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###### Environmental Protection Agency

          - 40 CFR Part 52
          - [EPA-R09-OAR-2009-0314; FRL-8906-1]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Direct final rule.

# 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 (NOX) 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:
      -  Federal eRulemaking Portal: http://www.regulations.gov.                          Follow the on-line instructions.                    
      -  E-mail: R9airpermits@epa.gov. 
      -  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,                         *kelly.shaheerah@epa.gov.*

# SUPPLEMENTARY INFORMATION:

                    Throughout this document, “we,” “us” and “our” refer to EPA.                          ( print 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 NOx                     MERCs generated under the District's program to be used as Federal NSR offsets.                

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:
    - 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 ( Pub. L. 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 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                           ( print 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.

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 paragraphs (c)(362)(i)(A)( *1*) to read as follows:                    

§ 52.220 

* * * * *

(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.                        

# Footnotes

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.                    
        Back to Citation      

[FR Doc. E9-12791 Filed 6-2-09; 8:45 am]

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