Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations 14979 

EPA-APPROVED TENNESSEE NON-REGULATORY PROVISIONS

Name of nonregulatory SIP provision 

Applicable 

geographic or 

nonattainment 

area 

State 

effective 

date 

EPA approval date Explanation 

*******

110(a)(1) and (2) Infrastructure Requirements for the 1997 8- 

Hour Ozone National Ambient Air Quality Standards—Elements 110(a)(1) and (2)(C) and (J).

Tennessee ............. 12/14/2007 3/14/2012 [Insert citation of publication].

[FR Doc. 2012–5764 Filed 3–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 93 

[EPA–HQ–OAR–2009–0128; FRL–9637–3] 

RIN 2060–AP57 

Transportation Conformity Rule 

Restructuring Amendments 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is amending the 

transportation conformity rule to 

finalize provisions that were proposed 

on August 13, 2010. These amendments 

restructure several sections of the 

transportation conformity rule so that 

they apply to any new or revised 

National Ambient Air Quality 

Standards. EPA is also finalizing several 

clarifications to improve 

implementation of the rule. EPA is not 

taking a final action at this time on the 

proposal that areas analyze a near-term 

analysis year when using the budget 

test. 

The Clean Air Act requires federally 

supported transportation plans, 

transportation improvement programs, 

and projects to be consistent with 

(conform to) the purpose of the state air 

quality implementation plan. EPA 

consulted with the U.S. Department of 

Transportation and they concur in the 

development of this final rule. 

DATES: This final rule is effective on 

April 13, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2009–0128. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information may not be publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in www.regulations.

gov or in hard copy at the Air and 

Radiation Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave. 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744 and the telephone 

number for the Air and Radiation 

Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Patty Klavon, Transportation and 

Regional Programs Division, 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, MI 

48105, email address: klavon.patty@epa.

gov, telephone number: (734) 214–4476, 

fax number: (734) 214–4052; or Laura 

Berry, Transportation and Regional 

Programs Division, Environmental 

Protection Agency, 2000 Traverwood 

Drive, Ann Arbor, MI 48105, email 

address: berry.laura@epa.gov, telephone 

number: (734) 214–4858, fax number: 

(734) 214–4052. 

SUPPLEMENTARY INFORMATION: The 

contents of this preamble are listed in 

the following outline: 

I. General Information 

II. Background on the Transportation 

Conformity Rule 

III. Restructure of Section 93.109—Tests of 

Conformity for Transportation Plans, 

TIPs, and Projects—and Changes to 

Related Sections 

IV. Additional Option for Areas That Qualify 

for EPA’s Clean Data Regulations or 

Policies 

V. Restructure of the Baseline Year Test for 

Existing NAAQS and Baseline Year Test 

for Future NAAQS 

VI. How do these amendments affect 

conformity SIPs? 

VII. Statutory and Executive Order Reviews 

I. General Information 

A. Does this action apply to me? 

Entities potentially regulated by the 

transportation conformity rule are those 

that adopt, approve, or fund 

transportation plans, programs, or 

projects under title 23 U.S.C. or title 49 

U.S.C. Chapter 53. Regulated categories 

and entities affected by today’s action 

include: 

Category Examples of regulated entities 

Local government ............................................... Local transportation and air quality agencies, including metropolitan planning organizations 

(MPOs). 

State government ............................................... State transportation and air quality agencies. 

Federal government ............................................ Department of Transportation (Federal Highway Administration (FHWA) and Federal Transit 

Administration (FTA)). 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this final rule. This table 

lists the types of entities of which EPA 

is aware that potentially could be 

regulated by the transportation 

conformity rule. Other types of entities 

not listed in the table could also be 

regulated. To determine whether your 

organization is regulated by this action, 

you should carefully examine the 

applicability requirements in 40 CFR 

93.102. If you have questions regarding 

the applicability of this action to a 

particular entity, consult the persons 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 


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14980 Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations 

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. 

2Clean data refers to air quality monitoring data 

determined by EPA to indicate attainment of the 

NAAQS. Note that we are finalizing a minor change 

to the definition of clean data found in conformity 

rule section 93.101; see Section IV. of today’s 

notice. 

3That is, transportation plan and TIP emissions 

must be less than or equal to the budget(s) in the 

applicable SIP. 

4For more information about conformity SIPs, see 

EPA’s ‘‘Guidance for Developing Transportation 

Conformity State Implementation Plans (SIPs)’’, 

(EPA–420–B–09–001, January 2009). 

B. How do I get copies of this document? 

1. Docket 

EPA has established an official public 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2009–0128. You can 

get a paper copy of this Federal Register 

document, as well as the documents 

specifically referenced in this action, 

any public comments received, and 

other information related to this action 

at the official public docket. See the 

ADDRESSES section for its location. 

2. Electronic Access 

You may access this Federal Register 

document electronically through EPA’s 

Transportation Conformity Web site at 

www.epa.gov/otaq/stateresources/ 

transconf/index.htm. An electronic 

version of the official public docket is 

also available through www.regulations.

gov. You may use www.regulations.gov 

to view public comments, access the 

index listing of the contents of the 

official public docket, and to access 

those documents in the public docket 

that are available electronically. Once in 

the system, select ‘‘search,’’ then enter 

the appropriate docket identification 

number. 

Certain types of information will not 

be placed in the electronic public 

docket. Information claimed as CBI and 

other information for which disclosure 

is restricted by statute is not available 

for public viewing in the electronic 

public docket. EPA’s policy is that 

copyrighted material will not be placed 

in the electronic public docket but will 

be available only in printed, paper form 

in the official public docket. 

To the extent feasible, publicly 

available docket materials will be made 

available in the electronic public 

docket. When a document is selected 

from the index list in EPA Dockets, the 

system will identify whether the 

document is available for viewing in the 

electronic public docket. Although not 

all docket materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the docket facility 

identified in the ADDRESSES section. 

EPA intends to provide electronic 

access in the future to all of the publicly 

available docket materials through the 

electronic public docket. 

For additional information about the 

electronic public docket, visit the EPA 

Docket Center homepage at www.epa.

gov/epahome/dockets.htm. 

II. Background on the Transportation 

Conformity Rule 

A. What is transportation conformity? 

Transportation conformity is required 

under Clean Air Act (CAA) section 

176(c) (42 U.S.C. 7506(c)) to ensure that 

transportation plans, transportation 

improvement programs (TIPs) and 

federally supported highway and transit 

projects are consistent with (conform to) 

the purpose of the state air quality 

implementation plan (SIP). Conformity 

to the purpose of the SIP means that 

transportation activities will not cause 

or contribute to new air quality 

violations, worsen existing violations, or 

delay timely attainment or achievement 

of the relevant National Ambient Air 

Quality Standards (NAAQS) and interim 

emission reductions or milestones. 

Transportation conformity (hereafter, 

‘‘conformity’’) applies to areas that are 

designated nonattainment, and those 

areas redesignated to attainment after 

1990 (‘‘maintenance areas’’) for 

transportation-related criteria 

pollutants: Carbon monoxide (CO), 

ozone, nitrogen dioxide (NO2) and 

particulate matter (PM2.5 and PM10).1

EPA’s conformity rule (40 CFR Parts 

51.390 and 93 Subpart A) establishes 

the criteria and procedures for 

determining whether transportation 

activities conform to the SIP. EPA first 

promulgated the conformity rule on 

November 24, 1993 (58 FR 62188), and 

subsequently published several other 

amendments. DOT is EPA’s federal 

partner in implementing the conformity 

regulation. EPA consulted with the U.S. 

Department of Transportation (DOT), 

and they concur on this final rule. 

B. Why are we issuing this final rule? 

EPA is amending the conformity rule 

so that its requirements will clearly 

apply to areas designated for any future 

new or revised NAAQS. To achieve this, 

today’s final rule restructures two 

sections of the conformity rule, 40 CFR 

93.109 and 93.119, and makes changes 

to certain definitions in 40 CFR 93.101. 

These amendments are intended to 

minimize the need to make 

administrative updates to the 

conformity rule merely to reference a 

specific new or revised NAAQS. EPA 

has already undertaken two conformity 

rulemakings primarily for the purpose 

of addressing a new or revised NAAQS. 

See the March 24, 2010 Transportation 

Conformity Rule PM2.5 and PM10

Amendments (‘‘PM Amendments’’) final 

rule and the July 1, 2004 final rule (75 

FR 14260, and 69 FR 40004, 

respectively). Due to other CAA 

requirements, EPA will continue to 

establish new or revised NAAQS in the 

future. EPA believes that today’s 

conformity rule revisions provide more 

certainty to implementers without 

compromising air quality benefits from 

the current program. These changes are 

described in Sections III. and V. of 

today’s final rule. 

EPA is also clarifying in today’s final 

rule the additional conformity test 

option available to current ozone ‘‘clean 

data’’ areas and is extending that option 

to any nonattainment areas for which 

EPA has developed a clean data 

regulation or policy.2 This provision 

should eliminate the need to update the 

conformity rule in the future in order to 

extend this conformity option to other 

NAAQS. See Section IV. of today’s final 

rule for further details. 

EPA is also finalizing a change to the 

wording of conformity rule section 

93.118(b) that does not change its 

requirements. Section 93.118(b) of the 

conformity rule continues to require 

consistency 3 for any years where the 

SIP establishes a budget and for any 

years that are analyzed to meet the 

requirements in 40 CFR 93.118(d). This 

change simplifies this provision and 

eliminates repetitiveness within the 

regulation, but does not change the 

requirements for demonstrating 

consistency. EPA did not receive 

comments on this section, and we are 

finalizing it as proposed. 

Section VI. covers how today’s final 

rule affects conformity SIPs. A 

conformity SIP includes a state’s 

specific criteria and procedures for 

certain aspects of the conformity 

process.4

In the August 13, 2010 Federal 

Register notice, EPA had proposed that 

a near-term year would have to be 

analyzed when using the budget test 

when an area’s attainment date has 

passed or has not yet been established 

(75 FR 49435). EPA is not taking final 

action on this proposal at this time. 

Finally, EPA received several 

comments requesting that we issue a 

rulemaking, rather than guidance, to 

address conformity requirements in 

areas designated for a distinct secondary 

NAAQS. Transportation conformity 

applies to any NAAQS for 

transportation-related criteria 

pollutants, including secondary 


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Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations 14981 

5See the preamble to the August 13, 2010 

proposal for further background (75 FR 49441). 

6Clean data refers to air quality monitoring data 

determined by EPA to indicate attainment of the 

NAAQS. Note that this action finalizes a minor 

change to the definition of clean data which is 

found in section 93.101 of the conformity rule; see 

Section IV. of today’s rulemaking. 

7Project-level conformity determinations are 

typically developed during the National 

Environmental Policy Act (NEPA) process, although 

conformity requirements are separate from NEPArelated requirements. Today’s action to restructure 

40 CFR 93.109 does not affect how NEPA-related 

requirements are implemented in the field. 

8See Section V. of today’s rulemaking for 

revisions to 40 CFR 93.119. 

NAAQS.5 CAA section 176(c) does not 

distinguish between primary and 

secondary NAAQS. EPA would issue 

future transportation conformity 

guidance as needed to implement new 

or revised NAAQS, including a distinct 

secondary NAAQS if one is 

promulgated in the future. 

III. Restructure of Section 93.109— 

Tests of Conformity for Transportation 

Plans, TIPs, and Projects—and Changes 

to Related Sections 

A. Overview 

Conformity determinations for 

transportation plans, TIPs, and projects 

not from a conforming transportation 

plan and TIP must include a regional 

emissions analysis that fulfills CAA 

requirements. The conformity rule 

provides for several different regional 

conformity tests that satisfy statutory 

requirements in different situations. 

Once a SIP with a budget is submitted 

for a NAAQS and EPA finds the budget 

adequate for conformity purposes or 

approves the SIP, conformity must be 

demonstrated using the budget test for 

that pollutant or precursor, as described 

in 40 CFR 93.118. 

EPA has amended the conformity rule 

on two prior occasions to address a new 

or revised NAAQS. In the July 1, 2004 

final rule (69 FR 40004), EPA amended 

40 CFR 93.109 by adding new 

paragraphs to describe the regional 

conformity tests for the 1997 ozone 

areas that do not have 1-hour ozone 

budgets, 1997 ozone areas that have 1- 

hour ozone budgets, and 1997 PM2.5

areas. Also, in the March 24, 2010 PM. 

Amendments rulemaking (75 FR 14260), 

EPA amended 40 CFR 93.109 again by 

adding two new paragraphs to describe 

the regional conformity tests for 2006 

PM2.5 areas without 1997 PM2.5 budgets, 

and 2006 PM2.5 areas that have 1997 

PM2.5 budgets. 

Given that CAA section 109(d)(1) 

requires EPA to revisit the NAAQS for 

criteria pollutants at least every five 

years, and that EPA is in the process of 

considering revisions to other NAAQS 

per this requirement, EPA anticipates 

other NAAQS revisions will be made in 

the future that will be subject to 

conformity requirements. Today’s action 

restructures 40 CFR 93.109 to eliminate 

repetition and reduce the need to 

update the rule each time a NAAQS is 

promulgated. The same hierarchy of 

conformity tests as described below in 

B. of this section generally applies to all 

areas where conformity is required, and 

for the reasons described below, EPA 

believes it would apply to future 

nonattainment and maintenance areas 

for transportation-related pollutants or 

NAAQS. 

B. Description of the Final Rule 

In today’s action, EPA is restructuring 

40 CFR 93.109 so that it contains two 

paragraphs: 

• Regional conformity tests, which 

are covered by section 93.109(c); and, 

• Project-level conformity tests, 

which are covered by section 93.109(d). 

New paragraph (c). Today’s final rule 

revises 40 CFR 93.109(c) so that 

requirements for using the budget test 

and/or interim emissions tests apply for 

any NAAQS in the following way: 

• First, a nonattainment or 

maintenance area for a specific NAAQS 

must use the budget test, if the area has 

adequate or approved SIP budgets for 

that specific NAAQS (section 

93.109(c)(1)). For example, once a 2006 

PM2.5 nonattainment area has adequate 

or approved SIP budgets for the 2006 

PM2.5 NAAQS, it must use those budgets 

in the budget test as the regional test of 

conformity for the 2006 PM2.5 NAAQS; 

• Second, if an area does not have 

such budgets but has adequate or 

approved budgets from a SIP that 

addresses a different NAAQS of the 

same criteria pollutant, these budgets 

must be used in the budget test. Where 

such budgets do not cover the entire 

area, the interim emissions test(s) may 

also have to be used (section 

93.109(c)(2)). For example, before a 

2006 PM2.5 area has adequate or 

approved budgets for the 2006 PM2.5

NAAQS, it must use the budget test, 

using budgets from an adequate or 

approved SIP for the 1997 PM2.5

NAAQS, if it has them. If these budgets 

do not cover the entire 2006 PM2.5 area, 

one of the interim emissions tests may 

also have to be used; 

• Third, if an area has no adequate or 

approved SIP budgets for that criteria 

pollutant at all, it must use the interim 

emissions test(s) (section 93.109(c)(3)). 

For example, if a 2006 PM2.5 area has no 

adequate or approved budgets for any 

PM2.5 NAAQS, it must use one of the 

interim emissions tests, as described in 

40 CFR 93.119. 

These conformity test requirements 

are unchanged from the previous 

regulation; today’s rulemaking restates 

them in terms that apply to any 

NAAQS. 

In addition, in conformity rule section 

93.109(c)(5), EPA is expanding the clean 

data conformity option to all clean data 

areas for which EPA has a clean data 

regulation or policy.6 See Section IV. 

below for further information. 

New paragraph (d). With regard to 

project-level requirements, today’s final 

rule places the existing rule’s 

requirements for hot-spot analyses of 

projects in CO, PM10, and PM2.5

nonattainment and maintenance areas 

together in one paragraph (section 

93.109(d)(1), (2), and (3)). These 

requirements are unchanged from the 

previous regulation; today’s rulemaking 

simply groups them together under one 

paragraph.7

Related amendments. Today’s final 

rule removes the definitions for ‘‘1-hour 

ozone NAAQS’’, ‘‘8-hour ozone 

NAAQS’’, ‘‘24-hour PM10 NAAQS’’, 

‘‘1997 PM2.5 NAAQS’’, ‘‘2006 PM2.5

NAAQS’’, and ‘‘Annual PM10 NAAQS’’ 

from 40 CFR 93.101. These definitions 

are no longer necessary because the 

updated regulatory text for sections 

93.109 and 93.119 8 applies to any and 

all NAAQS of those pollutants for 

which conformity applies. In addition, 

today’s final rule updates references to 

40 CFR 93.109 found elsewhere in the 

regulation. Finally, today’s final rule 

corrects a reference to the consultation 

requirements found in 93.109(g)(2)(iii) 

which applies to isolated rural areas. 

C. Rationale and Response to Comments 

EPA is restructuring 40 CFR 93.109 

because a recent court decision has 

already established the legal parameters 

for regional conformity tests. In 

Environmental Defense v. EPA, 467 F.3d 

1329 (DC Cir. 2006), the Court of 

Appeals for the District of Columbia 

Circuit held that where a motor vehicle 

emissions budget developed for the 

revoked 1-hour ozone NAAQS existed 

in an approved SIP, that budget must be 

used to demonstrate conformity to the 8- 

hour ozone NAAQS until the SIP is 

revised to include budgets for the new 

(or revised) NAAQS. EPA incorporated 

the court’s decision for ozone 

conformity tests in its January 24, 2008 

final rule (73 FR 4434). While the 

Environmental Defense case concerned 

ozone, EPA believes the court’s holding 

is relevant for other pollutants for which 


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14982 Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations 

9See EPA’s March 24, 2010 final rule (75 FR 

14266–14273). See also EPA’s July 1, 2004 final rule 

(69 FR 40019–40031). 

10For further details on project-level conformity 

test requirements, please refer to the March 10, 

2006 final rule (71 FR 12469–12506). See also EPA’s 

January 24, 2008 final rule (73 FR 4432–4434), 

EPA’s July 1, 2004 final rule (69 FR 40036–40038; 

40056–40058), the August 15, 1997 final rule (62 FR 

43798), and the November 24, 1993 final rule 

(58 FR 62199–62201; 62207–62208; 62212–62213). 

11See conformity rule section 93.101 for a 

definition of ‘‘clean data.’’ 

conformity must be demonstrated. 

Consequently, EPA believes the 

hierarchy of regional conformity tests 

described above, which is already found 

in the existing rule for 1997 ozone and 

2006 PM2.5 areas, would apply for any 

NAAQS of a pollutant for which the 

conformity rule applies. 

EPA’s restructuring of 40 CFR 93.109 

and elimination of certain definitions in 

40 CFR 93.101, along with the 

standardization of the baseline year in 

40 CFR 93.119 (see Section V. of today’s 

final rule for details), should make the 

rule sufficiently flexible to address any 

future NAAQS changes, including the 

promulgation of a new or revised 

NAAQS or revocation of a NAAQS, 

without additional rulemakings. 

The restructured section 93.109 does 

not change the criteria and procedures 

for determining conformity of 

transportation plans, TIPs, and projects 

and is consistent with the regional 

conformity test requirements described 

in the PM Amendments final rule 

(75 FR 14266–14274). The rationale for 

the required regional tests has been 

described in previous rulemakings.9 The 

rationale for the requirements for 

project-level conformity tests in CO, 

PM2.5, and PM10 areas has also been 

described in previous rulemakings.10

Today’s restructuring of 40 CFR 

93.109 reduces the likelihood that EPA 

would have to amend the conformity 

rule when new or revised NAAQS are 

promulgated, which has several 

benefits. First, implementers will know 

the requirements for regional conformity 

tests for any potential area designated 

nonattainment for a new or revised 

NAAQS, even before such area’s official 

designation, and will not need to wait 

for any additional conformity 

rulemaking from EPA to know what 

type of regional conformity test will 

apply. Second, reducing the need to 

amend the conformity regulation each 

time a NAAQS change is made will save 

government resources and taxpayer 

dollars, and will reduce stakeholder 

efforts needed to keep track of 

regulatory changes. 

All commenters who addressed this 

proposal supported EPA’s approach for 

restructuring 40 CFR 93.109. Several 

commenters agreed with EPA that these 

changes will help streamline the 

conformity regulation and reduce the 

need to revise the conformity rule when 

new or revised NAAQS are 

promulgated. One commenter opined 

that the restructuring of 40 CFR 93.109 

provides a clear and concise 

organization of the conformity 

requirements and agreed with EPA’s 

rationale that it will be beneficial for 

implementing organizations to know the 

conformity requirements in advance of 

any new or revised NAAQS. 

A few commenters requested that EPA 

clarify whether areas that have an 

adequate or approved NOX SIP budget 

for a specific NAAQS (e.g., the 1997 

ozone NAAQS) would have to use that 

NOX budget to demonstrate conformity 

for another pollutant, such as PM2.5. 

A NOX budget in an ozone SIP would 

apply for conformity for an ozone 

NAAQS only, and could not be used as 

a budget for any other pollutant. CAA 

section 176(c)(1)(A) establishes that 

nonattainment and maintenance areas 

must demonstrate conformity to a SIP’s 

‘‘purpose of eliminating or reducing the 

severity and number of violations of the 

national ambient air quality standards 

and achieving expeditious attainment of 

such standards.’’ The purpose of a SIP 

is tied to the pollutant it addresses. The 

2006 court case cited above in this 

section supports this point. In that 

ruling, the court held that where a 

budget developed for the revoked 

1-hour ozone NAAQS existed in an 

approved SIP, that budget must be used 

to demonstrate conformity to the 8-hour 

ozone NAAQS until a SIP is revised to 

include budgets for the new or revised 

NAAQS. The court did not refer to 

adequate or approved NOX or VOC 

budgets from a SIP that addressed a 

pollutant other than ozone, and did not 

indicate that such budgets would need 

to be used. In accordance with this court 

decision, if, for example, a 1997 ozone 

area has an approved 1997 ozone 

attainment demonstration with a NOX

budget, this NOX budget must be used 

to demonstrate conformity for the 1997 

ozone NAAQS and could also be used 

to demonstrate conformity for any 

future ozone NAAQS before the area has 

a SIP for that ozone NAAQS. However, 

the NOX budget could not be used to 

demonstrate conformity for a PM or NO2

NAAQS because doing so would not be 

consistent with CAA section 176(c) 

requirements that conformity be 

demonstrated to the relevant SIP. 

Finally, while pollutants may have 

precursors in common, control 

strategies may differ by pollutant and 

the seasons for which the budget is 

established may differ by pollutant as 

well. For example, precursor SIP 

budgets for the ozone NAAQS address 

a typical summer day, because ozone is 

a summertime air quality problem. 

However, PM2.5 violations in the same 

geographic area may have occurred 

during winter months. An ozone 

precursor SIP budget established for a 

typical summer day has no relevance in 

addressing a wintertime PM2.5 problem. 

EPA believes that section 93.109(c)(2) 

in today’s final rule provides sufficient 

clarity for these situations because it 

specifies that where an area does not 

have an adequate or approved SIP 

budget for a NAAQS, it would use an 

approved or adequate SIP budget(s) for 

another NAAQS of the same pollutant 

as the test of conformity. No additional 

changes are necessary. 

IV. Additional Option for Areas That 

Qualify for EPA’s Clean Data 

Regulations or Policies 

A. Overview 

Prior to today’s final rule, the 

conformity rule provided an additional 

regional conformity test option for 

certain moderate and above ozone 

nonattainment areas that meet the 

criteria of EPA’s existing clean data 

regulation and policy. Today’s rule 

clarifies this option and extends it to 

any nonattainment areas that are 

covered by EPA’s clean data regulations 

or clean data policies. See Section IV of 

the August 13, 2010 proposal for further 

background on EPA’s clean data 

regulations and policies (75 FR 49439). 

B. Description of the Final Rule 

Today, EPA is clarifying that any 

nonattainment area that EPA determines 

has air quality monitoring data that 

meet the requirements of 40 CFR parts 

50 and 58 and that show attainment of 

a NAAQS—a ‘‘clean data’’ area 11—can 

choose to satisfy the regional conformity 

test requirements by using on-road 

emissions from the most recent year of 

clean data as the budget(s) for that 

NAAQS rather than using the interim 

emissions test(s) per 40 CFR 93.119. The 

area may do this if the following are 

true: 

• The state or local air quality agency 

requests that budgets be established by 

the EPA determination of attainment 

(Clean Data) rulemaking for that 

NAAQS, and EPA approves the request; 

and, 

• The area has not submitted a 

maintenance plan for that NAAQS and 

EPA has determined (through the Clean 

Data rulemaking) that the area is not 

subject to the CAA reasonable further 

progress and attainment demonstration 

requirements for the relevant NAAQS. 


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Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations 14983 

12 If EPA subsequently finds a different SIP 

budget adequate or approves a SIP containing a 

budget, then that budget would be used for 

conformity purposes, as applicable, under 40 CFR 

93.118. 

13See the November 29, 2005 Phase 2 Ozone 

Implementation rulemaking for the 1997 ozone 

NAAQS (70 FR 71644–71646), 40 CFR 51.918, and 

the April 25, 2007 Clean Air Fine Particle 

Implementation Rule for the 1997 PM2.5 NAAQS (72 

FR 20603–20605), 40 CFR 1004(c). 

14These are known as Three-Year Cycle 

Inventories. See 40 CFR Part 51.30(b) and the EPA’s 

December 17, 2008 final rule (73 FR 76539) for 

more details. 

Otherwise, clean data areas for a 

NAAQS must satisfy the regional 

conformity test requirements using 

either the budget test if they have 

adequate or approved SIP budgets (per 

40 CFR 93.109 and 93.118), or the 

interim emissions test(s) per 40 CFR 

93.119 if they do not have adequate or 

approved SIP budgets. 

In today’s rule, EPA is not making 

changes to its existing clean data 

regulations or policies or to the 

conformity option for clean data areas. 

EPA is merely clarifying this conformity 

option and extending it to any 

nonattainment areas that are covered by 

EPA’s clean data regulations or clean 

data policies. 

The regulatory text for this flexibility 

is found in section 93.109(c)(5) of the 

conformity rule. This text clarifies that 

before this flexibility may be used: (1) 

the state or local air quality agency must 

make the request that the emissions in 

the most recent year for which EPA 

determines the area is attaining (i.e., the 

most recent year that the area has clean 

data) be used as budgets, and (2) EPA 

would have to approve that request 

through notice-and-comment 

rulemaking. 

Today’s rule also updates the 

definition of ‘‘clean data’’ in 40 CFR 

93.101 to describe this term more 

accurately. The updated definition 

references the appropriate requirements 

at 40 CFR part 50, as well as part 58. 

C. Rationale and Response to Comments 

EPA believes that it is reasonable to 

extend the same conformity option 

available to clean data ozone areas to all 

clean data areas for which EPA has a 

clean data regulation or policy. 

Furthermore, this provision should 

work with any clean data policy or 

regulation that EPA develops; thus, it 

would eliminate the need to update the 

conformity rule in the future in order to 

extend this conformity option to any 

NAAQS for which EPA develops a clean 

data policy or regulation. See EPA’s 

previous discussion and rationale for 

the clean data conformity option in July 

1, 2004 final rule (69 FR 40019–40021). 

See also the preamble to the 1996 

conformity proposal and 1997 final rule 

(July 9, 1996, 61 FR 36116, and August 

15, 1997, 62 FR 43784–43785, 

respectively). 

Several commenters requested that 

EPA clarify whether the use of the most 

recent year of clean data as the budget 

becomes binding once EPA approves it 

for use in completing regional 

conformity analyses. These commenters 

also wanted assurance that the state or 

local air quality agency would need to 

use the interagency and public 

consultation process before such 

budgets are submitted to EPA for 

approval. As EPA explained in its 

proposed rule (August 13, 2010, 75 FR 

49439), once the state or local air quality 

agency makes the request that the 

emissions in the most recent year for 

which the area is attaining be used as 

the budget, and EPA approves that 

request through a rulemaking, this level 

of emissions becomes the approved 

budget for conformity purposes in the 

clean data area for the relevant 

NAAQS.12 The area may not revert back 

to using the interim emissions test(s) to 

demonstrate conformity once a budget 

has been established through a 

rulemaking, regardless of whether such 

budget is approved in a Clean Data 

rulemaking for a NAAQS or is approved 

as part of a control strategy SIP. Note 

that should EPA subsequently 

determine that the area has violated the 

relevant NAAQS and withdraw the 

determination of attainment through 

appropriate rulemaking,13 EPA will also 

withdraw its approval for the clean data 

budget. 

Once a clean data area submits a 

maintenance plan, and its budget(s) are 

found adequate or approved, the 

maintenance plan budget(s) must be 

used for conformity based on the 

regulation at 40 CFR 93.118(b). 

The conformity rule at 93.105(a)(1) 

requires interagency consultation in SIP 

development. The final rule is 

consistent with prior conformity 

rulemakings that require any clean data 

budgets to be subject to the existing 

interagency consultation process and 

public comment. EPA established in its 

August 15, 1997 final rule (62 FR 

43784–43785) that, regardless of 

whether a budget is created through the 

SIP process or through a Clean Data 

rulemaking, the interagency 

consultation process must be used and 

the public must be provided an 

opportunity to comment. See the August 

15, 1997 final rule for further details. 

For details on EPA’s clean data 

regulations and policies, see the 

November 29, 2005 Phase 2 Ozone 

Implementation rulemaking for the 1997 

ozone NAAQS (70 FR 71644–71646), 40 

CFR 51.918, and the April 25, 2007 

Clean Air Fine Particle Implementation 

Rule for the 1997 PM2.5 NAAQS (72 FR 

20603–20605, 40 CFR 1004(c)). See also 

various determinations of attainment for 

PM10 nonattainment areas using EPA’s 

Clean Data policy (October 30, 2006 

final rule (71 FR 63642), February 8, 

2006 final rule (71 FR 6352), March 14, 

2006 final rule (71 FR 13021), March 23, 

2010 proposed rule (75 FR 13710)). 

V. Restructure of the Baseline Year Test 

for Existing NAAQS and Baseline Year 

Test for Future NAAQS 

A. Overview 

As stated above, conformity is 

demonstrated with one or both of the 

interim emissions tests if an adequate or 

approved SIP budget is not available. 

The interim emissions tests include 

different forms of the ‘‘build/no-build’’ 

test and ‘‘baseline year’’ test. In general, 

the baseline year test compares 

emissions from the planned 

transportation system to emissions that 

occurred in the relevant baseline year. 

The build/no-build test compares 

emissions from the planned (or ‘‘build’’) 

transportation system with the existing 

(or ‘‘no-build’’) transportation system in 

the analysis year. 

B. Description of Final Rule 

Today’s action revises 40 CFR 93.119 

to apply more generally to any NAAQS 

for a given pollutant. First, the section 

has been reorganized to place the 

baseline years for existing NAAQS in 

one paragraph (revised paragraph (e)). 

Today’s action also revises 40 CFR 

93.119 to define the baseline year for 

any NAAQS promulgated after 1997 by 

reference to another requirement. Rather 

than naming a specific year, the 

conformity rule defines the baseline 

year for conformity purposes as the 

most recent year for which EPA’s Air 

Emissions Reporting Requirements 

(AERR) (40 CFR Part 51.30(b)) requires 

submission of on-road mobile source 

emissions inventories, as of the effective 

date of EPA’s nonattainment 

designations for any NAAQS 

promulgated after 1997. AERR requires 

on-road mobile source emission 

inventories to be submitted for every 

third year, for example, 2002, 2005, 

2008, 2011, 2014, etc.14

Today’s rule is consistent with the 

baseline year definition finalized for the 

2006 PM2.5 NAAQS in the PM 

Amendments final rule. In the PM 

Amendments final rule, this definition 

applied to only areas designated for any 

PM2.5 NAAQS other than the 1997 PM2.5

NAAQS. Today’s action amends the 


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15See www.epa.gov/otaq/stateresources/

transconf/baseline.htm. 

16See the March 24, 2010 final rule (75 FR 14265) 

and the July 1, 2004 final rule (69 FR 40015). 

conformity rule to establish the same 

baseline year definition for new or 

revised NAAQS of any pollutant 

promulgated after 1997, not just the 

PM2.5 NAAQS. See the March 24, 2010 

p.m. Amendments final rule (75 FR 

14265–14266) for further details. 

This definition will automatically 

establish a relevant baseline year for 

conformity purposes for any areas 

designated nonattainment for all future 

NAAQS. For all future NAAQS, EPA 

will identify the baseline year that 

results from today’s rule in guidance 

and will maintain a list of baseline years 

on EPA’s Web site.15 Once the baseline 

year is established according to this 

provision, it will not change (i.e., the 

baseline year would not be a rolling 

baseline year for a given NAAQS). 

Today’s final rule does not change any 

baseline years already established for 

conformity purposes prior to today’s 

action. 

The existing interagency consultation 

process (40 CFR 93.105(c)(1)(i)) must be 

used to determine the latest 

assumptions and models for generating 

baseline year motor vehicle emissions to 

complete any baseline year test. The 

baseline year emissions level that is 

used in conformity must be based on the 

latest planning assumptions available, 

the latest emissions model, and 

appropriate methods for estimating 

travel and speeds as required by 40 CFR 

93.110, 93.111, 93.122 of the current 

conformity rule. 

As described in earlier rulemakings, 

the baseline year interim emissions test 

can be completed with a submitted or 

draft baseline year motor vehicle 

emissions SIP inventory, if the SIP 

reflects the latest information and 

models.16 An MPO or state DOT, in 

consultation with state and local air 

agencies, could also develop baseline 

year emissions as part of the conformity 

analysis. EPA believes that a submitted 

or draft SIP baseline inventory may be 

the most appropriate source for 

completing the baseline year tests for an 

area’s first conformity determination 

under a new or revised NAAQS. This is 

due to the fact that SIP inventories are 

likely to be under development at the 

same time as these conformity 

determinations, and such inventories 

must be based on the latest available 

data at the time they are developed 

(CAA section 172(c)(3)). 

C. Rationale and Response to Comments 

EPA believes that today’s final rule 

results in an environmentally protective 

and legal baseline year for conformity 

for any NAAQS promulgated after 1997 

and best accomplishes several important 

goals. 

First, as described in the August 13, 

2010 proposed rule (75 FR 49440), EPA 

believes it is important to coordinate the 

conformity baseline year with the year 

used for SIP planning and an emissions 

inventory year. This was EPA’s rationale 

for using 2002 as the baseline year for 

interim emissions tests in 

nonattainment areas for the 1997 ozone 

and PM2.5 NAAQS (69 FR 40014– 

40015). It was also EPA’s rationale for 

finalizing the same baseline year 

definition in today’s final rule for 2006 

PM2.5 nonattainment areas in the March 

24, 2010 final rule: this definition 

resulted in a conformity baseline year of 

2008 for the 2006 PM2.5 NAAQS (75 FR 

14265–14266). Therefore, today’s 

conformity baseline year is consistent 

with how EPA has implemented the 

conformity baseline year for new or 

revised NAAQS in the past. 

Second, today’s baseline year 

definition also ensures that the baseline 

year for any future NAAQS is always 

fairly recent, which is appropriate for 

meeting CAA conformity requirements 

and is environmentally protective. 

Because the AERR requires submission 

of inventories every three years, the 

baseline year for any NAAQS 

promulgated after 1997 will always be 

either the same year as the year in 

which designations are effective, or one 

or two years prior to the effective date 

of the designations. For example, in the 

case of the 2006 PM2.5 NAAQS, 

nonattainment designations became 

effective on December 14, 2009, and the 

baseline year for conformity purposes is 

2008 for areas designated nonattainment 

for the 2006 PM2.5 NAAQS, the year 

before the effective date of the 

designations (See the PM Amendments 

final rule for details (75 FR 14265– 

14266)). 

EPA also believes that coordinating 

the baseline year for interim emissions 

tests with other data collection and 

inventory requirements would allow 

state and local governments to use their 

resources more efficiently. Given that 

the CAA requires EPA to review the 

NAAQS for possible revision once every 

five years, today’s baseline year 

provision standardizes the process for 

selecting an appropriate baseline year 

for any NAAQS promulgated in the 

future. 

Finally, today’s rule for the baseline 

year definition provides implementers 

with knowledge of the baseline year for 

any future new or revised NAAQS upon 

the effective date of nonattainment 

designations for that NAAQS, without 

having to wait for EPA to amend the 

conformity rule. As a result, MPOs and 

other implementers should understand 

conformity requirements for future 

NAAQS revisions more quickly, which 

should enable them to fully utilize the 

12-month conformity grace period to 

complete conformity determinations for 

new nonattainment areas. 

Several commenters voiced support 

for coordinating the conformity baseline 

year with an emissions inventory year, 

in part because EPA could avoid 

additional rulemakings to implement 

future baseline year changes. Several 

commenters also agreed that this change 

would be beneficial since implementing 

organizations would know the 

conformity requirements in advance of 

any new or revised NAAQS. 

Some commenters expressed concern 

that emissions inventories are not 

always submitted on time and 

recommended that the conformity rule 

require that the baseline year for the 

baseline year interim emissions test be 

the most recent emissions inventory 

year that has been completed and 

submitted to EPA. One commenter 

recommended that the baseline year be 

at least three years older than the date 

the first conformity determination is 

required and that if the most recent 

completed emissions inventory is less 

than three years old, the previous 

emissions inventory should be used. 

However, these suggestions could lead 

to different baseline years in areas 

designated for the same NAAQS, which 

may not meet statutory requirements, 

and would be confusing to track as well 

as inequitable. EPA’s final rule 

establishes the same baseline year for 

every area designated for a particular 

NAAQS regardless of whether an 

individual area submitted its inventory 

on time. If an area has not submitted a 

final AERR inventory for the relevant 

conformity baseline year, there are other 

options for generating on-road mobile 

source emissions in the baseline year, 

discussed above under B. of this section. 

Another commenter opined that if a 

later year than currently required is 

used as a baseline year for the baseline 

year interim emissions test, and 

emissions are on a downward trend, the 

proposed change would make the 

baseline year interim emissions test 

more stringent than what was proposed. 

The commenter suggested that this 

concern may be mitigated by keeping 

the baseline year for all future NAAQS 

at or near the year 2002 that was 


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established for the 1997 ozone and 

PM2.5 NAAQS. 

Today’s final rule is intended to 

ensure the same level of stringency for 

all NAAQS regardless of when the 

NAAQS was promulgated. The 

conformity baseline year of 2002 that 

EPA established for the 1997 ozone and 

PM2.5 NAAQS is several years prior to 

the effective date of the 1997 ozone and 

PM2.5 ozone nonattainment 

designations. Area designations for the 

1997 ozone NAAQS became effective on 

June 15, 2004 and area designations for 

the 1997 PM2.5 NAAQS became effective 

on April 5, 2005 (See the April 30, 2004 

(69 FR 23858) and the January 5, 2005 

(70 FR 944) final rules, respectively). 

Further, if there is a downward trend in 

on-road mobile source emissions, it 

makes sense to reflect that downward 

trend in the interim emissions test. 

Today’s final rule accomplishes that by 

ensuring that the baseline year is always 

fairly recent. 

Finally, EPA would like to clarify a 

couple of points related to this 

comment. First, the commenter referred 

to the baseline year of 2002 in the 

‘‘current conformity rule.’’ That baseline 

year of 2002 was established in 2004 for 

the 1997 ozone and PM2.5 NAAQS and 

it remains the baseline year only for 

these NAAQS. Second, the baseline year 

definition in today’s rule is the same 

definition EPA established as the 

baseline year for areas designated 

nonattainment for the 2006 PM2.5

NAAQS in the March 24, 2010 p.m. 

Amendments rule. Thus, today’s 

definition had already been part of the 

current conformity rule prior to today’s 

action. 

VI. How do these amendments affect 

conformity SIPs? 

Today’s action does not affect existing 

conformity SIPs that were prepared in 

accordance with current CAA 

requirements since the final rule does 

not affect the provisions that are 

required to be in a conformity SIP. CAA 

section 176(c)(4)(E) requires a 

conformity SIP to include the state’s 

criteria and procedures for interagency 

consultation (40 CFR 93.105) and two 

additional provisions related to written 

commitments for certain control and 

mitigation measures (40 CFR 

93.122(a)(4)(ii) and 93.125(c)). 

However, the conformity rule also 

requires states to submit a new or 

revised conformity SIP to EPA within 

12 months of the Federal Register 

publication date of any final conformity 

amendments if a state’s conformity SIP 

includes the provisions of such final 

amendments (40 CFR 51.390(c)). 

Therefore, such a conformity SIP 

revision is required to be submitted by 

March 14, 2013 in states with approved 

conformity SIP’s containing provisions 

addressed by today’s action. EPA 

encourages these states to revise their 

conformity SIP to include only the three 

required sections so that future changes 

to the conformity rule do not require 

further revisions to conformity SIPs. 

EPA will continue to work with states 

to approve such revisions as 

expeditiously as possible through 

flexible administrative techniques, such 

as parallel processing and direct final 

rulemaking. 

Finally, any state that has not 

previously been required to submit a 

conformity SIP to EPA must submit a 

conformity SIP within 12 months of an 

area’s nonattainment designation (40 

CFR 51.390(c)). 

For additional information on 

conformity SIPs, please refer to the 

January 2009 guidance entitled, 

‘‘Guidance for Developing 

Transportation Conformity State 

Implementation Plans’’ available on 

EPA’s Web site at www.epa.gov/otaq/

stateresources/transconf/policy/

420b09001.pdf. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, (58 FR 

51735; October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it raises novel legal and policy issues. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made 

in response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. The 

information collection requirements of 

EPA’s existing transportation 

conformity regulations and the 

proposed revisions in today’s action are 

already covered by EPA information 

collection request (ICR) entitled, 

‘‘Transportation Conformity 

Determinations for Federally Funded 

and Approved Transportation Plans, 

Programs and Projects.’’ The Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing conformity regulations under 

the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2060–0561. The OMB control numbers 

for EPA’s regulations in 40 CFR are 

listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an Agency to prepare 

a regulatory flexibility analysis of rules 

subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the Agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small not-forprofit organizations and small 

government jurisdictions. 

For purposes of assessing the impacts 

of today’s final rule on small entities, 

small entity is defined as: (1) a small 

business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This regulation directly affects federal 

agencies and metropolitan planning 

organizations that, by definition, are 

designated under federal transportation 

laws only for metropolitan areas with a 

population of at least 50,000. These 

organizations do not constitute small 

entities within the meaning of the 

Regulatory Flexibility Act. Therefore, 

this final rule will not impose any 

requirements on small entities. 

D. Unfunded Mandates Reform Act 

This action does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

This final rule implements already 

established law that imposes conformity 

requirements and does not itself impose 

requirements that may result in 

expenditures of $100 million or more in 

any year. Thus, this rule is not subject 

to the requirements of Sections 202 and 

205 of the UMRA. 

This final rule is also not subject to 

the requirements of Section 203 of 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule will not significantly or uniquely 


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14986 Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations 

impact small governments because it 

directly affects federal agencies and 

metropolitan planning organizations 

that, by definition, are designated under 

federal transportation laws only for 

metropolitan areas with a population of 

at least 50,000. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The CAA 

requires conformity to apply in certain 

nonattainment and maintenance areas 

as a matter of law, and this action 

merely establishes and revises 

procedures for transportation planning 

entities in subject areas to follow in 

meeting their existing statutory 

obligations. Thus, Executive Order 

13132 does not apply to this action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). The CAA requires conformity to 

apply in any area that is designated 

nonattainment or maintenance by EPA. 

Because today’s amendments to the 

conformity rule do not significantly or 

uniquely affect the communities of 

Indian tribal governments, Executive 

Order 13175 does not apply to this 

action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This action is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997) because it is not economically 

significant as defined in EO 12866, and 

because the Agency does not have 

reason to believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 18355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. It 

does not create a serious inconsistency 

or otherwise interfere with an action 

taken or planned by another agency 

regarding energy. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, Section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it 

maintains or increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a major rule as 

defined by 5 U.S.C. 804(2). This rule 

will be effective April 13, 2012. 

List of Subjects in 40 CFR Part 93 

Administrative practice and 

procedure, Air pollution control, Carbon 

monoxide, Clean Air Act, 

Environmental protection, Highways 

and roads, Intergovernmental relations, 

Mass transportation, Nitrogen dioxide, 

Ozone, Particulate matter, 

Transportation, Volatile organic 

compounds. 

Dated: March 8, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons discussed in the 

preamble, 40 CFR part 93 is amended as 

follows: 

PART 93—[AMENDED] 

■ 1. The authority citation for part 93 

continues to read as follows: 

Authority: 42 U.S.C. 7401–7671q. 

■ 2. Section 93.101 is amended by 

removing paragraphs (1) through (6) of 

the definition for ‘‘National ambient air 

quality standards (NAAQS)’’ and by 

revising the definition for ‘‘Clean data’’ 

to read as follows: 

§ 93.101 Definitions. 

* * * * * 

Clean data means air quality 

monitoring data determined by EPA to 

meet the applicable requirements of 40 

CFR Parts 50 and 58 and to indicate 

attainment of a NAAQS. 

* * * * * 

§ 93.105 [Amended] 

■ 3. Section 93.105(c)(1)(vi) is amended 

by removing the citation 

‘‘§ 93.109(n)(2)(iii)’’ and adding in its 

place the citation ‘‘§ 93.109(g)(2)(iii)’’. 

■ 4. Section 93.109 is amended as 

follows: 

■ a. By revising paragraphs (b) 

introductory text, (c), and (d); 

■ b. By removing paragraphs (e) through 

(k), and redesignating paragraphs (l), 

(m), and (n) as paragraphs (e), (f), and 

(g); 

■ c. In newly redesignated paragraph 

(g)(2) introductory text, by removing the 


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citation ‘‘paragraphs (c) through (m)’’ 

and adding in its place ‘‘paragraph (c)’’; 

■ d. In newly redesignated paragraph 

(g)(2)(iii), by removing the citation 

‘‘paragraph (n)(2)(ii)’’ and adding in its 

place ‘‘paragraph (g)(2)(ii)’’; 

■ e. In newly redesignated paragraph 

(g)(2)(iii), by removing the citation 

‘‘paragraph (n)(2)(ii)(C)’’ and adding in 

its place ‘‘paragraph (g)(2)(ii)(C)’’; 

■ f. In newly redesignated paragraph 

(g)(2)(iii), by removing the citation 

‘‘§ 93.105(c)(1)(vii)’’ and adding in its 

place ‘‘§ 93.105(c)(1)(vi)’’. 

§ 93.109 Criteria and procedures for 

determining conformity of transportation 

plans, programs, and projects: General. 

* * * * * 

(b) Table 1 in this paragraph indicates 

the criteria and procedures in §§ 93.110 

through 93.119 which apply for 

transportation plans, TIPs, and FHWA/ 

FTA projects. Paragraph (c) of this 

section explains when the budget and 

interim emissions tests are required for 

each pollutant and NAAQS. Paragraph 

(d) of this section explains when a hotspot test is required. Paragraph (e) of 

this section addresses conformity 

requirements for areas with approved or 

adequate limited maintenance plans. 

Paragraph (f) of this section addresses 

nonattainment and maintenance areas 

which EPA has determined have 

insignificant motor vehicle emissions. 

Paragraph (g) of this section addresses 

isolated rural nonattainment and 

maintenance areas. Table 1 follows: 

* * * * * 

(c) Regional conformity test 

requirements for all nonattainment and 

maintenance areas. This provision 

applies one year after the effective date 

of EPA’s nonattainment designation for 

a NAAQS in accordance with 

§ 93.102(d) and until the effective date 

of revocation of such NAAQS for an 

area. In addition to the criteria listed in 

Table 1 in paragraph (b) of this section 

that are required to be satisfied at all 

times, in such nonattainment and 

maintenance areas conformity 

determinations must include a 

demonstration that the budget and/or 

interim emissions tests are satisfied as 

described in the following: 

(1) In all nonattainment and 

maintenance areas for a NAAQS, the 

budget test must be satisfied as required 

by § 93.118 for conformity 

determinations for such NAAQS made 

on or after: 

(i) The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted control strategy 

implementation plan revision or 

maintenance plan for such NAAQS is 

adequate for transportation conformity 

purposes; 

(ii) The publication date of EPA’s 

approval of such a budget in the Federal 

Register; or 

(iii) The effective date of EPA’s 

approval of such a budget in the Federal 

Register, if such approval is completed 

through direct final rulemaking. 

(2) Prior to paragraph (c)(1) of this 

section applying for a NAAQS, in a 

nonattainment area that has approved or 

adequate motor vehicle emissions 

budgets in an applicable 

implementation plan or implementation 

plan submission for another NAAQS of 

the same pollutant, the following tests 

must be satisfied: 

(i) If the nonattainment area covers 

the same geographic area as another 

NAAQS of the same pollutant, the 

budget test as required by § 93.118 using 

the approved or adequate motor vehicle 

emissions budgets for that other 

NAAQS; 

(ii) If the nonattainment area covers a 

smaller geographic area within an area 

for another NAAQS of the same 

pollutant, the budget test as required by 

§ 93.118 for either: 

(A) The nonattainment area, using 

corresponding portion(s) of the 

approved or adequate motor vehicle 

emissions budgets for that other 

NAAQS, where such portion(s) can 

reasonably be identified through the 

interagency consultation process 

required by § 93.105; or 

(B) The area designated 

nonattainment for that other NAAQS, 

using the approved or adequate motor 

vehicle emissions budgets for that other 

NAAQS. If additional emissions 

reductions are necessary to meet the 

budget test for the nonattainment area 

for a NAAQS in such cases, these 

emissions reductions must come from 

within such nonattainment area; 

(iii) If the nonattainment area covers 

a larger geographic area and 

encompasses an entire area for another 

NAAQS of the same pollutant, then 

either (A) or (B) must be met: 

(A)(1) The budget test as required by 

§ 93.118 for the portion of the 

nonattainment area covered by the 

approved or adequate motor vehicle 

emissions budgets for that other 

NAAQS; and 

(2) the interim emissions tests as 

required by § 93.119 for one of the 

following areas: the portion of the 

nonattainment area not covered by the 

approved or adequate budgets for that 

other NAAQS; the entire nonattainment 

area; or the entire portion of the 

nonattainment area within an 

individual state, in the case where 

separate adequate or approved motor 

vehicle emissions budgets for that other 

NAAQS are established for each state of 

a multi-state nonattainment or 

maintenance area. 

(B) The budget test as required by 

§ 93.118 for the entire nonattainment 

area using the approved or adequate 

motor vehicle emissions budgets for that 

other NAAQS. 

(iv) If the nonattainment area partially 

covers an area for another NAAQS of 

the same pollutant: 

(A) The budget test as required by 

§ 93.118 for the portion of the 

nonattainment area covered by the 

corresponding portion of the approved 

or adequate motor vehicle emissions 

budgets for that other NAAQS, where 

they can be reasonably identified 

through the interagency consultation 

process required by § 93.105; and 

(B) The interim emissions tests as 

required by § 93.119, when applicable, 

for either: the portion of the 

nonattainment area not covered by the 

approved or adequate budgets for that 

other NAAQS; the entire nonattainment 

area; or the entire portion of the 

nonattainment area within an 

individual state, in the case where 

separate adequate or approved motor 

vehicle emissions budgets for that other 

NAAQS are established for each state of 

a multi-state nonattainment or 

maintenance area. 

(3) In a nonattainment area, the 

interim emissions tests required by 

§ 93.119 must be satisfied for a NAAQS 

if neither paragraph (c)(1) nor paragraph 

(c)(2) of this section applies for such 

NAAQS. 

(4) An ozone nonattainment area must 

satisfy the interim emissions test for 

NOX, as required by § 93.119, if the 

implementation plan or plan 

submission that is applicable for the 

purposes of conformity determinations 

is a 15% plan or other control strategy 

SIP that does not include a motor 

vehicle emissions budget for NOX. The 

implementation plan for an ozone 

NAAQS will be considered to establish 

a motor vehicle emissions budget for 

NOX if the implementation plan or plan 

submission contains an explicit NOX

motor vehicle emissions budget that is 

intended to act as a ceiling on future 

NOX emissions, and the NOX motor 

vehicle emissions budget is a net 

reduction from NOX emissions levels in 

the SIP’s baseline year. 

(5) Notwithstanding paragraphs (c)(1), 

(c)(2), and (c)(3) of this section, 

nonattainment areas with clean data for 

a NAAQS that have not submitted a 

maintenance plan and that EPA has 

determined are not subject to the Clean 

Air Act reasonable further progress and 

attainment demonstration requirements 


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14988 Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations 

for that NAAQS must satisfy one of the 

following requirements: 

(i) The budget test and/or interim 

emissions tests as required by §§ 93.118 

and 93.119 as described in paragraphs 

(c)(2) and (c)(3) of this section; 

(ii) The budget test as required by 

§ 93.118, using the adequate or 

approved motor vehicle emissions 

budgets in the submitted or applicable 

control strategy implementation plan for 

the NAAQS for which the area is 

designated nonattainment (subject to the 

timing requirements of paragraph (c)(1) 

of this section); or 

(iii) The budget test as required by 

§ 93.118, using the motor vehicle 

emissions in the most recent year of 

attainment as motor vehicle emissions 

budgets, if the state or local air quality 

agency requests that the motor vehicle 

emissions in the most recent year of 

attainment be used as budgets, and EPA 

approves the request in the rulemaking 

that determines that the area has 

attained the NAAQS for which the area 

is designated nonattainment. 

(6) For the PM10 NAAQS only, the 

interim emissions tests must be satisfied 

as required by § 93.119 for conformity 

determinations made if the submitted 

implementation plan revision for a PM10

nonattainment area is a demonstration 

of impracticability under CAA Section 

189(a)(1)(B)(ii) and does not 

demonstrate attainment. 

(d) Hot-spot conformity test 

requirements for CO, PM2.5, and PM10

nonattainment and maintenance areas. 

This provision applies in accordance 

with § 93.102(d) for a NAAQS and until 

the effective date of any revocation of 

such NAAQS for an area. In addition to 

the criteria listed in Table 1 in 

paragraph (b) of this section that are 

required to be satisfied at all times, 

project-level conformity determinations 

in CO, PM10, and PM2.5 nonattainment 

and maintenance areas must include a 

demonstration that the hot-spot tests for 

the applicable NAAQS are satisfied as 

described in the following: 

(1) FHWA/FTA projects in CO 

nonattainment or maintenance areas 

must satisfy the hot-spot test required 

by § 93.116(a) at all times. Until a CO 

attainment demonstration or 

maintenance plan is approved by EPA, 

FHWA/FTA projects must also satisfy 

the hot-spot test required by § 93.116(b). 

(2) FHWA/FTA projects in PM10

nonattainment or maintenance areas 

must satisfy the appropriate hot-spot 

test as required by § 93.116(a). 

(3) FHWA/FTA projects in PM2.5

nonattainment or maintenance areas 

must satisfy the appropriate hot-spot 

test required by § 93.116(a). 

* * * * * 

§ 93.116 [Amended] 

■ 5. Section 93.116(b) is amended by 

removing the citation ‘‘§ 93.109(f)(1)’’ 

and adding in its place the citation 

‘‘§ 93.109(d)(1)’’. 

■ 6. Section 93.118 is amended: 

■ a. In paragraph (a), by removing the 

citation ‘‘§ 93.109(c) through (n)’’ and 

adding in its place the citation 

‘‘§ 93.109(c) through (g)’’; and 

■ b. By revising paragraph (b) 

introductory text. 

§ 93.118 Criteria and procedures: Motor 

vehicle emissions budget. 

* * * * * 

(b) Consistency with the motor 

vehicle emissions budget(s) must be 

demonstrated for each year for which 

the applicable (and/or submitted) 

implementation plan specifically 

establishes a motor vehicle emissions 

budget(s), and for each year for which 

a regional emissions analysis is 

performed to fulfill the requirements in 

paragraph (d) of this section, as follows: 

* * * * * 

■ 7. Section 93.119 is amended as 

follows: 

■ a. In paragraph (a), by removing the 

citation ‘‘§ 93.109(c) through (n)’’ and 

adding in its place the citation 

‘‘§ 93.109(c) through (g)’’; 

■ b. In paragraph (b) introductory text, 

by removing ‘‘1-hour ozone and 

8-hour’’; 

■ c. By revising paragraphs (b)(1)(ii) and 

(b)(2)(ii); 

■ d. By revising paragraphs (c)(1)(ii) and 

(c)(2)(ii); 

■ e. By revising the heading of 

paragraph (d); 

■ f. In paragraph (d) introductory text, 

by removing ‘‘PM10 and NO2’’ and 

adding in its place ‘‘PM2.5, PM10, and 

NO2’’; 

■ g. By revising paragraph (d)(2); 

■ h. By revising paragraph (e); and 

■ i. In paragraph (g)(2), by removing 

‘‘(b)(2)(i), (c)(2)(i), (d)(1), and (e)(1)’’ and 

adding in its place ‘‘(b)(2)(i), (c)(2)(i), 

and (d)(1)’’. 

§ 93.119 Criteria and procedures: Interim 

emissions in areas without motor vehicle 

emissions budgets. 

* * * * * 

(b) * * * 

(1) * * * 

(ii) The emissions predicted in the 

‘‘Action’’ scenario are lower than 

emissions in the baseline year for that 

NAAQS as described in paragraph (e) of 

this section by any nonzero amount. 

(2) * * * 

(ii) The emissions predicted in the 

‘‘Action’’ scenario are not greater than 

emissions in the baseline year for that 

NAAQS as described in paragraph (e) of 

this section. 

(c) * * * 

(1) * * * 

(ii) The emissions predicted in the 

‘‘Action’’ scenario are lower than 

emissions in the baseline year for that 

NAAQS as described in paragraph (e) of 

this section by any nonzero amount. 

(2) * * * 

(ii) The emissions predicted in the 

‘‘Action’’ scenario are not greater than 

emissions in the baseline year for that 

NAAQS as described in paragraph (e) of 

this section. 

(d) PM2.5, PM10, and NO2 areas.* * * 

(2) The emissions predicted in the 

‘‘Action’’ scenario are not greater than 

emissions in the baseline year for that 

NAAQS as described in paragraph (e) of 

this section. 

(e) Baseline year for various NAAQS. 

The baseline year is defined as follows: 

(1) 1990, in areas designated 

nonattainment for the 1990 CO NAAQS 

or the 1990 NO2 NAAQS. 

(2) 1990, in areas designated 

nonattainment for the 1990 PM10

NAAQS, unless the conformity 

implementation plan revision required 

by § 51.390 of this chapter defines the 

baseline emissions for a PM10 area to be 

those occurring in a different calendar 

year for which a baseline emissions 

inventory was developed for the 

purpose of developing a control strategy 

implementation plan. 

(3) 2002, in areas designated 

nonattainment for the 1997 ozone 

NAAQS or 1997 PM2.5 NAAQS. 

(4) The most recent year for which 

EPA’s Air Emission Reporting Rule (40 

CFR Part 51, Subpart A) requires 

submission of on-road mobile source 

emissions inventories as of the effective 

date of designations, in areas designated 

nonattainment for a NAAQS that is 

promulgated after 1997. 

* * * * * 

§ 93.121 [Amended] 

■ 8. Section 93.121 is amended: 

■ a. In paragraph (b) introductory text, 

by removing the citation ‘‘§ 93.109(n)’’ 

and adding in its place the citation 

‘‘§ 93.109(g)’’. 

b. In paragraph (c) introductory text, 

by removing the citation ‘‘§ 93.109(l) or 

(m)’’ and adding in its place the citation 

‘‘§ 93.109(e) or (f)’’. 

[FR Doc. 2012–6207 Filed 3–13–12; 8:45 am] 

BILLING CODE 6560–50–P 


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