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Page **1** of **31** EO12866

_Transportation Conformity 2060 -AR03 NPRM

_20110613 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 93 EPA- HQ - OAR- 2011 - 0393 ; FRL_XXXX - X RIN 20 60 -AR03 Transportation Conformity Rule: MOVES Regional Grace Period Extension AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule . SUMMARY: EPA is proposing 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 proposal would provide an additional year to the previously established two - year conformity grace period , so that MOVES 2010a would not be requi red for regional conformity analyses until March 2, 2013. This proposal would 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 requ ired for carbon monoxide and particulate matter hot - spot analyses for project - level conformity determinations. DATES: Written comments on this proposal must be received on or before [ insert date 30 days after publication in the Federal***E.O. 12866 Review

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Page **2** of **31** Register]. ADDRESSES: Submit your comments, identified by 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 onl y 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 - OAR2011 - 0393 . EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov , including any personal***E.O. 12866 Review

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Page **3** of **31** information provided, unless the commen t 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 commen t 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 contac t 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 shoul d 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 http:// www.epa.gov/epahome/dockets.htm . For additional instructions on submitting comments, go to Section I. of the SUPPLEMENTARY INFORMATION section of this document.***E.O. 12866 Review

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Page **4** of **31** Docket: All documents in the docket are listed in the 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 Age ncy, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: (734) 214 - 4812; fax number: (734) 214 - 4052; email address: larsen.astrid@epa.gov .***E.O. 12866 Review

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Page **5** of **31** SUPPLEMENTARY INFORMATION : The content of this preamble are listed in the following outline : I. General Information II. Background III. Exten sion of MOVES2010a Regional Conformity Grace Period IV. Conformity SIPs V. Statutory and Executive Order Reviews 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, includi ng “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 St ate 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. Does This Action Apply to Me?***E.O. 12866 Review

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Page **6** of **31** Entities potentially regulated by the transportation conformity rule are those that adopt, approve, or fund transportation plans, programs, or projects under title 23 U.S.C. or title 49 U.S.C. Chapter 53. Regulated categories and entities affected by today’s action include: Category Examples of regulated entities Local government Local transportation and air quality agencies, including metropolitan planning organizations (MPOs ). State government State transportation and air quality agencies. Federal government Department of Transportation (Federal Highway Administration (FHWA) and Federal Transit Administration (FTA)). This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this proposal. This table lists the types of entities of which EPA is aware that potentially could be regulated by the transpo rtation 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***E.O. 12866 Review

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Page **7** of **31** section. B. What Should I Consider as I Prepare My 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 CD - ROM 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).

• 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.***E.O. 12866 Review

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Page **8** of **31** • Explain why you agree or disagree, suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information a nd/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 mate rials. C. How D o I Get C opies of T his Proposed Rule and O ther D ocuments? 1. Docket EPA has established an official public docket for this action under Docket ID No. EPA- HQ - OAR- 2011 - 0393 . You can get a paper copy of this Federal Register document, as well as the documents specifically referenced in this action, any public comments received, and other information related to this action***E.O. 12866 Review

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Page **9** of **31** 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 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***E.O. 12866 Review

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Page **10** of **31** 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 doc ket 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) section 176(c) (42 U.S.C. 7506(c)) to ensure that***E.O. 12866 Review

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Page **11** of **31** 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 - relate d criteria pollutants: ozone, particulate matter (PM2.5 and PM 10 ) 1 , carbon monoxide (CO), and nitrogen dioxide (NO 2 ). 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 regulati on. EPA has coordinated with DOT, and they concur with this proposal .

1 40 CFR 93.102(b)(1) defines PM2.5 and PM 10 as particles with an aerodynamic diameter less than or equal to a nominal 2.5 and 10 micrometers, respectively.***E.O. 12866 Review

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Page **12** of **31** B. What Is MOVES2010a , and How Has It Been Implemented to Date ? The MO tor Vehicle Emission Simulator model (MOVES) is EPA’s state - of - the - art model for estimating emissions from highway vehicles, based on analys e s 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 es timat e 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 fre quently 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 did 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.***E.O. 12866 Review

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Page **13** of **31** MOVES2010a is a significant improvement over the previous emissions model, MOBILE6.2 , 2 in terms of qua lity of results and overall functionality. It incorporates the latest emission s 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 add s 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 a nalysis of new dat a 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 s ignificant learning curve for state and local agency staff that are required to use MOVES. 3 In addition to the challenges of learning new software,

2 EPA announced the release of MOBILE6.2 in 200 4 (69 FR 28830). 3 Some states also purchased computers with additional capacity and features for running MOVES.***E.O. 12866 Review

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Page **14** of **31** state and local agencies also have to make substantial changes in the processes they have developed to create model input and apply model output. While there were incremental changes between each previous version of the MOBILE model , the basic input and o utput structure of that model was essentially unchanged since the early 1980s. Over time, s tate and local agencies develop ed 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 cha llenges 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
r equested, and will continue to be offered for the foreseeable future. EPA continues to provide other technical assistance to state and local agencies v ia 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

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 3 0 locations around the country.***E.O. 12866 Review

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Page **15** of **31** 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 techni cal capacity to use MOVES2010a, and need more time to transition for future conformity determinations. C. Why Is EPA Conducting This Rulemaking? If finalized, t oday’s action would provide additional time that may be critical for nonattainment and main t enance areas to learn and apply MOVES2010a for regional co nformity analyses . 5 EPA has been contacted by several state and local transportation and air quality agencies and associations that are concern ed that the re has not been sufficient transition time for using MOVES2010a in regional conformity analyses. These concerns revolve around the time needed to build techn i cal capacity for using MOVES 2010a as well as completing necessary SIP and/or transportation plan/TIP changes to assure conformity in the fut ure . Further details on today’s action are provided below. Today’s proposal would not affect EPA’s previous approval of MOVES 2010a for official SIP submissions developed outside of California. 6 Today’s rulemaking would also not affect the

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 approve d and announced the***E.O. 12866 Review

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Page **16** of **31** existing gr ace period before MOVES2010a is required for PM2.5 , PM 10 , and CO hot - spot analyses for project - level conformity determinations (75 FR 79370). EPA coordinated closely with DOT in developing today’s action , and DOT concurs on this proposed rule. III. Extension of MOVES2010a Regional Conformity Grace Period A. Background CAA s ection 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.”
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) .***E.O. 12866 Review

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Page **17** of **31** The conformity rule provides for a grace period for new emissions models o f 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 co nsider extending the grace period if the effects of the new emissions model are so significant that previous SIP demonstrations of what emission levels are consistent with attainment would be substantially affected. In such cases, states should have an opportunity to revise their SIPs before MPOs must use the model’s new emissions factors. EPA encourages all agencies to inform EPA of the impacts of new emissions models in their area, and EPA may pause to seek such input before determining the length of th e 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***E.O. 12866 Review

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Page **18** of **31** 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 usin g MOVES in their future regional conformity analyses. Without further EPA action, MOVES2010 a 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 tran sition from MOBILE to MOVES2010a require a reevaluation of the length of this conformity grace period. B. Description of Proposed Rule In today’s action, E PA is proposing to provide an additional year before MOVES2010a is required for regional conformity analyses. If finalized , MOVES 2010a would be required for new regional conformity analyses that begin after March 2, 2013. State and local agencies outside California would 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

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.***E.O. 12866 Review

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Page **19** of **31** emissions budgets have been found adequate or approved for conformity purposes. EPA is proposing to a dd a new paragraph (b) (3) to section 93.111 of the conformity rule , and this provision would appl y to MOVES2010a and any future minor revisions to this model that EPA release s before March 2, 2013 . Such minor revisions would not start a new grace period f or 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 , such as an update that significantly change s MOVES results for cr iteria pollutant emissions, would be evaluated separately as a “new model” under conformity rule section 93.111. Be fore the end of the extended conformity grace period (March 2, 2013) , areas would use the interagency consultation process to examine how MOVES2010a would impact their future MPO transportation plan / TIP conformity determinations. Isolated rural areas would also consider the impact of using MOVES2010a on future regional conformity analyses. If finalized, a gencies 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 futur e.***E.O. 12866 Review

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Page **20** of **31** The proposal would allow r egional conformity analyses that are started during the grace period to be based on either MOBILE6.2 or MOVES2010a. If the grace period ended on March 2, 2013, MOVES2010a would become the only approved motor vehicle emission s model for regional conformity analyses outside California at that time . T his would mean 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 ver sions of MOBILE. F or complete explanations of how MOVES2010a is to be implemented for transportation conformity, including details about 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 mu ch greater in the transition to MOVES2010a, compared to p ast transitions between MOB ILE model

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 .***E.O. 12866 Review

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Page **21** of **31** 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 curr ent transition. Today’s action would ensure 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 i nput data and model output. After model start - up is complete, state and local agencies also need to consider how the model affects regional conformity analysis results and whether SIP and/or transportation plan/TIP changes are necessary to assure future
c onformity determinations. EPA believes that the proposed 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 i s consistent with CAA section 176(c)(1) requirements . EPA believes that the proposal to provide one additional year is appropriate due to techn ical***E.O. 12866 Review

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Page **22** of **31** challenges in the transition from MOBILE6.2 to MOVES2010a . This decision is consistent with the e xisting conformity criteria i n s ection 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 nece ssary by MPOs in order to assure conformity.” Today’s proposal would 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 , n ew or revised SIP budgets must still be based on MOVES 2010a. For example, MOVES2010a continues to be required for attainment SIPs for the 2006 24 - hour PM2.5 NAAQS. Under the proposal, MOVES2010a would also be 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 would not change the current MOVES2010a grace period for new PM2.5 , PM 10 , and CO hot - spot

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) **.*****E.O. 12866 Review

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Page **23** of **31** 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 ana lyses 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, EPA is not proposing to reopen as a general matter the process and length of conformity grace periods for future emissions model approvals. T he unique set of circumstances involved in the current transition warrants the proposed additional state and local flexibility before MOVES2010a is required for regional conformity analyses . I V . Conformity SIPs The proposed MOVES2010a regional grace period extension would apply on the effective date of a final rule in all nonattainment and maintenance areas. Section 51.390(a) of the co nformity rule states t hat 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

10 A conformity SIP is required by the CAA and contains a state’s conformity requirements, includi ng the state’s specific interagency consultation procedures.***E.O. 12866 Review

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Page **24** of **31** 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 would be a new provision being added to the conformity rule, it is not included in any current state conformity SIP and therefore would apply immediately, if finalized, 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 final conformity rules in certain situations . States with approved conformity SIP s that are prepared in accordance with current CAA requirements would not be required to submit new conformity SIP revisions under a final rule , since section 93.111 of the conformity rule i s not contained in these SIPs . A conformity SIP prepared in accordance with current CAA requirements contains only the state’s criteria and procedures for interagency consultation (40 CFR 93.105) and two additional provisions related to written commitment s 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***E.O. 12866 Review

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Page **25** of **31** section 93.111 from a previous rulemaking would be required to submit a SIP revision within 12 months of the publication date of any final rule , although EPA strongly encourage s these states to submit a SIP revision with only the three required provisions. 11 A s tate without an approved conformity SIP would not be required to submit a new conformity SIP within one year of a final rule , 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 Pla ns” 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: Re gulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a "significant regulatory action.” 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.

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.***E.O. 12866 Review

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Page **26** of **31** B. Paperwork Reduction Act This action would 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 actio n 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 re quirements 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 liste d 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 Proc edure 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 governmen t jurisdictions.***E.O. 12866 Review

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Page **27** of **31** For purposes of assessing the impacts of today’s proposal 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 proposed rule on small entities, I certify that this action would not have a significant economic impact on a substantial number of small entities. This proposal would directly affect 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 th e RFA . Therefore, this proposal would not impose any requirements on small entities. D. Unfunded Mandates Reform Act (UMRA) This proposal doe s not contain a Federal mandate that may result in expenditures of $100 million or more for state, local, and tri bal governments, in the aggregate, or the private sector in any one year. This rule would merely implement already established law that imposes conformity requirements and would***E.O. 12866 Review

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Page **28** of **31** not itself impose requirements that may result in expenditures of $100 millio n or more in any year. Thus, today’s proposal is not subject to the requirements of sections 202 and 205 of the UMRA. This proposal 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 proposal would 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 proposal does not have federa lism implications. It
would 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 Executi ve Order 13132. The CAA requires conformity to apply in certain nonattainment and maintenance areas as a matter of law, and today’s action would merely revise one provision for transportation planning entities in subject areas to follow in meeting their e xisting statutory obligations. Thus, EO 13132 does not apply to this proposal .***E.O. 12866 Review

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Page **29** of **31** F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). The CAA requires transportation conformity to apply in any area that is designated nonattainment or maintenance by EPA. Because today’s proposal would no t 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 proposal 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 proposal i s 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 would 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***E.O. 12866 Review

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Page **30** of **31** adverse energy effects . I. National Technology Transfer and Advancement Act Section 12(d) of t he National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104 - 113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., 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 proposal does not involve technical standards. Therefore, EPA is not considering the use of a ny 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 envi ronmental 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***E.O. 12866 Review

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Page **31** of **31** 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 action would not have disproportionately high and adverse human heal th or environmental effects on minority or low - income populations . The proposed rule involves a minor revision that provides administrative relief but does not change the conformity rule’s underlying requirements for regional conformity analyses. 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 d ioxide, Ozone, Particulate matter, Transportation, Volatile organic compounds.

DATE D : _________________________________

_____________________________________________ Lisa P. Jackson, Administrator