**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Parts 51 and 93**

**\[OAR-2004-0491; FRL- \]**

**\[RIN 2020-AH93\]**

**Proposed Revisions to the General Conformity Regulations**

**AGENCY:** Environmental Protection Agency (EPA).

**ACTION:** Proposed rulemaking.

**SUMMARY:** The EPA is proposing to revise its regulations relating to
the Clean Air Act (CAA) requirement that Federal actions conform to the
appropriate State, Tribal or Federal implementation plan for attaining
clean air ("general conformity").

**DATES:** Comments on the revisions proposed today must be received on
or before **\[insert date 60 days after publication in the [Federal
Register]{.underline}\]**.

**ADDRESSES:** Submit comments, identified by Docket ID No.
OAR-2004-0491, by one of the following methods:

-   Federal eRulemaking Portal:
    [http://www.regulations.gov](http://www.regulations.gov/). Follow
    the on-line instructions for submitting comments.

-   Agency Web site: <http://www.epa.gov/edocket>. EDOCKET, EPA's
    electronic public docket and comment system, is EPA's preferred
    method for receiving comments. Follow the on-line instructions for
    submitting comments.

-   E-mail: <A-and-R-Docket@epa.gov> attention Docket No. OAR-2004-0491.

-   Fax: 202-566-1741.

-   Mail: General Conformity Revisions, Docket ID No. OAR-2004-0491,
    Environmental Protection Agency Docket Center, Mail Code: 6102T,
    1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460. Please
    include duplicate copies, if possible. In addition, please mail a
    copy of your comments on the information collection provisions to
    the Office of Information and Regulatory Affairs, Office of
    Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th
    St. NW., Washington, DC 20503.

-   Hand Delivery: General Conformity Revisions, Docket ID No.
    OAR-2004-0491., Environmental Protection Agency Docket Center, EPA
    West, Room B-102, 1301 Pennsylvania Avenue, N.W., Washington, D.C.
    Please include duplicate copies, if possible. Such deliveries are
    only accepted during the Docket's normal hours of operation, and
    special arrangements should be made for deliveries of boxed
    information.

    *Instructions:* Direct comments to Docket ID No. OAR-2004-0491. The
    EPA\'s policy is that all comments received will be included in the
    public docket without change and may be made available online at
    <http://www.epa.gov/edocket>, including any personal information
    provided, unless the comment includes information claimed to be
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    free of any defects or viruses. For additional information about
    EPA's public docket visit EDOCKET on-line or see the [Federal
    Register]{.underline} of May 31, 2002 (67 FR 38102).

*Docket:* All documents in the docket are listed in the EDOCKET index at
<http://www.epa.gov/edocket>. Although listed in the index, some
information is not publicly available, i.e., 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 in EDOCKET or in hard copy
at the Docket, EPA/DC, EPA West, Room B102, 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 Docket is (202) 566-1742.

**FOR FURTHER INFORMATION CONTACT:** Mr. Thomas Coda, Office of Air
Quality Planning and Standards, U.S. Environmental Protection Agency,
Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919)
54l-3037 or by e-mail at [coda.tom@epa.gov.]{.underline}

**SUPPLEMENTARY INFORMATION:**

**Table of Contents**

I. Background

A. What Is General Conformity and How Does it Affect Air Quality?

B. Why is EPA Proposing Revisions to These Regulations at This Time?

II\. Summary of the Existing General Conformity Regulations

A. Applicability Analysis

B. Conformity Determination

C. Review Process

III\. Summary of the Proposed Revisions to the General Conformity
Regulations

A. Categories of Proposed Revisions to the General Conformity
Regulations

B. What Innovative and Flexible Approaches are Being Proposed?

C. What Streamlining and Burden Reduction Measures are Being Proposed?

D. What Revisions Provide Tools and Guidance for Transitioning to New or
Revised NAAQS?

E. What Revisions are Being Proposed at the Request of Other Agencies?

F. What are Some of the Clarifications to the Existing Regulations That
are Being Proposed?

IV\. Detailed Discussion of the Proposed Revisions

> A. 40 CFR 51 Subpart W -- Determining Conformity of General Federal
> Actions to State or Federal Implementation Plans

B. 40 CFR 93.150 -- Prohibition

C. 40 CFR 93.151 -- State Implementation Plan (SIP) Revision

D. 40 CFR93.152 -- Definitions

E. 40 CFR 93.153 -- Applicability Analysis

F. 40 CFR 93.154 -- Federal Agencies Responsibility for a Conformity
Determination

G. 40 CFR 93.155 -- Reporting Requirements

H. 40 CFR 93.156 -- Public Participation

I. 40 CFR 93.157 -- Re-evaluation of Conformity

J. 40 CFR 93.158 -- Criteria for Determining Conformity for General
Federal Actions

K. 40 93.159 -- Procedures for Conformity Determinations for General
Federal Actions

L. 401 CFR 93.160 -- Mitigation of Air Quality Impacts

M. 40 CFR 93.161 -- Conformity Evaluations for Installations With
Facility-Wide Emission Budget

N. 40 CFR 93.162 -- Emissions Beyond the Time Period Covered by the
Applicable SIP or TIP

> O. 40 CFR 93.163 -- Timing of Offsets and Mitigation Measures

P. 40 CFR 93.164 -- Inter-Precursor Offsets and Mitigation Measures

Q. 40 CFR 93.165 -- Early Emission Reduction Credit Program

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

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

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

I. National Technology Transfer Advancement Act

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

**I. Background**

**A. What is General Conformity and How Does it Affect Air Quality?**

The intent of the General Conformity requirement is to prevent the air
quality impacts of Federal actions from causing or contributing to a
violation of the national ambient air quality standards (NAAQS) or
interfering with the purpose of a State implementation plan (SIP),
Tribal implementation plan (TIP) or Federal implementation plan(FIP).

In the CAA, Congress recognized that actions taken by Federal agencies
could affect State, Tribe, and local agencies' ability to attain and
maintain the NAAQS. Congress added section 176(c) (42 USC 7506) to the
CAA to ensure Federal agencies= proposed actions conform to the
applicable SIP, TIP or FIP for attaining and maintaining the NAAQS. That
section requires Federal entities to find that the emissions from the
Federal action will not exceed emissions budgets established in the SIP,
TIP or FIP or not otherwise interfere with the State=s or Tribe's
ability to attain and maintain the NAAQS.

The CAA Amendments of 1990 clarified and strengthened the provisions in
section 176(c). Because certain provisions of section 176(c) apply only
to highway and mass transit funding and approvals actions, EPA published
two set of regulations to implement section 176(c). The Transportation
Conformity Regulations, first published on November 24, 1993 (58 FR
62188) and recently revised on July 1, 2004 at 69 FR 40004 and May 6,
2005 at 70 FR 24280, address Federal actions related to highway and mass
transit funding and approval actions. The General Conformity
Regulations, published on November 30, 1993 (58 FR 63214), cover all
other Federal actions.

**B. Why is EPA Proposing Revisions to These Regulations at This Time?**

The EPA has recently proposed to revise the General Conformity
Regulations to include de minimis emission levels for particulate matter
with an aerodynamic diameter equal to or less than 2.5 microns (PM~2.5~)
and its precursors. Otherwise, EPA has not revised the General
Conformity Regulations since they were promulgated in 1993. Since that
time, EPA and other Federal agencies have gained experience with the
implementation of the existing regulations and have identified several
issues with their implementation. Therefore, EPA initiated a process to
review, revise and streamline the regulations. In addition, EPA has
recently issued regulations to implement the revised ozone standard (69
FR 23951, April 30, 2004) and proposed regulations to implement the new
particulate matter standard (70 FR 65984, November 1, 2005). These
regulations could affect the timing and process for general conformity
determinations. State and local air quality agencies are in the process
of developing revised SIPs to attain the new standards and knowledge of
the proposed revisions to the General Conformity Regulations may be
helpful to the State, Tribe, and local agencies as well as the Federal
agencies in developing and commenting on the proposed SIP revisions.

**II. How are the Existing Regulations Implemented?**

The existing regulations do not specifically identify the roles of
Indian Tribes nor the applicability of the regulations to TIPs.

Federal agencies and other parties involved in the conformity process
have found that in implementing the existing General Conformity
Regulations their process falls in to three phases: (A) Applicability
analysis, (B) Conformity determination, and (C) Review process. Besides
ensuring that the Federal actions are in conformance with the SIP, the
regulations encourage consultation between the Federal agency and the
State or local air pollution control agencies before and during the
environmental review process.

**A. Applicability Analysis**

The National Highway System Designation Act of 1995, (Public Law 104-59)
added section 176(c)(5) to the CAA to limit applicability of the
conformity programs to areas designated as nonattainment under section
107 of the CAA and maintenance areas under section 175A of the CAA only.
Therefore, only actions in designated nonattainment and maintenance
areas are subject to the regulation. In addition, the regulations
recognize that the vast majority of Federal actions do not result in
significant increase in emissions and, therefore, include a number of
exemptions such as de minimis emission levels based on the type and
severity of the nonattainment problem.

In the applicability analysis phase, the Federal agency determines:

1\. Whether the action will occur in a nonattainment or maintenance
area;

2\. Whether one of the specific exemptions apply to the action;

3\. Whether the Federal agency has included the action on its list of
"presumed to conform" actions; or

4\. Whether the total direct and indirect emissions are below or above
the de minimis levels.

Under the current regulations, the applicability analysis phase requires
Federal agencies to determine if the action is considered "regionally
significant," i.e., equal to or greater than ten percent of the area's
emission inventory for the pollutant. If the action is regionally
significant, Federal agencies must conduct a conformity determination
for the action even though the emissions caused by the action are below
the de minimis levels, the action is presumed to conform or the action
is otherwise exempt.

**B. Conformity Determination**

When the applicability analysis shows that the action must undergo a
conformity determination, Federal agencies must first show that the
action will meet all SIP control requirements such as reasonably
available control measures, and the emissions from the action will not
interfere with the timely attainment of the standard, the maintenance of
the standard or the area's ability to achieve an interim emission
reduction milestone. Federal agencies then must demonstrate conformity
by meeting one or more of the methods specified in the regulation for
determining conformity:

1\. Demonstrating that the total direct and indirect emissions are
specifically identified and accounted for in the applicable SIP,

2\. Obtaining written statement from the State or local agency
responsible for the SIP documenting that the total direct and indirect
emissions from the action along with all other emissions in the area
will not exceed the SIP emission budget,

3\. Obtaining a written commitment from the State to revise the SIP to
include the emissions from the action,

4\. Obtaining a statement from the metropolitan planning organization
(MPO) for the area documenting that any on-road motor vehicle emissions
are included in the current regional emission analysis for the area's
transportation plan or transportation improvement program,

5\. Fully offset the total direct and indirect emissions by reducing
emissions of the same pollutant or precursor in the same nonattainment
or maintenance area, or

6\. Conducting air quality modeling that demonstrates that the emissions
will not cause or contribute to new violations of the standards, or
increase the frequency or severity of any existing violations of the
standards. Air quality modeling cannot be used to demonstrate conformity
for emissions of ozone precursors or nitrogen dioxide (NO~2~). As stated
in EPA's proposal of the current regulations (58 FR 13845), due to the
complex interaction of the ozone precursors, the regional nature of the
ozone and NO~2~ problems, and limitations of current air quality models,
it is not generally appropriate to use an air quality model to determine
the impact on ozone or NO~2~ concentrations from a single emission
source or a single Federal action.

**C. Review Process**

As public bodies, Federal agencies must make their conformity
determinations through a public process. The General Conformity
Regulations require Federal agencies to provide notice of the draft
determination to the applicable EPA Regional Office, the State and local
air quality agencies, the local MPO and, where applicable, the Federal
land manager(s). In addition, the regulations require Federal agencies
to provide at least a 30-day comment period on the draft determination
and make the final determination public. State agencies and the public
can appeal the final determination in the U.S. Courts system. Failure by
a Federal agency to follow the technical and procedural requirements can
result in an adverse court decision.

**III.** **Summary of The Proposed Revisions to the General Conformity
Regulations**

A. Categories of Proposed Revisions to the General Conformity
Regulations

In accordance with the requirements of section 176(c)(4)(C) of the CAA,
when EPA promulgated General Conformity Regulations in 1993 it also
promulgated regulations at 40 CFR 51 subpart W (§§850-860) which
required States to adopt and submit SIPs for General Conformity. In
August 2005, Congress passed the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) which
eliminated the requirement for States to adopt and submit General
Conformity SIPs. Therefore, EPA is proposing to revise its regulations
to make the adoption and submittal of the General Conformity SIP or TIP
optional for the State or Tribe.

Because 40 CFR 50 subpart W (§§850 -- 860) essentially duplicate the
regulations promulgated at 40 CFR 93 subpart B (§§150-160), EPA is
proposing to delete all of subpart W except for §851. In the proposed
revision to §51.851, EPA would require that if a State or Tribe submits
a General Conformity SIP or TIP that it be consistent with the
requirements of 40 CFR 93 subpart B. In addition, EPA is proposing to
add a provision to 40 CFR 51.851 to allow the States and Tribes more
flexibility to streamline the conformity process conducted under their
SIP or TIP.

In 40 CFR 93 subpart B, EPA is proposing to make only specific revisions
to the regulations which (1) clarify the process, (2) delete outdated or
unnecessary requirements, (3) authorize innovative and flexible
approaches, (4) streamline the process and reduce the paperwork burden,
(5) provide transition tools for implementing new standards, (6)
incorporate revisions requested by other agencies, and (7) provide a
better explanation of regulations and policies.

Several of the proposed revisions encourage both the Federal agencies
and the States or Tribes to take actions in advance of the project
environmental review. Such advance action should speed the review
process for the individual projects and reduce the delays for the
project without impairing the environmental review. The EPA invites
comment on this approach.

**B. What Innovative and Flexible Approaches are Being Proposed?**

1\. The EPA is proposing to add a new section (40 CFR 93.161) to allow
for a facility-wide emission budget approach. Under this approach,
Federal facilities, in anticipation of future action, could negotiate a
facility-wide emission budget with the appropriate State, Tribal or
local air quality agency responsible for the SIP or TIP. The State,
Tribe or local agency would incorporate the facility-wide emission
budget into the applicable SIP or TIP and submit it to EPA for approval.
If the Federal agency demonstrates that the emissions from the proposed
action along with all other emissions at the facility are within the EPA
approved facility-wide emission budget, the action would be presumed to
conform and a conformity determination would not be necessary.

2\. The EPA is proposing a new section (40 CFR 93.165) to explicitly
incorporate the use of early emission reduction credits into the
regulations. The proposal reflects the provisions of the Airport Early
Emission Reduction (AERC) guidance developed in consultation with the
Federal Aviation Administration (FAA) and provides a similar framework
for other Federal agencies.

3\. The EPA is proposing a new section (40 CFR 93.164) to allow, with
certain limitations, the emission of one precursor of a criteria
pollutant to be mitigated or offset by the reduction in the emissions of
another precursor of that pollutant.

4\. The EPA is proposing a new section (40 CFR 93.163) to allow
alternate schedules for mitigating emissions increases. The mitigation
timing approach could allow some flexibility for Federal agencies and
States or Tribes to negotiate a program for some emissions mitigation to
occur in future years. States or Tribes could consider this approach to
accommodate short-term increases in emissions if there is a substantial
long-term reduction in emissions.

**C. What Streamlining and Burden Reduction Measures are Being
Proposed?**

1\. The EPA is proposing to delete the provision in the existing
regulation which required Federal agencies to conduct a conformity
determination for regionally significant actions even though the total
direct and indirect emissions from the action were below the de minimis
emission levels.

2\. The EPA is proposing additional categories of actions that Federal
agencies can include in their "presume to conform" lists and EPA is also
proposing to permit States or Tribes to establish in their General
Conformity SIPs or TIPs "presume to conform" lists for actions within
their State or Tribal area.

3\. The EPA is proposing to exempt the emissions from stationary sources
permitted under the minor source new source review (NSR) programs as
EPA's existing regulation already provides for exemptions for emissions
from major NSR sources.

**D. What Revisions Provide Tools and Guidance for Transitioning to New
or Revised NAAQS?**

1\. The EPA is proposing to revise the language in the regulation
concerning conformity evaluations for existing action during a
transition to new nonattainment designations or to the revised
regulations.

2\. The EPA is proposing requirements for the implementation of the
grace period for newly designated nonattainment areas.

3\. The EPA is proposing alternate methods to demonstrate conformity for
time periods beyond those covered by the SIP or TIP.

4\. The EPA is proposing to allow States or Tribes to include an
enforceable commitment in the SIP or TIP to address future emissions
from a Federal action.

**E. What Revisions are Being Proposed at The Request of Other
Agencies?**

1\. Based on EPA's Interim Air Quality Policy on Wildland and Prescribed
Fires, which was developed in consultation with Federal land managers,
EPA is proposing to include a presumption of conformity for prescribed
fires that are in compliance with approved smoke management plans
(SMPs).

2\. The EPA is proposing to allow Federal agencies to obtain emission
offsets for general conformity purposes from another nearby
nonattainment or maintenance area of equal or higher nonattainment
classification provided the emissions from that area contribute to
violation of the NAAQS in the area where the Federal action is located
or in the case of maintenance areas, the emissions from the nearby area
contributed in the past to the violations in the area where the Federal
action is occurring.

3\. At the request of the Department of Defense (DoD), EPA is proposing
to clarify the language in the regulation that states that nothing in
these regulations requires the release of classified materials. Also,
EPA is proposing to include a similar clarification for CBI.

> 4\. Several Federal agencies and other parties involved in the process
> suggested that EPA should consider exempting construction activity
> emissions from the conformity regulations requirements. Although the
> existing General Conformity Regulations do not specifically mention
> construction emissions, they implicitly require Federal agencies to
> include emissions from construction activities in the conformity
> evaluation.
>
> The EPA understands the concerns of the other Federal agencies and in
> the discussion about the revision to the definition of "caused by,"
> has identified a number of ways that Federal agencies can work with
> the State, Tribe, and local agencies to ease the burden of reviewing
> construction emissions. In addition, EPA is seeking comment on the
> possibility of exempting short term (one to two years) construction
> projects from the General Conformity Regulations.

**F. What are Some of the Clarifications to the Existing Regulations
That are Being Proposed?**

1\. The EPA is proposing to clarify that if the action would result in
emissions in more than one nonattainment or maintenance area, the
emissions in each area would be treated as if they result from a
separate action.

2\. The EPA is proposing to establish procedures to follow in extending
the 6-month conformity exemption for actions taken in response to an
emergency.

3\. The EPA is proposing to revise the procedures that can be used to
demonstrate conformity with the applicable SIP.

4\. The EPA is proposing to revise the review process to require Federal
agencies to notify Tribal governments in the nonattainment or
maintenance area.

5\. The EPA is proposing to clarify the definition of several terms used
in the regulations.

6\. The EPA is proposing to include specific language to identify the
role of Indian Tribes and TIPs.

**IV. Detailed Discussion of the Proposed Revisions**

**A. 40 CFR 51 Subpart W -- Determining Conformity of General Federal
Actions to State or Federal Implementation Plans**

Section 176(c)(4) of the CAA specifies that EPA conformity regulations
include a requirement for a State to adopt and submit to EPA for
approval, a SIP to implement the provisions of section 176(c). Section
6011 of SAFETEA-LU revised the conformity requirements in section 176(c)
of the CAA. Although most of the revisions affected the Transportation
Conformity requirements, section 6011(f) and (g) also revised the
General Conformity requirements. Specifically, section 6011(f) revised
section 176(c)(4)(A) of the CAA by including a requirement that the
regulations must be periodically updated and by deleting the requirement
for the States to adopt and submit a General Conformity SIP. Section
6011(g) requires EPA to revise its conformity regulations by August 2007
to meet the revised requirements. The EPA does not interpret this
provision as prohibiting States or Tribes from voluntarily adopting and
submitting General Conformity implementation plans. Therefore, EPA is
proposing to revise 40 CFR 51.851 to make the adoption and submittal of
the General Conformity SIP optional for the State and eligible
federally-recognized Tribal governments.

In promulgating the General Conformity Regulations in 1993, EPA
published two sets of regulations: 40 CFR 51 subpart W (§§850 through
869) directed States to adopt and submit General Conformity SIPs to EPA
for approval and 40 CFR 93 subpart B (§§150 through 160) provided the
requirements for Federal agencies to follow in conducting their
conformity evaluations before EPA approved the General Conformity SIP
for the area. Section 40 CFR 51.851 directed States to adopt SIPs
meeting the requirements of 40 CFR 51 subpart W. The other sections in
subpart W repeat the requirements found in 40 CFR 93 subpart B. The EPA
is proposing to delete §§40 CFR 51.850, and 51.852 through 860 since
those sections merely repeat the language in §§40 CFR 93.150 and 93.152
through 160 and include a requirement in 40 CFR 51.851(a) that the
General Conformity SIP or TIP must meet the requirements in 40 CFR 93
subpart B.

In addition, EPA is proposing several revisions to §51.851.

1\. The EPA is proposing to divide paragraph (b) of 40 CFR 51.851 into
four paragraphs (b, c, d, and e):

a\. Paragraph (b) stating that until EPA approves the SIP revision,
Federal agencies must meet the requirements of 40 CFR part 93 subpart B.

b\. Paragraph (c) stating that after EPA approves a SIP or TIP meeting
the requirement of 40 CFR 93 subpart B, or portion thereof, the Federal
agencies must meet the requirements of the SIP or TIP and portions of 40
CFR 93 subpart B if not included in the approved SIP or TIP. In
addition, the proposed paragraph (c) states that the previous SIPs
remain in effect until EPA approves a revision.

c\. Paragraph (d) contains the requirement that the SIP or TIP can be no
less stringent than 40 CFR 93 subpart B.

d\. Paragraph (e) contains the requirement that the SIP or TIP can be no
more stringent that the requirement in 40 CFR 93 subpart B unless the
provisions apply to non-Federal as well as Federal entities.

2\. The EPA is proposing to add a new provision in §51.851, which allows
States or Tribes to include in their SIP or TIP a list of actions that
are presumed to conform.

Since §§40 CFR 51.850, 852 through 860 merely repeats the language in
§§40 CFR 93.150, 152 through 160, deleting §§51.850, 852 though 860 and
requiring the SIP or TIP to meet the requirements in part 93 subpart B
will not change the SIP or TIP requirements. However, deleting the
sections will reduce the confusion on the requirements in the
regulations by removing the duplicative language. In addition, EPA can
revise the general conformity requirements by revising only one set of
regulations. Although States or Tribes would have to revise any SIPs or
TIPs which are in place when EPA revises part 93 subpart B regulations,
this would not be an additional burden since they would have to revise
their SIP or TIP if EPA revised the part 51 subpart W regulations.

By dividing paragraph (b) into four smaller paragraphs, EPA is
attempting to simplify the language to make the requirements more
understandable. The EPA did not change the requirements in paragraph (b)
of the existing regulations.

The proposal to allow the States or Tribes the flexibility to adopt as
part of the General Conformity SIP or TIP a list of actions that are
presumed to conform resulted from the desire of some States to reduce
the need to spend resources on reviewing actions which are known to
conform. Although States and Tribes are not obligated to adopt a
"presume to conform" list as part of their General Conformity SIP, if
they do adopt a list they must include a list in their SIP or TIP.

**B. 40 CFR 93.150 -- Prohibition**

Section 93.150 establishes the general prohibition against Federal
agencies taking actions that do not conform with the SIP and
requirements for the Federal agencies to make the conformity
determinations following the procedures of subpart B of part 93. The EPA
is proposing to make two revisions to §93.150. First, EPA is proposing
to delete the language in paragraph (c) of that section and reserves
that paragraph. Second, EPA is proposing to add a new paragraph (e) to
the section to state that if an action occurs in more that one
nonattainment area that each area must be evaluated separately.

In paragraph (c) of the existing regulations, EPA identified categories
of actions that were not subject to the regulations based on
environmental review for the action that was either completed or
underway at the time the regulations were promulgated. The paragraph was
based on the environmental reviews (either the conformity determination
or the National Environmental Policy Act (NEPA) analysis) being
completed in early 1994. Therefore, paragraph (c) is outdated and is not
necessary at this time.

In the new paragraph (e) in §93.150, EPA is specifically proposing that
conformity determinations must be made for each nonattainment or
maintenance area. The emissions from most Federal actions or projects
occur within one nonattainment or maintenance area, however, some
actions or projects could extend across area boundaries, causing
emissions in more than one area. A facility (for example, a national
park, military installation or an airport) could be located in multiple
counties or even in multiple States. Emissions from an action at such
facilities could extend across the nonattainment or maintenance area
boundaries. Some Federal actions, such as rulemaking or rail merger
approvals, could result in emissions in non-contiguous areas, or even
nationwide, affecting multiple nonattainment or maintenance areas. The
existing regulations do not specify how actions or projects affecting
multiple areas should be addressed. Therefore, EPA is proposing that
emissions from actions or projects be treated separately for each
nonattainment and maintenance area for the following reasons:

1\. Federal agencies demonstrate conformity to a SIP, TIP or FIP that
are developed on an area-specific basis and SIPs requirements may vary
from one area to another.

2\. The General Conformity Regulations exemptions are also
area-specific. For example, the de minimis levels are based upon the
type and classification of the nonattainment or maintenance area.

3\. Section 176(c)(5) of the CAA limits the applicability of the
conformity regulations to actions in nonattainment and maintenance
areas. Therefore, actions, which affect broad regions encompassing
several nonattainment, maintenance or attainment areas, must be
evaluated based only on the portions of the emissions in the
nonattainment and maintenance areas.

**C. 40 CFR 93.151 -- State Implementation Plan (SIP) Revision**

The main purpose of §93.151 is to specify that the regulations in part
93 subpart B apply to Federal actions unless the State or Tribe adopts
and EPA approves a General Conformity SIP or TIP for the area. The EPA
is not proposing to change the purpose of the section, but is proposing
to revise the section to clarify its wording. The existing regulations
included statements about the stringency of the SIP compared to the
requirements in subpart B of part 93. The EPA is proposing to delete
those statements because they duplicate statements in 40 CFR 51.851
which specifies the requirements for the SIP and TIP.

**D. 40 CFR 93.152 -- Definitions**

Section 93.152 provides the definition of terms used in the regulations.
The EPA is proposing to revise twelve of the definitions, add eleven new
terms and delete one term as follows:

*Applicable implementation plan or applicable SIP.* The EPA is proposing
two minor revisions to the definition. First, EPA is proposing to
correct the citation for the SIP approval and second, EPA is proposing
to clarify the definition by adding a parenthetical phrase to clarify
that the term includes an approved Tribal implementation plan (TIP). The
requirements for eligible Tribes are found in 40 CFR 49.6.

*Applicability analysis*. The EPA is proposing to add this new term to
describe the process of determining if the Federal agency must conduct a
conformity determination for its action.

*Areawide air quality modeling analysis*. The EPA is proposing to
clarify this definition by making a minor wording change and by
including photochemical grid model in the definition. Also, EPA is
proposing to add an example of the type of models that could be used for
the areawide air quality modeling analysis.

*Caused by.* The EPA is not proposing to revise the definition of
"caused by." The basic test established by the existing definition of
"caused by" is that the emissions would not have occurred in the absence
of the Federal action. Since the general conformity regulations were
promulgated in 1993, EPA has interpreted the regulations to require a
Federal agency to include construction emissions in its conformity
analysis. The EPA believes that emissions from construction activities
initiated by, approved or funded by a Federal agency meets this test and
should be included in the conformity evaluation.

Some Federal agencies have argued that since construction emissions are
generally excluded from consideration under the transportation
conformity and EPA's NSR programs, they should not be included in the
general conformity evaluation. Furthermore, some agencies pointed out
that the emissions from construction activities are not always
explicitly included in some SIPs, so it is difficult to demonstrate
conformity for the emissions and should not factor into the agencies'
demonstrations of conformity to those SIPs. Finally, the agencies argued
that construction emissions are temporary and not long-term contributors
to the NAAQS violations and are, therefore, not truly reflective of a
completed project's contribution to a nonattainment or maintenance
area's emissions budget.

In EPA's Transportation Conformity program (40 CFR 93.100-135),
construction emissions are generally not included in the conformity
evaluation. The Transportation Conformity Regulations (40 CFR 93.122(e))
do require the consideration of PM~10~ from construction-related
fugitive dust only in PM~10~ nonattainment and maintenance areas where
the SIP identifies those emissions as a contributor to the nonattainment
problem. In such a case, the regional PM~10~ emissions analysis must
consider the construction-related fugitive PM~10~ emissions and account
for them in the determination. The Transportation Conformity Regulations
(40 CFR 93.122(f)) do not require the consideration of PM~2.5~ unless
the area's SIP identifies construction-related fugitive PM~2.5~ as a
significant contributor to the area's PM~2.5~ problem. In addition, the
Transportation Conformity Regulations (40 CFR 93.123(c)(5)) do not
require construction-related carbon monoxide (CO) and PM~10~ emissions
to be considered in hot-spot analyses (i.e., estimations of future
localized CO and PM~10~ concentrations) unless those emissions will last
for more than 5 years at an individual site. In the NSR program, only
operational emissions from the source are required to be evaluated for
the permit and construction emissions are not generally included.

Since the General Conformity Regulations cover a wide variety of actions
and projects, the regulations were drafted to be general enough to cover
the differing circumstances. While a majority of Federal actions and
projects may not involve long-term construction activities, some do. For
example, increasing the depth of the navigable channel in New York
Harbor is expected to take 9 to 10 years to complete. In addition, the
States and local agencies can reasonably anticipate and plan for
construction emissions from highway and mass transit activities based
upon regional transportation plans and historic activities. However, the
States, Tribes and local agencies may not be aware of other Federal
activities requiring construction or may not be easily able to estimate
the emissions from the construction activities. Therefore, the SIPs or
TIPs may not adequately account for the emissions from those activities.

In drafting and adopting a SIP and TIP, States, Tribes and local
agencies generally allow for some emissions from construction activities
either in a construction emission category or as part of another
category, such as off-road mobile sources. The emission estimates for
these categories are usually based upon historic activity levels or on
projected future activity levels. Therefore, if at the time the SIP or
TIP is being developed, the State, Tribe or local agency knows about the
future actions or projects at the facility, the construction emissions
can be incorporated into the SIP or TIP.

For the above reasons, EPA believes that emissions from construction
activities can interfere with the SIP or TIP and is proposing to
explicitly include construction emissions in the definition of emissions
"caused by" the Federal action. However, EPA is providing several
options to allow Federal agencies and the States or Tribes to list
construction emissions as "presume to conform" or to exempt the
emissions.

1\. Once included in a SIP-approved facility-wide emission budget, the
construction emissions could be identified as exempt from the general
conformity requirements.

2\. Under the new provisions for developing a list of "presume to
conform" actions, Federal agencies, States, or Tribes can demonstrate
that emissions from certain types of construction activities at a
facility would conform to the SIP.

3\. Some States issue permits for construction emissions. These permits
are essentially minor source NSR permits and emissions covered by them
would be exempt.

Also, EPA is clarifying that conformity is based on annual emissions.
Therefore, Federal agencies should estimate construction emissions on an
annual basis and would only have to demonstrate conformity of
construction emissions during the years when the emissions occurred.

The, EPA recognizes that construction activities are only temporary and
for some projects occur for less than a year or two, therefore, EPA is
also seeking comment on whether it should revise the regulations to
exempt emissions from short-term (for example less than 1 or 2 years)
construction projects from the regulations. The EPA solicits comments on
and justification for the concept of exempting emissions from short-term
construction activities and the definition of a short-term project.

*Classified information*. As discussed in §§93.155 and 156 on reporting
and public participation, EPA, at the request of the DoD, is proposing
to specify how classified information used in the conformity
determination is to be handled. To support those revisions, EPA is also
proposing to add a definition of classified information. The definition
is based upon applicable Executive Orders, regulations and statutes
pertaining to classified materials.

*Confidential business information (CBI).* In §§93.155 and 156, EPA is
also proposing to specify how CBI used in the conformity determination
is to be handled. To support those revisions, EPA is also proposing to
add a definition of CBI. The definition is based upon that used to
define CBI under the Freedom of Information Act.

*Conformity determination.* The EPA is proposing to add a new term to
describe the decision that a Federal agency official makes in
determining that the action will conform with the SIP or TIP.

*Conformity evaluation.* The EPA is proposing to add a new definition to
describe the entire conformity process from the applicability analysis
through the conformity determination, if necessary.

*Continuing program responsibility*. In the existing regulations, EPA
defined the term "emissions that a Federal agency has a continuing
program responsibility for." That term was awkward and confusing. The
EPA is proposing to shorten the term to the "continuing program
responsibility" and to reformat the definition to make it clearer.

*Continuous program to implement.* This term was used in the existing
regulations but was not defined. Therefore, EPA is proposing to add a
definition for this term. The definition would require the Federal
agency to have a program to implement the action. That program can
include a number of steps such as preparation of final design plans and
can also allow for seasonal shutdowns. The definition includes a
requirement that the action does not stop for more than 18 months unless
such a delay is included in the original plans for the action.

*Direct emissions.* The EPA is proposing to revise the definition of
direct emissions to include a requirement that the emissions must be
reasonably foreseeable. This requirement was unintentionally left out of
the definition when it was promulgated in 1993.

*Emergency.* The EPA is proposing to make a minor wording change to the
definition of emergency. Actions in response to an emergency do not
require a conformity determination if they occur with 6 months of the
emergency. The existing regulation provides the following as examples of
events that can be considered as emergencies:

1\. Natural disasters such as hurricanes and earthquakes,

2\. Civil disturbances such as terrorist acts, and

3\) Military mobilizations.

The EPA believes that a military mobilization is a response to an
emergency, not the emergency itself. Therefore, EPA is proposing to
substitute the term "acts of war" for the term military mobilizations.
"Acts of war" include aggressive action by foreign governments or groups
that threaten the security of the United States.

*Emission Inventory.* This term is used but not defined in the existing
regulations. Therefore, EPA is proposing to add this term to the list.

*EPA.* Since some States have Environmental Protection Agencies, EPA is
proposing to add "U.S." in the definition to clarify that the
regulations refer to the U.S. Environmental Protection Agency.

*Local air quality modeling analysis.* The EPA is proposing to revise
the definition to include an example of the type of models that are used
in the local air quality modeling analysis.

*Maintenance area.* The EPA is proposing to make a minor wording change
to clarify the definition by citing the regulations and the section of
the CAA used to identify maintenance areas.

*Mitigation measure.* The existing regulations used the term "mitigation
measure" and even had a section specifying the requirements for a
mitigation measure, however the regulations did not define the term. The
EPA is proposing to define a mitigation measure as a method of reducing
emissions of the pollutant at the location of the action. This
definition would distinguish a mitigation measure from an offset.

*National ambient air quality standards.* In 1997, EPA promulgated new
national ambient air quality standards (NAAQS) for both ozone and for
fine particles. The definition in the existing regulations is broad
enough to cover the new ozone standard. But, the definition did not
cover the fine particle standard known as PM~2.5~. Therefore, EPA is
revising the definition of NAAQS to include PM~2.5~.

*National security.* As part of the provisions for handling classified
materials, EPA is proposing to use the term "national security."
Therefore, EPA is proposing to add a definition for that term.

*Precursors of criteria pollutants.* The existing regulations define
precursors for both ozone and PM~10~. Since the PM~2.5~ standard was
promulgated after the General Conformity Regulations, the existing
regulations do not include the precursors for PM~2.5~. Therefore, EPA is
proposing to add PM~2.5~ precursors, consistent with the proposed
implementation program for the PM~2.5~ standard **(**70 FR 65984).

1\. Sulfur dioxide is a regulated pollutant in all PM~2.5~ nonattainment
and maintenance areas.

2\. Nitrogen oxides are a regulated pollutant in all PM~2.5~
nonattainment and maintenance areas unless both the State/Tribe and EPA
determine that it is not.

3\. Volatile organic compounds (VOC) and ammonia are not regulated
pollutants in any PM~2.5~ nonattainment or maintenance area unless
either the State/Tribe or EPA determines that they are.

*Reasonably foreseeable emissions.* As discussed above, under "direct
emissions," EPA is proposing to qualify the term direct emissions by
stating that those emissions must be reasonably foreseeable. Therefore,
EPA is proposing to revise the term "reasonably foreseeable" to include
"direct emissions."

*Regionally significant action*. As discussed in the revisions to
paragraph 93.153(i) below, EPA is proposing to delete the regionally
significant requirement. Therefore, if EPA's proposed revision is
promulgated, there is no need to retain this definition.

*Take or start the Federal action.* The EPA is proposing to add a new
term to define the date when an action occurs or starts. This date is
important in determining what, if any, conformity requirements apply
when an area is designated or re-designated as nonattainment. The EPA is
proposing to define this term as the date of the decision-maker signs a
document such as a grant, permit, license or approval. Otherwise, EPA is
proposing to define the term as the date the Federal agency physically
starts the action that requires the conformity evaluation.

*Tribal implementation plan (TIP).* The EPA is proposing to add a
definition for Tribal implementation plan to mean plans adopted and
submitted by Federally recognized Indian Tribes. Under the Tribal
Authority Rule (40 CFR part 49)**,** certain Tribal bodies can adopt and
submit implementation plans to attain and maintain the NAAQS. Therefore,
EPA is proposing to add this definition to the regulation.

**E. 40 CFR 93.153 -- Applicability Analysis**

1\. The EPA is proposing to revise the title of the section to include
the word "analysis." The EPA believes that adding the word would make
the title more descriptive of the section's content.

2\. The EPA is proposing to make a minor wording change to paragraph (b)
of §93.153. The EPA is proposing to add the word "criteria" before the
word "pollutant" and "or precursor" after the word to clarify the
paragraph.

3\. The EPA is proposing to revise the table in sub-paragraph (b)(1) to
include all nonattainment areas in the Ozone Transport Regions. In 1993,
when the General Conformity Regulations were promulgated, all
nonattainment areas in the Ozone Transport Region were classified as
marginal or above for the 1-hour ozone NAAQS. However, in designating
areas for the 8-hour ozone NAAQS, some nonattainment areas were
identified as needing to meet only the requirements in subpart 1 of Part
D of Title I of the CAA and were not classified. Therefore, EPA is
proposing to revise the table in 93.153(c)(1) to cover the subpart 1
areas by changing the category from "Marginal and moderate NAA's inside
an ozone transport region" to "other NAA inside an ozone transport
region."

4\. In a separate notice EPA proposed to revise the tables in
sub-paragraphs (b)(1) and (b) (2) by adding the de minimis emission
levels for PM~2.5~. In July 1997, EPA promulgated two new NAAQS (62 FR
38652) one for an 8-hour ozone standard and one for fine particulate
matter known as PM~2.5~. The new 8-hour and old 1-hour ozone NAAQS
address the same pollutant but differ with respect to the averaging
time, therefore, EPA retained the existing de minimis emission levels
for ozone precursors. Although PM~2.5~ is a subset of PM~10~, it differs
from the rest of PM~10~. While, the majority of ambient PM~10~ results
from direct emissions of the pollutant, a significant amount of the
ambient PM~2.5~ can result not only from direct emissions but also from
transformation of precursor and condensing of gaseous pollutants in the
atmosphere. Therefore, EPA is proposing to add new de minimis emission
levels for the direct emissions and precursors of PM~2.5~. The EPA
proposed to establish 100 tons per year as the de minimis emission level
for direct PM~2.5~ and each of its precursors. Since EPA did not propose
any classifications for the PM~2.5~ nonattainment areas, EPA did not
propose PM~2.5~ de minimis emission levels for higher classified
nonattainment areas. If in the future, EPA classifies the PM~2.5~
nonattainment areas, it will establish de minimis emission levels for
the areas based upon the classifications. This proposal, if adopted,
would maintain the consistency between the de minimis emission levels
and the size of a major stationary source under the NSR program (70 FR
65984).

5\. In sub-paragraph (c)(2)(iii), EPA is proposing to clarify that the
exemption for "rulemaking and policy development and issuance" applies
to the process of those actions and not to the substance of the action.
The U.S. Court of Appeals for the Ninth Circuit has stated that "...the
categorical exception encompasses on the 'development and issuance' of
the Federal regulations, not the substantive results of their
promulgation and implementation."(*Public Citizen v. Department of
Transportation,* 316 F.3d 1002 (9^th^ Cir. January 16, 2003); reversed
on other grounds *Department of Transp. V. Public Citizen* 541 U.S. 752,
124 S.Ct. 2204 (June 7, 2004)) Although this decision was appealed to
the U.S. Supreme Court, the court's holding concerning the exemption for
rulemaking was not challenged. The EPA is proposing to add "Procedures
for" before rulemaking to clarify that the exemption applies to the
process of the rulemaking and not to the substance of the regulation.

6\. The EPA is proposing to revise sub-paragraph (d)(1) of §93.153 to
exempt emissions covered by a NSR permit for minor sources. The existing
regulations exempt emissions covered by a NSR permit for major sources
but not for minor sources. Since the purpose of the conformity program
is to ensure that Federal actions do not interfere with the SIP, TIP or
FIP, in promulgating the existing regulations EPA recognized that
emissions covered by a major source NSR or prevention of significant
deterioration (PSD) permit already had been reviewed to ensure that the
emissions did not interfere with the SIP. Therefore, the existing
regulations exempt the emissions from sources permitted under major
source NSR or PSD programs. Since 1993, when the existing regulations
were promulgated, States and local agencies have adopted NSR programs
for minor sources as required by section 110(a)(2)(C) of the CAA. These
NSR programs for minor sources also ensure that emissions from the
sources (individually and collectively) will not interfere with the SIP.
Therefore, EPA is proposing to revise the regulation to exempt emissions
permitted under the EPA-approved NSR programs for minor sources. The EPA
believes this approach will reduce the duplicate review of emissions
under both minor source NSR and conformity programs and treat all NSR
permitted emissions the same way.

Although operating permits issued under title V of the CAA meet some of
the same requirements, EPA is not proposing to exempt the emissions
covered by those permits. The conformity program is similar to the NSR
program in that it evaluates new or modified sources prior to
construction, while the "title V" program is basically for operating
emissions at existing sources. Therefore, the conformity evaluations for
any project that also requires a title V permit should occur before the
title V permit is issued. The EPA does note that if for some reason an
operating permit covers the emissions, a Federal agency may be able to
use the permit to document that the emissions are accounted for in the
SIP.

7\. The EPA is proposing to delete "natural disaster such as hurricanes,
earthquakes, etc.," and "or disaster" from sub-paragraph (d)(2) of
§93.153 because they are unnecessary words. In §93.152, EPA defined
emergency to cover natural disasters (e.g., hurricanes or earthquakes),
civil disturbances (e.g., riots or terrorist attacks) and acts of war.
Therefore, the words describing an "emergency" are not necessary and may
be confusing since they do not include all types of emergencies.

8\. The EPA is proposing to amend sub-paragraph (e)(2) of §93.153 to
provide procedures for reviewing an extension of the exemption from
making a conformity determination for actions related to responding to
an emergency. A Federal agency, in responding to an emergency event such
as a natural disaster, terrorist attack, or act of war, may find it
impractical to conduct a conformity evaluation on the action before it
must take the action. To address this situation, section 40 CFR
93.153(e) of the existing regulations provides Federal agencies with a
6-month exemption from the requirement to undertake a conformity
analysis for actions taken in response to an emergency. The EPA
recognizes that in rare situations it may be impractical, even after 6
months, to conduct a conformity evaluation and is proposing to amend
§93.153(e) to allow the agencies to extend the exemption for another 6
months. This section requires Federal agencies to make a finding that it
is impractical to conduct an evaluation for the action. The existing
regulations are unclear about the number of additional extensions
permitted nor do the regulations provide any procedures for agencies to
follow in deciding on the extension.

The only time that the extension of the 6-month exemption has been used
was in New York following the terrorist attack of September 11, 2001. In
responding to the shutdown of the Port Authority Trans-Hudson line
between New Jersey and New York, certain Federal agencies sponsored a
ferry service across the Hudson River. The service lasted 2 years until
the mass transit service was restored. The Federal agencies continued
with a series of 6-month extensions of the General Conformity exemption.
The Federal agencies did not know what they had to do to invoke the
provision and EPA and the State agencies had to request permission to
review the decision. In addition, the public was not given notice of the
decision to extend the exemption.

The EPA is not proposing to revise requirements for the initial
exemption for actions in response to emergencies. The initial
governmental action in response to emergencies would still be exempt
from the General Conformity requirements for 6 months from the date of
the emergency. However, EPA is proposing requirements for Federal
agencies that want to extend the exemption beyond the initial 6-month
period. First, EPA is proposing to require the Federal agencies to allow
EPA and the State 15 days to review the draft decision to extend the
exemption. Next, EPA is proposing to require Federal agencies to publish
a notice within 30 days of making the decision. The notice must be
published in a daily general circulation newspaper for the affected
area. Finally, EPA is proposing to limit the maximum number of 6-month
extensions to three. The EPA believes an agency should be able to plan
for and conduct a conformity evaluation for actions that extend beyond 2
years.

9\. The EPA is proposing to revise paragraphs (f), (g), and (h) of
§93.153 to permit Federal agencies more flexibility in developing their
list of actions that are "presumed to conform" and provide requirements
for the materials that must be included in the documentation and draft
list. Specifically, EPA is proposing to add a new sub-paragraph (g)(3)
to specify that Federal agencies can list actions that are for
individual areas or SIPs or TIPs, to add a sentence to sub-paragraph
(h)(1) to specify the information that must be included in the
documentation, and to add a sentence to sub-paragraph (h)(2) to allow
the Federal agencies to notify EPA headquarters when the presumed to
conform actions would have multi-regional or national impacts. In
addition, EPA is proposing to revise paragraphs (f) and (h) to include a
reference to the new sub-paragraph (g)(3).

In promulgating the existing regulations, EPA identified a number of
actions that were "presumed to conform." The regulations also allow
Federal agencies to establish their own lists of actions that are
"presumed to conform." Under the existing regulations, Federal agencies
must justify the inclusion of the actions on their "presumed to conform"
list by either demonstrating: (1) that the actions will not cause or
contribute to an air quality problem or otherwise interfere with the
SIP, TIP, or FIP, or (2) that the actions will have emissions below the
de minimis levels. The Federal agencies must provide copies of the
proposed list to EPA, affected State and local air quality agencies and
MPOs. In addition, the agencies must provide at least a 30-day public
comment period and document its response to all comments. The notice of
the proposed and final list must be published in the [Federal
Register]{.underline}.

Although EPA has worked with one Federal agency on its "presumed to
conform" list, no Federal agency has published such a list. The EPA
believes that the use of a "presumed to conform" list could be an
important tool for Federal agencies in reducing the review time for
Federal actions. Also, EPA believes that an additional option could be
added to the regulations to aid Federal agencies in adopting their list.
The EPA is proposing to add sub-paragraph (g)(3) to clarify that the
presumption could be for one facility or for facilities in a specified
area and does not have to be nationally applicable. For example, if the
nonattainment area's SIP includes a sector emission budget for
construction activities, a facility may be able to demonstrate that
construction activities of a certain size or type fits within the SIP's
emission budget. With the concurrence of the State or Tribe, the Federal
agencies could publish a "presumed to conform" list that includes the
construction emissions at the specific facility.

10\. The EPA is proposing to delete the regionally significant test
included in paragraph (i) of §93.153. The existing regulations in
§93.152 define "regionally significant" as "a Federal action for which
the direct and indirect emissions of any pollutant represent 10 percent
or more of a nonattainment or maintenance area's emissions inventory."
Paragraphs 93.153(i) and (j) require conformity determinations for all
regionally significant actions, regardless of any exemptions or
presumptions of conformity based on other provisions in the regulations.

The "regionally significant" action concept was proposed in the 1993
Notice of Proposed Rulemaking (58 FR13836) in order to "capture those
actions that fall below the de minimis emission levels, but have the
potential to impact the air quality of the region." At that time, EPA
requested comments on whether the 10 percent level was appropriate. In
the discussion of comments in the preamble to the Final Rule (58 FR
63214), EPA reported that it received comments both in favor of and in
opposition to the "regionally significant" action concept. While many
respondents supported the concept, there was a diversity of opinions
regarding whether 10 percent was the most appropriate level. However,
EPA reported that no documentation was provided to support a different
level. Some respondents felt that the de minimis cut offs would suffice.
The EPA decided to retain both the concept and 10 percent level in the
final rule.

For a regionally significant action, the Federal agency must conduct a
full conformity determination even if the action would cause total
direct and indirect emissions below the de minimis levels. In over 12
years since promulgation of the existing regulations, no action has been
determined to be regionally significant. The main reason that actions
with emissions below de minimis levels are not regionally significant is
that the emission inventory for almost all nonattainment and maintenance
areas greatly exceeds ten times the de minimis emission levels. Review
of the 1999 emission inventory shows that only six (one ozone, two lead
and three sulfur dioxide) of over 200 nonattainment areas had emission
inventories less than ten times the de minimis levels.(See Evaluation of
Potential Regionally Significant Areas Under the General Conformity
Regulations, Science Applications International Corporation, March 2005,
Docket Number OAR-2004-0491). In other words, except for those six
areas, an action with emissions below de minimis levels would never be
considered regionally significant.

Federal agencies have expressed concern that, in many, cases
demonstrating that a project is not regionally significant is difficult
and time consuming. First, the future total emission inventory for an
area may not be readily available since the SIP may not cover the time
period when the emissions will occur. In addition, most national
emission inventories are published 2 to 3 years after the "inventory"
year, so if a Federal agency is comparing the action's emissions against
the most recent inventory they may be looking at an inventory that is 3
to 5 years old.

The EPA is proposing to eliminate the provision. The EPA believes that
since Federal agencies have expended resources to demonstrate that
actions are not regionally significant and the existing provision has
not been triggered, eliminating the provision would streamline the
conformity regulations and have little or no environmental impact.

11\. The EPA is proposing to replace paragraph (i) of §93.153 with a new
paragraph to identify three additional groups of actions that are
presumed to conform.First, EPA is proposing to allow installations with
a facility-wide emission budget to presume that an action at the
installation will conform provided that the emissions from that action
along with all other emissions from the facility will not exceed the
budget. A more detailed discussion of the emission budget concept is
found in §93.161.

# Second, EPA is proposing to allow Federal agencies to presume that the emissions from prescribed burns will conform provided the burning is conducted under an approved SMP. In May 1998, EPA worked with States and other Federal agencies to develop and publish an interim policy on prescribed fires on Federal lands. (See Interim Air Quality Policy on Wildland and Prescribed Fires, U.S.EPA, May 1998). To comply with the requirements in the interim policy, Federal land managers must develop a certified SMP through regional coordination, and include real-time air quality monitoring. The SMPs establish procedures and requirements for minimizing emissions and managing smoke dispersion. The goals of SMPs are to mitigate the nuisance and public safety hazards (e.g., on roadways and at airports) posed by smoke intrusions into populated areas; to prevent deterioration of air quality and NAAQS violations; and to address visibility impacts in mandatory Class I Federal areas.

# Given the fundamental purpose of the SMP, EPA believes that it is reasonable to assume that any action in compliance with the certified SMP would be in conformance with the applicable SIP. Therefore, EPA is proposing to designate these actions as actions presumed to conform. Federal agencies would not have to conduct a conformity determination for those actions.

Finally, as discussed above, EPA is also proposing to allow a State or
eligible Tribe, on its own, to adopt in their SIP or TIP a list of
actions for facilities in its borders that it "presumes to conform."

12\. The EPA is proposing to revise paragraph (j) of §93.153 by deleting
the reference to regionally significant emissions, by adding a reference
to paragraph (i) and by describing the criteria for requiring a
conformity determination for an action that otherwise would be presumed
to conform. The existing regulations state that an action cannot be
presumed to conform if it was regionally significant or did not in fact
meet the requirements of sub-paragraph (g)(1). As discussed above, EPA
has proposed to delete the regionally significant test, therefore
reference to it is proposed to be deleted from this paragraph. For
clarity, instead of referring to sub-paragraph (g)(1), EPA is proposing
to repeat the requirements in this paragraph.

13\. The EPA is proposing to revise paragraph (k) of §93.153 to
incorporate the provisions of section 176(c)(6) of the CAA. (42 U.S.C.
7506(c)(6)). In November 2000 (Public Law 106-377), Congress added
section 176(c)(6) to the CAA to allow for a conformity transition period
for newly designated nonattainment areas. That section establishes a
1-year grace period following designation before the conformity
requirements must be met in the area. If an agency takes or starts the
Federal action before the end of the grace period, it must comply with
the applicable pre-designation conformity requirements. If an agency
takes or starts the Federal action after the end of the grace period, it
must comply with the post-designation conformity requirements. As
discussed above in describing the new term "take or start the Federal
action," EPA is proposing to define the term to mean that a Federal
agency takes an action when it signs a permit, license, grant or
contract or otherwise starts the Federal action. From the time that an
area is designated as nonattainment, agencies will have a year to take
or start the Federal action. If the agency fails to take or start the
Federal action during the grace period, then it must re-evaluate
conformity for the project based on the requirements for the new
designation and classification.

**F. 40 CFR 93.154 -- Federal Agencies Responsibility for a Conformity
Determination**

1\. The EPA is proposing to revise the title of this section to clarify
the purpose of the section. In the existing regulations this section is
entitled broadly "Conformity Analysis." Since the short section only
discusses the requirement for each Federal agency to make its own
determination, EPA is proposing to revise the title of the section to
more closely describe the section's content.

2\. The EPA is proposing to add language to this section to specifically
state that the conformity determination must meet the requirements of
this subpart.

**G. 40 CFR 93.155 -- Reporting Requirements**

1\. Since EPA is proposing to add additional sections to subpart B, it
is proposing to revise the references to those sections in §93.155.

2\. Consistent with EPA Tribal Authority Rule (63 FR 7253), EPA is
proposing to provide federally-recognized Indian Tribal governments the
same opportunity to comment on draft conformity determinations as given
to States. Therefore, EPA is proposing to require the Federal agencies
to notify all the federally-recognized Indian Tribal governments in the
nonattainment or maintenance area. To assist other Federal agencies in
this notification, EPA is planning to place a list of the
federally-recognized Indian Tribal governments in each nonattainment or
maintenance areas on its General Conformity web site.

3\. The EPA is proposing to add an alternative procedure for notifying
EPA when the action would result in emissions in nonattainment or
maintenance areas in three or more EPA regions. Specifically, EPA is
proposing to allow the agencies to notify the EPA Office of Air Quality
Planning and Standards rather than each individual Regional Office. A
single contact point for EPA should be more efficient for the other
Federal agencies than notifying up to ten Regional Offices.

4\. At the request of the DoD, EPA is proposing to add a new paragraph
to §93.155 to describe how classified materials used to support
conformity determinations should be handled when provided to EPA, States
and Tribal governments. The existing General Conformity Regulation does
not contain an explicit statement about protecting classified
information from public release. The interagency review and public
participation provisions in the existing regulation require Federal
agencies to make available for review the draft conformity determination
with supporting materials which describe the analytical methods and
conclusions relied upon in making the determination. Disclosure of
classified information by a Federal employee is a criminal offense (18
U.S.C. §1905). Therefore, DoD wanted to ensure that the General
Conformity Regulations clearly state that no agency or individual was
required to release classified materials. Therefore, EPA is proposing to
revise the regulation to add explicit language concerning the protection
of classified material. In addition, conformity determinations could, in
part, be based upon confidential information received from business
sources. The EPA is proposing to add specific language to the regulation
to protect CBI in accordance with each Federal agencies' policy and
regulations for the handling of classified materials and CBI. The
regulations would allow State or EPA personnel with the appropriate
security clearances to be able to view the classified or confidential
business materials.

**H. 40 CFR 93.156 -- Public Participation**

1\. The EPA is proposing to correct the section referenced in §93.156.
The existing regulations refers to §93.158. The correct reference should
be §93.154. Section 93.158 prescribes the criteria for conducting a
conformity analysis, while §93.154 requires Federal agencies to make the
determination and references the requirements in the other sections of
subpart B.

2\. The EPA is proposing to provide an alternative public notification
procedure for actions that cause emissions above the de minimis levels
in more than three nonattainment or maintenance areas. The existing
regulations require that the Federal agency publish a notice in a daily
newspaper of general circulation in the nonattainment or maintenance
area. Some Federal actions, such as rulemaking, affect a large number of
nonattainment and maintenance areas. The notification procedure for such
an action could be burdensome and inefficient. Therefore, EPA is
proposing to allow the Federal agencies to publish a notice in the
[Federal Register]{.underline} if the action would cause emissions above
the de minimis levels in more than three nonattainment or maintenance
areas.

3\. The EPA is proposing to also add a new paragraph to §93.156 to
describe how classified materials and CBI used to support conformity
determinations should be handled in providing the information to the
public.

**I. 40 CFR 93.157 -- Re-evaluation of Conformity**

1\. The EPA is proposing to revise the title of this section to more
appropriately describe the section's content. The existing section is
entitled "Frequency of Conformity Determinations." That title implies
that the general conformity requirements for Federal actions must be
reevaluated on a regular basis. However, the section states that
conformity must be reevaluated only if the determination lapses or the
action is modified resulting in an increase in emissions.

2\. If an action's emissions are below the de minimis levels or the
action is not located in a nonattainment or maintenance area, a
conformity determination is not required. Therefore, the Federal agency
would not have a date for the conformity determination. The EPA is
proposing minor wording changes in paragraphs (a) and (b) to clarify
that the date of a completed NEPA analysis, as evidenced by a signed
finding of no significant impact (FONSI) for an environmental assessment
or a record of decision (ROD) for an environmental impact statement, can
be used when a conformity determination is not required.

3\. The EPA is proposing to add two new paragraphs (d and e) to §93.157
to clarify the requirements for needing to conduct a conformity
determination when the action is modified. Paragraph (d) deals with
modifying an action for which the Federal agency made a conformity
determination. In order to make the determination, the Federal agency
had to demonstrate that all the emissions caused by the action conformed
to the SIP. Therefore, the Federal agency does not have to revise its
conformity determination unless the modification would result in an
increase that equals or exceeded the de minimis emission levels for the
area. Paragraph (e) deals with modifying an action that the Federal
agency determined had emissions below the de minimis level. Since the
emissions from the unmodified action were not evaluated, the Federal
agency must conduct a conformity determination if the total emissions
(the emissions from the unmodified action plus the increased emissions
resulting from the modification) equal or exceed the de minimis levels
for the area.

**J. 40 CFR 93.158 -- Criteria for Determining Conformity for General
Federal Actions**

1\. In sub-paragraph 93.158(a)(1), EPA is proposing to add "precursor"
after "any criteria pollutant" to clarify that Federal agencies can
demonstrate conformity for the precursors of the criteria pollutants if
the precursors are specifically identified and accounted for in the
applicable SIP TIP or FIP.

2\. In sub-paragraphs 93.158(a)(2) and (a)(5)(iii), EPA is proposing to
allow Federal agencies to obtain emission offsets for the General
Conformity requirements from a nearby nonattainment or maintenance area
of equal or higher classification, provided that the emissions from the
nearby area contribute to the violations of the NAAQS in the area where
the Federal action is located or, in the case of a maintenance area, the
emissions from the nearby area have contributed in the past to the
violations in the area where the Federal action is located. This
revision to the offset requirements would make the General Conformity
offset requirements consistent with the offset requirements in section
173(c)(1) of the CAA for the Federal NSR program. It would also provide
the Federal agencies more flexibility in obtaining the offsets,
especially in areas impacted by transport from nearby areas. In light of
increased knowledge concerning transport of pollutants into areas, EPA
solicits comments on the appropriateness of limiting the offsets to
nonattainment or maintenance areas of equal or higher classifications.

3\. In sub-paragraphs 93.158(a)(2), (a)(3) and (a)(4), EPA is proposing
to revise the regulations to address the precursors of PM~2.5~. The EPA
does not believe that the current models are adequate to reasonably
predict the impact of individual precursor sources of ozone or PM~2.5~.
Therefore, EPA is proposing to allow Federal agencies to use modeling to
demonstrate conformity only for directly-emitted pollutants. Precursors
of PM~2.5~ will be treated the same as precursors of ozone and direct
emissions of PM~2.5~ will be treated the same as CO and PM~10~. The EPA
solicits comment on this treatment of the precursors of PM~2.5~.

4\. In sub-paragraphs 93.158(a)(3) and (5), EPA is proposing to correct
two typographical errors. In sub-paragraph (3), EPA is proposing to
correct "meet" to "meets" and in sub-paragraph (5), EPA is proposing to
change "paragraph (a)(3(11)" to "paragraph (a)(3)(ii)."

5\. In sub-paragraph 93.158(a)(5)(i), EPA is proposing to delete the
reference to the year 1990 and replace it with a generic reference to a
year in which the area was designated as nonattainment. In addition to
requiring the conformity regulations, the CAA Amendments of 1990
required the designation of areas as nonattainment based on the existing
air quality data. Therefore, when EPA promulgated the existing
regulations in 1993, all the designations were based on a 1990 date.
Since EPA promulgated the conformity regulations, it has promulgated two
new standards and designated a number of areas as nonattainment. By
changing the regulations to reference the date when the area was
designated as nonattainment, EPA is allowing for the new designations
and any future designations.

6\. Also in 93.158(a)(5)(i), EPA is proposing to revise the
sub-paragraph to allow Federal agencies to make conformity determination
based upon a State's or Tribe's determination that the emissions from
the action along with all other emissions in the area would not exceed
the emission budget in the applicable SIP or TIP. Under the existing
regulations, States could only make such a determination if they had an
approved attainment demonstration or maintenance SIP. This revision
would allow the State or Tribe to make its determination based upon a
post-designation applicable SIP or TIP even though the plan does not
include an attainment demonstration. For example, the State or Tribe
could base their determination on an emission budget in an EPA approved
"Reasonable Further Progress" plan. By adopting the budget and
submitting it as part of the SIP or TIP, the State or Tribe is treating
the Federal action like any other source in the area. When the State or
Tribal agency adopts the attainment or maintenance SIP or TIP, it will
have to consider the emissions, and if necessary require additional
controls on the sources. Specifically, EPA solicits comment on whether
demonstrating conformity to a budget in a milestone plan (in the absence
of an attainment demonstration) is adequate to ensure that the emissions
from the action will not interfere with the timely attainment of the
NAAQS.

7\. Although not specified in the regulations, EPA believes that a State
operating permit under title V of the CAA or other air quality operating
permit can serve as documentation of the State's or Tribe's
determination.

> 8\. The EPA is proposing to revise sub-paragraph 93.158(a)(5)(i)(C) to
> allow the State or Tribe to commit to including the emissions from the
> Federal action in future SIPs. Under the existing regulations, Federal
> agencies can demonstrate conformity by having the State commit to
> revising the applicable SIP to include the emissions. If a State or
> Tribe agrees to such a commitment, the State or Tribe must submit a
> SIP revision within 18 months to include the emissions from the action
> and to make other necessary adjustments in the SIP to accommodate
> those emissions. However, the existing SIP or TIP, or a SIP or TIP
> required to be submitted in 18 months, may not cover the same
> timeframe covered by the conformity determination. For example, a SIP
> for a nonattainment area that demonstrates attainment may only cover
> the period until the attainment date while the conformity
> determination may cover emissions for many years beyond that date. The
> State or Tribe may be submitting future SIPs or TIPs to address either
> maintenance of the standard or to address a continuing nonattainment
> problem that would cover the time period of the emissions. The EPA's
> proposed revision to sub-paragraph 93.158(a)(5)(i)(C) would continue
> to require States to revise the SIP within 18 months of the conformity
> determination based upon a State's or Tribe's commitment. However, if
> the existing SIP or TIP, or a SIP or TIP due within 18 months, does
> not cover the time period of the emissions, then the State or Tribe,
> in the SIP revision, can include an enforceable commitment to account
> for the emissions in future SIP revisions. This approach will allow
> States and Tribes flexibility in committing to include the emissions
> from the Federal action in the SIP.

9\. The EPA is proposing to revise sub-paragraph 93.158(a)(5)(iv) to
delete the use of 1990 as the baseline year. As discussed above, when
EPA promulgated the existing General Conformity Regulations in 1993, the
designations and classifications were based upon the 1990 air quality
and emissions. Since 1993, EPA has promulgated new standards and
designated additional areas as nonattainment. Therefore, in many cases
the 1990 date for the baseline emission inventory is inappropriate. The
EPA is proposing to set the baseline year as the calendar year for the
most recent designation or classification.

In some cases, when EPA establishes a new level for a standard, an area
will have an existing SIP or TIP for the pollutant which serves as the
applicable SIP or TIP until a revised SIP or TIP is submitted by the
State or Tribe and approved by EPA. For example, in transition from the
1-hour ozone standard to the 8-hour ozone standard, EPA revoked the
1-hour standard 1 year after the effective date of the 8-hour ozone
designation. Although EPA revoked the 1-hour standard, the existing
ozone SIP remains largely in place until it is replaced by the 8-hour
ozone SIP. The 1-hour ozone SIP is considered the applicable SIP until
it is replaced.

**K. 40 CFR 93.159 -- Procedures for Conformity Determinations for
General Federal Actions**

1\. The EPA is proposing to revise sub-paragraphs 93.159(b)(2) and (c)
to update the reference to the Compilation of Air Pollutant Emission
Factors and for the Guideline on Air Quality Modeling. EPA has released
updated versions of these documents since it promulgated the existing
regulations in 1993.

2\. The EPA is proposing to revise sub-paragraph (d)(1) to clarify that
analysis is first required for the attainment year specified in the SIP.
If the SIP or TIP does not specify an attainment year, then the analysis
is required for the CAA mandated attainment year. Since the CAA requires
the SIP demonstrate attainment as expeditiously as possible but no later
than the CAA mandated attainment date, it is possible that a SIP or TIP
could have an earlier attainment date. That earlier date would be the
appropriate year for the conformity analysis.

3\. The EPA is proposing a minor wording revision to sub-paragraph
(d)(2) to clarify the paragraph. The EPA is proposing to replace the
word "farthest" with "last." The maintenance plans are developed for a
10-year period and revised as necessary for the next 10-year period. The
purpose is for conformity to be evaluated for the last year of the
maintenance plan. The word "last" conveys that meaning.

**L. 401 CFR 93.160 -- Mitigation of Air Quality Impacts**

The EPA is proposing to revise paragraph §93.160(f) to clarify its
meaning. The regulations were meant to require that the mitigation
measures include a written commitment from the person or organization
reducing the emissions and those commitments must be fulfilled.

**M. 40 CFR 93.161 -- Conformity Evaluations for Installations With
Facility-Wide Emission Budget**

The EPA is proposing to add a new section to the regulations to
facilitate the use of a facility-wide emission budget in evaluating
conformity. Federal agencies have stated that they would like to
streamline the conformity process for individual actions or projects,
while States have expressed a desire for the conformity process to help
identify and reduce emissions at Federal installations. Although the
existing regulations do not preclude States and Federal agencies from
using this approach, the regulations do not specifically authorize its
use. For example, States can currently adopt a facility-wide budget for
a Federal installation as part of the SIP. With such a budget, a Federal
agency could easily demonstrate conformity for an action at the
installation provided the emissions caused by the action along with all
of the other emissions at the installation stays within the budget. If
the State or Tribe includes the emission budget in the SIP or TIP, the
emissions would be identified and accounted for in the SIP or TIP.
Alternatively a State or Tribe could provide a letter to the Federal
agency stating that the emissions from the installation that are within
the budget conform to the SIP or TIP. This proposed section for
developing such a budget would in conjunction with a new paragraph
93.153(j) provide a mechanism for presuming that the emissions are in
conformance with the SIP or TIP. This approach allows State or Tribe and
Federal agencies to identify acceptable levels of emissions from the
installation before starting the environmental review for the actions
and for the agencies to expedite the review of the Federal actions at
the facilities.

Under this approach, a State, Tribe or local air quality agency could
work with the Federal agency or third party (e.g., an airport authority)
who volunteers to develop a facility-wide emission budget for an
installation. In principle, at the time the States or Tribes agree to a
budget, they assume responsibility for ensuring that the emissions
within the budget will not interfere with the purpose of the SIP or TIP,
and will be included in future SIPs or TIPs. The budget would be for a
set period of time and near the end of that time the State, Tribe or
local agency and Federal agencies could revise the budget for the next
time period. For example, the State, Tribe or local agency and Federal
agency could develop annual budgets covering a 10-year period. Two years
before the end of the period, the budget would be reviewed and updated
to cover the next 10-year period. (This is the same procedure used for
maintenance plans under section 175A of the CAA. A maintenance plan is
developed for 10-years and 8 years into that plan a new plan is
developed for the next 10 years.) The budgets would be developed based
upon the latest estimates of emissions and growth in the activities at
the facility.

The State or Tribe would include the emission budget in the existing SIP
or TIP and use the budget for any future SIP or TIP development. In
including the emissions in the existing SIP or TIP, States or Tribes can
either identify categories in the existing SIP or TIP that cover the
emissions or can submit a revision to the SIP or TIP to include the
emissions. If unusual or unforeseen circumstances warrant a revision,
the State, Tribe or local agency and Federal agency could agree to
revise the budget. For example, if the State, Tribe or local agency
requires additional reductions to meet their attainment objective or if
the facility has unexpected growth, a revised budget could be adopted
into the SIP or TIP.

The EPA believes that the proposed program would encourage the State,
Tribe or local air quality agency and the Federal facilities to develop
an upfront emission budget for the facility, and the action or project
environmental review would be streamlined as long as the facility
remains within an established budget.

The program would be voluntary on the part of the facility, State, Tribe
and local air quality agency. No party would be required to participate.
If the parties agreed to participate, an emission budget would be
established based upon specific guidance and documented growth
projections for the facility.

The emission budget approach would not be applicable to all situations.
For example, not all Federal actions or projects occur on installations
suitable for emission budgets (e.g., one-time actions on non-Federal
lands such as permit approval or a short-term construction project may
not have facilities to have a budget). In addition, some installations
with budgets may on occasion take actions or have projects that would
result in the budget being exceeded. In these cases, the Federal
agencies would need to demonstrate conformity under the other
requirements of the regulations.

In developing the facility emission budget, the Federal agency generally
would share its plans for construction at the facility. As a result the
State, Tribe or local agency could consider the emissions from the
construction in its SIP or TIP and they would have three options for
handling the construction emissions under the general conformity
program. First, they could include the emissions in a facility-wide
emission budget. Second, they could determine that the construction
emissions at the facility would be covered elsewhere in the SIP or TIP
(e.g., in the non-road mobile source budget or the area source budget),
and thus the emissions could be presumed to conform. Finally, they could
cover the construction emissions separately from the emission budget and
conduct a separate conformity evaluation for those emissions.

Since the emission budget would be used to develop the SIP or TIP for
the area, any Federal action at the installation that remains within its
budget would not interfere with the SIP or TIP. By developing a budget
for the installation, the Federal agency would generate a more accurate
emission inventory for the activities at the installations and provide
the State, Tribe or local agency with realistic growth projections for
the installations. The emission budgets would encourage operators to
identify ways of reducing emissions and adopt control measures when
possible in order to allow for unforeseen growth.

> **N. 40 CFR 93.162 -- Emissions Beyond the Time Period Covered by The
> Applicable SIP or TIP**

The EPA is proposing to add a new section to address how Federal
agencies can demonstrate conformity for an action that causes emissions
beyond the time period covered by the SIP or TIP. First, EPA is
proposing to allow Federal agencies to demonstrate conformity using the
last emission budget in the SIP or TIP. If it is not practicable to
demonstrate conformity using that technique, then the Federal agency can
request the State or Tribe to adopt a SIP or TIP budget for the future
years. If a State or Tribe adopts such a budget, it would be required to
submit a SIP revision within 18 months to include the emissions in the
SIP or TIP or committing to account for the emissions in future SIPs or
TIPs.

**O. 40 CFR 93.163 -- Timing of Offsets and Mitigation Measures**

The EPA is proposing to add a new section to address the timing of
offset and mitigation measures. First, the section generally requires
that the emission reductions for the offset and mitigation measures must
occur in the same calendar year as the emission increases caused by the
Federal action and that the reductions are equal to the emissions
increases. As an alternative, the proposed section would allow, under
special conditions, the State or Tribe to approve other schedules for
offsets or mitigation measures.

Mitigation measures and offsets are used to reduce the impact of
emission increases from a project or action. To minimize the impact of
the project's emissions, the emissions reductions from offsets or
mitigation measures should occur at the same time as the emission
increases from the project. In general, EPA has interpreted the existing
regulations to mean that the reductions must occur in the same calendar
year as the emission increases caused by the action because the total
direct and indirect emissions from an action are collated on an annual
basis. Therefore, EPA is proposing to include this interpretation in the
regulations.

For certain projects, however, it may be beneficial for the State or
Tribe to approve mitigation measures or offsets that do not provide for
emissions reductions equal to the emission increases for the specific
years, but provide net long-term air quality benefits. For example, a
project with relatively high short-term emissions, such as a
construction project, could be mitigated by converting older equipment
to electric or alternate fuels. The State or Tribe may find it
advantageous to allow a short period when the emissions are not fully
mitigated in return for permanent or the long-term emissions reductions.
Therefore, EPA is proposing to allow, under certain conditions, the
State and Federal agency to negotiate alternate schedules for the
implementation of the offsets and mitigation measures. However, EPA
believes that such emissions reductions should have substantial
long-term attainment and maintenance benefits. The EPA is proposing to
require that the offset or mitigation ratios be no less than the NSR
offset ratios for the area. These ratios are simple, available, and are
based on the severity of the nonattainment problem for the area. In
addition, EPA seeks comment on other mechanisms that could be used to
require greater than one-for-one reductions for the offsets and
mitigation measures that occur in later years. Also, EPA believes that
the mitigation or offset compensation period should not last
indefinitely and is proposing that the period should not exceed two
times the period of the under-mitigated emissions. For example, a
Federal agency may be approving a construction project lasting 3 years
in a serious nonattainment area and that project will cause 150 tons per
year of increased emissions; the State or Tribe can approve mitigation
measures or offsets which reduce emissions by less than 150 tons per
year provided the total reduction over a 6-year period is equal to or
more than 540 tons (150 tons per year times 3 years equals 450 tons
times the offset/mitigation ratio of 1.2 to 1 for serious nonattainment
areas equals 540 tons). Besides requesting comment on the concept of
allowing the States or Tribes to approve a longer time period for
offsetting or mitigating the emission increases, EPA is also seeking
comment on the mechanism and procedures used to permit/implement the
concept. In addition, EPA is seeking comment on the appropriate time
period for the Federal agencies to offset or mitigate the increased
emissions. The EPA is requesting comments on using longer compensation
periods in excess of two times the project period.

Agreeing to allow the use of offset or mitigation measures in later
years does not exempt the State or Tribe from meeting any of its SIP or
TIP obligations, such as reasonable further progress milestones or
attainment deadlines. Emissions reductions which accrue beyond the
compensation period should be properly reflected in the SIP or TIP, e.g.
through a SIP revision.

**P. 40 CFR 93.164 -- Inter-Precursor Offsets and Mitigation Measures**

EPA is proposing to add a new section to the regulations to allow the
use of inter-precursor offset and mitigation measures where they are
allowed by the SIP. For example, some States and local air districts
have SIP-approved NSR regulations that allow new or modified stationary
sources to offset the increase in emissions of one criteria pollutant
precursor by reducing the emissions of another precursor of the same
criteria pollutant, provided there is an environmental benefit to such
an exchange. The existing General Conformity regulations does not
specifically allow or prohibit inter-precursor offsets and mitigation
measures. Therefore, EPA is proposing to allow such offsets or
mitigation measures if they are allowed by a State or Tribe NSR or
trading program approved in the SIP; provided they:

1\. are technically justified; and

2\. have a demonstrated environmental benefit.

The ratio for the offsets must be consistent with SIP or TIP
requirements and EPA guidance.

The EPA recognizes that the evaluation of the inter-precursor offsets
may in some cases be difficult and seeks comments on how such offsets or
mitigation measures should be evaluated. The EPA expects to use these
comments in developing future guidance documents.

**Q. 40 CFR 93.165 -- Early Emission Reduction Credit Program**

The EPA is proposing to add a new section to the regulations to
establish an early emission reduction credit program for facilities
subject to the General Conformity Regulations. The existing regulations
require that the offsets and mitigation measures be in place before the
emissions increases caused by the Federal action occur. However,
emission reduction programs undertaken before the conformity
determination is made could be considered as part of the baseline
emissions and not available as offsets or mitigation measures. To
expedite the project level conformity process, Federal agencies and
project sponsors could benefit from the ability to reduce emissions in
advance of the time that the reductions are needed for a conformity
evaluation. Although the existing regulations do not address the
concept, The Port of Seattle and the Puget Sound Clean Air Agency
developed a program to implement early emissions reductions. In
addition, Congress authorized such a program for the General Conformity
program in the FAA reauthorization act signed in December 2003 (Vision
100 --- A Century of Aviation Reauthorization Act, Public Law 108-176).
That Act authorized FAA to approve funding of programs to reduce
emissions at the airports provided the State would issue emission
reduction credits that can be used for General Conformity determinations
and NSR offsets. On September 30, 2004, EPA issued guidance on the
Airport Emission Reduction Credit (AERC) program to implement the
requirements of the December 2003 Act (Guidance on Airport Emission
Reduction Credits for Early Measures Through Voluntary Airport Low
Emission Programs, U.S. EPA, Office of Air Quality Planning and
Standards, September 2004). Other Federal agencies may like to have the
opportunity to reduce emissions prior to when the reductions are needed
to offset emission increases covered by the General Conformity program.

To clarify EPA's intent that this program be allowed for other Federal
actions, EPA is proposing to add a new section, §93.165, to the General
Conformity Regulations to define the requirements of this program. Under
the program, Federal agencies or interested third parties (such as
airport authorities) could identify emission control measures and
present the proposed reduction to the State, Tribe or local air quality
agency. If the measure met the criteria for an offset (quantifiable;
consistent with the applicable SIP attainment and reasonable further
progress demonstrations; surplus to the reductions required by and
credited to other applicable SIP provisions; enforceable at both the
State and Federal levels; and permanent within the timeframe specified
by the program) as well as all State, Tribe or local requirements, the
State, Tribe or local agency can, but is not obligated to, approve the
measure as eligible to produce emission reduction credits. If credits
are issued, then a Federal agency can use the credits to reduce the
total of direct and indirect emissions from a proposed action. At the
time the credits are used the State, Tribe or local agency must certify
that the reductions still meet the criteria listed above. The credits
must be used in the same calendar year in which they are generated.

In proposed paragraph (a), EPA would establish the ability for the State
or Tribe and Federal agency to create and use the emission reduction
credits.

In proposed paragraph (b), EPA identifies the criteria for creating the
credits. The criteria are the same requirements that apply to any offset
or mitigation measure used to compensate for the increased emissions
caused by the action. First, the Federal agency must be able to quantify
the reductions using reliable techniques. In some cases, however, it may
not be possible to quantify the reductions until after the measure has
been implemented. For example, a facility may adopt a strategy calling
for the purchase and use of alternate-fueled vehicles. Although the
agency could calculate the difference in the emissions between the
alternate-fueled vehicle and the standard vehicle, it may not know the
amount the vehicles will be used. In this case, the State or Tribe and
Federal agency could agree on an emission factor and determine the use
at a later time. The reductions must be quantified before the credit is
used to support a conformity determination.

> In proposed paragraph (c), EPA would establish the requirements for
> the use of the credits. If the strategy used to produce the credit is
> reasonably connected to the Federal action, the reductions can be
> added into the net total direct and indirect emissions caused by the
> action. In other words, the credits can be used in determining if the
> action would cause emissions above the de minimis levels. If the
> strategy is not reasonably connected to the action, then the credits
> can be used as offset or mitigation measures for the emissions caused
> by the action. By reasonably connected, EPA means that it would be
> likely that had the emission reduction strategy not been implemented
> early it would have been implemented at the time of the Federal
> action. For example, an airport could install equipment to supply
> power and conditioned air to airplanes parked at a gate to reduce the
> use of diesel generators and auxiliary power units. Those reductions
> could probably be considered reasonably connected to an airport
> expansion project to improve the terminal. However, they probably
> would not be considered reasonably connected to construction of an
> aircraft repair facility on the airport property. Since the general
> conformity program is based on annual emissions, EPA is proposing to
> require that the credits be used in the same year as they are
> generated. Such a restriction would ensure consistency with the other
> parts of the general conformity program. This does not mean that an
> emission reduction strategy can not produce an annual stream of
> credits, but does mean that the reduction credits can not be carried
> over to another year.

**V. Statutory and Executive Order Reviews**

**A. Executive Order 12866: Regulatory Planning and Review**

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency
must determine whether the regulatory action is Asignificant@ and,
therefore, subject to OMB review and the requirements of the Executive
Order. The Order defines Asignificant regulatory action@ as one that is
likely to result in a regulation that may:

1\. Have an annual effect on the economy of \$100 million or more or
adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or Tribal governments or communities;

2\. Create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency;

3\. Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or

4\. Raise novel legal or policy issues arising out of legal mandates,
the President=s priorities, or the principles set forth in the Executive
Order.

Pursuant to the terms of Executive Order 12866, it has been determined
that these revisions to the regulations are considered a Asignificant
regulatory action@ because they may interfere with actions taken or
planned by other Federal agencies. As such, this action was submitted to
the Office of Management and Budget (OMB) for review. Changes made in
response to OMB suggestions or recommendations can be found in the
public docket.

**B. Paperwork Reduction Act**

This action does not directly impose an information collection burden
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq., on non-Federal entities. The General Conformity Regulations
require Federal agencies to determine that their actions conform to the
SIPs or TIPs. However, depending upon how Federal agencies implement the
regulations, non-Federal entities seeking funding or approval from those
Federal agencies may be required to submit information to that agency.

Although the present proposed revisions to the regulations do not
establish any specific new information collection burden, it would
establish alternative voluntary approaches that may result in a
different burden. For example, the proposed facility-wide emission
budget would allow Federal agencies or operators of facilities subject
to the General Conformity Requirements such as commercial service
airports to work with the State, Tribe or local air quality agency to
develop an emission budget for the facility. The State, Tribe or local
agencies and Federal agencies or third party facility operators would
incur the burden of developing the budget. However, those entities would
be relieved of the burden of conducting and reviewing some, if not all,
the general conformity determinations for the facility.

Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency. This includes the time needed to
review instructions; develop, acquire, install, and utilize technology
and systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information. An agency may not conduct or
sponsor, and a person is not required to respond to a collection of
information unless it displays a currently valid OMB control number. 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 generally requires an Agency to prepare a
regulatory flexibility analysis of any regulation subject to notice and
comment rulemaking requirements under the Administrative Procedures Act
or any other statute unless the Agency certifies the rule will not have
a significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.

For purposes of assessing the impacts of today=s proposed regulations
revisions on small entities, small entity is defined as:

1\. A small business that is a small industrial entity as defined in the
U.S. Small Business Administration (SBA) size standards. (See 13 CFR
121.);

2\. A 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 which is
independently owned and operated and is not dominant in its field.

Today=s proposed revisions to the regulations, if promulgated will not
impose any requirements on small entities and therefore, will not have a
significant economic impact on a substantial number of small entities.
The General Conformity Regulations require Federal agencies to conform
to the appropriate State, Tribal of Federal implementation plan for
attaining clean air. We continue to be interested in the potential
impacts of the regulations on small entities and welcome comments on
issues related to related to such impacts.

**D. Unfunded Mandates Reform Act**

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final regulationss with AFederal mandates@
that may result in expenditures to State, local, and Tribal governments,
in the aggregate, or to the private sector, of \$100 million or more in
any 1 year. Before promulgating an EPA regulations for which a written
statement is needed, section 205 of the UMRA generally requires EPA to
identify and consider a reasonable number of regulatory alternatives and
to adopt the least costly, most cost-effective or least burdensome
alternative that achieves the objectives of the regulation. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an alternative
other than the least costly, most cost-effective or least burdensome
alternative if the Administrator publishes with the final regulations an
explanation why that alternative was not adopted. Before EPA establishes
any regulatory requirements that may significantly or uniquely affect
small governments, including Tribal governments, it must have developed
under section 203 of the UMRA a small government agency plan. The plan
must provide for notifying potentially affected small governments,
enabling officials of affected small governments to have meaningful and
timely input in the development of EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.

The EPA has determined that these revisions to the regulations do 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 1 year. Thus, today=s proposed
regulations revisions are not subject to the requirements of section 202
and 205 of the UMRA.

The EPA has determined that these proposed regulation revisions contain
no regulatory requirements that may significantly or uniquely affect
small governments, including Tribal governments. Nonetheless, EPA
carried out consultations with governmental entities affected by this
regulation.

**E. Executive Order 13132: Federalism**

Executive Order 13132, entitled AFederalism@ (64 FR 43255, August 10,
1999), requires EPA to develop an accountable process to ensure
Ameaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.@
APolicies that have Federalism implications@ is defined in the Executive
Order to include regulations that have Asubstantial 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.@

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. Previously, EPA determined the costs
to States to implement the General Conformity Regulations to be less
than \$100,000 per year. Thus, Executive Order 13132 does not apply to
these proposed regulation revisions.

Although section 6 of Executive Order 13132 does not apply to these
proposed regulation revisions, EPA held meetings with the Federal
agencies and organizations that prepare technical support for Federal
agencies determinations at which it described the approaches it was
considering and provided an opportunity for States, Federal agencies and
other stakeholders to comment on the options being considered.

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

Executive Order 13175, entitled AConsultation and Coordination with
Indian Tribal Governments@ (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to ensure Ameaningful and timely input
by Tribal officials in the development of regulatory policies that have
Tribal implications.@ This determination is stated below.

These proposed regulation revisions do not have Tribal implications as
defined by Executive Order 13175. They do not have a substantial direct
effect on one or more Indian Tribes, since no Tribe has to demonstrate
conformity for their actions. Furthermore, except for allowing the
Tribes to comment on draft conformity determinations, these proposed
regulation revisions do not affect the relationship or distribution of
power and responsibilities between the Federal government and Indian
Tribes. The CAA and the Tribal Air Rule establish the relationship of
the Federal government and Tribes in developing plans to attain the
NAAQS, and these revisions to the regulations do nothing to modify that
relationship. Because these proposed regulations revisions do not have
Tribal implications, Executive Order 13175 does not apply.

Although Executive Order 13175 does not apply to these regulations, EPA
did consult with some Tribal officials in developing these proposed
regulations revisions and encouraged Tribal input at an early stage. The
EPA specifically solicits additional comment on the revisions to the
regulations from Tribal officials.

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

Executive Order 13045: AProtection of Children from Environmental Health
and Safety Risks@ (62 FR 19885, April 23, 1997) applies to any rule that
(1) is determined to be Aeconomically significant@ as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.

These proposed revisions to the regulations are not subject to Executive
Order 13045 because they are not economically significant as defined in
Executive Order 12866 and because EPA does not have reason to believe
the environmental health or safety risk addressed by the General
Conformity Regulations present a disproportionate risk to children. The
General Conformity Regulations ensure that Federal agencies comply with
the SIP, TIP or FIP for attaining and maintaining the NAAQS. The NAAQSs
are promulgated to protect the health and welfare of sensitive
population, including children.

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

These revisions to the regulations are not considered a Asignificant
energy action@ as defined in Executive Order 13211, AActions That
Significantly Affect Energy Supply, Distribution, or Use,@ (66 FR 28355,
May 22, 2001) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.

**I. National Technology Transfer Advancement Act**

Section 12(d) of the National Technology Transfer Advancement Act of
1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards (VCS) in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. The VCS are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by VCS bodies. The NTTAA
directs EPA to provide Congress, through OMB, explanations when the
Agency decides not to use available and applicable VCS.

This revisions to the regulations do not involve technical standards.
Therefore, EPA is not considering the use of any VCS.

However, EPA will encourage the Federal agencies to consider the use of
such standards, where appropriate, in the implementation of the General
Conformity Regulations.

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

Executive Order 12898 requires that each Federal agency make achieving
environmental justice part of its mission by identifying and addressing,
as appropriate, disproportionate high and adverse human health or
environmental effects of its programs, policies, and activities on
minorities and low-income populations.

The EPA believes that these proposed revisions to the regulations should
not raise any environmental justice issues. The proposed revisions to
the regulations would, if promulgated revise procedures for other
Federal agencies to follow. As such, they do not affect the health or
safety of minority or low income populations. The EPA encourages other
agencies to carefully consider and address environmental justice in
their implementation of their evaluations and conformity determinations.

**LIST OF SUBJECTS in 40 CFR Parts 51 and 93**

Environmental protection, Administrative practice and procedures, Air
pollution control, Carbon monoxide,

**Proposed General Conformity Revisions**

**Page 94 of 128 with reg text**

Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur dioxide,
Volatile organic compounds.

**AUTHORITY**

42 U.S.C. 7401-7671q

Dated:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Stephen L. Johnson

Administrator

For the reasons stated in the preamble, Title 40, Chapter I of the Code
of Federal Regulations is amended as follows:

**Part 51- Requirements for Preparation, Adoption, and Submittal of
Implementation Plans**

1\. The authority citation for part 51 continues to read as follows:

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

Subpart W -\[Amended\]

2\. Remove and reserve §51.850 and §§51.852 through 51.860

3\. Section 51.851 is amended by revising paragraph (a); by revising and
dividing paragraph (b) into paragraphs (b), (c), (d), and (e); and by
adding paragraph (f); to read as follows:

[§51.851 State implementation plan (SIP) or Tribal implementation plan
(TIP) revision.]{.underline}

\(a\) A State or eligible Tribe (a Federally recognized Tribal
government determined to be eligible to submit a TIP under 40 CFR 49.6)
may submit to the Environmental Protection Agency (EPA) a revision to
its applicable implementation plan which contains criteria and
procedures for assessing the conformity of Federal actions to the
applicable implementation plan, consistent with this section and part
93, subpart B.

\(b\) Until EPA approves the conformity implementation plan revision
permitted by this section, Federal agencies shall use the provisions of
40 CFR part 93, subpart B in addition, to any existing applicable State
or Tribal requirements, to demonstrate conformity with the applicable
SIP or TIP as required by section 176(c) of the CAA (42 USC 7506).

\(c\) Following EPA approval of the State or Tribal conformity
provisions (or a portion thereof) in a revision to the applicable SIP,
conformity determinations shall be governed by the approved (or approved
portion of) State criteria and procedures. The Federal conformity
regulations contained in 40 CFR 93, subpart B would apply only for the
portion, if any, of the State's or Tribe's conformity provisions that is
not approved by EPA.

\(d\) The State or Tribal conformity plan criteria and procedures cannot
be any less stringent than the requirements in 40 CFR part 93, subpart
B.

\(e\) A State's or Tribe's conformity provisions may contain criteria
and procedures more stringent than the requirements described in this
subpart and part 93, subpart B, only if the State's or Tribe's
conformity provisions apply equally to non-Federal as well as Federal
entities.

\(f\) In its SIP or TIP, the State or Tribe may identify a list of
Federal actions or type of emissions that it presumes will conform. The
State or Tribe may place whatever limitations on that list that it deems
necessary. The State or Tribe must demonstrate that the action will not
interfere with attainment or maintenance of the standard, meeting the
reasonable further progress milestones or other requirements of the
Clean Air Act. For example, the State may identify the emissions from a
certain type and size of construction activities that it presumes will
conform. Federal agencies can use the list to determine their "presumed
to conform" emissions.

\(g\) Any previously applicable SIP or TIP requirements relating to
conformity remain enforceable until EPA approves the revision to the SIP
or TIP to specifically remove them.

For the reasons stated in the preamble, Title 40, Chapter I of the Code
of Federal Regulations is amended as follows:

**Part 93- Determining Conformity of Federal Actions to State or Federal
Implementation Plans**

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

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

Subpart B -- \[Amended\]

2\. Section 93.150 is amended by removing and reserving paragraph (c)
and by adding paragraph (e) to read as follows:

[§93.150 Prohibition]{.underline}

\* \* \* \* \*

> \(c\) Remove and Reserved.

\* \* \* \* \*

\(e\) If an action would result in emissions in more than one
nonattainment or maintenance area, the conformity must be evaluated for
each area separately.

3\. Section 93.151 is amended by revising the section to read as
follows:

[§93.151 State implementation plan (SIP) revision.]{.underline}

The provisions and requirements of this subpart to demonstrate
conformity required under section 176(c) of the Clean Air Act (CAA)
apply to all Federal actions in designated nonattainment and maintenance
areas where EPA has not approved the SIP required under 40 CFR 51.851.
When EPA approves a State's conformity provisions (or a portion thereof)
in a revision to an applicable implementation plan, a conformity
evaluation is governed by the approved (or approved portion of) the
State criteria and procedures. The Federal conformity regulations
contained in this subpart apply only for the portions, if any, of the
State's conformity provisions that are not approved by EPA. In addition,
any previously applicable implementation plan conformity requirements
remain enforceable until the EPA approves the revision to the applicable
SIP to specifically include the revised requirements.

4\. Section 93.152 is amended as follows:

a\. After the definition for "Affected Federal land manager," add the
definition for "Applicability analysis."

b\. Revise the definition of "Applicable implementation plan or
applicable SIP."

c\. Revise the definition for "Areawide air quality modeling analysis."

d\. Following the definition of "Caused by," add the following
definitions: "Classified information," "Confidential business
information," "Conformity determination," "Conformity evaluation,"
"Continuing program responsibility," and "Continuous program to
implement."

e\. Revise the definition of "Direct emissions."

f\. Revise the definition of "Emergency."

g\. After the definition for "Emission budget," add a new definition for
"Emission inventory."

h\. Delete the definition for "Emissions that a Federal agency has a
continuing program responsibility for."

i\. Revise the definition of "EPA."

j Revise the definition of "Local air quality modeling analysis."

k\. After the definition of "Milestone," add a definition for
"Mitigations measure."

l\. Revise the definition of "Maintenance area."

m\. Revise the definition for "National ambient air quality standards"
to include PM~2.5~.

n\. After the definition of "National ambient air quality standards,"
add the definition for "National security."

o\. Revise definitions for "Precursors of a criteria pollutant are:" by
adding sub-paragraphs (3)(i), (3)(ii) and (3)(iii).

p\. Revise the definition for "Reasonably foreseeable emissions."

q\. Delete the definition for "Regionally significant action."

r\. After the definition of "regional water and/or wastewater project,"
add a definition for "take or start the Federal action:"

> The additions and revisions read as follows:

[§93.152 Definitions]{.underline}

\* \* \* \* \*

*Applicability analysis* is the process of determining if your Federal
action must be supported by a conformity determination.

*Applicable implementation plan or applicable SIP* means the portion (or
portions) of the SIP or most recent revision thereof, which has been
approved under section 110(k) of the Act, a Federal implementation plan
promulgated under section 110(c) of the Act, or a plan promulgated or
approved pursuant to section 301 (d) of the Act (Tribal implementation
plan or TIP) and which implements the relevant requirements of the Act.

*Areawide air quality modeling analysis* means an assessment on a scale
that includes the entire nonattainment or maintenance area using an air
quality dispersion model or photochemical grid model to determine the
effects of emissions on air quality, for example, an assessment using
EPA's community multilayer air quality (CMAQ) model.

\* \* \* \* \*

*Classified Information* as defined by Classified Information Procedures
Act 18 U.S.C.A. App. 3, §1(a) means information or materials subject to
the including of any information or material that has been determined by
the United States Government pursuant to an Executive Order, statute, or
regulation, to require protection against unauthorized disclosure for
reasons of national security and any restricted data, as defined in
paragraph r. of section 11 of the Atomic Energy Act of 1954 (42 U.S.C.
2014(y)(b)).

*Confidential business information* (CBI) is information that has been
determined by a Federal agency, in accordance with its applicable
regulations, to be a trade secret or commercial or financial information
obtained from a person and privileged or confidential; it is exempt from
required disclosure under the Freedom of Information Act (5
U.S.C.552(b)(4)).

*Conformity determination* is the evaluation made after an applicability
analysis is completed that a Federal action conforms to the applicable
implementation plan and meets the requirements of this subpart.

*Conformity evaluation* is the entire process from the applicability
analysis through the conformity determination demonstrating that the
Federal action conforms to the requirements of this subpart.

*Continuing program responsibility* means a Federal agency has
responsibility for emissions caused by:

1\. Actions it takes itself, or

2\. Actions of non-Federal entities that the Federal agency, in
exercising its normal programs and authorities, approves, funds,
licenses or permits; provided the agency can impose conditions on any
portion of the action that could affect the emissions.

*Continuous program to implement* means that the Federal agency has
started the action identified in the plan and does not stop the actions
for more than an 18-month period, unless it can demonstrate that such a
stoppage was included in the original plan.

\* \* \* \* \*

*Direct emissions* means those emissions of a criteria pollutant or its
precursors that are caused or initiated by the Federal action and occur
at the same time and place as the action and are reasonably foreseeable.

*Emergency* means a situation where extremely quick action on the part
of the Federal agencies involved is needed and where the timing of such
Federal activities makes it impractical to meet the requirements of this
subpart, because of events such as natural disasters (e.g., hurricanes
or earthquakes), civil disturbances (e.g., riots and terrorist acts), or
acts of war.

*Emission Inventory* is a listing of information on the location, type
of source, type and quantity of pollutant emitted as well as other
parameters of the emissions.

\* \* \* \* \*

*EPA* means the U.S. Environmental Protection Agency.

\*.\* \* \* \*

*Local air quality modeling analysis* means an assessment of localized
impacts on a scale smaller than the entire nonattainment or maintenance
area, including, for example, congested roadway intersections and
highways or transit terminals, which uses an air quality dispersion
model, e.g., Industrial Source Complex Model or Emission and Dispersion
Model System, to determine the effects of emissions on air quality.

*Maintenance* area means an area that was designated as nonattainment
and has been re-designated in 40 CFR part 81 to attainment, meeting the
provisions of section 107(d)(3)(E) of the Act and has a maintenance plan
approved under section 175A of the Act.

\* \* \* \* \*

*Mitigation measure* means any method of reducing emissions of the
pollutant or its precursor taken at the location of the Federal action
and used to reduce the impact of the emissions of that pollutant caused
by the action.

*National ambient air quality standards (NAAQS)* are those standards
established pursuant to section 109 of the Act and include standards for
carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO~2~), ozone,
particulate matter (PM-10 and PM~2.5~), and sulfur dioxide (SO~2~).

*National Security* means activities for the national defense, homeland
security and foreign relations of the United States.

\* \* \* \* \*

*Precursors of a criteria pollutant* are:

(1) \* \* \*

(2) \* \* \*

\(3\) For PM~2.5~:

\(i\) Sulfur dioxide (SO~2~) in all PM~2.5~ nonattainment and
maintenance areas,

\(ii\) Nitrogen oxides in all PM~2.5~ nonattainment and maintenance
areas unless both the State and EPA determine that it is not a
significant precursor, and

\(iii\) Volatile organic compounds (VOC) and ammonia (NH~3~) only in
PM~2.5~ nonattainment or maintenance areas where either the State or EPA
determines that they are significant precursors.

*Reasonably foreseeable emissions* are projected future direct and
indirect emissions that are identified at the time the conformity
determination is made; the location of such emissions is known and the
emissions are quantifiable; as described and documented by the Federal
agency based on its own information and after reviewing any information
presented to the Federal agency.

\* \* \* \* \*

*Take or start the Federal action* means the date that the Federal
agency signs or approves the permit, license, grant or contract or
otherwise begins the Federal action that requires a conformity
evaluation under this subpart.

*Tribal implementation plan (TIP)* means a plan to implement the
national ambient air quality standards adopted by a federally-recognized
Indian Tribal government determined to be eligible under 40 CFR 49.9 and
the plan has been approved by EPA.

\* \* \* \* \*

5\. Section 93.153 is amended by revising the title of the section;
revising paragraphs (b), (c)(1), (c)(2)(iii), (d), (e)(2), (f), (g)(1),
(g)(3), (h), (i) (j), and (k),.

[§93.153 Applicability analysis.]{.underline}

\* \* \* \* \*

\(b\) For Federal actions not covered by paragraph (a) of this section,
a conformity determination is required for each criteria pollutant or
precursor where the total of direct and indirect emissions in a
nonattainment or maintenance area caused by a Federal action would equal
or exceed any of the rates in paragraphs (b)(1) or (2) of this section.

\(1\) For purposes of paragraph (b) of this section, the following rates
apply in nonattainment areas (NAA\'s):

> Tons/year
>
> Ozone (VOC\'s or NOx):
>
> Serious NAA\'s 50
>
> Severe NAA\'s 25
>
> Extreme NAA\'s 10
>
> Other ozone NAA\'s outside
>
> an ozone transport region 100
>
> Other ozone NAA\'s inside an ozone transport region:
>
> VOC 50
>
> NOx. 100
>
> Carbon monoxide: All NAA\'s. 100
>
> SO~2~ or NO~2~: All NAA\'s 100
>
> PM-10:
>
> Moderate NAA\'s 100
>
> Serious NAA\'s 70
>
> PM~2.5~
>
> Direct emissions 100
>
> SO~2~ 100
>
> NOx (unless determined not to be significant precursors) 100
>
> VOC or ammonia (if determined to be significant precursors) 100
>
> Pb: All NAA\'s 25

\(c\) The requirements of this subpart shall not apply to the following
Federal actions:

\(1\) Actions where the total direct and indirect emissions are below
the emissions levels specified in paragraph (b) of this section.

\(2\) \* \* \*

\(iii\) Procedures for rulemaking and policy development and issuance.

\* \* \* \* \*

\(d\) \* \* \*

\(1\) The portion of an action that includes major or minor new or
modified stationary sources that require a permit under the new source
review (NSR) program (section 173 of the Act) or the prevention of
significant deterioration program (title I, part C of the Act).

\(2\) Actions in response to emergencies which are commenced on the
order of hours or days after the emergency and, if applicable, which
meet the requirements of paragraph (e) of this section.

\* \* \* \* \*

(e) \* \* \*

\(1\) \* \* \*

\(2\) For actions which are to be taken after those actions covered by
paragraph (e)(1) of this section, the Federal agency makes a new
determination as provided in paragraph (e)(1) of this section and:

\(i\) provides a draft copy of the written determinations required to
affected EPA Regional office(s), the affected State(s) and/or air
pollution control agencies, and any Federal recognized Indian Tribal
government in the nonattainment or maintenance area. Those organizations
must be allowed 15 days to comment on the draft determination, and

\(ii\) Within 30 days after making the determination, publish a notice
of the determination by placing a prominent advertisement in a daily
newspaper of general circulation in the area affected by the action.

\(3\) If additional actions are necessary beyond the specified time
period in (2) above, a Federal agency can make a new written
determination as described in (2) above, but in no case shall this
exemption extend beyond 2 years from the date of the emergency.

\(f\) Notwithstanding other requirements of this subpart, actions
specified by individual Federal agencies that have met the criteria set
forth in either paragraphs (g)(1) (g)(2) or (g)(3) of this section and
the procedures set forth in paragraph (h) of this section are presumed
to conform, except as provided in paragraph (j) of this section.

\(g\) The Federal agency must meet the criteria for establishing
activities that are presumed to conform by fulfilling the requirements
set forth in either paragraphs (g)(1), (g)(2), or (g)(3) of this
section:

(1) \* \* \*

\(2\) \* \* \*

\(3\) The Federal agency must clearly demonstrate that the emissions
from the type or category of actions and the amount of emissions from
the action are included in the applicable SIP and the State or local air
quality agencies responsible for the SIP(s) provide written concurrence
that the emissions from the actions along with all other expected
emissions in the area will not exceed the emission budget in the SIP.

\(h\) In addition to meeting the criteria for establishing exemptions
set forth in paragraphs (g)(1) (g)(2) or (g)(3) of this section, the
following procedures must also be complied with to presume that
activities will conform:

\(1\) The Federal agency must identify through publication in the
[Federal Register]{.underline} its list of proposed activities that are
presumed to conform and the basis for the presumptions. The notice must
clearly identify the type and size of the action that would be presumed
to conform and provide criteria for determining if the type and size
action qualifies it for the presumption;

\(2\) The Federal agency must notify the appropriate EPA Regional
Office(s), State and local air quality agencies and, where applicable,
the agency designated under section 174 of the Act and the MPO and
provide at least 30 days for the public to comment on the list of
proposed activities presumed to conform. If the presumed to conform
action has regional or national application (e.g., the action will cause
emission increases in excess of the de minimis levels identified in
§93.153 (b) in more than three of EPA's Regions), the Federal agency, as
an alternative to sending it to EPA Regional Offices, can send the draft
conformity determination to U.S. EPA, Office of Air Quality Planning and
Standards;

\(3\) \* \* \*

\(4\) The Federal agency must publish the final list of such activities
in the [Federal Register]{.underline}.

\(i\) Emissions from the following actions are presumed to conform:

\(1\) Actions at installations with facility-wide emission budgets
meeting the requirements in §93.161 provided that the State has included
the emission budget in the EPA approved SIP and the emissions from the
action along with all other emissions from the installation will not
exceed the facility-wide emission budget.

\(2\) Prescription fires conducted in accordance with approved smoke
management plan which meets the requirements of EPA's Interim Air
Quality Policy on Wildland and Prescribed Fires.

\(3\) Emissions for actions that the State identifies in the EPA
approved SIP as presumed to conform.

\(j\) Even though an action would otherwise be presumed to conform under
paragraph (f) or (i) of this section, an action shall not be presumed to
conform and the requirements of §§ 93.150, §93.151, §§93.154 through
§93.160 and §§93.162 through 93.164 shall apply to the action if EPA or
a third party shows that the action would:

\(i\) Cause or contribute to any new violation of any standard in any
area;

\(ii\) Interfere with provisions in the applicable SIP for maintenance
of any standard;

\(iii\) Increase the frequency or severity of any existing violation of
any standard in any area; or

\(iv\) Delay timely attainment of any standard or any required interim
emissions reductions or other milestones in any area including, where
applicable, emission levels specified in the applicable SIP for purposes
of:

\(A\) A demonstration of reasonable further progress;

\(B\) A demonstration of attainment; or

\(C\) A maintenance plan.

\(k\) The provisions of this subpart shall apply in all nonattainment
and maintenance areas except conformity requirements for newly
designated nonattainment areas are not applicable until 1 year after the
effective date of the designation in accordance with section 176(c)(6)
of the Act.

6\. Section 93.154 is amended by revising the title of the section and
revising the section to read as follows:

[§93.154 Federal agency conformity responsibility.]{.underline}

Any department, agency, or instrumentality of the Federal government
taking an action subject to this subpart must make its own conformity
determination consistent with the requirements of this subpart. In
making its conformity determination, a Federal agency must follow the
requirements in §§93.155 through 93.160 and §§93.162 through 93.165 and
must consider comments from any interested parties. Where multiple
Federal agencies have jurisdiction for various aspects of a project, a
Federal agency may choose to adopt the analysis of another Federal
agency or develop its own analysis in order to make its conformity
determination.

7\. Section 93.155 is amended by revising paragraphs (a) and (b) and
adding paragraph (c) to read as follows:

[§93.155 Reporting requirements.]{.underline}

\(a\) A Federal agency making a conformity determination under §§93.154
through 93.160 and §§93.162 through 93.164 must provide to the
appropriate EPA Regional Office(s), State and local air quality
agencies, any federally-recognized Indian Tribal government in the
nonattainment or maintenance area, and, where applicable, affected
Federal land managers, the agency designated under section 174 of the
Act and the MPO a 30-day notice which describes the proposed action and
the Federal agency\'s draft conformity determination on the action. If
the action has multi-regional or national impacts (e.g., the action will
cause emission increases in excess of the de minimis levels identified
in §93.153 (b) in three or more of EPA's Regions), the Federal agency,
as an alternative to sending it to EPA Regional Offices, can provide the
notice to EPA's Office of Air Quality Planning and Standards.

\(b\) A Federal agency must notify the appropriate EPA Regional
Office(s), State and local air quality agencies, any
federally-recognized Indian Tribal government in the nonattainment or
maintenance area, and, where applicable, affected Federal land managers,
the agency designated under section 174 of the Clean Air Act and the MPO
within 30 days after making a final conformity determination under this
subpart.

\(c\) The draft and final conformity determination shall exclude any
classified information or confidential business information. The
disclosure of classified information and confidential business
information shall be controlled by the applicable laws, regulations,
security manuals, or executive orders concerning the use, access, and
release of such materials. Subject to applicable procedures to protect
classified information from public disclosure, any information or
materials excluded from the draft or final conformity determination or
supporting materials may be made available in a classified annex to the
determination for review by Federal and State representatives who have
received appropriate security clearances.

8\. Section 93.156 is amended by revising paragraphs (a), (b), (c), and
(d) and adding paragraph (e) to read as follows:

[§93.156 Public participation.]{.underline}

\(a\) Upon request by any person regarding a specific Federal action, a
Federal agency must make available, subject to the limitation in (e) of
this section, for review its draft conformity determination under
§93.154 with supporting materials which describe the analytical methods
and conclusions relied upon in making the applicability analysis and
draft conformity determination.

\(b\) A Federal agency must make public its draft conformity
determination under §93.154 by placing a notice by prominent
advertisement in a daily newspaper of general circulation in the area
affected by the action and by providing 30 days for written public
comment prior to taking any formal action on the draft determination.
This comment period may be concurrent with any other public involvement,
such as occurs in the National Environmental Policy Act (NEPA) process.
If the action has multi-regional or national impacts (e.g., the action
will cause emission increases in excess of the de minimis levels
identified in §93.153 (b) in three or more of EPA's Regions), the
Federal agency, as an alternative to publishing separate notices, can
publish a notice in the [Federal Register]{.underline}.

\(c\) A Federal agency must document its response to all the comments
received on its draft conformity determination under §93.154 and make
the comments and responses available, subject to the limitation in
paragraph (e) of this section, upon request by any person regarding a
specific Federal action, within 30 days of the final conformity
determination.

\(d\) A Federal agency must make public its final conformity
determination under §93.154 for a Federal action by placing a notice by
prominent advertisement in a daily newspaper of general circulation in
the area affected by the action within 30 days of the final conformity
determination. If the action would have multi-regional or national
impacts the Federal agency, as an alternative, can publish the notice in
the [Federal Register]{.underline}.

\(e\) The draft and final conformity determination shall exclude any
classified information or confidential business information. The
disclosure of classified information and confidential business
information shall be controlled by the applicable laws, regulations or
executive orders concerning the release of such materials.

9\. Section 93.157 is amended by revising the title of the section ,
adding introductory text; revising paragraphs (a) and (b) and adding
paragraph (d), to read as follows:

[§93.157 Reevaluation of conformity.]{.underline}

Once a conformity evaluation is completed by a Federal agency, that
determination is not required to be re-evaluated if the agency has (1)
maintained a continuous program to implement the action; (2) the
determination has not lapsed as specified in paragraph (a) of this
section; or (3) any modification to the action does not result in an
increase in emissions above the levels specified in subparagraphs (c)
and (d) of this section. If a conformity determination is not required
for the action at the time NEPA analysis is completed, the date of the
finding of no significant impact (FONSI) for an Environmental
Assessment, or a record of decision (ROD) for an Environmental Impact
Statement, can be used as a substitute date for the conformity
determination date.

\(a\) The conformity status of a Federal action automatically lapses 5
years from the date a final conformity determination is reported under
§93.155, unless the Federal action has been completed or a continuous
program to implement the Federal action has been commenced.

\(b\) Ongoing Federal activities at a given site showing continuous
progress are not new actions and do not require periodic
re-determinations so long as such activities are within the scope of the
final conformity determination reported under §93.155 or the NEPA
analysis.

\* \* \* \* \*

\(d\) If the Federal agency determines through the applicability
analysis that a conformity determination was not necessary because the
emissions for the action were below the limits in §93.153(b) and changes
to the action would result in the total emissions from the action being
above the limits in §93.153(b), then the Federal agency must make a
conformity determination.

10\. Section 93.158 is amended as follows:

a\. Revising sub-paragraphs (a)(1), (a)(2), (a)(3) and (a)(4);

b\. Correcting the sub-paragraph citation in (a)(5);

c\. Revising sub-paragraphs (a)(5)(i), and (a)(5)(i)(C), and

d\. Revising sub-paragraphs (a)(5)(iii), (a)(5)(iv); (a)(5)(iv)(A)(1),
(a)(5)(iv)(A)(2) and paragraph (a)(5)(iv)(A)(3).

The revised and new paragraphs in §93.158 read as follows:

[§93.158 Criteria for determining conformity of general Federal
actions]{.underline}

\(a\) An action required under §93.153 to have a conformity
determination for a specific pollutant or precursor, will be determined
to conform to the applicable SIP if, for each pollutant that exceeds the
rates in §93.153(b), or otherwise requires a conformity determination
due to the total of direct and indirect emissions from the action, the
action meets the requirements of paragraph (c) of this section, and
meets any of the following requirements:

\(1\) For any criteria pollutant or precursor, the total of direct and
indirect emissions from the action are specifically identified and
accounted for in the applicable SIP\'s attainment or maintenance
demonstration or reasonable further progress milestone;

\(2\) For precursors of ozone, nitrogen dioxide, or PM, the total of
direct and indirect emissions from the action are fully offset within
the same nonattainment or maintenance area (or nearby area of equal or
higher classification provided the emissions from that area contribute
to the violations, or have contributed to violation in the past, in the
area with the Federal action) through a revision to the applicable SIP
or a similarly enforceable measure that effects emissions reductions so
that there is no net increase in emissions of that pollutant;

\(3\) For any directly-emitted criteria pollutant, the total of direct
and indirect emissions from the action meets the requirements:

\* \* \*

\(4\) For CO or directly emitted PM---

(i)\* \* \*

(ii)\* \* \*

\(5\) For ozone or nitrogen dioxide, and for purposes of paragraphs
(a)(3)(ii) and (a)(4)(ii) of this section, each portion of the action or
the action as a whole meets any of the following requirements:

\(i\) Where EPA has approved a revision to the applicable implementation
plan after the area was designated as nonattainment and the State makes
a determination as provided in paragraph (a)(5)(i)(A) of this section or
where the State makes a commitment as provided in paragraph (a)(5)(i)(B)
of this section:

\* \* \* \* \*

\(C\) Where a Federal agency made a conformity determination based on a
State commitment under paragraph (a)(5)(i)(B) of this section and the
State has submitted a SIP to EPA covering the time period during which
the emissions will occur or is scheduled to submit such a SIP within 18
months of the conformity determination, the State commitment is
automatically deemed a call for a SIP revision by EPA under section
110(k)(5) of the Act, effective on the date of the Federal conformity
determination and requiring response within 18 months or any shorter
time within which the State commits to revise the applicable SIP;

\(D\) Where a Federal agency made a conformity determination based on a
State commitment under paragraph (a)(5)(i)(B) of this section and the
State has not submitted a SIP covering the time period of the emissions
will occur or is not scheduled to submit such a SIP within 18 months of
the conformity determination, the State must, within 18 months, submit
to EPA a revision to the existing SIP committing to include the
emissions in the future SIP revision.

\(ii\) \* \* \*

\(iii\) The action (or portion thereof) fully offsets its emissions
within the same nonattainment or maintenance area (or nearby area of
equal or higher classification provided the emissions from that area
contribute to the violations, or have contributed to violation in the
past, in the area with the Federal action) through a revision to the
applicable SIP or an equally enforceable measure that effects emissions
reductions equal to or greater than the total of direct and indirect
emissions from the action so that there is no net increase in emissions
of that pollutant;

\(iv\) Where EPA has not approved a revision to the relevant SIP since
the area was designated or reclassified, the total of direct and
indirect emissions from the action for the future years (described in
§93.159(d)) do not increase emissions with respect to the baseline
emissions:

(A) \* \* \*

\(1\) The calendar year that is the basis for the most recent
designation or classification;

\(2\) The emission budget in the applicable SIP;

\(B\) The baseline emissions are the total of direct and indirect
emissions calculated for the future years (described in §93.159(d))
using the historic activity levels (described in paragraph (a)(5)(iv)(A)
of this section) and appropriate emission factors for the future years;
or

\* \* \* \* \*

11\. Section 93.159 is amended by:

a\. Adding the section symbol to the title; correcting typographical
errors in paragraphs (b) and (b)(1)(ii);

b\. Revising paragraphs (b)(2) and (c); and

c\. Deleting the footnotes in those paragraphs, and revising paragraph
(d) including adding sub-paragraph (d)(4).

The revisions and additions read as follows:

[§93.159 Procedures for conformity determinations of general Federal
actions.]{.underline}

\* \* \* \* \*

\(b\) The analyses required under this subpart must be based on the
latest and most accurate emission estimation techniques available as
described below, unless such techniques are inappropriate. If such
techniques are inappropriate, the Federal agency may obtain written
approval from the appropriate EPA Regional Administrator for a
modification or substitution, of another technique on a case-by-case
basis or, where appropriate, on a generic basis for a specific Federal
agency program.

\(1\) \* \* \*

\(i\) \* \* \*

\(ii\) A grace period of 3 months shall apply during which the motor
vehicle emissions model previously specified by EPA as the most current
version may be used. Conformity analyses for which the analysis was
begun during the grace period or no more than 3 years before the
[Federal Register]{.underline} notice of availability of the latest
emission model may continue to use the previous version of the model
specified by EPA.

\(2\) For non-motor vehicle sources, including stationary and area
source emissions, the latest emission factors specified by EPA in the
"Compilation of Air Pollutant Emission Factors" (AP-42,
www.epa.gov/ttn/chiefs/efpac) must be used for the conformity analysis
unless more accurate emission data are available, such as actual stack
test data from stationary sources which are part of the conformity
analysis.

\(c\) The air quality modeling analyses required under this subpart must
be based on the applicable air quality models, data bases, and other
requirements specified in the most recent version of the 'Guideline on
Air Quality Models." (Appendix W to 40 CFR part 51. The latest revision
was on April 15, 2003, at 68 FR 18440).

\* \* \* \* \*

\(d\) The analyses required under this subpart must be based on the
total of direct and indirect emissions from the action and must reflect
emission scenarios that are expected to occur under each of the
following cases:

\(1\) The attainment year specified in the SIP, or if the SIP does not
specify an attainment year, the Act mandated attainment year, or

\(2\) The last year for which emissions are projected in the maintenance
plan;

\(3\) The year during which the total of direct and indirect emissions
from the action is expected to be the greatest on an annual basis; and

\(4\) Any year for which the applicable SIP specifies an emissions
budget.

12\. Section 93.160 is amended by:

a\. Adding the section symbol to the title;

b\. Correcting a typographical error in paragraphs (e) and (g); and

c\. Revising paragraph (f).

The revised paragraphs in 93.160 read as follows:

[§93.160 Mitigation of air quality impacts.]{.underline}

**\* \* \* \* \***

\(e\) When necessary because of changed circumstances, mitigation
measures may be modified so long as the new mitigation measures continue
to support the conformity determination. Any proposed change in the
mitigation measures is subject to the reporting requirements of §93.156
and the public participation requirements of §93.157.

\(f\) Written commitments to mitigation measures must be obtained prior
to a positive conformity determination and that such commitments must be
fulfilled.

\(g\) After a State revises its SIP to adopt its general conformity
regulations and EPA approves that SIP revision, any agreements,
including mitigation measures, necessary for a conformity determination
will be both State and Federally enforceable. Enforceability through the
applicable SIP will apply to all persons who agree to mitigate direct
and indirect emissions associated with a Federal action for a conformity
determination.

Subpart B is further amended by adding §§93.161 through 93.165 to read
as follows:

[§93.161 Conformity evaluation for Federal installations with
facility-wide emission budgets.]{.underline}

\(a\) State or local agency responsible for implementing and enforcing
the SIP can in cooperation with Federal agencies or third parties that
operate installations subject to Federal oversight (e.g., a military
base or a commercial service airport) develop and adopt a facility-wide
emission budget to be used for demonstrating conformity. The budget must
meet the following criteria:

\(1\) Be for a set time period;

\(2\) Cover the pollutants or precursors of the pollutants for which the
area is designated nonattainment or maintenance;

\(3\) Include specific quantities allowed to be emitted on an annual or
seasonal basis;

\(4\) The emissions from the facility along with all other emissions in
the area will not exceed the emission budget for the area;

\(5\) Include specific measures to ensure compliance with the budget
such as periodic reporting requirements or compliance demonstration when
the Federal agency is taking an action that would otherwise require a
conformity determination;

\(6\) Be submitted to EPA as a SIP revision;

\(7\) The SIP revision must be approved by EPA.

\(b\) The budget developed and adopted in accordance with section (a)
above can be revised by following the requirements in section (a) above.

\(c\) Total direct and indirect emissions from Federal actions in
conjunction with all other emissions from the facility that do not
exceed the facility budget adopted pursuant to section (a) above are
presumed to conform to the SIP and do not require a conformity analysis.

\(d\) If the total direct and indirect emissions from the Federal
actions in conjunction with the other emissions from the facility exceed
the budget adopted pursuant to paragraph (a) above, the action must be
evaluated for conformity. A Federal agency can use the compliance with
the emissions budget as part of the demonstration of conformity, i.e.,
the agency would have to mitigate or offset the emissions that exceed
the emission budget.

\(e\) If the SIP for the area includes a category for construction
emissions, the negotiated budget can exempt construction emissions from
further conformity analysis.

[§93.162 Emissions beyond the time period covered by the
SIP.]{.underline}

If a Federal action would result in total direct and indirect emissions
which would be emitted beyond the time period covered by the SIP, the
Federal agency can:

\(a\) Demonstrate conformity with the last emission budget in the SIP;
or

\(b\) Request the State to adopt an emissions budget for the action for
inclusion in the SIP. The State must submit a SIP revision to EPA within
18 months either including the emissions in the SIP or establishing an
enforceable commitment to include the emissions in future SIP revisions.

[§93.163 Timing of offsets and mitigation measures.]{.underline}

\(a\) The emissions reductions from an offset or mitigation measure used
to demonstrate conformity must occur during the same calendar year as
the emission increases from the action except as provided in paragraph
(b) of this section.

\(b\) The State may approve reductions in other years provided:

\(1\) The reductions are greater than the emission increases by the
following ratios:

\(i\) Extreme nonattainment areas 1.5:1

\(ii\) Severe nonattainment areas 1.3:1

\(iii\) Serious nonattainment areas 1.2:1

\(iv\) Moderate nonattainment areas 1.15:1

\(v\) All other areas 1.1:1

\(2\) The time period for completing the emissions reductions must not
exceed twice the period of the emissions.

\(3\) The offset or mitigation measure with emissions reductions in
another year will not:

\(i\) Cause or contribute to a new violation of any air quality
standard,

\(ii\) Increase the frequency or severity of any existing violation of
any air quality standard, or

\(iii\) Delay the timely attainment of any standard or any interim
emissions reductions or other milestones in any area.

\(c\) The approval by the State of an offset or mitigation measure with
emissions reductions in another year, does not relieve the State of any
obligation to meet any SIP or Clean Air Act milestone or deadline.

[§93.164 Inter-precursor mitigation measures and offsets]{.underline}

Federal agencies must reduce the same type pollutant as being increased
by the Federal action except the State may approve offsets or mitigation
measures of different precursors of the same criteria pollutant, if such
trades are allowed by a State in a SIP approved new source review
regulation, is technically justified, and has a demonstrated
environmental benefit.

§93.165 Early emission reduction credit programs at Federal facilities
and installation subject to Federal oversight.

\(a\) Federal facilities and installation subject to Federal oversight
can, with the approval of the State agency responsible for the SIP in
that area, create an early emissions reductions credit program. The
Federal agency can create the emission reduction credits in accordance
with the requirements in paragraph (b) below and can used them in
accordance with paragraph (c) below.

\(b\) Creation of emission reduction credits

\(1\) Emissions reductions must be quantifiable through the use of
standard emission factors or measurement techniques. If non-standard
factors or techniques to quantify the emissions reductions are used, the
Federal agency must receive approval from the State agency responsible
for the implementation of the SIP and from EPA's Regional Office. The
emission reduction credits do not have to be quantified before the
reduction strategy is implemented, but must be quantified before the
credits are used.

\(2\) The emission reduction methods must be consistent with the
applicable SIP attainment and reasonable further progress
demonstrations.

\(3\) The emissions reductions can not be required by or credited to
other applicable SIP provisions.

\(4\) Both the State and Federal air quality agencies must be able to
take legal action to ensure continued implementation of the emission
reduction strategy. In addition, private citizens must also be able to
initiate action to ensure compliance with the control requirement.

\(5\) The emissions reductions must be permanent or the timeframe for
the reductions must be specified.

\(6\) The Federal agency must document the emissions reductions and
provide a copy of the document to the State air quality agency and the
EPA regional office for review. The documentation must include a
detailed description of the strategy and a discussion of how it meets
the requirements of sub-paragraphs (1) through (5) of this section.

\(c\) Use of emission reduction credits.

The emission reduction credits created in accordance with paragraph (b)
above can be used, subject to the following limitations, to reduce the
emissions increase from a Federal action at the facility for the
conformity evaluation.

\(1\) If the technique used to create the emission reduction is
reasonably connected to the Federal action and could have occurred in
conjunction with the Federal action, then the credits can be used to
reduce the total direct and indirect emissions used to determine the
applicability of the regulation as required in §93.153 and as offsets or
mitigation measures required by §93.158.

\(2\) If the technique used to create the emission reduction is not
reasonably connected to the Federal action or could not have occurred in
conjunction with the Federal action, then the credits cannot be used to
reduce the total direct and indirect emissions used to determine the
applicability of the regulation as required in §93.153, but can be used
to offset or mitigate the emissions as required by §93.158.

\(3\) Emissions reductions credits must be used in the same year in
which they are generated.

\(4\) Once the emission reduction credits are used, they cannot be used
as credits for another conformity evaluation. However, unused credits
from a strategy used for one conformity evaluation can be used for
another conformity evaluation as long as the reduction credits are not
double counted. For example, emission reduction credits from a control
measure could be used in one year as offset for construction emission
increases and in another year to mitigate operational emission
increases.

\(5\) Federal agencies must notify the State air quality agency and EPA
Regional Office when the emission reduction credits are being used.