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Federal Register/Vol. 75, No. 64/Monday, April 5, 2010/Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 51 and 93

[EPA-HQ-OAR-2006-0669; FRL-9131-7]

RIN 2060-AH93

Revisions to the General Conformity

Regulations

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is revising its

regulations relating to the Clean Air Act

(CAA) requirement that Federal actions

conform to the appropriate State, tribal

or Federal implementation plan (SIP,

TIP, or FIP) for attaining clean air

("General Conformity"). EPA and other

Federal agencies have gained experience

with the implementation of the existing

regulations, which were promulgated in

1993 (and underwent minor revisions in

2006), and have identified several issues

with their implementation. In addition,

in 2004, EPA issued regulations to

implement the revised ozone national

ambient air quality standards (NAAQS)

and in 2007 issued regulations to

implement the new fine particulate

matter standard. State and other air

quality agencies are in the process of

developing revised plans to attain the

new standards and the revisions to the

General Conformity Regulations will be

helpful to the State, Tribe, and local

agencies in developing, and Federal

agencies in commenting, on the

proposed SIPs revisions. This rule

revision will also facilitate Federal

agency compliance with conforming its

activities to the SIPs thereby preventing

violations of the NAAQS. This rule

revision provides for a timely and

effective process for Federal agencies

and States and Tribes to ensure Federal

activities are incorporated in these SIPs.

Where that is not possible, it provides

an efficient and effective process for

Federal agencies to ensure their actions

do not cause or contribute to a violation

of the NAAQS or interfere with the

purpose of a SIP, TIP or FIP to attain or

maintain the NAAQS.

DATES: This action is effective on July 6,

2010.

ADDRESSES: EPA has established a

docket for this rulemaking under Docket

ID No. EPA-HQ-OAR-2006-0669. All

documents in the docket are listed in

the http://www.regulations.gov index.

Although listed in the index, some

information is not publicly available,

e.g., Confidential Business Information

(CBI) or other information whose

disclosure is restricted by statute.

Certain other material, such as

copyrighted material, is not placed on

the Internet and will be publicly

available only in hard copy. Publicly

available docket materials are available

either electronically in http://

www.regulations.gov or in hard copy at

the EPA Docket Center EPA/DC, EPA

West, Room 3334, 1301 Constitution

Avenue, Northwest, 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 EPA

Docket Center 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) 541-

3037 or by e-mail at coda.tom@epa.gov

or Mr. H. Lynn Dail, Office of Air

Quality Planning and Standards, U.S.

Environmental Protection Agency, Mail

Code C539-02, Research Triangle Park,

NC 27711, phone number (919) 541-

2363 or by e-mail at dail.lynn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

Entities affected by this rule include

Federal agencies and public and private

entities that receive approvals or

funding from Federal agencies such as

airports and seaports.

B. How is this preamble organized?

The information presented in this

preamble is organized as follows:

Outline

I. General Information

A. Does this action apply to me?

B. How is this preamble organized?

C. When did EPA propose these revisions

to the General Conformity Regulations?

D. Where can I obtain additional

information?

II. Background

A. What is General Conformity and how

does it affect air quality?

B. Why is EPA revising these regulations

at this time?

III. How are the existing regulations

implemented?

A. Applicability Analysis

B. Conformity Determination

C. Review Process

IV. Comments Submitted on the Proposed

Rule

V. Summary of the Final Revisions and

Clarifications of the General Conformity

Regulations

A. Overview of Revisions to the General

Conformity Regulations

B. What Innovative and Flexible

Approaches Are Being Finalized?

C. What Burden Reduction Measures Are

Being Finalized?

D. What Revisions Provide Tools and

Guidance for Transitioning to New or

Revised NAAQS?

E. What Revisions Are Being Finalized at

the Request of Other Agencies?

F. What Are Some of the Clarifications to

the Existing Regulations That Are Being

Finalized?

VI. Detailed Discussion of the Final Revisions

to and Clarifications of the General

Conformity Regulations

A. 40 CFR Part 51, Subpart WDetermining Conformity of General

Federal Actions to State or Federal

Implementation Plans

B. 40 CFR 93.150-Prohibition

C. 40 CFR 93.151-SIP Revision

D. 40 CFR 93.152-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 CFR 93.159-Procedures for

Conformity Determinations for General

Federal Actions

L. 40 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 Tribal Implementation Plan (TIP)

0. 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

VII. 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

K. Congressional Review Act

L. Judicial Review

VIII. Statutory Authority

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C. When did EPA propose these

revisions to the General Conformity

Regulations?

The EPA proposed the revised

General Conformity Regulations in the

Federal Register on January 8, 2008 at

73 FR 1402.

D. Where can I obtain additional

information?

In addition to being available in the

docket, an electronic copy of this final

rule is also available on the worldwide

web. Following signature by the EPA

Administrator, a copy of this notice will

be posted at http://www.epa.gov/oarl

genconform/regs.htm.

II. 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

NAAQS or interfering with the purpose

of a SIP, TIP, or FIP.

In the CAA, Congress recognized that

actions taken by Federal agencies could

affect State, Tribal, and local agencies'

ability to attain and maintain the

NAAQS. In section 176(c) (42 U.S.C.

7506) of the CAA, Congress established

requirements 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 conform to the purposes of

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 approval actions, EPA

published two sets of regulations to

implement section 176(c). The

Transportation Conformity Regulations,

first published on November 24, 1993

(58 FR 62188) and revised on July 1,

2004 at 69 FR 40004, May 6, 2005 at 70

FR 24280 and March 10, 2006 at 71 FR

12468, and January 24, 2008 at 73 FR

4420, 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 revising these regulations

at this time?

On July 17, 2006 at 71 FR 40420, EPA

revised 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 (PM2.

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. To

address these issues, EPA initiated a

process to review, revise and streamline

the regulations. In addition, EPA is in

the process of developing regulations to

implement the revised ozone standard

and regulations to implement the new

particulate matter standard. In the near

future, State and local air quality

agencies will be required to develop

revised SIPs to attain these new

standards. Knowledge of the revised

General Conformity Regulations will be

helpful to the State, Tribal, and local

agencies in the SIP development process

as well as the Federal agencies in

commenting on the proposed SIP

revisions. This rule revision will also

facilitate Federal agency compliance

with conforming its activities to the SIPs

and thereby preventing violations of the

NAAQS.

III. How are the existing regulations

implemented?

Federal agencies and other parties

involved in the conformity process have

found that in implementing the existing

General Conformity Regulations their

process falls into 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.

The existing regulations do not

specifically identify the roles of Indian

Tribes in the General Conformity

process or the connection between the

regulations and TIPs. In the revised

regulations, EPA has specifically

identified tribal agencies as stakeholders

in the conformity process such as

requiring specific notification for any

federally recognized Tribes in the

nonattainment or maintenance area

where the action is occurring. In

addition, the revised regulations also

clarify that Federal actions must

conform to any applicable TIP.

A. Applicability Analysis

The National Highway System

Designation Act of 1995 (Pub. L. 104-

59) added section 176(c)(5) to the CAA

to limit applicability of the conformity

programs only to areas designated as

nonattainment under section 107 of the

CAA and maintenance areas established

under section 175A of the CAA.

Therefore, only actions which cause

emissions in designated nonattainment

and maintenance areas are subject to the

regulations. In addition, the regulations

recognize that the vast majority of

Federal actions do not result in a

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 or more 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;

4. Whether the total direct and

indirect emissions are below or above

the de minimis levels; and/or

5. Where the facility has an emission

budget approved by the State or Tribe as

part of the SIP or TIP, the Federal

agency determines if the emissions from

the proposed action are within the

budget.

If the action will cause emissions

above the de miminis in any

nonattainment or maintenance area and

the action is not otherwise exempt, "presumed to conform," or included in

the existing emissions budget of the SIP

or TIP, the agency must conduct a

conformity determination before it takes

the action.

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 cause a new violation of

the standard, or 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:

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1. Demonstrating that the total direct

and indirect emissions are specifically

identified and accounted for in the

applicable SIP,

2. Obtaining a written statement from

the State, Tribe or local agency

responsible for the SIP or TIP

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 or Tribe to revise the SIP

or TIP 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 offsetting 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 (NO2). As

stated in EPA's proposal of the 1993

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)(FLM). 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 substantive and

procedural General Conformity

requirements can result in an adverse

court decision if challenged.

IV. Comments Submitted on the

Proposed Rule

The proposed rule on the "Revisions

to the General Conformity Regulations"

was issued on January 8, 2008 (73 FR

1402). The EPA received 65 letters from

State and local governments, Federal

agencies, environmental groups, and

private citizens commenting on the

proposed regulations. Some of the

comments are discussed in section VI of

this notice as they were relevant to the

detailed discussion of revisions. The

EPA has included a response to

comments document which addresses

all of the timely comments received on

the proposed rule in the docket of this

rulemaking action (See Docket No.

EPA-HQ-OAR-2006-0669).

V. Summary of the Final Revisions and

Clarifications of the General

Conformity Regulations

A. Overview of 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 in 40 CFR 93

subpart B (sections 150 to 160), it also

promulgated regulations at 40 CFR part

51, subpart W (sections 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

revising its regulations to make the

adoption and submittal of the General

Conformity SIP or TIP optional for the

State or Tribe.

Because 40 CFR part 51, subpart W

(§§ 51.850-51.860) essentially

duplicates the regulations promulgated

at 40 CFR part 93, subpart B (§§ 93.150-

93.160), EPA is deleting all of subpart W

except for § 51.851. In the revision to

§ 51.851, EPA is requiring that if a State

or Tribe submits a General Conformity

SIP or TIP that it be consistent with the

requirements of 40 CFR part 93, subpart

B. The EPA added paragraph (f) to 40

CFR 51.851 to allow the States and

Tribes to develop their own "presumed

to conform" list for actions covered by

their conformity SIPs or TIPs.

In 40 CFR part 93, subpart B, EPA is

making specific revisions to the

regulations which (1) Clarify the

process, (2) delete outdated or

unnecessary requirements, (3) authorize

innovative and flexible approaches, (4)

reduce the paperwork burden, (5)

provide transition tools for

implementing new standards, (6)

address issues identified by

implementing agencies, and (7) provide

a better explanation of regulations and

policies.

Several of the 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.

This is discussed in more detail in

section VI below.

B. What Innovative and Flexible

Approaches Are Being Finalized?

1. The EPA is adding a new section

(40 CFR 93.161) to allow for a facilitywide emission budget approach. Under

this voluntary arrangement, Federal

agencies, in anticipation of future major

actions, may negotiate a facility-wide

emission budget with the appropriate

State, tribal, or local air quality agency

responsible for the SIP or TIP. The State,

tribal, or local agency could incorporate

the facility-wide emission budget into

the applicable SIP or TIP and submit it

to EPA for approval. After EPA approves

the SIP or TIP, any action at the facility

can be "presumed to conform" provided

that the emissions from the proposed

action along with all other emissions at

the facility are within the EPA approved

facility-wide emission budget and a

conformity determination would not be

necessary. Alternatively, a facility with

an approved facility-wide emission

budget could demonstrate conformity by

the conventional methods afforded in

the General Conformity Regulations. For

example, once approved, minor actions

under the control of the facility where

an applicability analysis results in a

determination that the emissions are

below a de minimis threshold could

proceed with no conformity

determination.

2. The EPA is adding 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

established by Congress in Federal

Aviation Administration (FAA)

Reauthorization Act of 2003 for the

Airport Early Emission Reduction Credit

(AERC) program and the guidance to

implement that program. The revised

regulations provide a similar framework

for other Federal agencies.

3. The EPA is adding a new section

(40 CFR 93.164) to allow, with certain

limitations, the emission of one

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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 adding a new section

(40 CFR 93.163) to allow alternate

schedules for mitigating emissions

increases. The mitigation timing

approach allows 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 can allow this approach

to accommodate short-term increases in

emissions if they believe a substantial

long-term reduction in emissions will

result from a Federal action.

C. What Burden Reduction Measures

Are Being Finalized?

1. The EPA is deleting the provision

in the existing regulation (40 CFR

93.153) that requires Federal agencies to

conduct a conformity determination for

regionally significant actions where the

direct and indirect emissions of any

pollutant represent 10 percent or more

of a nonattainment or maintenance

area's emissions inventory for that

pollutant, even though the total direct

and indirect emissions from the actions

are below the de minimis emission

levels or the actions are otherwise

"presumed to conform".

2. The EPA is adding in 40 CFR

93.153 new types of actions that Federal

agencies can include in their "presumed

to conform" lists and EPA is also

permitting States or Tribes to establish

in their General Conformity SIPs or TIPs

"presumed to conform" lists for actions

within their State or tribal area.

3. The EPA is finalizing an exemption

in 40 CFR 93.153 for the emissions from

stationary sources permitted under the

minor source New Source Review (NSR)

programs similar to the EPA's existing

General Conformity regulation which

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 adding a definition in

the regulation (40 CFR 93.152) for "Take

or start the Federal action" to help

Federal agencies determine what, if any,

conformity requirements apply when an

area is designated or re-designated as

nonattainment.

2. The EPA is adding requirements

(40 CFR 93.153(k)) for the

implementation of the statutory grace

period for newly designated

nonattainment areas.

3. The EPA is adding alternate

methods (40 CFR 93.162) to demonstrate

conformity for time periods beyond

those covered by the SIP or TIP. The

EPA is also allowing 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 Finalized

at the Request of Other Agencies?

1. As part of EPA's efforts to finalize

an Air Quality Policy on Wildland and

Prescribed Fires, which was undertaken

in consultation with FLMs, EPA took

comment on two possible approaches:

To include a presumption of conformity

for (1) prescribed fires conducted in

accordance with a State certified smoke

management programs (SMPs) which

meets the requirements of EPA's Interim

Air Quality Policy on Wildland and

Prescribed Fires or an equivalent

replacement EPA policy, or (2)

prescribed fires conducted in

accordance with a State certified SMPs

which meets the requirements of EPA's

Interim Air Quality Policy on Wildland

and Prescribed Fires or an equivalent

replacement EPA policy or, in the

absence of a State certified SMP, where

the Federal agency has obtained written

assurance from the State prior to the

burn that the planned burn employs

State approved basic smoke

management practices (BSMP). EPA is

finalizing option 1 to include a

presumption of conformity for

prescribed fires that are conducted in

compliance with SMPs (40 CFR

93.153(i)(2)), with recognition that

prescribed fires employing BSMPs may

be able to meet a presumption of

conformity if such a presumption is

established by an agency following the

requirements of 93.153(g) or by a State

following the requirements of 51.851(f).

In the absence of such SMPs, we

encourage States and Federal agencies

to work together to develop and finalize

SMPs or to include prescribed fires

conducted in accordance with BSMPs as

presumed to conform actions in the

applicable SIP. In addition, Federal

agencies could undertake actions in

accordance with 40 CFR 93.153(f) and

(g) to include prescribed fires conducted

in accordance with specific BSMPs as

actions that are presumed to conform.

2. The EPA is finalizing the proposal

(40 CFR 93.158) 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 several Federal

agencies, EPA is clarifying the language

in the regulation that states that nothing

in these regulations (40 CFR 93.155 and

40 CFR 93.156) requires the release of

materials and other information where

disclosure is restricted by law. Also,

EPA is including a similar clarification

for CBI.

4. Several Federal agencies and others

involved in the General Conformity

process suggested that EPA should

consider exempting construction

activity emissions from the conformity

regulations requirements (40 CFR

93.153). 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 these concerns

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 address

construction emissions in the General

Conformity assessment. However, EPA

is not finalizing an exemption for

construction emissions in the revisions

and is instead affirming that emissions

from construction activities must be

considered in a conformity evaluation.

5. At the request of the FAA, EPA is

codifying one of the examples contained

in the preamble to the existing General

Conformity Regulations (58 FR 63229)

that stated, "the EPA believes that the

following actions are illustrative of de

minimis actions: * * * Air traffic

control activities and adopting

approach, departure and enroute

procedures for air operations." The FAA

conducted a study of ground level

concentrations caused by elevated

aircraft emissions released above ground

level (AGL) using EPA-approved models

and conservative assumptions.1 The

study concluded that aircraft operations

at or above the average mixing height of

3,000 feet AGL have a very small effect

on ground level concentrations and

could not directly result in a violation

of the NAAQS in a local area.

Consequently, this study supports the

example provided in EPA's initial

preamble language for air traffic control

activities and adopting approach,

1 Wayson, Roger, and Fleming, Gregg,

"Consideration of Air Quality Impacts by Airplane

Operations at or Above 3000 feet AGL," Volpe

National Transportation Systems Center and FAA

Office of Environment & Energy, FAA-AEE-00-01-

DTS-34, September 2000. http://www.faa.govl

regulationspaolicies/policy guidane/ennvirjolicy/.

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departure and enroute procedures for

aircraft operations above the mixing

height. As some of the commenters

noted, the mixing height for some areas

can vary and some SIPs and TIPs

identify a specific mixing height to be

used. Therefore, EPA's final rule (40

CFR 93.153) exempts as de minimis

aircraft emissions above the specific

mixing height identified in the SIP or

TIP. If no mixing height is identified in

the SIP or TIP, the Federal agency can

use 3,000 feet AGL as a default mixing

height. The list of exemptions under 40

CFR 93.153(c)(2)(xxii) has been updated

in this final rule to reflect this policy.

F. What are some of the clarifications to

the existing regulations that are being

finalized?

1. The EPA is clarifying in 40 CFR

93.150 the General Conformity

evaluation for treatment of emissions

from actions with emissions originating

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 establishing procedures

in 40 CFR 93.153 to follow in extending

the 6-month conformity exemption for

actions taken in response to an

emergency.

3. The EPA is revising (40 CFR

93.158) the procedures that can be used

to demonstrate conformity with the

applicable SIP when the SIP does not

contain an attainment demonstration or

when the emissions from the Federal

action are projected beyond the period

of the SIP. In addition, EPA is adding a

new section (40 CFR 93.162) to establish

procedures for demonstrating

conformity beyond the time period

covered by the SIP or TIP.

4. The EPA is revising the review

process (40 CFR 93.155) to require

Federal agencies to notify tribal

governments in the nonattainment or

maintenance area of General Conformity

evaluations.

5. The EPA is clarifying the definition

(40 CFR 93.152) of several terms used in

the regulations.

6. The EPA is including specific

language throughout the regulations to

identify the role of Indian Tribes and

TIPs in the General Conformity

evaluation.

VI. Detailed Discussion of the Final

Revisions to and Clarifications of the

General Conformity Regulations

A. 40 CFR Part 51, Subpart WDetermining Conformity of General

Federal Actions to State or Federal

Implementation Plans

In 1990, the CAA was amended to

include a provision in section 176(c)(4)

that required States 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) 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.

The EPA does not interpret this

provision as prohibiting States or Tribes

from voluntarily adopting and

submitting General Conformity

implementation plans consistent with

EPA regulations. Therefore, EPA is

revising 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 Part 51, subpart W (§§ 51.850

through 51.860) directed States to adopt

and submit General Conformity SIPs to

EPA for approval and 40 CFR Part 93

subpart B (§§ 93.150 through 93.160)

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 part 51,

subpart W. The other sections in subpart

W repeated the requirements found in

40 CFR part 93, subpart B. The EPA is

deleting 40 CFR 51.850, and §§ 51.852

through 51.860 since those sections

merely repeated the language in 40 CFR

93.150 and §§ 93.152 through 93.160

and is including a requirement in 40

CFR 51.851(a) that the General

Conformity SIP or TIP, if adopted, must

meet the requirements in 40 CFR part

93, subpart B.

In addition, EPA is restructuring

§ 51.851.

1. The EPA is dividing paragraph (b)

of 40 CFR 51.851 into four paragraphs-

(b), (c), (d), and (e):

a. Paragraph (b) now states that until

EPA approves the General Conformity

SIP, Federal agencies must meet the

requirements of 40 CFR part 93, subpart

B.

b. Paragraph (c) states that after EPA

approves a SIP or TIP meeting the

requirement of 40 CFR part 93, subpart

B, or portion thereof, the Federal

agencies must meet the requirements of

the SIP or TIP and any other portions of

40 CFR part 93, subpart B if not

contained in the approved SIP or TIP. In

addition, paragraph (g) states that any

conformity requirements in an existing

implementation plan remain

enforceable until the State submits and

EPA approves a revision to the

applicable State implementation plan to

specifically remove the conformity

requirements. Since there is no longer a

requirement for SIPs to include

conformity requirements and the

applicable statutes do not grant EPA

additional authorities to condition

approval of a State's request to remove

the General Conformity requirements

from an implementation plan, it is

EPA's intent, once requested by a State,

to expeditiously review and approve

implementation plan revisions that seek

to remove General Conformity

requirements.

c. Paragraph (d) contains the

requirement that the SIP or TIP can be

no less stringent than 40 CFR part 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 part 93, subpart B unless the

provisions apply equally to non-Federal

as well as Federal entities.

2. The EPA is adding a new provision

in § 51.851(f), which allows States or

Tribes to include in their SIP or TIP a

list of actions that are "presumed to

conform." For example, the State may

identify the emissions from a certain

type and size of construction activities

that it presumes will conform.

Comment: Several commenters

supported EPA's proposal to make the

adoption and submittal of the General

Conformity SIP optional. One

commenter believed that the

elimination of the conformity SIP

requirement in § 93.151 leaves a gap

regarding the enforcement of mitigation

measures.

The commenter noted that under the

language in the new provision, there is

no State or Federal enforceability if the

State withdraws its conformity SIP or

otherwise fails to retain a requirement

that written commitments to undertake

and implement mitigation measures are

obligations of the SIP. Another

commenter supported the requirements

for States to develop conformity SIPs.

Response: The EPA is revising its

regulations to be consistent with the

revised requirements of the CAA. In

2005, the CAA was revised to eliminate

the requirement that a State must adopt

a conformity SIP. If a State does not

have a conformity SIP, then Federal

agencies must conduct their evaluation

under the requirements of 40 CFR

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93.150-93.165. These requirements are

essentially the same as the requirements

contained in the conformity SIPs.

Therefore, there would be little

difference in the enforceability of the

regulations. Mitigation measures are

included in the SIP or TIP. A conformity

SIP is not needed to include the

mitigation measures in the SIP or TIP.

They are included in the SIP to attain

or maintain the ambient air quality

standards. Section 93.160 has been

changed by deleting the term "General

Conformity Regulations" to ensure this

fact is clear.

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 making two revisions to § 93.150.

First, EPA is deleting the language in

paragraph (c) of that section and

reserving that paragraph. Second, EPA

is adding a new paragraph (e) to the

section to State that if an action occurs

in more than one nonattainment area,

that each area must be evaluated

separately.

In paragraph (c) of the 1993

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 under way 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) was

outdated and not necessary at this time.

In the new paragraph (e) in § 93.150,

EPA is clarifying the regulations to State

specifically that conformity

determinations must be made for each

nonattainment or maintenance area in

which emissions from the Federal

action occur. 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 in

multiple States. Emissions from an

action at such facilities could extend

across the nonattainment or

maintenance area boundaries. Some

Federal actions could result in direct or

indirect emissions in non-contiguous

areas, or even nationwide, that are

above the de minimis thresholds and

affect multiple nonattainment or

maintenance areas. The 1993

regulations did not specify how actions

or projects affecting multiple areas

should be addressed. Therefore, EPA

added paragraph (e) to state that an

action's emissions in each area would

be treated as if they result from separate

actions.

The EPA clarified that emissions from

actions 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

SIP requirements may vary from one

area to another.

2. The General Conformity

Regulations exemptions are also areaspecific. 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-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 did not

change the purpose of the section, but

is revising the section to clarify its

wording. The 1993 regulations included

statements about the stringency of the

SIP compared to the requirements in

subpart B of part 93. The EPA is

deleting 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 revising 12 of the definitions,

adding 11 new terms, and deleting one

term, and clarifying the scope of an

existing definition as follows:

Applicability analysis. The EPA is

adding this new term to describe the

process of determining if the Federal

agency must conduct a conformity

determination for its action.

Applicable implementation plan or

applicable SIP. The EPA is making two

minor revisions to the definition. First,

EPA is correcting the citation for the SIP

approval and second, EPA is clarifying

the definition by adding a parenthetical

phrase to clarify that the term includes

an approved TIP. The requirements for

eligible Tribes are found in 40 CFR 49.6.

Area-wide air quality modeling

analysis. The EPA is clarifying this

definition by making a minor wording

change and by including photochemical

grid model in the definition. Also, EPA

is adding an example of the type of

models that could be used for the areawide air quality modeling analysis.

Caused by. The basic test established

by the 1993 regulations' 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,

approved, or funded by a Federal

agency meets this test and should be

included in the conformity evaluation.

Therefore, EPA is clarifying that

construction emissions are part of the

total direct and indirect emissions from

an action.

Comment: In the January 8, 2008,

proposal, EPA solicited comment on

whether construction emissions in

general or short-term construction

emissions should be exempt from the

regulations. In addition, EPA solicited

comment on what should be considered

short-term construction emissions (1 to

5 years). The majority of commenters on

this issue objected to exempting

construction emissions. They noted that

construction emissions can contribute

significantly to particulate matter (PM)

exceedances, especially off-road vehicle

emissions. Some believed that ignoring

these emissions might drop a project

below the de minimis threshold and

result in unmitigated emissions and the

exposure of local residents to significant

levels of pollutants such as diesel

exhaust. However, some commenters

thought that construction emissions

should be exempted. They noted that

construction emissions only peak for a

short time and that a disproportionate

amount of time in the conformity

process is spent on addressing very

short-term construction-related

emissions. They also pointed out that

construction emissions are generally not

included in NSR or Transportation

Conformity evaluations. Of the

commenters that thought construction

emissions should be exempt, some

thought they should be exempt for 5

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years while others thought they should

be exempt for only 2 years.

Response: The EPA agrees with the

majority of commenters on this issue

that construction emissions can

contribute significantly to exceedances

of the NAAQS, particularly exceedances

of the PM standards. Unlike the

construction activities associated with

Transportation Conformity and NSR

projects, construction activities

associated with General Conformity

actions vary widely in type. For

example, General Conformity is

concerned about localized impacts of

the direct and indirect impacts of

particular action or projects, as reflected

in case-by-case analysis of emissions

from specific actions, while

Transportation Conformity is primarily

concerned with the regional impacts of

long-term use of the roads, as reflected

in analysis of regional transportation

processes, and secondarily concerned

with short-term and localized impacts.

Also, NSR specifically does not apply to

emissions from mobile sources, which

includes most construction

equipment-no such restriction is found

in General Conformity. Moreover, as

explained above, EPA believes that

emissions from construction activities

initiated, approved, or funded by a

Federal agency would not have occurred

in the absence of the Federal action and

thus meet the "caused by" definition

included in the general conformity

regulations. For these reasons, EPA

believes that it is important that

construction emissions should be

considered as part of the General

Conformity process. EPA also believes

that other flexibilities in the revised rule

will help with planning for, and

addressing, construction emissions in

the General Conformity process. These

flexibilities include allowing alternative

mitigation schedules and including

construction emissions in a facility

emission budget.

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.

Confidential business information

(CBI). In §§ 93.155 and 93.156, EPA is

clarifying how CBI used in the

conformity determination is to be

handled. To support those provisions,

EPA is adding 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

adding a new term to describe the

decision that a Federal agency official

makes in determining that the action

will conform with the SIP, TIP or FIP.

Conformity evaluation. The EPA is

adding a new definition to describe the

entire conformity analysis process from

the applicability analysis through the

conformity determination, if necessary.

Continuing program responsibility. In

the 1993 regulations, EPA used the term "emissions that a Federal agency has a

continuing program responsibility for."

That term was awkward and confusing.

The EPA is shortening the term to the "continuing program responsibility" and

reformatting the definition to make it

clearer.

Continuous program to implement.

This term was used in the 1993

regulations but was not defined.

Therefore, EPA is adding 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 revising

the definition of direct emissions to

include a requirement that the

emissions must be reasonably

foreseeable. This revision reflects EPA's

policy as set forth in the July 1994

implementation guidance that direct

emissions must be reasonably

foreseeable. (General Conformity

Guidance: Questions and Answers,

USEPA, OAQPS, Page 6, Question 2,

July 13, 1994).

Emission Inventory. This term is used

but not defined in the 1993 regulations.

Therefore, EPA is adding a definition of

this term.

EPA. Since some States have

Environmental Protection Agencies,

EPA is adding "U.S." in the definition to

clarify that the regulations refer to the

U.S. Environmental Protection Agency.

Indirect emissions. EPA is revising the

definition for indirect emissions to

clarify that only indirect emissions

originating in a nonattainment or

maintenance area need to be analyzed

for conformity with the applicable SIP.

In addition, EPA is revising the

definition of "indirect emissions" to

clarify what is meant by "the agency can

practically control" and "for which the

agency has continuing program

responsibility." This clarification

represents EPA's long standing position

that Congress did not intend for

conformity to apply to "cases where,

although licensing or approving action

is a required initial step for a

subsequent activity that causes

emissions, the agency has no control

over that subsequent activity, either

because there is no continuing program

responsibility or ability to practically

control." (58 FR 63.214, 63.221,

November 30, 1993). (General

Conformity Guidance: Questions and

Answers, USEPA, OAQPS, Page 6,

Question 2, July 13, 1994).

Comment: One commenter believes

that excluding emissions over which the

Federal agency does not have

continuing program responsibility is

unlawful. The commenter believes that

the original definition of "caused by" is

practical because the conformity

determination will be made in the

context of an Environmental Impact

Statement (EIS) for such major Federal

projects and NEPA requires an

assessment of the expected development

and reasonably foreseeable impacts

associated with such development. The

commenter noted that if the agency with

authority to approve these expansions

lacks the continuing programmatic

responsibility to control the use of

facilities approved by the agency, then

the proposed activity should not be

approved.

The commenter believes that the

proposed rule definition has the

potential for allowing massive increases

in emissions that is anticipated as a

result of port expansions in some of the

nation's most polluted metropolitan

areas. The commenter also noted that

the NEPA may also create authority to

adopt environmental mitigation plans as

part of an agency's programmatic

responsibility.

Response: The exclusion of emissions

over which the Federal agency does not

have a continuing program

responsibility is related to indirect

emissions for the General Conformity

analysis and does not affect the analysis

required for NEPA review. EPA is not

changing the requirements of that

provision; EPA is only clarifying the

language contained in it. Since 1993, the

"indirect emissions" definition has been

limited to those emissions for which

"the Federal agency * * * will maintain

control over due to continuing

programmatic responsibility."

Accordingly, EPA's reformatting of the

language in this revision does not

change the practical impact of this

definition, and the commenter's

suggestion that the definition should

include emissions over which the

Federal agency does not have control

would greatly expand the program

beyond what EPA believes that the law

intended. In any event, since EPA did

not propose to expand the program to

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include emissions over which a Federal

agency does not have control, it cannot

go final with such an expansion in this

rule.

Local air quality modeling analysis.

The EPA is revising 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 making

a minor wording change to clarify the

definition by citing the regulations and

the section of the CAA used to identify

maintenance areas.

Metropolitan Planning Organization.

The EPA is revising its regulatory

definition to make it more consistent

with the statutory definition in

SAFETEA-LU, which was signed into

law on August 10, 2005.

Mitigation measure. The 1993

regulations used the term "mitigation

measure" and had a section specifying

the requirements for a mitigation

measure; however the regulations did

not define the term. The EPA is defining

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 NAAQS for both ozone and for fine

particles. The definition in the 1993

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 .

Precursors of criteria pollutants. The

1993 regulations define precursors for

both ozone and PM-10. Since the PM2.5

standard was promulgated after the

General Conformity Regulations, the

original regulations did not include the

precursors for PM 2.

5 . EPA recently

amended the regulations (July 17, 2006

at 71 FR 40420) to add PM 2.

5 precursors,

consistent with the proposed

implementation program for the PM 2.

5

standard (70 FR 65984). The EPA

defined the precursors of PM 2.

5 as

follows:

1. Sulfur dioxide (SO2 ) is a regulated

pollutant in all PM 2.

5 nonattainment and

maintenance areas. 2

2 While sulfur dioxide must be addressed in

general conformity determinations for PM 2.5, sulfur

dioxide is not required to be addressed in

transportation conformity determinations before a

SIP is submitted, unless either the State air agency

or EPA regional office makes a finding that on-road

emissions of sulfur dioxide are significant

contributors to the area's PM 2.5 problem. Sulfur

dioxide would be addressed in transportation

conformity after a PM 2.5 SIP is submitted if the

area's SIP contains an adequate or approved sulfur

dioxide motor vehicle emissions budget. EPA based

2. Nitrogen oxides (NOx) are regulated

pollutants in all PM 2.

5 nonattainment

and maintenance areas unless both the

State/Tribe and EPA determine that they

are not.

3. Volatile organic compounds (VOC)

and ammonia (NH3) 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 revising the term

"direct emissions" to limit the emissions

to those which can be reasonably

foreseeable. Therefore, EPA is revising

the term "reasonably foreseeable" to

include "direct emissions."

Regionally significant action. As

discussed in the revisions to 93.153(i)

below, EPA is deleting the requirement

that conformity determinations are

required for actions that would

normally be exempt if those actions are

considered regionally significant.

Therefore, EPA is deleting the definition

of the term.

Restricted information. As discussed

in §§ 93.155 and 156 on reporting and

public participation, EPA is specifying

how restricted information used in the

conformity determination is to be

handled. To support those revisions,

EPA is adding a definition of restricted

information. The definition is based

upon applicable Executive Orders,

regulations and statutes pertaining to

materials and other information where

disclosure is restricted by law.

Comment: One commenter requested

that EPA state that emission data be

specifically excluded for the definition

of "restricted information."

Response: The EPA agrees that

emission data generally can not be

considered "restricted information."

Under EPA policy emission data cannot

be considered as "confidential business

information." Only in rare

circumstances where data are contained

in documents classified as sensitive

information to which access is restricted

by law or regulation to particular classes

of persons and a formal security

clearance is required to handle or access

the classified data would emission data

from a government facility be "restricted

information." In the situations where

restricted information is used as part of

the conformity evaluation, EPA will

work with the appropriate Federal, State

and tribal agencies to ensure an

its decision regarding treatment of sulfur dioxide in

transportation conformity on the de minimis

amount of on-road emissions of sulfur dioxide now

and in the future, and on the implementation of low

sulfur gasoline beginning in 2004 and low sulfur

diesel fuel beginning in 2006. (70 FR 24283).

adequate review of the conformity

evaluation.

Take or start the Federal action. The

EPA is adding 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 redesignated as nonattainment. The EPA

is defining this term as the date the

decision-maker signs a document such

as a grant, permit, license or approval.

Otherwise, EPA is defining the term as

the date the Federal agency physically

starts the action that requires the

conformity evaluation.

Tribal implementation plan (TIP). The

EPA is adding a definition for TIP to

mean plans adopted and submitted by

federally recognized Indian Tribes.

E. 40 CFR 93.153-Applicability

Analysis

The EPA is clarifying the process of

determining if the General Conformity

requirements are applicable to a Federal

action. Although EPA is providing

clarification on actions that are exempt

or "presumed to conform" in this

regulation, nothing in this regulation is

intended to interfere with any

exemptions previously established by

law.

1. The EPA is revising 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 making technical

changes to paragraph (a) of § 93.153.

The technical correction in section

93.153(a) is to update the reference to

the transportation conformity

regulations. Section 93.153(a) currently

states that the transportation conformity

regulations are codified at 40 CFR part

51 subpart T, but EPA deleted

transportation conformity criteria and

procedures from 40 CFR part 51 subpart

T a number of years ago. (62 FR 43779)

Accordingly, section 93.153(a) has been

revised to refer to the transportation

conformity criteria and procedures now

codified at 40 CFR part 93 subpart A. 3

EPA is not finalizing the proposed

changes to paragraph (b). Following

proposal of changes to this paragraph

EPA realized that the minor wording

changes we had proposed (adding the

word "criteria" before the word

"pollutant" and "or precursor" after the

3 While we did not issue a proposal or provide

an opportunity for public comment for this minor

correction to the rule, we believe such actions are

unnecessary because this minor revision in no way

changes substantive conformity procedures

described in the general conformity rule but merely

updates the reference to the proper location of the

transportation conformity regulations in the CFR.

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word to clarify the paragraph) had been

accomplished by changes made to this

section in a July 17, 2006 regulatory

action (71 FR 40426). Therefore, EPA is

making no changes to this paragraph

from the current regulatory language.

3. The EPA is revising the table in

sub-paragraph (b)(1) to include all

nonattainment areas in the Ozone

Transport Region. In 1993, when the

General Conformity Regulations were

promulgated, all nonattainment areas in

the Ozone Transport Region were

classified pursuant to Table 1 in CAA

section 181(a)(1) as marginal or above

for the 1-hour ozone NAAQS. When

EPA later designated 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 pursuant to

Table 1. However, the decision to place

certain areas only under subpart 1 was

vacated by the decision in South Coast

Air Quality Management District v. EPA,

472 F.3d 882 (DC Cir. 2006). Although

there are currently no areas classified

under subpart 1, the Court left open the

door that EPA may be able to justify

such action in the future. Accordingly,

EPA is revising the table in

§ 93.153(c)(1) to ensure that the General

Conformity requirements would apply

to any area placed in the subpart 1 in

the future by changing the classification

from "Marginal and moderate nonattainment areas inside an ozone

transport region" to "other nonattainment areas inside an ozone

transport region."

4. The EPA is adding a new subparagraph (xxii) to § 93.153(c)(2) to

clarify the exemptions for aircraft

emissions above the mixing height for

the area. Specifically, EPA is exempting

aircraft emissions above the mixing

height identified in the applicable SIP,

TIP or FIP. Where the SIP does not

contain a specific mixing height, EPA is

establishing a default mixing height of

3000 feet AGL. In the January 2008

proposal, EPA had proposed to exempt

all aircraft emissions above 3000 feet

AGL.

Comment: Several commenters

representing State and local air quality

agencies objected to excluding the

emissions from aircraft above 3000 feet

above ground level. They noted that the

mixing height varies and can be as high

as 4,500 feet AGL during the ozone

season and that pollutants emitted at

middle and high altitudes can travel

long distances. They also noted that

pollution levels were below predicted

levels following September 12, 2001

when aircraft were grounded.

Other commenters representing the

airports and the airline industry

supported the exemption emission from

aircraft above 3000 feet AGL. They

noted that the FAA study supports the

conclusion that aircraft operations at or

above 3,000 feet AGL have a minimal

effect on ground level pollutant

concentrations. The commenters also

noted that flights over almost all major

U.S. airports must be at least 7000 feet

AGL; therefore, any commercial aircraft

operating at 3000 feet would most likely

either be landing or taking off. The

commenters also noted that the FAA

study concluded that any increase in

ground level concentrations of CO and

hydrocarbon (HC) due to mixing was

negligible.

A Federal agency commenter believes

that the exemption for air traffic control

activities should not be restricted by

altitude. The commenter noted that the

proposal for exempting aircraft

operations above 3,000 feet AGL is

much narrower than what was

presented in the preamble to the 1993

General Conformity rule as an example

of an action that is exempt from the

General Conformity requirements-"air

traffic control activities and adopting

approach, departure and enroute

procedures for air operations."

Response: EPA agrees that the aircraft

emissions above the mixing height do

not significantly affect ground level

concentrations and acknowledges that

the mixing height can vary from one

area to another. Accordingly, in those

areas where the applicable SIP or TIP

specifies a mixing height, EPA is

requiring the specified mixing height to

be used. However, in those areas where

the SIP or TIP does not specify a mixing

height, EPA is allowing the Federal

agencies to use 3,000 feet AGL as a

default mixing height. This conclusion

is supported by the FAA study. In

addition, 3,000 feet AGL is commonly

used as an estimate of the average

maximum afternoon mixing height

across the country and most air quality

models use 3,000 feet AGL as the

default mixing height. However, we also

note that the FAA study showed that

some areas have mixing heights lower

than 3,000 feet AGL, so we have added

regulatory language to sub-paragraph

(xxii) to allow Federal agencies to use a

different mixing height if they can

demonstrate that emissions at and above

that height are de minimis. As a general

matter, it is in the reasoned discretion

of the Federal agency to decide which

methods and analysis it will use when

determining whether this exemption or

any other provision applies to the

emissions from its activity, including

making an applicability determination

under section 93.153(b), finding

emissions result in no increase under

section 93.153(c)(2), or concluding

emissions are presumed to conform

under section 93.153(f).

5. The EPA is revising paragraph

(d)(1) of § 93.153 to exempt emissions

covered by a NSR permit for minor

sources. The 1993 regulations exempt

emissions covered by a NSR permit for

major sources but not for minor sources.

EPA concluded at that time that the

purposes of the General Conformity

review would be adequately met by the

major source NSR review, and that

additional review would not be

necessary. The EPA now believes that

minor source NSR provides similar

review, and that 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.

Accordingly, we are revising

§ 93.153(d)(1) to also exempt emissions

covered by minor source NSR permits

issued pursuant to the general

permitting authority provided by

section 110(a)(2)(c) of the CAA.

Comment: The majority of

commenters agreed with the proposal to

exempt stationary sources permitted

under the NSR program. They believed

the review to be redundant and

unnecessary.

Some commenters disagreed with

exempting minor sources. One

commenter thought that EPA should not

exempt activities with emissions less

than the major source threshold from

conformity review unless some basis

can be established that the cumulative

emissions from such sources are truly

de minimis with respect to the statutory

conformity tests. The commenter

suggests that EPA substitute a SIP-based

program for establishing a budget for

minor sources in place of the regionally

significant threshold. Several

commenters suggested that only NSR

permits which require offsets or are

offset on a programmatic basis should

be exempt from conformity. A few

commenters thought that, if EPA

exempts minor sources for the

conformity evaluation, it must first

clearly demonstrate that such

exemptions will not impede States'

ability to attain any standard.

Response: The EPA agrees that

requiring a conformity analysis for

emission covered by a minor source

NSR permit would be redundant and

provide little environmental benefit.

EPA believes that the permitting

authority has the responsibility to

ensure that the source will not interfere

with the SIP or otherwise interfere with

the State's ability to attain the

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standards. Minor source NSR permits

are issued under a SIP-approved

program, so there has already been a

determination that the permitting

program will not contribute to a

violation of the NAAQS or delay the

attainment or maintenance of the

standards. Thus, by issuing a specific

permit under that program, the

authority is stating that the emissions

are accounted for in the SIP, effectively

providing the same assurances as a

conformity determination since Federal

agencies can demonstrate conformity for

an action by showing that the actions

will not cause a violation or interfere

with the SIP.

6. The EPA is deleting "or natural

disasters such as hurricanes,

earthquakes, etc.," and "or disaster" from

paragraph (d)(2) of § 93.153 because

they are unnecessary words. In § 93.152

EPA defines an emergency; therefore the

words in § 93.153 describing an "emergency" are not necessary and may

be confusing since they do not include

all types of emergencies.

7. The EPA is amending 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, military mobilization, or other

situations (such as wildfire responses)

that an agency determines fit within the

definition of emergency found in

§ 93.152, may find it impractical to

conduct a conformity evaluation on the

action before it must take the action. To

address this situation, 40 CFR

93.153(d)(2) of the 1993 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 amending

§ 93.153(e) to allow the agencies to

extend the exemption for another 6

months. This section requires Federal

agencies to make a written

determination that it is impractical to

conduct an evaluation for the action.

The 1993 regulations were not clear

about the number of additional

extensions permitted under § 93.153(e)

nor do those regulations provide any

procedures for agencies to follow in

deciding on the extension.

The EPA is not revising requirements

for the initial exemption for actions in

response to emergencies. The initial

governmental actions that are typically

commenced within hours or days in

response to emergencies or disasters

would still be exempt from the General

Conformity requirements for 6 months

after the commencement of the response

to the emergency or disaster. However,

EPA is adding requirements for Federal

agencies that want to extend the

exemption beyond the initial 6-month

period. First, EPA is requiring the

Federal agencies to allow EPA and the

State 15 days to review and provide

comments on the draft written

determination to extend the exemption

at the beginning of the extension period.

Next, EPA is requiring Federal agencies

to publish a notice within 30 days of

making the extension decision. The

notice must be published in a daily

general circulation newspaper for the

affected area. Finally, EPA is limiting

the maximum number of 6-month

extensions an agency may declare

without additional documentation on

their own to three. Thereafter, the

revisions require that the agency must

provide additional information

concerning the emergency conditions to

EPA and the State or Tribe.

8. The EPA is revising paragraphs (f),

(g), and (h) of § 93.153 to provide

Federal agencies clear guidance 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 adding

wording to paragraph (f) to specify

when and how more than one "presumed to conform" exception may

be taken for a Federal action; adding a

new paragraph (g)(3) to specify that

Federal agencies can list actions that are

for individual areas or SIPs or TIPs;

adding a sentence to paragraph (h)(1) to

specify the information that must be

included in the documentation; and

adding a sentence to paragraph (h)(2) to

allow the Federal agencies to notify EPA

headquarters when the "presumed to

conform" actions would have multiregional or national impacts. In

addition, EPA is revising paragraphs (f)

and (h) to include a reference to the new

paragraph (g)(3).

In promulgating the existing

regulations, EPA allowed 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" with applicable SIPs and TIPs.

Under the 1993 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.

The EPA is adding sub-paragraph

(g)(3) to clarify that a presumption could

apply to 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 in that area 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 activity emissions that

are specific to a facility.

9. The EPA is deleting 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." 40 CFR 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.

Comment: Some commenters

supported deletion of the regionally

significant provision noting that it is

unnecessary, not helpful in determining

whether a Federal action will conform

to the SIP, and is an administrative

burden. Other commenters believed that

the provision should be retained or

strengthened or a more appropriate

percentage of the area's inventory be

used for the test. Some commenters also

pointed out that in light of the new

PM 2.5 and 8-hour ozone standards,

certain Federal projects might become

"regionally significant" in the near

future.

Response: EPA agrees that the

determination of whether actions with

emissions below the de minimis

emission levels are regionally

significant has been a burden to some

Federal agencies with little or no

environmental benefit. Analysis

discussed in the proposal showed that

the emission inventory for most

nonattainment and maintenance areas

well exceeded the ten times the de

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minimis emission levels for the area,

such that no emissions could actually be

regionally significant. Although several

commenters question whether the

regionally significant test might be

important for the new PM 2.

5 and 8-hour

ozone standards, they presented no

information to show that the de minimis

emission levels would exceed 10

percent of the inventory for potential

nonattainment areas for those standards.

10. In a revised paragraph (i) of

§ 93.153, EPA allows 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 facilitywide emission budget concept is found

in § 93.161.

11. Also in § 93.153(i), EPA identified

emissions from a prescribed fire

conducted under an approved smoke

management program as "presumed to

conform." In the January 2008 proposal,

EPA asked for comments on two options

for allowing a presumption of

conformity for prescription fires. Option

1 would have allowed Federal agencies

to presume that the emissions from

prescribed burns will conform provided

the burning is conducted under a State

certified approved SMP or an equivalent

replacement EPA policy. Option 2

would have also allowed Federal

agencies, in the absence of a certified

SMP, to presume that emissions from

prescribed burns will conform provided

they obtain written permission from the

State and use BSMP.

Comment: The EPA received many

comments in support of the second

option, which allows Federal agencies

to determine, in absence of a certified

SMP, that prescription fires conducted

using BSMP are considered "presumed

to conform" to the SIP. Some

commenters noted that to be consistent

with the "Treatment of Data Influenced

by Exceptional Events" rule (72 FR

13559, March 22, 2007), if the State does

not certify a SMP, the exemption should

be for burns using State approved

BSMP. Many commenters also

supported the first option, noting that it

was reasonable to assume that any

action conducted in compliance with

the certified SMP would be in

compliance with the SIP. One

commenter thought that the

presumption of conformity for burns

conducted under BSMP is not

acceptable because BSMP are in no way

connected to air quality and will not

ensure that resulting emissions from a

prescribed burn would conform to the

SIP. This commenter also noted that the

use of SMP may be acceptable, but EPA

has not yet issued its final wildland fire

policy. Another commenter suggested

that if prescribed burns under certified

SMP or a BSMP are "presumed to

conform," there needs to be a simple

way to flag the data from affected

monitors. Numerous commenters

recommended that the definition of

emergency include wildfires.

Response: After considering the

various practices and the comments

received, the EPA believes option 1

presented in the proposed rule is more

protective of the air quality than option

2. However, we also recognize that

prescribed fires employing BSMPs may

be able to meet a presumption of

conformity if such a presumption is

established by an agency following the

requirements of 93.153(g) or by a State

following the requirements of 51.851(f).

Under option 1, prescribed fires

conducted in compliance with a SMP

are "presumed to conform." The purpose

of an SMP is to mitigate nuisance smoke

and public safety hazards, prevent

NAAQS violations, protect public

health, and address visibility impacts in

Class I areas. EPA also notes that SMPs

establish procedures and requirements

for minimizing emissions. EPA

recognizes that prescribed burns

employing BSMPs may be as protective

of air quality in areas where no SMP

exists. BSMPs can be connected to air

quality and may protect air quality as

outlined in the "Treatment of Data

Influenced by Exceptional Events" rule.

In order to assure the adequacy of the

BSMPs to meet the legal requirements of

the General Conformity program as

outlined in section 176, Federal agency

developed BSMPs must be publicly and

State reviewed as part of a presumed to

conform action under section 93.153(g)

or 51.851(f) of these regulations to

establish such a presumption. Because

the EPA chose not to require the

certification of the SMP under the final

"Treatment of Data Influenced by

Exceptional Events" rule, EPA is also

removing the term "certified" from this

final General Conformity Rule. Finally,

EPA has identified wildfire response as

an example of an emergency event that

may be exempt from General

Conformity requirements under 93.153

(d)(2) and (e) if that agency determines

it fits within the definition of emergency

found in § 93.152.

12. As discussed above, EPA also

added a provision in § 93.153(i) to allow

a State or Tribe to adopt in their SIP or

TIP a list of actions it "presumes to

conform."

13. The EPA is revising 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 1993 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 deleted the regionally

significant test, therefore reference to it

is has been deleted from this paragraph.

For clarity, instead of referring to subparagraph (g)(1), EPA is repeating the

requirements in this paragraph.

14. The EPA is revising 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,

Congress added section 176(c)(6) to the

CAA to allow for a conformity grace

period for newly designated

nonattainment areas (Pub. L. 106-377).

That section establishes a 1-year grace

period following the effective date of the

final nonattainment designation for each

new or revised NAAQS 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 defining the

term to mean that a Federal agency takes

an action when it signs a permit,

license, grant or contract or otherwise

physically 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 revising the title of this

section to clarify the purpose of the

section. In the 1993 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 revising the title

of the section to more closely describe

the section's content.

2. The EPA is adding language to this

section to specifically state that the

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conformity determination must meet the

requirements of this subpart.

G. 40 CFR 93.155-Reporting

Requirements

1. Since EPA is adding additional

sections to subpart B, it is revising the

references to those sections in § 93.155.

2. Consistent with EPA's Tribal

Authority Rule (63 FR 7253), EPA is

providing federally-recognized Indian

tribal governments the same

opportunity to comment on draft

conformity determinations as given to

States. Therefore, EPA is requiring the

Federal agencies to notify all the

federally-recognized Indian tribal

governments in the nonattainment or

maintenance area.

3. The EPA is adding an alternative

procedure for notifying EPA when the

action would result in emissions

originating in nonattainment or

maintenance areas in three or more EPA

regions. Specifically, EPA is allowing

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 10

regional Offices. This final notification

provision also corrects an inconsistency

between the proposed rule preamble

and the proposed regulation, which

stated that the EPA Office of Air Quality

Planning and Standards could be

contacted when the action would result

in emissions originating in

nonattainment or maintenance areas in

two or more EPA regions.

4. The EPA is adding a new paragraph

to § 93.155 to describe how restricted

information used to support conformity

determinations should be handled when

provided to EPA, States and Tribal

governments. The 1993 General

Conformity Regulations do not contain

an explicit statement about protecting

restricted information from public

release. The interagency review and

public participation provisions in the

1993 regulations require Federal

agencies to make available for review

the draft conformity determination with

supporting materials that 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). In

addition, certain unclassified

information is privileged or otherwise

protected from disclosure. Therefore,

several Federal agencies wanted to

ensure that the General Conformity

Regulations clearly state that no agency

or individual was required to release

restricted information including, but not

limited to, classified materials.

Therefore, EPA is revising the regulation

to add explicit language concerning the

protection of restricted information. In

addition, conformity determinations

could, in part, be based upon restricted

information. The EPA is adding specific

language to the regulation to protect

restricted information in accordance

with each Federal agency's policy and

regulations for the handling of restricted

information. The regulations would

allow State or EPA personnel with the

appropriate clearances to be able to

view the restricted information.

H. 40 CFR 93.156-Public Participation

1. The EPA is correcting the section

referenced in § 93.156. The 1993

regulations refer 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 providing an alternative

public notification procedure for actions

that cause emissions above the de

minimis levels in three or more EPA

regions. This corrects a mistake made in

the proposed rule preamble that stated,

"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." In

addition, this corrects an inconsistency

with the proposed regulation, which

stated that the alternative public

notification procedure is for actions that

have multi-regional or national impacts

in two or more regions. The 1993

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 affect a large

number of nonattainment and

maintenance areas. The notification

procedure for such an action could be

burdensome and inefficient. Therefore,

EPA is amending the rules to allow the

Federal agencies to publish a notice in

the Federal Register if the action would

cause emissions above the de minimis

levels in three or more nonattainment or

maintenance areas.

3. The EPA is adding a new paragraph

to § 93.156 to describe how restricted

information and CBI used to support

conformity determinations should be

handled in providing the information to

the public.

L 40 CFR 93.157-Re-Evaluation of

Conformity

1. The EPA is revising the title of this

section to more appropriately describe

the section's content. The 1993

regulations 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 to use in determining if

reevaluation is required. The EPA is

making 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, a record of

decision (ROD) for an environmental

impact statement, or a record of a

categorical exclusion, can be used when

a conformity determination is not

required.

3. The EPA is adding a new paragraph

(d) 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

original determination, the Federal

agency had to demonstrate that all the

emissions caused by the initial action

conformed to the SIP. Since conformity

determinations are only needed for

emissions that exceed the de minimis

levels, EPA has clarified in the rule that

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 (d) also 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 determined

to be de minimis and not fully evaluated

to determine conformity, EPA is

requiring Federal agencies to conduct a

conformity determination for the

modified action if the total emissions

(the emissions from the unmodified

action plus the increased emissions

resulting from the modification) equal

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or exceed the de minimis levels for the

area. Thus, in both situations, all

emissions that exceed de minimis levels

are evaluated for conformity impacts,

either initially or after modification.

J. 40 CFR 93.158-Criteria for

Determining Conformity for General

Federal Actions

1. In § 93.158(a)(1), EPA is adding "or

precursor" after "any criteria pollutant"

to clarify that Federal agencies must

demonstrate conformity for the

precursors of the criteria pollutants if

the precursor emissions are specifically

identified and accounted for in the

applicable SIP, TIP or FIP.

2. In § 93.158(a)(2) and (a)(5)(iii), EPA

is allowing 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. The

regulation requires such emissions

offsets to be obtained through either an

approved SIP revision or an equally

enforceable commitment.

Comment: Commenters representing

Federal agencies, industry groups and

some State air quality agencies

supported the provision to allow offsets

from nearby nonattainment or

maintenance areas. Some of these

commenters suggested that additional

limits could be imposed on the use of

the out-of-area offsets. Several

commenters representing State air

quality agencies opposed the allowing

of offsets from other areas. The

commenters noted that EPA regulations

and Federal court rulings limit the area

from which emissions reductions can be

creditable for attainment

demonstrations. They also opposed

allowing offsets because conformity

generally applies to mobile source

emissions that are different from

stationary source emissions covered by

NSR.

Response: The EPA agrees that offsets

should be allowed in nearby

nonattainment areas in the same manner

as they are allowed under the NSR

program. We agree with the commenter

that EPA regulations and judicial

rulings place limits on the area from

which emissions reductions can be

creditable for attainment

demonstrations. The intent of those

limits is to ensure that the emissions

from the nearby nonattainment area

contribute to the violations, or have

contributed to violations in the past, in

the area in which the Federal action

takes place. This is consistent with the

overall revisions to this regulation.

Therefore, we are also recommending

that Federal agencies show that they

have met the requirements of

§ 93.158(a)(2)-that the emission offsets

originate from an area that contributes

to the violations, or have contributed to

violations in the past, in the areas with

the Federal action-by using the same

techniques EPA has approved by rule or

guidance for demonstrating contributing

emissions in other SIP-related

determinations, such as Reasonable

Further Progress, Rate of Progress, or

Attainment Demonstrations for a

particular pollutant or pollutant

precursor. By limiting the offsets to

areas that contribute or have contributed

to the nonattainment, EPA is narrowing

the potential offsets to areas that will

result in a benefit to the nonattainment

or maintenance area in which the

Federal action will take place.

3. In § 93.158(a)(2), (a)(3) and (a)(4),

EPA is revising 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 project level impact of

individual precursor sources of ozone or

PM 2.

5 . Therefore, EPA is allowing

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 for purposes of

identifying available tests to

demonstrate conformity.

4. In § 93.158(a)(3) and (5), EPA is

correcting two typographical errors. In

sub-paragraph (3), EPA is correcting "meet" to "meets" and in sub-paragraph

(5), EPA is changing "paragraph

(a)(30)(11)" to "paragraph (a)(3)(ii)."

5. In § 93.158(a)(5)(iv)(A)(1), EPA is

deleting the reference to the year 1990

and replacing it with a generic reference

to the most current calendar year with

a complete emission inventory available

before an area is designated unless EPA

sets another year. 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

1993 regulations, all the designations

were based on a 1990 date. Since EPA

promulgated the conformity regulations,

it has promulgated new 8-hour ozone

and PM 2.

5 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

General Conformity regulations to

address these new designations and any

future designations through

identification of appropriate inventory

levels. In addition, including the option

to allow EPA to set another year for the

baseline allows EPA and other Federal

agencies to work together to determine

if another baseline may be appropriate

for determining conformity of a

particular action, such as determining

that an agency can rely on one specific

baseline year for an action subject to

both the general and transportation

conformity regulations when those

regulations otherwise indicate

application of two different baseline

years.

6. Also in § 93.158(a)(5)(i), EPA is

revising the paragraph to allow Federal

agencies to make conformity

determinations 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 1993 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 postdesignation 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 from the Federal action, and

if necessary require additional controls

on the sources as necessary to meet air

quality needs.

7. The EPA is revising

§ 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 1993 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

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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 revision to § 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 will

submit a SIP revision that includes 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 covering the relevant

time period.

8. The EPA is revising

§ 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 setting the

baseline year as the most current

calendar year with a complete emission

inventory available before an area is

designated unless EPA sets another

year. As noted above, including the

option to allow EPA to set another year

for the baseline allows EPA and other

Federal agencies to work together to

determine if another baseline may be

appropriate for determining conformity

of a particular action.

Finally, EPA is deleting another

alternate baseline year that no longer is

applicable in PM-10 areas. Specifically,

EPA is deleting in

§ 93.158(a)(5)(iv)(A)(3) the use of the

"year of the baseline inventory in the

PM-10 applicable SIP." EPA believes

that the deletion of this outdated

baseline year should not affect current

General Conformity determinations in

PM-10 nonattainment and maintenance

areas.

K. 40 CFR 93.159-Procedures for

Conformity Determinations for General

Federal Actions

1. EPA is changing § 93.159(b)(1)(ii) to

address when new motor vehicle

emissions factors models are used in

General Conformity determinations.

EPA is clarifying that the grace period

before such new models are used will be

3 months from EPA's model release,

unless a longer grace period is

announced in the Federal Register. This

is more consistent with 40 CFR 93.111

of the transportation conformity rule

that allows grace periods for new motor

vehicle emissions factor models to be

between 3-24 months.

2. The EPA is revising § 93.159(b)(2)

and (c) to update the reference to the

Compilation of Air Pollutant Emission

Factors and the Guideline on Air

Quality Modeling. EPA has released

updated versions of these documents

since it promulgated the existing

regulations in 1993.

3. The EPA is revising paragraph

(d)(1) to clarify that analysis is first

required for the attainment year

specified in the SIP. In some cases, such

as SIPs for marginal ozone areas, an

attainment demonstration date was not

required in the SIP. Therefore, EPA is

requiring that if the SIP or TIP does not

specify an attainment demonstration

year then the analysis is conducted for

the latest attainment year possible under

the CAA. 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 if specified in the SIP

would be the appropriate year for the

conformity analysis.

4. The EPA is making a minor

wording revision to paragraph (d)(2) to

clarify the paragraph. The EPA is

replacing 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. 40 CFR 93.160-Mitigation of Air

Quality Impacts

The EPA is revising 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

that those commitments must be

fulfilled. EPA is adding text to state that

those commitments must be fulfilled to

clearly provide for enforcement of those

commitments under the Federal

regulations.

M. 40 CFR 93.161-Conformity

Evaluations for Installations With

Facility-Wide Emission Budget

The EPA is adding a new section to

the regulations to facilitate the use of a

facility-wide emission budget in

evaluating conformity. Although the

existing regulations do not preclude

States and Federal agencies from using

this approach, the regulations do not

specifically authorize its use. This

section for developing such a budget

would be in conjunction with a new

§ 93.153(i)(1), which provides a

mechanism for demonstrating that the

emissions are in conformance with the

SIP or TIP. This approach allows States

or Tribes and Federal agencies to

identify acceptable levels of emissions

from the facility for inclusion in the SIP

before starting the environmental review

for the actions and thereby expedite the

review of the Federal actions at the

facilities that do not exceed the

emission levels.

The EPA believes that this provision

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 development and use of a facilitywide emission budget would be

voluntary on the part of the Federal

agency, 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, and adoption

of that budget into a SIP or TIP would

demonstrate that the area could meet its

air quality obligations with the

identified emission budget.

Comment: The majority of

commenters supported the concept of

the facility-wide emission budget

approach with the appropriate

consultation and input from the States.

Many noted that it will not interfere

with attainment of the NAAQS.

However, some commenters

disapproved of the budget approach and

expressed concern about a Federal

agency/airport being allowed to

establish their own budget without

having to do additional analysis.

While generally agreeing with the

approach, many commenters asked EPA

for clarifications. Several commenters

asked for clarification in the final rule

that this is voluntary for both the

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Federal agency and the States and the

States can opt to use the existing

General Conformity approach. In

addition, some commenters asked EPA

to include provisions requiring such

measures as periodic reporting of

emissions, anti-backsliding, and a

requirement to obtain offsets if the

budget is exceeded. Another commenter

requested that on-site pollution

prevention projects be required to occur

contemporaneously with any proposed

emission changes at the facility. Many

commenters requested that EPA clarify

the applicability of this provision to

non-Federal facilities (e.g., airports).

Response: The EPA agrees with most

of the commenters that the facility-wide

emissions budget approach will not

interfere with attainment of the NAAQS

and will provide flexibility to the

facilities in meeting the General

Conformity requirements. EPA believes

that this approach benefits both the air

regulatory agencies and the regulated

facilities. State air quality agencies

would benefit by having better emission

estimates, including growth estimates

from the installation and Federal

agencies would benefit by having the

General Conformity process

streamlined, reducing the amount of

time it takes to demonstrate conformity.

EPA is clarifying in the final rule that

this approach is completely voluntary

by both the State and the Federal

agency. If the State or Tribe agrees to

allow the facility to use the emission

budget approach, it must ensure that the

budget that it approves meets all

applicable air quality requirements such

as attainment deadlines and reasonable

further progress milestones. Thus, in

developing and approving such budgets,

we encourage the facilities and the State

or Tribe to consult with other agencies

or authorities as may be appropriate. For

example, we encourage consultation

with the local MPO if a facility-wide

emissions budget includes on-road

mobile emissions that might also be

included in an MPO's regional

emissions analysis.

While the State or Tribe must approve

a facility-wide budget into the SIP or

TIP, once they have done so they cannot

compel an agency to demonstrate

conformity with another approach if the

Federal agency chooses to show

conformity with the approved facilitywide emission budget. Federal agencies

may use any approach to demonstrate

conformity provided for in the rule.

Facilities that are not federally

controlled or operated, but are subject to

Federal approvals, permits or funding

(such as airports and seaports) may

work with the State to establish facilitywide emissions budget that can be used

by a Federal agency to satisfy its General

Conformity responsibilities. The

approval by the State of a facility-wide

emissions budget into the SIP does not

relieve the State of any obligation to

meet any SIP or CAA requirements,

milestones or deadlines.

N. 40 CFR 93.162-Emissions Beyond

the Time Period Covered by the

Applicable SIP or TIP

The EPA is adding 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 allowing 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 provide an enforceable

commitment to include the emissions

from the Federal action in a current or

future SIP or TIP emissions budget. In

such a case, the State or Tribe would be

required to submit a SIP revision within

18 months to either include the

emissions in the current SIP or TIP or

a commitment to account for the

emissions in future SIPs or TIPs. The

emissions included in the future SIP

should be based on the latest planning

assumptions at the time of the SIP

revision. Although a State is committing

to include the emissions in the

emissions budget for the SIP revisions,

this commitment does not prevent the

State from requiring the use for the

affected sources of reasonably available

control technology (RACT), reasonably

available control measures (RACM) or

any other control measures within the

State's authority to ensure timely

attainment of the NAAQS.

0. 40 CFR 93.163-Timing of Offsets

and Mitigation Measures

Mitigation measures and offsets are

used to reduce the impact of emission

increases from a project or action. To

alleviate 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 has decided to include

this interpretation in the regulations.

The EPA is adding 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 new section would allow, under

special conditions and consistent with

CAA requirements, the State or Tribe to

approve other schedules for offsets or

mitigation measures. EPA is requiring

that emissions reductions used over an

alternate schedule must be consistent

with statutory requirements that new

violations are not created, the frequency

or severity of existing violations are not

increased, and timely attainment or

interim milestones are not delayed.

Therefore, when a State or Tribe

approves an alternative schedule for

emissions reductions, it is assuring that

the increased emissions that occur

during the period of the Federal action

do not violate any of the three Clean Air

Act requirements described above.

To ensure that these noncontemporaneous emission reductions

provide greater environmental benefits

in the long term, EPA is requiring that

the offset or mitigation ratios for

alternative schedules be greater than

one-for-one. Therefore, EPA is requiring

a ratio that is no less than the applicable

NSR offset ratios for the area. These

ratios are readily available and already

understood to be based on the severity

of the nonattainment problem for the

area.

Also, EPA believes that the mitigation

or offset compensation period should

not last indefinitely and is requiring that

the period should not exceed two times

the period of the under-mitigated

emissions. For example, a Federal

agency may be supporting 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).

Agreeing to allow the use of offsets or

mitigation measures in later years does

not exempt the State or Tribe from

timely 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.

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Comment: Several commenters

representing Federal agencies, industry

and airports supported the flexibility in

the timing of offsets and mitigation

measures. The commenters believe that

EPA needs to clarify what entity would

determine whether the alternative time

period for mitigation would trigger the

three statutory factors for conformity

and how such entity would do so. One

commenter recommended that the State

or tribal agency responsible for the SIP

be the appropriate entity. Another

commenter requested that EPA clarify

the use of emission reduction credits in

such cases. In addition, a commenter

urges EPA to reduce the offset ratios to

no more than 1.2:1 in extreme

nonattainment areas and to provide a

fixed period of time for completing the

emissions reductions recommending a

5-year compensation period to be

included in the rule.

Some commenters representing State

and local air quality agencies objected to

the alternate schedule provision for

offsets. The commenters believe that

mitigation measures and offsets must be

contemporaneous and occur in the same

calendar year as the emission increases.

If EPA adopts the provision, the

commenters suggested additional

limitation on the use of the alternative

schedule, such as a 3-year maximum

time limit for the schedule and

requiring more than a one-for-one offset.

Response: The EPA believes the rule

should be finalized as proposed. This

will allow Federal agencies to work

with States or Tribes to develop an

alternative schedule for the emission

reductions in cases where a greater

environmental benefit can be obtained.

The requirement for the additional

reductions to meet the ratios in the

regulations ensures that the area is

receiving at least a minimum

environmental benefit consistent with

other CAA programs. Since State or

tribal approval is required for the

alternative schedule, those agencies

have the ability to ensure that the

alternative schedule not cause or

contribute to a violation of the SIP or

TIP. In addition, EPA has added

additional wording to clarify that the

State or Tribe is not compelled to

approve a proposed alternate schedule

for mitigation measures.

P. 40 CFR 93.164-Inter-Precursor

Offsets and Mitigation Measures

The EPA is adding a new section to

the regulations to allow the use of interprecursor 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 and an appropriate ratio of

precursor reductions has been

established. The 1993 General

Conformity regulations do not

specifically allow or prohibit interprecursor offsets and mitigation

measures. Therefore, EPA is revising the

regulations to allow such offsets or

mitigation measures if they are allowed

by a State or tribal 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.

Comments: Commenters from a wide

range of affiliations supported the

provision for inter-precursor offsets

with some conditions. The commenters

suggested that offsets should be allowed

only with adequate technical support

and appropriate ratios for interpollutant mitigation. Others thought

EPA should provide a guidance

document on what States may consider

as reasonable tradeoffs and procedures

for evaluating such tradeoffs at the same

time as the final rule publication. Many

believed the provisions should only be

implemented with the full involvement

and approval of the State, local or tribal

air quality agency. Some commenters

representing State air quality agencies

objected to the provision for interprecursor offsets but gave no reason for

the objection.

Response: The EPA believes that

allowing inter-precursor offsets will

allow facilities flexibility in meeting the

General Conformity requirements and

agrees to change the regulations to allow

for the trading of inter-precursor

emissions only if two conditions are

met. First, such trades must be allowed

by the State or Tribe in a SIP or TIP. The

State must already allow for interprecursor offsets or trading through a

SIP-approved NSR program,

transportation conformity program, or in

the attainment or reasonable further

progress (RFP) demonstration to ensure

conformance with a SIP or a TIP.

Second, the trade must be technically

justified and have demonstrated

environmental benefits. This technical

justification and demonstration should

be accomplished by showing that the

precursors are area specific and

appropriate ratios are identified in the

SIP. As needed, EPA will provide

guidance on tradeoffs and procedures

for evaluating such tradeoffs.

Q. 40 CFR 93.165-Early Emission

Reduction Credit Program

The EPA is adding 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 for future actions

subject to the General Conformity

requirements. To expedite the project

level conformity process, EPA believes

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, while at the

same time meeting the goals of the SIP

and TIP.

The EPA is adding a new section,

§ 93.165, to the General Conformity

Regulations to define the requirements

of this program. Under the program,

Federal agencies or project proponents

(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 RFP

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 approve the measure as

eligible to produce emission reduction

credits. If credits are issued, then a

Federal agency will be allowed to use

the credits to reduce the total of direct

and indirect emissions from a future

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 under this program.

In paragraph (a), EPA establishes the

ability for the State or Tribe and Federal

agency to create and use the emission

reduction credits.

In paragraph (b), EPA identifies the

criteria for creating the credits. The

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criteria are similar to the 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

precisely 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. However, the reductions must be

quantified before the credit is used to

support a conformity determination.

In paragraph (c), EPA establishes the

requirements for the use of the credits.

If the emission reduction credits are

created at the same facility and in the

same nonattainment or maintenance

area as the Federal action, the credits

can be used to reduce the total

emissions from the action. This may

allow the Federal agency to determine

the action conforms because the total

emissions are below the de minimis

levels for the area. If the strategy is not

implemented at the same facility but is

in the same nonattainment or

maintenance areas as the action, then

the credits can be used as offsets or

mitigation measures for the emissions

caused by the action, but not to

determine if the action emissions fall

below de minimis thresholds. In this

context, "same facility" means a

contiguous area that a Federal agency

manages or exercises control over.

Generally, all actions and operations

within a fence line of a facility such as

an airport would be considered to be at

the "same facility." However, military

operations at a civilian airport would

not be considered to be at the "same

facility." Therefore, 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 at

an airport terminal. Those reductions

could be considered to be implemented

as part of an airport expansion project

to improve the terminal and thus would

be at the "same facility."

Since the General Conformity

program is based on annual emissions,

EPA is requiring that the credits be used

in the same year as they are generated

under the program. Such a restriction

would ensure consistency with the

other parts of the General Conformity

program. This does not mean that an

emission reduction strategy cannot

produce an annual stream of credits, but

does mean that the reduction credits

cannot be carried over to another year.

Although the emission reduction credits

must meet the criteria for use of offsets

or other mitigation measures, EPA is not

allowing the credits to be combined

with other program areas such as the

alternate schedules for mitigation

measures under § 93.163 or the interprecursor mitigation offset program

under § 93.164. At this time, EPA

believes that, because of the newness of

the emission reduction credit program

and the lack of available

implementation data, it is better to take

a conservative approach on

implementing the program to ensure

that it can be effectively implemented

and evaluated.

Comment: Most commenters

supported EPA's proposal to allow the

use of emission reduction credits

(ERCs). One commenter thought that

EPA should clarify when the ERCs can

be used. Several commenters disagreed

with the proposal, citing concerns such

as violations of conformity, while

another was concerned about the

additional resources required to certify

the ERC and track them over time, and

avoidance of formal conformity

determinations. Still another commenter

thought that under § 93.165(b)(4) there

is no ability for States and the public to

enforce the measures relied upon to

generate emission reduction credits.

Response: The EPA believes that by

allowing early ERCs, Federal agencies

will be encouraged to develop emission

reduction programs before they are

needed as offsets for conformity

determinations. Since the emissions are

accounted for on an annual basis, the

unused credits would benefit the

environment. The emission reduction

programs could be implemented in

conjunction with the action requiring

the conformity determination.

Therefore, the use of ERC would not

encourage an agency to violate

conformity. In any event, under this

provision all Federal actions would

need applicable offsetting reductions by

the time the conformity determination

was made. EPA does not believe States

will be required to use more resources

since States and Tribes are only

required to verify the credits when they

are used in a conformity evaluation,

while the agency relying upon the

credits is required to document that

usage.

VII. Statutory and Executive Order

Reviews

A. Executive Order 12866: Regulatory

Planning and Review

Under Executive Order (EO) 12866

(58 FR 51735, October 4, 1993), this

action is a "significant regulatory action"

because it may interfere with actions

taken or planned by other Federal

agencies. Accordingly, EPA submitted

this action to the Office of Management

and Budget (OMB) for review under EO

12866 and any changes made in

response to OMB recommendations

have been documented in the docket for

this action.

B. Paperwork Reduction Act

This action does not 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 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 are not required

to implement such a program and

would be relieved of the burden of

conducting and reviewing some, if not

all, of the General Conformity

determinations for the facility if they do

so. States are not required to implement

a program that would increase their

burden, and we assume they would not

choose to do so.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

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

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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

this final rule 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.

After considering the economic

impact of this final rule on small

entities, I certify that this action will not

have a significant economic impact on

a substantial number of small entities.

This final rule will not impose any

significant requirements on small

entities, because the General Conformity

Regulations set requirements on Federal

agencies to show that their actions

conform to the appropriate State, tribal

or Federal implementation plan for

attaining clean air.

D. Unfunded Mandates Reform Act

This action contains no Federal

mandates under the provisions of Title

II of the Unfunded Mandates Reform

Act of 1995 (UMRA), 2 U.S.C. 1531-

1538 for State, local, or tribal

governments or the private sector. The

action imposes no enforceable duty on

any State, local or tribal governments or

the private sector. Therefore, this action

is not subject to the requirements of

section 202 and 205 of the UMRA.

This action is also not subject to the

requirements of section 203 of UMRA

because it contains no regulatory

requirements that might significantly or

uniquely affect small governments. The

General Conformity Regulations set

requirements on Federal agencies to

show that their actions conform to the

appropriate State, tribal or Federal

implementation plan for attaining clean

air.

E. Executive Order 13132-Federalism

This action does not have federalism

implications. It will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. The General

Conformity Regulations set

requirements on Federal agencies to

show that their actions conform to the

appropriate State, tribal or Federal

implementation plan for attaining clean

air. Thus, Executive Order 13132 does

not apply to this action.

F. Executive Order 13175-Consultation

and Coordination With Indian Tribal

Governments

This action does not have tribal

implications, as specified in Executive

Order 13175 (65 FR 67249, November 9,

2000). 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

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. Thus,

Executive Order 13175 does not apply

to this action.

G. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

EPA interprets EO 13045 (62 FR

19885, April 23, 1997) as applying only

to those regulatory actions that concern

health or safety risks, such that the

analysis required under section 5-501 of

the EO has the potential to influence the

regulation. This action is not subject to

EO 13045 because it does not establish

an environmental standard intended to

mitigate health or safety risks.

H. Executive Order 13211:Actions That

Significantly Affect Energy Supply,

Distribution, or Use

This action is not a "significant energy

action" as defined in Executive Order

13211 (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. The

General Conformity Regulations set

requirements on Federal agencies to

show that their actions conform to the

appropriate State, tribal or Federal

implementation plan for attaining clean

air. Further, we have concluded that

this rule is not likely to have any

adverse energy effects.

L National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (NTTAA), Public Law 104-

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

directs EPA to use voluntary consensus

standards (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 action does not involve technical

standards. Therefore, EPA did not

consider the use of any VCS.

J. Executive Order 12898: Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Populations

Executive Order (EO) 12898 (59 FR

7629, (Feb. 16, 1994)) establishes

Federal executive policy on

environmental justice. Its main

provision directs Federal agencies, to

the greatest extent practicable and

permitted by law, to make

environmental justice part of their

mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies, and activities on minority

populations and low-income

populations in the United States.

The EPA has determined that this

final rule will not have

disproportionately high and adverse

human health or environmental effects

on minority or low-income populations

because it does not affect the level of

protection provided to human health or

the environment. The revisions to the

regulations would revise procedures for

other Federal agencies to follow and

does not relax the progress toward

attainment and maintenance for the

NAAQS as required by individual SIPs

and TIPs 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.

K. Congressional Review Act

The Congressional Review Act, 5

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

Business Regulatory Enforcement

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Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

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

will be effective July 6, 2010.

VII. Statutory Authority

The statutory authority for this action

is provided by section 176(c) of the CAA

as amended (42 U.S.C. 7506).

List of Subjects

40 CFR Part 51

Environmental protection,

Administrative practice and procedures,

Air pollution control, Carbon monoxide,

Intergovernmental relations, Lead,

Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Sulfur dioxide, Volatile

organic compounds.

40 CFR Part 93

Environmental protection,

Administrative practice and procedures,

Air pollution control, Carbon monoxide,

Intergovernmental relations, Lead,

Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Sulfur dioxide, Volatile

organic compounds.

Dated: March 24, 2010.

Lisa P. Jackson,

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

m 1. The authority citation for part 51

continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401-

7671q.

Subpart W-[Amended]

§ 51.850 [Removed and Reserved]

* 2. Remove and reserve § 51.850.

* 3. Section 51.851 is revised to read as

follows:

§51.851 State implementation plan (SIP)

or Tribal implementation plan (TIP) revision.

(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 40 CFR

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 U.S.C.

7506).

(c) Following EPA approval of the

State or tribal conformity provisions (or

a portion thereof) in a revision to the

applicable SIP or TIP, conformity

determinations shall be governed by the

approved (or approved portion of) State

or tribal criteria and procedures. The

Federal conformity regulations

contained in 40 CFR part 93, subpart B

would apply only for the portion, if any,

of the part 93 requirements not

contained in the State or Tribe

conformity provisions approved by

EPA.

(d) The State or tribal conformity

implementation 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 timely attainment or

maintenance of the standard, meeting

the reasonable further progress

milestones or other requirements of the

Clean Air Act. Federal agencies can rely

on the list to determine that their

emissions conform with the applicable

SIP or TIP.

(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.

§§ 51.852 through 51.860 [Removed

and Reserved]

* 4. Remove and reserve §§ 51.852

through 51.860.

PART 93-DETERMINING

CONFORMITY OF FEDERAL ACTIONS

TO STATE TRIBAL OR FEDERAL

IMPLEMENTATION PLANS

5. The authority citation for part 93

continues to read as follows:

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

Subpart B-[Amended]

* 6. Section 93.150 is amended by

removing and reserving paragraph (c)

and by adding paragraph (e) to read as

follows:

§ 93.150 Prohibition.

(e) If an action would result in

emissions originating in more than one

nonattainment or maintenance area, the

conformity must be evaluated for each

area separately.

* 7. Section 93.151 is revised to read as

follows:

§93.151 State implementation plan (SIP)

revision.

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 General Conformity

SIP revision allowed under 40 CFR

51.851. When EPA approves a State's or

Tribe'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 or Tribe's criteria and

procedures. The Federal conformity

regulations contained in this subpart

apply only for the portions, if any, of the

part 93 requirements not contained in

the State or Tribe conformity provisions

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 or remove requirements.

* 8. Section 93.152 is amended as

follows:

m a. Adding in alphabetical order a

definition for "Applicability analysis."

* b. Revising the definition of

"Applicable implementation plan or

applicable SIP."

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m c. Revising the definition for

"Areawide air quality modeling

analysis."

* d. Adding the following definitions in

alphabetical order: "Confidential

business information (CBI),"

"Conformity determination,"

"Conformity evaluation," "Continuing

program responsibility," and

"Continuous program to implement."

* e. Revising the definition of "Direct

emissions."

* f. Adding in alphabetical order a

definition for "Emission inventory."

* g. Removing the definition for

"Emissions that a Federal agency has a

continuing program responsibility for."

* h. Revising the definition of "EPA."

* i. Revising the definition of "Indirect

Emissions."

* j. Revising the definition of "Local air

quality modeling analysis."

* k. Revising the definitions for

"Maintenance area" and "Metropolitan

Planning Organization (MPO)."

* 1. Adding in alphabetical order a

definition for "Mitigation measure.

mm. Revising the definition for

"National ambient air quality standards

(NAAQS)."

E n. In the definitions for "Precursors of

a criteria pollutant," revising paragraphs (3)(i), (3)(ii) and (3)(iii).

n o. Revising the definition for

"Reasonably foreseeable emissions."

* p. Removing the definition for

"Regionally significant action."

* q. Adding the following definitions:

"Restricted information."

E r. Adding in alphabetical order the

definitions for "Take or start the Federal

action" and "Tribal implementation plan

(TIP)."

The additions and revisions read as

follows:

§93.152 Definitions. * * * * *

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

multi-scale air quality (CMAQ)

modeling system. * * * * *

Confidential business information

(CBI) means 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 and 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

that is used to demonstrate 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 originate in a

nonattainment or maintenance area and

occur at the same time and place as the

action and are reasonably foreseeable. * * * * *

Emission Inventory means 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. * * * * *

Indirect emissions means those

emissions of a criteria pollutant or its

precursors:

(1) That are caused or initiated by the

Federal action and originate in the same

nonattainment or maintenance area but

occur at a different time or place as the

action;

(2) That are reasonably foreseeable;

(3) That the agency can practically

control; and

(4) For which the agency has

continuing program responsibility.

For the purposes of this definition,

even if a Federal licensing, rulemaking

or other approving action is a required

initial step for a subsequent activity that

causes emissions, such initial steps do

not mean that a Federal agency can

practically control any resulting

emissions.

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

roadways on a Federal facility, 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.

Metropolitan Planning Organization

(MPO) means the policy board of an

organization created as a result of the

designation process in 23 U.S.C. 134(d). * * * * *

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 2), lead (Pb),

nitrogen dioxide (NO2), ozone,

particulate matter (PM-10 and PM2.5),

and sulfur dioxide (SO 2). * * * * *

Precursors of a criteria pollutant are: * * * * *

(3) * * *

(i) Sulfur dioxide (SO 2) in all PM2.5

nonattainment and maintenance areas,

(ii) Nitrogen oxides in all PM2.5

nonattainment and maintenance areas

unless both the State and EPA

determine that it is not a significant

precursor, and

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(iii) Volatile organic compounds

(VOC) and ammonia (NH3) only in

PM2.5 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.

* * * * *

Restricted Information is information

that is privileged or that is otherwise

protected from disclosure pursuant to

applicable statutes, Executive Orders, or

regulations. Such information includes,

but is not limited to: Classified national

security information, protected critical

infrastructure information, sensitive

security information, and proprietary

business information.

Take or start the Federal action means

the date that the Federal agency signs or

approves the permit, license, grant or

contract or otherwise physically 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

and submitted by a federally recognized

Indian tribal government determined to

be eligible under 40 CFR 49.9 and the

plan has been approved by EPA.

* 9. Section 93.153 is amended as

follows:

m a. By revising the table in paragraph

(b)(1).

* b. By adding paragraph (c)(2)(xxii).

m c. By revising paragraphs (d)(1) and

(d)(2).

* d. By revising paragraph (e)(2).

m e. By adding paragraph (e)(3).

* f. By revising paragraph (f).

* g. By revising paragraph (g)

introductory text.

* h. By adding paragraph (g)(3).

* i. By revising paragraphs (h)

introductory text, (h)(1), (h)(2), and

(h)(4).

m j. By revising paragraphs (i), (j), and

(k).

§93.153 Applicability analysis. * * * * *

(i) * * *

Tons/year

Serious NAA's ...........................

Severe NAA's ............................

Extreme NAA's ..........................

Other ozone NAA's outside an

ozone transport region ..........

Other ozone NAA's inside an

ozone transport region:

V O C ..........................................

N O x ...........................................

Carbon monoxide: All NAA's ........

SO2 or NO2: All NAA's .................

PM-10:

Moderate NAA's ........................

Serious NAA's ...........................

PM2.

5 :

Direct emissions ........................

S 0 2 .................. . .... ..... ... ..... ........

NOx (unless determined not to

be significant precursors) ......

VOC or ammonia (if determined

to be significant precursors) ..

P b : A ll N A A 's ................................

(c) * * *

(2) * * *

(xxii) Air traffic control activities and

adopting approach, departure, and

enroute procedures for aircraft

operations above the mixing height

specified in the applicable SIP or TIP.

Where the applicable SIP or TIP does

not specify a mixing height, the Federal

agency can use the 3,000 feet above

ground level as a default mixing height,

unless the agency demonstrates that use

of a different mixing height is

appropriate because the change in

emissions at and above that height

caused by the Federal action is de

minimis.

(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 110(a)(2)(c) and

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 typically

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)* * *

(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)

Tons/year and/or air pollution control agencies,

and any Federal recognized Indian tribal

Ozone (VOC's or NOx):

17274

government in the nonattainment or

maintenance area. Those organizations

must be allowed 15 days from the

beginning of the extension period 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

in response to an emergency or disaster

under paragraph (d)(2) of this section

beyond the specified time period in

paragraph (e)(2) of this section, a

Federal agency can make a new written

determination as described in (e)(2) of

this section for as many 6-month

periods as needed, but in no case shall

this exemption extend beyond three 6-

month periods except where an agency:

(i) Provides information to EPA and

the State or Tribe stating that the

conditions that gave rise to the

emergency exemption continue to exist

and how such conditions effectively

prevent the agency from conducting a

conformity evaluation.

(ii) [Reserved]

(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.

Actions specified by individual Federal

agencies as "presumed to conform" may

not be used in combination with one

another when the total direct and

indirect emissions from the combination

of actions would equal or exceed any of

the rates specified in paragraphs (b)(1)

or (2) 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:

(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, local, or tribal air quality agencies

responsible for the SIP(s) or TIP(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.

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(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 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 of

action qualifies it for the presumption;

(2) The Federal agency must notify

the appropriate EPA Regional Office(s),

State, local, and tribal 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 paragraph (b) of this

section in more than one 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; * * * * *

(4) The Federal agency must publish

the final list of such activities in the

Federal Register.

(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 or Tribe 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 facilitywide emission budget.

(2) Prescribed fires conducted in

accordance with a smoke management

program (SMP) which meets the

requirements of EPA's Interim Air

Quality Policy on Wildland and

Prescribed Fires or an equivalent

replacement EPA policy.

(3) Emissions for actions that the State

or Tribe identifies in the EPA-approved

SIP or TIP 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:

(1) Cause or contribute to any new

violation of any standard in any area;

(2) Interfere with provisions in the

applicable SIP or TIP for maintenance of

any standard;

(3) Increase the frequency or severity

of any existing violation of any standard

in any area; or

(4) 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 or TIP for purposes

of:

(i) A demonstration of reasonable

further progress;

(ii) A demonstration of attainment; or

(iii) 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

final nonattainment designation for each

NAAQS and pollutant in accordance

with section 176(c)(6) of the Act.

* 10. Section 93.154 is revised to read

as follows:

§93.154 Federal agency conformity

responsibility.

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.

* 11. Section 93.155 is revised to read

as follows:

§93.155 Reporting requirements.

(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 multiregional 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

restricted information or confidential

business information. The disclosure of

restricted 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 restricted

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 restricted

information annex to the determination

for review by Federal and State

representatives who have received

appropriate clearances to review the

information.

* 12. Section 93.156 is revised to read

as follows:

§ 93.156 Public participation.

(a) Upon request by any person

regarding a specific Federal action, a

Federal agency must make available,

subject to the limitation in paragraph (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

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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.

(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.

(e) The draft and final conformity

determination shall exclude any

restricted information or confidential

business information. The disclosure of

restricted information and confidential

business information shall be controlled

by the applicable laws, regulations or

executive orders concerning the release

of such materials.

* 13. Section 93.157 is revised to read

as follows:

§93.157 Reevaluation of conformity.

(a) Once a conformity determination

is completed by a Federal agency, that

determination is not required to be reevaluated if the agency has maintained

a continuous program to implement the

action; the determination has not lapsed

as specified in paragraph (b) of this

section; or any modification to the

action does not result in an increase in

emissions above the levels specified in

§ 93.153(b). 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, a record of

decision (ROD) for an Environmental

Impact Statement, or a categorical

exclusion determination can be used as

a substitute date for the conformity

determination date.

(b) 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 commenced.

(c) 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.

(d) If the Federal agency originally

determined 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.

* 14. Section 93.158 is amended as

follows:

m a. Revising paragraphs (a)(1), (a)(2),

(a)(3) introductory text and (a)(4)

introductory text;

* b. Revising paragraph (a)(5)

introductory text;

m c. Revising paragraphs (a)(5)(i)

introductory text, and (a)(5)(i)(C);

* d. Adding paragraph (a)(5)(i)(D).

m e. Revising paragraphs (a)(5)(iii),

(a)(5)(iv) introductory text;

(a)(5)(iv)(A)(1), (a)(5)(iv)(A)(2) and

paragraph (a)(5)(iv)(B).

§93.158 Criteria for determining

conformity of general Federal actions.

(a) * * *

(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 or

in a facility-wide emission budget

included in a SIP in accordance with

§ 93.161;

(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

violations 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- * * * * *

(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 or Tribe makes a determination as

provided in paragraph (a)(5)(i)(A) of this

section or where the State or Tribe

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's or Tribe's commitment under

paragraph (a)(5)(i)(B) of this section and

the State has submitted a SIP or TIP to

EPA covering the time period during

which the emissions will occur or is

scheduled to submit such a SIP or TIP

within 18 months of the conformity

determination, the State commitment is

automatically deemed a call for a SIP or

TIP 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 or Tribe commits

to revise the applicable SIP;

(D) Where a Federal agency made a

conformity determination based on a

State or tribal commitment under

paragraph (a)(5)(i)(B) of this section and

the State or Tribe has not submitted a

SIP covering the time period when the

emissions will occur or is not scheduled

to submit such a SIP within 18 months

of the conformity determination, the

State or Tribe must, within 18 months,

submit to EPA a revision to the existing

SIP committing to include the emissions

in the future SIP revision.

(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

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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 most current calendar year

with a complete emission inventory

available before an area is designated

unless EPA sets another year; or

(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 • * * * *

* 15. Section 93.159 is amended as

follows:

* a. Revising paragraphs (b)

introductory text and (b)(1)(ii);

* b. Revising paragraphs (b)(2) and (c)

introductory text; and

m c. Revising paragraph (d).

The revisions and additions read as

follows:

§93.159 Procedures for conformity

determinations of general Federal actions. • * * * *

(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) * * *

(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 unless EPA announces a longer

grace period in the Federal Register.

Conformity analyses for which the

analysis was begun during the grace

period or no more than 3 months before

the Federal Register 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,

http://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 the 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). * * * * *

(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 latest attainment

year possible under the Act; 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.

* 16. Section 93.160 is amended as

follows:

* a. Revising paragraph (e);

* b. Revising paragraph (f); and

m c. Revising paragraph (g).

§ 93.160 Mitigation of air quality impacts. * * * * *

(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

such commitments must be fulfilled.

(g) After a State or Tribe revises its

SIP or TIP and EPA approves that SIP

revision, any agreements, including

mitigation measures, necessary for a

conformity determination will be both

State or tribal and federally enforceable.

Enforceability through the applicable

SIP or TIP will apply to all persons who

agree to mitigate direct and indirect

emissions associated with a Federal

action for a conformity determination.

* 17. Subpart B is amended by adding

§ 93.161 to read as follows:

§93.161 Conformity evaluation for Federal

installations with facility-wide emission

budgets.

(a) The State, local or tribal agency

responsible for implementing and

enforcing the SIP or TIP can in

cooperation with Federal agencies or

third parties authorized by the agency

that operate installations subject to

Federal oversight develop and adopt a

facility-wide emission budget to be used

for demonstrating conformity under

§ 93.158(a)(1). The facility-wide 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 facility-wide budget

developed and adopted in accordance

with paragraph (a) of this section can be

revised by following the requirements in

paragraph (a) of this section.

(c) Total direct and indirect emissions

from Federal actions in conjunction

with all other emissions subject to

General Conformity from the facility

that do not exceed the facility budget

adopted pursuant to paragraph (a) of

this section 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

subject to General Conformity from the

facility exceed the budget adopted

pursuant to paragraph (a) of this section,

the action must be evaluated for

conformity. A Federal agency can use

the compliance with the facility-wide

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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.

* 18. Subpart B is amended by adding

§ 93.162 to read as follows:

§93.162 Emissions beyond the time

period covered by the SIP.

If a Federal action would result in

total direct and indirect emissions above

the applicable thresholds 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 or Tribe to adopt

an emissions budget for the action for

inclusion in the SIP. The State or Tribe

must submit a SIP or TIP revision to

EPA within 18 months either including

the emissions in the existing SIP or

establishing an enforceable commitment

to include the emissions in future SIP

revisions based on the latest planning

assumptions at the time of the SIP

revision. No such commitment by a

State or Tribe shall restrict a State's or

Tribe's ability to require RACT, RACM

or any other control measures within

the State's or Tribe's authority to ensure

timely attainment of the NAAQS.

* 19. Subpart B is amended by adding

§ 193.163 to read as follows:

§93.163 Timing of offsets and mitigation

measures.

(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 or Tribe may approve

emissions 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 .1 5 :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 or Tribe

of an offset or mitigation measure with

emissions reductions in another year

does not relieve the State or Tribe of any

obligation to meet any SIP or Clean Air

Act milestone or deadline. The approval

of an alternate schedule for mitigation

measures is at the discretion of the State

or Tribe, and they are not required to

approve an alternate schedule.

* 20. Subpart B is amended by adding

§ 93.164 to read as follows:

§93.164 Inter-precursor mitigation

measures and offsets.

Federal agencies must reduce the

same type of pollutant as being

increased by the Federal action except

the State or Tribe may approve offsets

or mitigation measures of different

precursors of the same criteria pollutant,

if such trades are allowed by a State or

Tribe in a SIP or TIP approved NSR

regulation, is technically justified, and

has a demonstrated environmental

benefit.

* 21. Subpart B is amended by adding

§ 93.165 to read as follows:

§93.165 Early emission reduction credit

programs at Federal facilities and

installation subject to Federal oversight.

(a) Federal facilities and installations

subject to Federal oversight can, with

the approval of the State or tribal agency

responsible for the SIP or TIP 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) of this

section and can use them in accordance

with paragraph (c) of this section.

(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 or

tribal agency responsible for the

implementation of the SIP or TIP 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 in

the General Conformity evaluation.

(2) The emission reduction methods

must be consistent with the applicable

SIP or TIP attainment and reasonable

further progress demonstrations.

(3) The emissions reductions cannot

be required by or credited to other

applicable SIP or TIP provisions.

(4) Both the State or Tribe 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 or tribal air quality agency and the

EPA regional office for review. The

documentation must include a detailed

description of the emission reduction

strategy and a discussion of how it

meets the requirements of paragraphs

(b)(1) through (5) of this section.

(c) Use of emission reduction credits.

The emission reduction credits created

in accordance with paragraph (b) of this

section 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 implemented at

the same facility as 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 implemented

at the same facility as 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

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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.

(5) Federal agencies must notify the

State or tribal air quality agency

responsible for the implementation of

the SIP or TIP and EPA Regional Office

when the emission reduction credits are

being used.

[FR Doe. 2010-7047 Filed 4-2-10; 8:45 am]

BILLING CODE 6560-50-P

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