[Federal Register Volume 77, Number 50 (Wednesday, March 14, 2012)]
[Rules and Regulations]
[Pages 14979-14988]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6207]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

[EPA-HQ-OAR-2009-0128; FRL-9637-3]
RIN 2060-AP57


Transportation Conformity Rule Restructuring Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is amending the transportation conformity rule to finalize 
provisions that were proposed on August 13, 2010. These amendments 
restructure several sections of the transportation conformity rule so 
that they apply to any new or revised National Ambient Air Quality 
Standards. EPA is also finalizing several clarifications to improve 
implementation of the rule. EPA is not taking a final action at this 
time on the proposal that areas analyze a near-term analysis year when 
using the budget test.
    The Clean Air Act 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. EPA consulted with the U.S. Department of 
Transportation and they concur in the development of this final rule.

DATES: This final rule is effective on April 13, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2009-0128. 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: Patty Klavon, Transportation and 
Regional Programs Division, Environmental Protection Agency, 2000 
Traverwood Drive, Ann Arbor, MI 48105, email address: 
klavon.patty@epa.gov, telephone number: (734) 214-4476, fax number: 
(734) 214-4052; or Laura Berry, Transportation and Regional Programs 
Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann 
Arbor, MI 48105, email 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 Section 93.109--Tests of Conformity for 
Transportation Plans, TIPs, and Projects--and Changes to Related 
Sections
IV. Additional Option for Areas That Qualify for EPA's Clean Data 
Regulations or Policies
V. Restructure of the Baseline Year Test for Existing NAAQS and 
Baseline Year Test for Future NAAQS
VI. How do these amendments affect conformity SIPs?
VII. Statutory and Executive Order Reviews

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

[[Page 14980]]

B. How do I get copies of this document?

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 www.epa.gov/otaq/stateresources/transconf/index.htm. An electronic version of the 
official public docket is also 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 
electronically. Once in the system, select ``search,'' then enter 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.

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 or contribute to new air quality violations, worsen existing 
violations, or delay timely attainment or achievement of the relevant 
National Ambient Air Quality Standards (NAAQS) and interim emission 
reductions or 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: 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 51.390 and 93 Subpart A) 
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 consulted with the U.S. 
Department of Transportation (DOT), and they concur on this final rule.

B. Why are we issuing this final rule?

    EPA is amending the conformity rule so that its requirements will 
clearly apply to areas designated for any future new or revised NAAQS. 
To achieve this, today's final rule restructures two sections of the 
conformity rule, 40 CFR 93.109 and 93.119, and makes changes to certain 
definitions in 40 CFR 93.101. These amendments are intended to minimize 
the need to make administrative updates to the conformity rule merely 
to reference a specific new or revised NAAQS. EPA has already 
undertaken two conformity rulemakings primarily for the purpose of 
addressing a new or revised NAAQS. See the March 24, 2010 
Transportation Conformity Rule PM2.5 and PM10 
Amendments (``PM Amendments'') 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. EPA believes that today's conformity rule revisions provide 
more certainty to implementers without compromising air quality 
benefits from the current program. These changes are described in 
Sections III. and V. of today's final rule.
    EPA is also clarifying in today's final rule the additional 
conformity test option available to current ozone ``clean data'' areas 
and is extending that option to any nonattainment areas for which EPA 
has developed a clean data regulation or policy.\2\ This provision 
should eliminate the need to update the conformity rule in the future 
in order to extend this conformity option to other NAAQS. See Section 
IV. of today's final rule for further details.
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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 
finalizing a minor change to the definition of clean data found in 
conformity rule section 93.101; see Section IV. of today's notice.
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    EPA is also finalizing a change to the wording of conformity rule 
section 93.118(b) that does not change its requirements. Section 
93.118(b) of the conformity rule continues to require consistency \3\ 
for any years where the SIP establishes a budget and for any years that 
are analyzed to meet the requirements in 40 CFR 93.118(d). This change 
simplifies this provision and eliminates repetitiveness within the 
regulation, but does not change the requirements for demonstrating 
consistency. EPA did not receive comments on this section, and we are 
finalizing it as proposed.
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    \3\ That is, transportation plan and TIP emissions must be less 
than or equal to the budget(s) in the applicable SIP.
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    Section VI. covers how today's final rule affects conformity SIPs. 
A conformity SIP includes a state's specific criteria and procedures 
for certain aspects of the conformity process.\4\
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    \4\ For more information about 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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    In the August 13, 2010 Federal Register notice, EPA had proposed 
that a near-term year would have to be analyzed when using the budget 
test when an area's attainment date has passed or has not yet been 
established (75 FR 49435). EPA is not taking final action on this 
proposal at this time.
    Finally, EPA received several comments requesting that we issue a 
rulemaking, rather than guidance, to address conformity requirements in 
areas designated for a distinct secondary NAAQS. Transportation 
conformity applies to any NAAQS for transportation-related criteria 
pollutants, including secondary

[[Page 14981]]

NAAQS.\5\ CAA section 176(c) does not distinguish between primary and 
secondary NAAQS. EPA would issue future transportation conformity 
guidance as needed to implement new or revised NAAQS, including a 
distinct secondary NAAQS if one is promulgated in the future.
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    \5\ See the preamble to the August 13, 2010 proposal for further 
background (75 FR 49441).
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III. Restructure of Section 93.109--Tests of Conformity for 
Transportation Plans, TIPs, and Projects--and Changes to Related 
Sections

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 budget is submitted for a NAAQS and EPA finds the budget 
adequate for conformity purposes or approves 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 rulemaking (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.
    Given that CAA section 109(d)(1) requires EPA to revisit the NAAQS 
for criteria pollutants at least every five 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. Today's action 
restructures 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 future nonattainment 
and maintenance areas for transportation-related pollutants or NAAQS.

B. Description of the Final Rule

    In today's action, EPA is restructuring 40 CFR 93.109 so that it 
contains two paragraphs:
     Regional conformity tests, which are covered by section 
93.109(c); and,
     Project-level conformity tests, which are covered by 
section 93.109(d).
    New paragraph (c). Today's final rule revises 40 CFR 93.109(c) so 
that requirements for using the budget test and/or interim emissions 
tests apply for any NAAQS in the following way:
     First, a nonattainment or maintenance area for a specific 
NAAQS must use the budget test, if the area has adequate or approved 
SIP budgets for that specific NAAQS (section 93.109(c)(1)). For 
example, once a 2006 PM2.5 nonattainment area has adequate 
or approved SIP budgets for the 2006 PM2.5 NAAQS, it must 
use those budgets in the budget test as the regional test of conformity 
for the 2006 PM2.5 NAAQS;
     Second, if an area does not have such budgets but has 
adequate or approved budgets from a SIP that addresses a different 
NAAQS of 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 (section 
93.109(c)(2)). For example, before a 2006 PM2.5 area has 
adequate or approved budgets for the 2006 PM2.5 NAAQS, it 
must use the budget test, using budgets from an adequate or approved 
SIP for the 1997 PM2.5 NAAQS, if it has them. If these 
budgets do not cover the entire 2006 PM2.5 area, one of the 
interim emissions tests may also have to be used;
     Third, if an area has no adequate or approved SIP budgets 
for that criteria pollutant at all, it must use the interim emissions 
test(s) (section 93.109(c)(3)). For example, if a 2006 PM2.5 
area has no adequate or approved budgets for any PM2.5 
NAAQS, it must use one of the interim emissions tests, as described in 
40 CFR 93.119.
    These conformity test requirements are unchanged from the previous 
regulation; today's rulemaking restates them in terms that apply to any 
NAAQS.
    In addition, in conformity rule section 93.109(c)(5), EPA is 
expanding the clean data conformity option to all clean data areas for 
which EPA has a clean data regulation or policy.\6\ See Section IV. 
below for further information.
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    \6\ Clean data refers to air quality monitoring data determined 
by EPA to indicate attainment of the NAAQS. Note that this action 
finalizes a minor change to the definition of clean data which is 
found in section 93.101 of the conformity rule; see Section IV. of 
today's rulemaking.
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    New paragraph (d). With regard to project-level requirements, 
today's final rule 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 (section 
93.109(d)(1), (2), and (3)). These requirements are unchanged from the 
previous regulation; today's rulemaking simply groups them together 
under one paragraph.\7\
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    \7\ 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 action to restructure 40 CFR 93.109 
does not affect how NEPA-related requirements are implemented in the 
field.
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    Related amendments. Today's final rule removes 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'' from 40 
CFR 93.101. These definitions are no longer necessary because the 
updated regulatory text for sections 93.109 and 93.119 \8\ applies to 
any and all NAAQS of those pollutants for which conformity applies. In 
addition, today's final rule updates references to 40 CFR 93.109 found 
elsewhere in the regulation. Finally, today's final rule corrects a 
reference to the consultation requirements found in 93.109(g)(2)(iii) 
which applies to isolated rural areas.
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    \8\ See Section V. of today's rulemaking for revisions to 40 CFR 
93.119.
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C. Rationale and Response to Comments

    EPA is restructuring 40 CFR 93.109 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

[[Page 14982]]

conformity must be demonstrated. Consequently, EPA believes the 
hierarchy of regional conformity tests described above, which is 
already found in the existing rule for 1997 ozone and 2006 
PM2.5 areas, would apply for any NAAQS of a pollutant for 
which the conformity rule applies.
    EPA's restructuring of 40 CFR 93.109 and elimination of certain 
definitions in 40 CFR 93.101, along with the standardization of the 
baseline year in 40 CFR 93.119 (see Section V. of today's final rule 
for details), should make the rule sufficiently flexible to address any 
future NAAQS changes, including the promulgation of a new or revised 
NAAQS or revocation of a NAAQS, without additional rulemakings.
    The restructured section 93.109 does not change the criteria and 
procedures for determining conformity of transportation plans, TIPs, 
and projects and is consistent with the regional conformity test 
requirements described in the PM Amendments final rule (75 FR 14266-
14274). The rationale for the required regional tests has been 
described in previous rulemakings.\9\ 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\
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    \9\ See EPA's March 24, 2010 final rule (75 FR 14266-14273). See 
also EPA's July 1, 2004 final rule (69 FR 40019-40031).
    \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 40036-40038; 40056-
40058), the August 15, 1997 final rule (62 FR 43798), and the 
November 24, 1993 final rule (58 FR 62199-62201; 62207-62208; 62212-
62213).
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    Today's restructuring of 40 CFR 93.109 reduces the likelihood that 
EPA would have to amend the conformity rule when new or revised NAAQS 
are promulgated, which has several benefits. First, implementers will 
know the requirements for regional conformity tests for any potential 
area designated nonattainment for a new or revised NAAQS, even before 
such area's official designation, and will not need to wait for any 
additional conformity rulemaking from EPA to know what type of regional 
conformity test will apply. Second, reducing the need to amend the 
conformity regulation each time a NAAQS change is made will save 
government resources and taxpayer dollars, and will reduce stakeholder 
efforts needed to keep track of regulatory changes.
    All commenters who addressed this proposal supported EPA's approach 
for restructuring 40 CFR 93.109. Several commenters agreed with EPA 
that these changes will help streamline the conformity regulation and 
reduce the need to revise the conformity rule when new or revised NAAQS 
are promulgated. One commenter opined that the restructuring of 40 CFR 
93.109 provides a clear and concise organization of the conformity 
requirements and agreed with EPA's rationale that it will be beneficial 
for implementing organizations to know the conformity requirements in 
advance of any new or revised NAAQS.
    A few commenters requested that EPA clarify whether areas that have 
an adequate or approved NOX SIP budget for a specific NAAQS 
(e.g., the 1997 ozone NAAQS) would have to use that NOX 
budget to demonstrate conformity for another pollutant, such as 
PM2.5.
    A NOX budget in an ozone SIP would apply for conformity 
for an ozone NAAQS only, and could not be used as a budget for any 
other pollutant. CAA section 176(c)(1)(A) establishes that 
nonattainment and maintenance areas must demonstrate conformity to a 
SIP'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.'' The purpose of a SIP is 
tied to the pollutant it addresses. The 2006 court case cited above in 
this section supports this point. In that ruling, the court held that 
where a 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 a SIP is revised to include budgets for 
the new or revised NAAQS. The court did not refer to adequate or 
approved NOX or VOC budgets from a SIP that addressed a 
pollutant other than ozone, and did not indicate that such budgets 
would need to be used. In accordance with this court decision, if, for 
example, a 1997 ozone area has an approved 1997 ozone attainment 
demonstration with a NOX budget, this NOX budget 
must be used to demonstrate conformity for the 1997 ozone NAAQS and 
could also be used to demonstrate conformity for any future ozone NAAQS 
before the area has a SIP for that ozone NAAQS. However, the 
NOX budget could not be used to demonstrate conformity for a 
PM or NO2 NAAQS because doing so would not be consistent 
with CAA section 176(c) requirements that conformity be demonstrated to 
the relevant SIP.
    Finally, while pollutants may have precursors in common, control 
strategies may differ by pollutant and the seasons for which the budget 
is established may differ by pollutant as well. For example, precursor 
SIP budgets for the ozone NAAQS address a typical summer day, because 
ozone is a summertime air quality problem. However, PM2.5 
violations in the same geographic area may have occurred during winter 
months. An ozone precursor SIP budget established for a typical summer 
day has no relevance in addressing a wintertime PM2.5 
problem.
    EPA believes that section 93.109(c)(2) in today's final rule 
provides sufficient clarity for these situations because it specifies 
that where an area does not have an adequate or approved SIP budget for 
a NAAQS, it would use an approved or adequate SIP budget(s) for another 
NAAQS of the same pollutant as the test of conformity. No additional 
changes are necessary.

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

A. Overview

    Prior to today's final rule, the conformity rule provided an 
additional regional conformity test option for certain moderate and 
above ozone nonattainment areas that meet the criteria of EPA's 
existing clean data regulation and policy. Today's rule clarifies this 
option and extends it to any nonattainment areas that are covered by 
EPA's clean data regulations or clean data policies. See Section IV of 
the August 13, 2010 proposal for further background on EPA's clean data 
regulations and policies (75 FR 49439).

B. Description of the Final Rule

    Today, EPA is clarifying 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 a NAAQS--a 
``clean data'' area \11\--can choose to satisfy the regional conformity 
test requirements by using on-road emissions from the most recent year 
of clean data as the budget(s) for that NAAQS rather than using the 
interim emissions test(s) per 40 CFR 93.119. The area may do this if 
the following are true:
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    \11\ See conformity rule section 93.101 for a definition of 
``clean data.''
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     The state or local air quality agency requests that 
budgets be established by the EPA determination of attainment (Clean 
Data) rulemaking for that NAAQS, and EPA approves the request; and,
     The area has not submitted a maintenance plan for that 
NAAQS and EPA has determined (through the Clean Data rulemaking) that 
the area is not subject to the CAA reasonable further progress and 
attainment demonstration requirements for the relevant NAAQS.

[[Page 14983]]

    Otherwise, clean data areas for a NAAQS must satisfy the regional 
conformity test requirements using either the budget test if they have 
adequate or approved SIP 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 SIP budgets.
    In today's rule, EPA is not making changes to its existing clean 
data regulations or policies or to the conformity option for clean data 
areas. EPA is merely clarifying this conformity option and extending it 
to any nonattainment areas that are covered by EPA's clean data 
regulations or clean data policies.
    The regulatory text for this flexibility is found in section 
93.109(c)(5) of the conformity rule. This text clarifies that before 
this flexibility may be used: (1) the state or local air quality agency 
must make the request that the emissions in the most recent year for 
which EPA determines the area is attaining (i.e., the most recent year 
that the area has clean data) be used as budgets, and (2) EPA would 
have to approve that request through notice-and-comment rulemaking.
    Today's rule also updates the definition of ``clean data'' in 40 
CFR 93.101 to describe this term more accurately. The updated 
definition references the appropriate requirements at 40 CFR part 50, 
as well as part 58.

C. Rationale and Response to Comments

    EPA believes that it is reasonable to extend the same conformity 
option available to clean data ozone areas to all clean data areas for 
which EPA has a clean data regulation or policy. Furthermore, this 
provision should work with any clean data policy or regulation that EPA 
develops; thus, it would eliminate the need to update the conformity 
rule in the future in order to extend this conformity option to any 
NAAQS for which EPA develops a clean data policy or regulation. See 
EPA's previous discussion and rationale for the clean data conformity 
option in July 1, 2004 final rule (69 FR 40019-40021). See also the 
preamble to the 1996 conformity proposal and 1997 final rule (July 9, 
1996, 61 FR 36116, and August 15, 1997, 62 FR 43784-43785, 
respectively).
    Several commenters requested that EPA clarify whether the use of 
the most recent year of clean data as the budget becomes binding once 
EPA approves it for use in completing regional conformity analyses. 
These commenters also wanted assurance that the state or local air 
quality agency would need to use the interagency and public 
consultation process before such budgets are submitted to EPA for 
approval. As EPA explained in its proposed rule (August 13, 2010, 75 FR 
49439), once the state or local air quality agency makes the request 
that the emissions in the most recent year for which the area is 
attaining be used as the budget, and EPA approves that request through 
a rulemaking, this level of emissions becomes the approved budget for 
conformity purposes in the clean data area for the relevant NAAQS.\12\ 
The area may not revert back to using the interim emissions test(s) to 
demonstrate conformity once a budget has been established through a 
rulemaking, regardless of whether such budget is approved in a Clean 
Data rulemaking for a NAAQS or is approved as part of a control 
strategy SIP. Note that should EPA subsequently determine that the area 
has violated the relevant NAAQS and withdraw the determination of 
attainment through appropriate rulemaking,\13\ EPA will also withdraw 
its approval for the clean data budget.
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    \12\ If EPA subsequently finds a different SIP budget adequate 
or approves a SIP containing a budget, then that budget would be 
used for conformity purposes, as applicable, under 40 CFR 93.118.
    \13\ See the November 29, 2005 Phase 2 Ozone Implementation 
rulemaking for the 1997 ozone NAAQS (70 FR 71644-71646), 40 CFR 
51.918, and the April 25, 2007 Clean Air Fine Particle 
Implementation Rule for the 1997 PM2.5 NAAQS (72 FR 
20603-20605), 40 CFR 1004(c).
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    Once a clean data area submits a maintenance plan, and its 
budget(s) are found adequate or approved, the maintenance plan 
budget(s) must be used for conformity based on the regulation at 40 CFR 
93.118(b).
    The conformity rule at 93.105(a)(1) requires interagency 
consultation in SIP development. The final rule is consistent with 
prior conformity rulemakings that require any clean data budgets to be 
subject to the existing interagency consultation process and public 
comment. EPA established in its August 15, 1997 final rule (62 FR 
43784-43785) that, regardless of whether a budget is created through 
the SIP process or through a Clean Data rulemaking, the interagency 
consultation process must be used and the public must be provided an 
opportunity to comment. See the August 15, 1997 final rule for further 
details.
    For details on EPA's clean data regulations and policies, see the 
November 29, 2005 Phase 2 Ozone Implementation rulemaking for the 1997 
ozone NAAQS (70 FR 71644-71646), 40 CFR 51.918, and the April 25, 2007 
Clean Air Fine Particle Implementation Rule for the 1997 
PM2.5 NAAQS (72 FR 20603-20605, 40 CFR 1004(c)). See also 
various determinations of attainment for PM10 nonattainment 
areas using EPA's Clean Data policy (October 30, 2006 final rule (71 FR 
63642), February 8, 2006 final rule (71 FR 6352), March 14, 2006 final 
rule (71 FR 13021), March 23, 2010 proposed rule (75 FR 13710)).

V. Restructure of the Baseline Year Test for Existing NAAQS and 
Baseline Year Test for Future NAAQS

A. Overview

    As stated above, conformity is demonstrated with one or both of the 
interim emissions tests if an adequate or approved SIP budget is not 
available. 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.

B. Description of Final Rule

    Today's action revises 40 CFR 93.119 to apply more generally to any 
NAAQS for a given pollutant. First, the section has been reorganized to 
place the baseline years for existing NAAQS in one paragraph (revised 
paragraph (e)). Today's action also revises 40 CFR 93.119 to define the 
baseline year for any NAAQS promulgated after 1997 by reference to 
another requirement. Rather than naming a specific year, the conformity 
rule defines the baseline year for conformity purposes as the most 
recent year for which EPA's Air Emissions Reporting Requirements (AERR) 
(40 CFR Part 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, 2014, etc.\14\
---------------------------------------------------------------------------

    \14\ These are known as Three-Year Cycle Inventories. See 40 CFR 
Part 51.30(b) and the EPA's December 17, 2008 final rule (73 FR 
76539) for more details.
---------------------------------------------------------------------------

    Today's rule is consistent with the baseline year definition 
finalized for the 2006 PM2.5 NAAQS in the PM Amendments 
final rule. In the PM Amendments final rule, this definition applied to 
only areas designated for any PM2.5 NAAQS other than the 
1997 PM2.5 NAAQS. Today's action amends the

[[Page 14984]]

conformity rule to establish the same baseline year definition for new 
or revised NAAQS of any pollutant promulgated after 1997, not just the 
PM2.5 NAAQS. See the March 24, 2010 p.m. Amendments final 
rule (75 FR 14265-14266) for further details.
    This definition will automatically establish a relevant baseline 
year for conformity purposes for any areas designated nonattainment for 
all future NAAQS. For all future NAAQS, EPA will identify the baseline 
year that results from today's rule in guidance and will maintain a 
list of baseline years on EPA's Web site.\15\ Once the baseline year is 
established according to this provision, it will not change (i.e., the 
baseline year would not be a rolling baseline year for a given NAAQS). 
Today's final rule does not change any baseline years already 
established for conformity purposes prior to today's action.
---------------------------------------------------------------------------

    \15\ See www.epa.gov/otaq/stateresources/transconf/baseline.htm.
---------------------------------------------------------------------------

    The existing interagency consultation process (40 CFR 
93.105(c)(1)(i)) must be used 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 must 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.
    As described in earlier rulemakings, the baseline year interim 
emissions 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.\16\ 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)).
---------------------------------------------------------------------------

    \16\ See the March 24, 2010 final rule (75 FR 14265) and the 
July 1, 2004 final rule (69 FR 40015).
---------------------------------------------------------------------------

C. Rationale and Response to Comments

    EPA believes that today's final rule results in an environmentally 
protective and legal baseline year for conformity for any NAAQS 
promulgated after 1997 and best accomplishes several important goals.
    First, as described in the August 13, 2010 proposed rule (75 FR 
49440), EPA believes it is important to coordinate the conformity 
baseline year with the year used for SIP planning and an emissions 
inventory year. This was EPA's rationale for using 2002 as the baseline 
year for interim emissions tests in nonattainment areas for the 1997 
ozone and PM2.5 NAAQS (69 FR 40014-40015). It was also EPA's 
rationale for finalizing the same baseline year definition in today's 
final rule for 2006 PM2.5 nonattainment areas in the March 
24, 2010 final rule: this definition resulted in a conformity baseline 
year of 2008 for the 2006 PM2.5 NAAQS (75 FR 14265-14266). 
Therefore, today's conformity baseline year is consistent with how EPA 
has implemented the conformity baseline year for new or revised NAAQS 
in the past.
    Second, today's baseline year definition also ensures that the 
baseline year for any future NAAQS is always fairly recent, which is 
appropriate for meeting CAA conformity requirements and is 
environmentally protective. Because the AERR requires submission of 
inventories every three years, the baseline year for any NAAQS 
promulgated after 1997 will always be either the same year as the year 
in which designations are effective, or one or two years prior to the 
effective date of the designations. For example, in the case of the 
2006 PM2.5 NAAQS, nonattainment designations became 
effective on December 14, 2009, and the baseline year for conformity 
purposes is 2008 for areas designated nonattainment for the 2006 
PM2.5 NAAQS, the year before the effective date of the 
designations (See the PM Amendments final rule for details (75 FR 
14265-14266)).
    EPA also believes 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 resources more 
efficiently. Given that the CAA requires EPA to review the NAAQS for 
possible revision once every five years, today's baseline year 
provision standardizes the process for selecting an appropriate 
baseline year for any NAAQS promulgated in the future.
    Finally, today's rule for the baseline year definition provides 
implementers with knowledge of the baseline year for any future new or 
revised NAAQS 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 should understand 
conformity requirements for future NAAQS revisions more quickly, which 
should enable them to fully utilize the 12-month conformity grace 
period to complete conformity determinations for new nonattainment 
areas.
    Several commenters voiced support for coordinating the conformity 
baseline year with an emissions inventory year, in part because EPA 
could avoid additional rulemakings to implement future baseline year 
changes. Several commenters also agreed that this change would be 
beneficial since implementing organizations would know the conformity 
requirements in advance of any new or revised NAAQS.
    Some commenters expressed concern that emissions inventories are 
not always submitted on time and recommended that the conformity rule 
require that the baseline year for the baseline year interim emissions 
test be the most recent emissions inventory year that has been 
completed and submitted to EPA. One commenter recommended that the 
baseline year be at least three years older than the date the first 
conformity determination is required and that if the most recent 
completed emissions inventory is less than three years old, the 
previous emissions inventory should be used. However, these suggestions 
could lead to different baseline years in areas designated for the same 
NAAQS, which may not meet statutory requirements, and would be 
confusing to track as well as inequitable. EPA's final rule establishes 
the same baseline year for every area designated for a particular NAAQS 
regardless of whether an individual area submitted its inventory on 
time. If an area has not submitted a final AERR inventory for the 
relevant conformity baseline year, there are other options for 
generating on-road mobile source emissions in the baseline year, 
discussed above under B. of this section.
    Another commenter opined that if a later year than currently 
required is used as a baseline year for the baseline year interim 
emissions test, and emissions are on a downward trend, the proposed 
change would make the baseline year interim emissions test more 
stringent than what was proposed. The commenter suggested that this 
concern may be mitigated by keeping the baseline year for all future 
NAAQS at or near the year 2002 that was

[[Page 14985]]

established for the 1997 ozone and PM2.5 NAAQS.
    Today's final rule is intended to ensure the same level of 
stringency for all NAAQS regardless of when the NAAQS was promulgated. 
The conformity baseline year of 2002 that EPA established for the 1997 
ozone and PM2.5 NAAQS is several years prior to the 
effective date of the 1997 ozone and PM2.5 ozone 
nonattainment designations. Area designations for the 1997 ozone NAAQS 
became effective on June 15, 2004 and area designations for the 1997 
PM2.5 NAAQS became effective on April 5, 2005 (See the April 
30, 2004 (69 FR 23858) and the January 5, 2005 (70 FR 944) final rules, 
respectively). Further, if there is a downward trend in on-road mobile 
source emissions, it makes sense to reflect that downward trend in the 
interim emissions test. Today's final rule accomplishes that by 
ensuring that the baseline year is always fairly recent.
    Finally, EPA would like to clarify a couple of points related to 
this comment. First, the commenter referred to the baseline year of 
2002 in the ``current conformity rule.'' That baseline year of 2002 was 
established in 2004 for the 1997 ozone and PM2.5 NAAQS and 
it remains the baseline year only for these NAAQS. Second, the baseline 
year definition in today's rule is the same definition EPA established 
as the baseline year for areas designated nonattainment for the 2006 
PM2.5 NAAQS in the March 24, 2010 p.m. Amendments rule. 
Thus, today's definition had already been part of the current 
conformity rule prior to today's action.

VI. How do these amendments affect conformity SIPs?

    Today's action does not affect existing conformity SIPs that were 
prepared in accordance with current CAA requirements since the final 
rule does not affect the provisions that are required to be in a 
conformity SIP. CAA section 176(c)(4)(E) requires a conformity SIP to 
include 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, the conformity rule also 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 
(40 CFR 51.390(c)). Therefore, such a conformity SIP revision is 
required to be submitted by March 14, 2013 in states with approved 
conformity SIP's containing provisions addressed by today's action. EPA 
encourages these 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 www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf.

VII. 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 Executive Orders 
12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in 
response to OMB recommendations have been documented in the docket for 
this action.

B. Paperwork Reduction Act

    This action 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 conformity regulations under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2060-0561. The OMB control numbers for EPA's regulations in 40 
CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to prepare a regulatory flexibility analysis of rules subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the Agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
organizations and small government jurisdictions.
    For purposes of assessing the impacts of today's final 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 final 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 
final rule will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act

    This action 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 final rule 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, 
this rule is not subject to the requirements of Sections 202 and 205 of 
the UMRA.
    This final 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

[[Page 14986]]

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 action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the 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 this action merely establishes and revises 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 action.

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 
conformity to apply in any area that is designated nonattainment or 
maintenance by EPA. Because today's 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

    This action 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 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.

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., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider 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 environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it maintains or 
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.

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 April 13, 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.

    Dated: March 8, 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 93.101 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 NAAQS.
* * * * *


Sec.  93.105  [Amended]

0
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)''.

0
4. Section 93.109 is amended as follows:
0
a. By revising paragraphs (b) introductory text, (c), and (d);
0
b. By removing paragraphs (e) through (k), and redesignating paragraphs 
(l), (m), and (n) as paragraphs (e), (f), and (g);
0
c. In newly redesignated paragraph (g)(2) introductory text, by 
removing the

[[Page 14987]]

citation ``paragraphs (c) through (m)'' and adding in its place 
``paragraph (c)'';
0
d. In newly redesignated paragraph (g)(2)(iii), by removing the 
citation ``paragraph (n)(2)(ii)'' and adding in its place ``paragraph 
(g)(2)(ii)'';
0
e. In newly redesignated paragraph (g)(2)(iii), by removing the 
citation ``paragraph (n)(2)(ii)(C)'' and adding in its place 
``paragraph (g)(2)(ii)(C)'';
0
f. In newly redesignated paragraph (g)(2)(iii), by removing the 
citation ``Sec.  93.105(c)(1)(vii)'' and adding in its place ``Sec.  
93.105(c)(1)(vi)''.


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 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

[[Page 14988]]

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 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 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]

0
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)''.
0
6. Section 93.118 is amended:

0
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)''; and
0
b. By revising paragraph (b) introductory text.


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:
* * * * *

0
7. Section 93.119 is amended as follows:
0
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)'';
0
b. In paragraph (b) introductory text, by removing ``1-hour ozone and 
8-hour'';
0
c. By revising paragraphs (b)(1)(ii) and (b)(2)(ii);
0
d. By revising paragraphs (c)(1)(ii) and (c)(2)(ii);
0
e. By revising the heading of paragraph (d);
0
f. In paragraph (d) introductory text, by removing ``PM10 
and NO2'' and adding in its place ``PM2.5, 
PM10, and NO2'';
0
g. By revising paragraph (d)(2);
0
h. By revising paragraph (e); and
0
i. In paragraph (g)(2), by removing ``(b)(2)(i), (c)(2)(i), (d)(1), and 
(e)(1)'' and adding in its place ``(b)(2)(i), (c)(2)(i), and (d)(1)''.


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) PM2.5, PM10, and NO2 areas.* * *
    (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]

0
8. Section 93.121 is amended:
0
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. 2012-6207 Filed 3-13-12; 8:45 am]
BILLING CODE 6560-50-P