[Federal Register Volume 77, Number 38 (Monday, February 27, 2012)]
[Rules and Regulations]
[Pages 11394-11401]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4484]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[EPA-HQ-OAR-2011-0393; FRL-9636-5]
RIN 2060-AR03
Transportation Conformity Rule: MOVES Regional Grace Period
Extension
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to extend the grace period before
the MOtor Vehicle Emission Simulator (MOVES) model is required for
regional emissions analyses for transportation conformity
determinations (``regional conformity analyses''). This final rule
provides an additional year to the previously established two-year
conformity grace period. As a result, EPA is announcing in this Federal
Register that MOVES must be used for new regional conformity analyses
that begin after March 2, 2013. This action does not affect EPA's
previous approval of the use of MOVES in state air quality
implementation plan (SIP) submissions or the existing grace period
before MOVES is required for carbon monoxide and particulate matter
hot-spot analyses for project-level conformity determinations (75 FR
79370).
DATES: This rule is effective on February 27, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2011-0393. All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information may not be publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in www.regulations.gov or in hard copy at the Air and
Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave.
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744 and the
telephone number for the Air and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Meg Patulski, State Measures and
Transportation Planning Center, Transportation and Climate Division,
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105; telephone number: (734) 214-4842; fax number: (734) 214-4052;
email address: patulski.meg@epa.gov; or Astrid Larsen, State Measures
and Transportation Planning Center, Transportation and Climate
Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann
Arbor, MI 48105; telephone number: (734) 214-4812; fax number: (734)
214-4052; email address: larsen.astrid@epa.gov.
SUPPLEMENTARY INFORMATION:
The content of this preamble is listed in the following outline:
I. General Information
II. Background
III. Extension of MOVES Regional Conformity Grace Period
IV. Conformity SIPs
V. Statutory and Executive Order Reviews
Availability of MOVES and Support Materials
Copies of the official version of the MOVES motor vehicle emissions
model, along with user guides and supporting documentation, are
available on EPA's MOVES Web site: www.epa.gov/otaq/models/moves/index.htm.
Guidance on how to apply MOVES for SIPs and transportation
conformity purposes can be found on the EPA's transportation conformity
Web site at: www.epa.gov/otaq/stateresources/transconf/policy.htm.
I. General Information
A. Does this action apply to me?
Entities potentially regulated by the transportation conformity
rule are those that adopt, approve, or fund transportation plans,
transportation improvement programs (TIPs), or projects under title 23
U.S.C. or title 49 U.S.C. chapter 53. Regulated categories and entities
affected by today's action include:
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Category Examples of regulated entities
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Local government............. Local transportation and air quality
agencies, including metropolitan
planning organizations (MPOs).
State government............. State transportation and air quality
agencies.
Federal government........... Department of Transportation (Federal
Highway Administration (FHWA) and
Federal Transit Administration (FTA)).
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
final rule. This table lists the types of entities of which EPA is
aware that potentially could be regulated by the transportation
conformity rule. Other types of entities not listed in the table could
also be regulated. To determine whether your organization is regulated
by this action, you should carefully examine the applicability
requirements in 40 CFR 93.102. If you have questions regarding the
applicability of this final rule to a particular entity, consult the
persons listed in the preceding FOR FURTHER INFORMATION CONTACT
section.
B. How do I get copies of this final rule and other documents?
1. Docket
EPA has established an official public docket for this action under
Docket ID No. EPA-HQ-OAR-2011-0393. You can get a paper copy of this
Federal Register document, as well as the documents specifically
referenced in this action, any public comments received, and other
information related to this action at the official public docket. See
the ADDRESSES section for its location.
2. Electronic Access
You may access this Federal Register document electronically
through EPA's transportation conformity Web site at: www.epa.gov/otaq/stateresources/transconf/conf-regs.htm. You may also access this
document electronically under the Federal Register listings at:
www.epa.gov/fedrgstr/.
An electronic version of the official public docket is available
through www.regulations.gov. You may use www.regulations.gov to view
public comments, access the index listing of the contents of the
official public docket, and to access those documents in the public
docket that are available
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electronically. Once in the system, select ``search,'' then key in the
appropriate docket identification number.
Certain types of information will not be placed in the electronic
public docket. Information claimed as CBI and other information for
which disclosure is restricted by statute is not available for public
viewing in the electronic public docket. EPA's policy is that
copyrighted material will not be placed in the electronic public docket
but will be available only in printed, paper form in the official
public docket.
To the extent feasible, publicly available docket materials will be
made available in the electronic public docket. When a document is
selected from the index list in EPA Dockets, the system will identify
whether the document is available for viewing in the electronic public
docket. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified in the
ADDRESSES section. EPA intends to provide electronic access in the
future to all of the publicly available docket materials through the
electronic public docket.
For additional information about the electronic public docket,
visit the EPA Docket Center homepage at: www.epa.gov/epahome/dockets.htm.
C. What is the effective date?
The final rule amendments are effective on February 27, 2012.
Section 553(d) of the Administrative Procedures Act, 5 U.S.C. Chapter
5, generally provides that rules may not take effect earlier than 30
days after they are published in the Federal Register. However, section
5 U.S.C. 553(d)(1) allows an effective date less than 30 days after
publication for a rule that ``grants or recognizes an exemption or
relieves a restriction.'' Since this rule provides additional time
before the requirement to use MOVES applies, it is effectively granting
an exemption or relieving the restriction that would require state and
local governments to use MOVES2010 and minor revisions for regional
conformity analyses earlier than March 2, 2013.
II. Background
A. What is transportation conformity?
Transportation conformity is required under Clean Air Act (CAA)
section 176(c) (42 U.S.C. 7506(c)) to ensure that transportation plans,
TIPs, and federally supported highway and transit projects are
consistent with the purpose of the SIP. Conformity to the purpose of
the SIP means that transportation activities will not cause or
contribute to new air quality violations, worsen existing violations,
or delay timely attainment of the relevant national ambient air quality
standard (NAAQS) or required interim milestones.
Transportation conformity (hereafter, ``conformity'') applies to
areas that are designated nonattainment, and those areas redesignated
to attainment after 1990 (``maintenance areas'') for transportation-
related criteria pollutants: ozone, particulate matter
(PM2.5 and PM10),\1\ carbon monoxide (CO), and
nitrogen dioxide (NO2). EPA's conformity rule (40 CFR Parts
51 and 93) establishes the criteria and procedures for determining
whether transportation activities conform to the SIP. EPA first
promulgated the conformity rule on November 24, 1993 (58 FR 62188) and
subsequently published several amendments to the rule. The Department
of Transportation (DOT) is EPA's federal partner in implementing the
conformity regulation.
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\1\ 40 CFR 93.102(b)(1) defines PM2.5 and
PM10 as particles with an aerodynamic diameter less than
or equal to a nominal 2.5 and 10 micrometers, respectively.
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B. What is MOVES, and how has it been implemented to date?
MOVES is EPA's state-of-the-art model for estimating emissions from
highway vehicles, based on analyses of millions of emission test
results and considerable advances in the Agency's understanding of
vehicle emissions. MOVES is EPA's latest motor vehicle emissions model
for state and local agencies to estimate volatile organic compounds
(VOCs), nitrogen oxides (NOX), PM, CO, and other precursors
from cars, trucks, buses, and motorcycles for SIP purposes and
conformity determinations outside of California. The database-centered
design of MOVES allows EPA to update emissions data more frequently and
allows users much greater flexibility in organizing input and output
data than EPA's prior emissions model. MOVES improves the quality of
results and overall functionality, as compared to the previous
emissions model, MOBILE6.2.\2\
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\2\ EPA announced the release of MOBILE6.2 in 2004 (69 FR
28830).
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EPA announced the release of MOVES2010 in the Federal Register on
March 2, 2010 (75 FR 9411), and also announced a two-year grace period
before MOVES2010 was required for regional conformity analyses. EPA
subsequently released MOVES2010a on September 8, 2010, and MOVES2010a
is considered a minor revision that enhances model performance and does
not significantly affect the criteria pollutant emissions results from
MOVES2010. Therefore, MOVES2010a is not considered a ``new model''
under section 93.111 of the conformity rule.\3\ As a result, the
MOVES2010 grace period for regional conformity analyses has also
applied to the use of MOVES2010a.\4\ EPA notes that references to
``MOVES'' in this notice relate to the approved versions of MOVES2010
and subsequent minor revisions (e.g., MOVES2010a). However, in some
cases, EPA has specifically referred to MOVES2010 and MOVES2010a for
clarification.
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\3\ See Section III. for further background on the use of latest
emissions models and grace periods for conformity purposes.
\4\ See EPA's MOVES2010a Questions and Answers at: www.epa.gov/otaq/models/moves/MOVES2010a/420f10050.pdf.
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MOVES incorporates the latest emissions data, more sophisticated
calculation algorithms, increased user flexibility, new software
design, and significant new capabilities. While these changes improve
the quality of on-road mobile source inventories, the overall degree of
change in the model's function also adds to the start-up time required
for state and local agencies to transition from MOBILE6.2 to MOVES.
C. Why are we issuing this final rule?
Today's action provides additional time for nonattainment and
maintenance areas to learn and apply MOVES for regional conformity
analyses.\5\ On October 13, 2011 (76 FR 63575), EPA proposed to extend
the two-year grace period to provide an additional year for state and
local agencies to transition to using MOVES for regional conformity
analyses.\6\ As stated in the proposal, EPA was contacted by several
state and local transportation and air quality agencies and
associations that requested additional transition time for using MOVES
in regional conformity analyses, due to the significant software,
operational and technical differences between MOVES and MOBILE. These
agencies were concerned about having sufficient time to build technical
capacity for using MOVES as well as completing such analyses and making
[[Page 11396]]
any necessary SIP and/or transportation plan/TIP changes to assure
conformity in the future.
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\5\ MPOs in nonattainment and maintenance areas conduct regional
conformity analyses to demonstrate that transportation plans and
TIPs are consistent with the air quality purposes of the SIP.
Regional conformity analyses are also conducted in isolated rural
areas (defined by 40 CFR 93.101).
\6\ A direct final rule was also published on October 13, 2011
(76 FR 63554) in parallel with the proposal. However, EPA received
an adverse comment within the 30-day public comment period, and
subsequently withdrew the direct final rule on December 5, 2011 (76
FR 75797).
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During the comment period, EPA received one comment letter that was
relevant to the October 2011 proposal.\7\ EPA is finalizing the
regional conformity grace period extension as proposed, and is not
making any changes after consideration of comments. This final rule is
critical to helping state and local agencies during this unique
transition. See Section III. for additional discussion.
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\7\ A second comment was submitted that raised issues not
germane to this rulemaking.
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Finally, EPA notes that today's action does not affect our previous
approvals for using MOVES for official SIP submissions developed
outside of California.\8\ Today's rulemaking also does not affect the
existing grace period before MOVES is required for PM2.5,
PM10, and CO hot-spot analyses for project-level conformity
determinations (75 FR 79370). For further information regarding EPA's
previous model approvals and conformity policy guidance/implementation,
see EPA's transportation conformity Web site at www.epa.gov/otaq/stateresources/transconf/policy.htm. EPA coordinated closely with DOT
in developing today's action, and DOT concurs on this final rule.
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\8\ MOVES is not approved for use in California. EPA approved
and announced the latest version of California's EMFAC model
(EMFAC2007) for SIP development and regional conformity analyses in
that state on January 18, 2008 (73 FR 3464).
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III. Extension of MOVES Regional Conformity Grace Period
A. Background
CAA section 176(c)(1) states that ``* * * [t]he determination of
conformity shall be based on the most recent estimates of emissions,
and such estimates shall be determined from the most recent population,
employment, travel, and congestion estimates * * *'' To meet this
requirement, section 93.111(a) of the conformity rule requires that
conformity determinations be based on the latest motor vehicle
emissions model approved by EPA. When EPA approves a new emissions
model, EPA consults with DOT to establish a grace period before the
model is required for conformity analyses (40 CFR 93.111(b)). EPA must
consider the following factors when establishing a grace period for
conformity determinations (40 CFR 93.111(b)(2)):
``The length of the grace period will depend on the degree of
change in the model and the scope of re-planning likely to be necessary
by MPOs in order to assure conformity.''
The conformity rule provides for a grace period for new emissions
models of between three and 24 months (40 CFR 93.111(b)(1)).
In the preamble to the original 1993 conformity rule, EPA
articulated its intentions for establishing the length of a conformity
grace period for a new emissions model (58 FR 62211):
EPA and DOT will consider extending the grace period if the
effects of the new emissions model are so significant that previous
SIP demonstrations of what emission levels are consistent with
attainment would be substantially affected. In such cases, states
should have an opportunity to revise their SIPs before MPOs must use
the model's new emissions factors. EPA encourages all agencies to
inform EPA of the impacts of new emissions models in their area, and
EPA may pause to seek such input before determining the length of
the grace period.
The provisions in section 93.111, including the use of the latest
emissions model and the establishment of a new model grace period, have
not changed since 1993, and have been implemented successfully for many
previous model transitions.
B. Description of Final Rule
In today's action, EPA is providing an additional year to the
maximum time period permitted under the pre-existing regulations before
MOVES is required for regional conformity analyses. As a result, EPA is
also announcing in today's Federal Register that MOVES will be required
for new regional conformity analyses that begin after March 2, 2013.
The previously established two-year conformity grace period would have
ended on March 2, 2012 (75 FR 9411).
Under today's action, state and local agencies outside California
can use MOVES for regional conformity analyses that begin before or on
March 2, 2013. However, MOVES will be required prior to the end of the
extended grace period for any new regional conformity analyses once an
area has MOVES-based SIP motor vehicle emissions budgets (``budgets'')
that have been found adequate or approved for conformity purposes.
Today's action adds a new paragraph (b)(3) to section 93.111 of the
conformity rule, which applies to the transition from MOBILE to MOVES
only. EPA notes that the regulatory text in today's final rule is
clarified from what was proposed,\9\ since the grace period applies to
MOVES2010 and minor revisions to MOVES2010. A minor revision, such as
MOVES2010a, is a version that would not significantly affect the
criteria pollutant emissions results from MOVES2010. Minor revisions
will not start a new grace period for regional conformity analyses and
could include performance enhancements that reduce MOVES run time or
other model improvements. EPA would evaluate any future major model
update as a ``new model'' under the conformity rule's previously
established requirements in section 93.111(b)(1) and (2), including any
new conformity grace period as warranted. EPA will note at the time of
a future model release whether an approved model version is a minor
revision to MOVES2010 or is to be considered a ``new model'' under the
rule.
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\9\ The proposed text did not explicitly refer to MOVES2010, but
instead referred to ``the MOVES2010a emissions model (and minor
model revisions)'').
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Between now and the end of the extended conformity grace period
(March 2, 2013), areas should use the interagency consultation process
to examine how MOVES results will impact their future metropolitan
transportation plan/TIP conformity determinations. Isolated rural areas
should also consider the impact of MOVES on future regional conformity
analyses. Agencies should carefully consider whether the SIP and its
budgets should be revised with MOVES or if transportation plans and
TIPs should be revised before the end of the conformity grace period,
since doing so may be necessary to ensure conformity in the future.
In general, regional conformity analyses that are started during
the grace period can use either MOBILE6.2 or MOVES. When the grace
period ends on March 2, 2013, MOVES must be used for new regional
conformity analyses outside California. This means that all new
regional conformity analyses started after March 2, 2013 must be based
on MOVES, even if the SIP is based on MOBILE6.2 or earlier versions of
MOBILE.
EPA encourages state and local agencies to use the latest version
of the MOVES model available at the time that regional emissions
modeling begins, since the model framework enhancements included in
such versions will optimize model performance. If you have questions
about which model should be used in your conformity determination, you
can consult with your EPA Regional Office. For complete explanations of
how MOVES is to be implemented for transportation conformity, including
details about using MOVES during the
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grace period, refer to EPA's latest MOVES policy guidance.\10\
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\10\ See www.epa.gov/otaq/stateresources/transconf/policy.htm.
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C. Rationale and Response to Comments
Today's final rule is consistent with CAA requirements and critical
to supporting state and local agencies in this unique transition. EPA
continues to believe its MOVES model is the best tool for estimating
criteria pollutant emissions, and it is a significant improvement over
previous MOBILE models. EPA recognizes that state and local agencies
have made significant progress to date in using MOVES, and we will
continue to support these efforts. However, as discussed in the October
2011 proposal and further below, challenges related to the transition
from MOBILE to MOVES have been much greater than past transitions
between MOBILE model versions. Today's action ensures that state and
local governments have the necessary time to implement the CAA
conformity requirements as originally intended.
Since 1993, the fundamental purpose of section 93.111(b) of the
conformity rule has been to provide a sufficient amount of time for
MPOs and other state and local agencies to learn and employ new
emissions models. As discussed in the October 2011 proposal and further
below, the transition to a new emissions model for conformity involves
more than learning to use the new model and preparing input data and
model output. After model start-up is complete, state and local
agencies also need to consider how the model affects regional
conformity analysis results and whether SIP and/or transportation plan/
TIP changes are necessary to assure future conformity determinations.
EPA believes that the final rule's one-time extension of the regional
grace period for MOVES2010 and subsequent minor revisions is consistent
with section 93.111(b)(2) and the CAA.
EPA received one comment letter that was relevant to the October
2011 proposal. EPA has summarized this comment letter with our
responses in the remainder of this section.
The commenter believed the proposal was arbitrary and capricious
and inconsistent with CAA section 176(c)(1) because it did not require
areas to use the latest emissions factors when making conformity
determinations. The commenter believed that Congress intended regional
conformity analyses for transportation plans and TIPs to be based on
EPA's latest motor vehicle emissions factors.\11\
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\11\ Although the commenter referred to ``legislative history''
in making this comment, no documentation or citations to specific
legislative history were submitted with the comment.
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EPA has not made changes in response to these comments, which raise
issues for conformity rule provisions that were finalized in 1993 (58
FR 62211) and which EPA did not propose to revise in this action.
Specifically, in 1993, EPA established the existing rule provisions
that a conformity grace period of between 3 and 24 months could be
established for new model releases (40 CFR 93.111(b)(1)), as well as
the factors that EPA uses when determining the length of a grace period
(40 CFR 93.111(b)(2)). As a result, EPA has used its existing
discretion many times since 1993 to approve new emissions models and
establish grace periods consistent with these requirements.
In the proposal for today's final rule, EPA did not propose to
reopen the question of whether the Agency has the discretion to
establish a grace period before which the use of a new emissions model
is required for conformity purposes, nor did the proposed rule address
the factors to be considered in establishing an appropriate grace
period. EPA's statutory authority to establish a grace period is not at
issue in this rulemaking.\12\ Rather, the only issue addressed in the
proposed rule was the appropriate length of the grace period for
MOVES--specifically, whether allowing an additional year for the MOVES
regional conformity grace period is reasonable. EPA believes that it
is, based on the degree of model change and the scope of re-planning
necessary as further described in this section.
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\12\ EPA notes that on May 26, 1994 the commenter filed a
Petition for Reconsideration of the November 1993 conformity rule
(58 FR 62188), but did not raise issues related to section 93.111(b)
in that petition.
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The commenter believed that MOVES is based on the latest emissions
factors, and MOBILE6.2 is not appropriate for estimating emissions. EPA
agrees that the MOVES model is the best tool for estimating motor
vehicle emissions and is based on the latest science. When EPA approves
any new emissions model, the Agency is stating that it is an
improvement over the existing model. Therefore, it will always be the
case that new models that are approved are better than previous models.
However, the issue raised in EPA's proposed rule was not the validity
of using MOVES instead of MOBILE6.2, but whether state and local
agencies have sufficient time to transition to using MOVES for future
regional conformity analyses. The one-year extension provided by the
final rule is reasonable and consistent with the existing rule's
requirements for establishing grace periods for new emissions models.
The commenter also believed that the October 2011 proposal was
inconsistent with the law because it exceeded the maximum two-year
grace period length in section 93.111(b)(1) of the conformity rule.
While it is true that the one-year grace period extension is longer
than the two-year grace period in the existing conformity rule for
other emissions model transitions, this fact does not make the final
rule's extension inconsistent with the CAA. EPA believes that today's
final rule is reasonable and meets statutory requirements.
The commenter argued that ``[t]he need for agency staff to learn
how to apply MOVES provides no justification for the continued use of
[MOBILE6.2] * * *'' EPA disagrees that it is arbitrary for EPA to
consider this need. In fact, the pre-existing regulations require EPA
to consider start-up needs whenever a new grace period is established,
and EPA did not propose to revise these factors.
As stated above and in the October 2011 proposal, section
93.111(b)(2) of the conformity rule requires the length of the grace
period to be based on two factors. The first factor in this provision
is ``the degree of change in the model.'' EPA described extensively in
its proposal how this particular transition from MOBILE to MOVES
creates a unique learning curve for state and local agencies. The
following is a summary of the major model changes that were noted in
the proposal for this transition:
New model framework and software: Whereas MOBILE6.2 was
written in FORTRAN and used simple text files for data input and
output, MOVES is written in JAVA and uses a relational database
structure in MYSQL to handle input and output as data tables.\13\
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\13\ Some states have found it necessary to purchase new
computers with additional capacity and features for running MOVES.
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New model input and output structure: MOVES significantly
changes the basic input and output structure for emissions modeling, as
compared to previous emissions models that have been essentially
unchanged since the early 1980s. Before MOVES can be used by state and
local agencies, MOBILE-based input data will need to be converted for
use in MOVES. MPOs may
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also need to revise the way model output is post-processed.
EPA has created tools and provided technical assistance for the MOBILE
to MOVES transition, and EPA and DOT have provided hands-on MOVES
training in many states.\14\ EPA will continue to work with state and
local agencies throughout the regional conformity grace period
extension. See the October 2011 proposal for further details on the
differences between MOBILE and MOVES (76 FR 63577-78).
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\14\ To date, EPA and DOT staff have provided a 2-day hands-on
MOVES course for regional emissions inventories (including regional
conformity analyses) at over 25 locations around the country. In
addition, since January 2010, EPA has sent more than 2,500 responses
to requests for help with MOVES that have come into EPA's email box
for modeling questions (mobile@epa.gov).
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The other factor that EPA must consider under section 93.111(b)(2)
is the ``scope of re-planning likely to be necessary by MPOs in order
to assure conformity.'' As in any new model transition, state and local
agencies need to consider how results from using a new emissions model
will affect their ability to conform when the new model is required for
regional conformity analyses. When emissions are higher with a new
model compared to the previous model, the ``scope of re-planning'' can
entail revising a SIP strategy and budget that is based on the previous
model and/or revising a transportation plan/TIP.\15\ Updating a SIP
budget with MOVES, for example, involves preparing new data input and
output for MOVES, re-running the on-road mobile source inventory with
MOVES, ensuring this new inventory continues to support the SIP's
demonstration (and making any adjustments to other inventories as
needed), coordinating the SIP submission with other agencies, and
meeting other state and federal requirements for SIP submissions (e.g.,
providing public notice and comment). None of these steps can be taken
until state and local agencies learn how to run MOVES and obtain
results, as results inform whether a revision is even needed. Unlike
past model transitions, the start-up involved in building technical
capacity for MOVES appears to have postponed state and local ``re-
planning'' decisions on whether any updates to SIP budgets or
transportation plans/TIPs are needed. The final rule's additional year
directly provides the necessary time for considering the implications
as EPA originally intended.
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\15\ See the November 1993 conformity rule (58 FR 62211), the
March 2, 2010 FR notice for EPA's approval of MOVES2010 for regional
conformity analyses (75 FR 9411-9414), and EPA's latest MOVES policy
guidance (www.epa.gov/otaq/stateresources/transconf/policy.htm).
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EPA's decision to finalize this rulemaking is also supported by
stakeholder feedback that was received in implementing the MOVES
transition. Starting in September 2010, EPA was contacted by several
state and local transportation and air agencies that were concerned
that there was insufficient transition time before MOVES would be
required in regional conformity analyses. At the time, the conformity
grace period for MOVES would have expired on March 2, 2012. EPA
Regional Offices confirmed the status of the transition in their
nonattainment and maintenance areas. These general communications
occurred until March of 2011 and informed EPA's decision to proceed
with this rulemaking.\16\ Although EPA had provided MOVES training for
regional conformity analyses in most states, as of March of 2011 (one
year after the original conformity grace period had begun), due to the
major model changes mentioned earlier, EPA was concerned that most
nonattainment and maintenance areas needed more time to build technical
capacity for using MOVES as well as sufficient transition time for
using MOVES in regional conformity analyses. We believe that state and
local agencies are making a good faith effort to transition to MOVES in
a timely manner, but the start-up issues have taken longer than
originally anticipated.
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\16\ See EPA's September 14, 2011 memo entitled, ``Summary of
Stakeholder Contact Prior to MOVES Grace Period Extension
Rulemaking.'' EPA has added other documentation to the docket
regarding state and local progress during this MOVES transition.
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The commenter also believed the proposal would allow areas to delay
additional reductions, in areas where emissions with MOVES would be
higher than with MOBILE. The commenter stated that EPA did not candidly
disclose which areas could use the proposed grace period extension and
how the rule could adversely affect public health.
The commenter mischaracterizes the regulatory purpose of the
emissions model grace period provisions as well as EPA's reasons for
establishing a longer grace period for this model transition. As
described above, since 1993, EPA has clearly stated that the conformity
grace period for a new emissions model is to be based on the two
factors provided in 40 CFR 93.111(b)(2), and which are not at issue in
this rulemaking.
As described above, it has taken longer than anticipated for MPOs
to complete emissions analyses with MOVES, and to ascertain the
implications of using MOVES on future conformity determinations. In
other words, it has taken longer for MPOs to know how MOVES would
affect future regional conformity analyses, because they are building
technical capacity and addressing other start-up issues. Potential
changes in emissions estimates are unrelated to the issue in this
rulemaking, i.e., the appropriate length of the grace period for use of
MOVES in regional conformity analyses.
In addition, the grace period extension applies equally to all
nonattainment and maintenance areas. EPA did not need to ``disclose''
which areas could use the additional year because every nonattainment
and maintenance area can use the additional year. Every area has the
discretion of using either MOBILE6.2 or MOVES for transportation
conformity during this additional year, unless the area's SIP is
updated with MOVES first. In those cases, as described above, MOVES
must be used in transportation plan and TIP conformity determinations
made after those MOVES-based budgets are found adequate or approved.
This was clearly stated in the October 2011 proposal (76 FR 63578).
EPA does not agree that the rule is arbitrary and capricious
because it did not disclose how the rule could adversely affect public
health. The commenter also mischaracterized the conformity rule's
requirements by implying that the extended grace period will allow
areas to avoid meeting their applicable SIP budgets in regional
conformity analyses (40 CFR 93.109, 93.118). Regardless of what model
is required for a given conformity determination, MPOs are required by
the CAA and the conformity rule to meet applicable SIP budgets in
regional conformity analyses. Today's final rule does not change these
requirements. Today's action does not relieve an area's statutory
obligation to attain the NAAQS by its attainment date and thereby
protect public health or EPA's air quality planning obligations under
the CAA. Furthermore, the final rule does not waive EPA's SIP
requirements for using the latest emissions model when a SIP is
developed, and does not change the conformity grace period for using
MOVES in project-level conformity analyses.\17\ The implications
[[Page 11399]]
of changes in on-road mobile source emission inventories and/or control
strategies will differ, and as result, need to be evaluated based on
the unique circumstances of each nonattainment or maintenance area.
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\17\ As noted in the October 2011 proposal, the transition to
MOVES for project-level hot-spot analyses does not involve the
complexity associated at the regional level, where ``re-planning''
under 40 CFR 93.111(b)(2) is necessary for some areas (i.e., SIP
budgets and/or transportation plans/TIPs may need to be revised
before regional conformity analyses based on MOVES can be
completed).
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EPA is finalizing a one-year extension only for the MOBILE to MOVES
transition for regional conformity analyses. The final rule's one-time
extension is not indefinite. After March 2, 2013, MOVES must be used
for new regional conformity analyses, whether or not start-up or re-
planning issues have been addressed. EPA believes this additional year
appropriately addresses the circumstances in the field and the need to
meet statutory requirements for using latest emissions models in a
timely manner.
The commenter also alleges that EPA staff stated that the primary
purpose for this rulemaking was to allow nonattainment and maintenance
areas to avoid a conformity lapse where MOVES produces higher emissions
than MOBILE-based SIP budgets.\18\ This statement is incorrect. Today's
final rule does not amend the existing conformity rule's provisions for
frequency (40 CFR 93.104) or conformity lapses (40 CFR 93.102(c)). EPA
did not undertake this rulemaking to address any specific area's
conformity issues or to avoid conformity lapses, but rather to provide
a reasonable amount of time for all areas to prepare to use MOVES and
revise existing SIP budgets and/or transportation plans/TIPs as needed.
Any conformity issues for individual areas will need to be addressed
according to all conformity requirements.
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\18\ The commenter included his notes taken during an informal
conversation with EPA staff that occurred prior to the development
of the October 2011 proposal.
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Finally, the commenter highlighted several court decisions to
support his comments. However, the cases cited by the commenter are
irrelevant to the final rule because the cases involved challenges to
the technical underpinnings of various models.\19\ In contrast, EPA is
not approving or relying on any model in today's action. Instead, it is
making a determination as to the time period that is needed before it
is appropriate to require state and local agencies to use MOVES, given
the planning and preparation involved before the model can be properly
applied.
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\19\ These cases include Small Refiner Lead Phase-Down Task
Force v. EPA, 705 F.2d 506, 534 (challenge to cost analysis based on
Department of Energy refinery modeling) and American Iron and Steel
v. EPA, 115 F.3d 979, 1004 (challenge to Agency calculation of
mercury bioaccumulation factor under Clean Water Act).
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In summary, EPA is finalizing the regional conformity grace period
extension as proposed, and is not making any changes after
consideration of comments. This final rule is consistent with CAA
requirements, the conformity rule, and precedent to date.
IV. Conformity SIPs
The MOVES regional grace period extension applies on the effective
date of today's final rule in all nonattainment and maintenance areas.
Section 51.390(a) of the conformity rule states that the federal rule
applies for the portion of the requirements that are not included in a
state's approved conformity SIP.\20\ Section 51.390(b) further allows
state conformity provisions to contain criteria and procedures that are
more stringent than the federal requirements. However, in the case of
states with conformity SIPs that include the grace period provision in
40 CFR 93.111(b)(1), EPA concludes that such states did not intend to
require a shorter grace period than EPA, in consultation with DOT,
believes is needed. Therefore, since the MOVES grace period extension
is a new provision being added to the conformity rule, it is not
included in any current state conformity SIP and therefore applies
immediately in all areas pursuant to section 51.390(a).
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\20\ A conformity SIP is required by the CAA and contains a
state's conformity requirements, including the state's specific
interagency consultation procedures.
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In addition, section 51.390(c) of the conformity rule requires
states to submit a new or revised conformity SIP to EPA within 12
months of the Federal Register publication date of any final conformity
amendments for certain situations. States with approved conformity SIPs
that are prepared in accordance with current CAA requirements are not
required to submit new conformity SIP revisions, since section 93.111
of the conformity rule is not contained in these SIPs. A conformity SIP
prepared in accordance with current CAA requirements contains only the
state's criteria and procedures for interagency consultation (40 CFR
93.105) and two additional provisions related to written commitments
for certain control and mitigation measures (40 CFR 93.122(a)(4)(ii)
and 93.125(c)). However, states with approved conformity SIPs that
include section 93.111 from a previous rulemaking are required to
submit a SIP revision by February 27, 2013, although EPA strongly
encourages these states to submit a SIP revision with only the three
required provisions.\21\ A state without an approved conformity SIP is
not required to submit a new conformity SIP within one year of today's
action, but previous conformity SIP deadlines continue to apply.
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\21\ The conformity SIP may contain provisions more stringent
than the federal requirements, and in these cases, states must
specify this intention in its conformity SIP submission.
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For additional information on conformity SIPs, please refer to the
January 2009 guidance entitled, ``Guidance for Developing
Transportation Conformity State Implementation Plans'' available on
EPA's Web site at: www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
The information collection requirements of EPA's existing
transportation conformity regulations and the revisions in today's
action are already covered by EPA's information collection request
(ICR) entitled, ``Transportation Conformity Determinations for
Federally Funded and Approved Transportation Plans, Programs and
Projects.'' OMB has previously approved the information collection
requirements contained in the existing regulations at 40 CFR Part 93
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and has assigned OMB control number 2060-0561. The OMB control
numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of rules subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the Agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities
[[Page 11400]]
include small businesses, small not-for-profit organizations and small
government jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field. After considering the economic
impacts of today's rule on small entities, I certify that this action
will not have a significant economic impact on a substantial number of
small entities. This regulation directly affects federal agencies and
MPOs that, by definition, are designated under federal transportation
laws only for metropolitan areas with a population of at least 50,000.
These organizations do not constitute small entities within the meaning
of the RFA. Therefore, this rule will not impose any requirements on
small entities.
D. Unfunded Mandates Reform Act (UMRA)
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for state, local, and tribal
governments, in the aggregate, or the private sector in any one year.
This rule merely implements already established law that imposes
conformity requirements and does not itself impose requirements that
may result in expenditures of $100 million or more in any year. Thus,
today's rule is not subject to the requirements of sections 202 and 205
of the UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule will not
significantly or uniquely impact small governments because it directly
affects federal agencies and MPOs that, by definition, are designated
under federal transportation laws only for metropolitan areas with a
population of at least 50,000.
E. Executive Order 13132: Federalism
This rule does not have federalism implications. It will not have
substantial direct effects on states, on the relationship between the
national government and states, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. The CAA requires conformity to apply in
certain nonattainment and maintenance areas as a matter of law, and
today's action merely revises one provision for transportation planning
entities in subject areas to follow in meeting their existing statutory
obligations. Thus, EO 13132 does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The CAA requires
transportation conformity to apply in any area that is designated
nonattainment or maintenance by EPA. Because today's rule does not
significantly or uniquely affect the communities of Indian tribal
governments, EO 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This rule is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it is not economically significant as defined
in EO 12866, and because the Agency does not believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., material specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rule does not involve technical standards. Therefore, EPA is not
considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations. The final rule involves a minor revision that
provides administrative relief but does not change the conformity
rule's underlying requirements for regional conformity analyses.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a major rule as defined by 5 U.S.C.
804(2). This rule will be effective February 27, 2012.
List of Subjects in 40 CFR Part 93
Administrative practice and procedure, Air pollution control,
Carbon monoxide, Clean Air Act, Environmental protection, Highways and
roads, Intergovernmental relations, Mass transportation, Nitrogen
dioxide, Ozone, Particulate matter, Transportation, Volatile organic
compounds.
[[Page 11401]]
Dated: February 15, 2012.
Lisa P. Jackson,
Administrator.
For the reasons discussed in the preamble, 40 CFR Part 93 is
amended as follows:
PART 93--[AMENDED]
0
1. The authority citation for Part 93 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
0
2. Section 93.111 is amended by adding paragraph (b)(3) to read as
follows:
Sec. 93.111 Criteria and procedures: Latest emissions model.
* * * * *
(b) * * *
(3) Notwithstanding paragraph (b)(1) of this section, the grace
period for using the MOVES2010 emissions model (and minor revisions)
for regional emissions analyses will end on March 2, 2013.
* * * * *
[FR Doc. 2012-4484 Filed 2-24-12; 8:45 am]
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