMSA did file a petition for writ for certior ar i with the Supreme Court, and, by notice dated October 3, 2011, the Supreme Court invited the Solicitor General to file a brief in the case expressing the views of the United States. The Solicitor General has not yet filed a brief , and no further action ha s occurred regarding the petition
.16

requirement is that the SO 2 emissions reductions associated with the OGV Regulation must occur no later than January 1, 2014, to meet the requirem ents of the CAA and EPA’s implementing regulations in the South Coast Air Basin with respect to demonstrating attainment of the 1997 PM 2.5 NAAQS by 2015 pursuant to 40 CFR 51.1007(b)
. 8 If the same reductions in emissions were to be delayed until 2015 , they would not occur soon enough for attainment purposes in the South Coast Air Basin
. Thus, while we recognize in general the benefit of uniform and consistent regulation in solving vessel emission problems, the specific needs for attainment of the NAAQS in c oastal areas must also be considered . In the case of the OGV Regulation , CARB has adopted a regulation that provides the necessary emissions reductions from OGV when they are needed for attainment purposes but that also provides, through the sunset clause in 13 CCR section 2299.2(j), a process for deferring to the more uniform and

8 The attainment demonstration in the South Coast PM 2.5 SIP establishes that total SO 2 emission in the South Coast in 2014 must be reduce d from approximately 61 tons per day (baselin e conditions) to an attainment target level for SO 2 of 20 tons per day, and the OGV Regulation is expected to reduce SO 2 emissions by 37 tons per day, i.e., approximately 90% of th e total 41 tons per day of needed reduction. See appendix E, pages 2 and 3 of CARB’s Progress Report on Implementa tion of PM2.5 State Implementation Plans (SIPs) for the South Coast and San Joaquin Valley Air Basins and Proposed SIP Revisions (release date: March 29, 2011); table 3 in EPA’s final rule approving in relevant part the South Coast PM 2.5 SIP (76 Fed. Reg. 69,928, at 69,950, November 9, 2011); and Figure IV

- 6 on page IV

- 9 of CARB’s Initial Statement of Reasons for Proposed Rulemaking, Proposed Amendments to the Regulations “Fuel Sulfur and Other Operational Requirements for Ocean

- Going Ves sels within California Waters and 24 Nautical Miles of the California Baseline ,” May 2011
.17

consistent requirements established through adoption of the joint U.S./Canada ECA when the latter achieves equivalent emissions reductions
. Based on the compliance schedule for th e standards applicable within the joint U.S./Canada ECA , the sunset clause of the OGV Regulation could be triggered in 2015.
I II . F inal A ction No comments were submitted that change our assessment that the OGV Clean Fuel Regulation complies with the relevant CAA requirements. Therefore, pursuant to section 110(k)(3) of the
CAA and for the reasons give n above and in our July 11, 2011 proposed rule , EPA is taking final action to approv e the OGV Clean Fuel Regulation into the Californi a SIP. The specific rule approved into the SIP in today’s action is 13 CCR section 2299.2 (“Fuel Sulfur and Other Operational Requirements for Ocean

- Going Vessels Within California Waters and 24 Nautical Miles of the California Baseline”), as adopted by th e CARB Executive Officer on Sept e mber 13, 2011, submitted on September 21, 2011, and made effective unde r State law on October 27, 2011
. Final approval of the regulation and incorporation of it into the California SIP makes it federally enforceable.
I V . Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of18

the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewin g SIP submissions, EPA’s role is to approve S tate choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely
approves S tate law as meeting Federal requirements and does not impose additional requirements beyond thos e imposed by S tate 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 collectio n 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);19

• 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 disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629 , Feb ruary 16, 1994)
. In addition, this r ule 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 S tate, and EPA notes that it will not impose substantial direct costs on tribal go vernments or preempt tribal law. The Congressional Review Act, 5 U.S.C. section 801 et seq ., as added by the Small Business Regulatory Enforcement Fairness20

Act of 1996, generally provides that before a rule may take effect, the agency promulgatin g 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 rule and other required information to the U.S. Senate, th e U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register
. 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. section 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: inser t 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 rule for the purposes of judicial review nor does it exten d 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).)21

List of Subj ects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements , Sulfur dioxide
. AUTHORITY: 42 U.S.C. 74 01 et seq.

November 9, 2011

_____ /S/

______________________ Dated: Jared Blumenfeld, Regional Administrator, Region IX.22

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52 - [AMENDED] 1. The authority citation for Part 52 continues to read as follows: AUTHORITY: 42 U.S.C. 7401 et seq. Subpart F

- California 2. Section 52.220 is amended by adding paragraph (c)( 403 ) to read as follows: § 52. 220 Identification of plan
.

* * * * * (c) * * * ( 403) New regulation was submitted on November 2, 2011, by the Governor’s designee. (i) Incorporation by reference. (A) California Air Resour ces Board
. ( 1 ) State of California Office of Administrative Law, “Notice of Approval of Regulatory Action,” including title 13, California Code of Regulations (CCR), section 2299.2, effective on October 27, 2011. ( 2 ) Final Regulation Order, 13 CCR section 2299.2 (“Fuel Sulfur and Other Operational Requirements for Ocean

- Going Vessels Within California Waters and 24 Nautical Miles of the California23

Baseline.” )

* * * * *