[Federal Register Volume 74, Number 105 (Wednesday, June 3, 2009)]
[Rules and Regulations]
[Pages 26525-26527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12791]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0314; FRL-8906-1]


Revisions to the California State Implementation Plan, San Diego 
Air Pollution Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
San Diego Air Pollution Control District (SDAPCD) portion of the 
California State Implementation Plan (SIP). Rule 27.1--Federal 
Requirements for the San Diego County Air Pollution Control District's 
Alternative Mobile Source Emission Reduction Program Approved on 
September 8, 2000, will allow stationary sources to use emission 
reduction credits of nitrogen oxides (NO<INF>X</INF>) generated from 
mobile sources as New Source Review (NSR) offsets. We are approving 
Rule 27.1 under authority of the Clean Air Act as amended in 1990 (CAA 
or the Act).

DATES: This rule is effective on August 3, 2009 without further notice, 
unless EPA receives adverse comments by July 6, 2009. If we receive 
such comment, we will publish a timely withdrawal in the Federal 
Register to notify the public that this rule will not take effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2009-0314, by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#6f3d560e061d1f0a1d02061b1c2f0a1f0e41080019"><span class="__cf_email__" data-cfemail="3f6d065e564d4f5a4d52564b4c7f5a4f5e11585049">[email protected]</span></a>.
    <bullet> Mail or deliver: Gerardo Rios (Air-3), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or e-mail. http://www.regulations.gov is an 
``anonymous access'' system, and EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send e-mail directly to EPA, your e-mail address will be 
automatically captured and included as part of the public comment. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.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 below.

FOR FURTHER INFORMATION CONTACT: Shaheerah Kelly, Permits Office (AIR-
3), U.S. Environmental Protection Agency, Region IX, (415) 947-4156, 
<a href="/cdn-cgi/l/email-protection#d4bfb1b8b8adfaa7bcb5bcb1b1a6b5bc94b1a4b5fab3bba2"><span class="__cf_email__" data-cfemail="81eae4ededf8aff2e9e0e9e4e4f3e0e9c1e4f1e0afe6eef7">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

[[Page 26526]]

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of the rule?
    C. What is the purpose of the rule?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. Proposed action and public comment
III. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    On August 8, 2008, Rule 27.1 was adopted into SDAPCD's local rules. 
On April 29, 2009, the California Air Resources Board (ARB) submitted 
the rule to EPA to be included in the SDAPCD portion of the California 
SIP.
    On May 7, 2009, the submittal of Rule 27.1 was found to meet the 
completeness criteria, which must be met before formal EPA review.

B. Are there other versions of the submitted rule?

    There are no previous versions of Rule 27.1 in the California SIP.

C. What is the purpose of the rule?

    Rule 27.1--Federal Requirements for the San Diego County Air 
Pollution Control District's Alternative Mobile Source Emission 
Reduction Program Approved On September 8, 2000, along with District 
Rule 27--Banking of Mobile Source Emission Reduction Credits, and 
SDAPCD's Alternative Program,\1\ provide the framework to ensure that 
MERCs created and used under these provisions are real, quantifiable, 
surplus and permanent for the life of the project. Rule 27.1 includes 
the provisions necessary to ensure that the permanence of the MERCs are 
enforceable as a practical and legal matter and Federally enforceable 
under the SIP. In addition, since Rule 27.1 does not ensure that MERCs 
generated under the District's Alternative Program are real, 
quantifiable and surplus, Section (b)(8) of Rule 27.1 requires EPA to 
make a finding that the MERCs are real, quantifiable, surplus, 
permanent, and enforceable prior to use. Incorporation of Rule 27.1 
will allow NO<INF>x</INF> MERCs generated under the District's program 
to be used as Federal NSR offsets.
---------------------------------------------------------------------------

    \1\ Alternative Mobile Source Emission Reduction Program for 
Replacing Medium and Heavy Heavy-Duty Diesel Powered Vehicles and 
Repowering of Marine Vessels Under Rule 27(c)(1)(vi) as Approved on 
September 8, 2000.
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    EPA's technical support document (TSD) has more information about 
Rule 27.1.

II. EPA's Evaluation and Action

A. How is EPA evaluating the rule?

    Section 173(c) of the Act requires Federal NSR offsets for new and 
modified stationary sources. Emission reductions used as Federal NSR 
offsets must be real, quantifiable, surplus, permanent, and 
enforceable. Our evaluation of Rule 27.1 is limited to determining 
whether MERCs that are tracked through the rule are permanent and 
Federally enforceable. Other mechanisms, as discussed in the TSD, have 
been used to ensure MERCs subject to this rule are real, quantifiable, 
and surplus.

B. Do the rules meet the evaluation criteria?

    We believe the rule contains sufficient mechanisms to ensure that 
MERCs tracked through the rule are permanent and Federally enforceable. 
The TSD has more information on our evaluation.

C. Public Comment and Final Action

    As authorized in section 110(k)(3) of the CAA, EPA is fully 
approving Rule 27.1 because we believe it fulfills all relevant 
requirements. We do not think anyone will object to this approval, so 
we are finalizing it without proposing it in advance. However, in the 
Proposed Rules section of this Federal Register, we are simultaneously 
proposing approval of the same submitted rule. If we receive adverse 
comments by July 6, 2009, we will publish a timely withdrawal in the 
Federal Register to notify the public that the direct final approval 
will not take effect and we will address the comments in a subsequent 
final action based on the proposal. If we do not receive timely adverse 
comments, the direct final approval will be effective without further 
notice on August 3, 2009. This will incorporate Rule 27.1 into the 
Federally enforceable California SIP.

III. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator 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, EPA's 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:
    <bullet> 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);
    <bullet> does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
    <bullet> does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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 Fairness 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

[[Page 26527]]

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. 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 August 3, 2009. 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. Parties with objections to this direct final 
rule are encouraged to file a comment in response to the parallel 
notice of proposed rulemaking for this action published in the proposed 
rules section of today's Federal Register, rather than file an 
immediate petition for judicial review of this direct final rule, so 
that EPA can withdraw this direct final rule and address the comment in 
the proposed rulemaking. This action may not be challenged later in 
proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, New source review, Nitrogen 
oxides, Ozone.

    Dated: May 7, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for Part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart F--California

0
2. Section 52.220 is amended by adding paragraphs (c)(362)(i)(A)(1) to 
read as follows:


Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (362) New and amended regulations were submitted on April 29, 2009 
by the Governor's designee.
    (i) Incorporation by Reference.
    (A) San Diego Air Pollution Control District.
    (1) Rule 27.1, ``Federal Requirements for the San Diego County Air 
Pollution Control District's Alternative Mobile Source Emission 
Reduction Program Approved On September 8, 2000,'' adopted and 
effective on August 8, 2008.

[FR Doc. E9-12791 Filed 6-2-09; 8:45 am]
BILLING CODE 6560-50-P


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