[Federal Register Volume 77, Number 50 (Wednesday, March 14, 2012)]
[Rules and Regulations]
[Pages 14979-14988]
[FR Doc No: 2012-6207]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93

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

Transportation Conformity Rule Restructuring Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2009-0128. All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information may not be publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in www.regulations.gov or in hard copy at the Air and
Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave.
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is<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, email address:
<EMAIL_ADDRESS>telephone number:<PHONE_NUMBER>, fax number:
(734) 214-4052; or Laura Berry, Transportation and Regional Programs
Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann
Arbor, MI 48105, email address<EMAIL_ADDRESS>telephone number:
(734) 214-4858, 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. How do these amendments affect conformity SIPs?
VII. Statutory and Executive Order Reviews

I. General Information

A. Does this action apply to me?

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

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           Category                  Examples of regulated entities
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Local government.............  Local transportation and air quality
                                agencies, including metropolitan
                                planning organizations (MPOs).
State government.............  State transportation and air quality
                                agencies.
Federal government...........  Department of Transportation (Federal
                                Highway Administration (FHWA) and
                                Federal Transit Administration (FTA)).
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    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
final rule. This table lists the types of entities of which EPA is
aware that potentially could be regulated by the transportation
conformity rule. Other types of entities not listed in the table could
also be regulated. To determine whether your organization is regulated
by this action, you should carefully examine the applicability
requirements in 40 CFR 93.102. If you have questions regarding the
applicability of this action to a particular entity, consult the
persons listed in the preceding FOR FURTHER INFORMATION CONTACT
section.

B. How do I get copies of this document?

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

II. Background on the Transportation Conformity Rule

A. What is transportation conformity?

    Transportation conformity is required under Clean Air Act (CAA)
section 176(c) (42 U.S.C. 7506(c)) to ensure that transportation plans,
transportation improvement programs (TIPs) and federally supported
highway and transit projects are consistent with (conform to) the
purpose of the state air quality implementation plan (SIP). Conformity
to the purpose of the SIP means that transportation activities will not
cause or contribute to new air quality violations, worsen existing
violations, or delay timely attainment or achievement of the relevant
National Ambient Air Quality Standards (NAAQS) and interim emission
reductions or milestones. Transportation conformity (hereafter,
``conformity'') applies to areas that are designated nonattainment, and
those areas redesignated to attainment after 1990 (``maintenance
areas'') for transportation-related criteria pollutants: Carbon
monoxide (CO), ozone, nitrogen dioxide (NO2) and particulate
matter (PM2.5 and PM10).\1\
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    \1\ 40 CFR 93.102(b)(1) defines PM2.5 and
PM10 as particles with an aerodynamic diameter less than
or equal to a nominal 2.5 and 10 micrometers, respectively.
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    EPA's conformity rule (40 CFR Parts 51.390 and 93 Subpart A)
establishes the criteria and procedures for determining whether
transportation activities conform to the SIP. EPA first promulgated the
conformity rule on November 24, 1993 (58 FR 62188), and subsequently
published several other amendments. DOT is EPA's federal partner in
implementing the conformity regulation. EPA consulted with the U.S.
Department of Transportation (DOT), and they concur on this final rule.

B. Why are we issuing this final rule?

    EPA is amending the conformity rule so that its requirements will
clearly apply to areas designated for any future new or revised NAAQS.
To achieve this, today's final rule restructures two sections of the
conformity rule, 40 CFR 93.109 and 93.119, and makes changes to certain
definitions in 40 CFR 93.101. These amendments are intended to minimize
the need to make administrative updates to the conformity rule merely
to reference a specific new or revised NAAQS. EPA has already
undertaken two conformity rulemakings primarily for the purpose of
addressing a new or revised NAAQS. See the March 24, 2010
Transportation Conformity Rule PM2.5 and PM10
Amendments (``PM Amendments'') final rule and the July 1, 2004 final
rule (75 FR 14260, and 69 FR 40004, respectively). Due to other CAA
requirements, EPA will continue to establish new or revised NAAQS in
the future. EPA believes that today's conformity rule revisions provide
more certainty to implementers without compromising air quality
benefits from the current program. These changes are described in
Sections III. and V. of today's final rule.
    EPA is also clarifying in today's final rule the additional
conformity test option available to current ozone ``clean data'' areas
and is extending that option to any nonattainment areas for which EPA
has developed a clean data regulation or policy.\2\ This provision
should eliminate the need to update the conformity rule in the future
in order to extend this conformity option to other NAAQS. See Section
IV. of today's final rule for further details.
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    \2\ Clean data refers to air quality monitoring data determined
by EPA to indicate attainment of the NAAQS. Note that we are
finalizing a minor change to the definition of clean data found in
conformity rule section 93.101; see Section IV. of today's notice.
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    EPA is also finalizing a change to the wording of conformity rule
section 93.118(b) that does not change its requirements. Section
93.118(b) of the conformity rule continues to require consistency \3\
for any years where the SIP establishes a budget and for any years that
are analyzed to meet the requirements in 40 CFR 93.118(d). This change
simplifies this provision and eliminates repetitiveness within the
regulation, but does not change the requirements for demonstrating
consistency. EPA did not receive comments on this section, and we are
finalizing it as proposed.
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    \3\ That is, transportation plan and TIP emissions must be less
than or equal to the budget(s) in the applicable SIP.
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    Section VI. covers how today's final rule affects conformity SIPs.
A conformity SIP includes a state's specific criteria and procedures
for certain aspects of the conformity process.\4\
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    \4\ For more information about conformity SIPs, see EPA's
``Guidance for Developing Transportation Conformity State
Implementation Plans (SIPs)'', (EPA-420-B-09-001, January 2009).
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    In the August 13, 2010 Federal Register notice, EPA had proposed
that a near-term year would have to be analyzed when using the budget
test when an area's attainment date has passed or has not yet been
established (75 FR 49435). EPA is not taking final action on this
proposal at this time.
    Finally, EPA received several comments requesting that we issue a
rulemaking, rather than guidance, to address conformity requirements in
areas designated for a distinct secondary NAAQS. Transportation
conformity applies to any NAAQS for transportation-related criteria
pollutants, including secondary

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

A. Overview

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

B. Description of the Final Rule

    In today's action, EPA is restructuring 40 CFR 93.109 so that it
contains two paragraphs:
     Regional conformity tests, which are covered by section
93.109(c); and,
     Project-level conformity tests, which are covered by
section 93.109(d).
    New paragraph (c). Today's final rule revises 40 CFR 93.109(c) so
that requirements for using the budget test and/or interim emissions
tests apply for any NAAQS in the following way:
     First, a nonattainment or maintenance area for a specific
NAAQS must use the budget test, if the area has adequate or approved
SIP budgets for that specific NAAQS (section 93.109(c)(1)). For
example, once a 2006 PM2.5 nonattainment area has adequate
or approved SIP budgets for the 2006 PM2.5 NAAQS, it must
use those budgets in the budget test as the regional test of conformity
for the 2006 PM2.5 NAAQS;
     Second, if an area does not have such budgets but has
adequate or approved budgets from a SIP that addresses a different
NAAQS of the same criteria pollutant, these budgets must be used in the
budget test. Where such budgets do not cover the entire area, the
interim emissions test(s) may also have to be used (section
93.109(c)(2)). For example, before a 2006 PM2.5 area has
adequate or approved budgets for the 2006 PM2.5 NAAQS, it
must use the budget test, using budgets from an adequate or approved
SIP for the 1997 PM2.5 NAAQS, if it has them. If these
budgets do not cover the entire 2006 PM2.5 area, one of the
interim emissions tests may also have to be used;
     Third, if an area has no adequate or approved SIP budgets
for that criteria pollutant at all, it must use the interim emissions
test(s) (section 93.109(c)(3)). For example, if a 2006 PM2.5
area has no adequate or approved budgets for any PM2.5
NAAQS, it must use one of the interim emissions tests, as described in
40 CFR 93.119.
    These conformity test requirements are unchanged from the previous
regulation; today's rulemaking restates them in terms that apply to any
NAAQS.
    In addition, in conformity rule section 93.109(c)(5), EPA is
expanding the clean data conformity option to all clean data areas for
which EPA has a clean data regulation or policy.\6\ See Section IV.
below for further information.
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    \6\ Clean data refers to air quality monitoring data determined
by EPA to indicate attainment of the NAAQS. Note that this action
finalizes a minor change to the definition of clean data which is
found in section 93.101 of the conformity rule; see Section IV. of
today's rulemaking.
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    New paragraph (d). With regard to project-level requirements,
today's final rule places the existing rule's requirements for hot-spot
analyses of projects in CO, PM10, and PM2.5
nonattainment and maintenance areas together in one paragraph (section
93.109(d)(1), (2), and (3)). These requirements are unchanged from the
previous regulation; today's rulemaking simply groups them together
under one paragraph.\7\
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    \7\ Project-level conformity determinations are typically
developed during the National Environmental Policy Act (NEPA)
process, although conformity requirements are separate from NEPA-
related requirements. Today's action to restructure 40 CFR 93.109
does not affect how NEPA-related requirements are implemented in the
field.
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    Related amendments. Today's final rule removes the definitions for
``1-hour ozone NAAQS'', ``8-hour ozone NAAQS'', ``24-hour
PM10 NAAQS'', ``1997 PM2.5 NAAQS'', ``2006
PM2.5 NAAQS'', and ``Annual PM10 NAAQS'' from 40
CFR 93.101. These definitions are no longer necessary because the
updated regulatory text for sections 93.109 and 93.119 \8\ applies to
any and all NAAQS of those pollutants for which conformity applies. In
addition, today's final rule updates references to 40 CFR 93.109 found
elsewhere in the regulation. Finally, today's final rule corrects a
reference to the consultation requirements found in 93.109(g)(2)(iii)
which applies to isolated rural areas.
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    \8\ See Section V. of today's rulemaking for revisions to 40 CFR
93.119.
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C. Rationale and Response to Comments

    EPA is restructuring 40 CFR 93.109 because a recent court decision
has already established the legal parameters for regional conformity
tests. In Environmental Defense v. EPA, 467 F.3d 1329 (DC Cir. 2006),
the Court of Appeals for the District of Columbia Circuit held that
where a motor vehicle emissions budget developed for the revoked 1-hour
ozone NAAQS existed in an approved SIP, that budget must be used to
demonstrate conformity to the 8-hour ozone NAAQS until the SIP is
revised to include budgets for the new (or revised) NAAQS. EPA
incorporated the court's decision for ozone conformity tests in its
January 24, 2008 final rule (73 FR 4434). While the Environmental
Defense case concerned ozone, EPA believes the court's holding is
relevant for other pollutants for which

conformity must be demonstrated. Consequently, EPA believes the
hierarchy of regional conformity tests described above, which is
already found in the existing rule for 1997 ozone and 2006
PM2.5 areas, would apply for any NAAQS of a pollutant for
which the conformity rule applies.
    EPA's restructuring of 40 CFR 93.109 and elimination of certain
definitions in 40 CFR 93.101, along with the standardization of the
baseline year in 40 CFR 93.119 (see Section V. of today's final rule
for details), should make the rule sufficiently flexible to address any
future NAAQS changes, including the promulgation of a new or revised
NAAQS or revocation of a NAAQS, without additional rulemakings.
    The restructured section 93.109 does not change the criteria and
procedures for determining conformity of transportation plans, TIPs,
and projects and is consistent with the regional conformity test
requirements described in the PM Amendments final rule (75 FR 14266-
14274). The rationale for the required regional tests has been
described in previous rulemakings.\9\ The rationale for the
requirements for project-level conformity tests in CO,
PM2.5, and PM10 areas has also been described in
previous rulemakings.\10\
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    \9\ See EPA's March 24, 2010 final rule (75 FR 14266-14273). See
also EPA's July 1, 2004 final rule (69 FR 40019-40031).
    \10\ For further details on project-level conformity test
requirements, please refer to the March 10, 2006 final rule (71 FR
12469-12506). See also EPA's January 24, 2008 final rule (73 FR
4432-4434), EPA's July 1, 2004 final rule (69 FR 40036-40038; 40056-
40058), the August 15, 1997 final rule (62 FR 43798), and the
November 24, 1993 final rule (58 FR 62199-62201; 62207-62208; 62212-
62213).
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    Today's restructuring of 40 CFR 93.109 reduces the likelihood that
EPA would have to amend the conformity rule when new or revised NAAQS
are promulgated, which has several benefits. First, implementers will
know the requirements for regional conformity tests for any potential
area designated nonattainment for a new or revised NAAQS, even before
such area's official designation, and will not need to wait for any
additional conformity rulemaking from EPA to know what type of regional
conformity test will apply. Second, reducing the need to amend the
conformity regulation each time a NAAQS change is made will save
government resources and taxpayer dollars, and will reduce stakeholder
efforts needed to keep track of regulatory changes.
    All commenters who addressed this proposal supported EPA's approach
for restructuring 40 CFR 93.109. Several commenters agreed with EPA
that these changes will help streamline the conformity regulation and
reduce the need to revise the conformity rule when new or revised NAAQS
are promulgated. One commenter opined that the restructuring of 40 CFR
93.109 provides a clear and concise organization of the conformity
requirements and agreed with EPA's rationale that it will be beneficial
for implementing organizations to know the conformity requirements in
advance of any new or revised NAAQS.
    A few commenters requested that EPA clarify whether areas that have
an adequate or approved NOX SIP budget for a specific NAAQS
(e.g., the 1997 ozone NAAQS) would have to use that NOX
budget to demonstrate conformity for another pollutant, such as
PM2.5.
    A NOX budget in an ozone SIP would apply for conformity
for an ozone NAAQS only, and could not be used as a budget for any
other pollutant. CAA section 176(c)(1)(A) establishes that
nonattainment and maintenance areas must demonstrate conformity to a
SIP's ``purpose of eliminating or reducing the severity and number of
violations of the national ambient air quality standards and achieving
expeditious attainment of such standards.'' The purpose of a SIP is
tied to the pollutant it addresses. The 2006 court case cited above in
this section supports this point. In that ruling, the court held that
where a budget developed for the revoked 1-hour ozone NAAQS existed in
an approved SIP, that budget must be used to demonstrate conformity to
the 8-hour ozone NAAQS until a SIP is revised to include budgets for
the new or revised NAAQS. The court did not refer to adequate or
approved NOX or VOC budgets from a SIP that addressed a
pollutant other than ozone, and did not indicate that such budgets
would need to be used. In accordance with this court decision, if, for
example, a 1997 ozone area has an approved 1997 ozone attainment
demonstration with a NOX budget, this NOX budget
must be used to demonstrate conformity for the 1997 ozone NAAQS and
could also be used to demonstrate conformity for any future ozone NAAQS
before the area has a SIP for that ozone NAAQS. However, the
NOX budget could not be used to demonstrate conformity for a
PM or NO2 NAAQS because doing so would not be consistent
with CAA section 176(c) requirements that conformity be demonstrated to
the relevant SIP.
    Finally, while pollutants may have precursors in common, control
strategies may differ by pollutant and the seasons for which the budget
is established may differ by pollutant as well. For example, precursor
SIP budgets for the ozone NAAQS address a typical summer day, because
ozone is a summertime air quality problem. However, PM2.5
violations in the same geographic area may have occurred during winter
months. An ozone precursor SIP budget established for a typical summer
day has no relevance in addressing a wintertime PM2.5
problem.
    EPA believes that section 93.109(c)(2) in today's final rule
provides sufficient clarity for these situations because it specifies
that where an area does not have an adequate or approved SIP budget for
a NAAQS, it would use an approved or adequate SIP budget(s) for another
NAAQS of the same pollutant as the test of conformity. No additional
changes are necessary.

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

A. Overview

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

B. Description of the Final Rule

    Today, EPA is clarifying that any nonattainment area that EPA
determines has air quality monitoring data that meet the requirements
of 40 CFR parts 50 and 58 and that show attainment of a NAAQS--a
``clean data'' area \11\--can choose to satisfy the regional conformity
test requirements by using on-road emissions from the most recent year
of clean data as the budget(s) for that NAAQS rather than using the
interim emissions test(s) per 40 CFR 93.119. The area may do this if
the following are true:
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    \11\ See conformity rule section 93.101 for a definition of
``clean data.''
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     The state or local air quality agency requests that
budgets be established by the EPA determination of attainment (Clean
Data) rulemaking for that NAAQS, and EPA approves the request; and,
     The area has not submitted a maintenance plan for that
NAAQS and EPA has determined (through the Clean Data rulemaking) that
the area is not subject to the CAA reasonable further progress and
attainment demonstration requirements for the relevant NAAQS.

    Otherwise, clean data areas for a NAAQS must satisfy the regional
conformity test requirements using either the budget test if they have
adequate or approved SIP budgets (per 40 CFR 93.109 and 93.118), or the
interim emissions test(s) per 40 CFR 93.119 if they do not have
adequate or approved SIP budgets.
    In today's rule, EPA is not making changes to its existing clean
data regulations or policies or to the conformity option for clean data
areas. EPA is merely clarifying this conformity option and extending it
to any nonattainment areas that are covered by EPA's clean data
regulations or clean data policies.
    The regulatory text for this flexibility is found in section
93.109(c)(5) of the conformity rule. This text clarifies that before
this flexibility may be used: (1) the state or local air quality agency
must make the request that the emissions in the most recent year for
which EPA determines the area is attaining (i.e., the most recent year
that the area has clean data) be used as budgets, and (2) EPA would
have to approve that request through notice-and-comment rulemaking.
    Today's rule also updates the definition of ``clean data'' in 40
CFR 93.101 to describe this term more accurately. The updated
definition references the appropriate requirements at 40 CFR part 50,
as well as part 58.

C. Rationale and Response to Comments

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

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

A. Overview

    As stated above, conformity is demonstrated with one or both of the
interim emissions tests if an adequate or approved SIP budget is not
available. The interim emissions tests include different forms of the
``build/no-build'' test and ``baseline year'' test. In general, the
baseline year test compares emissions from the planned transportation
system to emissions that occurred in the relevant baseline year. The
build/no-build test compares emissions from the planned (or ``build'')
transportation system with the existing (or ``no-build'')
transportation system in the analysis year.

B. Description of Final Rule

    Today's action revises 40 CFR 93.119 to apply more generally to any
NAAQS for a given pollutant. First, the section has been reorganized to
place the baseline years for existing NAAQS in one paragraph (revised
paragraph (e)). Today's action also revises 40 CFR 93.119 to define the
baseline year for any NAAQS promulgated after 1997 by reference to
another requirement. Rather than naming a specific year, the conformity
rule defines the baseline year for conformity purposes as the most
recent year for which EPA's Air Emissions Reporting Requirements (AERR)
(40 CFR Part 51.30(b)) requires submission of on-road mobile source
emissions inventories, as of the effective date of EPA's nonattainment
designations for any NAAQS promulgated after 1997. AERR requires on-
road mobile source emission inventories to be submitted for every third
year, for example, 2002, 2005, 2008, 2011, 2014, etc.\14\
---------------------------------------------------------------------------

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

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

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

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

    The existing interagency consultation process (40 CFR
93.105(c)(1)(i)) must be used to determine the latest assumptions and
models for generating baseline year motor vehicle emissions to complete
any baseline year test. The baseline year emissions level that is used
in conformity must be based on the latest planning assumptions
available, the latest emissions model, and appropriate methods for
estimating travel and speeds as required by 40 CFR 93.110, 93.111,
93.122 of the current conformity rule.
    As described in earlier rulemakings, the baseline year interim
emissions test can be completed with a submitted or draft baseline year
motor vehicle emissions SIP inventory, if the SIP reflects the latest
information and models.\16\ An MPO or state DOT, in consultation with
state and local air agencies, could also develop baseline year
emissions as part of the conformity analysis. EPA believes that a
submitted or draft SIP baseline inventory may be the most appropriate
source for completing the baseline year tests for an area's first
conformity determination under a new or revised NAAQS. This is due to
the fact that SIP inventories are likely to be under development at the
same time as these conformity determinations, and such inventories must
be based on the latest available data at the time they are developed
(CAA section 172(c)(3)).
---------------------------------------------------------------------------

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

C. Rationale and Response to Comments

    EPA believes that today's final rule results in an environmentally
protective and legal baseline year for conformity for any NAAQS
promulgated after 1997 and best accomplishes several important goals.
    First, as described in the August 13, 2010 proposed rule (75 FR
49440), EPA believes it is important to coordinate the conformity
baseline year with the year used for SIP planning and an emissions
inventory year. This was EPA's rationale for using 2002 as the baseline
year for interim emissions tests in nonattainment areas for the 1997
ozone and PM2.5 NAAQS (69 FR 40014-40015). It was also EPA's
rationale for finalizing the same baseline year definition in today's
final rule for 2006 PM2.5 nonattainment areas in the March
24, 2010 final rule: this definition resulted in a conformity baseline
year of 2008 for the 2006 PM2.5 NAAQS (75 FR 14265-14266).
Therefore, today's conformity baseline year is consistent with how EPA
has implemented the conformity baseline year for new or revised NAAQS
in the past.
    Second, today's baseline year definition also ensures that the
baseline year for any future NAAQS is always fairly recent, which is
appropriate for meeting CAA conformity requirements and is
environmentally protective. Because the AERR requires submission of
inventories every three years, the baseline year for any NAAQS
promulgated after 1997 will always be either the same year as the year
in which designations are effective, or one or two years prior to the
effective date of the designations. For example, in the case of the
2006 PM2.5 NAAQS, nonattainment designations became
effective on December 14, 2009, and the baseline year for conformity
purposes is 2008 for areas designated nonattainment for the 2006
PM2.5 NAAQS, the year before the effective date of the
designations (See the PM Amendments final rule for details (75 FR
14265-14266)).
    EPA also believes that coordinating the baseline year for interim
emissions tests with other data collection and inventory requirements
would allow state and local governments to use their resources more
efficiently. Given that the CAA requires EPA to review the NAAQS for
possible revision once every five years, today's baseline year
provision standardizes the process for selecting an appropriate
baseline year for any NAAQS promulgated in the future.
    Finally, today's rule for the baseline year definition provides
implementers with knowledge of the baseline year for any future new or
revised NAAQS upon the effective date of nonattainment designations for
that NAAQS, without having to wait for EPA to amend the conformity
rule. As a result, MPOs and other implementers should understand
conformity requirements for future NAAQS revisions more quickly, which
should enable them to fully utilize the 12-month conformity grace
period to complete conformity determinations for new nonattainment
areas.
    Several commenters voiced support for coordinating the conformity
baseline year with an emissions inventory year, in part because EPA
could avoid additional rulemakings to implement future baseline year
changes. Several commenters also agreed that this change would be
beneficial since implementing organizations would know the conformity
requirements in advance of any new or revised NAAQS.
    Some commenters expressed concern that emissions inventories are
not always submitted on time and recommended that the conformity rule
require that the baseline year for the baseline year interim emissions
test be the most recent emissions inventory year that has been
completed and submitted to EPA. One commenter recommended that the
baseline year be at least three years older than the date the first
conformity determination is required and that if the most recent
completed emissions inventory is less than three years old, the
previous emissions inventory should be used. However, these suggestions
could lead to different baseline years in areas designated for the same
NAAQS, which may not meet statutory requirements, and would be
confusing to track as well as inequitable. EPA's final rule establishes
the same baseline year for every area designated for a particular NAAQS
regardless of whether an individual area submitted its inventory on
time. If an area has not submitted a final AERR inventory for the
relevant conformity baseline year, there are other options for
generating on-road mobile source emissions in the baseline year,
discussed above under B. of this section.
    Another commenter opined that if a later year than currently
required is used as a baseline year for the baseline year interim
emissions test, and emissions are on a downward trend, the proposed
change would make the baseline year interim emissions test more
stringent than what was proposed. The commenter suggested that this
concern may be mitigated by keeping the baseline year for all future
NAAQS at or near the year 2002 that was

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

VI. How do these amendments affect conformity SIPs?

    Today's action does not affect existing conformity SIPs that were
prepared in accordance with current CAA requirements since the final
rule does not affect the provisions that are required to be in a
conformity SIP. CAA section 176(c)(4)(E) requires a conformity SIP to
include the state's criteria and procedures for interagency
consultation (40 CFR 93.105) and two additional provisions related to
written commitments for certain control and mitigation measures (40 CFR
93.122(a)(4)(ii) and 93.125(c)).
    However, the conformity rule also requires states to submit a new
or revised conformity SIP to EPA within 12 months of the Federal
Register publication date of any final conformity amendments if a
state's conformity SIP includes the provisions of such final amendments
(40 CFR 51.390(c)). Therefore, such a conformity SIP revision is
required to be submitted by March 14, 2013 in states with approved
conformity SIP's containing provisions addressed by today's action. EPA
encourages these states to revise their conformity SIP to include only
the three required sections so that future changes to the conformity
rule do not require further revisions to conformity SIPs. EPA will
continue to work with states to approve such revisions as expeditiously
as possible through flexible administrative techniques, such as
parallel processing and direct final rulemaking.
    Finally, any state that has not previously been required to submit
a conformity SIP to EPA must submit a conformity SIP within 12 months
of an area's nonattainment designation (40 CFR 51.390(c)).
    For additional information on conformity SIPs, please refer to the
January 2009 guidance entitled, ``Guidance for Developing
Transportation Conformity State Implementation Plans'' available on
EPA's Web site at www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735; October 4, 1993), this
action is a ``significant regulatory action'' because it raises novel
legal and policy issues. Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under Executive Orders
12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in
response to OMB recommendations have been documented in the docket for
this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
The information collection requirements of EPA's existing
transportation conformity regulations and the proposed revisions in
today's action are already covered by EPA information collection
request (ICR) entitled, ``Transportation Conformity Determinations for
Federally Funded and Approved Transportation Plans, Programs and
Projects.'' The Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing conformity regulations under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control
number 2060-0561. The OMB control numbers for EPA's regulations in 40
CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of rules subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the Agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
organizations and small government jurisdictions.
    For purposes of assessing the impacts of today's final rule on
small entities, small entity is defined as: (1) a small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
regulation directly affects federal agencies and metropolitan planning
organizations that, by definition, are designated under federal
transportation laws only for metropolitan areas with a population of at
least 50,000. These organizations do not constitute small entities
within the meaning of the Regulatory Flexibility Act. Therefore, this
final rule will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act

    This action does not contain a Federal mandate that may result in
expenditures of $100 million or more for state, local, and tribal
governments, in the aggregate, or the private sector in any one year.
This final rule implements already established law that imposes
conformity requirements and does not itself impose requirements that
may result in expenditures of $100 million or more in any year. Thus,
this rule is not subject to the requirements of Sections 202 and 205 of
the UMRA.
    This final rule is also not subject to the requirements of Section
203 of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule will not
significantly or uniquely

impact small governments because it directly affects federal agencies
and metropolitan planning organizations that, by definition, are
designated under federal transportation laws only for metropolitan
areas with a population of at least 50,000.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. The CAA requires conformity to
apply in certain nonattainment and maintenance areas as a matter of
law, and this action merely establishes and revises procedures for
transportation planning entities in subject areas to follow in meeting
their existing statutory obligations. Thus, Executive Order 13132 does
not apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The CAA requires
conformity to apply in any area that is designated nonattainment or
maintenance by EPA. Because today's amendments to the conformity rule
do not significantly or uniquely affect the communities of Indian
tribal governments, Executive Order 13175 does not apply to this
action.

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

    This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it is not economically significant as defined
in EO 12866, and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 18355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. It does not create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency regarding energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, Section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it maintains or
increases the level of environmental protection for all affected
populations without having any disproportionately high and adverse
human health or environmental effects on any population, including any
minority or low-income population.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a major rule as defined by 5 U.S.C.
804(2). This rule will be effective April 13, 2012.

List of Subjects in 40 CFR Part 93

    Administrative practice and procedure, Air pollution control,
Carbon monoxide, Clean Air Act, Environmental protection, Highways and
roads, Intergovernmental relations, Mass transportation, Nitrogen
dioxide, Ozone, Particulate matter, Transportation, Volatile organic
compounds.

    Dated: March 8, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons discussed in the preamble, 40 CFR part 93 is
amended as follows:

PART 93--[AMENDED]

0
1. The authority citation for part 93 continues to read as follows:

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

0
2. Section 93.101 is amended by removing paragraphs (1) through (6) of
the definition for ``National ambient air quality standards (NAAQS)''
and by revising the definition for ``Clean data'' to read as follows:

Sec.  93.101  Definitions.

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

Sec.  93.105  [Amended]

0
3. Section 93.105(c)(1)(vi) is amended by removing the citation ``Sec.
93.109(n)(2)(iii)'' and adding in its place the citation ``Sec.
93.109(g)(2)(iii)''.

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

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

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

* * * * *
    (b) Table 1 in this paragraph indicates the criteria and procedures
in Sec. Sec.  93.110 through 93.119 which apply for transportation
plans, TIPs, and FHWA/FTA projects. Paragraph (c) of this section
explains when the budget and interim emissions tests are required for
each pollutant and NAAQS. Paragraph (d) of this section explains when a
hot-spot test is required. Paragraph (e) of this section addresses
conformity requirements for areas with approved or adequate limited
maintenance plans. Paragraph (f) of this section addresses
nonattainment and maintenance areas which EPA has determined have
insignificant motor vehicle emissions. Paragraph (g) of this section
addresses isolated rural nonattainment and maintenance areas. Table 1
follows:
* * * * *
    (c) Regional conformity test requirements for all nonattainment and
maintenance areas. This provision applies one year after the effective
date of EPA's nonattainment designation for a NAAQS in accordance with
Sec.  93.102(d) and until the effective date of revocation of such
NAAQS for an area. In addition to the criteria listed in Table 1 in
paragraph (b) of this section that are required to be satisfied at all
times, in such nonattainment and maintenance areas conformity
determinations must include a demonstration that the budget and/or
interim emissions tests are satisfied as described in the following:
    (1) In all nonattainment and maintenance areas for a NAAQS, the
budget test must be satisfied as required by Sec.  93.118 for
conformity determinations for such NAAQS made on or after:
    (i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan for such NAAQS is adequate for
transportation conformity purposes;
    (ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
    (2) Prior to paragraph (c)(1) of this section applying for a NAAQS,
in a nonattainment area that has approved or adequate motor vehicle
emissions budgets in an applicable implementation plan or
implementation plan submission for another NAAQS of the same pollutant,
the following tests must be satisfied:
    (i) If the nonattainment area covers the same geographic area as
another NAAQS of the same pollutant, the budget test as required by
Sec.  93.118 using the approved or adequate motor vehicle emissions
budgets for that other NAAQS;
    (ii) If the nonattainment area covers a smaller geographic area
within an area for another NAAQS of the same pollutant, the budget test
as required by Sec.  93.118 for either:
    (A) The nonattainment area, using corresponding portion(s) of the
approved or adequate motor vehicle emissions budgets for that other
NAAQS, where such portion(s) can reasonably be identified through the
interagency consultation process required by Sec.  93.105; or
    (B) The area designated nonattainment for that other NAAQS, using
the approved or adequate motor vehicle emissions budgets for that other
NAAQS. If additional emissions reductions are necessary to meet the
budget test for the nonattainment area for a NAAQS in such cases, these
emissions reductions must come from within such nonattainment area;
    (iii) If the nonattainment area covers a larger geographic area and
encompasses an entire area for another NAAQS of the same pollutant,
then either (A) or (B) must be met:
    (A)(1) The budget test as required by Sec.  93.118 for the portion
of the nonattainment area covered by the approved or adequate motor
vehicle emissions budgets for that other NAAQS; and
    (2) the interim emissions tests as required by Sec.  93.119 for one
of the following areas: the portion of the nonattainment area not
covered by the approved or adequate budgets for that other NAAQS; the
entire nonattainment area; or the entire portion of the nonattainment
area within an individual state, in the case where separate adequate or
approved motor vehicle emissions budgets for that other NAAQS are
established for each state of a multi-state nonattainment or
maintenance area.
    (B) The budget test as required by Sec.  93.118 for the entire
nonattainment area using the approved or adequate motor vehicle
emissions budgets for that other NAAQS.
    (iv) If the nonattainment area partially covers an area for another
NAAQS of the same pollutant:
    (A) The budget test as required by Sec.  93.118 for the portion of
the nonattainment area covered by the corresponding portion of the
approved or adequate motor vehicle emissions budgets for that other
NAAQS, where they can be reasonably identified through the interagency
consultation process required by Sec.  93.105; and
    (B) The interim emissions tests as required by Sec.  93.119, when
applicable, for either: the portion of the nonattainment area not
covered by the approved or adequate budgets for that other NAAQS; the
entire nonattainment area; or the entire portion of the nonattainment
area within an individual state, in the case where separate adequate or
approved motor vehicle emissions budgets for that other NAAQS are
established for each state of a multi-state nonattainment or
maintenance area.
    (3) In a nonattainment area, the interim emissions tests required
by Sec.  93.119 must be satisfied for a NAAQS if neither paragraph
(c)(1) nor paragraph (c)(2) of this section applies for such NAAQS.
    (4) An ozone nonattainment area must satisfy the interim emissions
test for NOX, as required by Sec.  93.119, if the
implementation plan or plan submission that is applicable for the
purposes of conformity determinations is a 15% plan or other control
strategy SIP that does not include a motor vehicle emissions budget for
NOX. The implementation plan for an ozone NAAQS will be
considered to establish a motor vehicle emissions budget for
NOX if the implementation plan or plan submission contains
an explicit NOX motor vehicle emissions budget that is
intended to act as a ceiling on future NOX emissions, and
the NOX motor vehicle emissions budget is a net reduction
from NOX emissions levels in the SIP's baseline year.
    (5) Notwithstanding paragraphs (c)(1), (c)(2), and (c)(3) of this
section, nonattainment areas with clean data for a NAAQS that have not
submitted a maintenance plan and that EPA has determined are not
subject to the Clean Air Act reasonable further progress and attainment
demonstration requirements

for that NAAQS must satisfy one of the following requirements:
    (i) The budget test and/or interim emissions tests as required by
Sec. Sec.  93.118 and 93.119 as described in paragraphs (c)(2) and
(c)(3) of this section;
    (ii) The budget test as required by Sec.  93.118, using the
adequate or approved motor vehicle emissions budgets in the submitted
or applicable control strategy implementation plan for the NAAQS for
which the area is designated nonattainment (subject to the timing
requirements of paragraph (c)(1) of this section); or
    (iii) The budget test as required by Sec.  93.118, using the motor
vehicle emissions in the most recent year of attainment as motor
vehicle emissions budgets, if the state or local air quality agency
requests that the motor vehicle emissions in the most recent year of
attainment be used as budgets, and EPA approves the request in the
rulemaking that determines that the area has attained the NAAQS for
which the area is designated nonattainment.
    (6) For the PM10 NAAQS only, the interim emissions tests
must be satisfied as required by Sec.  93.119 for conformity
determinations made if the submitted implementation plan revision for a
PM10 nonattainment area is a demonstration of
impracticability under CAA Section 189(a)(1)(B)(ii) and does not
demonstrate attainment.
    (d) Hot-spot conformity test requirements for CO, PM2.5, and PM10
nonattainment and maintenance areas. This provision applies in
accordance with Sec.  93.102(d) for a NAAQS and until the effective
date of any revocation of such NAAQS for an area. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, project-level conformity
determinations in CO, PM10, and PM2.5
nonattainment and maintenance areas must include a demonstration that
the hot-spot tests for the applicable NAAQS are satisfied as described
in the following:
    (1) FHWA/FTA projects in CO nonattainment or maintenance areas must
satisfy the hot-spot test required by Sec.  93.116(a) at all times.
Until a CO attainment demonstration or maintenance plan is approved by
EPA, FHWA/FTA projects must also satisfy the hot-spot test required by
Sec.  93.116(b).
    (2) FHWA/FTA projects in PM10 nonattainment or
maintenance areas must satisfy the appropriate hot-spot test as
required by Sec.  93.116(a).
    (3) FHWA/FTA projects in PM2.5 nonattainment or
maintenance areas must satisfy the appropriate hot-spot test required
by Sec.  93.116(a).
* * * * *

Sec.  93.116  [Amended]

0
5. Section 93.116(b) is amended by removing the citation ``Sec.
93.109(f)(1)'' and adding in its place the citation ``Sec.
93.109(d)(1)''.
0
6. Section 93.118 is amended:

0
a. In paragraph (a), by removing the citation ``Sec.  93.109(c) through
(n)'' and adding in its place the citation ``Sec.  93.109(c) through
(g)''; and
0
b. By revising paragraph (b) introductory text.

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

* * * * *
    (b) Consistency with the motor vehicle emissions budget(s) must be
demonstrated for each year for which the applicable (and/or submitted)
implementation plan specifically establishes a motor vehicle emissions
budget(s), and for each year for which a regional emissions analysis is
performed to fulfill the requirements in paragraph (d) of this section,
as follows:
* * * * *

0
7. Section 93.119 is amended as follows:
0
a. In paragraph (a), by removing the citation ``Sec.  93.109(c) through
(n)'' and adding in its place the citation ``Sec.  93.109(c) through
(g)'';
0
b. In paragraph (b) introductory text, by removing ``1-hour ozone and
8-hour'';
0
c. By revising paragraphs (b)(1)(ii) and (b)(2)(ii);
0
d. By revising paragraphs (c)(1)(ii) and (c)(2)(ii);
0
e. By revising the heading of paragraph (d);
0
f. In paragraph (d) introductory text, by removing ``PM10
and NO2'' and adding in its place ``PM2.5,
PM10, and NO2'';
0
g. By revising paragraph (d)(2);
0
h. By revising paragraph (e); and
0
i. In paragraph (g)(2), by removing ``(b)(2)(i), (c)(2)(i), (d)(1), and
(e)(1)'' and adding in its place ``(b)(2)(i), (c)(2)(i), and (d)(1)''.

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

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

Sec.  93.121  [Amended]

0
8. Section 93.121 is amended:
0
a. In paragraph (b) introductory text, by removing the citation ``Sec.
93.109(n)'' and adding in its place the citation ``Sec.  93.109(g)''.
    b. In paragraph (c) introductory text, by removing the citation
``Sec.  93.109(l) or (m)'' and adding in its place the citation ``Sec.
93.109(e) or (f)''.

[FR Doc. 2012-6207 Filed 3-13-12; 8:45 am]
BILLING CODE 6560-50-P