 ENVIRONMENTAL PROTECTION AGENCY
 40 CFR Part 93
 [EPA-HQ-OAR-2009-0128; FRL-XXXX-X]
 RIN 2060-AP57
 Transportation Conformity Rule Restructuring Amendments
 AGENCY:  Environmental Protection Agency (EPA).
 ACTION:  Final rule.
 SUMMARY:  EPA is amending the transportation conformity rule to finalize provisions that were proposed on August 13, 2010.  These amendments primarily restructure several sections of the transportation conformity rule so that they apply to any new or revised National Ambient Air Quality Standards.  Additionally, EPA is amending the regulation to require that certain nonattainment areas analyze a near-term year when using the budget test when the area's attainment year has passed, or the area's attainment date has not yet been established.  Finally, EPA is finalizing several clarifications to improve implementation of the rule.
 	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 [insert date 30 days after publication in the Federal Register].
 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<PHONE_NUMBER> and the telephone number for the Air and Radiation Docket is<PHONE_NUMBER>.
FOR FURTHER INFORMATION CONTACT:  Patty Klavon, Transportation and Regional Programs Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105, e-mail address<EMAIL_ADDRESS>telephone number:<PHONE_NUMBER>, fax number:<PHONE_NUMBER>; or Laura Berry, Transportation and Regional Programs Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105, e-mail address<EMAIL_ADDRESS>telephone number:<PHONE_NUMBER>, fax number:<PHONE_NUMBER>.
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. Transportation Conformity Requirements for Secondary NAAQS
VII. Analysis of a Near-Term Year in the Budget Test
VIII. How Do These Amendments Affect Conformity SIPs?
IX. 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:
 Category
 Examples of regulated entities
 Local government
 Local transportation and air quality agencies, including metropolitan planning organizations (MPOs).
 State government
 State transportation and air quality agencies.
 Federal government
 Department of Transportation (Federal Highway Administration (FHWA) and Federal Transit Administration (FTA)).

 	This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this 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.
 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 website 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).
       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, including any secondary 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., V. and VI. 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.  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.
      Today's final rule also requires that nonattainment areas that do not have an adequate maintenance plan budget analyze a near-term year when using the budget test when the area's attainment year has passed, or when the area's attainment date has not yet been established.  The budget test demonstrates that the total on-road emissions projected for a metropolitan transportation plan or TIP are within the motor vehicle emissions budgets ("budgets") established by the SIP.  This new analysis year requirement better meets the purpose of the CAA requirements for conformity and makes implementation requirements for the budget test after the attainment year has passed or when the attainment date has not been established consistent with analysis year requirements in all other cases.  For example, a near-term analysis year has always been required when using the interim emissions tests.  Once areas have budgets, they analyze the attainment year, which is often a near-term year, as long as the attainment year is still in the timeframe of the transportation plan or conformity determination.  Section VII. of this preamble describes this new analysis year requirement further.
      Finally, Section VIII. 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.
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.  See Section IV. below for further information.
	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.
      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 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.
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 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.  The rationale for the requirements for project-level conformity tests in CO, PM2.5, and PM10 areas has also been described in previous rulemakings.
      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 - 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:
      * 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.
      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.  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, EPA will also withdraw its approval for the clean data budget.
      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.
	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 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 PM 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.  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.
		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.  An MPO or state DOT, in consultation with state and local air agencies, could also develop baseline year emissions as part of the conformity analysis.  EPA believes that a submitted or draft SIP baseline inventory may be the most appropriate source for completing the baseline year tests for an area's first conformity determination under a new or revised NAAQS.  This is due to the fact that SIP inventories are likely to be under development at the same time as these conformity determinations, and such inventories must be based on the latest available data at the time they are developed (CAA section 172(c)(3)).
C.		Rationale 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 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 PM Amendments rule.  Thus, today's definition had already been part of the current conformity rule prior to today's action.
VI.	Transportation Conformity Requirements for Secondary NAAQS
A.		Overview
      All of the transportation-related criteria pollutants except CO have a primary NAAQS and a secondary NAAQS.  The primary NAAQS protects public health.  The secondary NAAQS prevents unacceptable effects on the public welfare, e.g., unacceptable damage to crops and vegetation, buildings and property, and ecosystems (CAA section 109(b)(2)).
      EPA has historically set the secondary NAAQS at the same level as the relevant primary NAAQS for transportation-related criteria pollutants (i.e., PM, ozone, nitrogen dioxide).  Hence, the conformity rule has not needed to be interpreted specifically for areas designated nonattainment only for a secondary NAAQS or designated for both a primary and a different secondary NAAQS for the same pollutant.
      However, in its January 19, 2010 (75 FR 2938) proposal to revise the ozone NAAQS, EPA proposed a secondary ozone NAAQS that, if finalized as proposed, would be distinct from the primary ozone NAAQS that was proposed.  It is also possible that in the future EPA will propose to establish distinct secondary NAAQS for other transportation-related criteria pollutants.
B.		Description of Final Rule
      Today's restructured section 93.109 and baseline year definition in section 93.119 of the conformity rule will apply to any future transportation-related NAAQS, including a secondary NAAQS.  Areas that are designated for a distinct secondary NAAQS would perform a conformity determination just as areas designated for a primary NAAQS:  once they have an adequate or approved budget for a secondary NAAQS, they would use it to demonstrate conformity; before they have such a budget for a secondary NAAQS, they would use a budget for a different NAAQS of that same pollutant if they have one and an interim emissions test if they do not.  A budget for a different NAAQS of the same pollutant could be a budget established for a primary NAAQS.  For example, an area designated for a secondary ozone NAAQS could use adequate or approved ozone budgets that address the 1997 ozone NAAQS.  See Section III.B.1. of today's final rule for a description of the general hierarchy of regional emissions tests.
      Because a secondary NAAQS may not have a specified attainment date, EPA is also taking action today to address analysis year requirements for certain nonattainment areas without an established attainment date.  EPA will issue guidance as needed to assist areas in implementing conformity requirements for new NAAQS, including any secondary NAAQS, if applicable.  See Section VII. of today's final rule for further details.
C.		Rationale and Response to Comments
      The CAA does not distinguish between primary and secondary NAAQS.  CAA section 176(c)(1)(A) states that conformity to a SIP means "conformity to an implementation plan's purpose of eliminating or reducing the severity and number of violations of the national ambient air quality standards and achieving expeditious attainment of such standards...."  As a result, conformity applies to any NAAQS for transportation-related criteria pollutants including secondary NAAQS.  Since the conformity rule has always referred to NAAQS in general, the conformity rule and today's final rule will accommodate any future primary or secondary NAAQS, including a distinct secondary NAAQS.  Conformity requirements are the same for both primary and secondary NAAQS.
	Several commenters requested that EPA issue a rulemaking, rather than guidance, to address conformity requirements in areas designated nonattainment or maintenance for a distinct secondary NAAQS.  These commenters also recommended that EPA consult with transportation agencies early in the development of any such rulemaking.  Another commenter strongly supported EPA's proposal to issue guidance to assist areas in implementing conformity requirements for areas designated nonattainment for a distinct secondary NAAQS.  EPA believes that today's final rule addresses all of these comments, since it establishes conformity requirements for future secondary NAAQS.  EPA will also issue additional guidance as needed to implement any secondary NAAQS consistent with conformity requirements.
      Other commenters asked EPA to discuss the types of transportation strategies that would effectively address a secondary NAAQS, and to address potential conformity implications of a secondary NAAQS, including the cumulative seasonal form of the NAAQS.  These commenters requested this information to enable transportation officials to fully evaluate their impacts on a transportation program.  These comments are outside the scope of today's action, which is limited to identifying conformity requirements for secondary NAAQS, and does not address transportation strategies or inventories in the context of SIP development, or implications of secondary NAAQS themselves.
	Several commenters recommended that a regional conformity analysis not be required for a distinct secondary NAAQS unless the state finds that transportation-related precursor emissions are a significant contributor to the area's air quality problem.  In particular, these commenters proposed that EPA support state efforts to demonstrate that on-road mobile source emissions are insignificant in remote and rural areas, where commenters asserted that the nonattainment problem is largely caused by ozone transport.  These comments are also outside the scope of this rulemaking and are not addressed in today's action.  The conformity rule at 40 CFR 93.102(b) addresses when conformity requirements apply and is consistent with the CAA requirement that conformity applies in all nonattainment and maintenance areas for all transportation-related pollutants and NAAQS.  This conformity provision was not addressed by this rulemaking.  In addition, the precursor issues described by commenters are related to SIP development and implementation, rather than conformity requirements.  EPA notes, however, that the conformity rule already allows the flexibility to find a pollutant and/or precursor insignificant in a specific area designated for a primary and/or secondary transportation-related NAAQS (see 40 CFR 93.102(b) and newly redesignated section 93.109(f)).
VII.	Analysis of a Near-Term Year in the Budget Test
A. 	Overview
	When the budget test is performed, state and local agencies are not required to examine the emissions impacts of every year within the timeframe of the transportation plan.  Rather, the conformity rule requires that only certain years be analyzed (40 CFR 93.118(d)) to understand the emissions impacts of planned transportation activities over the timeframe of the entire transportation plan and conformity determination.  Emissions in these analysis years must be consistent with budgets, as required by 40 CFR 93.118(b).  Analysis years are those years for which a regional emissions analysis that meets the requirements of 40 CFR 93.110, 93.111, and 93.122 must be conducted.  EPA has established and subsequently amended the analysis years for these conformity tests in past rulemakings.
B.	Description of Final Rule
      Today's action requires that when a nonattainment area that does not have an adequate maintenance plan budget for that NAAQS is using the budget test and its attainment year has passed, or its attainment date has not yet been established, a near-term year would have to be analyzed.  This near-term analysis year requirement does not apply in nonattainment areas that have adequate maintenance plan budgets or in maintenance areas.  That is, today's requirement applies to areas subject to 40 CFR 93.118(b)(1) and not to areas subject to 40 CFR 93.118(b)(2).
      For areas subject to 40 CFR 93.118(b)(1), section 93.118(d)(2) requires analysis of a year no more than five years beyond the year in which the conformity determination is being made when the attainment year has passed or has not yet been established.  Although EPA proposed to apply the near-term analysis year requirement to all nonattainment and maintenance areas in its August 13, 2010 proposal (See 75 FR 49441-49443), EPA is not finalizing this requirement for those areas that have an adequate or approved maintenance plan budget(s) (i.e., areas subject to 40 CFR 93.118(b)(2)) for the reasons described below in Section C.  Today's final rule does not affect budget test analysis year requirements where the attainment year for a given NAAQS is within the timeframe of the transportation plan and conformity determination.
      EPA is also finalizing a related change to conformity rule section 93.118(b).  Section 93.118(b) continues to require consistency 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 the provision and ensures that consistency is demonstrated for the analysis year chosen to fulfill the near-term year requirement in conformity rule section 93.118(d).  This change does not affect requirements to demonstrate consistency with the budgets where the attainment year for a given NAAQS is within the timeframe of the transportation plan and conformity determination.
      Today's near-term analysis year requirement for certain nonattainment areas (i.e., those areas that do not have an adequate maintenance plan budget) applies to conformity analyses that begin on or after the effective date of today's final rule.  It does not apply to conformity analyses that were initiated before [insert date 30 days after date of publication in the Federal Register] as described below; such conformity determinations may be completed without meeting the near-term analysis year requirement.
      EPA is clarifying in the text of section 93.118(d)(2) the time at which a conformity analysis begins for the purpose of determining whether the near-term analysis year requirement finalized today must be met.  The current conformity rule at 40 CFR 93.110(a), which contains requirements for using the latest planning assumptions in conformity analyses, explains that "[t]he `time the conformity analysis begins' is the point at which the MPO or other designated agency begins to model the impact of the proposed transportation plan or TIP on travel and/or emissions."  EPA is adopting the same definition of when a conformity analysis begins for purposes of determining whether the near-term analysis year requirement finalized today must be met.  For conformity determinations where the regional emissions analyses have begun before the effective date of today's rule, the near-term analysis year requirement does not apply.  As EPA explained in the July 1, 2004 final rule and reiterated for today's final rule, the beginning of the analysis that will support a transportation plan or TIP conformity determination should not be before VMT and emissions estimates have begun to be calculated.  EPA believes that this is a reasonable approach for today's near-term analysis year requirement because it provides certainty to implementers while ensuring that conformity is based on the most recent accurate and available information.
      EPA provided two examples describing how this requirement would be implemented in its August 13, 2010 proposed rule (75 FR 49442):  one describing a nonattainment area and one describing a maintenance area.  As EPA is not finalizing this requirement in areas subject to 40 CFR 93.118(b)(2), i.e., nonattainment areas with adequate maintenance plan budgets and maintenance areas, the maintenance area example is no longer relevant.  In the example provided showing how this requirement applies in nonattainment areas, EPA considered the 1997 ozone nonattainment areas classified as moderate that are required to demonstrate attainment in the year 2009.  Suppose one of these areas is demonstrating conformity in the year 2010 for a transportation plan that covers the years 2010 through 2030.  Under today's final rule, the budget test for such an area would be required to be performed for the years 2020, 2030 and a year no more than five years beyond 2010 (the year the conformity determination is being done), but within the timeframe of the transportation plan (in this case, any year from 2010 to 2015).
C.	Rationale and Response to Comments
	EPA believes that today's action is consistent with CAA conformity requirements that transportation activities not create new air quality violations, worsen existing violations, or delay timely attainment or achievement of interim reductions or milestones of the relevant NAAQS.  The CAA does not require specific analysis years for the conformity tests; it simply establishes the foundation for these tests and that they apply over the entire timeframe of the transportation plan and conformity determination.
      EPA believes it is appropriate to require that nonattainment areas subject to 40 CFR 93.118(b)(1) analyze a near-term year when using the budget test after the attainment year has passed or when the area's attainment date has not been established because doing so better meets CAA 176(c) requirements, and thus better protects air quality, human health and public welfare.
	Today's final rule results from EPA's experience in implementing several different NAAQS over the years, including the 1997 ozone and PM2.5 NAAQS.  While conformity applies one year after the effective date of nonattainment designations by statute, areas generally have three years to submit SIPs by statute.  Once SIP budgets are adequate or approved, areas have two years to determine conformity to those budgets (CAA 176(c)(2)(E) and 40 CFR 93.104(e)).  In cases where the attainment date is within five or six years of the date of designations, this schedule can result in areas analyzing the attainment year and using the budgets specifically established for that year only once.  In subsequent conformity determinations after the attainment year, there has been no requirement to analyze a near-term year.
	As NAAQS are established or revised, EPA believes this case will be repeated because many CAA attainment dates are within a few years of the date that areas are designated nonattainment.  The CAA establishes attainment dates for various criteria pollutants.  These attainment dates vary by pollutant and, in most cases, also vary based on the severity of an area's air quality problem.  For example, under Subpart 1 of the CAA, which covers nonattainment areas in general, areas must attain no later than five years from the effective date of their designation as nonattainment; for various other pollutants, attainment dates are often within five or six years of the date of nonattainment designations.
	In contrast to ozone areas with higher classifications where the attainment date is farther into the future, in areas with near-term attainment dates, the conformity rule's requirement to analyze the attainment year is in effect only briefly.  Once the attainment year passes, under the existing regulation, areas have to analyze only the last year of the transportation plan (or timeframe of the conformity determination), and intermediate years such that analysis years are not more than ten years apart.  Therefore, the first year analyzed could be as distant as ten years into the future.  Today's change rectifies that situation by ensuring that a near-term year would be analyzed in all cases.
      Today's action makes the analysis year requirements for nonattainment areas that do not have an adequate maintenance plan budget similar in all situations:
      * Before a nonattainment area has adequate or approved budgets, it uses the interim emissions test(s), under which a near-term analysis year has always been required (40 CFR 93.119(g)).
      * Once a nonattainment area has adequate or approved budgets, it uses the budget test and the attainment year is analyzed (if it has been established and is within the timeframe of the transportation plan and conformity determination.)  The attainment year is often a near-term year.
      * Under today's rule, a nonattainment area whose attainment year has passed (or whose attainment date has not yet been established), including nonattainment areas that have submitted maintenance plans but do not have adequate or approved maintenance plan budgets, must also analyze a near-term year when using the budget test.
      EPA believes today's final rule better protects air quality in every situation by ensuring that air quality impacts of the transportation plan and TIP are examined during the whole period of time covered by the transportation plan or conformity determination, not just the later years.
      Today's action also ensures that nonattainment areas subject to 40 CFR 93.118(b)(1) that are designated for a secondary NAAQS analyze a near-term year when using the budget test.  As described in Section VI., EPA has proposed a secondary ozone NAAQS that, if finalized as proposed, would be distinct from the primary ozone NAAQS that was proposed.  It is also possible that in the future EPA will propose to establish distinct secondary NAAQS for other transportation-related pollutants.
      The CAA does not establish specific attainment dates for secondary NAAQS.  Instead, CAA section 172(a)(2)(B) requires that areas designated nonattainment for a secondary NAAQS attain such a NAAQS as expeditiously as practicable.  This means that an area's attainment date may be established in its attainment demonstration.  Once the attainment date is established and EPA finds the budgets adequate or approves the SIP, emissions impacts of planned transportation activities in the attainment year are analyzed using the budget test.  However, an area designated for a secondary NAAQS could be using the budget test even before those budgets are found adequate or approved if it has adequate or approved budgets for another NAAQS of the same pollutant.  In this case, today's action requires that the area analyze a near-term year no more than five years in the future.  Absent this requirement, the first analysis year for the secondary NAAQS in such an area could be as much as ten years in the future.  For example, suppose an area designated nonattainment for a secondary ozone NAAQS is making a conformity determination in the year 2014 and it has 1997 ozone attainment demonstration budgets for the year 2009.  In this case, the area would have to analyze the last year of the transportation plan (e.g., 2035), intermediate years so that analysis years are no more than ten years apart (e.g., 2025), and a year within five years of the date the conformity determination is made (e.g., 2015).
      One commenter strongly supported analyzing a near-term year when the attainment year has passed or has not been established, and stated that the use of an earlier analysis year is more protective of air quality and human health as it more accurately assesses the impact of the proposed transportation program.
      A few commenters asked EPA to clarify whether the requirement to analyze a near-term year when using the budget test after the attainment year has passed or has not been established applies to maintenance areas.  EPA proposed applying the requirement to nonattainment and maintenance areas and provided an example using a maintenance area in its August 13, 2010 proposal.  However, based on comments received and interagency discussion in preparing this final rule, EPA is not finalizing this requirement for areas that have adequate or approved maintenance plan budgets (i.e., those areas subject to 40 CFR 93.118(b)(2)).  EPA believes that the near-term analysis year requirement would be unnecessary in maintenance areas and nonattainment areas currently meeting 40 CFR 93.118(b)(2)(i), which requires the following:
      "If the maintenance plan does not establish motor vehicle emissions budgets for any years other than the last year of the maintenance plan, the demonstration of consistency with the motor vehicle emissions budget(s) must be accompanied by a qualitative finding that there are no factors which would cause or contribute to a new violation or exacerbate an existing violation in the years before the last year of the maintenance plan."
      This provision already requires areas with adequate or approved maintenance plan budgets to evaluate near-term emissions impacts through a qualitative finding where the maintenance plan does not establish budgets for any years other than the last year of the maintenance plan.  After evaluating public comments and interagency consultation with DOT, EPA considers the existing qualitative requirement to serve a similar purpose to the near-term analysis year requirement.
      EPA believes that this existing qualitative finding requirement is consistent with CAA conformity requirements that transportation activities not create new air quality violations, worsen existing violations or delay timely attainment.  In its July 9, 1996 proposed rule (61 FR 36119), EPA explained that general consistency between the latest planning assumptions and the maintenance plan's assumptions and projections is a basis for finding that there will not be new or worsened violations during that period.  This is the basis for the qualitative finding.  Thus, EPA believes that the qualitative finding requirement in 40 CFR 93.118(b)(2)(i) should be sufficient to protect air quality in the near-term in areas that are subject to this requirement (i.e., areas that have adequate or approved maintenance plan budgets) and that requiring these areas to also analyze a near-term year would be redundant with this existing requirement.
      Further, EPA has historically allowed these areas to meet the qualitative finding requirement if a regional emissions analysis is completed for a year prior to the last year of the maintenance plan.  In the July 9, 1996 proposed rule, EPA explained that in lieu of a qualitative finding, states could alternatively establish budgets for intermediate years in the maintenance plan, which would then be used to determine conformity (61 FR 36119).  By not finalizing the requirement to analyze a near-term year in areas that are subject to the qualitative finding requirement found in 40 CFR 93.118(b)(2)(i), today's rule continues to allow these areas this flexibility.
      Several commenters cited resource concerns in not supporting EPA's proposal to require areas to analyze a near-term year in cases where the attainment year has passed or the attainment date has not yet been established.  Although EPA understands this concern, the purpose of today's action is to ensure that conformity requirements are consistent with the CAA.  Based on EPA's interpretation of the CAA, this action is consistent with the statute, reasonable to implement, and more protective of public health.  Nevertheless, EPA believes that by finalizing the near-term analysis year requirement for only nonattainment areas subject to 40 CFR 93.118(b)(1), some of this concern should be alleviated.
      Further, EPA believes that while this requirement may require some additional technical analysis for some nonattainment areas, it is consistent with what is required for nonattainment areas demonstrating conformity using the interim emissions tests now and is consistent with what is required for nonattainment areas demonstrating conformity using the budget test where the attainment year is analyzed.  Under today's rule, a near-term year will need to be analyzed when performing a regional emissions analysis in all cases.
      Several commenters asserted that requiring a near-term analysis year could result in more frequent TIP amendments and conformity analyses.  These commenters suggested that if projects in the first four or five years "cross analysis years," a TIP amendment and new conformity determination would be needed.  This is not so.  Conformity determinations are performed in response to transportation plan and TIP updates, transportation plan and TIP amendments, and significant changes in the design concept and scope of an individual federal project.  The CAA and DOT's planning regulations do not require a transportation plan or TIP amendment to be done when a project's timing is changed within the timeframe covered by the TIP.
      Therefore, if an area changes a project's timing within the timeframe of the TIP, there would be no TIP amendment and, thus, no new conformity determination required.  This is the case regardless of whether the project's change in timing "crosses over" a year addressed in the regional emissions analysis.  The conformity rule does not require a new conformity determination or regional emissions analysis be done in these cases.  Areas can still move projects within the timeframe of a TIP, without amending the TIP or redetermining conformity even if by doing so a project "crosses an analysis year."  However, as always, if a non-exempt project is moved from a later year of the transportation plan into the TIP, a conformity determination would have to be done.
VIII.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 [INSERT DATE ONE YEAR AFTER PUBLICATION IN THE FEDERAL REGISTER] 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 website at www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf.
IX.	Statutory and Executive Order Reviews
A.	Executive Order 12866: Regulatory Planning and Review
 	Under Executive Order 12866, (58 FR 51735; October 4, 1993), this action is a "significant regulatory action" because it raises novel legal and policy issues.  Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under 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 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 No. 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical.  Voluntary consensus standards are technical standards (e.g., 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 [INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER].

 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:  _________________________________

      _____________________________________________
      Lisa P. Jackson,
      AdministratorFor the reasons discussed in the preamble, 40 CFR Part 93 is amended as follows:
PART 93  -  [AMENDED]
1.  The authority citation for Part 93 continues to read as follows:
	Authority:  42 U.S.C. 7401-7671q.
2.  Section 93.101 is amended by removing paragraphs (1) through (6) of the definition for "National ambient air quality standards (NAAQS)" and by revising the definition for "Clean data" to read as follows:
§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.
	* * * * *
§93.105 [Amended]
3.  Section 93.105(c)(1)(vi) is amended by removing the citation "§93.109(n)(2)(iii)" and adding in its place the citation "§93.109(g)(2)(iii)".

4.  Section 93.109 is amended as follows:
	a.  By revising paragraphs (b) introductory text, (c), and (d);
      b.  By removing paragraphs (e) through (k), and redesignating paragraphs (l), (m), and (n) as paragraphs (e), (f), and (g);
      c.  In newly redesignated paragraph (g)(2),
      	i.  In paragraph (g)(2) introductory text, by removing the citation "paragraphs (c) through (m)" and adding in its place "paragraph (c)";
      	ii.  In paragraph (g)(2)(iii), by removing the citation "paragraph (n)(2)(ii)" and adding in its place "paragraph (g)(2)(ii)";
      	iii.  In paragraph (g)(2)(iii), by removing the citation "paragraph (n)(2)(ii)(C)" and adding in its place "paragraph (g)(2)(ii)(C)";
      d.	In paragraph (g)(2)(iii), by removing the citation "§93.105(c)(1)(vii)" and adding in its place "§93.105(c)(1)(vi)".
§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 §§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 §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 §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 §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 §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 §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 §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 §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 §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 §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 §93.105; and
	(B) The interim emissions tests as required by §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 §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 §93.119, if the implementation plan or plan submission that is applicable for the purposes of conformity determinations is a 15% plan or other control strategy SIP that does not include a motor vehicle emissions budget for NOX.  The implementation plan for an ozone NAAQS will be considered to establish a motor vehicle emissions budget for NOX if the implementation plan or plan submission contains an explicit NOX motor vehicle emissions budget that is intended to act as a ceiling on future NOX emissions, and the NOX motor vehicle emissions budget is a net reduction from NOX emissions levels in the SIP's baseline year.
	(5) Notwithstanding paragraphs (c)(1), (c)(2), and (c)(3) of this section, nonattainment areas with clean data for a NAAQS that have not submitted a maintenance plan and that EPA has determined are not subject to the Clean Air Act reasonable further progress and attainment demonstration requirements for that NAAQS must satisfy one of the following requirements:
	(i) The budget test and/or interim emissions tests as required by §§93.118 and 93.119 as described in paragraphs (c)(2) and (c)(3) of this section;
	(ii) The budget test as required by §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 §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 §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 §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 §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 §93.116(b).
 	(2) FHWA/FTA projects in PM10 nonattainment or maintenance areas must satisfy the appropriate hot-spot test as required by §93.116(a).
 	(3) FHWA/FTA projects in PM2.5 nonattainment or maintenance areas must satisfy the appropriate hot-spot test required by §93.116(a).
* * * * *
§93.116 [Amended]
5.  Section 93.116(b) is amended by removing the citation "§93.109(f)(1)" and adding in its place the citation "§93.109(d)(1)".

6.  Section 93.118 is amended:
      a.	In paragraph (a), by removing the citation "§93.109(c) through (n)" and adding in its place the citation "§93.109(c) through (g)";
      b.  	By revising paragraph (b) introductory text;
      c.	In paragraph (d)(2), by adding a new sentence after the first sentence and adding a new sentence to the end of the paragraph to read as follows:
§93.118 Criteria and procedures:  Motor vehicle emissions budget.
* * * * *
	(b) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each year for which the applicable (and/or submitted) implementation plan specifically establishes a motor vehicle emissions budget(s), and for each year for which a regional emissions analysis is performed to fulfill the requirements in paragraph (d) of this section, as follows:
* * * * *
(d) * * *
	(2) * * *  If the time the conformity analysis begins is on or after [INSERT DATE 30 DAYS FROM DATE OF PUBLICATION IN THE FEDERAL REGISTER]:  For nonattainment areas subject to paragraph (b)(1) of this section, if the attainment year is no longer in the timeframe of the transportation plan and conformity determination, or if the attainment date has not yet been established, the first analysis year must be no more than five years beyond the year in which the conformity determination is being made.  The "time the conformity analysis begins" for a transportation plan or TIP determination is the point at which the MPO or other designated agency begins to model the impact of the proposed transportation plan or TIP on travel and/or emissions. * * *
* * * * *
7.  Section 93.119 is amended as follows:
      a.	In paragraph (a), by removing the citation "§93.109(c) through (n)" and adding in its place the citation "§93.109(c) through (g)";
      b.	In paragraph (b) introductory text, by removing "1-hour ozone and 8-hour";
      c.	By revising paragraphs (b)(1)(ii) and (b)(2)(ii);
      d. 	By revising paragraphs (c)(1)(ii) and (c)(2)(ii);
      e.	In paragraph (d),
      	i.  By revising the heading of paragraph (d) to read "PM2.5, PM10, and NO2 areas.";
      	ii.  In paragraph (d) introductory text, by removing "PM10 and NO2" and adding in its place "PM2.5, PM10, and NO2";
      	iii.  By revising paragraph (d)(2);
      f.	By revising paragraph (e); and
      g.	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)".
§ 93.119   Criteria and procedures: Interim emissions in areas without motor vehicle emissions budgets.
	(b) * * *
	(1) * * *
	(ii) The emissions predicted in the "Action" scenario are lower than emissions in the baseline year for that NAAQS as described in paragraph (e) of this section by any nonzero amount.
	(2) * * *
	(ii) The emissions predicted in the "Action" scenario are not greater than emissions in the baseline year for that NAAQS as described in paragraph (e) of this section.
	(c) * * *
	(1) * * *
	(ii) The emissions predicted in the "Action" scenario are lower than emissions in the baseline year for that NAAQS as described in paragraph (e) of this section by any nonzero amount.
	(2) * * *
	(ii) The emissions predicted in the "Action" scenario are not greater than emissions in the baseline year for that NAAQS as described in paragraph (e) of this section.
	(d) * * *
	(2) The emissions predicted in the "Action" scenario are not greater than emissions in the baseline year for that NAAQS as described in paragraph (e) of this section.
      (e) Baseline year for various NAAQS.  The baseline year is defined as follows:
	(1) 1990, in areas designated nonattainment for the 1990 CO NAAQS or the 1990 NO2 NAAQS.
	(2) 1990, in areas designated nonattainment for the 1990 PM10 NAAQS, unless the conformity implementation plan revision required by §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.
* * * * *
 §93.121 [Amended]
	8.  Section 93.121 is amended:
      a.  In paragraph (b) introductory text, by removing the citation "§93.109(n)" and adding in its place the citation "§93.109(g)".
      b.  In paragraph (c) introductory text, by removing the citation "§93.109(l) or (m)" and adding in its place the citation "§93.109(e) or (f)".