[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Proposed Rules]
[Pages 63575-63581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26346]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[EPA-HQ-OAR-2011-0393; FRL-9477-9]
RIN 2060-AR03


Transportation Conformity Rule: MOVES Regional Grace Period 
Extension

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to extend the grace period before the MOtor 
Vehicle Emission Simulator model (currently MOVES2010a) is required for 
regional emissions analyses for transportation conformity 
determinations (``regional conformity analyses''). This proposal would 
provide an additional year to the previously established two-year 
conformity grace period, so that MOVES2010a would not be required for 
regional conformity analyses until March 2, 2013. This proposal would 
not affect EPA's previous approval of the use of MOVES in official 
state air quality implementation plan (SIP) submissions or the existing 
grace period before MOVES2010a is required for carbon monoxide and 
particulate matter hot-spot analyses for project-level conformity 
determinations.

DATES: Written comments on this proposal must be received on or before 
November 14, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-OAR-
2011-0393, by one of the following methods:
     http://www.regulations.gov: Follow the online instructions 
for submitting comments.
     E-mail: [email protected]
     Fax: (202) 566-9744
     Mail: Air Docket, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, 
Attention Docket ID No. EPA-HQ-OAR-2011-0393. Please include a total of 
two copies.
     Hand Delivery: Air Docket, Environmental Protection 
Agency: EPA West Building, EPA Docket Center (Room 3334), 1301 
Constitution Ave., NW., Washington, DC, Attention Docket ID No. EPA-HQ-
OAR-2011-0393. Please include two copies. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2011-0393. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or e-mail. The http://www.regulations.gov Web site is an ``anonymous 
access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 
For additional instructions on submitting comments, go to Section I. of 
the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air and Radiation 
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744 and the telephone 
number for the Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Meg Patulski, State Measures and 
Conformity Group, Transportation and Regional Programs Division, 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105; telephone number: (734) 214-4842; fax number: (734) 214-4052; e-
mail address: [email protected]; or Astrid Larsen, State Measures 
and Conformity Group, Transportation and Regional Programs Division, 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105; telephone number: (734) 214-4812; fax number: (734) 214-4052; e-
mail address: [email protected].

SUPPLEMENTARY INFORMATION: The content of this preamble are listed in 
the following outline:

I. General Information

[[Page 63576]]

II. Background
III. Extension of MOVES2010a Regional Conformity Grace Period
IV. Conformity SIPs
V. Statutory and Executive Order Reviews

Availability of MOVES2010a and Support Materials

    Copies of the official version of the MOVES2010a motor vehicle 
emissions model, along with user guides and supporting documentation, 
are available on EPA's MOVES Web site: http://www.epa.gov/otaq/models/moves/index.htm. Guidance on how to apply MOVES2010a for SIPs and 
transportation conformity purposes, including ``Policy Guidance on the 
Use of MOVES2010 for State Implementation Plan Development, 
Transportation Conformity, and Other Purposes'' (EPA-420-B-09-046, 
December 2009) and ``Technical Guidance on the Use of MOVES2010 for 
Emission Inventory Preparation in State Implementation Plans and 
Transportation Conformity'' (EPA-420-B-10-023, April 2010) can be found 
on the EPA's transportation conformity Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm.

I. General Information

A. Does this action apply to me?

    Entities potentially regulated by the transportation conformity 
rule are those that adopt, approve, or fund transportation plans, 
programs, or projects under title 23 U.S.C. or title 49 U.S.C. Chapter 
53. Regulated categories and entities affected by today's action 
include:

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                                                 Examples of regulated
                   Category                             entities
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Local government.............................  Local transportation and
                                                air quality agencies,
                                                including metropolitan
                                                planning organizations
                                                (MPOs).
State government.............................  State transportation and
                                                air quality agencies.
Federal government...........................  Department of
                                                Transportation (Federal
                                                Highway Administration
                                                (FHWA) and Federal
                                                Transit Administration
                                                (FTA)).
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
proposal. This table lists the types of entities of which EPA is aware 
that potentially could be regulated by the transportation conformity 
rule. Other types of entities not listed in the table could also be 
regulated. To determine whether your organization is regulated by this 
action, you should carefully examine the applicability requirements in 
40 CFR 93.102. If you have questions regarding the applicability of 
this action to a particular entity, consult the persons listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

B. What should I consider as I prepare my comments for EPA?

1. Submitting CBI
    Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR Part 2.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.
3. Docket Copying Costs
    You may be required to pay a reasonable fee for copying docket 
materials.

C. How do I get copies of this proposed rule and other documents?

1. Docket
    EPA has established an official public docket for this action under 
Docket ID No. EPA-HQ-OAR-2011-0393. You can get a paper copy of this 
Federal Register document, as well as the documents specifically 
referenced in this action, any public comments received, and other 
information related to this action at the official public docket. See 
the ADDRESSES section for its location.
2. Electronic Access
    You may access this Federal Register document electronically 
through EPA's Transportation Conformity Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm. You may also access this 
document electronically under the Federal Register listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the official public docket is available 
through http://www.regulations.gov. You may use http://www.regulations.gov to submit or view public comments, access the index 
listing of the contents of the official public docket, and to access 
those documents in the public docket that are available electronically. 
Once in the system, select ``search,'' then key in the appropriate 
docket identification number.
    Certain types of information will not be placed in the electronic 
public docket. Information claimed as CBI and other information for 
which disclosure is restricted by statute is not available for public 
viewing in the electronic public docket. EPA's policy is that 
copyrighted material will not be placed in the electronic public docket 
but will be available only in printed, paper form in the official 
public docket.
    To the extent feasible, publicly available docket materials will be 
made available in the electronic public docket. When a document is 
selected from the index list in EPA Dockets, the system will identify 
whether the document is available for viewing in the electronic public 
docket. Although not all docket materials may be available

[[Page 63577]]

electronically, you may still access any of the publicly available 
docket materials through the docket facility identified in the 
ADDRESSES section. EPA intends to provide electronic access in the 
future to all of the publicly available docket materials through the 
electronic public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to the electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in the electronic public docket. Where practical, 
physical objects will be photographed, and the photograph will be 
placed in the electronic public docket along with a brief description 
written by the docket staff.
    For additional information about the electronic public docket, 
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

II. Background

A. What is transportation conformity?

    Transportation conformity is required under Clean Air Act (CAA) 
section 176(c) (42 U.S.C. 7506(c)) to ensure that transportation plans, 
transportation improvement programs (TIPs), and federally supported 
highway and transit projects are consistent with the purpose of the 
SIP. Conformity to the purpose of the SIP means that transportation 
activities will not cause or contribute to new air quality violations, 
worsen existing violations, or delay timely attainment of the relevant 
national ambient air quality standard (NAAQS) or required interim 
milestones.
    Transportation conformity (hereafter, ``conformity'') applies to 
areas that are designated nonattainment, and those areas redesignated 
to attainment after 1990 (``maintenance areas'') for transportation-
related criteria pollutants: Ozone, particulate matter 
(PM2.5 and PM10) \1\, carbon monoxide (CO), and 
nitrogen dioxide (NO2). EPA's conformity rule (40 CFR Parts 
51 and 93) establishes the criteria and procedures for determining 
whether transportation activities conform to the SIP. EPA first 
promulgated the conformity rule on November 24, 1993 (58 FR 62188) and 
subsequently published several other amendments. The Department of 
Transportation (DOT) is EPA's federal partner in implementing the 
conformity regulation. EPA has coordinated with DOT, and they concur 
with this proposal.
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    \1\ 40 CFR 93.102(b)(1) defines PM2.5 and 
PM10 as particles with an aerodynamic diameter less than 
or equal to a nominal 2.5 and 10 micrometers, respectively.
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B. What is MOVES2010a, and how has it been implemented to date?

    The MOtor Vehicle Emission Simulator model (MOVES) is EPA's state-
of-the-art model for estimating emissions from highway vehicles, based 
on analyses of millions of emission test results and considerable 
advances in the Agency's understanding of vehicle emissions. MOVES is 
currently EPA's official emissions model for state and local agencies 
to estimate volatile organic compounds (VOCs), nitrogen oxides 
(NOX), PM, CO, and other precursors from cars, trucks, 
buses, and motorcycles for SIP purposes and conformity determinations 
outside of California. MOVES' database-centered design allows EPA to 
update emissions data more frequently and allows users much greater 
flexibility in organizing input and output data.
    MOVES2010a is the latest official version of MOVES that EPA has 
approved for SIP and conformity purposes. EPA originally announced the 
release of MOVES2010 in the Federal Register on March 2, 2010 (75 FR 
9411) and subsequently released MOVES2010a on September 8, 2010. 
MOVES2010a includes minor revisions that enhance model performance and 
did not significantly affect criteria pollutant emissions results. 
Since these are minor revisions to MOVES2010, MOVES2010a is not 
considered a ``new model'' under section 93.111 of the conformity rule, 
as described further below.
    MOVES2010a is a significant improvement over the previous emissions 
model, MOBILE6.2,\2\ in terms of quality of results and overall 
functionality. It incorporates the latest emissions data, more 
sophisticated calculation algorithms, increased user flexibility, new 
software design, and significant new capabilities. While these changes 
improve the quality of on-road mobile source inventories, the overall 
degree of change in the model's function also adds to the start-up time 
required for the transition from MOBILE6.2 to MOVES2010a.
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    \2\ EPA announced the release of MOBILE6.2 in 2004 (69 FR 
28830).
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    EPA developed MOVES as a completely new model. Whereas MOBILE6.2 
was written in FORTRAN and used simple text files for data input and 
output, MOVES2010a is written in JAVA and uses a relational database 
structure in MYSQL to handle input and output as data tables. These 
changes make MOVES more flexible, and the analysis of new data 
incorporated within MOVES will enhance state and local agency 
understanding of how on-road mobile sources contribute to emissions 
inventories and the relative effectiveness of various control 
strategies. However, this new model framework has created a significant 
learning curve for state and local agency staff that are required to 
use MOVES.\3\
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    \3\ Some states also purchased computers with additional 
capacity and features for running MOVES.
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    In addition to the challenges of learning new software, state and 
local agencies also have to make substantial changes in the processes 
they have developed to create model input and apply model output. While 
there were incremental changes between each previous version of the 
MOBILE model, the basic input and output structure of that model was 
essentially unchanged since the early 1980s. Over time, state and local 
agencies developed their own methods for incorporating local inputs in 
MOBILE format and for post-processing MOBILE results for inventory 
development and air quality modeling. To help state and local agencies 
with this part of the current transition, EPA created a number of tools 
that take input data formatted for MOBILE6.2 and convert that data for 
use in MOVES2010a.
    EPA anticipated many of these challenges when it released MOVES. In 
order to assist in this model transition, EPA and DOT have already 
provided hands-on MOVES training in many states.\4\ Additional MOVES 
training for regional inventories has been requested, and will continue 
to be offered for the foreseeable future. EPA continues to provide 
other technical assistance to state and local agencies via on-going 
conference calls with user groups, e-mail and phone support, a 
frequently asked questions web page, and web-based presentations. All 
of these efforts are helping state and local agencies make the 
transition to MOVES2010a, and many agencies are making significant 
progress in applying the model for official purposes. However, other 
state and local agencies are still developing the technical capacity to 
use MOVES2010a, and need more time to transition to the model and then 
evaluate whether SIPs and their motor vehicle emissions budgets, or 
transportation plans and TIPs, should be

[[Page 63578]]

revised for future conformity determinations.
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    \4\ To date, EPA and DOT staff have provided a 2-day hands-on 
MOVES course for regional emissions inventories (including regional 
conformity analyses) at over 30 locations around the country.
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C. Why is EPA conducting this rulemaking?

    If finalized, today's action would provide additional time that may 
be critical for nonattainment and maintenance areas to learn and apply 
MOVES2010a for regional conformity analyses.\5\ EPA has been contacted 
by several state and local transportation and air quality agencies and 
associations that are concerned that there has not been sufficient 
transition time for using MOVES2010a in regional conformity analyses. 
These concerns revolve around the time needed to build technical 
capacity for using MOVES2010a as well as completing necessary SIP and/
or transportation plan/TIP changes to assure conformity in the future. 
Further details on today's action are provided below.
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    \5\ MPOs conduct regional conformity analyses to demonstrate 
that transportation plans and TIPs are consistent with the air 
quality purposes of the SIP. Regional conformity analyses are also 
conducted in ``isolated rural nonattainment and maintenance areas'' 
(defined by 40 CFR 93.101).
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    Today's proposal would not affect EPA's previous approval of 
MOVES2010a for official SIP submissions developed outside of 
California.\6\ Today's rulemaking would also not affect the existing 
grace period before MOVES2010a is required for PM2.5, 
PM10, and CO hot-spot analyses for project-level conformity 
determinations (75 FR 79370). EPA coordinated closely with DOT in 
developing today's action, and DOT concurs on this proposed rule.
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    \6\ MOVES is not approved for use in California. EPA approved 
and announced the latest version of California's EMFAC model 
(EMFAC2007) for SIP development and regional conformity analyses in 
that state on January 18, 2008 (73 FR 3464).
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III. Extension of MOVES2010a Regional Conformity Grace Period

A. Background

    CAA section 176(c)(1) states that ``* * * [t]he determination of 
conformity shall be based on the most recent estimates of emissions, 
and such estimates shall be determined from the most recent population, 
employment, travel, and congestion estimates * * *.'' To meet this 
requirement, section 93.111 of the conformity rule requires that 
conformity determinations be based on the latest motor vehicle 
emissions model approved by EPA. When EPA approves a new emissions 
model, EPA consults with DOT to establish a grace period before the 
model is required for conformity analyses (40 CFR 93.111(b)). EPA must 
consider many factors when establishing a grace period for conformity 
determinations (40 CFR 93.111(b)(2)). The length of the grace period 
will depend on the degree of change in the model and the scope of re-
planning likely to be necessary for MPOs in order to assure conformity. 
The conformity rule provides for a grace period for new emissions 
models of between three and 24 months (40 CFR 93.111(b)(1)).
    In the preamble to the original 1993 conformity rule, EPA 
articulated its intentions for establishing the length of conformity 
grace period for a new emissions model (58 FR 62211):

    ``EPA and DOT will consider extending the grace period if the 
effects of the new emissions model are so significant that previous 
SIP demonstrations of what emission levels are consistent with 
attainment would be substantially affected. In such cases, states 
should have an opportunity to revise their SIPs before MPOs must use 
the model's new emissions factors. EPA encourages all agencies to 
inform EPA of the impacts of new emissions models in their area, and 
EPA may pause to seek such input before determining the length of 
the grace period.''

Section 93.111 conformity requirements have not changed since 1993, and 
have been implemented successfully for many previous model transitions.
    On March 2, 2010, EPA announced the official release of MOVES2010 
and established a two-year grace period before this model was required 
for new regional conformity analyses (75 FR 9411). Although the 
original grace period was established for MOVES2010, EPA clarified in 
September 2010 that the same grace period for regional conformity 
analyses also applies to MOVES2010a.\7\ EPA based its decision to 
establish a two-year conformity grace period on the factors under 
section 93.111(b)(2), and advised areas to use the interagency 
consultation process to examine the impact of using MOVES in their 
future regional conformity analyses.
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    \7\ See ``EPA Releases MOVES2010a Mobile Source Emissions Model 
Update: Questions and Answers'' (EPA-420-F-10-050, August 2010) at: 
http://www.epa.gov/otaq/models/moves/MOVES2010a/420f10050.pdf.
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    Without further EPA action, MOVES2010a would be required for 
regional conformity analyses that begin after March 2, 2012. As 
discussed further in today's action, the special circumstances of the 
transition from MOBILE to MOVES2010a require a reevaluation of the 
length of this conformity grace period.

B. Description of Proposed Rule

    In today's action, EPA is proposing to provide an additional year 
before MOVES2010a is required for regional conformity analyses. If 
finalized, MOVES2010a would be required for new regional conformity 
analyses that begin after March 2, 2013. State and local agencies 
outside California would use MOVES2010a for regional conformity 
analyses earlier than March 2, 2013, if desired, and would be required 
to do so under limited circumstances such as after MOVES2010a SIP motor 
vehicle emissions budgets have been found adequate or approved for 
conformity purposes.
    Due to the unique circumstances presented by the transition from 
MOBILE6.2 to MOVES2010a, EPA is proposing to add a new paragraph (b)(3) 
to section 93.111 of the conformity rule. This provision would only 
apply to MOVES2010a and any future minor revisions to this model that 
EPA releases before March 2, 2013. Such minor revisions would not start 
a new grace period for regional conformity analyses and could include 
performance enhancements that reduce MOVES run time or model 
improvements to reduce errors in operating the model. Any major model 
updates, such as an update that significantly changes MOVES results for 
criteria pollutant emissions, would be evaluated separately as a ``new 
model'' under conformity rule section 93.111, pursuant to previously 
established requirements.
    Before the end of the extended conformity grace period (March 2, 
2013), areas would use the interagency consultation process to examine 
how MOVES2010a would impact their future MPO transportation plan/TIP 
conformity determinations. Isolated rural areas would also consider the 
impact of using MOVES2010a on future regional conformity analyses. If 
finalized, agencies should carefully consider whether the SIP and its 
motor vehicle emissions budgets should be revised with MOVES2010a or if 
transportation plans and TIPs should be revised before the end of the 
conformity grace period, since doing so may be necessary to ensure 
conformity in the future.
    The proposal would allow regional conformity analyses that are 
started during the grace period to be based on either MOBILE6.2 or 
MOVES2010a. If the grace period ended on March 2, 2013, MOVES2010a 
would become the only approved motor vehicle emissions model for 
regional conformity analyses outside California at that time. This 
would mean that all new regional conformity analyses started after the 
end of the grace period must be based on MOVES2010a, even if the SIP is 
based

[[Page 63579]]

on MOBILE6.2 or earlier versions of MOBILE.
    For complete explanations of how MOVES2010a is to be implemented 
for transportation conformity, including details about using MOVES2010a 
during the grace period, refer to EPA's existing MOVES policy 
guidance.\8\
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    \8\ ``Policy Guidance on the Use of MOVES2010 for State 
Implementation Plan Development, Transportation Conformity, and 
Other Purposes'' (EPA-420-B-09-046, December 2009) can be found on 
the EPA's transportation conformity Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm.
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C. Rationale

    MOVES2010a is EPA's best tool for estimating criteria pollutant 
emissions, and it is a significant improvement over previous MOBILE 
models. State and local agencies have made significant progress to date 
in using MOVES2010a, and EPA supports these efforts and encourages that 
they continue. However, as discussed above, challenges related to 
start-up and model application have been much greater in the transition 
to MOVES2010a, compared to past transitions between MOBILE model 
versions. As a result, EPA has determined that a one-year extension of 
the MOVES2010a grace period is necessary for state and local agencies 
to complete the current transition. Today's action would ensure that 
state and local governments have the necessary time to implement the 
conformity rule as originally intended.
    Since 1993, the fundamental purpose of section 93.111(b) of the 
conformity rule has been to provide a sufficient amount of time for 
MPOs and other state and local agencies to adapt to using new emissions 
tools. As discussed above, the transition to a new emissions model for 
conformity involves more than learning to use the new model and 
preparing input data and model output. After model start-up is 
complete, state and local agencies also need to consider how the model 
affects regional conformity analysis results and whether SIP and/or 
transportation plan/TIP changes are necessary to assure future 
conformity determinations. EPA believes that the proposed one-time 
extension of the current MOVES2010a regional grace period is critical 
to assure future conformity determinations based on MOVES2010a.
    EPA has the discretion to establish an extended grace period for 
MOVES2010a, and today's action is consistent with CAA section 176(c)(1) 
requirements. EPA believes that the proposal to provide one additional 
year is appropriate due to this unique transition from MOBILE6.2 to 
MOVES2010a. This decision is consistent with the existing conformity 
criteria in section 93.111(b)(2) of the conformity rule that requires 
the length of the grace period to be based on ``the degree of change in 
the model and the scope of re-planning likely to be necessary by MPOs 
in order to assure conformity.''
    Today's proposal would not delay the use of MOVES2010a in SIP 
development or slow down past progress toward using the new model for 
regional conformity analyses. As noted above, many state and local 
agencies are already learning and applying MOVES2010a. Some are 
revising existing SIP budgets using the new model, while others may be 
incorporating MOVES2010a into new maintenance plans or clean data 
determinations. Under EPA's existing MOVES policy guidance, new or 
revised SIP budgets must still be based on MOVES2010a. For example, 
MOVES2010a continues to be required for attainment SIPs for the 2006 
24-hour PM2.5 NAAQS. Under the proposal, MOVES2010a would 
also be required for any regional conformity analyses prior to March 2, 
2013 if SIP budgets based on MOVES2010 or MOVES2010a are approved or 
found adequate sooner.\9\
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    \9\ See Questions 5, 6, and 11 of ``Policy Guidance on the Use 
of MOVES2010 for State Implementation Plan Development, 
Transportation Conformity, and Other Purposes'' (EPA-420-B-09-046, 
December 2009).
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    In addition, today's action would not change the current MOVES2010a 
grace period for new PM2.5, PM10, and CO hot-spot 
analyses for project-level conformity determinations. EPA noted 
previously that a two-year conformity grace period was necessary to 
apply MOVES2010a for hot-spot analyses (75 FR 79370). However, the 
transition to MOVES2010a for project-level hot-spot analyses does not 
involve the complexity associated with the regional level, where SIP 
budgets and/or transportation plans/TIPs may need to be revised before 
regional conformity analyses based on MOVES2010a can be completed.
    Finally, in issuing this proposal, EPA is not proposing to proceed 
pursuant to or reopen as a general matter the process and length of 
conformity grace periods for future emissions model approvals, which 
were previously established in 1993 (58 FR 62211). The unique set of 
circumstances involved in the current transition warrants the proposed 
additional state and local flexibility before MOVES2010a is required 
for regional conformity analyses.

IV. Conformity SIPs

    The proposed MOVES2010a regional grace period extension would apply 
on the effective date of a final rule in all nonattainment and 
maintenance areas. Section 51.390(a) of the conformity rule states that 
the federal rule applies for the portion of the requirements that are 
not included in a state's approved conformity SIP.\10\ Section 
51.390(b) further allows state conformity provisions to contain 
criteria and procedures that are more stringent than the federal 
requirements. However, in the case of states with conformity SIPs that 
include the grace period provision in 40 CFR 93.111(b)(1), EPA 
concludes that such states did not intend to require a shorter grace 
period than EPA, in consultation with DOT, believes is needed. 
Therefore, since the MOVES2010a grace period extension would be a new 
provision being added to the conformity rule, it is not included in any 
current state conformity SIP and therefore would apply immediately, if 
finalized, in all areas pursuant to section 51.390(a).
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    \10\ A conformity SIP is required by the CAA and contains a 
state's conformity requirements, including the state's specific 
interagency consultation procedures.
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    In addition, section 51.390(c) of the conformity rule requires 
states to submit a new or revised conformity SIP to EPA within 12 
months of the Federal Register publication date of final conformity 
rules in certain situations. States with approved conformity SIPs that 
are prepared in accordance with current CAA requirements would not be 
required to submit new conformity SIP revisions under a final rule, 
since section 93.111 of the conformity rule is not contained in these 
SIPs. A conformity SIP prepared in accordance with current CAA 
requirements contains only the state's criteria and procedures for 
interagency consultation (40 CFR 93.105) and two additional provisions 
related to written commitments for certain control and mitigation 
measures (40 CFR 93.122(a)(4)(ii) and 93.125(c)). However, states with 
approved conformity SIPs that include section 93.111 from a previous 
rulemaking would be required to submit a SIP revision within 12 months 
of the publication date of any final rule, although EPA strongly 
encourages these states to submit a SIP revision with only the three 
required provisions.\11\ A state without an approved conformity SIP 
would not be required to submit a new conformity SIP

[[Page 63580]]

within one year of a final rule, but previous conformity SIP deadlines 
continue to apply.
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    \11\ The conformity SIP may contain provisions more stringent 
than the federal requirements, and in these cases, states would 
specify this intention in its original conformity SIP submission.
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    For additional information on conformity SIPs, please refer to the 
January 2009 guidance entitled, ``Guidance for Developing 
Transportation Conformity State Implementation Plans'' available on 
EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011) and any changes made in response to OMB recommendations have been 
documented in the docket for this action.

B. Paperwork Reduction Act

    This action would not impose any new information collection burden. 
The information collection requirements of EPA's existing 
transportation conformity regulations and the proposed revisions in 
today's action are already covered by EPA information collection 
request (ICR) entitled, ``Transportation Conformity Determinations for 
Federally Funded and Approved Transportation Plans, Programs and 
Projects.'' OMB has previously approved the information collection 
requirements contained in the existing regulations at 40 CFR Part 93 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. and has assigned OMB control number 2060-0561. The OMB control 
numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to prepare a regulatory flexibility analysis of rules subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute 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 organizations and small government jurisdictions.
    For purposes of assessing the impacts of today's proposal on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise that is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action would not have a significant 
economic impact on a substantial number of small entities. This 
proposal would directly affect federal agencies and MPOs that, by 
definition, are designated under federal transportation laws only for 
metropolitan areas with a population of at least 50,000. These 
organizations do not constitute small entities within the meaning of 
the RFA. Therefore, this proposal would not impose any requirements on 
small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This proposal does not contain a Federal mandate that may result in 
expenditures of $100 million or more for state, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
This rule would merely implement already established law that imposes 
conformity requirements and would not itself impose requirements that 
may result in expenditures of $100 million or more in any year. Thus, 
today's proposal is not subject to the requirements of sections 202 and 
205 of the UMRA.
    This proposal is also not subject to the requirements of section 
203 of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This proposal would 
not significantly or uniquely impact small governments because it 
directly affects federal agencies and MPOs that, by definition, are 
designated under federal transportation laws only for metropolitan 
areas with a population of at least 50,000.

E. Executive Order 13132: Federalism

    This proposal does not have federalism implications. It would not 
have substantial direct effects on states, on the relationship between 
the national government and states, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132. The CAA requires conformity to apply in 
certain nonattainment and maintenance areas as a matter of law, and 
today's action would merely revise one provision for transportation 
planning entities in subject areas to follow in meeting their existing 
statutory obligations. Thus, Executive Order 13132 does not apply to 
this proposal.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). The CAA requires 
transportation conformity to apply in any area that is designated 
nonattainment or maintenance by EPA. Because today's proposal would not 
significantly or uniquely affect the communities of Indian tribal 
governments, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This proposal is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it is not economically significant as defined 
in Executive Order 12866, and because the Agency does not believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This proposal is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 18355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. It would not create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency regarding energy. This action is not subject to 
Executive Order 13211 because it does not have any adverse energy 
effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., material specifications, test methods,

[[Page 63581]]

sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
proposal does not involve technical standards. Therefore, EPA is not 
considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this action would not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations. The proposed rule 
involves a minor revision that provides administrative relief but does 
not change the conformity rule's underlying requirements for regional 
conformity analyses.

List of Subjects in 40 CFR Part 93

    Administrative practice and procedure, Air pollution control, 
Carbon monoxide, Clean Air Act, Environmental protection, Highways and 
roads, Intergovernmental relations, Mass transportation, Nitrogen 
dioxide, Ozone, Particulate matter, Transportation, Volatile organic 
compounds.

    Dated: October 4, 2011.
Lisa P. Jackson,
Administrator.
[FR Doc. 2011-26346 Filed 10-12-11; 8:45 am]
BILLING CODE 6560-50-P