DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 1 of 32

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 93 

EPA-HQ-OAR-2011-0393; FRL_XXXX-X

RIN 2060-AR03 

Transportation Conformity Rule: MOVES Regional Grace Period 

Extension

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct final action to extend the grace period 

before the MOtor Vehicle Emission Simulator model (currently 

MOVES2010a) is required for regional emissions analyses for 

transportation conformity determinations (“regional conformity 

analyses”). This final rule provides an additional year to the 

previously established two-year conformity grace period. As a result, 

EPA is announcing in this Federal Register that MOVES is not required 

for regional conformity analyses until March 2, 2013. This action 

does not affect EPA’s previous approval of the use of MOVES in 

official state air quality implementation plan (SIP) submissions or 

the existing grace period before MOVES2010a is required for carbon 

monoxide and particulate matter hot-spot analyses for project-level 

conformity determinations. 

DATES: This rule is effective on [insert date 60 days from date of 

publication in the Federal Register] without further notice, unless 

EPA receives adverse comment by [insert date 30 days from date of 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 2 of 32

publication in the Federal Register]. If EPA receives adverse 

comment, we will publish a timely withdrawal in the Federal Register 

informing the public that the rule will not take effect. 

ADDRESSES: Submit any comments to Docket ID No. EPA-OAR-2011-0393, 

by one of the following methods:

 www.regulations.gov: Follow the on-line instructions for 

submitting comments.

 Email: a-and-r-docket@epa.gov

 Fax: (202) 566-9744

 Mail: Air Docket, Environmental Protection Agency, Mailcode: 

2822T, 1200 Pennsylvania Ave., NW, Washington, D.C., 20460, 

Attention Docket ID No. EPA-HQ-OAR-2011-0393. Please include 

a total of two copies.

 Hand Delivery: Air Docket, Environmental Protection Agency: 

EPA West Building, EPA Docket Center (Room 3334), 1301 

Constitution Ave., NW, Washington, D.C., Attention Docket ID 

No. EPA-HQ-OAR-2011-0393. Please include two copies. Such 

deliveries are only accepted during the Docket’s normal hours 

of operation, and special arrangements should be made for 

deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. 

EPA-HQ-OAR-2011-0393. EPA's policy is that all comments received 

will be included in the public docket without change and may be made 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 3 of 32

available online at www.regulations.gov, including any personal 

information provided, unless the comment includes information 

claimed to be Confidential Business Information (CBI) or other 

information whose disclosure is restricted by statute. Do not submit 

information that you consider to be CBI or otherwise protected 

through www.regulations.gov or e-mail. The www.regulations.gov

website is an “anonymous access” system, which means EPA will not 

know your identity or contact information unless you provide it in 

the body of your comment. If you send an e-mail comment directly 

to EPA without going through www.regulations.gov, your e-mail 

address will be automatically captured and included as part of the 

comment that is placed in the public docket and made available on 

the Internet. If you submit an electronic comment, EPA recommends 

that you include your name and other contact information in the body 

of your comment and with any disk or CD-ROM you submit. If EPA cannot 

read your comment due to technical difficulties and cannot contact 

you for clarification, EPA may not be able to consider your comment. 

Electronic files should avoid the use of special characters, 

any form of encryption, and be free of any defects or viruses. For 

additional information about EPA’s public docket visit the EPA Docket 

Center homepage at: www.epa.gov/epahome/dockets.htm. For 

additional instructions on submitting comments, go to the 

SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 4 of 32

www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 

whose disclosure is restricted by statute. Certain other material, 

such as copyrighted material, will be publicly available only in hard 

copy. Publicly available docket materials are available either 

electronically in www.regulations.gov or in hard copy at the Air and 

Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 

NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. 

to 4:30 p.m., Monday through Friday, excluding legal holidays. The 

telephone number for the Public Reading Room is (202) 566-1744 and 

the telephone number for the Air and Radiation Docket is (202) 

566-1742.

FOR FURTHER INFORMATION CONTACT: Meg Patulski, State Measures and 

Conformity Group, Transportation and Regional Programs Division, 

Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, 

MI 48105; telephone number: (734) 214-4842; fax number: (734) 

214-4052; email address: patulski.meg@epa.gov; or Astrid Larsen, 

State Measures and Conformity Group, Transportation and Regional 

Programs Division, Environmental Protection Agency, 2000 Traverwood 

Drive, Ann Arbor, MI 48105; telephone number: (734) 214-4812; fax 

number: (734) 214-4052; email address: larsen.astrid@epa.gov. 

SUPPLEMENTARY INFORMATION: 

The content of this preamble is listed in the following outline:

I. General Information
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 5 of 32

II. Background 

III. Extension of MOVES2010a Regional Conformity Grace Period

IV. Conformity SIPs

V. Statutory and Executive Order Reviews

If this rule becomes effective, the conformity grace period in 

applicable areas will end on March 2, 2013, after which MOVES2010a 

is required to be used for new regional conformity analyses.

Availability of MOVES2010a and Support Materials

Copies of the official version of the MOVES2010a motor vehicle 

emissions model, along with user guides and supporting documentation, 

are available on EPA’s MOVES website: 

www.epa.gov/otaq/models/moves/index.htm.

Guidance on how to apply MOVES2010a for SIPs and transportation 

conformity purposes, including “Policy Guidance on the Use of 

MOVES2010 for State Implementation Plan Development, Transportation 

Conformity, and Other Purposes” (EPA-420-B-09-046, December 2009) 

and “Technical Guidance on the Use of MOVES2010 for Emission 

Inventory Preparation in State Implementation Plans and 

Transportation Conformity” (EPA-420-B-10-023, April 2010) can be 

found on the EPA’s transportation conformity website at: 

www.epa.gov/otaq/stateresources/transconf/policy.htm. 

I. General Information

A. Why Is EPA Using a Direct Final Rule?

EPA is publishing this rule without a prior proposed rule 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 6 of 32

because we view this as a noncontroversial action and anticipate no 

adverse comment. This rule makes a one-time, minor revision to the 

transportation conformity rule to provide administrative relief 

requested by state and local agencies for certain nonattainment and 

maintenance areas. As described more fully below, there are 

significant technical differences between MOVES2010a and the 

previous emissions model, and affected state and local agencies

require additional time beyond the two-year grace period provided

by 40 CFR 93.111(b) to make the conformity transition to MOVES2010a

successfully. Today’s action is based on the circumstances unique 

to this transition, and does not change the grace period provisions 

applicable to future models. However, in the “Proposed Rules” 

section of today’s Federal Register, we are publishing a separate 

document that will serve as the proposed rule to extend the MOVES2010a 

regional conformity grace period if adverse comments are received 

on this direct final rule. We will not institute a second comment 

period on this action. Any parties interested in commenting must 

do so at this time. For further information about commenting on this

rule, see the ADDRESSES section of this document. 

If EPA receives adverse comment, we would publish a timely 

withdrawal in the Federal Register informing the public that this 

direct final rule will not take effect. We would address all public 

comments in any subsequent final rule based on the proposed rule. 

B. Does This Action Apply to Me?
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 7 of 32

Entities potentially regulated by the transportation 

conformity rule are those that adopt, approve, or fund transportation 

plans, transportation improvement programs (TIPs), or projects under 

title 23 U.S.C. or title 49 U.S.C. Chapter 53. Regulated categories 

and entities affected by today’s action include:

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 

direct 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 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 8 of 32

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.

C. What Should I Consider as I Prepare Any Comments for EPA?

1. Submitting CBI 

Do not submit this information to EPA through 

www.regulations.gov or e-mail. Clearly mark the part or all of the 

information that you claim to be CBI. For CBI information in a disk 

or CD-ROM that you mail to EPA, mark the outside of the disk or CDROM as CBI and then identify electronically within the disk or CD-ROM 

the specific information that is claimed as CBI. In addition to one 

complete version of the comment that includes information claimed 

as CBI, a copy of the comment that does not contain the information 

claimed as CBI must be submitted for inclusion in the public docket. 

Information so marked will not be disclosed except in accordance with 

procedures set forth in 40 CFR Part 2. 

2. Tips for Preparing Your Comments 

When submitting comments, remember to:

 Identify the rulemaking by docket number and other identifying 

information (subject heading, Federal Register date and page 

number).
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 9 of 32

 Follow directions - The Agency may ask you to respond to specific 

questions or organize comments by referencing a Code of Federal 

Regulations (CFR) part or section number.

 Explain why you agree or disagree, suggest alternatives and 

substitute language for your requested changes.

 Describe any assumptions and provide any technical information 

and/or data that you used.

 If you estimate potential costs or burdens, explain how you 

arrived at your estimate in sufficient detail to allow for it 

to be reproduced.

 Provide specific examples to illustrate your concerns, and 

suggest alternatives.

 Explain your views as clearly as possible, avoiding the use of 

profanity or personal threats.

 Make sure to submit your comments by the comment period deadline 

identified.

3. Docket Copying Costs 

You may be required to pay a reasonable fee for copying docket 

materials. 

D. How Do I Get Copies of This Direct Final Rule and Other 

Documents?

1. Docket

EPA has established an official public docket for this action 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 10 of 32

under Docket ID No. EPA-HQ-OAR-2011-0393. You can get a paper copy 

of this Federal Register document, as well as the documents 

specifically referenced in this action, any public comments received, 

and other information related to this action at the official public 

docket. See the ADDRESSES section for its location. 

2. Electronic Access 

You may access this Federal Register document electronically 

through EPA’s transportation conformity website at: 

www.epa.gov/otaq/stateresources/transconf/index.htm. You may also 

access this document electronically under the Federal Register

listings at: www.epa.gov/fedrgstr/. 

An electronic version of the official public docket is available 

through www.regulations.gov. You may use www.regulations.gov to 

submit or view public comments, access the index listing of the 

contents of the official public docket, and to access those documents 

in the public docket that are available electronically. Once in the 

system, select “search,” then key in the appropriate docket 

identification number. 

Certain types of information will not be placed in the 

electronic public docket. Information claimed as CBI and other 

information for which disclosure is restricted by statute is not 

available for public viewing in the electronic public docket. EPA’s 

policy is that copyrighted material will not be placed in the 

electronic public docket but will be available only in printed, paper 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 11 of 32

form in the official public docket. 

To the extent feasible, publicly available docket materials 

will be made available in the electronic public docket. When a 

document is selected from the index list in EPA Dockets, the system 

will identify whether the document is available for viewing in the 

electronic public docket. Although not all docket materials may be 

available electronically, you may still access any of the publicly 

available docket materials through the docket facility identified 

in the ADDRESSES section. EPA intends to provide electronic access 

in the future to all of the publicly available docket materials 

through the electronic public docket.

Public comments submitted on computer disks that are mailed or 

delivered to the docket will be transferred to the electronic public 

docket. Public comments that are mailed or delivered to the docket 

will be scanned and placed in the electronic public docket. Where 

practical, physical objects will be photographed, and the photograph 

will be placed in the electronic public docket along with a brief 

description written by the docket staff.

For additional information about the electronic public docket, 

visit the EPA Docket Center homepage at: 

www.epa.gov/epahome/dockets.htm.

II. Background 

A. What Is Transportation Conformity?

Transportation conformity is required under Clean Air Act (CAA) 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 12 of 32

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 the 

purpose of the SIP. Conformity to the purpose of the SIP means that 

transportation activities will not cause or contribute to new air 

quality violations, worsen existing violations, or delay timely 

attainment of the relevant national ambient air quality standard 

(NAAQS) or required interim milestones. 

Transportation conformity (hereafter, “conformity”) applies to 

areas that are designated nonattainment, and those areas 

redesignated to attainment after 1990 (“maintenance areas”) for 

transportation-related criteria pollutants: ozone, particulate 

matter (PM2.5 and PM10)

1, carbon monoxide (CO), and nitrogen dioxide 

(NO2). EPA’s conformity rule (40 CFR Parts 51 and 93) establishes 

the criteria and procedures for determining whether transportation 

activities conform to the SIP. EPA first promulgated the conformity 

rule on November 24, 1993 (58 FR 62188) and subsequently published 

several other amendments. The Department of Transportation (DOT) 

is EPA’s federal partner in implementing the conformity regulation. 

EPA has coordinated with DOT, and they concur with this direct final 

rule.

 

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.
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 13 of 32

B. What Is MOVES2010a, and How Has It Been Implemented to Date? 

The MOtor Vehicle Emission Simulator model (MOVES) is EPA’s 

state-of-the-art model for estimating emissions from highway 

vehicles, based on analyses of millions of emission test results and 

considerable advances in the Agency’s understanding of vehicle 

emissions. MOVES is currently EPA’s official emissions model for 

state and local agencies to estimate volatile organic compounds 

(VOCs), nitrogen oxides (NOx), PM, CO, and other precursors from cars, 

trucks, buses, and motorcycles for SIP purposes and conformity 

determinations outside of California. MOVES’ database-centered 

design allows EPA to update emissions data more frequently and allows 

users much greater flexibility in organizing input and output data. 

MOVES2010a is the latest official version of MOVES that EPA has 

approved for SIP and conformity purposes. EPA originally announced 

the release of MOVES2010 in the Federal Register on March 2, 2010 

(75 FR 9411) and subsequently released MOVES2010a on September 8, 

2010. MOVES2010a includes minor revisions that enhance model 

performance and do not significantly affect criteria pollutant 

emissions results. Since these are minor revisions to MOVES2010, 

MOVES2010a is not considered a “new model” under section 93.111 of 

the conformity rule, as described further below. 

MOVES2010a is a significant improvement over the previous 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 14 of 32

emissions model, MOBILE6.2,

2 in terms of quality of results and 

overall functionality. It incorporates the latest emissions data, 

more sophisticated calculation algorithms, increased user 

flexibility, new software design, and significant new capabilities. 

While these changes improve the quality of on-road mobile source 

inventories, the overall degree of change in the model’s function 

also adds to the start-up time required for the transition from 

MOBILE6.2 to MOVES2010a.

EPA developed MOVES as a completely new model. Whereas 

MOBILE6.2 was written in FORTRAN and used simple text files for data 

input and output, MOVES2010a is written in JAVA and uses a relational 

database structure in MYSQL to handle input and output as data tables. 

These changes make MOVES more flexible, and the analysis of new data 

incorporated within MOVES will enhance state and local agency 

understanding of how on-road mobile sources contribute to emissions 

inventories and the relative effectiveness of various control 

strategies. However, this new model framework has created a 

significant learning curve for state and local agency staff that are 

required to use MOVES.3 

In addition to the challenges of learning new software, state 

and local agencies also have to make substantial changes in the 

processes they have developed to create model input and apply model 

 

2 EPA announced the release of MOBILE6.2 in 2004 (69 FR 28830).

3

Some states also purchased computers with additional capacity and features for 

running MOVES.
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 15 of 32

output. While there were incremental changes between each previous 

version of the MOBILE model, the basic input and output structure 

of that model was essentially unchanged since the early 1980s. Over 

time, state and local agencies developed their own methods for 

incorporating local inputs in MOBILE format and for post-processing 

MOBILE results for inventory development and air quality modeling. 

To help state and local agencies with this part of the current 

transition, EPA created a number of tools that take input data 

formatted for MOBILE6.2 and convert that data for use in MOVES2010a.

EPA anticipated many of these challenges when it released MOVES.

In order to assist in this model transition, EPA and DOT have already 

provided hands-on MOVES training in many states.

4 Additional MOVES 

training for regional inventories has been requested, and will 

continue to be offered for the foreseeable future. EPA continues 

to provide other technical assistance to state and local agencies 

via on-going conference calls with user groups, e-mail and phone 

support, a frequently asked questions web page, and web-based 

presentations. All of these efforts are helping state and local 

agencies make the transition to MOVES2010a, and many agencies are 

making significant progress in applying the model for official 

purposes. However, other state and local agencies are still 

developing the technical capacity to use MOVES2010a, and need more 

 

4 To date, EPA and DOT staff have provided a 2-day hands-on MOVES course for regional 

emissions inventories (including regional conformity analyses) at over 30

locations around the country.
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 16 of 32

time to transition to the model and then evaluate whether SIPs and 

their motor vehicle emissions budgets, or transportation plans and 

TIPs, should be revised for future conformity determinations. 

C. Why Is EPA Conducting This Rulemaking?

Today’s action provides additional time that is critical for 

nonattainment and maintenance areas to learn and apply MOVES2010a 

for regional conformity analyses.

5 EPA has been contacted by several 

state and local transportation and air quality agencies and 

associations that are concerned that there has not been sufficient

transition time for using MOVES2010a in regional conformity analyses. 

These concerns revolve around the time needed to build technical 

capacity for using MOVES2010a as well as completing necessary SIP 

and/or transportation plan/TIP changes to assure conformity in the 

future. Further details on today’s action are provided below. 

Today’s action does not affect EPA’s previous approval of 

MOVES2010a for official SIP submissions developed outside of 

California.6 Today’s rulemaking also does not affect the existing 

grace period before MOVES2010a is required for PM2.5, PM10, and CO 

hot-spot analyses for project-level conformity determinations (75 

FR 79370). EPA coordinated closely with DOT in developing today’s 

 

5 MPOs conduct regional conformity analyses to demonstrate that transportation 

plans and TIPs are consistent with the air quality purposes of the SIP. Regional 

conformity analyses are also conducted in “isolated rural nonattainment and 

maintenance areas” (defined by 40 CFR 93.101). 

6 MOVES is not approved for use in California. EPA approved and announced the latest 

version of California’s EMFAC model (EMFAC2007) for SIP development and regional 

conformity analyses in that state on January 18, 2008 (73 FR 3464). 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 17 of 32

action, and DOT concurs on this direct final rule. 

III. Extension of MOVES2010a Regional Conformity Grace Period

A. Background

CAA section 176(c)(1) states that “...[t]he determination of 

conformity shall be based on the most recent estimates of emissions, 

and such estimates shall be determined from the most recent 

population, employment, travel, and congestion estimates....” To meet 

this requirement, section 93.111 of the conformity rule requires that 

conformity determinations be based on the latest motor vehicle 

emissions model approved by EPA. When EPA approves a new emissions 

model, EPA consults with DOT to establish a grace period before the 

model is required for conformity analyses (40 CFR 93.111(b)). EPA 

must consider many factors when establishing a grace period for 

conformity determinations (40 CFR 93.111(b)(2)):

“The length of the grace period will depend on the degree of 

change in the model and the scope of re-planning likely to be 

necessary for MPOs in order to assure conformity.” 

The conformity rule provides for a grace period for new emissions 

models of between three and 24 months (40 CFR 93.111(b)(1)). 

In the preamble to the original 1993 conformity rule, EPA 

articulated its intentions for establishing the length of conformity 

grace period for a new emissions model (58 FR 62211):

“EPA and DOT will consider extending the grace period 

if the effects of the new emissions model are so 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 18 of 32

significant that previous SIP demonstrations of what 

emission levels are consistent with attainment would be 

substantially affected. In such cases, states should 

have an opportunity to revise their SIPs before MPOs 

must use the model’s new emissions factors. EPA 

encourages all agencies to inform EPA of the impacts of 

new emissions models in their area, and EPA may pause 

to seek such input before determining the length of the 

grace period.”

Section 93.111 conformity requirements have not changed since 1993, 

and have been implemented successfully for many previous model 

transitions. 

On March 2, 2010, EPA announced the official release of 

MOVES2010 and established a two-year grace period before this model 

was required for new regional conformity analyses (75 FR 9411). 

Although the original grace period was established for MOVES2010, 

EPA clarified in September 2010 that the same grace period for 

regional conformity analyses also applies to MOVES2010a.7 EPA based 

its decision to establish a two-year conformity grace period on the 

factors under section 93.111(b)(2), and advised areas to use the 

interagency consultation process to examine the impact of using MOVES 

in their future regional conformity analyses. 

 

7

See “EPA Releases MOVES2010a Mobile Source Emissions Model Update: Questions and 

Answers” (EPA-420-F-10-050, August 2010) at: 

www.epa.gov/otaq/models/moves/MOVES2010a/420f10050.pdf.
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 19 of 32

Without further EPA action, MOVES2010a would be required for 

regional conformity analyses that begin after March 2, 2012. As 

discussed further in today’s action, the special circumstances of 

the transition from MOBILE to MOVES2010a require a reevaluation of 

the length of this conformity grace period. 

B. Description of Direct Final Rule

In today’s action, EPA is providing an additional year before 

MOVES2010a is required for regional conformity analyses. As a result, 

EPA is also announcing in today’s Federal Register that MOVES2010a 

will be required for new regional conformity analyses that begin 

after March 2, 2013. State and local agencies outside California 

can use MOVES2010a for regional conformity analyses earlier than 

March 2, 2013, if desired, and would be required to do so under limited 

circumstances such as after MOVES2010a SIP motor vehicle emissions 

budgets have been found adequate or approved for conformity purposes. 

Due to the unique circumstances presented by the transition from 

MOBILE6.2 to MOVES2010a, today’s action adds a new paragraph (b)(3) 

to section 93.111 of the conformity rule. Today’s final rule only 

applies to MOVES2010a and any future minor revisions to this model 

that EPA releases before March 2, 2013. Such minor revisions will 

not start a new grace period for regional conformity analyses and 

could include performance enhancements that reduce MOVES run time 

or model improvements to reduce errors in operating the model. Any 

major model updates would be evaluated separately as a “new model” 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 20 of 32

under conformity rule section 93.111, pursuant to previously 

established requirements.

Between now and the end of the extended conformity grace period

(March 2, 2013), areas should use the interagency consultation 

process to examine how MOVES2010a will impact their future MPO 

transportation plan/TIP conformity determinations. Isolated rural 

areas should also consider the impact of using MOVES2010a on future 

regional conformity analyses. Agencies should carefully consider 

whether the SIP and its motor vehicle emissions budgets should be 

revised with MOVES2010a or if transportation plans and TIPs should 

be revised before the end of the conformity grace period, since doing 

so may be necessary to ensure conformity in the future. 

In general, regional conformity analyses that are started 

during the grace period can use either MOBILE6.2 or MOVES2010a. When 

the grace period ends on March 2, 2013, MOVES2010a will become the 

only approved motor vehicle emissions model for regional conformity 

analyses outside California. This means that all new regional 

conformity analyses started after the end of the grace period must 

be based on MOVES2010a, even if the SIP is based on MOBILE6.2 or 

earlier versions of MOBILE. 

If you have questions about which model should be used in your 

conformity determination, you can consult with your EPA Regional 

Office. For complete explanations of how MOVES2010a is to be 

implemented for transportation conformity, including details about 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 21 of 32

using MOVES2010a during the grace period, refer to EPA’s existing 

MOVES policy guidance.8 

C. Rationale

MOVES2010a is EPA’s best tool for estimating criteria pollutant 

emissions, and it is a significant improvement over previous MOBILE

models. State and local agencies have made significant progress to 

date in using MOVES2010a, and EPA supports these efforts and 

encourages that they continue. However, as discussed above, 

challenges related to start-up and model application have been much 

greater in the transition to MOVES2010a, compared to past transitions 

between MOBILE model versions. As a result, EPA has determined that 

a one-year extension of the MOVES2010a grace period is necessary for 

state and local agencies to complete the current transition. Today’s 

action ensures that state and local governments have the necessary 

time to implement the conformity rule as originally intended. 

Since 1993, the fundamental purpose of section 93.111(b) of the 

conformity rule has been to provide a sufficient amount of time for 

MPOs and other state and local agencies to adapt to using new 

emissions tools. As discussed above, the transition to a new 

emissions model for conformity involves more than learning to use 

the new model and preparing input data and model output. After model 

start-up is complete, state and local agencies also need to consider 

 

8 “Policy Guidance on the Use of MOVES2010 for State Implementation Plan 

Development, Transportation Conformity, and Other Purposes” (EPA-420-B-09-046, 

December 2009) can be found on the EPA’s transportation conformity website at: 

www.epa.gov/otaq/stateresources/transconf/policy.htm.
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 22 of 32

how the model affects regional conformity analysis results and 

whether SIP and/or transportation plan/TIP changes are necessary to 

assure future conformity determinations. EPA believes that this 

one-time extension of the current MOVES2010a regional grace period 

is critical to assure future conformity determinations based on 

MOVES2010a. 

EPA has the discretion to establish an extended grace period 

for MOVES2010a, and today’s action is consistent with CAA section 

176(c)(1) requirements. EPA believes that providing one additional 

year is appropriate due to this unique transition from MOBILE6.2 

to MOVES2010a. This decision is consistent with the existing 

conformity criteria in section 93.111(b)(2) of the conformity rule 

that requires the length of the grace period to be based on “the degree 

of change in the model and the scope of re-planning likely to be 

necessary by MPOs in order to assure conformity.” 

Today’s action does not delay the use of MOVES2010a in SIP 

development or slow down past progress toward using the new model 

for regional conformity analyses. As noted above, many state and 

local agencies are already learning and applying MOVES2010a. Some 

are revising existing SIP budgets using the new model, while others 

may be incorporating MOVES2010a into new maintenance plans or clean 

data determinations. Under EPA’s existing MOVES policy guidance, 

new or revised SIP budgets must still be based on MOVES2010a. For 

example, MOVES2010a continues to be required for attainment SIPs for 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 23 of 32

the 2006 24-hour PM2.5 NAAQS. MOVES2010a is also required for any 

regional conformity analyses prior to March 2, 2013 if SIP budgets 

based on MOVES2010 or MOVES2010a are approved or found adequate

sooner.

9 

In addition, today’s action does not change the current 

MOVES2010a grace period for new PM2.5, PM10, and CO hot-spot analyses 

for project-level conformity determinations. EPA noted previously 

that a two-year conformity grace period was necessary to apply 

MOVES2010a for hot-spot analyses (75 FR 79370). However, the 

transition to MOVES2010a for project-level hot-spot analyses does 

not involve the complexity associated with the regional level, where 

SIP budgets and/or transportation plans/TIPs may need to be revised 

before regional conformity analyses based on MOVES2010a can be 

completed. 

Finally, in issuing this rule, EPA is not proceeding pursuant 

to or reopening as a general matter the process and length of 

conformity grace periods for future emissions model approvals, which 

were previously established in 1993 (58 FR 62211). The unique set 

of circumstances involved in the current transition warrants 

additional state and local flexibility before MOVES2010a is required 

for regional conformity analyses. 

IV. Conformity SIPs

 

9 See Questions 5, 6, and 11 of “Policy Guidance on the Use of MOVES2010 for State 

Implementation Plan Development, Transportation Conformity, and Other Purposes” 

(EPA-420-B-09-046, December 2009).
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 24 of 32

The MOVES2010a regional grace period extension applies on the 

effective date of today’s direct final rule in all nonattainment and 

maintenance areas. Section 51.390(a) of the conformity rule states 

that the federal rule applies for the portion of the requirements 

that are not included in a state’s approved conformity SIP.10 Section 

51.390(b) further allows state conformity provisions to contain 

criteria and procedures that are more stringent than the federal 

requirements. However, in the case of states with conformity SIPs 

that include the grace period provision in 40 CFR 93.111(b)(1), EPA 

concludes that such states did not intend to require a shorter grace 

period than EPA, in consultation with DOT, believes is needed. 

Therefore, since the MOVES2010a grace period extension is a new 

provision being added to the conformity rule, it is not included in 

any current state conformity SIP and therefore applies immediately 

in all areas pursuant to section 51.390(a). 

In addition, section 51.390(c) of the conformity rule requires 

states to submit a new or revised conformity SIP to EPA within 12 

months of the Federal Register publication date of any final 

conformity amendments for certain situations. States with approved 

conformity SIPs that are prepared in accordance with current CAA 

requirements are not required to submit new conformity SIP revisions, 

since section 93.111 of the conformity rule is not contained in these 

SIPs. A conformity SIP prepared in accordance with current CAA 

 

10 A conformity SIP is required by the CAA and contains a state’s conformity 

requirements, including the state’s specific interagency consultation procedures. 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 25 of 32

requirements contains only the state’s criteria and procedures for 

interagency consultation (40 CFR 93.105) and two additional 

provisions related to written commitments for certain control and 

mitigation measures (40 CFR 93.122(a)(4)(ii) and 93.125(c)). 

However, states with approved conformity SIPs that include section 

93.111 from a previous rulemaking are required to submit a SIP 

revision by [insert date 12 months from date of publication in the 

Federal Register], although EPA strongly encourages these states to 

submit a SIP revision with only the three required provisions.11 A 

state without an approved conformity SIP is not required to submit 

a new conformity SIP within one year of today’s action, but previous 

conformity SIP deadlines continue to apply. 

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. 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order (EO) 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 

 

11 The conformity SIP may contain provisions more stringent than the federal 

requirements, and in these cases, states would specify this intention in its 

original conformity SIP submission. 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 26 of 32

action to the Office of Management and Budget (OMB) for review under 

EO 12866 and any changes made in response to OMB recommendations have 

been documented in the docket for this action.

B. Paperwork Reduction Act

This action does not impose any new information collection 

burden. The information collection requirements of EPA’s existing 

transportation conformity regulations and the 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.” OMB has previously approved the information collection 

requirements contained in the existing regulations at 40 CFR Part 

93 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB control number 2060-0561. The OMB 

control numbers for EPA's regulations in 40 CFR are listed in 40 CFR 

Part 9. 

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an 

Agency to prepare a regulatory flexibility analysis of rules subject 

to notice-and-comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless the Agency 

certifies that the rule will not have a significant economic impact 

on a substantial number of small entities. Small entities include 

small businesses, small not-for-profit organizations and small 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 27 of 32

government jurisdictions. 

For purposes of assessing the impacts of today’s rule on small 

entities, small entity is defined as: (1) a small business as defined 

by the Small Business Administration’s (SBA) regulations at 13 CFR 

121.201; (2) a small governmental jurisdiction that is a government 

of a city, county, town, school district or special district with 

a population of less than 50,000; and (3) a small organization that 

is any not-for-profit enterprise that is independently owned and 

operated and is not dominant in its field. After considering the 

economic impacts of today’s rule on small entities, I certify that 

this action will not have a significant economic impact on a 

substantial number of small entities. This regulation directly 

affects federal agencies and MPOs that, by definition, are designated 

under federal transportation laws only for metropolitan areas with 

a population of at least 50,000. These organizations do not 

constitute small entities within the meaning of the RFA. Therefore, 

this rule will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act (UMRA)

This rule does not contain a Federal mandate that may result 

in expenditures of $100 million or more for state, local, and tribal 

governments, in the aggregate, or the private sector in any one year. 

This rule merely implements already established law that imposes 

conformity requirements and does not itself impose requirements that 

may result in expenditures of $100 million or more in any year. Thus, 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 28 of 32

today’s rule is not subject to the requirements of sections 202 and 

205 of the UMRA.

This rule is also not subject to the requirements of section 

203 of UMRA because it contains no regulatory requirements that might 

significantly or uniquely affect small governments. This rule will 

not significantly or uniquely impact small governments because it 

directly affects federal agencies and MPOs that, by definition, are 

designated under federal transportation laws only for metropolitan 

areas with a population of at least 50,000. 

E. Executive Order 13132: Federalism

This rule does not have federalism implications. It will not 

have substantial direct effects on states, on the relationship 

between the national government and states, or on the distribution 

of power and responsibilities among the various levels of government, 

as specified in Executive Order 13132. The CAA requires conformity 

to apply in certain nonattainment and maintenance areas as a matter 

of law, and today’s action merely revises one provision for 

transportation planning entities in subject areas to follow in 

meeting their existing statutory obligations. Thus, EO 13132 does 

not apply to this rule.

F. Executive Order 13175: Consultation and Coordination with 

Indian Tribal Governments

This action does not have tribal implications, as specified in 

Executive Order 13175 (65 FR 67249, November 9, 2000). The CAA
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 29 of 32

requires transportation conformity to apply in any area that is 

designated nonattainment or maintenance by EPA. Because today’s rule

does not significantly or uniquely affect the communities of Indian 

tribal governments, EO 13175 does not apply to this action. 

G. Executive Order 13045: Protection of Children from 

Environmental Health and Safety Risks 

This rule is not subject to Executive Order 13045 (62 FR 19885, 

April 23, 1997) because the Agency does not believe the environmental 

health or safety risks addressed by this action present a 

disproportionate risk to children. 

H. Executive Order 13211: Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use

This action is not 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. This action is not subject to 

EO 13211 because it does not have any adverse energy effects. 

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 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 30 of 32

inconsistent with applicable law or otherwise impractical. 

Voluntary consensus standards are technical standards (e.g., 

material specifications, test methods, sampling procedures, and 

business practices) that are developed or adopted by voluntary 

consensus standards bodies. The NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not to 

use available and applicable voluntary consensus standards. This 

rule does not involve technical standards. Therefore, EPA is not 

considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 

federal executive policy on environmental justice. Its main 

provision directs federal agencies, to the greatest extent 

practicable and permitted by law, to make environmental justice part 

of their mission by identifying and addressing, as appropriate, 

disproportionately high and adverse human health or environmental 

effects of their programs, policies, and activities on minority 

populations and low-income populations in the United States. 

EPA has determined that this rule will not have 

disproportionately high and adverse human health or environmental 

effects on minority or low-income populations. The final rule 

involves a minor revision that provides administrative relief but 
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 31 of 32

does not change the conformity rule’s underlying requirements for 

regional conformity analyses.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added 

by the Small Business Regulatory Enforcement Fairness Act of 1996, 

generally provides that before a rule may take effect, the agency 

promulgating the rule must submit a rule report, which includes a 

copy of the rule, to each House of the Congress and to the Comptroller 

General of the United States. EPA will submit a report containing 

this rule and other required information to the U.S. Senate, the U.S. 

House of Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. A

Major rule cannot take effect until 60 days after it is published 

in the Federal Register. This action is not a major rule as defined 

by 5 U.S.C. 804(2). This rule will be effective [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: _________________________________
DRAFT FOR INTERNAL REVIEW ONLY: Do not distribute (8/03/11)

Page 32 of 32

_____________________________________________

Lisa P. Jackson, 

Administrator

For 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 93.111 is amended by adding paragraph (b)(3) to read 

as follows:

§93.111 Criteria and procedures: Latest emissions model.

* * * * *

(b) * * * 

(3) Notwithstanding paragraph (b)(1) of this section, the grace 

period for using the MOVES2010a emissions model (and minor model 

revisions) for regional emissions analyses will end on March 2, 

2013. 

* * * * *