11394 Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 

* * * * * 

[FR Doc. 2012–4563 Filed 2–24–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 93 

[EPA–HQ–OAR–2011–0393; FRL–9636–5] 

RIN 2060–AR03 

Transportation Conformity Rule: 

MOVES Regional Grace Period 

Extension 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

extend the grace period before the 

MOtor Vehicle Emission Simulator 

(MOVES) model 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 must be used for 

new regional conformity analyses that 

begin after March 2, 2013. This action 

does not affect EPA’s previous approval 

of the use of MOVES in state air quality 

implementation plan (SIP) submissions 

or the existing grace period before 

MOVES is required for carbon 

monoxide and particulate matter hotspot analyses for project-level 

conformity determinations (75 FR 

79370). 

DATES: This rule is effective on February 

27, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2011–0393. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information may not be publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744 

and the telephone number for the Air 

and Radiation Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Meg 

Patulski, State Measures and 

Transportation Planning Center, 

Transportation and Climate 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 

Transportation Planning Center, 

Transportation and Climate 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 

II. Background 

III. Extension of MOVES Regional Conformity 

Grace Period 

IV. Conformity SIPs 

V. Statutory and Executive Order Reviews 

Availability of MOVES and Support 

Materials 

Copies of the official version of the 

MOVES motor vehicle emissions model, 

along with user guides and supporting 

documentation, are available on EPA’s 

MOVES Web site: www.epa.gov/otaq/ 

models/moves/index.htm. 

Guidance on how to apply MOVES for 

SIPs and transportation conformity 

purposes can be found on the EPA’s 

transportation conformity Web site at: 

www.epa.gov/otaq/stateresources/ 

transconf/policy.htm. 

I. General Information 

A. Does this action apply to me? 

Entities potentially regulated by the 

transportation conformity rule are those 

that adopt, approve, or fund 

transportation plans, 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 final rule. This table 

lists the types of entities of which EPA 

is aware that potentially could be 

regulated by the transportation 

conformity rule. Other types of entities 

not listed in the table could also be 

regulated. To determine whether your 

organization is regulated by this action, 

you should carefully examine the 

applicability requirements in 40 CFR 

93.102. If you have questions regarding 

the applicability of this final rule to a 

particular entity, consult the persons 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. How do I get copies of this final rule 

and other documents? 

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 

at the official public docket. See the 

ADDRESSES section for its location. 

2. Electronic Access 

You may access this Federal Register 

document electronically through EPA’s 

transportation conformity Web site at: 

www.epa.gov/otaq/stateresources/ 

transconf/conf-regs.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 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 


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Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 11395 

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. 

2EPA announced the release of MOBILE6.2 in 

2004 (69 FR 28830). 

3See Section III. for further background on the 

use of latest emissions models and grace periods for 

conformity purposes. 

4See EPA’s MOVES2010a Questions and 

Answers at: www.epa.gov/otaq/models/moves/ 

MOVES2010a/420f10050.pdf. 

5MPOs in nonattainment and maintenance areas 

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 areas (defined by 40 CFR 93.101). 

6A direct final rule was also published on 

October 13, 2011 (76 FR 63554) in parallel with the 

proposal. However, EPA received an adverse 

comment within the 30-day public comment 

period, and subsequently withdrew the direct final 

rule on December 5, 2011 (76 FR 75797). 

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 document is selected 

from the index list in EPA Dockets, the 

system will identify whether the 

document is available for viewing in the 

electronic public docket. Although not 

all docket materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the docket facility 

identified in the ADDRESSES section. 

EPA intends to provide electronic 

access in the future to all of the publicly 

available docket materials through the 

electronic public docket. 

For additional information about the 

electronic public docket, visit the EPA 

Docket Center homepage at: 

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

C. What is the effective date? 

The final rule amendments are 

effective on February 27, 2012. Section 

553(d) of the Administrative Procedures 

Act, 5 U.S.C. Chapter 5, generally 

provides that rules may not take effect 

earlier than 30 days after they are 

published in the Federal Register. 

However, section 5 U.S.C. 553(d)(1) 

allows an effective date less than 30 

days after publication for a rule that 

‘‘grants or recognizes an exemption or 

relieves a restriction.’’ Since this rule 

provides additional time before the 

requirement to use MOVES applies, it is 

effectively granting an exemption or 

relieving the restriction that would 

require state and local governments to 

use MOVES2010 and minor revisions 

for regional conformity analyses earlier 

than March 2, 2013. 

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 

transportation plans, 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 amendments to the 

rule. The Department of Transportation 

(DOT) is EPA’s federal partner in 

implementing the conformity 

regulation. 

B. What is MOVES, and how has it been 

implemented to date? 

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 EPA’s latest motor vehicle 

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. The database-centered design 

of MOVES allows EPA to update 

emissions data more frequently and 

allows users much greater flexibility in 

organizing input and output data than 

EPA’s prior emissions model. MOVES 

improves the quality of results and 

overall functionality, as compared to the 

previous emissions model, MOBILE6.2.2

EPA announced the release of 

MOVES2010 in the Federal Register on 

March 2, 2010 (75 FR 9411), and also 

announced a two-year grace period 

before MOVES2010 was required for 

regional conformity analyses. EPA 

subsequently released MOVES2010a on 

September 8, 2010, and MOVES2010a is 

considered a minor revision that 

enhances model performance and does 

not significantly affect the criteria 

pollutant emissions results from 

MOVES2010. Therefore, MOVES2010a 

is not considered a ‘‘new model’’ under 

section 93.111 of the conformity rule.3

As a result, the MOVES2010 grace 

period for regional conformity analyses 

has also applied to the use of 

MOVES2010a.4 EPA notes that 

references to ‘‘MOVES’’ in this notice 

relate to the approved versions of 

MOVES2010 and subsequent minor 

revisions (e.g., MOVES2010a). However, 

in some cases, EPA has specifically 

referred to MOVES2010 and 

MOVES2010a for clarification. 

MOVES 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 state and local agencies to transition 

from MOBILE6.2 to MOVES. 

C. Why are we issuing this final rule? 

Today’s action provides additional 

time for nonattainment and 

maintenance areas to learn and apply 

MOVES for regional conformity 

analyses.5 On October 13, 2011 (76 FR 

63575), EPA proposed to extend the 

two-year grace period to provide an 

additional year for state and local 

agencies to transition to using MOVES 

for regional conformity analyses.6 As 

stated in the proposal, EPA was 

contacted by several state and local 

transportation and air quality agencies 

and associations that requested 

additional transition time for using 

MOVES in regional conformity analyses, 

due to the significant software, 

operational and technical differences 

between MOVES and MOBILE. These 

agencies were concerned about having 

sufficient time to build technical 

capacity for using MOVES as well as 

completing such analyses and making 


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11396 Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 

7A second comment was submitted that raised 

issues not germane to this rulemaking. 8MOVES 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). 

9The proposed text did not explicitly refer to 

MOVES2010, but instead referred to ‘‘the 

MOVES2010a emissions model (and minor model 

revisions)’’). 

any necessary SIP and/or transportation 

plan/TIP changes to assure conformity 

in the future. 

During the comment period, EPA 

received one comment letter that was 

relevant to the October 2011 proposal.7

EPA is finalizing the regional 

conformity grace period extension as 

proposed, and is not making any 

changes after consideration of 

comments. This final rule is critical to 

helping state and local agencies during 

this unique transition. See Section III. 

for additional discussion. 

Finally, EPA notes that today’s action 

does not affect our previous approvals 

for using MOVES for official SIP 

submissions developed outside of 

California.8 Today’s rulemaking also 

does not affect the existing grace period 

before MOVES is required for PM2.5, 

PM10, and CO hot-spot analyses for 

project-level conformity determinations 

(75 FR 79370). For further information 

regarding EPA’s previous model 

approvals and conformity policy 

guidance/implementation, see EPA’s 

transportation conformity Web site at 

www.epa.gov/otaq/stateresources/ 

transconf/policy.htm. EPA coordinated 

closely with DOT in developing today’s 

action, and DOT concurs on this final 

rule. 

III. Extension of MOVES 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(a) 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 the following 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 by 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 

a 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 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. 

The provisions in section 93.111, 

including the use of the latest emissions 

model and the establishment of a new 

model grace period, have not changed 

since 1993, and have been implemented 

successfully for many previous model 

transitions. 

B. Description of Final Rule 

In today’s action, EPA is providing an 

additional year to the maximum time 

period permitted under the pre-existing 

regulations before MOVES is required 

for regional conformity analyses. As a 

result, EPA is also announcing in 

today’s Federal Register that MOVES 

will be required for new regional 

conformity analyses that begin after 

March 2, 2013. The previously 

established two-year conformity grace 

period would have ended on March 2, 

2012 (75 FR 9411). 

Under today’s action, state and local 

agencies outside California can use 

MOVES for regional conformity 

analyses that begin before or on March 

2, 2013. However, MOVES will be 

required prior to the end of the 

extended grace period for any new 

regional conformity analyses once an 

area has MOVES-based SIP motor 

vehicle emissions budgets (‘‘budgets’’) 

that have been found adequate or 

approved for conformity purposes. 

Today’s action adds a new paragraph 

(b)(3) to section 93.111 of the 

conformity rule, which applies to the 

transition from MOBILE to MOVES 

only. EPA notes that the regulatory text 

in today’s final rule is clarified from 

what was proposed,9 since the grace 

period applies to MOVES2010 and 

minor revisions to MOVES2010. A 

minor revision, such as MOVES2010a, 

is a version that would not significantly 

affect the criteria pollutant emissions 

results from MOVES2010. Minor 

revisions will not start a new grace 

period for regional conformity analyses 

and could include performance 

enhancements that reduce MOVES run 

time or other model improvements. EPA 

would evaluate any future major model 

update as a ‘‘new model’’ under the 

conformity rule’s previously established 

requirements in section 93.111(b)(1) and 

(2), including any new conformity grace 

period as warranted. EPA will note at 

the time of a future model release 

whether an approved model version is 

a minor revision to MOVES2010 or is to 

be considered a ‘‘new model’’ under the 

rule. 

Between now and the end of the 

extended conformity grace period 

(March 2, 2013), areas should use the 

interagency consultation process to 

examine how MOVES results will 

impact their future metropolitan 

transportation plan/TIP conformity 

determinations. Isolated rural areas 

should also consider the impact of 

MOVES on future regional conformity 

analyses. Agencies should carefully 

consider whether the SIP and its 

budgets should be revised with MOVES 

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 MOVES. When the grace period ends 

on March 2, 2013, MOVES must be used 

for new regional conformity analyses 

outside California. This means that all 

new regional conformity analyses 

started after March 2, 2013 must be 

based on MOVES, even if the SIP is 

based on MOBILE6.2 or earlier versions 

of MOBILE. 

EPA encourages state and local 

agencies to use the latest version of the 

MOVES model available at the time that 

regional emissions modeling begins, 

since the model framework 

enhancements included in such 

versions will optimize model 

performance. 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 

MOVES is to be implemented for 

transportation conformity, including 

details about using MOVES during the 


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Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 11397 

10See www.epa.gov/otaq/stateresources/ 

transconf/policy.htm. 

11Although the commenter referred to 

‘‘legislative history’’ in making this comment, no 

documentation or citations to specific legislative 

history were submitted with the comment. 

12EPA notes that on May 26, 1994 the commenter 

filed a Petition for Reconsideration of the November 

1993 conformity rule (58 FR 62188), but did not 

raise issues related to section 93.111(b) in that 

petition. 

13Some states have found it necessary to 

purchase new computers with additional capacity 

and features for running MOVES. 

grace period, refer to EPA’s latest 

MOVES policy guidance.10

C. Rationale and Response to Comments 

Today’s final rule is consistent with 

CAA requirements and critical to 

supporting state and local agencies in 

this unique transition. EPA continues to 

believe its MOVES model is the best 

tool for estimating criteria pollutant 

emissions, and it is a significant 

improvement over previous MOBILE 

models. EPA recognizes that state and 

local agencies have made significant 

progress to date in using MOVES, and 

we will continue to support these 

efforts. However, as discussed in the 

October 2011 proposal and further 

below, challenges related to the 

transition from MOBILE to MOVES have 

been much greater than past transitions 

between MOBILE model versions. 

Today’s action ensures that state and 

local governments have the necessary 

time to implement the CAA conformity 

requirements 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 learn and employ 

new emissions models. As discussed in 

the October 2011 proposal and further 

below, 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 

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 the final rule’s one-time 

extension of the regional grace period 

for MOVES2010 and subsequent minor 

revisions is consistent with section 

93.111(b)(2) and the CAA. 

EPA received one comment letter that 

was relevant to the October 2011 

proposal. EPA has summarized this 

comment letter with our responses in 

the remainder of this section. 

The commenter believed the proposal 

was arbitrary and capricious and 

inconsistent with CAA section 176(c)(1) 

because it did not require areas to use 

the latest emissions factors when 

making conformity determinations. The 

commenter believed that Congress 

intended regional conformity analyses 

for transportation plans and TIPs to be 

based on EPA’s latest motor vehicle 

emissions factors.11

EPA has not made changes in 

response to these comments, which 

raise issues for conformity rule 

provisions that were finalized in 1993 

(58 FR 62211) and which EPA did not 

propose to revise in this action. 

Specifically, in 1993, EPA established 

the existing rule provisions that a 

conformity grace period of between 3 

and 24 months could be established for 

new model releases (40 CFR 

93.111(b)(1)), as well as the factors that 

EPA uses when determining the length 

of a grace period (40 CFR 93.111(b)(2)). 

As a result, EPA has used its existing 

discretion many times since 1993 to 

approve new emissions models and 

establish grace periods consistent with 

these requirements. 

In the proposal for today’s final rule, 

EPA did not propose to reopen the 

question of whether the Agency has the 

discretion to establish a grace period 

before which the use of a new emissions 

model is required for conformity 

purposes, nor did the proposed rule 

address the factors to be considered in 

establishing an appropriate grace 

period. EPA’s statutory authority to 

establish a grace period is not at issue 

in this rulemaking.12 Rather, the only 

issue addressed in the proposed rule 

was the appropriate length of the grace 

period for MOVES—specifically, 

whether allowing an additional year for 

the MOVES regional conformity grace 

period is reasonable. EPA believes that 

it is, based on the degree of model 

change and the scope of re-planning 

necessary as further described in this 

section. 

The commenter believed that MOVES 

is based on the latest emissions factors, 

and MOBILE6.2 is not appropriate for 

estimating emissions. EPA agrees that 

the MOVES model is the best tool for 

estimating motor vehicle emissions and 

is based on the latest science. When 

EPA approves any new emissions 

model, the Agency is stating that it is an 

improvement over the existing model. 

Therefore, it will always be the case that 

new models that are approved are better 

than previous models. However, the 

issue raised in EPA’s proposed rule was 

not the validity of using MOVES instead 

of MOBILE6.2, but whether state and 

local agencies have sufficient time to 

transition to using MOVES for future 

regional conformity analyses. The oneyear extension provided by the final 

rule is reasonable and consistent with 

the existing rule’s requirements for 

establishing grace periods for new 

emissions models. 

The commenter also believed that the 

October 2011 proposal was inconsistent 

with the law because it exceeded the 

maximum two-year grace period length 

in section 93.111(b)(1) of the conformity 

rule. While it is true that the one-year 

grace period extension is longer than the 

two-year grace period in the existing 

conformity rule for other emissions 

model transitions, this fact does not 

make the final rule’s extension 

inconsistent with the CAA. EPA 

believes that today’s final rule is 

reasonable and meets statutory 

requirements. 

The commenter argued that ‘‘[t]he 

need for agency staff to learn how to 

apply MOVES provides no justification 

for the continued use of [MOBILE6.2] 

* * *’’ EPA disagrees that it is arbitrary 

for EPA to consider this need. In fact, 

the pre-existing regulations require EPA 

to consider start-up needs whenever a 

new grace period is established, and 

EPA did not propose to revise these 

factors. 

As stated above and in the October 

2011 proposal, section 93.111(b)(2) of 

the conformity rule requires the length 

of the grace period to be based on two 

factors. The first factor in this provision 

is ‘‘the degree of change in the model.’’ 

EPA described extensively in its 

proposal how this particular transition 

from MOBILE to MOVES creates a 

unique learning curve for state and local 

agencies. The following is a summary of 

the major model changes that were 

noted in the proposal for this transition: 

• New model framework and 

software: Whereas MOBILE6.2 was 

written in FORTRAN and used simple 

text files for data input and output, 

MOVES is written in JAVA and uses a 

relational database structure in MYSQL 

to handle input and output as data 

tables.13

• New model input and output 

structure: MOVES significantly changes 

the basic input and output structure for 

emissions modeling, as compared to 

previous emissions models that have 

been essentially unchanged since the 

early 1980s. Before MOVES can be used 

by state and local agencies, MOBILEbased input data will need to be 

converted for use in MOVES. MPOs may 


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11398 Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 

14To date, EPA and DOT staff have provided a 

2-day hands-on MOVES course for regional 

emissions inventories (including regional 

conformity analyses) at over 25 locations around 

the country. In addition, since January 2010, EPA 

has sent more than 2,500 responses to requests for 

help with MOVES that have come into EPA’s email 

box for modeling questions (mobile@epa.gov). 

15See the November 1993 conformity rule (58 FR 

62211), the March 2, 2010 FR notice for EPA’s 

approval of MOVES2010 for regional conformity 

analyses (75 FR 9411–9414), and EPA’s latest 

MOVES policy guidance (www.epa.gov/otaq/ 

stateresources/transconf/policy.htm). 

16See EPA’s September 14, 2011 memo entitled, 

‘‘Summary of Stakeholder Contact Prior to MOVES 

Grace Period Extension Rulemaking.’’ EPA has 

added other documentation to the docket regarding 

state and local progress during this MOVES 

transition. 

17As noted in the October 2011 proposal, the 

transition to MOVES for project-level hot-spot 

analyses does not involve the complexity associated 

at the regional level, where ‘‘re-planning’’ under 40 

CFR 93.111(b)(2) is necessary for some areas (i.e., 

SIP budgets and/or transportation plans/TIPs may 

also need to revise the way model 

output is post-processed. 

EPA has created tools and provided 

technical assistance for the MOBILE to 

MOVES transition, and EPA and DOT 

have provided hands-on MOVES 

training in many states.14 EPA will 

continue to work with state and local 

agencies throughout the regional 

conformity grace period extension. See 

the October 2011 proposal for further 

details on the differences between 

MOBILE and MOVES (76 FR 63577–78). 

The other factor that EPA must 

consider under section 93.111(b)(2) is 

the ‘‘scope of re-planning likely to be 

necessary by MPOs in order to assure 

conformity.’’ As in any new model 

transition, state and local agencies need 

to consider how results from using a 

new emissions model will affect their 

ability to conform when the new model 

is required for regional conformity 

analyses. When emissions are higher 

with a new model compared to the 

previous model, the ‘‘scope of replanning’’ can entail revising a SIP 

strategy and budget that is based on the 

previous model and/or revising a 

transportation plan/TIP.15 Updating a 

SIP budget with MOVES, for example, 

involves preparing new data input and 

output for MOVES, re-running the onroad mobile source inventory with 

MOVES, ensuring this new inventory 

continues to support the SIP’s 

demonstration (and making any 

adjustments to other inventories as 

needed), coordinating the SIP 

submission with other agencies, and 

meeting other state and federal 

requirements for SIP submissions (e.g., 

providing public notice and comment). 

None of these steps can be taken until 

state and local agencies learn how to 

run MOVES and obtain results, as 

results inform whether a revision is 

even needed. Unlike past model 

transitions, the start-up involved in 

building technical capacity for MOVES 

appears to have postponed state and 

local ‘‘re-planning’’ decisions on 

whether any updates to SIP budgets or 

transportation plans/TIPs are needed. 

The final rule’s additional year directly 

provides the necessary time for 

considering the implications as EPA 

originally intended. 

EPA’s decision to finalize this 

rulemaking is also supported by 

stakeholder feedback that was received 

in implementing the MOVES transition. 

Starting in September 2010, EPA was 

contacted by several state and local 

transportation and air agencies that 

were concerned that there was 

insufficient transition time before 

MOVES would be required in regional 

conformity analyses. At the time, the 

conformity grace period for MOVES 

would have expired on March 2, 2012. 

EPA Regional Offices confirmed the 

status of the transition in their 

nonattainment and maintenance areas. 

These general communications occurred 

until March of 2011 and informed EPA’s 

decision to proceed with this 

rulemaking.16 Although EPA had 

provided MOVES training for regional 

conformity analyses in most states, as of 

March of 2011 (one year after the 

original conformity grace period had 

begun), due to the major model changes 

mentioned earlier, EPA was concerned 

that most nonattainment and 

maintenance areas needed more time to 

build technical capacity for using 

MOVES as well as sufficient transition 

time for using MOVES in regional 

conformity analyses. We believe that 

state and local agencies are making a 

good faith effort to transition to MOVES 

in a timely manner, but the start-up 

issues have taken longer than originally 

anticipated. 

The commenter also believed the 

proposal would allow areas to delay 

additional reductions, in areas where 

emissions with MOVES would be higher 

than with MOBILE. The commenter 

stated that EPA did not candidly 

disclose which areas could use the 

proposed grace period extension and 

how the rule could adversely affect 

public health. 

The commenter mischaracterizes the 

regulatory purpose of the emissions 

model grace period provisions as well as 

EPA’s reasons for establishing a longer 

grace period for this model transition. 

As described above, since 1993, EPA 

has clearly stated that the conformity 

grace period for a new emissions model 

is to be based on the two factors 

provided in 40 CFR 93.111(b)(2), and 

which are not at issue in this 

rulemaking. 

As described above, it has taken 

longer than anticipated for MPOs to 

complete emissions analyses with 

MOVES, and to ascertain the 

implications of using MOVES on future 

conformity determinations. In other 

words, it has taken longer for MPOs to 

know how MOVES would affect future 

regional conformity analyses, because 

they are building technical capacity and 

addressing other start-up issues. 

Potential changes in emissions estimates 

are unrelated to the issue in this 

rulemaking, i.e., the appropriate length 

of the grace period for use of MOVES in 

regional conformity analyses. 

In addition, the grace period 

extension applies equally to all 

nonattainment and maintenance areas. 

EPA did not need to ‘‘disclose’’ which 

areas could use the additional year 

because every nonattainment and 

maintenance area can use the additional 

year. Every area has the discretion of 

using either MOBILE6.2 or MOVES for 

transportation conformity during this 

additional year, unless the area’s SIP is 

updated with MOVES first. In those 

cases, as described above, MOVES must 

be used in transportation plan and TIP 

conformity determinations made after 

those MOVES-based budgets are found 

adequate or approved. This was clearly 

stated in the October 2011 proposal (76 

FR 63578). 

EPA does not agree that the rule is 

arbitrary and capricious because it did 

not disclose how the rule could 

adversely affect public health. The 

commenter also mischaracterized the 

conformity rule’s requirements by 

implying that the extended grace period 

will allow areas to avoid meeting their 

applicable SIP budgets in regional 

conformity analyses (40 CFR 93.109, 

93.118). Regardless of what model is 

required for a given conformity 

determination, MPOs are required by 

the CAA and the conformity rule to 

meet applicable SIP budgets in regional 

conformity analyses. Today’s final rule 

does not change these requirements. 

Today’s action does not relieve an area’s 

statutory obligation to attain the 

NAAQS by its attainment date and 

thereby protect public health or EPA’s 

air quality planning obligations under 

the CAA. Furthermore, the final rule 

does not waive EPA’s SIP requirements 

for using the latest emissions model 

when a SIP is developed, and does not 

change the conformity grace period for 

using MOVES in project-level 

conformity analyses.17 The implications 


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Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 11399 

need to be revised before regional conformity 

analyses based on MOVES can be completed). 

18The commenter included his notes taken 

during an informal conversation with EPA staff that 

occurred prior to the development of the October 

2011 proposal. 

19These cases include Small Refiner Lead PhaseDown Task Force v. EPA, 705 F.2d 506, 534 

(challenge to cost analysis based on Department of 

Energy refinery modeling) and American Iron and 

Steel v. EPA, 115 F.3d 979, 1004 (challenge to 

Agency calculation of mercury bioaccumulation 

factor under Clean Water Act). 

20A conformity SIP is required by the CAA and 

contains a state’s conformity requirements, 

including the state’s specific interagency 

consultation procedures. 

21The conformity SIP may contain provisions 

more stringent than the federal requirements, and 

in these cases, states must specify this intention in 

its conformity SIP submission. 

of changes in on-road mobile source 

emission inventories and/or control 

strategies will differ, and as result, need 

to be evaluated based on the unique 

circumstances of each nonattainment or 

maintenance area. 

EPA is finalizing a one-year extension 

only for the MOBILE to MOVES 

transition for regional conformity 

analyses. The final rule’s one-time 

extension is not indefinite. After March 

2, 2013, MOVES must be used for new 

regional conformity analyses, whether 

or not start-up or re-planning issues 

have been addressed. EPA believes this 

additional year appropriately addresses 

the circumstances in the field and the 

need to meet statutory requirements for 

using latest emissions models in a 

timely manner. 

The commenter also alleges that EPA 

staff stated that the primary purpose for 

this rulemaking was to allow 

nonattainment and maintenance areas to 

avoid a conformity lapse where MOVES 

produces higher emissions than 

MOBILE-based SIP budgets.18 This 

statement is incorrect. Today’s final rule 

does not amend the existing conformity 

rule’s provisions for frequency (40 CFR 

93.104) or conformity lapses (40 CFR 

93.102(c)). EPA did not undertake this 

rulemaking to address any specific 

area’s conformity issues or to avoid 

conformity lapses, but rather to provide 

a reasonable amount of time for all areas 

to prepare to use MOVES and revise 

existing SIP budgets and/or 

transportation plans/TIPs as needed. 

Any conformity issues for individual 

areas will need to be addressed 

according to all conformity 

requirements. 

Finally, the commenter highlighted 

several court decisions to support his 

comments. However, the cases cited by 

the commenter are irrelevant to the final 

rule because the cases involved 

challenges to the technical 

underpinnings of various models.19 In 

contrast, EPA is not approving or 

relying on any model in today’s action. 

Instead, it is making a determination as 

to the time period that is needed before 

it is appropriate to require state and 

local agencies to use MOVES, given the 

planning and preparation involved 

before the model can be properly 

applied. 

In summary, EPA is finalizing the 

regional conformity grace period 

extension as proposed, and is not 

making any changes after consideration 

of comments. This final rule is 

consistent with CAA requirements, the 

conformity rule, and precedent to date. 

IV. Conformity SIPs 

The MOVES regional grace period 

extension applies on the effective date 

of today’s 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.20 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 MOVES 

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 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 February 27, 

2013, although EPA strongly encourages 

these states to submit a SIP revision 

with only the three required 

provisions.21 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 Web site at: www.epa.gov/otaq/ 

stateresources/transconf/policy/ 

420b09001.pdf. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

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’s 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 


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11400 Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 

include small businesses, small not-forprofit organizations and small 

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, 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 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 it is not economically 

significant as defined in EO 12866, and 

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 subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, section 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

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 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 February 27, 2012. 

List of Subjects in 40 CFR Part 93 

Administrative practice and 

procedure, Air pollution control, Carbon 

monoxide, Clean Air Act, 

Environmental protection, Highways 

and roads, Intergovernmental relations, 

Mass transportation, Nitrogen dioxide, 

Ozone, Particulate matter, 

Transportation, Volatile organic 

compounds. 


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Federal Register / Vol. 77, No. 38 / Monday, February 27, 2012 / Rules and Regulations 11401 

1The State of California’s ‘‘Application for 

Permission to Prohibit Sewage Discharges from 

Vessels in California’s Waters Pursuant to Clean 

Water Act Section 312(f)(4)(A)’’ at page 33 (Apr. 5, 

2006). 

Dated: February 15, 2012. 

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 MOVES2010 emissions model 

(and minor revisions) for regional 

emissions analyses will end on March 2, 

2013. 

* * * * * 

[FR Doc. 2012–4484 Filed 2–24–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 140 

[EPA–R09–OW–2010–0438; FRL–9633–9] 

RIN 2009–AA04 

Marine Sanitation Devices (MSDs): No 

Discharge Zone (NDZ) for California 

State Marine Waters 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA) is establishing 

a No Discharge Zone (NDZ) for marine 

waters of the State of California for 

sewage discharges from: all large 

passenger vessels of 300 gross tons or 

greater; and from large oceangoing 

vessels of 300 gross tons or greater with 

available holding tank capacity or 

containing sewage generated while the 

vessel was outside of the marine waters 

of the State of California, pursuant to 

Section 312(f)(4)(A) of the Clean Water 

Act (CWA), 33 U.S.C. 1322(f)(4)(A). This 

action is being taken in response to an 

April 5, 2006, application from the 

California State Water Resources 

Control Board requesting establishment 

of this NDZ. Based on the State’s 

application, EPA has determined that 

the protection and enhancement of the 

quality of California’s marine waters 

requires the prohibition of sewage 

discharges from two classes of large 

vessels. For the purposes of today’s rule, 

the marine waters of the State of 

California are defined as the territorial 

sea measured from the baseline, as 

determined in accordance with the 

Convention on the Territorial Sea and 

the Contiguous Zone, and extending 

seaward a distance of three miles and 

including all enclosed bays and 

estuaries subject to tidal influences from 

the Oregon border to the Mexican 

border. State marine waters extend three 

miles from State islands, including the 

Farallones and the Northern and 

Southern Channel Islands. 

DATES: This final rule is effective March 

28, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R09–OW–2010–0438. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Water Division, U.S. Environmental 

Protection Agency Region IX, 75 

Hawthorne Street, San Francisco, CA 

94105–3901. EPA requests that if at all 

possible, you contact the person listed 

in the FOR FURTHER INFORMATION

CONTACT section to schedule an 

appointment. The Regional Office’s 

business hours are Monday through 

Friday, 8:30 to 5, excluding Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Paul Amato at (415) 972–3847 or 

amato.paul@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Summary of Final Action 

III. Response to Comments 

A. Overview 

B. Public Comments 

1. Protection of California’s Coastal 

Resources 

2. Expansion of the Rule 

3. Scope and Applicability of CWA Section 

312(f)(4)(A) 

4. Classes of Vessels 

5. Large Oceangoing Vessel Sewage 

Holding Capacity 

6. Applying a No Discharge Zone for All 

California Marine Waters 

7. Other General Comments 

IV. Administrative Requirements 

I. Background 

The proposed rule was published in 

the September 2, 2010, issue of the 

Federal Register (75 FR 53914). A 60- 

day comment period followed that 

ended on November 1, 2010, during 

which time EPA Region IX received 

approximately 2,020 comment letters 

and emails, including 16 distinct letters 

and approximately 2,000 substantially 

identical letters. Section III addresses 

the comments. 

Clean Water Act Section 312, 33 

U.S.C. 1322, (hereafter referred to as 

‘‘Section 312’’), regulates the discharge 

of sewage from vessels into the 

navigable waters. Pollutants most 

frequently associated with sewage 

discharges include solids, nutrients, 

pathogens, petroleum products, heavy 

metals, pesticides, pharmaceuticals, and 

other potentially harmful compounds.1

Sewage discharges can contaminate 

shellfish beds, pollute drinking water 

supplies, harm fish and other aquatic 

wildlife, and cause damage to coral 

reefs. Direct contact with these 

pollutants can have serious human 

health effects, with children, the 

elderly, and individuals with 

compromised immune systems being 

most susceptible. Currently, California 

marine waters include 120 miles of 

coast that are listed as impaired for 

pathogens commonly associated with 

sewage. 

Clean Water Act Section 312(h) 

prohibits vessels equipped with 

installed toilet facilities from operating 

on the navigable waters (which include 

the three mile territorial seas), unless 

the vessel is equipped with an operable 

marine sanitation device (MSD), 

certified by the Coast Guard to meet 

applicable performance standards. 33 

U.S.C. 1322(h). The provisions of 

Section 312 are implemented jointly by 

EPA and the Coast Guard. EPA sets 

performance standards for MSDs and is 

involved in varying degrees in the 

establishment of NDZs for vessel 

sewage. 33 U.S.C. 1322(b) and (f). The 

Coast Guard is responsible for 

developing regulations governing the 

design, construction, certification, 

installation and operation of MSDs, 

consistent with EPA’s performance 

standards. 33 U.S.C. 1322(b) and (g); see 

also 33 CFR part 159. The Coast Guard’s 

responsibility includes certifying MSDs 

for installation on U.S. flagged vessels. 

Under some circumstances, vessel 

sewage discharges treated by an MSD 


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