Transportation Conformity Rule: MOVES Regional Grace Period Extension, 11394-11401 [2012-4484]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 38 (Monday, February 27, 2012)]
[Rules and Regulations]
[Pages 11394-11401]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4484]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[EPA-HQ-OAR-2011-0393; FRL-9636-5]
RIN 2060-AR03


Transportation Conformity Rule: MOVES Regional Grace Period 
Extension

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to extend the grace period before 
the MOtor Vehicle Emission Simulator (MOVES) model 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 must be used for new regional conformity analyses 
that begin after March 2, 2013. This action does not affect EPA's 
previous approval of the use of MOVES in state air quality 
implementation plan (SIP) submissions or the existing grace period 
before MOVES is required for carbon monoxide and particulate matter 
hot-spot analyses for project-level conformity determinations (75 FR 
79370).

DATES: This rule is effective on February 27, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2011-0393. All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information may not be 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 
Transportation Planning Center, Transportation and Climate Division, 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105; telephone number: (734) 214-4842; fax number: (734) 214-4052; 
email address: patulski.meg@epa.gov; or Astrid Larsen, State Measures 
and Transportation Planning Center, Transportation and Climate 
Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann 
Arbor, MI 48105; telephone number: (734) 214-4812; fax number: (734) 
214-4052; email address: larsen.astrid@epa.gov.

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

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

Availability of MOVES and Support Materials

    Copies of the official version of the MOVES motor vehicle emissions 
model, along with user guides and supporting documentation, are 
available on EPA's MOVES Web site: www.epa.gov/otaq/models/moves/index.htm.
    Guidance on how to apply MOVES for SIPs and transportation 
conformity purposes can be found on the EPA's transportation conformity 
Web site at: 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, 
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:

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           Category                  Examples of regulated 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 
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 final rule to a particular entity, consult the 
persons listed in the preceding FOR FURTHER INFORMATION CONTACT 
section.

B. How do I get copies of this 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: www.epa.gov/otaq/stateresources/transconf/conf-regs.htm. You may also access this 
document electronically under the Federal Register listings at: 
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 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

[[Page 11395]]

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.
    For additional information about the electronic public docket, 
visit the EPA Docket Center homepage at: www.epa.gov/epahome/dockets.htm.

C. What is the effective date?

    The final rule amendments are effective on February 27, 2012. 
Section 553(d) of the Administrative Procedures Act, 5 U.S.C. Chapter 
5, generally provides that rules may not take effect earlier than 30 
days after they are published in the Federal Register. However, section 
5 U.S.C. 553(d)(1) allows an effective date less than 30 days after 
publication for a rule that ``grants or recognizes an exemption or 
relieves a restriction.'' Since this rule provides additional time 
before the requirement to use MOVES applies, it is effectively granting 
an exemption or relieving the restriction that would require state and 
local governments to use MOVES2010 and minor revisions for regional 
conformity analyses earlier than March 2, 2013.

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, 
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 amendments to the rule. The Department 
of Transportation (DOT) is EPA's federal partner in implementing the 
conformity regulation.
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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 MOVES, and how has it been implemented to date?

    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 EPA's latest motor vehicle 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. The database-centered 
design of MOVES allows EPA to update emissions data more frequently and 
allows users much greater flexibility in organizing input and output 
data than EPA's prior emissions model. MOVES improves the quality of 
results and overall functionality, as compared to the previous 
emissions model, MOBILE6.2.\2\
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    \2\ EPA announced the release of MOBILE6.2 in 2004 (69 FR 
28830).
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    EPA announced the release of MOVES2010 in the Federal Register on 
March 2, 2010 (75 FR 9411), and also announced a two-year grace period 
before MOVES2010 was required for regional conformity analyses. EPA 
subsequently released MOVES2010a on September 8, 2010, and MOVES2010a 
is considered a minor revision that enhances model performance and does 
not significantly affect the criteria pollutant emissions results from 
MOVES2010. Therefore, MOVES2010a is not considered a ``new model'' 
under section 93.111 of the conformity rule.\3\ As a result, the 
MOVES2010 grace period for regional conformity analyses has also 
applied to the use of MOVES2010a.\4\ EPA notes that references to 
``MOVES'' in this notice relate to the approved versions of MOVES2010 
and subsequent minor revisions (e.g., MOVES2010a). However, in some 
cases, EPA has specifically referred to MOVES2010 and MOVES2010a for 
clarification.
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    \3\ See Section III. for further background on the use of latest 
emissions models and grace periods for conformity purposes.
    \4\ See EPA's MOVES2010a Questions and Answers at: www.epa.gov/otaq/models/moves/MOVES2010a/420f10050.pdf.
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    MOVES 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 state and local agencies to transition from MOBILE6.2 to MOVES.

C. Why are we issuing this final rule?

    Today's action provides additional time for nonattainment and 
maintenance areas to learn and apply MOVES for regional conformity 
analyses.\5\ On October 13, 2011 (76 FR 63575), EPA proposed to extend 
the two-year grace period to provide an additional year for state and 
local agencies to transition to using MOVES for regional conformity 
analyses.\6\ As stated in the proposal, EPA was contacted by several 
state and local transportation and air quality agencies and 
associations that requested additional transition time for using MOVES 
in regional conformity analyses, due to the significant software, 
operational and technical differences between MOVES and MOBILE. These 
agencies were concerned about having sufficient time to build technical 
capacity for using MOVES as well as completing such analyses and making

[[Page 11396]]

any necessary SIP and/or transportation plan/TIP changes to assure 
conformity in the future.
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    \5\ MPOs in nonattainment and maintenance areas 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 
areas (defined by 40 CFR 93.101).
    \6\ A direct final rule was also published on October 13, 2011 
(76 FR 63554) in parallel with the proposal. However, EPA received 
an adverse comment within the 30-day public comment period, and 
subsequently withdrew the direct final rule on December 5, 2011 (76 
FR 75797).
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    During the comment period, EPA received one comment letter that was 
relevant to the October 2011 proposal.\7\ EPA is finalizing the 
regional conformity grace period extension as proposed, and is not 
making any changes after consideration of comments. This final rule is 
critical to helping state and local agencies during this unique 
transition. See Section III. for additional discussion.
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    \7\ A second comment was submitted that raised issues not 
germane to this rulemaking.
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    Finally, EPA notes that today's action does not affect our previous 
approvals for using MOVES for official SIP submissions developed 
outside of California.\8\ Today's rulemaking also does not affect the 
existing grace period before MOVES is required for PM2.5, 
PM10, and CO hot-spot analyses for project-level conformity 
determinations (75 FR 79370). For further information regarding EPA's 
previous model approvals and conformity policy guidance/implementation, 
see EPA's transportation conformity Web site at www.epa.gov/otaq/stateresources/transconf/policy.htm. EPA coordinated closely with DOT 
in developing today's action, and DOT concurs on this final rule.
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    \8\ 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 MOVES 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(a) 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 the following 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 
by 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 a 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.

The provisions in section 93.111, including the use of the latest 
emissions model and the establishment of a new model grace period, have 
not changed since 1993, and have been implemented successfully for many 
previous model transitions.

B. Description of Final Rule

    In today's action, EPA is providing an additional year to the 
maximum time period permitted under the pre-existing regulations before 
MOVES is required for regional conformity analyses. As a result, EPA is 
also announcing in today's Federal Register that MOVES will be required 
for new regional conformity analyses that begin after March 2, 2013. 
The previously established two-year conformity grace period would have 
ended on March 2, 2012 (75 FR 9411).
    Under today's action, state and local agencies outside California 
can use MOVES for regional conformity analyses that begin before or on 
March 2, 2013. However, MOVES will be required prior to the end of the 
extended grace period for any new regional conformity analyses once an 
area has MOVES-based SIP motor vehicle emissions budgets (``budgets'') 
that have been found adequate or approved for conformity purposes.
    Today's action adds a new paragraph (b)(3) to section 93.111 of the 
conformity rule, which applies to the transition from MOBILE to MOVES 
only. EPA notes that the regulatory text in today's final rule is 
clarified from what was proposed,\9\ since the grace period applies to 
MOVES2010 and minor revisions to MOVES2010. A minor revision, such as 
MOVES2010a, is a version that would not significantly affect the 
criteria pollutant emissions results from MOVES2010. Minor revisions 
will not start a new grace period for regional conformity analyses and 
could include performance enhancements that reduce MOVES run time or 
other model improvements. EPA would evaluate any future major model 
update as a ``new model'' under the conformity rule's previously 
established requirements in section 93.111(b)(1) and (2), including any 
new conformity grace period as warranted. EPA will note at the time of 
a future model release whether an approved model version is a minor 
revision to MOVES2010 or is to be considered a ``new model'' under the 
rule.
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    \9\ The proposed text did not explicitly refer to MOVES2010, but 
instead referred to ``the MOVES2010a emissions model (and minor 
model revisions)'').
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    Between now and the end of the extended conformity grace period 
(March 2, 2013), areas should use the interagency consultation process 
to examine how MOVES results will impact their future metropolitan 
transportation plan/TIP conformity determinations. Isolated rural areas 
should also consider the impact of MOVES on future regional conformity 
analyses. Agencies should carefully consider whether the SIP and its 
budgets should be revised with MOVES 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 MOVES. When the grace 
period ends on March 2, 2013, MOVES must be used for new regional 
conformity analyses outside California. This means that all new 
regional conformity analyses started after March 2, 2013 must be based 
on MOVES, even if the SIP is based on MOBILE6.2 or earlier versions of 
MOBILE.
    EPA encourages state and local agencies to use the latest version 
of the MOVES model available at the time that regional emissions 
modeling begins, since the model framework enhancements included in 
such versions will optimize model performance. 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 MOVES is to be implemented for transportation conformity, including 
details about using MOVES during the

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grace period, refer to EPA's latest MOVES policy guidance.\10\
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    \10\ See www.epa.gov/otaq/stateresources/transconf/policy.htm.
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C. Rationale and Response to Comments

    Today's final rule is consistent with CAA requirements and critical 
to supporting state and local agencies in this unique transition. EPA 
continues to believe its MOVES model is the best tool for estimating 
criteria pollutant emissions, and it is a significant improvement over 
previous MOBILE models. EPA recognizes that state and local agencies 
have made significant progress to date in using MOVES, and we will 
continue to support these efforts. However, as discussed in the October 
2011 proposal and further below, challenges related to the transition 
from MOBILE to MOVES have been much greater than past transitions 
between MOBILE model versions. Today's action ensures that state and 
local governments have the necessary time to implement the CAA 
conformity requirements 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 learn and employ new 
emissions models. As discussed in the October 2011 proposal and further 
below, 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 final rule's one-time extension of the regional 
grace period for MOVES2010 and subsequent minor revisions is consistent 
with section 93.111(b)(2) and the CAA.
    EPA received one comment letter that was relevant to the October 
2011 proposal. EPA has summarized this comment letter with our 
responses in the remainder of this section.
    The commenter believed the proposal was arbitrary and capricious 
and inconsistent with CAA section 176(c)(1) because it did not require 
areas to use the latest emissions factors when making conformity 
determinations. The commenter believed that Congress intended regional 
conformity analyses for transportation plans and TIPs to be based on 
EPA's latest motor vehicle emissions factors.\11\
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    \11\ Although the commenter referred to ``legislative history'' 
in making this comment, no documentation or citations to specific 
legislative history were submitted with the comment.
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    EPA has not made changes in response to these comments, which raise 
issues for conformity rule provisions that were finalized in 1993 (58 
FR 62211) and which EPA did not propose to revise in this action. 
Specifically, in 1993, EPA established the existing rule provisions 
that a conformity grace period of between 3 and 24 months could be 
established for new model releases (40 CFR 93.111(b)(1)), as well as 
the factors that EPA uses when determining the length of a grace period 
(40 CFR 93.111(b)(2)). As a result, EPA has used its existing 
discretion many times since 1993 to approve new emissions models and 
establish grace periods consistent with these requirements.
    In the proposal for today's final rule, EPA did not propose to 
reopen the question of whether the Agency has the discretion to 
establish a grace period before which the use of a new emissions model 
is required for conformity purposes, nor did the proposed rule address 
the factors to be considered in establishing an appropriate grace 
period. EPA's statutory authority to establish a grace period is not at 
issue in this rulemaking.\12\ Rather, the only issue addressed in the 
proposed rule was the appropriate length of the grace period for 
MOVES--specifically, whether allowing an additional year for the MOVES 
regional conformity grace period is reasonable. EPA believes that it 
is, based on the degree of model change and the scope of re-planning 
necessary as further described in this section.
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    \12\ EPA notes that on May 26, 1994 the commenter filed a 
Petition for Reconsideration of the November 1993 conformity rule 
(58 FR 62188), but did not raise issues related to section 93.111(b) 
in that petition.
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    The commenter believed that MOVES is based on the latest emissions 
factors, and MOBILE6.2 is not appropriate for estimating emissions. EPA 
agrees that the MOVES model is the best tool for estimating motor 
vehicle emissions and is based on the latest science. When EPA approves 
any new emissions model, the Agency is stating that it is an 
improvement over the existing model. Therefore, it will always be the 
case that new models that are approved are better than previous models. 
However, the issue raised in EPA's proposed rule was not the validity 
of using MOVES instead of MOBILE6.2, but whether state and local 
agencies have sufficient time to transition to using MOVES for future 
regional conformity analyses. The one-year extension provided by the 
final rule is reasonable and consistent with the existing rule's 
requirements for establishing grace periods for new emissions models.
    The commenter also believed that the October 2011 proposal was 
inconsistent with the law because it exceeded the maximum two-year 
grace period length in section 93.111(b)(1) of the conformity rule. 
While it is true that the one-year grace period extension is longer 
than the two-year grace period in the existing conformity rule for 
other emissions model transitions, this fact does not make the final 
rule's extension inconsistent with the CAA. EPA believes that today's 
final rule is reasonable and meets statutory requirements.
    The commenter argued that ``[t]he need for agency staff to learn 
how to apply MOVES provides no justification for the continued use of 
[MOBILE6.2] * * *'' EPA disagrees that it is arbitrary for EPA to 
consider this need. In fact, the pre-existing regulations require EPA 
to consider start-up needs whenever a new grace period is established, 
and EPA did not propose to revise these factors.
    As stated above and in the October 2011 proposal, section 
93.111(b)(2) of the conformity rule requires the length of the grace 
period to be based on two factors. The first factor in this provision 
is ``the degree of change in the model.'' EPA described extensively in 
its proposal how this particular transition from MOBILE to MOVES 
creates a unique learning curve for state and local agencies. The 
following is a summary of the major model changes that were noted in 
the proposal for this transition:
     New model framework and software: Whereas MOBILE6.2 was 
written in FORTRAN and used simple text files for data input and 
output, MOVES is written in JAVA and uses a relational database 
structure in MYSQL to handle input and output as data tables.\13\
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    \13\ Some states have found it necessary to purchase new 
computers with additional capacity and features for running MOVES.
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     New model input and output structure: MOVES significantly 
changes the basic input and output structure for emissions modeling, as 
compared to previous emissions models that have been essentially 
unchanged since the early 1980s. Before MOVES can be used by state and 
local agencies, MOBILE-based input data will need to be converted for 
use in MOVES. MPOs may

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also need to revise the way model output is post-processed.

EPA has created tools and provided technical assistance for the MOBILE 
to MOVES transition, and EPA and DOT have provided hands-on MOVES 
training in many states.\14\ EPA will continue to work with state and 
local agencies throughout the regional conformity grace period 
extension. See the October 2011 proposal for further details on the 
differences between MOBILE and MOVES (76 FR 63577-78).
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    \14\ 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 25 locations around the country. In 
addition, since January 2010, EPA has sent more than 2,500 responses 
to requests for help with MOVES that have come into EPA's email box 
for modeling questions (mobile@epa.gov).
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    The other factor that EPA must consider under section 93.111(b)(2) 
is the ``scope of re-planning likely to be necessary by MPOs in order 
to assure conformity.'' As in any new model transition, state and local 
agencies need to consider how results from using a new emissions model 
will affect their ability to conform when the new model is required for 
regional conformity analyses. When emissions are higher with a new 
model compared to the previous model, the ``scope of re-planning'' can 
entail revising a SIP strategy and budget that is based on the previous 
model and/or revising a transportation plan/TIP.\15\ Updating a SIP 
budget with MOVES, for example, involves preparing new data input and 
output for MOVES, re-running the on-road mobile source inventory with 
MOVES, ensuring this new inventory continues to support the SIP's 
demonstration (and making any adjustments to other inventories as 
needed), coordinating the SIP submission with other agencies, and 
meeting other state and federal requirements for SIP submissions (e.g., 
providing public notice and comment). None of these steps can be taken 
until state and local agencies learn how to run MOVES and obtain 
results, as results inform whether a revision is even needed. Unlike 
past model transitions, the start-up involved in building technical 
capacity for MOVES appears to have postponed state and local ``re-
planning'' decisions on whether any updates to SIP budgets or 
transportation plans/TIPs are needed. The final rule's additional year 
directly provides the necessary time for considering the implications 
as EPA originally intended.
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    \15\ See the November 1993 conformity rule (58 FR 62211), the 
March 2, 2010 FR notice for EPA's approval of MOVES2010 for regional 
conformity analyses (75 FR 9411-9414), and EPA's latest MOVES policy 
guidance (www.epa.gov/otaq/stateresources/transconf/policy.htm).
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    EPA's decision to finalize this rulemaking is also supported by 
stakeholder feedback that was received in implementing the MOVES 
transition. Starting in September 2010, EPA was contacted by several 
state and local transportation and air agencies that were concerned 
that there was insufficient transition time before MOVES would be 
required in regional conformity analyses. At the time, the conformity 
grace period for MOVES would have expired on March 2, 2012. EPA 
Regional Offices confirmed the status of the transition in their 
nonattainment and maintenance areas. These general communications 
occurred until March of 2011 and informed EPA's decision to proceed 
with this rulemaking.\16\ Although EPA had provided MOVES training for 
regional conformity analyses in most states, as of March of 2011 (one 
year after the original conformity grace period had begun), due to the 
major model changes mentioned earlier, EPA was concerned that most 
nonattainment and maintenance areas needed more time to build technical 
capacity for using MOVES as well as sufficient transition time for 
using MOVES in regional conformity analyses. We believe that state and 
local agencies are making a good faith effort to transition to MOVES in 
a timely manner, but the start-up issues have taken longer than 
originally anticipated.
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    \16\ See EPA's September 14, 2011 memo entitled, ``Summary of 
Stakeholder Contact Prior to MOVES Grace Period Extension 
Rulemaking.'' EPA has added other documentation to the docket 
regarding state and local progress during this MOVES transition.
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    The commenter also believed the proposal would allow areas to delay 
additional reductions, in areas where emissions with MOVES would be 
higher than with MOBILE. The commenter stated that EPA did not candidly 
disclose which areas could use the proposed grace period extension and 
how the rule could adversely affect public health.
    The commenter mischaracterizes the regulatory purpose of the 
emissions model grace period provisions as well as EPA's reasons for 
establishing a longer grace period for this model transition. As 
described above, since 1993, EPA has clearly stated that the conformity 
grace period for a new emissions model is to be based on the two 
factors provided in 40 CFR 93.111(b)(2), and which are not at issue in 
this rulemaking.
    As described above, it has taken longer than anticipated for MPOs 
to complete emissions analyses with MOVES, and to ascertain the 
implications of using MOVES on future conformity determinations. In 
other words, it has taken longer for MPOs to know how MOVES would 
affect future regional conformity analyses, because they are building 
technical capacity and addressing other start-up issues. Potential 
changes in emissions estimates are unrelated to the issue in this 
rulemaking, i.e., the appropriate length of the grace period for use of 
MOVES in regional conformity analyses.
    In addition, the grace period extension applies equally to all 
nonattainment and maintenance areas. EPA did not need to ``disclose'' 
which areas could use the additional year because every nonattainment 
and maintenance area can use the additional year. Every area has the 
discretion of using either MOBILE6.2 or MOVES for transportation 
conformity during this additional year, unless the area's SIP is 
updated with MOVES first. In those cases, as described above, MOVES 
must be used in transportation plan and TIP conformity determinations 
made after those MOVES-based budgets are found adequate or approved. 
This was clearly stated in the October 2011 proposal (76 FR 63578).
    EPA does not agree that the rule is arbitrary and capricious 
because it did not disclose how the rule could adversely affect public 
health. The commenter also mischaracterized the conformity rule's 
requirements by implying that the extended grace period will allow 
areas to avoid meeting their applicable SIP budgets in regional 
conformity analyses (40 CFR 93.109, 93.118). Regardless of what model 
is required for a given conformity determination, MPOs are required by 
the CAA and the conformity rule to meet applicable SIP budgets in 
regional conformity analyses. Today's final rule does not change these 
requirements. Today's action does not relieve an area's statutory 
obligation to attain the NAAQS by its attainment date and thereby 
protect public health or EPA's air quality planning obligations under 
the CAA. Furthermore, the final rule does not waive EPA's SIP 
requirements for using the latest emissions model when a SIP is 
developed, and does not change the conformity grace period for using 
MOVES in project-level conformity analyses.\17\ The implications

[[Page 11399]]

of changes in on-road mobile source emission inventories and/or control 
strategies will differ, and as result, need to be evaluated based on 
the unique circumstances of each nonattainment or maintenance area.
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    \17\ As noted in the October 2011 proposal, the transition to 
MOVES for project-level hot-spot analyses does not involve the 
complexity associated at the regional level, where ``re-planning'' 
under 40 CFR 93.111(b)(2) is necessary for some areas (i.e., SIP 
budgets and/or transportation plans/TIPs may need to be revised 
before regional conformity analyses based on MOVES can be 
completed).
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    EPA is finalizing a one-year extension only for the MOBILE to MOVES 
transition for regional conformity analyses. The final rule's one-time 
extension is not indefinite. After March 2, 2013, MOVES must be used 
for new regional conformity analyses, whether or not start-up or re-
planning issues have been addressed. EPA believes this additional year 
appropriately addresses the circumstances in the field and the need to 
meet statutory requirements for using latest emissions models in a 
timely manner.
    The commenter also alleges that EPA staff stated that the primary 
purpose for this rulemaking was to allow nonattainment and maintenance 
areas to avoid a conformity lapse where MOVES produces higher emissions 
than MOBILE-based SIP budgets.\18\ This statement is incorrect. Today's 
final rule does not amend the existing conformity rule's provisions for 
frequency (40 CFR 93.104) or conformity lapses (40 CFR 93.102(c)). EPA 
did not undertake this rulemaking to address any specific area's 
conformity issues or to avoid conformity lapses, but rather to provide 
a reasonable amount of time for all areas to prepare to use MOVES and 
revise existing SIP budgets and/or transportation plans/TIPs as needed. 
Any conformity issues for individual areas will need to be addressed 
according to all conformity requirements.
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    \18\ The commenter included his notes taken during an informal 
conversation with EPA staff that occurred prior to the development 
of the October 2011 proposal.
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    Finally, the commenter highlighted several court decisions to 
support his comments. However, the cases cited by the commenter are 
irrelevant to the final rule because the cases involved challenges to 
the technical underpinnings of various models.\19\ In contrast, EPA is 
not approving or relying on any model in today's action. Instead, it is 
making a determination as to the time period that is needed before it 
is appropriate to require state and local agencies to use MOVES, given 
the planning and preparation involved before the model can be properly 
applied.
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    \19\ These cases include Small Refiner Lead Phase-Down Task 
Force v. EPA, 705 F.2d 506, 534 (challenge to cost analysis based on 
Department of Energy refinery modeling) and American Iron and Steel 
v. EPA, 115 F.3d 979, 1004 (challenge to Agency calculation of 
mercury bioaccumulation factor under Clean Water Act).
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    In summary, EPA is finalizing the regional conformity grace period 
extension as proposed, and is not making any changes after 
consideration of comments. This final rule is consistent with CAA 
requirements, the conformity rule, and precedent to date.

IV. Conformity SIPs

    The MOVES regional grace period extension applies on the effective 
date of today's 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.\20\ 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 MOVES 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).
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    \20\ 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 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 February 27, 2013, although EPA strongly 
encourages these states to submit a SIP revision with only the three 
required provisions.\21\ 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.
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    \21\ The conformity SIP may contain provisions more stringent 
than the federal requirements, and in these cases, states must 
specify this intention in its 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: www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

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's 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

[[Page 11400]]

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 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 subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

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 February 27, 2012.

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.


[[Page 11401]]


    Dated: February 15, 2012.
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) * * *
    (3) Notwithstanding paragraph (b)(1) of this section, the grace 
period for using the MOVES2010 emissions model (and minor revisions) 
for regional emissions analyses will end on March 2, 2013.
* * * * *
[FR Doc. 2012-4484 Filed 2-24-12; 8:45 am]
BILLING CODE 6560-50-P