[Federal Register Volume 67, Number 221 (Friday, November 15, 2002)]
[Rules and Regulations]
[Pages 69139-69146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28919]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA-079-SIPS; FRL-7408-5]


Motor Vehicle Emissions Budgets in Progress, Attainment, and 
Maintenance State Implementation Plans for Ozone, Carbon Monoxide, and 
Nitrogen Dioxide; California

AGENCY: Environmental Protection Agency (EPA).

[[Page 69140]]


ACTION: Final rule.

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SUMMARY: EPA is taking final action to limit the duration of our 
approvals of motor vehicle emissions budgets (``budgets'') in certain 
existing California state implementation plans (SIPs) that provide for 
progress, attainment, and maintenance of the 1-hour ozone, 8-hour 
carbon monoxide (CO), and annual nitrogen dioxide (NO2) national 
ambient air quality standards (NAAQS). Specifically, we are limiting 
our approvals of the existing budgets to last only until the effective 
date of our adequacy finding for new budgets that replace the existing 
approved budgets for the same pollutant, Clean Air Act (CAA) 
requirement, and year. The State of California will submit new budgets 
as part of comprehensive revisions to certain approved progress, 
attainment, and maintenance plans that reflect updated information and 
a new version of California's motor vehicle emission factor model. On 
the effective date of EPA's adequacy finding for a new budget, our 
approval of the existing budget would terminate and thus the new 
adequate budget would apply instead of the existing budget for 
transportation conformity purposes.

EFFECTIVE DATE: This rule is effective on December 16, 2002.

ADDRESSES: You can inspect copies of the docket for this action at 
EPA's Region 9 office during normal business hours. You can inspect 
copies of the SIP materials at the following locations:

U.S. EPA, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-
3901.
California Air Resources Board, 1001 I Street, Sacramento, CA 95814.

FOR FURTHER INFORMATION CONTACT: Dave Jesson, EPA Region 9, (415) 972-
3957, or [email protected]

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

I. Proposed Action

    On July 16, 2002 (67 FR 46618), we proposed to limit the duration 
of our prior approvals of existing motor vehicle emissions budgets 
associated with the SIPs for the areas listed below in Table 1--
California SIPs Whose Budget Approvals Are Being Modified. Under this 
modification, the existing budgets will be approved and apply for 
transportation conformity purposes only until we have found the new 
budgets that California submits to be adequate. The proposed action 
provides background information on the California SIPs, the State's 
request, the federal rule (40 CFR part 93) and current policies to 
implement the transportation conformity provisions of CAA section 
176(c), and our process for determining adequacy of motor vehicle 
emission budgets.\1\
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    \1\ The adequacy process is explained at 40 CFR 93.118(e)(4) and 
(5), and in a May 14, 1999 memo from Gay MacGregor, Director, 
Regional and State Programs Division, Office of Mobile Sources, 
entitled, ``Conformity Guidance on Implementation of March 2, 1999 
Conformity Court Decision.''

                                                               Table 1.--California SIPs Whose Budget Approvals Are Being Modified
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                 Area                            Pollutant                                  Plan                         Adoption    Submittal                     FR approval
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Antelope Valley (SE Desert)..........  Ozone........................  Attainment Plan.................................      9/9/94    11/15/94  1/8/97, 62 FR 1150.
                                                                                                                           12/9/94    12/29/94
                                                                                                                           4/12/96     7/10/96
Bakersfield..........................  CO...........................  Maintenance Plan................................     4/26/96      7/3/96  3/31/98, 63 FR 15305.
Chico................................  CO...........................  Maintenance Plan................................     4/26/96      7/3/96  3/31/98, 63 FR 15305.
Coachella (SE Desert)................  Ozone........................  Attainment Plan.................................      9/9/94    11/15/94  1/8/97, 62 FR 1150.
                                                                                                                           12/9/94    12/29/94
                                                                                                                          12/29/94     7/10/96
Fresno...............................  CO...........................  Maintenance Plan................................     4/26/96      7/3/96  3/31/98, 63 FR 15305.
Kern (SE Desert).....................  Ozone........................  Attainment Plan.................................     12/1/94     1/28/94  1/8/97, 62 FR 1150.
Lake Tahoe--North....................  CO...........................  Maintenance Plan................................     4/26/96      7/3/96  3/31/98, 63 FR 15305.
Lake Tahoe--South....................  CO...........................  Maintenance Plan................................     4/26/96      7/3/96  3/31/98, 63 FR 15305.
Modesto..............................  CO...........................  Maintenance Plan................................     4/26/96      7/3/96  3/31/98, 63 FR 15305.
Mojave (SE Desert)...................  Ozone........................  Attainment Plan.................................    10/26/94    11/15/94  1/8/97, 62 FR 1150.
Monterey.............................  Ozone........................  Maintenance Plan................................     5/25/94     7/14/94  1/17/97, 62 FR 2597.
                                                                                                                          10/19/94    11/14/94
Sacramento...........................  Ozone........................  Attainment Plan.................................     12/1/94    12/29/94  1/8/97, 62 FR 1150.
                                                                                                                          12/12/94
                                                                                                                          12/13/94
                                                                                                                          12/14/94
                                                                                                                          12/20/94
Sacramento...........................  CO...........................  Maintenance Plan................................     4/26/96      7/3/96  3/31/98, 63 FR 15305.
San Diego............................  CO...........................  Maintenance Plan................................     4/26/96      7/3/96  3/31/98, 63 FR 15305.
San Francisco Bay Area...............  CO...........................  Maintenance Plan................................     4/26/96      7/3/96  3/31/98, 63 FR 15305.
South Coast..........................  Ozone........................  Attainment Plan.................................    11/15/96      2/5/97  4/10/00, 65 FR 18903.
                                                                                                                          12/10/99      2/4/00
South Coast..........................  NO2..........................  Maintenance Plan................................    11/15/96      2/5/97  7/24/98, 63 FR 39747.
Stockton.............................  CO...........................  Maintenance Plan................................     4/26/96      7/3/96  3/31/98, 63 FR 15305.
Ventura..............................  Ozone........................  Attainment Plan.................................     11/8/94    11/15/94  1/8/97, 62 FR 1150.
                                                                                                                          12/19/95     7/12/96
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Note: The Attainment plans typically also address CAA provisions relating to progress.

    Our proposed action was requested by the California Air Resources 
Board (CARB) because the State is in the process of making 
comprehensive updates and enhancements to most of its air quality plans 
and budgets, which will include much more accurate motor vehicle 
emission information than existing SIPs. California wishes to replace 
the existing approved budgets as soon as possible so that the new 
budgets can be used in conformity. Normally, new budgets that replace 
existing budgets in approved plans cannot be used until the 
corresponding plans have

[[Page 69141]]

been fully approved as part of the SIP. However, if approval of the 
existing budgets expires when we determine that the new budgets are 
adequate (as we proposed), the superior new budgets can be then 
employed in transportation conformity determinations within a few 
months of their submission, rather than only when the SIP is finally 
approved, which could take as long as 18 months.
    In a June 14, 2002, letter from Mike Kenny, CARB Executive Officer, 
to Wayne Nastri, EPA Region 9 Regional Administrator, CARB states that 
the new plan revisions will benefit air quality and strengthen the SIPs 
by incorporating: New federally enforceable commitments and control 
measures; new and updated data that reflect the various emission 
control rules adopted since the old SIPs were developed; recent vehicle 
test data for cars and trucks to better represent real-world emissions; 
and updated vehicle registration data and activity data. The CARB 
letter concludes: ``Without the ability to replace existing budgets 
with submitted ones using the budget adequacy process, the benefits of 
using the updated data from the stronger, more effective SIPs would not 
be realized for a year or more after the SIPs are submitted, due to the 
SIP approval process.'' In response, we proposed to modify our 
approvals of the California SIPs in light of the age of the motor 
vehicle data in the existing SIPs and the improvements to be included 
in the new SIPs.
    Today's final action is not intended to modify the generally 
applicable rules regarding when submitted budgets become effective for 
the purposes of transportation conformity. Rather, today's action sets 
forth a means to accommodate the State's request to allow for the 
prompt use of new more accurate budgets in California within the bounds 
of existing regulatory and statutory requirements.

II. Public Comments

    We received three comments: one letter of support, one letter 
requesting clarification, and one letter opposing the proposed action. 
We summarize and respond to the comments below.

A. Comments From Georgia

    A letter of support was submitted jointly by the Environmental 
Protection Division of the Georgia Department of Natural Resources, the 
Georgia Regional Transportation Authority, and the Atlanta Regional 
Commission. These agencies supported the flexibility being proposed for 
California and encouraged its wide application for other nonattainment 
and maintenance areas:
    The Agencies are in complete support of the proposed EPA action, in 
California and elsewhere, as it will eliminate the lengthy SIP approval 
process currently needed to replace existing SIP budgets, and will 
enable a quicker, smoother transition to motor vehicle emissions 
budgets which more accurately reflect current conditions-with the 
ultimate end being improved alignment between mobile source emission 
estimates used in both the SIP and the transportation plan and program. 
By reducing the potential delay experienced before new budgets may be 
utilized and by reducing the associated risk to the transportation 
planning process, we believe that this rulemaking also provides an 
incentive for nonattainment and maintenance areas to revisit their 
approved budgets more frequently. This would improve the air quality 
planning process, and ultimately air quality, by causing newer and 
better planning assumptions to be incorporated into SIPs more often. 
Therefore, we encourage EPA to provide the flexibility contained in 
this rulemaking throughout the country, especially in those areas, such 
as Atlanta, where there is an active and effective interagency 
consultation process.
    Response: We appreciate the support of the Environmental Protection 
Division of the Georgia Department of Natural Resources, the Georgia 
Regional Transportation Authority, and the Atlanta Regional Commission 
for this action on SIPs in California. In response to their request 
that we extend this flexibility to all nonattainment and maintenance 
areas, we can only do so under certain specific circumstances. First, a 
state must acknowledge that its currently approved budgets have become 
outdated or are deficient. Second, the state must make a commitment to 
update these budgets as part of a comprehensive update of its SIP. 
Third, a state must request that EPA limit the duration of the approval 
of the state's current approved SIPs. If a state meets all of these 
criteria, it would be appropriate to allow that state also to take 
advantage of this flexibility.
    California has committed to undertake comprehensive updates of 
nearly two dozen attainment demonstrations and/or maintenance plans. 
Many of these plans have not been updated in the last eight years. In 
that time much has been learned about motor vehicle emissions and many 
planning assumptions have been updated. As discussed above, California 
has sent a letter to EPA formally requesting that we limit the duration 
of the State's currently approved SIPs. Therefore, California has 
fulfilled the criteria necessary to receive this flexibility and we 
believe it is now appropriate to limit our prior SIP approvals and 
allow new budgets that come from these revised SIPs and reflect much 
better information to be used for conformity after they are found 
adequate.

B. Comments From Miwok Indians

    The following comments were submitted on behalf of the Shingle 
Springs Band of Miwok Indians (``Tribe'').
    1. EPA should clarify that projects from federally approved 
transportation plans may continue if new budgets apply.
    Response: In general, the establishment of new applicable budgets 
would not affect projects incorporated in approved regional 
transportation plans (RTPs) and transportation improvement plans 
(TIPs). A conformity determination remains valid even if we later, upon 
further analysis, find new budgets applicable. The fact that new 
information became available that changed the applicable budgets does 
not affect a prior conformity determination; a subsequent conformity 
determination would take the new information into account. However, 
whether or not a new budget applies, a project carried forward into a 
new RTP or TIP must be analyzed, together with all other federally 
supported highway and transit activities, to demonstrate that the RTP 
or TIP as a whole is consistent with the SIP, using the latest planning 
assumptions, the approved motor vehicle emissions factor model, and the 
currently applicable budgets. Also, regardless of which budget applies, 
the Metropolitan Planning Organization (MPO) may elect not to include 
any project in the next RTP or TIP for the area.
    2. EPA failed to include proposed regulatory language in the 
proposal.
    Response: We are not obligated to issue rule language in a proposed 
rulemaking, and generally do not do so in actions on State plans. We 
believe that the proposed rulemaking was clear in expressing our 
intended action.

C. Comments From Marc Chytilo

    Marc Chytilo submitted comments on behalf of Transportation 
Solutions Defense and Education Fund, Communities for a Better 
Environment, Our Children's Earth Foundation, Earthjustice, Sierra 
Club, Latino Issues Forum, and Urban Habitat. Mr. Chytilo objected to 
the proposal for several reasons, which are summarized and discussed 
below.

[[Page 69142]]

    1. EPA's rulemaking record must disclose that ARB's proposed action 
is being undertaken to avoid statewide conformity issues by replacing 
the emissions budgets used to demonstrate attainment in currently 
approved SIPs with enlarged emissions budgets that have no demonstrated 
relationship to attainment of the NAAQS. ARB has apparently not clearly 
committed to review the adequacy of prior attainment demonstrations, or 
submit new demonstrations, as part of its current plan to develop 
revised MVEBs using current estimates of motor vehicle emissions.
    Response: The purpose of our action is to expedite use of new 
budgets based on updated planning data and models, and consistent with 
comprehensive new progress, attainment, and maintenance plans. We 
expect that the new budgets would have a demonstrated relationship to 
attainment and maintenance of the NAAQS, and we would not find the new 
budgets adequate if that were not the case. We can find the budgets 
adequate only if the plans meet all the criteria in Sec.  93.118(e)(4), 
as discussed below in response to comment 3. In fact, we expect that 
the use of updated information on motor vehicle emissions, emissions of 
other pollutant categories, air quality data, and air quality 
assessments in revised plans should strengthen the relationship of the 
budgets to the demonstrations of attainment and maintenance in each 
affected area.
    2. The proposed action is inconsistent with the statute, judicial 
interpretations, and EPA's previous interpretations. a. CAA section 
176(c) requires conformity using the EPA approved or promulgated 
implementation plan.
    Response: Our proposal to terminate the approval of existing 
budgets in certain California SIPs at the time of an adequacy finding 
for new budgets does not conflict with judicial interpretations or CAA 
section 176(c). As discussed below, our transportation conformity 
regulations do allow for submitted budgets to apply following our 
determination of adequacy but before SIP approval, under circumstances 
detailed in 40 CFR 93.118(e). Although the court in Environmental 
Defense Fund v. EPA et al., 167 F.3d 641 (D.C. Cir. 1999) remanded 40 
CFR 93.118(e)(1), the offending provision was an automatic assumption 
of adequacy 45 days after the SIP was submitted, unless before that 
date we determined that the budgets were inadequate. The court did not 
remand the other regulatory provisions relating to use of adequate 
budgets, and our proposal is entirely consistent with the our current 
regulations. In addition, the fourth circuit also recently found it 
appropriate to use submitted budgets that had been found adequate where 
no prior approved budget was in place. See 1000 Friends of Maryland v. 
Browner, 265 F.3d 216 (4th Cir. 2001).
    Our proposal provides a mechanism for enhancing compliance with the 
CAA section 176(c)(1) requirement that ``[t]he determination of 
conformity shall be based on the most recent estimates of emissions. * 
* *'' Absent our proposed mechanism, transportation conformity 
determinations in these areas of California would need to be based on 
budgets and air quality plans that may have been prepared more than 
eight years ago until we complete comprehensive review of the air 
quality plans, propose rulemaking, and issue final approval of the 
budgets and plans. This period may take as much as 18 months from the 
date on which the plans and budgets were submitted. Under our proposed 
mechanism, transportation planning organizations must use new budgets 
that are based upon updated air quality plans using the most recent 
emissions estimates, as soon as we find these budgets to be adequate 
under the provisions of 40 CFR 93.118, a process that is generally 
completed within approximately 90 days from the submittal date.
    b. EPA's conformity regulations (40 CFR 93.118(e)) provide that 
submitted SIPs do not supersede budgets in approved SIPs for the period 
of years addressed by the approved implementation plan.
    Response: As mentioned, our proposal to terminate the approval of 
existing budgets in certain SIPs at the time of an adequacy finding for 
new budgets does not change our transportation conformity regulations, 
which allow for use of a budget prior to SIP approval in cases where 
there is no budget approved in the SIP for the same year and CAA 
requirement (40 CFR 93.118(e)). By terminating our approval of the 
existing budgets on the date that we find new, revised budgets to be 
adequate, we eliminate the old budgets from the approved SIP and thus 
allow the new budgets to apply under the conformity rules for purposes 
of transportation conformity. In this manner, our proposed action 
provides an option, within the framework of our existing regulations, 
for accelerating the air quality and transportation benefits of basing 
transportation plans and conformity determinations on California's new 
and improved plans and budgets, in lieu of the outdated SIPs and 
budgets that were developed and adopted, in many cases, eight years 
ago.
    Before the revised budgets may go into effect, however, we must 
first review both the budgets and the air quality plans and make a 
finding that these updated budgets are adequate. Our finding must 
follow the procedures and criteria in 40 CFR 93.118 (e)(4) and (5), and 
the guidance contained in the EPA Guidance Memorandum from Gay 
MacGregor to Regional Air Directors entitled ``Conformity Guidance on 
the Implementation of the March 2, 1999 Conformity Court Decision'' 
(May 14, 1999). Therefore, our proposed mechanism for allowing use of 
these new budgets complies with the 40 CFR 93.118(e) provisions in our 
transportation conformity regulations, and our findings on the adequacy 
of the budgets in the submittals will comply with all applicable 
provisions of the regulations.
    3. EPA may attempt to find budgets adequate based on incomplete 
and/or patently inadequate SIPs, creating great uncertainty in air 
quality and transportation planning processes while compromising air 
quality and public health.
    Response: We will follow the statutory criteria and the regulatory 
criteria in 40 CFR 93.118(e)(4) and (5) for finding submitted budgets 
adequate. Among other mandated findings, we must analyze the budget and 
air quality plan and determine that the following provisions of 
93.118(e)(4) have been met:
    (iv) The motor vehicle emissions budget(s), when considered 
together with all other emissions sources, is consistent with 
applicable requirements for reasonable further progress, attainment, or 
maintenance (whichever is relevant to the given implementation plan 
submission);
    (v) The motor vehicle emissions budget(s) is consistent with and 
clearly related to the emissions inventory and the control measures in 
the submitted control strategy implementation plan revision or 
maintenance plan; and
    (vi) Revisions to previously submitted control strategy 
implementation plans or maintenance plans explain and document any 
changes to previously submitted budgets and control measures; impacts 
on point and area source emissions; any changes to established safety 
margins * * *; and reasons for the changes (including the basis for any 
changes related to emission factors or estimates of vehicle miles 
traveled).
    If the SIPs are incomplete or inadequate or otherwise fail to meet 
applicable requirements in our transportation conformity regulations, 
we will not determine the new budgets

[[Page 69143]]

adequate, and the existing budgets will continue to apply. 
Additionally, the public will have the opportunity to comment on both 
California's proposed SIP revisions and on our adequacy findings. We 
will take all submitted comments into account when making adequacy 
determinations.
    4. EPA previously rejected this interpretation in the 1997 
conformity regulations: ``Although EPA acknowledges that using updated 
budgets may be preferable, EPA does not believe that it is legal to 
allow a submitted SIP to supersede an approved SIP for years addressed 
by the approved SIP. As stated in the proposal, Section 176(c) 
specifically requires conformity to be demonstrated to approved SIPs.'' 
62 FR 43783.
    Response: Again, our proposal would not amend the existing 
regulation, which provides that ``submitted implementation plans do not 
supersede the motor vehicle emissions budgets in approved 
implementation plans for the period of years addressed by the approved 
implementation plan.'' 40 CFR 93.118(e)(1). California has requested 
that we approve its request to terminate the approval of the existing 
budgets when we find new budgets to be adequate, as a means of 
complying with the regulation while reducing the period of time before 
which the new budgets can be used for transportation planning purposes. 
There is nothing in the law or regulations that prohibits us from 
limiting the duration of a SIP approval if it is requested by the 
state. If our approval expires and there is no approved SIP with 
budgets for a given year and CAA purpose, then adequate budgets for 
that year and CAA purpose can apply for conformity. We agree with the 
State that, for the SIPs identified above in Table 1, the benefits of 
speeding the applicability of the new budgets are considerable. This is 
primarily because the existing California SIPs and budgets were 
developed, adopted, and approved many years ago, and new budgets and 
SIPs for these areas are expected to be based on comprehensively 
updated and enhanced information and control measures. We are taking 
this action because California has acknowledged the age of the 
information in the existing SIPs, has requested that we limit the 
duration of the approval, and has committed to submit new SIPs which 
include superior motor vehicle emissions data. We continue to agree 
with the State that in these cases it would provide an advantage to air 
quality and public health protection if the new budgets could be used 
once we find them to be adequate before comprehensive rulemaking on the 
new attainment, progress, and maintenance submittals can be completed.
    5. Budget adequacy can only be based on valid, modeled attainment 
demonstrations. Budgets must be demonstrated through modeling to be 
consistent with attainment, maintenance, and rate of progress.
    Response: We expect that the new SIP submittals will document the 
consistency of the budgets and the attainment, maintenance, and rate of 
progress plan elements, as applicable, and we cannot find them adequate 
if they do not. However, while ambient modeling is required for most 
attainment plans, it is not mandatory for maintenance plans and it is 
not a relevant exercise for rate of progress plans, which address CAA-
specified schedules of emission reductions from a SIP emissions 
baseline level.
    6. The proposed rulemaking is silent on the standards that EPA will 
employ in determining the adequacy of control strategies achieving 
emissions reductions necessary to accomplish attainment. The proposed 
strategy is unlawful to the extent that the State relies on enforceable 
commitments to submit later demonstrations that the NAAQS will be 
attained if higher estimates of motor vehicle emissions are allowed, 
and subsequent enforceable measures will be submitted to make up for 
excess emissions resulting from enlarged budgets. EPA's reliance upon 
mere ``enforceable commitments'' to accomplish further emissions 
reductions necessary for attainment, maintenance or rate of progress is 
patently illegal.
    Response: The standards we use to determine whether control 
strategies in a submitted SIP are approvable were not explicitly set 
forth in the proposal. As mentioned earlier, the standards for finding 
budgets adequate are found in the conformity rule at 40 CFR 
93.118(e)(4) and (5). Since areas can account for the air quality 
benefit of control measures not yet implemented but which are defined 
in a written commitment, it is appropriate to find a SIP adequate for 
conformity purposes even if it contains written commitments.
    The comment raises potential SIP approval issues, which could be 
germane to our future rulemaking on the new plan submittals. If the 
commenter believes that these approval issues arise at that time, we 
invite the commenter to submit comments specific to the submitted SIPs 
during the public comment periods associated with our rulemaking on the 
plans. In today's action, we are simply limiting the time frame of 
prior approvals of budgets and are not approving any new plan 
submittals.
    7. EPA cannot rely on its failure to conform its regulations to the 
Court's remand in EDF versus EPA as a basis for conducting a state-
specific rulemaking that attempts to avoid the national rulemaking 
process required by Congress for promulgation of conformity 
regulations.
    Response: The commenter indicates that we are taking this action to 
limit the approval of California's SIPs because we have not yet revised 
the conformity regulation to reflect the court's March 2, 1999, 
decision on the EDF lawsuit. However, this action is not connected to 
the March 2, 1999, court decision. We are taking this action in 
response to a request from California to revise the approval of 
attainment demonstrations and maintenance plans within the State based 
upon the age of the information in those plans. We would have to act on 
this request whether or not we had revised the conformity regulation in 
response to the court's March 2, 1999, decision.
    Our action to limit the approval of California's SIPs does not make 
any change to the existing transportation conformity rule or to the way 
it is normally implemented with respect to other submitted and approved 
SIPs, but rather applies narrowly to the specific SIPs and 
circumstances as discussed above. Since we are not changing the federal 
conformity regulation we do not need a national rulemaking. We are 
acting appropriately in that we are taking a local action to amend the 
approval of attainment demonstrations and maintenance plans within one 
state at the request of that state. In any event, we are conducting 
rulemaking proceedings, are considering all submitted comments, and 
have coordinated with the U.S. Department of Transportation on this 
action.
    We are approving California's commitment to revise the currently 
approved budgets; therefore, we want our approval of the current 
budgets to last only until adequate revised budgets are submitted 
pursuant to the commitment. We believe the revised budgets should apply 
as soon as we find them adequate; we do not believe it is appropriate 
to wait until we have approved the revised attainment demonstrations 
and/or maintenance plans. This is because we know now that once we have 
confirmed that the revised budgets are adequate, they will be more 
appropriate than the originally approved budgets for conformity 
purposes.
    Specifically, once California has updated the currently approved 
SIPs to

[[Page 69144]]

reflect all current control measures and the latest information on 
vehicle emissions, the appropriate motor vehicle emissions budgets 
should reflect those measures and vehicle emission information. 
Otherwise, the budget would not be the level of motor vehicle emissions 
that is consistent with the attainment demonstrations or maintenance 
plans.
    If we do not clarify our approval of the current budgets, 
California will revise the budgets as committed, but they would not be 
able to use them for conformity purposes until the SIPs were approved. 
This would defeat the purpose of California's commitment for the 
budgets to be revised quickly to incorporate updated more accurate 
information. In contrast, according to today's proposal, the revised 
budgets could be used for conformity after we have completed our 
adequacy review process, which we generally complete within 90 days 
after revisions are submitted, provided they are adequate. Today's 
action is consistent with the court's decision. The court held that 
budgets could not automatically become adequate after a certain period 
of time, but that we must make an affirmative finding on the adequacy 
of budgets after allowing the public the opportunity to comment. We 
will be making a finding of adequacy before the new submitted budgets 
are used.
    8. Enforceability issues are muddled. If revised control strategies 
are not fully consistent with strategies in the approved SIP, industry 
may be able to sue to enforce the approved SIPs' less effective control 
measures until the effective date of EPA's approval of revised SIPs.
    Response: We do not believe that this comment is relevant to our 
proposed rulemaking, which deals with the replacement of budgets, not 
control measures. In addition, we do not anticipate that this will be a 
problem since the control measures in the submitted SIPs would have to 
be enforceable at the State level prior to submission to EPA.
    9. Commenter is adversely affected by EPA's action, which will 
permit the expenditure of federal transportation funds on projects that 
fail to reduce air pollution emissions and thus cause or contribute to 
unhealthful air quality. EPA's action will promote single occupancy 
vehicle travel rather than creating viable alternative transportation 
systems.
    Response: The commenter did not explain how our proposed action 
would promote single occupancy vehicle travel or fail to promote 
alternative transportation systems. Our proposed action does not permit 
the expenditure of federal transportation funds. We merely propose to 
terminate the approval of existing budgets for specified SIPs on the 
effective date of our adequacy finding, if any, on new budgets. 
Further, we cannot find any new budgets adequate unless they are 
consistent with attainment, progress, and maintenance of the air 
quality standards. Before federal transportation funds are awarded, the 
MPO must make a conformity determination on its long range plan and 
transportation improvement program. The public has the opportunity to 
comment on the content of the long range plan, transportation 
improvement program and conformity determination. The Federal Highway 
Administration and Federal Transit Administration must also determine 
the conformity of federally funded or approved highway and transit 
plans, programs, and projects to the applicable budget, based on the 
conformity determination prepared by the metropolitan planning 
organization for the area prior to awarding any federal funds.
    10. The venue for any petition for review of the proposed action 
will lie in the U.S. Court of Appeals for the Ninth Circuit pursuant to 
Section 307(b).
    Response: We agree with this comment.
    11. Transportation plans, programs, and project approvals based on 
budgets that are subsequently determined to not be adequate as part of 
a judicial proceeding or SIP disapproval without a protective finding 
are subject to suspension, unless the project demonstrates a net air 
quality improvement or conformity exemption.
    Response: We are not proposing any change in the transportation 
conformity regulations, which set out the consequences of SIP 
disapproval at 40 CFR 93.120(a). However, under 40 CFR 93.118(e)(3), 
conformity determinations made to adequate budgets are not disturbed by 
subsequent findings of inadequacy.
    12. Because the proposed action deviates from each area's SIP 
relating to conformity criteria, procedures, and regulations, each 
area's SIP will need to be revised to reflect the ad hoc exemption from 
the national conformity rules.
    Response: The San Francisco Bay Area has approved SIP regulations 
for transportation conformity. The remaining responsible California air 
quality agencies for the areas listed in Table 1 do not have approved 
SIP rules addressing transportation conformity, but rather comply with 
the Federal transportation conformity regulations at 40 CFR part 93, 
Subpart A. As mentioned above, we are not changing these Federal 
regulations in this action. We will ensure that the responsible 
California agencies, if they elect to adopt a revision to their 
attainment, progress, or maintenance SIPs and establish replacement 
budgets, do so through a process consistent with the applicable 
transportation conformity regulations, and that this process clearly 
identifies that one of the consequences of adopting and submitting a 
revised budget would be the termination of our approval of the existing 
budget if and when we find the replacement budget adequate.
    13. Commenter calls upon the State to aggressively develop 
statewide transportation control measures for the 2003 SIPs, including 
the commuter choice program; state and federal tax incentives for 
parking cash out; promotion of regional transit systems; and smart 
growth.
    Response: While we support the development of transportation 
control measures (TCMs) as components of SIPs, including such measures 
as the commenter advocates, we do not consider the comment germane to 
our action to limit approval of past SIPs, nor do we have a position 
with respect to the appropriateness of statewide TCMs as opposed to 
regional or local TCMs.

III. Final Action

    For the reasons stated above, and in the July 16, 2002, proposal, 
we are taking final action to limit the duration of our approvals of 
budgets in the existing SIPs identified in Table 1. In all other 
respects, the Table 1 SIPs will remain federally approved and 
enforceable unless and until we finalize approval of revised plans, and 
our limitations apply only to the extent that any new plans that we 
find adequate explicitly supersede the approved SIPs.

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.''

B. Executive Order 13045

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a

[[Page 69145]]

disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

C. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612, Federalism and 
12875, Enhancing the Intergovernmental Partnership. Executive Order 
13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely modifies certain previous SIP approval actions and imposes no 
additional requirements beyond those imposed by state law. The rule 
does not therefore alter the relationship or the distribution of power 
and responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

D. Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.

E. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because these modifications of SIP approvals 
under section 110 and subchapter I, part D of the Clean Air Act do not 
create any new requirements. Therefore, because the Federal 
modification of certain previous SIP approvals does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

G. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the modification of certain prior SIP 
approvals does not include a Federal mandate that may result in 
estimated costs of $100 million or more to either State, local, or 
tribal governments in the aggregate, or to the private sector. This 
Federal action imposes no new requirements. Accordingly, no additional 
costs to State, local, or tribal governments, or to the private sector, 
result from this action.

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to today's action because it 
does not require the public to perform activities conducive to the use 
of VCS.

I. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small

[[Page 69146]]

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 rule 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 Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

J. Petitions for Judicial Review

    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 January 14, 2003. 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 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 in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: November 5, 2002.
Alexis Strauss,
Acting Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the CFR 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 52.244 is added to read as follows:


Sec.  52.244  Motor vehicle emissions budgets.

    (a) Approval of the motor vehicle emissions budgets for the 
following ozone rate-of-progress and attainment SIPs will apply for 
transportation conformity purposes only until new budgets based on 
updated planning data and models have been submitted and EPA has found 
the budgets to be adequate for conformity purposes.
    (1) Antelope Valley, approved January 8, 1997;
    (2) Coachella, approved January 8, 1997;
    (3) Kern, approved January 8, 1997;
    (4) Mojave, approved January 8, 1997;
    (5) Sacramento, approved January 8, 1997;
    (6) South Coast, approved April 10, 2000;
    (7) Ventura, approved January 8, 1997.
    (b) Approval of the motor vehicle emissions budgets for the 
following ozone maintenance SIP will apply for transportation 
conformity purposes only until new budgets based on updated planning 
data and models have been submitted and EPA has found the budgets to be 
adequate for conformity purposes.
    (1) Monterey, approved January 17, 1997.
    (2) [Reserved].
    (c) Approval of the motor vehicle emissions budgets for the 
following carbon monoxide maintenance SIPs will apply for 
transportation conformity purposes only until new budgets based on 
updated planning data and models have been submitted and EPA has found 
the budgets to be adequate for conformity purposes.
    (1) Bakersfield, approved March 31, 1998;
    (2) Chico, approved March 31, 1998;
    (3) Fresno, approved March 31, 1998;
    (4) Lake Tahoe-North, approved March 31, 1998;
    (5) Lake Tahoe-South, approved March 31, 1998;
    (6) Modesto, approved March 31, 1998;
    (7) Sacramento, approved March 31, 1998;
    (8) San Diego, approved March 31, 1998;
    (9) San Francisco Bay Area, approved March 31, 1998;
    (10) Stockton, approved March 31, 1998.
    (d) Approval of the motor vehicle emissions budgets for the 
following nitrogen dioxide maintenance SIP will apply for 
transportation conformity purposes only until new budgets based on 
updated planning data and models have been submitted and EPA has found 
the budgets to be adequate for conformity purposes.
    (1) South Coast, approved on July 24, 1998.
    (2) [Reserved].

[FR Doc. 02-28919 Filed 11-14-02; 8:45 am]
BILLING CODE 6560-50-P