[Federal Register Volume 75, Number 156 (Friday, August 13, 2010)]
[Proposed Rules]
[Pages 49435-49447]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-19928]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[EPA-HQ-OAR-2009-0128; FRL-9188-5]
RIN 2060-AP57


Transportation Conformity Rule Restructuring Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In this action, EPA is proposing to restructure several 
sections of the transportation conformity rule so that they would apply 
to any new or revised National Ambient Air Quality Standards (NAAQS) 
that are established in the future for transportation-related criteria 
pollutants. This proposal should reduce the need to amend the rule in 
the future for the sole purpose of referencing specific new or revised 
NAAQS. EPA is also proposing in this action that a near-term year would 
have to be analyzed when using the budget test when an area's 
attainment date has passed, or when an area's attainment date has not 
yet been established. The budget test demonstrates that the total on-
road emissions projected for a metropolitan transportation plan or TIP 
are within the emissions limits (``budgets'') established by the state 
air quality implementation plan (``SIP'').
    This action also includes several administrative proposals and 
clarifications to improve implementation of the rule.
    The Clean Air Act (CAA) requires federally supported transportation 
plans, transportation improvement programs, and projects to be 
consistent with (``conform to'') the purpose of the state air quality 
implementation plan. The U.S. Department of Transportation (DOT) is 
EPA's Federal partner in implementing the transportation conformity 
regulation. EPA has consulted with DOT, and they concur with this 
proposed rule.

DATES: Written comments on this proposal must be received on or before 
September 13, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0128, by one of the following methods:
     http://www.regulations.gov: Follow the online instructions 
for submitting comments.
     E-mail: a-and-r-docket@epa.gov.
     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-2009-0128. 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-2009-0128. 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-
2009-0128. 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to Section I. of the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air and Radiation 
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744 and the telephone 
number for the Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Patty Klavon, State Measures and 
Conformity Group, Transportation and Regional Programs Division, 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105, e-mail address: klavon.patty@epa.gov, telephone number: (734) 
214-4476, fax number: (734) 214-4052; or Laura Berry, State Measures 
and Conformity Group, Transportation and Regional Programs Division, 
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 
48105, e-mail address: berry.laura@epa.gov, telephone number: (734) 
214-4858, fax number: (734) 214-4052.

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

I. General Information
II. Background on the Transportation Conformity Rule
III. Restructure of 40 CFR 93.109
IV. Additional Option for Areas That Qualify for EPA's Clean Data 
Regulations or Policies
V. Baseline Year for Certain Nonattainment Areas
VI. Transportation Conformity Requirements for Secondary NAAQS
VII. Analysis of a Near-Term Year in the Budget Test
VIII. How does this proposal affect conformity SIPs?
IX. Statutory and Executive Order Reviews

[[Page 49436]]

I. General Information

A. Does this action apply to me?

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

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           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 
proposal. This table lists the types of entities of which EPA is aware 
that potentially could be regulated by the transportation conformity 
rule. Other types of entities not listed in the table could also be 
regulated. To determine whether your organization is regulated by this 
action, you should carefully examine the applicability requirements in 
40 CFR 93.102. If you have questions regarding the applicability of 
this action to a particular entity, consult the persons listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

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

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

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

1. Docket
    EPA has established an official public docket for this action under 
Docket ID No. EPA-HQ-OAR-2009-0128. You can get a paper copy of this 
Federal Register document, as well as the documents specifically 
referenced in this action, any public comments received, and other 
information related to this action at the official public docket. See 
the ADDRESSES section for its location.
2. Electronic Access
    You may access this Federal Register document electronically 
through EPA's Transportation Conformity Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm. You may also access this 
document electronically under the Federal Register listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the official public docket is available 
through http://www.regulations.gov. You may use http://www.regulations.gov to submit or view public comments, access the index 
listing of the contents of the official public docket, and to access 
those documents in the public docket that are available electronically. 
Once in the system, select ``search,'' then key in the appropriate 
docket identification number.
    Certain types of information will not be placed in the electronic 
public docket. Information claimed as CBI and other information for 
which disclosure is restricted by statute is not available for public 
viewing in the electronic public docket. EPA's policy is that 
copyrighted material will not be placed in the electronic public docket 
but will be available only in printed, paper form in the official 
public docket.
    To the extent feasible, publicly available docket materials will be 
made available in the electronic public docket. When a document is 
selected from the index list in EPA Dockets, the system will identify 
whether the document is available for viewing in the electronic public 
docket. Although not all docket materials may be available 
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.

[[Page 49437]]

II. Background on the Transportation Conformity Rule

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 (``conform to'') the 
purpose of the state air quality implementation plan (SIP). Conformity 
to the purpose of the SIP means that transportation activities will not 
cause new air quality violations, worsen existing violations, or delay 
timely attainment or achievement of interim emission reductions or 
milestones of the relevant NAAQS. 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: Carbon 
monoxide (CO), ozone, nitrogen dioxide (NO2) and particulate 
matter (PM2.5 and PM10).\1\
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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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    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. DOT is EPA's Federal partner in implementing 
the conformity regulation. EPA has consulted with DOT, and they concur 
with this proposed rule.

B. Why are we issuing this proposed rule?

    EPA has already undertaken two conformity rulemakings primarily for 
the purpose of addressing a new or revised NAAQS. See the March 24, 
2010 final rule and the July 1, 2004 final rule (75 FR 14260, and 69 FR 
40004, respectively). Due to other CAA requirements, EPA will continue 
to establish new or revised NAAQS in the future. Therefore, EPA is 
proposing to restructure two sections of the conformity rule, 40 CFR 
93.109 and 93.119, and is proposing minor changes for definitions in 40 
CFR 93.101, so that the rule's requirements would clearly apply to 
areas designated for future new or revised NAAQS. These proposed 
changes are intended to minimize the need to make administrative 
updates to the conformity rule merely to reference a specific new or 
revised NAAQS. EPA believes that these proposed revisions would provide 
more certainty to implementers without compromising air quality 
benefits from the current program. These proposed changes are found in 
Sections III. and V. of today's proposal.
    EPA is also proposing to clarify the additional conformity test 
option currently available to nonattainment areas that meet the 
criteria of EPA's clean data \2\ regulations or policies for certain 
NAAQS, and to extend that flexibility to any nonattainment areas 
covered by such a regulation or policy. See Section IV. of today's 
proposal for further details. EPA is also clarifying that conformity 
requirements apply in areas designated nonattainment or maintenance for 
a transportation-related secondary NAAQS. See Section VI. for further 
information.
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    \2\ Clean data refers to air quality monitoring data determined 
by EPA to indicate attainment of the NAAQS. Note that we are 
proposing a minor change to the existing definition of clean data 
found in 40 CFR 93.101, see Section IV. of today's notice.
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    In addition, EPA is proposing that a near-term year would have to 
be analyzed when using the budget test when an area's attainment date 
has passed, or when an area's attainment date has not yet been 
established. The budget test demonstrates that the total on-road 
emissions projected for a metropolitan transportation plan or TIP are 
within the emissions limits (``budgets'') established by the state air 
quality implementation plan (``SIP''). Section VII. of this preamble 
describes this issue and EPA's proposed change for budget test analysis 
years. Finally, Section VIII. covers how today's proposal affects 
conformity SIPs.\3\
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    \3\ The transportation conformity SIP includes a state's 
specific criteria and procedures for certain aspects of the 
transportation conformity process. For more information about 
transportation conformity SIPs, see EPA's ``Guidance for Developing 
Transportation Conformity State Implementation Plans (SIPs)'', (EPA-
420-B-09-001, January 2009).
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    Two recent actions are useful background for today's proposed rule. 
In the March 24, 2010 Transportation Conformity Rule PM2.5 
and PM10 Amendments (``PM Amendments'') rulemaking, EPA 
provided conformity procedures for state and local agencies in areas 
that are designated nonattainment for the 2006 24-hour PM2.5 
NAAQS (``2006 PM2.5 NAAQS'')(75 FR 14260). The other 
rulemaking that provides useful background is the final rule EPA 
published on July 1, 2004 (69 FR 40004). In this rulemaking, EPA 
provided conformity procedures for state and local agencies under the 
8-hour ozone and PM2.5 NAAQS (or ``1997 ozone'' and ``1997 
PM2.5'' NAAQS, respectively).\4\ See EPA's Web site at 
http://www.epa.gov/otaq/stateresources/transconf/index.htm for further 
information about any of EPA's transportation conformity 
rulemakings.\5\
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    \4\ The July 1, 2004 final rule described regional conformity 
tests for areas designated nonattainment or maintenance for the 8-
hour ozone NAAQS codified at 40 CFR 50.10 and for areas designated 
nonattainment or maintenance for the PM2.5 NAAQS codified 
at 40 CFR 50.7.
    \5\ At this Web site, click on ``Regulations'' to find all of 
EPA's proposed and final rules as well the current transportation 
conformity regulations.
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III. Restructure of 40 CFR 93.109

A. Overview

    Conformity determinations for transportation plans, TIPs, and 
projects not from a conforming transportation plan and TIP must include 
a regional emissions analysis that fulfills CAA requirements. The 
conformity rule provides for several different regional conformity 
tests that satisfy statutory requirements in different situations. Once 
a SIP with a motor vehicle emissions budget (``budget'') is submitted 
for a NAAQS and EPA finds the budget adequate for conformity purposes 
or approves it as part of the SIP, conformity must be demonstrated 
using the budget test for that pollutant or precursor, as described in 
40 CFR 93.118.
    EPA has amended the conformity rule on two prior occasions to 
address a new or revised NAAQS. In the July 1, 2004 final rule (69 FR 
40004), EPA amended 40 CFR 93.109 by adding new paragraphs to describe 
the regional conformity tests for the 1997 ozone areas that do not have 
1-hour ozone budgets, 1997 ozone areas that have 1-hour ozone budgets, 
and 1997 PM2.5 areas. Also, in the March 24, 2010 PM 
Amendments final rule (75 FR 14260), EPA amended 40 CFR 93.109 again by 
adding two new paragraphs to describe the regional conformity tests for 
2006 PM2.5 areas without 1997 PM2.5 budgets, and 
2006 PM2.5 areas that have 1997 PM2.5 budgets.
    EPA believes it would be useful to restructure 40 CFR 93.109 to 
eliminate repetition and reduce the need to update the rule each time a 
NAAQS is promulgated. The same hierarchy of conformity tests as 
described below in B. of this section generally applies to all areas 
where conformity is required, and for the reasons described below, EPA 
believes it would apply to all future areas, regardless of pollutant or 
NAAQS. Given that CAA section 109(d)(1) requires EPA to revisit the 
NAAQS for criteria pollutants at least every five

[[Page 49438]]

years, and that EPA is in the process of considering revisions to other 
NAAQS per this requirement, EPA anticipates other NAAQS revisions will 
be made in the future that will be subject to conformity requirements.
    In the existing conformity regulation, 40 CFR 93.109 includes nine 
paragraphs, (c) through (k), one for each of the various types of 
nonattainment and maintenance areas. Each of these paragraphs contains 
the requirements that apply for that specific pollutant, NAAQS, and/or 
area boundary scenario, but each paragraph's requirements are 
consistent with the hierarchy of regional conformity tests described 
below in B. of this section. Therefore, there is redundancy in 40 CFR 
93.109 as it currently exists.

B. Proposal

    Today, EPA is proposing to restructure this section to provide the 
requirements for regional conformity tests in one paragraph, and 
project-level conformity tests in another. Under today's proposal, 
existing paragraphs (c) through (k) would be replaced with two 
paragraphs:
     Regional conformity tests, which would be covered by newly 
proposed paragraph Sec.  93.109(c); and,
     Project-level conformity tests, which would be covered by 
newly proposed paragraph Sec.  93.109(d).
    EPA is not proposing substantive changes to this section of the 
conformity rule; therefore, we are taking comments only on the proposed 
restructuring of 40 CFR 93.109, not on the underlying requirements of 
the regulation.
    New paragraph (c). Under today's proposal, Sec.  93.109(c) would 
include requirements for using the budget test and/or interim emissions 
tests in the same manner as in the existing regulation. That is, the 
following general hierarchy of regional conformity tests that is found 
in the existing regulations would be retained by the new structure:
     First, a nonattainment or maintenance area for a specific 
NAAQS must use the budget test, if the area has budgets from an 
adequate or approved SIP for that specific NAAQS (proposed Sec.  
93.109(c)(1)). For example, once a 2010 ozone nonattainment or 
maintenance area has adequate or approved SIP budgets for the 2010 
ozone NAAQS, it would use those budgets for the budget test as the 
regional test of conformity;
     Second, if an area does not have such budgets but has 
budgets from an adequate or approved SIP that addresses a different 
NAAQS for the same criteria pollutant, these budgets must be used in 
the budget test. Where such budgets do not cover the entire area, the 
interim emissions test(s) may also have to be used (proposed Sec.  
93.109(c)(2)). For example, before a 2010 ozone area has adequate or 
approved budgets for the 2010 ozone NAAQS, it would use the budget 
test, using budgets from an adequate or approved SIP for an earlier 
ozone NAAQS, if it has them.\6\ If these budgets do not cover the 
entire 2010 ozone area, the interim emissions test(s) may also have to 
be used;
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    \6\ It is possible that the adequate or approved budget for an 
earlier ozone NAAQS could be an adequate or approved 1-hour ozone 
budget.
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     Third, if an area has no adequate or approved budgets for 
that criteria pollutant at all, it must use the interim emissions 
test(s), as described in 40 CFR 93.119 (proposed Sec.  93.109(c)(3)). 
For example, if a 2010 ozone area has no adequate or approved budgets 
for any ozone NAAQS, it would use the interim emissions test(s), as 
described in 40 CFR 93.119.
    All of the requirements and flexibilities in the existing rule that 
apply for regional conformity tests for specific pollutants would be 
retained in proposed Sec.  93.109(c)(4) and (c)(6). In addition, EPA is 
proposing to expand the clean data \7\ conformity option in 40 CFR 
93.109(c)(5), (d)(5) and (e)(4) to all clean data areas for which EPA 
has a clean data regulation or policy (proposed Sec.  93.109(c)(5)). 
See Section IV. below for further information.
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    \7\ Clean data refers to air quality monitoring data determined 
by EPA to indicate attainment of the NAAQS. Note that we are 
proposing a minor change to the existing definition of clean data 
found in 40 CFR 93.101, see Section IV. of today's notice.
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    New paragraph (d). With regard to project-level requirements, 
today's proposed paragraph Sec.  93.109(d) places the existing rule's 
requirements for hot-spot analyses of projects in CO, PM10, 
and PM2.5 nonattainment and maintenance areas together in 
one paragraph (proposed Sec.  93.109(d)(1), (2), and (3)). These 
requirements would be unchanged from the existing regulation.\8\
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    \8\ Project-level conformity determinations are typically 
developed during the National Environmental Policy Act (NEPA) 
process, although conformity requirements are separate from NEPA-
related requirements. Today's proposal to restructure 40 CFR 93.109 
does not affect how NEPA-related requirements are implemented in the 
field.
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    Related proposed amendments to 40 CFR 93.101. EPA also proposes to 
remove the definitions for ``1-hour ozone NAAQS,'', ``8-hour ozone 
NAAQS'', ``24-hour PM10 NAAQS'', ``1997 PM2.5 
NAAQS'', ``2006 PM2.5 NAAQS'', and ``Annual PM10 
NAAQS'' found in 40 CFR 93.101 of the conformity rule. Under today's 
proposed reconstruction of 40 CFR 93.109, these definitions would no 
longer be necessary because the proposed regulatory text for 40 CFR 
93.109 would apply for any and all NAAQS of a pollutant for which 
conformity applies.

C. Rationale for Restructuring of Sec.  93.109

    EPA believes that section 93.109 of the conformity rule can be 
restructured because a recent court decision has already established 
the legal parameters for regional conformity tests. In Environmental 
Defense v. EPA, 467 F.3d 1329 (DC Cir. 2006), the Court of Appeals for 
the District of Columbia Circuit held that where a motor vehicle 
emissions budget developed for the revoked 1-hour ozone NAAQS existed 
in an approved SIP, that budget must be used to demonstrate conformity 
to the 8-hour ozone NAAQS until the SIP is revised to include budgets 
for the new (or revised) NAAQS. EPA incorporated the court's decision 
for ozone conformity tests in its January 24, 2008 final rule (73 FR 
4434). While the Environmental Defense case concerned ozone, EPA 
believes the court's holding is relevant for other pollutants for which 
conformity must be demonstrated. Consequently, EPA believes that the 
hierarchy of regional conformity tests described above, which is 
already found in the existing rule for 8-hour ozone and 2006 
PM2.5 areas, would apply for any NAAQS of a pollutant for 
which conformity applies.
    Today's proposed restructuring would reduce the likelihood that EPA 
would have to amend the conformity rule when new or revised NAAQS are 
promulgated, which would have several benefits. First, implementers 
would know the requirements for regional conformity tests for any 
potential area designated nonattainment for a new or revised NAAQS, 
even before such area's designation. Thus, implementers may have more 
time to determine conformity of a transportation plan and TIP and would 
not need to wait for any additional conformity rulemaking from EPA. 
Second, reducing the need to amend the conformity regulation each time 
a NAAQS change is made would save government resources and taxpayer 
dollars and also reduce stakeholder effort needed to keep track of 
regulatory changes.
    EPA's proposed changes to 40 CFR 93.109, along with today's 
proposed elimination of definitions in 40 CFR 93.101 and proposed 
changes for the baseline year in 40 CFR 93.119 (see Section V.), should 
make the rule sufficiently flexible to cover most future NAAQS changes, 
such as promulgation

[[Page 49439]]

of a new or revised NAAQS or revocation of a NAAQS.
    EPA is not proposing to revise regional conformity test 
requirements in 40 CFR 93.109 \9\ or hot-spot analyses requirements for 
existing areas and is therefore not seeking comment on these 
requirements in existing areas. Further, today's proposal is consistent 
with the regional conformity test requirements for 2006 
PM2.5 areas and PM10 areas described in the March 
24, 2010 PM Amendments final rule. The rationale for the required 
regional tests has been described in previous rulemakings as well. The 
rationale for the requirements for project-level conformity tests in 
CO, PM2.5, and PM10 areas has also been described 
in previous rulemakings,\10\ and EPA is not proposing to revise and is 
therefore not seeking comment on those requirements.
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    \9\ EPA is proposing to include a near-term analysis year 
requirement for the SIP budget test in 40 CFR 93.118. See Section 
VII. of today's proposal for further details.
    \10\ For further details on project-level conformity test 
requirements, please refer to the March 10, 2006 final rule (71 FR 
12469-12506). See also EPA's January 24, 2008 final rule (73 FR 
4432-4434), EPA's July 1, 2004 final rule (69 FR 40036-40037; 40056-
40058), the August 15, 1997 final rule (62 FR 43798), and the 
November 24, 1993 final rule (58 FR 62199-62201; 62207; 62212-
62213).
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    Request for comments. While EPA believes today's changes proposed 
for 40 CFR 93.109 are clear and concise, we also recognize that there 
could be other ways to organize this section to achieve the same result 
of accommodating the promulgation of future NAAQS. For example, another 
possible structure for this section could be to create separate 
paragraphs containing the conformity tests required for each of the 
pollutants for which conformity applies: Ozone, CO, PM10, 
PM2.5, and NO2. Under this alternative structure, 
the requirements for each pollutant would be wholly contained in one 
specific paragraph but the same requirements for regional conformity 
tests would be repeated five times in the regulatory text.
    EPA is specifically seeking comment on the overall organization of 
this section, whether it be (1) By regional conformity test and 
project-level test requirements as in today's proposed regulatory text, 
(2) by each of the five pollutants for which conformity applies, or (3) 
by another method that achieves the goals described in today's proposal 
to restructure the conformity provisions in this section, without 
affecting the substantive requirements of the regulation. EPA requests 
that commenters provide the reasons for their preferences if possible, 
as these reasons are especially valuable to EPA in making a final 
decision. Where commenters recommend an alternative structure, please 
provide example text.

IV. Additional Option for Areas That Qualify for EPA's Clean Data 
Regulations or Policies

A. Overview

    Currently, sections 93.109(c)(5), (d)(5), and (e)(4) of the 
conformity rule provide an additional regional conformity test option 
for moderate and above 1-hour and 8-hour ozone nonattainment areas that 
meet the criteria of EPA's existing clean data regulation and 
policy.\11\ Today's conformity proposal would clarify this flexibility 
and extend this flexibility to any nonattainment areas that are covered 
by EPA's clean data regulations or clean data policies.\12\
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    \11\ For further details on EPA's clean data policy for ozone 
areas, please refer to July 1, 2004 final rule (69 FR 40019-40020). 
See also EPA's November 29, 2005 Phase 2 Ozone Implementation 
rulemaking for the 1997 ozone NAAQS (70 FR 71644-71646) and 40 CFR 
51.918. EPA had also previously issued a policy memorandum on May 
10, 1995 that addressed certain SIP requirements of moderate and 
above 1-hour ozone areas. This memorandum is entitled, ``Reasonable 
Further Progress, Attainment Demonstrations, and Related 
Requirements of Ozone Nonattainment Areas Meeting the Ozone National 
Ambient Air Quality Standard,'' and is available on EPA's Web site 
at: http://www.epa.gov/ttn/caaa/t1/memoranda/clean15.pdf.
    \12\ In addition to EPA's clean data regulation and policy for 
ozone areas, EPA also promulgated a clean data regulation for the 
PM2.5 NAAQS. See EPA's April 25, 2007 Phase 1 
PM2.5 Implementation rulemaking for the 1997 
PM2.5 NAAQS (72 FR 20586) and 40 CFR 51.1004(c). EPA had 
previously issued a policy memorandum on December 14, 2004 on this 
subject. This memorandum is entitled, ``Clean Data Policy for the 
Fine Particle National Ambient Air Quality Standards,'' and is 
available on EPA's Web site at: http://www.epa.gov/pmdesignations/1997standards/documents/Clean_Data_Policy.pdf.
    EPA has also applied its clean data policy in making 
determinations of attainment in PM10 nonattainment areas. 
For example, see the October 30, 2006 final rule (71 FR 63642) for 
the finding of attainment for the San Joaquin Valley, California 
PM10 nonattainment area. See also the February 8, 2006 
final rule (71 FR 6352) for the finding of attainment of the Ajo, 
Arizona PM10 nonattainment area, and the March 14, 2006 
final rule (71 FR 13021) for the finding of attainment for the Yuma, 
Arizona PM10 nonattainment area.
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B. Proposal

    Today, EPA is proposing to clarify that any nonattainment area that 
EPA determines has air quality monitoring data that meet the 
requirements of 40 CFR parts 50 and 58 and that show attainment of the 
NAAQS--a ``clean data'' area \13\--can choose to complete a regional 
conformity analysis using the most recent year of clean data as the 
motor vehicle emissions budget(s) rather than using the interim 
emissions test(s) per 40 CFR 93.119 if the following are true:
---------------------------------------------------------------------------

    \13\ See 40 CFR 93.101.
---------------------------------------------------------------------------

     The state or local air quality agency requests that 
budgets be established in conjunction with EPA's determination of 
attainment (Clean Data) rulemaking for the respective NAAQS, and EPA 
approves the request; and,
     These areas have not submitted a maintenance plan for the 
respective NAAQS and EPA has determined that these areas are not 
subject to the CAA reasonable further progress and attainment 
demonstration requirements for the respective NAAQS.
    Otherwise, clean data areas for a relevant NAAQS must complete a 
regional conformity analysis using either the budget test if they have 
adequate or approved budgets (per 40 CFR 93.109 and 93.118), or the 
interim emissions test(s) per 40 CFR 93.119 if they do not have 
adequate or approved budgets.
    The proposed regulatory text for this flexibility is found in Sec.  
93.109(c)(5), and would clarify that the state or local air quality 
agency would have to make the request that the emissions in the most 
recent year for which the area is attaining (i.e., the most recent year 
that the area has ``clean data'') be used as budgets, and that EPA 
would have to approve that request. These steps are in the current 
regulation; today's proposed regulatory text would simply make them 
more explicit and would extend them to any nonattainment area covered 
by EPA's clean data regulations or policies.
    EPA is also proposing to update the definition of ``clean data'' in 
40 CFR 93.101 to describe this term more accurately. The updated 
definition would reference the appropriate requirements at 40 CFR part 
50, as well as part 58. The reference to 40 CFR part 58 is included in 
the existing definition.
    We are seeking comments on the proposal to extend this flexibility 
to use clean data budgets for any NAAQS for which EPA has a clean data 
regulation or policy. We are not seeking comments on the existing clean 
data regulation and policy and how they currently apply to ozone 
nonattainment areas under the conformity rule.

C. Rationale

    Today's proposed clarification for clean data areas is consistent 
with the current conformity rule. Options for conformity tests for 
clean data areas remain the same, although today's proposal would 
extend the additional flexibility to use clean data budgets to any 
nonattainment areas where EPA develops a clean data regulation or 
policy for the relevant NAAQS. The regulatory text for this proposal is 
found

[[Page 49440]]

in proposed Sec.  93.109(c)(5), which would apply to areas designated 
for any NAAQS.
    EPA believes that nonattainment areas that EPA has determined to be 
attaining a NAAQS (clean data areas) for which EPA has developed a 
clean data regulation or policy should be extended the same flexibility 
that the current conformity rule provides to moderate and above 1-hour 
and 8-hour ozone areas \14\ that qualify for EPA's ozone clean data 
regulation and policy. See EPA's previous discussion and rationale for 
the clean data conformity option in the preamble to the 1996 conformity 
proposal and 1997 final rule (July 9, 1996, 61 FR 36116, and August 15, 
1997, 62 FR 43785, respectively).
---------------------------------------------------------------------------

    \14\ The 1-hour ozone NAAQS was revoked effective June 15, 2005. 
Transportation conformity no longer applies for this NAAQS.
---------------------------------------------------------------------------

    For further details on EPA's clean data regulations and policies, 
please refer to the July 1, 2004 final rule (69 FR 40019-40020). See 
also EPA's November 29, 2005 Phase 2 Ozone Implementation rulemaking 
for the 1997 ozone NAAQS (70 FR 71644-71646), 40 CFR 51.918, and EPA's 
April 25, 2007 Clean Air Fine Particle Implementation Rule for the 1997 
PM2.5 NAAQS (72 FR 20603-20605). See also the October 30, 
2006 final rule (71 FR 63642), the February 8, 2006 final rule (71 FR 
6352) and the March 14, 2006 final rule (71 FR 13021) determinations of 
attainment for various PM10 nonattainment areas using EPA's 
Clean Data policy.

V. Baseline Year for Certain Nonattainment Areas

A. Overview

    Before an adequate or approved SIP budget is available, conformity 
for the transportation plan, TIP, or project not from a conforming 
transportation plan and TIP is demonstrated with one or both of the 
interim emissions tests, as described in 40 CFR 93.119. The interim 
emissions tests include different forms of the ``build/no-build'' test 
and ``baseline year'' test. In general, the baseline year test compares 
emissions from the planned transportation system to emissions that 
occurred in the relevant baseline year. The build/no-build test 
compares emissions from the planned (or ``build'') transportation 
system with the existing (or ``no-build'') transportation system in the 
analysis year. Because EPA has amended this section of the conformity 
rule two times in the past to add a baseline year for new or revised 
NAAQS (See Section II.B. of today's proposal for details), EPA is 
proposing today to revise 40 CFR 93.119 to apply more generally to any 
NAAQS, rather than updating this section of the conformity rule to 
address a specific NAAQS.

B. Proposal

    EPA is proposing to revise 40 CFR 93.119 to define the baseline 
year by reference to another requirement. Rather than naming a specific 
year, EPA is proposing to define the baseline year for conformity 
purposes as the most recent year for which EPA's Air Emissions 
Reporting Requirements (AERR) (40 CFR 51.30(b)) requires submission of 
on-road mobile source emissions inventories, as of the effective date 
of EPA's nonattainment designations for any NAAQS promulgated after 
1997. AERR requires on-road mobile source emission inventories to be 
submitted for every third year, for example, 2002, 2005, 2008, 2011, 
etc.\15\
---------------------------------------------------------------------------

    \15\ These are known as Three-Year Cycle Inventories. See 40 CFR 
51.30(b) in the EPA's December 17, 2008 final rule (73 FR 76539) for 
more details.
---------------------------------------------------------------------------

    This proposed definition establishes the baseline year for 
conformity purposes for any areas designated nonattainment for a NAAQS 
that EPA promulgated after 1997. This has already been done for areas 
designated nonattainment for the 2006 PM2.5 NAAQS, which was 
promulgated on October 17, 2006 (71 FR 61144). See the March 24, 2010 
PM Amendments final rule (75 FR 14265-14266) for further details. 
Today's proposed definition is consistent with Option 2 which was 
finalized for the 2006 PM2.5 NAAQS in the PM Amendments 
final rule, except that in the PM Amendments final rule, this 
definition applies only to areas designated for a PM2.5 
NAAQS other than the 1997 PM2.5 NAAQS. Today's proposal 
would apply more generally, for any new or revised NAAQS of any 
pollutant promulgated after 1997, not just the PM2.5 NAAQS. 
Therefore, for any future NAAQS changes, the conformity rule would not 
have to be amended merely to establish a new baseline year for 
conformity purposes; this proposed definition would automatically 
establish a relevant baseline year. For all future NAAQS, EPA would 
identify the baseline year that results from today's proposed 
definition for implementers in guidance and maintain a list of baseline 
years on EPA's Web site.\16\ Once the baseline year is established 
according to this provision, it would not change (i.e., the baseline 
year would not be a rolling baseline year for a given NAAQS). Today's 
proposal would not change the baseline years already established prior 
to today's proposed rule.
---------------------------------------------------------------------------

    \16\ See http://www.epa.gov/otaq/stateresources/transconf/baseline.htm.
---------------------------------------------------------------------------

    The current requirements for interagency consultation (40 CFR 
93.105(c)(1)(i)) would apply to the process to determine the latest 
assumptions and models for generating baseline year motor vehicle 
emissions to complete any baseline year test. The baseline year 
emissions level that is used in conformity would be required to be 
based on the latest planning assumptions available, the latest 
emissions model, and appropriate methods for estimating travel and 
speeds as required by 40 CFR 93.110, 93.111, 93.122 of the current 
conformity rule.
    The baseline year test can be completed with a submitted or draft 
baseline year motor vehicle emissions SIP inventory, if the SIP 
reflects the latest information and models. An MPO or state DOT, in 
consultation with state and local air agencies, could also develop 
baseline year emissions as part of the conformity analysis. EPA 
believes that a submitted or draft SIP baseline inventory may be the 
most appropriate source for completing the baseline year tests for an 
area's first conformity determination under a new or revised NAAQS. 
This is due to the fact that SIP inventories are likely to be under 
development at the same time as these conformity determinations, and 
such inventories must be based on the latest available data at the time 
they are developed (CAA section 172(c)(3)).

C. Rationale

    EPA believes that today's proposed definition for the baseline year 
is appropriate for meeting CAA conformity requirements for 
nonattainment areas and is environmentally protective. Coordinating the 
conformity baseline year with the year used for SIP planning and an 
emissions inventory year was EPA's rationale for using 2002 as the 
baseline year for conformity tests in nonattainment areas for the 1997 
ozone NAAQS. As described in the July 1, 2004 final rule (69 FR 40015), 
EPA selected 2002 as the conformity baseline year because 2002 was 
identified as the anticipated emissions inventory base year for the SIP 
planning process under the 1997 ozone NAAQS.\17\ EPA continues to 
believe that coordinating the baseline year for interim emissions tests 
with other data collection and inventory requirements would allow state 
and local governments to use their

[[Page 49441]]

resources more efficiently. EPA also believes it would be important to 
coordinate the conformity rule's baseline year with a year that is 
consistent with emission inventory requirements, which will most likely 
be consistent with the year ultimately used as a baseline for SIP 
planning for a particular NAAQS as well.
---------------------------------------------------------------------------

    \17\ Also, the AERR requires submission of point, nonpoint, and 
mobile source emissions inventories every three years, and 2002 was 
one of those required years for such updates.
---------------------------------------------------------------------------

    Because the CAA requires EPA to review the NAAQS for possible 
revision once every five years, the existing conformity rule as 
structured requires EPA to update the conformity rule to establish a 
baseline year every time a new or revised NAAQS is promulgated. 
Therefore, EPA is proposing to generalize the language for the baseline 
year for areas designated under any NAAQS established after 1997. 
Adopting this proposal would standardize the process for selecting an 
appropriate baseline year to use in meeting conformity requirements 
before SIP budgets have been established for any NAAQS promulgated in 
the future.
    Today's proposed baseline year definition provides implementers 
with knowledge of the baseline year for any NAAQS promulgated after 
1997 upon the effective date of nonattainment designations for that 
NAAQS, without having to wait for EPA to amend the conformity rule. As 
a result, MPOs and other implementers would understand conformity 
requirements for future NAAQS revisions more quickly, which may, in 
turn, enable them to fully utilize the 12-month conformity grace period 
to complete conformity determinations for new nonattainment areas.
    EPA believes that generalizing the baseline year in the conformity 
rule would result in an appropriate baseline year for any given NAAQS. 
This proposed amendment to the conformity rule is based on criteria 
that have been used for establishing specific baseline years for other 
NAAQS (58 FR 62191, 69 FR 40014). Therefore, EPA believes that 
generalizing the baseline year would continue to result in an 
environmentally protective and appropriate baseline year for conformity 
under any future NAAQS revisions and is consistent with how conformity 
has been implemented for new or revised NAAQS in the past.

VI. Transportation Conformity Requirements for Secondary NAAQS

    Based on the CAA conformity provisions, the existing conformity 
rule, and today's proposal, conformity requirements must be met for all 
transportation-related criteria pollutants and NAAQS. All of the 
transportation-related criteria pollutants except CO have a primary 
NAAQS and a secondary NAAQS. The primary NAAQS protects public health. 
The secondary NAAQS prevents unacceptable effects on the public 
welfare, e.g., unacceptable damage to crops and vegetation, buildings 
and property, and ecosystems (CAA section 109(b)(2)).
    CAA section 176(c)(1)(A) states that conformity to a SIP means 
``conformity to an implementation plan's purpose of eliminating or 
reducing the severity and number of violations of the national ambient 
air quality standards and achieving expeditious attainment of such 
standards * * *'' In other words, because the CAA refers to the NAAQS 
without qualifying them, conformity applies to both the primary and 
secondary NAAQS for transportation-related criteria pollutants.
    EPA has historically set the secondary NAAQS at the same level as 
the relevant primary NAAQS for transportation-related criteria 
pollutants (i.e., PM, ozone, nitrogen dioxide). Hence, the conformity 
rule has not needed to address requirements specifically for areas 
designated nonattainment only for a secondary NAAQS or designated for 
both a primary and a different secondary NAAQS for the same pollutant.
    However, for example, in its January 19, 2010 (75 FR 2938) proposal 
to revise the ozone NAAQS, EPA proposed a secondary ozone NAAQS that, 
if finalized as proposed, would be distinct from the primary ozone 
NAAQS that was proposed. It is also possible that in the future EPA 
will propose to establish distinct secondary NAAQS for other 
transportation-related criteria pollutants.
    Because a secondary NAAQS may not have a specified attainment year 
which is required to be analyzed,\18\ EPA is proposing in Section VII. 
of today's proposal to address analysis year requirements for areas 
without an established attainment date. EPA would issue guidance as 
needed to assist areas in implementing conformity requirements for new 
NAAQS, including any secondary NAAQS for the 2010 ozone NAAQS, if 
applicable.
---------------------------------------------------------------------------

    \18\ This may occur in areas designated nonattainment for a 
secondary NAAQS which is different from the primary NAAQS. The CAA 
does not specify an attainment date for such areas. CAA section 
172(a)(2)(B) specifies that ``[t]he attainment date for an area 
designated nonattainment with respect to a secondary [NAAQS] shall 
be the date by which attainment can be achieved as expeditiously as 
practicable after the date such an area was designated under section 
107(d).'' For transportation conformity purposes, an attainment date 
would be established when an attainment demonstration is submitted 
and SIP budgets are found adequate through the adequacy process or 
approved through the SIP approval process.
---------------------------------------------------------------------------

VII. Analysis of a Near-Term Year in the Budget Test

A. Existing Requirements for Analysis Years

    As described earlier, conformity determinations for transportation 
plans and TIPs include a regional emissions analysis for the budget 
test and/or interim emissions test, whichever applies in a given area. 
When these tests are performed, state and local agencies are not 
required to examine the emissions impacts of every year within the 
timeframe of the transportation plan. Rather, the conformity rule 
requires that only certain years be analyzed (40 CFR 93.118(d)) to 
understand the emissions impacts of planned transportation activities 
over the timeframe of the entire transportation plan and conformity 
determination. Emissions in these analysis years must be consistent 
with budgets, as required by 40 CFR 93.118(b).
    Analysis years are those years for which a regional emissions 
analysis that meets the requirements of 40 CFR 93.110, 93.111, and 
93.122 must be run. The analysis year requirements in the existing 
conformity rule differ slightly between the budget test and the interim 
emissions tests. The existing rule at 40 CFR 93.118(d)(2) requires the 
following years to be analyzed when the budget test is used:
     The attainment year, if it is within the timeframe of the 
transportation plan and conformity determination;
     The last year of the timeframe of the conformity 
determination (as described in 40 CFR 93.106(d)); and
     Intermediate years as necessary, so that analysis years 
are no more than ten years apart.
    Under this existing set of analysis years, once the attainment year 
has passed, or when the attainment year is not yet established, there 
is no requirement to analyze a near-term year. In contrast, the 
existing rule at 40 CFR 93.119(g)(1) addressing the interim emissions 
tests requires that a near-term year always be analyzed. Specifically, 
when performing the interim emissions tests, a year not more than five 
years beyond the year in which the conformity determination is being 
made must be analyzed, in addition to the last year of the 
transportation plan/conformity determination and intermediate years.

B. Proposal

    EPA proposes that when the attainment year has passed, or when an 
area's attainment date has not been

[[Page 49442]]

established,\19\ a near-term year would have to be analyzed when using 
the budget test. For these cases, EPA proposes to amend 40 CFR 
93.118(d)(2) to require areas to analyze a year no more than five years 
beyond the year in which the conformity determination is being made. 
This proposal would not affect budget test analysis year requirements 
where the attainment year for a given NAAQS is within the timeframe of 
the transportation plan and conformity determination.
---------------------------------------------------------------------------

    \19\ Cases in which an area's attainment date may not be 
established include areas designated for a secondary NAAQS only or 
areas designated nonattainment for a secondary NAAQS that is 
different than the primary NAAQS of the same pollutant.
---------------------------------------------------------------------------

    An example may help illustrate today's proposal. Current 1997 ozone 
areas that are classified as moderate are required to demonstrate 
attainment in the year 2009. Suppose one of these areas is 
demonstrating conformity in the year 2010 for a transportation plan 
that covers the years 2010 through 2030. Under the current conformity 
rule, the budget test for such an area would be required to be 
performed, at a minimum, for the years 2020 and 2030. An analysis of 
the attainment year would not be required under the current conformity 
rule since the attainment year would no longer be in the timeframe of 
the transportation plan. Today's proposal would add an analysis year to 
this example by requiring that an analysis year be chosen that is no 
more than five years beyond 2010 (the year the conformity determination 
is being done) but within the timeframe of the transportation plan, (in 
this case, any year from 2010 to 2015).
    As a second example, suppose a maintenance area makes a conformity 
determination in the year 2010, and the last year of its maintenance 
plan is 2017. The area's transportation plan covers the years 2010 
through 2030. Under the current conformity rule, three regional 
emissions analyses will be required to meet the budget test 
requirements: An analysis must be done for 2030, the last year of the 
transportation plan/conformity determination; 2017, likely chosen 
because 40 CFR 93.118(b)(2) requires consistency with the budgets in 
the last year of the maintenance plan; and a year between 2017 and 2030 
would also have to be selected for analysis, so that analysis years are 
not more than ten years apart.
    Under today's proposal, this maintenance area would have to 
demonstrate consistency with the SIP budget for four years but could 
choose to perform a regional emissions analysis for only three of those 
years: 2030, because it is the last year of the transportation plan or 
conformity determination; any year from 2010 to 2015, to fulfill the 
proposed requirement to analyze a year no more than five years beyond 
the year the conformity determination is being made; and a year between 
2020 and 2024, required so that analysis years are not more than ten 
years apart. In contrast to the first illustration above, the area is 
not required and could choose not to perform a regional emissions 
analysis for the year 2017 because the conformity rule permits the area 
to interpolate emissions for that year (40 CFR 93.118(d)(2)).\20\
---------------------------------------------------------------------------

    \20\ Demonstrating consistency with the motor vehicle emissions 
budget for the last year of the maintenance plan could be satisfied 
using interpolation rather than analysis (40 CFR 93.118(d)(2)). In 
the example given in which the MPO has the choice to analyze or 
interpolate a year for the conformity determination, we assume that 
the MPO would choose to interpolate to minimize the number of years 
that have to be analyzed.
---------------------------------------------------------------------------

    EPA is proposing a related change to 40 CFR 93.118(b). Currently, 
this provision requires that consistency with budgets be demonstrated 
for any year for which the SIP establishes a budget, the attainment 
year if it is in the timeframe of the transportation plan and 
conformity determination, the last year of the transportation plan/
conformity determination, and intermediate years as needed so that 
years for which consistency is demonstrated are no more than ten years 
apart.
    Today's proposal would simplify this language by requiring 
consistency for any years where a budget is established and for any 
years that are analyzed to meet the requirements in 40 CFR 93.118(d). 
This change would ensure that consistency is demonstrated for the 
analysis year chosen to fulfill a year within the first five years, in 
the case where the attainment year has passed or is not established.
    This proposal would not affect requirements to demonstrate 
consistency with the budgets where the attainment year for a given 
NAAQS is within the timeframe of the transportation plan and conformity 
determination.

C. Rationale

    EPA believes this proposal is consistent with the conformity 
requirements in the CAA that transportation activities not create new 
air quality violations, worsen existing violations, or delay timely 
attainment or achievement of interim reductions or milestones of the 
relevant NAAQS. The CAA does not require specific analysis years for 
the conformity tests; it simply establishes the foundations of these 
tests and that they apply over the entire timeframe of the 
transportation plan and conformity determination. EPA has established 
and subsequently amended the analysis years for these conformity tests 
in past rulemakings.\21\
---------------------------------------------------------------------------

    \21\ For further details on EPA's rulemakings that address 
analysis years requirements for transportation conformity tests, see 
the November 24, 1993 final rule (58 FR 62195). See also the July 9, 
1996 proposed rule (61 FR 36118, 36130), the August 15, 1997 final 
rule (62 FR 43780), the July 1, 2004 final rule (69 FR 40004), and 
the January 24, 2008 final rule (73 FR 4429-4430).
---------------------------------------------------------------------------

    EPA believes it is appropriate to require that a near-term year be 
analyzed when using the budget test after an attainment year has passed 
or when an area's attainment date has not been established because EPA 
believes doing so would better demonstrate that the CAA's requirements 
at 176(c) are met, and thus would better protect air quality.
    Today's proposal results from EPA's experience in implementing 
several different NAAQS over the years, including the 1997 ozone and 
PM2.5 NAAQS. While conformity applies one year after the 
effective date of nonattainment designations by statute, areas 
generally have three years to submit SIPs by statute. Once those SIP 
budgets are adequate or approved, areas have two years to determine 
conformity to those budgets (CAA 176(c)(2)(E) and 40 CFR 93.104(e)). In 
cases where the attainment date is within five or six years of the date 
of designations, this schedule can result in areas analyzing the 
attainment year and using the budgets specifically established for that 
year only once. In subsequent conformity determinations after the 
attainment year, there is no requirement to analyze a near term year.
    As NAAQS are established or revised, EPA believes this case will be 
repeated because many CAA attainment dates are within a few years of 
the date that areas are designated nonattainment. The CAA establishes 
attainment dates for various criteria pollutants, the attainment dates 
vary by pollutant and, in most cases, attainment dates also vary based 
on the severity of an area's air quality problem. For example, under 
Subpart 1 of the CAA, which covers nonattainment areas in general, 
areas must attain no later than five years from the effective date of 
their designation as nonattainment; \22\ for various other pollutants, 
attainment dates are often within five or six years

[[Page 49443]]

of the date of nonattainment designations.
---------------------------------------------------------------------------

    \22\ Subpart 1 of the Clean Air Act provides for an extension of 
up to an additional five years based on the severity of an area's 
air quality problem, and the availability and feasibility of 
controls.
---------------------------------------------------------------------------

    In contrast to areas with higher classifications where the 
attainment date is farther into the future, in areas with near-term 
attainment dates, the conformity rule's requirement to analyze the 
attainment year is in effect only briefly. Once the attainment year 
passes, under the existing regulation, the only years that areas have 
to analyze are the last year of the transportation plan (or timeframe 
of the conformity determination), and intermediate years such that 
analysis years are not more than ten years apart. Therefore, the first 
year analyzed could be as distant as ten years into the future.
    Today's proposed change would rectify that situation by ensuring 
that a near-term year would be analyzed in all cases. EPA believes this 
result better protects air quality by ensuring that air quality impacts 
of the transportation plan and TIP are examined during the whole period 
of time covered by the transportation plan or conformity determination, 
not just the later years. EPA believes that ensuring analysis of a 
near-term year meets the intent of the CAA, which requires that a 
transportation plan, TIP, and project not from a conforming 
transportation plan and TIP not cause a new violation, worsen an 
existing violation or delay timely attainment or achievement of any 
interim milestone. Under today's proposal, areas would be ensuring that 
state and local air quality goals are met over the entire timeframe of 
the transportation plan or conformity determination, even when the 
attainment date has passed.
    Today's proposal also ensures that areas designated for a secondary 
NAAQS analyze a near term year when using the budget test. As described 
in Section VI., EPA has proposed a secondary ozone NAAQS that, if 
finalized as proposed, would be distinct from the primary ozone NAAQS 
that was proposed. It is also possible that in the future EPA will 
propose to establish distinct secondary NAAQS for other transportation-
related pollutants.
    The CAA does not establish specific attainment dates for secondary 
NAAQS. Instead, CAA section 172(a)(2)(B) requires that areas designated 
nonattainment for a secondary NAAQS attain this NAAQS as expeditiously 
as practicable. This means that an area's attainment date may be 
established in its attainment demonstration. For conformity purposes, 
the attainment date would be established and therefore, analyzed in the 
budget test, once EPA finds the budgets adequate or approves the SIP. 
However, an area designated for a secondary NAAQS could be using the 
budget test even before those budgets are found adequate or approved if 
it has adequate or approved budgets for another NAAQS of the same 
pollutant. In this case, today's proposal would require that the area 
analyze a near-term year no more than five years in the future. Absent 
this requirement, the first analysis year for the secondary NAAQS in 
such an area could be as much as ten years in the future.
    Although this proposed requirement may add some analytical burden 
to some areas, EPA does not believe that it would be significant. This 
proposal would continue to ensure that the budget test, when required, 
would continue to analyze emissions near the attainment year when it 
has passed or a near-term year in cases where the attainment date has 
not been established.

VIII. How does this proposal affect conformity SIPs?

    Today's proposal would not affect existing conformity SIPs that 
were prepared in accordance with CAA requirements, as amended by 
SAFETEA-LU \23\ because today's proposal does not affect the three 
provisions that are required to be in a conformity SIP (40 CFR 93.105, 
93.122(a)(4)(ii), and 93.125(c)). A conformity SIP contains 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)).
---------------------------------------------------------------------------

    \23\ SAFETEA-LU stands for the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-
LU), enacted August 10, 2005.
---------------------------------------------------------------------------

    In general, Sec.  51.390 of the conformity rule specifies that 
after EPA approves any conformity SIP revisions, the conformity rule no 
longer governs conformity determinations (for the sections of the 
conformity rule that are covered by the approved conformity SIP).
    In addition, 40 CFR 51.390(c) 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 if a state's 
conformity SIP includes the provisions of such final amendments. 
However, EPA encourages states to revise their conformity SIP to 
include only the three required sections so that future changes to the 
conformity rule do not require further revisions to conformity SIPs. 
EPA will continue to work with states to approve such revisions as 
expeditiously as possible through flexible administrative techniques, 
such as parallel processing and direct final rulemaking.
    Finally, any state that has not previously been required to submit 
a conformity SIP to EPA must submit a conformity SIP within 12 months 
of an area's nonattainment designation (40 CFR 51.390(c)).
    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.

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735; October 4, 1993), this 
action is a ``significant regulatory action'' because it raises novel 
legal and policy issues. Accordingly, EPA submitted this action to the 
Office of Management and Budget (OMB) for review under EO 12866 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 proposed revisions in 
today's action are already covered by EPA information collection 
request (ICR) entitled, ``Transportation Conformity Determinations for 
Federally Funded and Approved Transportation Plans, Programs and 
Projects.'' The Office of Management and Budget (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

[[Page 49444]]

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 proposed 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 proposed 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 metropolitan planning 
organizations 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 Regulatory Flexibility Act. Therefore, this 
proposed rule will not impose any requirements on small entities. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    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 proposal 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 proposal 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 metropolitan planning organizations 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 proposed 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 Clean Air Act requires 
conformity to apply in certain nonattainment and maintenance areas as a 
matter of law, and this proposed action merely proposes to establish 
and revise procedures for transportation planning entities in subject 
areas to follow in meeting their existing statutory obligations. Thus, 
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communication between EPA and state and local 
governments, EPA specifically solicits comment on this proposed rule 
from state and local officials.

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 Clean Air 
Act requires transportation conformity to apply in any area that is 
designated nonattainment or maintenance by EPA. Because today's 
proposed amendments to the conformity rule do not significantly or 
uniquely affect the communities of Indian tribal governments, Executive 
Order 13175 does not apply to this action.

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

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997,) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because 
the Agency does not have reason to 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. Further, this rule is not likely to 
have any adverse energy effects because it does not raise novel legal 
or policy issues adversely affecting the supply, distribution or use of 
energy arising out of legal mandates, the President's priorities, or 
the principles set forth in Executive Orders 12866 and 13211.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 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 proposal does not involve technical standards. Therefore, EPA 
is not considering the use of any voluntary consensus standards.

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

    Executive Order (EO) 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

[[Page 49445]]

environmental effects of their programs, policies, and activities on 
minority populations and low-income populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population.

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: August 6, 2010.
Lisa P. Jackson,
Administrator.

    For the reasons discussed in the preamble, the Environmental 
Protection Agency proposes to amend 40 CFR part 93 as follows:

PART 93--[AMENDED]

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

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

    2. Section 93.101 is amended by removing paragraphs (1) through (6) 
of the definition for ``National ambient air quality standards 
(NAAQS)'' and by revising the definition for ``Clean data'' to read as 
follows:


Sec.  93.101  Definitions.

* * * * *
    Clean data means air quality monitoring data determined by EPA to 
meet the applicable requirements of 40 CFR parts 50 and 58 and to 
indicate attainment of a national ambient air quality standard.
* * * * *


Sec.  93.105  [Amended]

    3. Section 93.105(c)(1)(vi) is amended by removing the citation 
``Sec.  93.109(n)(2)(iii)'' and adding in its place the citation 
``Sec.  93.109(g)(2)(iii)''.
    4. Section 93.109 is amended as follows:
    a. By revising paragraphs (b) introductory text, (c), and (d);
    b. By removing paragraphs (e) through (k), and redesignating 
paragraphs (l), (m), and (n) as paragraphs (e), (f), and (g);
    c. In newly redesignated paragraph (g)(2),
    i. In paragraph (g)(2) introductory text, by removing the citation 
``paragraphs (c) through (m)'' and adding in its place ``paragraph 
(c)'';
    ii. In paragraph (g)(2)(iii), by removing the citation ``paragraph 
(n)(2)(ii)'' and adding in its place ``paragraph (g)(2)(ii)'';
    iii. In paragraph (g)(2)(iii), by removing the citation ``paragraph 
(n)(2)(ii)(C)'' and adding in its place ``paragraph (g)(2)(ii)(C)''.


Sec.  93.109  Criteria and procedures for determining conformity of 
transportation plans, programs, and projects: General.

* * * * *
    (b) Table 1 in this paragraph indicates the criteria and procedures 
in Sec. Sec.  93.110 through 93.119 which apply for transportation 
plans, TIPs, and FHWA/FTA projects. Paragraph (c) of this section 
explains when the budget and interim emissions tests are required for 
each pollutant and NAAQS. Paragraph (d) of this section explains when a 
hot-spot test is required. Paragraph (e) of this section addresses 
conformity requirements for areas with approved or adequate limited 
maintenance plans. Paragraph (f) of this section addresses 
nonattainment and maintenance areas which EPA has determined have 
insignificant motor vehicle emissions. Paragraph (g) of this section 
addresses isolated rural nonattainment and maintenance areas. Table 1 
follows:
* * * * *
    (c) Regional conformity test requirements for all nonattainment and 
maintenance areas. This provision applies one year after the effective 
date of EPA's nonattainment designation for a NAAQS in accordance with 
Sec.  93.102(d) and until the effective date of revocation of such 
NAAQS for an area. In addition to the criteria listed in Table 1 in 
paragraph (b) of this section that are required to be satisfied at all 
times, in such nonattainment and maintenance areas conformity 
determinations must include a demonstration that the budget and/or 
interim emissions tests are satisfied as described in the following:
    (1) In all nonattainment and maintenance areas for a NAAQS, the 
budget test must be satisfied as required by Sec.  93.118 for 
conformity determinations for such NAAQS made on or after:
    (i) The effective date of EPA's finding that a motor vehicle 
emissions budget in a submitted control strategy implementation plan 
revision or maintenance plan for such NAAQS is adequate for 
transportation conformity purposes;
    (ii) The publication date of EPA's approval of such a budget in the 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the 
Federal Register, if such approval is completed through direct final 
rulemaking.
    (2) Prior to paragraph (c)(1) of this section applying for a NAAQS, 
in a nonattainment area that has approved or adequate motor vehicle 
emissions budgets in an applicable implementation plan or 
implementation plan submission for another NAAQS of the same pollutant, 
the following tests must be satisfied:
    (i) If the nonattainment area covers the same geographic area as 
another NAAQS of the same pollutant, the budget test as required by 
Sec.  93.118 using the approved or adequate motor vehicle emissions 
budgets for that other NAAQS;
    (ii) If the nonattainment area covers a smaller geographic area 
within an area for another NAAQS of the same pollutant, the budget test 
as required by Sec.  93.118 for either:
    (A) The nonattainment area, using corresponding portion(s) of the 
approved or adequate motor vehicle emissions budgets for that other 
NAAQS, where such portion(s) can reasonably be identified through the 
interagency consultation process required by Sec.  93.105; or
    (B) The area designated nonattainment for that other NAAQS, using 
the approved or adequate motor vehicle emissions budgets for that other 
NAAQS. If additional emissions reductions are necessary to meet the 
budget test for the nonattainment area for a NAAQS in such cases, these 
emissions reductions must come from within such nonattainment area;
    (iii) If the nonattainment area covers a larger geographic area and 
encompasses an entire area for another NAAQS of the same pollutant, 
then either (A) or (B) must be met:
    (A)(1) The budget test as required by Sec.  93.118 for the portion 
of the nonattainment area covered by the approved or adequate motor 
vehicle emissions budgets for that other NAAQS; and
    (2) the interim emissions tests as required by Sec.  93.119 for one 
of the following areas: The portion of the nonattainment area not 
covered by the approved or adequate budgets for that other NAAQS; the 
entire nonattainment area; or the entire portion of the nonattainment 
area within an individual state, in the case where separate adequate or 
approved motor

[[Page 49446]]

vehicle emissions budgets for that other NAAQS are established for each 
state of a multi-state nonattainment or maintenance area.
    (B) The budget test as required by Sec.  93.118 for the entire 
nonattainment area using the approved or adequate motor vehicle 
emissions budgets for that other NAAQS.
    (iv) If the nonattainment area partially covers an area for another 
NAAQS of the same pollutant:
    (A) The budget test as required by Sec.  93.118 for the portion of 
the nonattainment area covered by the corresponding portion of the 
approved or adequate motor vehicle emissions budgets for that other 
NAAQS, where they can be reasonably identified through the interagency 
consultation process required by Sec.  93.105; and
    (B) The interim emissions tests as required by Sec.  93.119, when 
applicable, for either: The portion of the nonattainment area not 
covered by the approved or adequate budgets for that other NAAQS; the 
entire nonattainment area; or the entire portion of the nonattainment 
area within an individual state, in the case where separate adequate or 
approved motor vehicle emissions budgets for that other NAAQS are 
established for each state of a multi-state nonattainment or 
maintenance area.
    (3) In a nonattainment area, the interim emissions tests required 
by Sec.  93.119 must be satisfied for a NAAQS if neither paragraph 
(c)(1) nor paragraph (c)(2) of this section applies for such NAAQS.
    (4) An ozone nonattainment area must satisfy the interim emissions 
test for NOX, as required by Sec.  93.119, if the 
implementation plan or plan submission that is applicable for the 
purposes of conformity determinations is a 15% plan or other control 
strategy SIP that does not include a motor vehicle emissions budget for 
NOX. The implementation plan for an ozone NAAQS will be 
considered to establish a motor vehicle emissions budget for 
NOX if the implementation plan or plan submission contains 
an explicit NOX motor vehicle emissions budget that is 
intended to act as a ceiling on future NOX emissions, and 
the NOX motor vehicle emissions budget is a net reduction 
from NOX emissions levels in the SIP's baseline year.
    (5) Notwithstanding paragraphs (c)(1), (c)(2), and (c)(3) of this 
section, nonattainment areas with clean data for a NAAQS that have not 
submitted a maintenance plan and that EPA has determined are not 
subject to the Clean Air Act reasonable further progress and attainment 
demonstration requirements for that NAAQS must satisfy one of the 
following requirements:
    (i) The budget test and/or interim emissions tests as required by 
Sec. Sec.  93.118 and 93.119 as described in paragraphs (c)(2) and 
(c)(3) of this section;
    (ii) The budget test as required by Sec.  93.118, using the 
adequate or approved motor vehicle emissions budgets in the submitted 
or applicable control strategy implementation plan for the NAAQS for 
which the area is designated nonattainment (subject to the timing 
requirements of paragraph (c)(1) of this section); or
    (iii) The budget test as required by Sec.  93.118, using the motor 
vehicle emissions in the most recent year of attainment as motor 
vehicle emissions budgets, if the state or local air quality agency 
requests that the motor vehicle emissions in the most recent year of 
attainment be used as budgets, and EPA approves the request in 
conjunction with the rulemaking that determines that the area has 
attained the NAAQS for which the area is designated nonattainment.
    (6) For the PM10 NAAQS only, the interim emissions tests 
must be satisfied as required by Sec.  93.119 for conformity 
determinations made if the submitted implementation plan revision for a 
PM10 nonattainment area is a demonstration of 
impracticability under CAA section 189(a)(1)(B)(ii) and does not 
demonstrate attainment.
    (d) Hot-spot conformity test requirements for CO, PM2.5, and PM10 
nonattainment and maintenance areas. This provision applies in 
accordance with Sec.  93.102(d) for a NAAQS and until the effective 
date of any revocation of such NAAQS for an area. In addition to the 
criteria listed in Table 1 in paragraph (b) of this section that are 
required to be satisfied at all times, project-level conformity 
determinations in CO, PM10, and PM2.5 
nonattainment and maintenance areas must include a demonstration that 
the hot-spot tests for the applicable NAAQS are satisfied as described 
in the following:
    (1) FHWA/FTA projects in CO nonattainment or maintenance areas must 
satisfy the hot-spot test required by Sec.  93.116(a) at all times. 
Until a CO attainment demonstration or maintenance plan is approved by 
EPA, FHWA/FTA projects must also satisfy the hot-spot test required by 
Sec.  93.116(b).
    (2) FHWA/FTA projects in PM10 nonattainment or 
maintenance areas must satisfy the appropriate hot-spot test as 
required to by Sec.  93.116(a).
    (3) FHWA/FTA projects in PM2.5 nonattainment or 
maintenance areas must satisfy the appropriate hot-spot test required 
by Sec.  93.116(a).
* * * * *


Sec.  93.116  [Amended]

    5. Section 93.116(b) is amended by removing the citation ``Sec.  
93.109(f)(1)'' and adding in its place the citation ``Sec.  
93.109(d)(1)''.
    6. Section 93.118 is amended:
    a. In paragraph (a), by removing the citation ``Sec.  93.109(c) 
through (n)'' and adding in its place the citation ``Sec.  93.109(c) 
through (g)'';
    b. By revising paragraph (b) introductory text;
    c. In paragraph (d)(2), by adding a new sentence after the first 
sentence to read as follows:


Sec.  93.118  Criteria and procedures: Motor vehicle emissions budget.

* * * * *
    (b) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated for each year for which the applicable (and/or submitted) 
implementation plan specifically establishes a motor vehicle emissions 
budget(s), and for each year for which a regional emissions analysis is 
performed to fulfill the requirements in paragraph (d) of this section, 
as follows:
* * * * *
    (d) * * *
    (2) * * * If the attainment year is no longer in the timeframe of 
the transportation plan and conformity determination, or if the 
attainment date has not yet been established, the first analysis year 
must be no more than five years beyond the year in which the conformity 
determination is being made. * * *
* * * * *
    7. Section 93.119 is amended as follows:
    a. In paragraph (a), by removing the citation ``Sec.  93.109(c) 
through (n)'' and adding in its place the citation ``Sec.  93.109(c) 
through (g)'';
    b. In paragraph (b) introductory text, by removing ``1-hour ozone 
and 8-hour'';
    c. By revising paragraphs (b)(1)(ii) and (b)(2)(ii);
    d. By revising paragraphs (c)(1)(ii) and (c)(2)(ii);
    e. In paragraph (d),
    i. By revising the heading of paragraph (d) to read 
``PM2.5, PM10, and NO2 areas.'';
    ii. In paragraph (d) introductory text, by removing 
``PM10 and NO2'' and adding in its place 
``PM2.5, PM10, and NO2'';
    iii. By revising paragraph (d)(2); and
    g. By revising paragraph (e).

[[Page 49447]]

Sec.  93.119  Criteria and procedures: Interim emissions in areas 
without motor vehicle emissions budgets.

    (b) * * *
    (1) * * *
    (ii) The emissions predicted in the ``Action'' scenario are lower 
than emissions in the baseline year for that NAAQS as described in 
paragraph (e) of this section by any nonzero amount.
    (2) * * *
    (ii) The emissions predicted in the ``Action'' scenario are not 
greater than emissions in the baseline year for that NAAQS as described 
in paragraph (e) of this section.
    (c) * * *
    (1) * * *
    (ii) The emissions predicted in the ``Action'' scenario are lower 
than emissions in the baseline year for that NAAQS as described in 
paragraph (e) of this section by any nonzero amount.
    (2) * * *
    (ii) The emissions predicted in the ``Action'' scenario are not 
greater than emissions in the baseline year for that NAAQS as described 
in paragraph (e) of this section.
    (d) * * *
    (2) The emissions predicted in the ``Action'' scenario are not 
greater than emissions in the baseline year for that NAAQS as described 
in paragraph (e) of this section.
    (e) Baseline year for various NAAQS. The baseline year is defined 
as follows:
    (1) 1990, in areas designated nonattainment for the 1990 CO NAAQS 
or the 1990 NO2 NAAQS.
    (2) 1990, in areas designated nonattainment for the 1990 
PM10 NAAQS, unless the conformity implementation plan 
revision required by Sec.  51.390 of this chapter defines the baseline 
emissions for a PM10 area to be those occurring in a 
different calendar year for which a baseline emissions inventory was 
developed for the purpose of developing a control strategy 
implementation plan.
    (3) 2002, in areas designated nonattainment for the 1997 ozone 
NAAQS or 1997 PM2.5 NAAQS.
    (4) The most recent year for which EPA's Air Emission Reporting 
Rule (40 CFR part 51, subpart A) requires submission of on-road mobile 
source emissions inventories as of the effective date of designations, 
in areas designated nonattainment for a NAAQS that is promulgated after 
1997.
* * * * *


Sec.  93.121  [Amended]

    8. Section 93.121 is amended:
    a. In paragraph (b) introductory text, by removing the citation 
``Sec.  93.109(n)'' and adding in its place the citation ``Sec.  
93.109(g)''.
    b. In paragraph (c) introductory text, by removing the citation 
``Sec.  93.109(l) or (m)'' and adding in its place the citation ``Sec.  
93.109(e) or (f)''.

[FR Doc. 2010-19928 Filed 8-12-10; 8:45 am]
BILLING CODE 6560-50-P