[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Rules and Regulations]
[Pages 63554-63561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26347]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[EPA-HQ-OAR-2011-0393; FRL-9478-1]
RIN 2060-AR03


Transportation Conformity Rule: MOVES Regional Grace Period 
Extension

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action 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 final rule provides an additional year to the 
previously established two-year conformity grace period. As a result, 
EPA is announcing in this Federal Register that MOVES is not required 
for regional conformity analyses until March 2, 2013. This action does 
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: This rule is effective on December 12, 2011 without further 
notice, unless EPA receives adverse comment by November 14, 2011. If 
EPA receives adverse comment, we will publish a timely withdrawal in 
the Federal Register informing the public that the rule will not take 
effect.

ADDRESSES: Submit any comments to Docket ID No. EPA-OAR-2011-0393, by 
one of the following methods:
     www.regulations.gov: Follow the on-line 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 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 
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

[[Page 63555]]

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 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 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 is listed in 
the following outline:

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

    If this rule becomes effective, the conformity grace period in 
applicable areas will end on March 2, 2013, after which MOVES2010a is 
required to be used for new regional conformity analyses.

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. Why is EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment. This rule makes a one-time, minor revision to the 
transportation conformity rule to provide administrative relief 
requested by state and local agencies for certain nonattainment and 
maintenance areas. As described more fully below, there are significant 
technical differences between MOVES2010a and the previous emissions 
model, and affected state and local agencies require additional time 
beyond the two-year grace period provided by 40 CFR 93.111(b) to make 
the conformity transition to MOVES2010a successfully. Today's action is 
based on the circumstances unique to this transition, and does not 
change the grace period provisions applicable to future models. 
However, in the ``Proposed Rules'' section of today's Federal Register, 
we are publishing a separate document that will serve as the proposed 
rule to extend the MOVES2010a regional conformity grace period if 
adverse comments are received on this direct final rule. We will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. For further 
information about commenting on this rule, see the ADDRESSES section of 
this document.
    If EPA receives adverse comment, we would publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

B. Does this action apply to me?

    Entities potentially regulated by the transportation conformity 
rule are those that adopt, approve, or fund transportation plans, 
transportation improvement programs (TIPs), 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:

------------------------------------------------------------------------
             Category                  Examples of regulated entities
------------------------------------------------------------------------
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)).
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
direct final rule. 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.

[[Page 63556]]

C. What should I consider as I prepare any comments for EPA?

1. Submitting CBI
    Do not submit this information to EPA through 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.

D. How do I get copies of this direct final 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 www.regulations.gov. You may use 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 
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 direct final rule.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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

[[Page 63557]]

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 
do 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.
---------------------------------------------------------------------------

    \2\ EPA announced the release of MOBILE6.2 in 2004 (69 FR 
28830).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \3\ Some states also purchased computers with additional 
capacity and features for running MOVES.
---------------------------------------------------------------------------

    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 revised for future conformity 
determinations.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

C. Why is EPA conducting this rulemaking?

    Today's action provides additional time that is 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    Today's action does not affect EPA's previous approval of 
MOVES2010a for official SIP submissions developed outside of 
California.\6\ Today's rulemaking also does 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 direct final rule.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.

[[Page 63558]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 Direct Final Rule

    In today's action, EPA is providing an additional year before 
MOVES2010a is required for regional conformity analyses. As a result, 
EPA is also announcing in today's Federal Register that MOVES2010a will 
be required for new regional conformity analyses that begin after March 
2, 2013. State and local agencies outside California can 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, today's action adds a new paragraph (b)(3) to 
section 93.111 of the conformity rule. Today's final rule only applies 
to MOVES2010a and any future minor revisions to this model that EPA 
releases before March 2, 2013. Such minor revisions will 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 would be evaluated separately as a ``new model'' under 
conformity rule section 93.111, pursuant to previously established 
requirements.
    Between now and the end of the extended conformity grace period 
(March 2, 2013), areas should use the interagency consultation process 
to examine how MOVES2010a will impact their future MPO transportation 
plan/TIP conformity determinations. Isolated rural areas should also 
consider the impact of using MOVES2010a on future regional conformity 
analyses. 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.
    In general, regional conformity analyses that are started during 
the grace period can use either MOBILE6.2 or MOVES2010a. When the grace 
period ends on March 2, 2013, MOVES2010a will become the only approved 
motor vehicle emissions model for regional conformity analyses outside 
California. This means 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 on MOBILE6.2 or earlier versions of MOBILE.
    If you have questions about which model should be used in your 
conformity determination, you can consult with your EPA Regional 
Office. 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 ensures 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 this 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 providing 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 action does 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

[[Page 63559]]

PM2.5 NAAQS. MOVES2010a is also 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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    In addition, today's action does 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 rule, EPA is not proceeding pursuant to or 
reopening 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 additional 
state and local flexibility before MOVES2010a is required for regional 
conformity analyses.

IV. Conformity SIPs

    The MOVES2010a regional grace period extension applies on the 
effective date of today's direct 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 is a new 
provision being added to the conformity rule, it is not included in any 
current state conformity SIP and therefore applies immediately in all 
areas pursuant to section 51.390(a).
---------------------------------------------------------------------------

    \10\ A conformity SIP is required by the CAA and contains a 
state's conformity requirements, including the state's specific 
interagency consultation procedures.
---------------------------------------------------------------------------

    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 any final conformity 
amendments for certain situations. States with approved conformity SIPs 
that are prepared in accordance with current CAA requirements are not 
required to submit new conformity SIP revisions, 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 are required to 
submit a SIP revision by October 12, 2012, 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 is 
not required to submit a new conformity SIP within one year of today's 
action, but previous conformity SIP deadlines continue to apply.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 (EO) 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 EO 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.
    Under Executive Order 12866, this action is a ``significant 
regulatory action.'' Accordingly, EPA submitted this action to the 
Office of Management and Budget (OMB) for review under EO 12866 and 
13563 and any changes made in response to OMB recommendations have been 
documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The information collection requirements of EPA's existing 
transportation conformity regulations and the 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 rule 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 rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
regulation directly affects Federal agencies and MPOs that, by 
definition, are designated under Federal

[[Page 63560]]

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 rule will not impose any 
requirements on small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This rule 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 merely implements already established law that imposes 
conformity requirements and does not itself impose requirements that 
may result in expenditures of $100 million or more in any year. Thus, 
today's rule is not subject to the requirements of sections 202 and 205 
of the UMRA.
    This rule 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 rule will 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 rule does not have federalism implications. It will 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 merely revises one provision for transportation planning 
entities in subject areas to follow in meeting their existing statutory 
obligations. Thus, EO 13132 does not apply to this rule.

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 rule does not 
significantly or uniquely affect the communities of Indian tribal 
governments, EO 13175 does not apply to this action.

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

    This rule is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it is not economically significant as defined 
in EO 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 action 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 does 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 EO 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, 
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 
rule 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 rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations. The final rule involves a minor revision that 
provides administrative relief but does not change the conformity 
rule's underlying requirements for regional conformity analyses.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this 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 action is not a major rule as defined by 5 U.S.C. 
804(2). This rule will be effective November 14, 2011.

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.

    For the reasons discussed in the preamble, 40 CFR Part 93 is 
amended as follows:

PART 93--[AMENDED]

0
1. The authority citation for Part 93 continues to read as follows:

    Authority:  42 U.S.C. 7401-7671q.


0
2. Section 93.111 is amended by adding paragraph (b)(3) to read as 
follows:


Sec.  93.111  Criteria and procedures: Latest emissions model.

* * * * *
    (b) * * *

[[Page 63561]]

    (3) Notwithstanding paragraph (b)(1) of this section, the grace 
period for using the MOVES2010a emissions model (and minor model 
revisions) for regional emissions analyses will end on March 2, 2013.
* * * * *
[FR Doc. 2011-26347 Filed 10-12-11; 8:45 am]
BILLING CODE 6560-50-P