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

[Federal Register: November 15, 2002 (Volume 67, Number 221)]
[Rules and Regulations]
[Page 69139-69146]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15no02-9]

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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).
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 Jesson.David@epa.gov

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'' (59 FR 22951, 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

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

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