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Citation: 75 Fed. Reg. 17254 2010

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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]
RIN2060-AH93

Revisionsto the General Conformity Regulations

AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY: The EPA isrevising its regulations relating to the Clean AirAct (CAA) requirement thatFederal actions conform to the appropriate State, tribal
or Federal implementation plan (SIP, TIP, or FIP)for attaining clean air ("GeneralConformity"). EPA and other Federal agencies have gained experience with the implementation ofthe 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 therevised 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 therevisions to the General Conformity Regulations will be helpful to the State, Tribe, and local agencies in developing, andFederal 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 ofthe 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 thatis not possible, it provides

an efficient and effective process for Federal agencies to ensure their actions do not cause or contribute to a violation ofthe NAAQS or interfere with the
purpose ofa SIP, TIP orFIP to attain or maintain the NAAQS. DATES: This action is effective on July 6, 2010.
ADDRESSES: EPA has established a docketfor this rulemaking under Docket ID No. EPA-HQ-OAR-2006-0669. All documents in the docket are listed in the http://www.regulations.govindex. 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 willbe publicly available only in hard copy. Publicly available docket materials are available either electronically inhttp:// www.regulations.govor inhard 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 ofAir Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541- 3037 orby e-mail at coda.tom@epa.gov

or Mr. H. Lynn Dail, Office ofAir Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541- 2363 orby e-mail at dail.lynn@epa.gov. SUPPLEMENTARY INFORMATION:

I. General Information

A. Doesthis actionapplyto me?

Entities affected bythis rule include Federal agencies and public and private entities that receive approvals or funding from Federal agencies such as airports and seaports.

B. Howis thispreambleorganized?

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. Whyis EPA revising these regulations

at this time? III. How are the existingregulations implemented? A. Applicability Analysis B. Conformity Determination C. Review Process IV. Comments Submitted onthe Proposed Rule V. Summary of the Final Revisions and Clarifications ofthe General Conformity Regulations A. Overview ofRevisions 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 OtherAgencies? F. What Are Some ofthe Clarifications to

the Existing Regulations That Are Being Finalized? VI. Detailed Discussion of the Final Revisions
to and Clarifications ofthe General Conformity Regulations A. 40 CFR Part 51, Subpart WDetermining Conformity ofGeneral Federal Actions to State orFederal 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 ofAir

Quality Impacts M. 40 CFR 93.161-Conformity

Evaluations forInstallations With Facility-Wide Emission Budget N. 40 CFR 93.162-Emissions Beyond the

Time Period Covered bythe 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 FromEnvironmental Health and SafetyRisks 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 didEPAproposethese revisionsto the GeneralConformity Regulations?

The EPA proposed the revised General Conformity Regulations in the Federal Register on January 8, 2008 at 73 FR 1402.

D. Where canIobtainadditional information?

In addition to being available inthe docket, an electronic copy ofthis final rule is also available on the worldwide web. Following signature by the EPA Administrator, a copy ofthis notice will be posted at http://www.epa.gov/oarl genconform/regs.htm.

II. Background

A. What isGeneralConformityandhow does it affect air quality?

The intent ofthe General Conformity requirement is to prevent the air quality impacts ofFederal actions from causing

orcontributing to a violation ofthe NAAQS or interfering with the purpose ofa SIP, TIP, or FIP.

In the CAA, Congress recognized that actions taken by Federal agencies could affect State, Tribal, and local agencies' abilityto attain and maintain the NAAQS. In section 176(c) (42 U.S.C. 7506) ofthe 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 fromthe Federal action will conform to the purposes of the SIP, TIP or FIP or not otherwise interfere with the State's or Tribe's abilityto 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 onlyto highway and masstransit funding and approval actions, EPA published two sets ofregulations to implement section 176(c). The Transportation Conformity Regulations, first published on November 24, 1993 (58 FR 62188) and revised onJuly 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 isEPA revisingtheseregulations

atthis time?
OnJuly 17, 2006 at 71 FR 40420, EPA revised the General Conformity Regulations to include deminimis 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 thattime, EPA and other Federal agencies have gained experience with the implementation ofthe existing regulations and have identified several issues withtheir implementation. To address these issues, EPA initiated a process toreview, revise and streamline the regulations. In addition, EPA isin the process ofdeveloping 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 willbe required to develop revised SIPs to attain these new standards. Knowledge ofthe revised General Conformity Regulations will be helpful tothe 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 ofthe NAAQS.

III. How arethe 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 intothree phases: (A) Applicability analysis, (B) Conformity determination, and (C) Review process. Besides ensuring thatthe Federal actions are in conformance with the SIP, the regulations encourage consultation between the Federal agency and the State orlocal air pollution control agencies before and during the environmental review process.

The existing regulations do not specifically identify the roles ofIndian 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. ApplicabilityAnalysis

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 ofthe CAA and maintenance areas established under section 175A ofthe 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 deminimis emission levels based on the type and severity ofthe 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 ofthe 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 deminimislevels; and/or 5.Where the facility has an emission budget approved by the State or Tribe as part ofthe SIP or TIP, the Federal agency determines ifthe emissions from the proposed action are within the budget.

Ifthe action will cause emissions above the demiminisin any nonattainment or maintenance area and the action isnot otherwise exempt, "presumed to conform," or included in the existing emissions budget ofthe SIP

orTIP, the agency must conduct a conformity determination before it takes the action.

B. ConformityDetermination

When the applicability analysis shows thatthe action mustundergo 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 fromthe action will not cause anew violation of the standard, or interfere with the timely attainment ofthe standard, the maintenance ofthe standard, or the area's abilityto achieve an interim emission reduction milestone. Federal agencies then must demonstrate conformity by meeting one ormore of the methods specified in theregulation 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

orTIP 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 ofthe 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 ofthe standards, orincrease the frequency or severity of any existing violations ofthe standards. Air quality modeling cannot be used to demonstrate conformity for emissions ofozone precursors or nitrogen dioxide (NO2). As stated in EPA's proposal ofthe 1993 regulations (58 FR 13845), due to the complex interaction ofthe ozone precursors, theregional nature ofthe

ozone and NO2problems, and limitations ofcurrent air quality models, it is not generally appropriate touse an air quality model to determine the impact on ozone or NO2 concentrations from a single emission source or a single Federal action.

C.ReviewProcess

As publicbodies, Federal agencies
must make their conformity determinations through a public
process. The General Conformity Regulations require Federal agencies to provide notice ofthe 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 ifchallenged.

IV. Comments Submitted on the Proposed Rule

The proposed rule on the "Revisions
to the General Conformity Regulations"

was issued onJanuary 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 ofthe
comments are discussed in section VI of this notice as they were relevant to the detailed discussion ofrevisions. The EPA has included a response to comments document which addresses all ofthe timely comments received on the proposed rule in the docket ofthis rulemaking action (See Docket No. EPA-HQ-OAR-2006-0669).

V. Summary ofthe Final Revisions and Clarifications ofthe General Conformity Regulations

A. Overview of Revisions to the General ConformityRegulations

In accordance with the requirements of section 176(c)(4)(C) ofthe 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: ALegacy for Users (SAFETEA-LU) which eliminated therequirement for States to adopt and submit General Conformity SIPs. Therefore, EPA is revising itsregulations to make the adoption and submittal ofthe General Conformity SIP or TIP optional for the State orTribe.

Because 40 CFR part 51, subpart W (§§ 51.850-51.860) essentially duplicates theregulations promulgated
at 40 CFR part 93, subpart B (§§ 93.150- 93.160), EPA is deleting all ofsubpart W except for

### §51.851. In the revision to 

### §51.851, EPA is requiring that ifa State

or Tribe submits a General Conformity SIP or TIP thatitbe consistent with the requirements of40 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 tothe regulations which (1)Clarify the process, (2)delete outdated or unnecessary requirements, (3) authorize innovative and flexible approaches, (4) reduce thepaperwork burden, (5) provide transition tools for implementing new standards, (6) address issues identified by implementing agencies, and (7)provide

abetter explanation ofregulations and policies.

Several ofthe revisions encourage both the Federal agencies and the States

orTribes 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 projectwithout impairing the environmental review. This is discussed in more detail in section VI below.

B. WhatInnovativeandFlexible ApproachesAre BeingFinalized?
1.The EPA is adding anew section (40 CFR 93.161) to allow for afacilitywide emission budget approach. Under this voluntary arrangement, Federal agencies, in anticipation offuture major actions, may negotiate a facility-wide emissionbudget 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 submitit
to EPA for approval. After EPA approves the SIP or TIP, any action at the facility

canbe "presumed to conform" provided that the emissions fromthe 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 ofthe facility where

an applicability analysis results in a determination that the emissions are below a deminimisthreshold could proceed with no conformity determination.

2.The EPA is adding anew 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 of2003 for the Airport Early Emission Reduction Credit (AERC) program and the guidance to implement thatprogram. The revised regulations provide a similar framework for otherFederal agencies. 3.The EPA is adding anew section (40 CFR 93.164) to allow, with certain limitations, the emission ofone 

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precursor ofa criteria pollutant to be mitigated or offsetby the reduction in the emissions of another precursor of that pollutant.

4. The EPA is adding anew 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 iftheybelieve a substantial long-term reduction in emissions will result from a Federal action.

C. WhatBurdenReductionMeasures Are BeingFinalized?
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 ofa nonattainment or maintenance area's emissions inventory for that pollutant, even though the total direct and indirect emissions fromthe actions

are below the deminimisemission levels or the actions are otherwise "presumed to conform".

2.The EPA is adding in 40 CFR 93.153 new types ofactions thatFederal agencies can include intheir "presumed
to conform" lists and EPA is also permitting States or Tribes to establish in their General Conformity SIPs orTIPs "presumed to conform" lists for actions within their State or tribal area. 3.The EPA is finalizing an exemption in 40 CFR 93.153 forthe emissions from stationary sources permitted under the minor source New Source Review (NSR) programs similar tothe EPA's existing General Conformity regulation which already provides for exemptions for emissions from major NSR sources.
D. WhatRevisionsProvideToolsand Guidance forTransitioning toNew or RevisedNAAQS?
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, ifany, 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 ofthe 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 bythe 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. WhatRevisionsAreBeingFinalized
attheRequest ofOther Agencies?
1.As part ofEPA's efforts to finalize

an Air Quality Policy onWildland and Prescribed Fires, which was undertaken in consultation with FLMs, EPA took
comment ontwo 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 therequirements ofEPA'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 ofEPA's Interim Air Quality Policy on Wildland and Prescribed Fires or an equivalent replacement EPA policy or, in the absence ofa State certified SMP, where the Federal agency has obtained written

assurance from the State prior to the burn that theplanned burn employs State approvedbasic smoke management practices (BSMP). EPA is finalizing option 1to include a presumption ofconformity 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 of93.153(g) or by a State following the requirements of51.851(f). In the absence ofsuch 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 actionsin 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 ofequal orhigher nonattainment classification provided the emissions from that area contribute
to violation ofthe NAAQS in the area where the Federal action is located or, in the case ofmaintenance areas, the emissions from the nearby area contributed in the pastto the violations in the area where the Federal action is occurring. 3.At therequest ofseveral Federal agencies, EPA isclarifying 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"causedby," has identified a number ofways that Federal agencies can workwith 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 mustbe considered in a conformity evaluation.

5.At therequest ofthe FAA, EPA is codifying one ofthe examples contained in the preamble tothe existing General Conformity Regulations (58 FR 63229) that stated, "theEPAbelieves thatthe following actions are illustrative ofde minimisactions: * * * Air traffic control activities and adopting approach, departure and enroute procedures for air operations." The FAA conducted a study ofground level concentrations causedby elevated aircraft emissions released above ground level (AGL) using EPA-approved models and conservative assumptions.1 The study concluded that aircraft operations
ator 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 aviolation ofthe 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 ofAir Quality Impacts by Airplane Operations ator Above 3000 feetAGL," Volpe National Transportation Systems Center and FAA Office ofEnvironment &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 ofthe 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 deminimis aircraft emissions above the specific mixing height identified in the SIP or TIP. Ifno mixing height is identified in the SIP or TIP, the Federal agency can
use 3,000 feet AGL as a default mixing height. The listofexemptions under 40 CFR 93.153(c)(2)(xxii) has been updated in this final ruleto reflect this policy.

F. Whataresome ofthe clarificationsto theexistingregulationsthatarebeing finalized?
1.The EPA is clarifying in 40 CFR 93.150 the General Conformity evaluation for treatment ofemissions from actions with emissions originating in more than one nonattainment or maintenance area. The emissions in each area would be treated as ifthey 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 (40CFR 93.158) the procedures that canbe used
to demonstrate conformity with the applicable SIP when the SIP does not contain an attainment demonstration or when the emissions fromthe Federal action are projected beyond the period ofthe SIP. In addition, EPA is adding a

new section (40 CFR 93.162) to establish procedures for demonstrating conformity beyond the timeperiod 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) ofseveral terms used in the regulations.

6. The EPA is including specific language throughout the regulations to identify the role ofIndian Tribes and TIPs in the General Conformity evaluation.

VI. Detailed Discussion ofthe Final Revisions to andClarifications ofthe GeneralConformity Regulations

A. 40 CFRPart51, SubpartWDeterminingConformityofGeneral Federal Actions to StateorFederal ImplementationPlans

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 ofsection 176(c). Section 6011 ofSAFETEA-LU revised the conformity requirements in section 176(c) ofthe CAA. Although most ofthe 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) ofthe CAAby including a requirement that the regulations mustbe 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 ofthe 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 ofregulations: 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 forFederal 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 of40 CFRpart 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) thatthe General Conformity SIP or TIP, ifadopted, must meet the requirements in 40 CFRpart 93, subpart B.

In addition, EPA is restructuring 

### §51.851.

1.The EPA is dividing paragraph (b) of40 CFR 51.851 into four paragraphs- (b), (c), (d), and (e):

a. Paragraph (b)now states thatuntil EPA approves the General Conformity SIP, Federal agencies must meet the requirements of40 CFR part 93, subpart B.b. Paragraph (c) states that after EPA approves a SIP or TIPmeeting the requirement of40 CFR part 93, subpart B, orportion thereof, the Federal agencies must meet the requirements of the SIP or TIP and any otherportions of 40 CFR part 93, subpart B ifnot 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 tothe 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 ofa State's request to remove the General Conformity requirements from an implementation plan, itis EPA's intent, once requested by a State,
to expeditiously review and approve implementation plan revisionsthat seek
to remove General Conformity requirements.

c. Paragraph (d) contains the requirement that the SIP or TIP canbe

no less stringent than 40 CFRpart 93, subpart B.

d. Paragraph (e) contains the requirement that the SIP or TIP canbe

no more stringent thatthe 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 anew provision in 

### §51.851(f), which allows States or Tribes to include in their SIP orTIP a list ofactions that are "presumed to conform." For example, the State may identify the emissions from a certain type and size ofconstruction activities that itpresumes will conform. Comment:Several commenters supported EPA's proposal to make the adoption and submittal ofthe General Conformity SIP optional. One
commenter believed thatthe elimination ofthe conformity SIP requirement in 

### §93.151 leaves agap regarding the enforcement ofmitigation

measures.

The commenter noted thatunder the language in the new provision, there is

no State or Federal enforceability ifthe State withdraws its conformity SIP or otherwise fails to retain a requirement that written commitments to undertake and implement mitigation measures are obligations ofthe SIP. Another
commenter supported the requirements for States to develop conformity SIPs.

Response:The EPA is revising its regulations tobe consistent with the revised requirements ofthe CAA. In 2005, the CAA was revised to eliminate the requirement that a State must adopt

a conformity SIP. Ifa State does not have a conformity SIP, then Federal agencies must conduct their evaluation under the requirements of40 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 wouldbe little difference in the enforceability ofthe regulations. Mitigation measures are included in the SIP orTIP. A conformity SIP isnot needed to include the mitigation measures in the SIP or TIP. They are included in the SIP to attain

ormaintain the ambient air quality standards. Section 93.160 hasbeen changed by deleting the term "General Conformity Regulations" to ensure this fact isclear.

B. 40 CFR93.150-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 ofsubpart B ofpart 93. The EPA is making two revisions to §93.150. First, EPA is deleting the language in paragraph (c) of that section and reserving thatparagraph. Second, EPA is adding a new paragraph (e) to the section to State that ifan action occurs in more than one nonattainment area, that each area mustbe evaluated separately.

In paragraph (c) ofthe 1993 regulations, EPA identified categories of actions that were not subject to the regulations based on environmental review for the action thatwas 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 thistime.

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 resultin direct or indirect emissions in non-contiguous
areas, oreven nationwide, that are above the deminimisthresholds 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 iftheyresult 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 mayvary from one
area to another.

2.The General Conformity Regulations exemptions are also areaspecific. For example, the deminimis levels are based upon the type and classification ofthe nonattainment or maintenance area. 3.Section 176(c)(5) ofthe CAA limits the applicability ofthe 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 onthe portions ofthe emissions in the nonattainment and maintenance areas.
C.40CFR93.151-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 orTribe adopts and EPA approves a General Conformity SIP

or TIP for the area. The EPA did not change the purpose ofthe section, but is revising the section to clarify its wording. The 1993 regulations included
statements about the stringency ofthe SIP compared to therequirements in subpart B ofpart 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 CFR93.152-Definitions
Section 93.152 provides the definition ofterms used in the regulations. The EPA isrevising 12 ofthe definitions, adding 11 new terms, and deleting one term, and clarifying the scope ofan existing definition as follows:

Applicabilityanalysis.The EPA is adding this new term to describe the
process ofdetermining ifthe Federal agency must conduct a conformity determination for its action.

Applicableimplementation planor applicableSIP.The EPA is makingtwo 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 thatthe term includes

an approved TIP. The requirements for eligible Tribes are found in 40 CFR 49.6.

Area-wideairqualitymodeling analysis.The EPA is clarifying this definition bymaking a minor wording change andby including photochemical grid model in the definition. Also, EPA is adding an example ofthe type of models that could be used for the areawide air quality modeling analysis. Causedby. The basic test established by the 1993 regulations' definition of "caused by"isthat the emissions would
not have occurred in the absence ofthe Federal action. Since the General Conformity Regulations were promulgated in 1993, EPA has interpreted theregulations to require a Federal agency to include construction emissions in its conformity analysis. The EPAbelieves that emissions from construction activities initiated, approved, orfunded by aFederal
agency meets this test and shouldbe included in the conformity evaluation. Therefore, EPA isclarifying that construction emissions are part ofthe 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 shouldbe exempt fromthe regulations. In addition, EPA solicited
comment on what should be considered short-term construction emissions (1to 5years). The majority ofcommenters 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 deminimisthreshold and result in unmitigated emissions and the exposure oflocal residents to significant levels ofpollutants such as diesel exhaust. However, some commenters thought that construction emissions shouldbe exempted. They noted that construction emissions only peak for a short time and thata disproportionate
amount oftime 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
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years while others thought they should be exempt for only 2years.

Response:The EPA agrees with the majority ofcommenters on this issue that construction emissions can contribute significantly to exceedances ofthe NAAQS, particularly exceedances ofthe 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, asreflected in case-by-case analysis ofemissions from specific actions, while Transportation Conformity isprimarily concerned with the regional impacts of long-term use ofthe roads, asreflected in analysis ofregional 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 isfound in General Conformity. Moreover, as explained above, EPAbelieves that emissions from construction activities initiated, approved, or funded by a Federal agency would not have occurred in the absence ofthe Federal action and thus meet the "causedby" definition included in the general conformity regulations. For these reasons, EPA believes that itis important that construction emissions should be considered as part ofthe General Conformity process. EPA also believes that other flexibilities in the revised rule will help with planningfor, and addressing, construction emissions in the General Conformity process. These flexibilities include allowing alternative mitigation schedules and including construction emissions in a facility emissionbudget.

Also, EPA isclarifying that conformity isbased on annual emissions. Therefore, Federal agencies should estimate construction emissions

on an annualbasis and would onlyhave
to demonstrate conformity of construction emissions during the years when the emissions occurred. Confidential businessinformation (CBI).In 

### §§ 93.155 and 93.156, EPA is clarifying how CBIused in the conformity determination is to be handled. To support those provisions, EPA is adding a definition ofCBI. The definition isbased upon that usedto define CBIunder the Freedom of Information Act. Conformitydetermination. The EPA is adding a new term to describe the decision that a Federal agency official makes in determining thatthe action will conform with the SIP, TIP or FIP. Conformityevaluation.The EPA is adding a new definition to describe the entire conformity analysis process from the applicability analysis through the conformity determination, ifnecessary. Continuing programresponsibility. 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 tomake it clearer. Continuous programto 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. Thatprogram can include a number ofsteps such as preparation offinal design plans and

can also allow for seasonal shutdowns. The definition includes a requirement that the action does not stop formore than 18 months unless such a delay is included in the original plans forthe action.

Directemissions.The EPA is revising the definition ofdirect emissions to include a requirement that the emissions mustbe reasonably foreseeable. This revision reflects EPA's policy as set forth in the July 1994 implementation guidance that direct emissions mustbe reasonably foreseeable. (General Conformity Guidance: Questions and Answers, USEPA, OAQPS, Page 6, Question 2, July 13, 1994).

EmissionInventory.This term is used but not defined in the 1993 regulations. Therefore, EPA is adding a definition of this term.

EPA. Since some Stateshave Environmental Protection Agencies, EPA is adding "U.S." in the definition to clarify that the regulations refer to the U.S. Environmental Protection Agency.

Indirectemissions.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 isrevising the definition of"indirect emissions" to clarify what is meantby "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 notintend 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 abilityto 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"causedby" 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 ofthe expected development andreasonably foreseeable impacts associated with such development. The
commenter noted that ifthe agency with authority to approve these expansions lacks the continuing programmatic responsibility to control the use of facilities approvedby the agency, then the proposed activity should not be approved.

The commenter believes thatthe proposed rule definition has the potential for allowing massive increases in emissions thatis anticipated as a result ofportexpansions in some ofthe nation's mostpolluted 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 ofemissions

over which the Federal agency does not have a continuing program responsibility isrelated to indirect emissions for the General Conformity analysis and does not affect the analysis required for NEPA review. EPA is not changing the requirements ofthat 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 ofthe language in this revision does not change the practical impact ofthis definition, and the commenter's suggestion that the definition should include emissions over which the Federal agency does not have control would greatly expand theprogram beyond what EPAbelieves thatthe law intended. In any event, since EPA did
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include emissions over which a Federal
agency does not have control, it cannot go final with such an expansion inthis rule.

Localairqualitymodelinganalysis. The EPA is revising the definition to include an example ofthe type of models that are used in the local air quality modeling analysis.

Maintenancearea.The EPA is making

aminor wording change to clarify the definition by citing the regulations and the section ofthe CAA used to identify maintenance areas.

MetropolitanPlanningOrganization. The EPA is revising its regulatory definition to make itmore consistent with the statutory definition in SAFETEA-LU, which was signed into law on August 10, 2005.

Mitigationmeasure.The 1993 regulations used the term "mitigation measure" and had a section specifying the requirements for amitigation
measure; however the regulations did
not define the term. The EPA is defining

a mitigation measure as a method of reducing emissions ofthe pollutant at the location ofthe action. This definition would distinguish a mitigation measure from an offset.

Nationalambientairquality standards. In 1997, EPA promulgated

new NAAQS for both ozone and for fine particles. The definition in the 1993 regulations isbroad enough to cover the

new ozone standard, but the definition did not cover the fine particle standard known as PM2
. 5 .Therefore, EPA is revising the definition ofNAAQS to include PM2. 5. Precursorsofcriteria 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 PM2. 5 .EPA recently amended the regulations (July 17, 2006
at 71 FR 40420) to add PM2. 5 precursors, consistent with the proposed implementation program for the PM2. 5 standard (70 FR 65984). The EPA defined the precursors ofPM2. 5 as follows: 1. Sulfur dioxide (SO2)is a regulated pollutant in all PM2. 5 nonattainment and maintenance areas. 2

2While sulfur dioxide must be addressed in general conformity determinations for PM2.5,sulfur dioxide is notrequired to be addressed in transportation conformity determinations before a SIPis submitted, unless either the State air agency

or EPAregional office makes a finding that on-road emissions ofsulfur dioxide are significant contributors to the area's PM2.5problem. Sulfur dioxide would beaddressed intransportation conformity after a PM2.5SIP is submitted ifthe 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 PM2. 5 nonattainment and maintenance areas unless both the State/Tribe and EPA determine thatthey

are not. 3.Volatile organic compounds (VOC) and ammonia (NH3)are not regulated pollutants in any PM2. 5 nonattainment

or maintenance area unless either the State/Tribe or EPA determines thatthey

are.

Reasonably foreseeableemissions.As discussed above, under "direct emissions," EPA is revising the term "direct emissions" to limitthe emissions
to those which canbe reasonably foreseeable. Therefore, EPA is revising the term "reasonably foreseeable" to include "direct emissions."

Regionallysignificantaction.As discussed in the revisionsto 93.153(i) below, EPA is deleting the requirement that conformity determinations are required for actions thatwould normally be exempt ifthose actions are considered regionally significant. Therefore, EPA is deleting the definition ofthe term.

Restrictedinformation.As discussed in §§ 93.155 and 156 on reporting and public participation, EPA is specifying how restricted information used inthe conformity determination is tobe handled. To support those revisions, EPA is adding a definition ofrestricted information. The definition isbased
upon applicable Executive Orders, regulations and statutes pertaining to materials and other information where disclosure is restricted bylaw. Comment:One commenter requested that EPA state that emission databe 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 isrestricted by law or regulation to particular classes ofpersons and a formal security clearance is required tohandle or access the classified data would emission data from agovernment facility be "restricted information." In the situations where restricted information isused as part of the conformity evaluation, EPA will work with the appropriate Federal, State and tribal agencies to ensure an

its decision regarding treatment ofsulfur dioxide in transportation conformity on the deminimis
amount ofon-road emissions ofsulfur 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. (70FR 24283). adequate review ofthe conformity evaluation. Take orstarttheFederalaction.The EPA is adding a new term to define the date when an action occurs or starts. This date is important in determining what, ifany, 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. Tribalimplementation plan(TIP).The EPA is adding a definition for TIP to

mean plans adopted and submitted by federally recognized Indian Tribes.

E.40 CFR93.153-Applicability Analysis

The EPA is clarifying the process of determining ifthe General Conformity requirements are applicable to a Federal action. Although EPA isproviding 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 ofthe section to include the word "analysis." The EPAbelieves that adding the word would make the title more descriptive of the section's content. 2.The EPA is makingtechnical changes toparagraph (a) of §93.153. The technical correction in section 93.153(a) isto update the reference to the transportation conformity regulations. Section 93.153(a) currently
states thatthe transportation conformity regulations are codified at 40 CFRpart 51 subpart T, but EPA deleted transportation conformity criteria and procedures from 40 CFR part 51 subpart T a number ofyears ago. (62 FR 43779) Accordingly, section 93.153(a) hasbeen revised to refer to the transportation conformity criteria and procedures now codified at 40 CFR part 93 subpart A. 3

EPA isnot finalizing the proposed changes toparagraph (b). Following proposal ofchanges tothis paragraph EPA realized that the minor wording changes we had proposed (addingthe word "criteria" before the word "pollutant" and "or precursor" after the

3While we did notissue a proposal orprovide

an opportunity for public comment for this minor correction to the rule, webelieve such actions are unnecessary because this minorrevision 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 inthe CFR. 

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word to clarify the paragraph) had been accomplished by changes made to this section in a July 17, 2006regulatory 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 1in 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 tomeet only the requirements in subpart 1of PartD ofTitle I ofthe CAA and were not classified pursuant to Table 1. However, the decision to place certain areas only under subpart 1was vacated by the decision in South Coast AirQualityManagementDistrict v. EPA, 472 F.3d 882 (DCCir. 2006). Although there are currently no areas classified under subpart 1, the Court left open the door thatEPA maybe able to justify such action in the future. Accordingly, EPA isrevising the table in §93.153(c)(1) to ensure thatthe General Conformity requirements would apply
to any area placed inthe subpart 1in 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 anew 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 andhigh altitudes can travel long distances. They also noted that pollution levels were belowpredicted 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 mustbe at least 7000 feet AGL; therefore, any commercial aircraft operating at 3000 feet wouldmost likely either be landing or taking off.The
commenters also noted that the FAA study concluded that any increase in ground level concentrations ofCO and hydrocarbon (HC) due tomixing was negligible.

A Federal agency commenter believes that the exemption for air traffic control activities should not be restricted by altitude. The commenter noted thatthe 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 thatthe aircraft emissions above the mixing height do
not significantly affect ground level concentrations and acknowledges that the mixing height canvary from one

area to another. Accordingly, inthose

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 amixing height, EPA is allowing the Federal agencies touse 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 ofthe 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 thatthe 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 ifthey can demonstrate that emissions at and above that height are deminimis.As a general matter, itis inthe reasoned discretion ofthe 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 noincrease under section 93.153(c)(2), orconcluding 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 permitfor minor

sources. The 1993 regulations exempt emissions covered by a NSR permit for major sourcesbut not forminor sources. EPA concluded at thattime that the purposes ofthe General Conformity review wouldbe adequately met bythe major source NSR review, and that additional review would notbe necessary. The EPA nowbelieves that minor source NSR provides similar review, and that this approach will reduce the duplicate review of emissions underboth 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 tothe general permitting authority providedby section 110(a)(2)(c) ofthe 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 thatEPA shouldnot exempt activities with emissions less than the major source threshold from conformity review unless somebasis

canbe established that the cumulative emissions from such sources are truly deminimiswith respect to the statutory conformity tests. The commenter suggests thatEPA substitute a SIP-based program for establishing a budget for minor sources in place ofthe 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, ifEPA exempts minor sources for the conformity evaluation, itmust first clearly demonstrate that such exemptions will not impede States' abilityto 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 thatthe permitting authority has the responsibility to

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standards. Minor source NSRpermits

are issued under a SIP-approved
program, so there has already been a determination that thepermitting program will not contribute to a violation ofthe NAAQS or delay the attainment or maintenance ofthe 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 actionby showing thatthe actions will not cause aviolation or interfere with the SIP.

6. The EPA is deleting "ornatural 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 donot include alltypes ofemergencies.

7.The EPA is amending paragraph (e)(2) of §93.153 to provide procedures for reviewing an extension ofthe exemption from making a conformity determination for actions related to responding to an emergency. AFederal agency, in responding to an emergency event such as a natural disaster, terrorist attack, military mobilization, or other situations (suchas wildfire responses) that an agency determines fitwithin the definition ofemergency found in §93.152, may find itimpractical to conduct a conformity evaluation on the actionbefore it musttake the action. To address this situation, 40 CFR 93.153(d)(2) ofthe 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 itmay 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 itis impractical to conduct an evaluation for the action. The 1993 regulations were not clear about the number ofadditional 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 stillbe exempt fromthe General Conformity requirements for 6 months after the commencement ofthe 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 isrequiring the Federal agencies to allow EPA andthe State 15 days to review and provide
comments on the draft written determination to extend the exemption
at thebeginning ofthe 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 of6-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 listof actionsthat are "presumed to conform" andprovide requirements for the materials thatmust be included in the documentation and draft list. Specifically, EPA is adding wording to paragraph (f)to specify when and howmore 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 toparagraph (h)(1) to specify the information that mustbe included in the documentation; and adding a sentence toparagraph (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 isrevising 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 ofactions that are "presumed to conform" with applicable SIPs and TIPs. Under the 1993 regulations, Federal agencies mustjustify the inclusion of the actions on their "presumed to conform" listby either demonstrating: (1)Thatthe actions will not cause or contribute to an air quality problem or otherwise interfere with the SIP, TIP, or FIP, or (2)thatthe actions will have emissions below the deminimislevels. The Federal agencies mustprovide copies ofthe proposed listto 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 ofthe 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 tobe nationally applicable. Forexample, 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 ofa certain size or type fits within the SIP's emission budget. With the concurrence of the State or Tribe, the Federal agencies couldpublish a "presumed to conform" listthat 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 ofany pollutant represent 10 percent or more ofa nonattainment or maintenance area's emissions inventory." 40 CFR 93.153(i) and (j)require conformity determinations for all regionally significant actions, regardless ofany exemptions or presumptions of conformity based on other provisions in the regulations. Comment:Some commenters supported deletion of theregionally 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 shouldbe retained or strengthened ora more appropriate percentage ofthe area's inventory be used for the test. Some commenters also pointed out that in light ofthe new PM2.5 and 8-hour ozone standards, certain Federal projects might become "regionally significant" inthe near future.

Response:EPA agrees thatthe determination ofwhether actions with emissions below the deminimis emission levels are regionally significant hasbeen aburden to some Federal agencies with little orno environmental benefit. Analysis discussed in the proposal showed that the emission inventory formost nonattainment and maintenance areas well exceeded the ten timesthe de 

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minimisemission levels for the area, suchthat no emissions could actually be regionally significant. Although several
commenters question whether the regionally significant test might be important for the new PM2. 5 and 8-hour
ozone standards, they presented no information to show thatthe deminimis emission levels would exceed 10 percent ofthe 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 isfound 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 ontwo options for allowing a presumption of conformity for prescription fires. Option 1would have allowed Federal agencies
to presume thatthe emissions from prescribed burns will conform provided theburning 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 ofa certified SMP, topresume 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 ofthe second option, which allows Federal agencies
to determine, in absence ofa certified SMP, thatprescription fires conducted using BSMP are considered "presumed
to conform" to the SIP. Some
commenters noted that tobe consistent with the "Treatment ofData Influenced by Exceptional Events" rule (72 FR 13559, March 22, 2007), ifthe 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 wouldbe in compliance with the SIP. One
commenter thought thatthe presumption ofconformity 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 ofSMP may be acceptable, but EPA has notyet issued its final wildland fire policy. Another commenter suggested that ifprescribed 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 thatthe definition of emergency include wildfires.

Response:After considering the various practices and the comments received, the EPAbelieves option 1 presented in the proposed rule is more protective ofthe 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 of93.153(g) or by a State following the requirements of51.851(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 maybe asprotective of air quality in areas where no SMP exists. BSMPs canbe connected to air quality and may protect air quality as outlined in the "Treatment ofData Influenced by Exceptional Events" rule. In order to assure the adequacy ofthe BSMPs to meet the legalrequirements of the General Conformity program as outlined in section 176, Federal agency developed BSMPs mustbe publicly and State reviewed as part ofa presumed to conform action under section 93.153(g)

or 51.851(f)ofthese regulations to establish such a presumption. Because the EPA chose not to require the certification ofthe SMP underthe final "Treatment ofData 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) ifthat agency determines it fits within the definition ofemergency 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 alist ofactions it "presumes to conform." 13. The EPA isrevising paragraph (j) of §93.153 by deleting thereference to regionally significant emissions, by adding a reference toparagraph (i) and by describing the criteria for requiring a conformity determination for an action that otherwise wouldbe "presumed to conform." The 1993 regulations state that an action cannot be "presumed to conform" ifit 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 hasbeen deleted from this paragraph. For clarity, instead ofreferring to subparagraph (g)(1), EPA isrepeating the requirements in this paragraph. 14. The EPA is revising paragraph (k) of §93.153 to incorporate the provisions of section 176(c)(6) ofthe 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 ofthe final nonattainment designation for each

new orrevised NAAQS before the conformity requirements must be met in the area. Ifan agency takes or starts the Federal actionbefore the end ofthe grace period, it must comply with the applicable pre-designation conformity requirements. Ifan agency takes or starts the Federal action after the end ofthe 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 aFederal 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. Ifthe agency fails to take or start the Federal action during the grace period, then it must re-evaluate conformity for the projectbased on the requirements for the new designation and classification.

F. 40CFR93.154-Federal Agencies Responsibility fora Conformity Determination

1.The EPA is revising the title ofthis section to clarify the purpose ofthe section. In the 1993 regulations this section is entitled broadly "Conformity Analysis." Since the short section only discusses therequirement for each Federal agency to make its own determination, EPA isrevising the title ofthe 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 ofthis subpart.

G. 40 CFR93.155-Reporting Requirements
1. Since EPA is adding additional sections to subpart B, itis 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 ormore EPA regions. Specifically, EPA is allowing agencies to notify the EPA Office ofAir Quality Planning and Standards rather than each individual regional office. A single contact point for EPA shouldbe

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 andthe proposed regulation, which statedthat the EPA Office ofAir Quality Planning and Standards couldbe 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 anew paragraph
to §93.155 to describe howrestricted 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 ofclassified 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
orindividual was required to release restricted information including, but not limited to, classified materials. Therefore, EPA isrevising the regulation
to add explicit language concerning the protection ofrestricted 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 ofrestricted information. The regulations would allow State or EPA personnel with the appropriate clearances to be able to view the restricted information.

H. 40 CFR93.156-PublicParticipation

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 minimislevels in three ormore EPA regions. This corrects a mistake made in the proposed rule preamble that stated, "EPA is proposing toprovide an alternative public notification procedure for actions that cause emissions above the deminimislevels in more thanthree nonattainment or maintenance areas." In addition, this corrects an inconsistency with theproposed 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 thatthe Federal
agency publish a notice in a daily
newspaper ofgeneral circulation in the nonattainment or maintenance area. Some Federal actions affect a large number ofnonattainment 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 anotice in the Federal Register ifthe actionwould

cause emissions above the deminimis levels in three or more nonattainment or maintenance areas. 3.The EPA is adding a new paragraph
to §93.156 to describe howrestricted information and CBIused to support conformity determinations should be handled in providing the information to the public. L 40CFR93.157-Re-Evaluationof Conformity

1.The EPA is revising the title ofthis section to more appropriately describe the section's content. The 1993 regulations section is entitled, "Frequency ofConformity Determinations." That title implies that the General Conformity requirements for Federal actions mustbe reevaluated on

aregular basis. However, the section
states that conformity must be reevaluated only ifthe determination lapses or the action is modified, resulting in an increase in emissions. 2.Ifan action's emissions are below the deminimislevels 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 thatthe date ofa completed NEPA analysis, as evidenced by a signed finding ofno 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 anew 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 allthe emissions caused by the initial action conformed to the SIP. Since conformity determinations are only needed for emissions that exceed the deminimis levels, EPA has clarified in the rule that the Federal agency does nothave to revise its conformity determination unless the modification would result in

an increase that equals or exceeded the deminimisemission levels for the area. Paragraph (d)also deals with modifying

an action thatthe Federal agency determined had emissions below the de minimislevel. Since the emissions from the unmodified action were determined
to be deminimisand notfully evaluated
to determine conformity, EPA is requiring Federal agencies to conduct a conformity determination for the modified action ifthe total emissions (the emissions from the unmodified action plus the increased emissions resulting from the modification) equal 

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orexceed the deminimislevels for the

area. Thus, in both situations, all emissions that exceed deminimislevels

are evaluated for conformity impacts, either initially or after modification.

J.40CFR93.158-Criteria for DeterminingConformity forGeneral Federal Actions
1.In §93.158(a)(1), EPA is adding "or precursor" after "any criteria pollutant"
to clarify thatFederal agencies must demonstrate conformity for the precursors ofthe 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 anearby nonattainment or maintenance area of equal or higher classification, provided that the emissions fromthe nearby area contribute to the violations ofthe NAAQS in the area where the Federal action is located or, inthe 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 tobe 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 ofthese
commenters suggested that additional limits couldbe imposed on the use of the out-of-area offsets. Several
commenters representing State air quality agencies opposed the allowing ofoffsets from other areas. The
commenters noted that EPA regulations andFederal court rulings limitthe area from which emissions reductions canbe 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 shouldbe 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 andjudicial rulings place limits on the area from which emissions reductions canbe creditable for attainment demonstrations. The intent ofthose 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 thatthey 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 byrule or guidance for demonstrating contributing emissions in other SIP-related determinations, such as Reasonable Further Progress, Rate ofProgress, or Attainment Demonstrations for a particular pollutant or pollutant
precursor. Bylimiting 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 isrevising theregulations to address the precursors ofPM2. 5. The EPA does not believe thatthe current models are adequate to reasonably predict the project level impact of individual precursor sources ofozone or PM2. 5.Therefore, EPA is allowing Federal agencies to use modeling to demonstrate conformity only for directly emitted pollutants. Precursors ofPM2.5will be treated the same as precursors ofozone and direct emissions ofPM2. 5will be treated the

same as CO and PM-10 for purposes of identifying available teststo 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 ofareas 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 PM2. 5 standards and designated a number ofareas 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 ofappropriate 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 ifanother 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 oftwo different baseline years.

6. Also in §93.158(a)(5)(i), EPA is revising theparagraph 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 wouldnot exceed the emission budget in the applicable SIP or TIP. Under the 1993 regulations, States could only make such a determination ifthey 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 orTIP even though the plan does notinclude 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 ofthe 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 ifnecessary 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. Ifa 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 tobe submitted in 

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18 months)may not cover the same timeframe covered by the conformity determination. Forexample, 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 ofthe standard or to address a continuing nonattainment problem that would

coverthe time period ofthe emissions. The revision to §93.158(a)(5)(i)(C) would continue to require Statesto revise the SIP within 18months ofthe conformity determination based upon a State's or Tribe's commitment. However, ifthe existing SIP or TIP (or

a SIP or TIP due within 18 months) does
not cover the time period ofthe emissions, then the State or Tribe will submita 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 anotheryear for the baseline allows EPA and other Federal agencies to work together to determine ifanother baseline may be appropriate for determining conformity ofaparticular 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 ofthe "year ofthe baseline inventory in the PM-10 applicable SIP." EPAbelieves that the deletion ofthis outdated baseline year should not affect current General Conformity determinations in PM-10 nonattainment and maintenance

areas. K. 40CFR93.159-Procedures for ConformityDeterminations forGeneral Federal Actions
1.EPA ischanging §93.159(b)(1)(ii) to address when new motorvehicle emissions factors models are used in General Conformity determinations. EPA isclarifying thatthe grace period before suchnew models are usedwill be 3months from EPA's model release, unless alonger grace period is announced in the Federal Register. This is more consistent with40 CFR 93.111 ofthe transportation conformity rule that allows grace periods for newmotor 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 ofAir Pollutant Emission Factors and the Guideline onAir Quality Modeling. EPA has released updated versions ofthese 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 ifthe SIP orTIP 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 aspossible but no later than the CAA mandated attainment date, itis possible that a SIP or TIP could have an earlier attainment date. That earlier date ifspecified 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 tobe evaluated for the last year ofthe maintenance plan. The word "last" conveys that meaning.

L. 40 CFR93.160-Mitigationof Air QualityImpacts

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 mustbe fulfilled to clearly provide for enforcement ofthose commitments under the Federal regulations.

M.40 CFR93.161-Conformity Evaluations forInstallationsWith Facility-WideEmissionBudget

The EPA is adding a new sectionto the regulations to facilitate the use of a facility-wide emission budget in evaluating conformity. Although the existing regulations do notpreclude States and Federal agencies from using this approach, theregulations do not specifically authorize itsuse. This section for developing such abudget would be in conjunction with anew §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

orTribes and Federal agencies to identify acceptable levels ofemissions from the facility for inclusion in the SIP before starting the environmental review for the actions and thereby expedite the review ofthe Federal actions at the facilities that donot exceed the emission levels.

The EPAbelieves 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 wouldbe streamlined as long as the facility remains within an established budget.

The development and use ofa facilitywide emission budget would be voluntary on thepart ofthe Federal
agency, State, Tribe and local air quality agency. No party would be required to participate. Ifthe parties agreed to participate, an emission budget would be established based upon specific guidance and documented growth projections for the facility, and adoption ofthatbudget into a SIP or TIP would demonstrate thatthe 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 itwill not interfere with attainment ofthe NAAQS. However, some commenters disapproved ofthe budget approach and expressed concern about aFederal 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 isvoluntary 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 ifthe budget isexceeded. Another commenter requested thaton-site pollution prevention projectsbe required to occur contemporaneously with any proposed emission changes at the facility. Many
commenters requested thatEPA clarify the applicability ofthis provision to non-Federal facilities (e.g., airports).

Response:The EPA agrees with most ofthe 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. EPAbelieves 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 wouldbenefit 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 byboth the State and the Federal agency. Ifthe State or Tribe agrees to allow the facility to use the emission budget approach, it must ensure that the budget thatit approves meets all applicable air quality requirements such

as attainment deadlines andreasonable further progress milestones. Thus, in developing and approving such budgets,

we encourage the facilities andthe State

orTribe to consult with other agencies

or authorities as may be appropriate. For example, we encourage consultation with the local MPO ifa facility-wide emissions budget includes on-road mobile emissions that might alsobe included in an MPO's regional emissions analysis.

While the State or Tribe must approve

afacility-wide budget intothe SIP or TIP, once they have done so they cannot compel an agency to demonstrate conformity with another approach ifthe 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 (suchas airports and seaports) may work with the State to establish facilitywide emissions budget that canbe used by a Federal agency to satisfy its General Conformity responsibilities. The approval by the State ofa facility-wide emissions budget into the SIP does not relieve the State of any obligation to meet any SIP or CAA requirements, milestones ordeadlines.

N. 40 CFR93.162-Emissions Beyond the Time PeriodCoveredby the ApplicableSIPorTIP

The EPA is adding a new sectionto 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. Ifit 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 wouldbe 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 forthe emissions in future SIPs or TIPs. The emissions included in the future SIP should be based on the latest planning assumptions at the time ofthe SIP revision. Although a State is committing
to include the emissions in the emissions budget for the SIP revisions, this commitment does not preventthe State from requiring the use for the affected sources ofreasonably available control technology (RACT), reasonably available control measures (RACM) or any other control measures within the State's authority to ensure timely attainment ofthe NAAQS.
0. 40 CFR93.163-TimingofOffsets andMitigationMeasures

Mitigation measures and offsets are used to reduce the impact ofemission increases from a project or action. To alleviate the impact ofthe 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 tomean 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 theregulations.

The EPA is adding a new sectionto address the timing of offset and mitigation measures. First, the section generally requires thatthe 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 isrequiring that emissions reductions used over an alternate schedule must be consistent with statutory requirements that new violations are not created, the frequency

or severity ofexistingviolations are not increased, and timely attainment or interim milestones are not delayed. Therefore, when a State orTribe
approves an alternative schedule for emissions reductions, itis assuringthat the increased emissions that occur during the period ofthe Federal action do not violate any ofthe three Clean Air Act requirements described above.

To ensure thatthese 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

aratio thatis noless than the applicable NSR offset ratios for the area. These ratios are readily available and already understood to be based on the severity ofthe nonattainment problem for the

area.

Also, EPAbelieves thatthe mitigation

oroffset 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 3years in a serious nonattainment area and that project will cause 150 tons per year of increased emissions; the State orTribe

can approve mitigation measures or offsets which reduce emissions by less than 150 tons peryear provided the total reduction over a 6-year period is equal to or more than 540 tons (150 tons per year times 3years equals 450 tons times the offset/mitigation ratio of 1.2 to 1for serious nonattainment areas equals 540 tons).

Agreeing to allow the use ofoffsets or mitigation measures in later years does
not exempt the State or Tribe from timely meeting any of its SIP orTIP obligations, such as reasonable further progress milestones or attainment deadlines. Emissions reductions which

accrue beyond the compensation period shouldbe properly reflected inthe SIP

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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 wouldtrigger the three statutory factors for conformity andhow such entity would do so. One
commenter recommended thatthe State

ortribal agency responsible forthe SIP be the appropriate entity. Another
commenter requested thatEPA clarify the use ofemission reduction credits in such cases. In addition, a commenter urges EPA to reduce the offsetratios to

no more than 1.2:1 in extreme nonattainment areas and toprovide a fixed period oftime 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. IfEPA adopts the provision, the
commenters suggested additional limitation on the use ofthe alternative schedule, such as a 3-year maximum time limit for the schedule and requiring more than a one-for-one offset.

Response:The EPAbelieves the rule shouldbe 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 tomeet theratios inthe regulations ensures thatthe area is receiving at least a minimum environmental benefit consistent with other CAA programs. Since State or tribal approval is required forthe alternative schedule, those agencies have the ability to ensure thatthe alternative schedule not cause or contribute to aviolation ofthe SIP or TIP. In addition, EPA has added additional wording to clarify thatthe State or Tribe is not compelled to approve a proposed alternate schedule for mitigation measures.
P. 40 CFR93.164-Inter-Precursor OffsetsandMitigationMeasures

The EPA is adding a new sectionto the regulations to allow the use ofinterprecursor offset and mitigation

measures where they are allowed by the SIP. For example, some States and local air districts have SIP-approved NSR regulations thatallow new ormodified stationary sources to offset the increase in emissions ofone criteria pollutant
precursor by reducing the emissions of another precursor ofthe same criteria pollutant, provided there is an environmental benefit to such an exchange and an appropriate ratio of
precursor reductions hasbeen 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 ifthey are allowed by a State or tribal NSR or trading program approved in the SIP, provided they: 1.Are technicallyjustified; and 2.Have a demonstrated environmental benefit.

The ratio for the offsets mustbe consistent with SIP or TIPrequirements 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 withthe full involvement and approval ofthe 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 ofinter-precursor emissions only iftwo 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 mustbe 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 CFR93.165-EarlyEmission Reduction CreditProgram

The EPA is adding a new sectionto the regulations to establish an early emission reduction credit program for facilities subject to the General Conformity Regulations. The existing regulations require thatthe offsets and mitigation measures be in place before the emissions increases causedby the Federal action occur. However, emission reduction programs undertaken before the conformity determination is made couldbe considered as part ofthe 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, EPAbelieves Federal agencies and project sponsors could benefit from the abilityto reduce emissions in advance ofthe time that the reductions are needed for a conformity evaluation, while at the

same time meeting the goals ofthe SIP and TIP.

The EPA is adding a new section, §93.165, to the General Conformity Regulations to define the requirements ofthis program. Under the program, Federal agencies or project proponents (suchas airport authorities) could identify emission control measures and present the proposed reduction to the State, Tribe or local air quality agency. Ifthe measure met the criteria for an offset (quantifiable; consistent with the applicable SIP attainment and RFP demonstrations; surplus tothe reductions required by and credited to other applicable SIP provisions; enforceable atboth the State and Federal levels; and permanent within the timeframe specified bythe 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. Ifcredits are issued,then a Federal agency willbe allowed touse the credits to reduce the total ofdirect and indirect emissions from afuture proposed action. Atthe time the credits

are used, the State, Tribe or local agency must certify that the reductions still
meet the criteria listed above. The credits mustbe usedin the same calendar year in which they are generated under thisprogram.

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 causedby the action. First, the Federal agency mustbe able to quantify the reductions using reliable techniques. In some cases, however, itmay not be possible to precisely quantify the reductions until after the measure hasbeen implemented. For example, afacility may adopt a strategy calling for the purchase and use ofalternate-fueled vehicles. Although the agency could calculate the difference in the emissions between the alternate-fueled vehicle and the standard vehicle, it maynot know the amount the vehicles willbe used. In this case, the State or Tribe andFederal agency could agree on an emission factor and determine the use at alater time. However, the reductions mustbe quantified before the credit is used to support a conformity determination.

In paragraph (c), EPA establishes the requirements for the use ofthe credits. Ifthe emission reduction credits are created at the same facility and in the

same nonattainment or maintenance

area as the Federal action, the credits

canbe 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 deminimis levels for the area. Ifthe 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 ifthe action emissions fall below de minimis thresholds. In this context, "same facility" means a contiguous area thata Federal agency manages orexercises control over. Generally, all actions and operations within a fence line ofa 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 ofdiesel generators and auxiliary power units at

an airport terminal. Those reductions could be considered tobe implemented

as part of an airport expansion project
to improve the terminal andthus would be at the "same facility."

Since the General Conformity program isbased on annual emissions, EPA is requiring thatthe credits be used in the same year as they are generated under the program. Such arestriction would ensure consistency with the other parts ofthe General Conformity
program. This does not mean that an emission reduction strategy cannot produce an annual stream of credits, but does mean thatthe reduction credits
cannot be carried over to another year. Although the emission reduction credits
must meet the criteria for use ofoffsets

or othermitigation measures, EPA isnot 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 thistime, EPA believes that, because ofthe newness of the emission reduction credit program and the lack of available implementation data, it isbetter to take

a conservative approach on implementing the program to ensure that itcan be effectively implemented and evaluated.
Comment:Most commenters supported EPA's proposal to allow the

use ofemission reduction credits (ERCs). One commenter thought that EPA should clarify when the ERCs can be used. Several commenters disagreed with theproposal, citing concerns such

as violations ofconformity, while another was concerned about the additional resources required to certify the ERC and track them over time, and avoidance offormal conformity determinations. Still another commenter thought thatunder §93.165(b)(4) there is no ability for States andthe public to enforce the measures relied upon to generate emission reduction credits.

Response:The EPA believes thatby 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 annualbasis, the unused credits wouldbenefit the environment. The emission reduction programs couldbe implemented in conjunction with the action requiring the conformity determination. Therefore, the use ofERC would not encourage an agency to violate conformity. In any event, underthis 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. Statutoryand Executive Order Reviews

A. Executive Order12866:Regulatory PlanningandReview

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 orplanned by other Federal agencies. Accordingly, EPA submitted this action to the Office ofManagement and Budget (OMB) forreview under EO 12866 and any changes made in
response to OMB recommendations have been documented in the docketfor this action.

B. Paperwork ReductionAct
This action does not directly impose

an information collection burden under the provisions ofthe Paperwork Reduction Act, 44 U.S.C. 3501 etseq.,

onnon-Federal entities. The General Conformity Regulations require Federal agencies to determine thattheir actions conform to the SIPs orTIPs. However, depending upon howFederal agencies implement theregulations, 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 thatmay result in a different burden. Forexample, 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 ofdeveloping thebudget. However, those entities are notrequired
to implement such a program and would be relieved ofthe burden of conducting and reviewing some, ifnot all, ofthe General Conformity determinations for the facility ifthey do

so. States are not required to implement

aprogram that would increase their burden, and we assume they wouldnot choose to do so.
C.RegulatoryFlexibility Act
The Regulatory Flexibility Act (RFA) generally requires an Agency toprepare

aregulatory flexibility analysis ofany 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 nothave

a significant economic impact on a substantial number of small entities. Small entities include smallbusinesses, small organizations, and small governmental jurisdictions.

For purposes ofassessing the impacts this final rule on small entities, small entity is defined as: (1)A smallbusiness 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 thatis a government of a city, county, town, school district or special district with a population ofless than 50,000; and (3)A small organization that is any not-for-profit enterprise which isindependently owned and operated and is not dominant in its field.

After considering the economic impact ofthis final rule on small entities, Icertify thatthis action willnot 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 thattheir actions conform to the appropriate State, tribal

orFederal implementation plan for attaining clean air.

D. UnfundedMandatesReformAct

This action contains no Federal mandates under the provisions ofTitle II ofthe Unfunded Mandates Reform Act of 1995 (UMRA), 2U.S.C. 1531- 1538 for State, local, or tribal governments or theprivate 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 ofthe UMRA.

This action is also not subject to the requirements of section 203 ofUMRA 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 thattheir actions conform to the appropriate State, tribal orFederal implementation plan for attaining clean air.

E.Executive Order13132-Federalism

This action does not have federalism implications. It will nothave substantial direct effects on the States, onthe relationship between the national government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132. The General Conformity Regulations set requirements on Federal agencies to show thattheir actions conform tothe appropriate State, tribal or Federal implementation plan for attaining clean air. Thus, Executive Order 13132 does
not apply to this action.

F.Executive Order13175-Consultation andCoordinationWithIndian 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 ofpower and responsibilities between the Federal government and Indian Tribes. The CAA and the Tribal Air Rule establish the relationship ofthe Federal government and Tribes in developing plans to attain the NAAQS, andthese revisions to the regulations donothing
to modify thatrelationship. Thus, Executive Order 13175 does not apply
to this action.

G. Executive Order13045:Protectionof ChildrenFromEnvironmentalHealth andSafetyRisks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only
to those regulatory actions that concern health or safety risks, such thatthe analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045because itdoes not establish

an environmental standard intended to mitigate health or safety risks.

H. Executive Order13211:ActionsThat Significantly Affect EnergySupply, 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 ofenergy. The General Conformity Regulations set requirements on Federal agencies to show thattheir actions conform tothe 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 NationalTechnologyTransferand AdvancementAct

Section 12(d) ofthe 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 adoptedby 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 Order12898:Federal Actions ToAddressEnvironmental Justicein MinorityPopulations and Low-Income Populations

Executive Order (EO) 12898 (59FR 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 oftheir mission by identifying and addressing,

as appropriate, disproportionately high and adverse human health or environmental effects oftheirprograms, policies, and activities on minority populations and low-income populations in the United States.

The EPA has determined thatthis final rule will nothave disproportionately high and adverse human health or environmental effects

onminority 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 affectthe health or safety ofminority or low income populations. The EPA encourages other agencies to carefully consider and address environmental justice in their implementation oftheir evaluations and conformity determinations.

K. Congressional ReviewAct
The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement

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Fairness Act of 1996, generally provides thatbefore a rule may take effect, the agency promulgating the rulemust submita rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the FederalRegister. A majorrule
cannot take effect until 60 days after it is published in the Federal Register. This action is not a "major rule" as defined by 5U.S.C. 804(2). This rule will be effective July 6, 2010.

VII. StatutoryAuthority

The statutory authority for this action is providedby section 176(c) ofthe CAA

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

List of Subjects

40 CFRPart 51

Environmental protection, Administrative practice and procedures, Air pollution control, Carbonmonoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

40 CFRPart 93

Environmental protection, Administrative practice and procedures, Air pollution control, Carbonmonoxide, 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.
* Forthereasons statedinthepreamble, title 40, chapter Iofthe Code ofFederal Regulations is amended as follows:

PART 51-REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS

m 1. The authority citation for part51 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 andreserve §51.850.
* 3.Section 51.851 isrevised toread as follows: §51.851 State implementation plan(SIP)
orTribal implementation plan (TIP) revision. (a)A State or eligible Tribe (a federally recognized tribal government determined tobe eligible to submit a TIP under 40 CFR 49.6) may submitto the Environmental Protection Agency (EPA) a revision toits applicable implementation plan which contains criteria and procedures for assessing the conformity ofFederal 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 of40 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 ofthe State ortribal conformity provisions (or

a portion thereof) in a revision to the applicable SIP or TIP, conformity determinations shallbe 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, ofthe 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 ifthe 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 orTribe
may identify a list ofFederal actions or type ofemissions thatit presumes will conform. The State or Tribe may place whatever limitations on that listthatit deems necessary. The State orTribe
must demonstrate thatthe action will
not interfere with timely attainment or maintenance ofthe standard, meeting the reasonable further progress milestones orother requirements ofthe Clean Air Act. Federal agencies can rely

on the listto determine thattheir 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 through51.860 [Removed andReserved] * 4.Remove andreserve §§ 51.852 through 51.860.

PART 93-DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE TRIBAL OR FEDERAL IMPLEMENTATION PLANS

5.The authority citation for part93 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) andby adding paragraph (e) to read as follows:
§93.150 Prohibition.

(e) Ifan 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 isrevised toread as follows:
§93.151 State implementation plan (SIP) revision.

The provisions and requirements of this subpart to demonstrate conformity required under section 176(c) ofthe 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 (ora portion thereof) in a revision to an applicable implementation plan, a conformity evaluation is governed by the approved (orapproved portion of the) State or Tribe's criteria and procedures. The Federal conformity regulations contained in this subpart apply onlyfor the portions, ifany, ofthe 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:



### ma.Adding inalphabetical order a definition for "Applicability analysis." * b. Revisingthe definition of "Applicable implementation plan or applicable SIP." 

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mc.Revising the definition for "Areawide air quality modeling analysis." * d. Addingthe 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 definitionof"Indirect Emissions." 

## * j.Revising the definition of"Local air quality modeling analysis." * k.Revisingthe definitions for "Maintenance area" and "Metropolitan Planning Organization (MPO)." * 1.Adding in alphabetical order a definition for "Mitigation measure.
mm. Revising the definitionfor "National ambient air quality standards (NAAQS)." En.Inthe definitions for"Precursors of

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

n o. Revisingthe definition for "Reasonably foreseeable emissions." * p. Removing the definition for "Regionally significant action." * q.Adding the followingdefinitions: "Restricted information." Er.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.

* * * * *

Applicabilityanalysisis the process ofdetermining ifyourFederal action
must be supported by a conformity determination.

Applicableimplementation planor applicableSIPmeans theportion (or portions) ofthe SIP ormost recent revision thereof,which hasbeen approved under section 110(k) ofthe Act, a Federal implementation plan promulgated under section 110(c) ofthe Act, or a plan promulgated or approved pursuant to section 301 (d) ofthe Act (Tribal implementation plan or TIP) and which implements the relevant requirements ofthe Act.

Areawideairqualitymodeling analysismeans an assessment on a scale that includes the entire nonattainment

ormaintenance 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.

* * * * *

Confidentialbusinessinformation (CBI)means information thathas been determined by a Federal agency, in accordance with its applicable regulations, tobe a trade secret, or commercial or financial information obtained from a person and privileged

or confidential and isexempt from required disclosure under the Freedom ofInformation Act (5U.S.C. 552(b)(4)). Conformitydeterminationis the evaluation (made after an applicability analysis is completed) that a Federal action conforms to the applicable implementation plan and meets the requirements ofthis subpart. Conformityevaluationis the entire
process from the applicability analysis through the conformity determination that is used to demonstrate thatthe Federal action conforms to the requirements ofthis subpart. Continuing programresponsibility

means aFederal agency has responsibility for emissions caused by: (1)Actions it takes itself; or (2)Actions ofnon-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 ofthe action that could affect the emissions. Continuous programto 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.

* * * * *

Directemissionsmeans those emissions ofa criteria pollutant orits
precursors that are caused orinitiated 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.

* * * * *

EmissionInventorymeans a listing of information on the location, type of
source, type and quantity ofpollutant emitted as well as other parameters of the emissions.

EPA means the U.S. Environmental Protection Agency.

* * * * *

Indirectemissionsmeans those emissions ofa criteria pollutant orits
precursors: (1)That are caused or initiated by the Federal action and originate inthe same nonattainment or maintenance area but

occur at a different time orplace as the action;

(2)That are reasonably foreseeable; (3)Thatthe agency can practically control; and

(4) Forwhich the agency has continuing program responsibility.

For the purposes ofthis definition,

evenifa Federal licensing, rulemaking

orother 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.

Localairqualitymodelinganalysis

means an assessment oflocalized 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

orEmission and Dispersion Model System) to determine the effects of emissions on air quality.

Maintenanceareameans an area that

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

MetropolitanPlanningOrganization (MPO) means the policyboard ofan organization created as a result ofthe designation process in 23 U.S.C. 134(d).

* * * * *

Mitigationmeasuremeans any method ofreducing emissions ofthe pollutant or itsprecursor taken at the location ofthe Federal action andused
to reduce the impact ofthe emissions of that pollutant caused by the action.

Nationalambientairquality standards(NAAQS) are those standards established pursuant to section 109 of the Act and include standards for carbon monoxide (CO2), lead (Pb), nitrogen dioxide (NO2), ozone, particulate matter (PM-10 and PM2.5), and sulfur dioxide (SO 2).

* * * * *

Precursorsofacriteria pollutantare:

* * * * *

(3) * * * (i) Sulfur dioxide (SO 2) in allPM2.5 nonattainment and maintenance areas, (ii)Nitrogen oxides in all PM2.5 nonattainment and maintenance areas unless both the State andEPA determine thatit is not a significant
precursor, and 

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(iii)Volatile organic compounds (VOC) and ammonia (NH3) onlyin PM2.5 nonattainment or maintenance

areas where either the State or EPA determines thatthey are significant precursors.

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

* * * * *

RestrictedInformationisinformation that isprivileged or thatis 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 orstarttheFederalactionmeans the date thatthe 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.

* * * * *

Tribalimplementation plan(TIP)

means a plan to implement the national ambient air quality standards adopted and submitted by afederally recognized Indian tribal government determined to be eligible under 40 CFR 49.9 andthe plan has been approved by EPA. * 9. Section 93.153 is amended as follows:



### ma.Byrevising the table in paragraph (b)(1). * b. By addingparagraph (c)(2)(xxii).



### mc.Byrevising paragraphs (d)(1) and (d)(2). * d. Byrevising paragraph (e)(2).



### me.By addingparagraph (e)(3). * f.Byrevising paragraph (f). * g.Byrevising paragraph (g) introductory text. * h.By addingparagraph (g)(3). * i.Byrevising paragraphs (h) introductory text, (h)(1), (h)(2), and (h)(4).



### mj.Byrevising paragraphs (i), (j),and (k).
§93.153 Applicabilityanalysis.

* * * * *

(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: VOC

.......................................... N

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

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

................. PM-10:

Moderate NAA's

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

........................... PM2. 5: Direct emissions

........................ S

02

..................

. .... ..... ... ..... ........ NOx (unless determined not to

be significant precursors)

...... VOC or ammonia (if determined

to be significant precursors)

.. Pb:All NAA'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 orTIP. Where the applicable SIP or TIP does
not specify a mixing height, the Federal agency can use the 3,000feet above ground level as a default mixing height, unless the agency demonstrates thatuse ofa 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 minornew or modified stationary sources that require

a permit under the new source review (NSR)program (Section 110(a)(2)(c) and Section 173 ofthe Act) or the prevention ofsignificant deterioration program (titleI, part C ofthe Act). (2)Actions in response to emergencies which are typically commenced on the order ofhours or days after the emergency and, if applicable, which meet the requirements ofparagraph (e) ofthis section.



### (e)* * * (2)For actions which are to be taken after those actions covered by paragraph (e)(1) ofthis section, the Federal agency makes a new determination asprovided in paragraph (e)(1) of this section and: (i) Provides a draft copy ofthe 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): 

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government in the nonattainment or maintenance area. Those organizations
must be allowed 15 days from the beginning ofthe extension period to comment on the draft determination; and

(ii)Within 30 days after making the determination, publish a notice ofthe determination by placing a prominent advertisement in a daily newspaper of general circulation in the area affected by the action. (3)Ifadditional actions are necessary in response to an emergency or disaster under paragraph (d)(2) ofthis section beyond the specified time period in paragraph (e)(2) ofthis 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 inno case shall this exemption extend beyond three 6- month periods except where an agency: (i) Provides information toEPA and the State or Tribe stating that the conditions that gave rise to the emergency exemption continue to exist andhow such conditions effectively prevent the agency from conducting a conformity evaluation.

(ii) [Reserved] (f)Notwithstanding other requirements ofthis subpart, actions specified by individual Federal agencies that have met the criteria set forth in either paragraphs (g)(1), (g)(2), or (g)(3) ofthis section and the procedures set forth in paragraph (h)ofthis section are "presumed to conform," except as provided in paragraph (j)ofthis 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 ofactions would equal or exceed any of the rates specified inparagraphs (b)(1)

or (2)ofthis 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) ofthis section:

(3)The Federal agency must clearly demonstrate thatthe emissions from the type or category ofactions and the
amount ofemissions 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 thatthe 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 setforth in paragraphs (g)(1), (g)(2), or (g)(3) ofthis 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 ofproposed activities that are "presumed to conform" and the basis for the presumptions. The notice
must clearly identify the type and size ofthe action that wouldbe "presumed
to conform" and provide criteria for determining ifthe type and size of action qualifies it forthe 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 andprovide at least 30 days forthe public to comment

onthe listofproposed activities "presumed to conform." Ifthe "presumed to conform" action has regional or national application (e.g., the action will cause emission increases in

excess ofthe deminimislevels identified in paragraph (b) ofthis section in more than one ofEPA's Regions), the Federal agency, as an alternative to sending itto EPA Regional Offices, can send the draft conformity determination to U.S. EPA, Office ofAir Quality Planning and Standards;

* * * * *

(4) The Federal agency must publish the final list ofsuch 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 emissionbudget 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 ofEPA's Interim Air Quality Policy on Wildland and Prescribed Fires or an equivalent replacement EPA policy. (3)Emissions for actions thatthe State

orTribe 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) ofthis 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 ifEPA or a third party shows thatthe action would: (1)Cause or contribute to any new violation ofany 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 ofany standard in any area; or (4) Delay timely attainment ofany 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 ofreasonable further progress; (ii)A demonstration ofattainment; or (iii)Amaintenance plan. (k)The provisions ofthis subpart shall apply in allnonattainment and maintenance areas except conformity requirements for newly designated nonattainment areas are not applicable until 1year after the effective date ofthe final nonattainment designation for each NAAQS and pollutant in accordance with section 176(c)(6) ofthe Act. * 10. Section 93.154 isrevised to read

as follows:
§93.154 Federal agency conformity responsibility.

Any department, agency, or instrumentality ofthe Federal government taking an action subject to this subpart must make its own conformity determination consistent with therequirements ofthis 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 havejurisdiction for various aspects ofa 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 isrevised 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 ofthe Act andthe MPO, a 30-day notice which describes the proposed action and the Federal agency's draft conformity determination

onthe action. Ifthe action has multiregional or national impacts (e.g., the action will cause emission increases in

excess ofthe deminimislevels identified in 

### §93.153(b) in three or more ofEPA's Regions), the Federal agency,
as an alternative to sending itto EPA Regional Offices, can provide the notice
to EPA's Office ofAir Quality Planning and Standards.

(b)AFederal 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 ofthe Clean AirAct 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 ofsuch materials. Subject to applicable procedures toprotect 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 byFederal and State representatives who have received appropriate clearances to review the information.
* 12. Section 93.156 isrevised toread

as follows: 

### §93.156 Publicparticipation. (a)Upon request by any person regarding a specific Federal action, a Federal agency must make available, subject to the limitation in paragraph (e) ofthis section, for review its draft conformity determination under 

### §93.154 with supporting materials which describe the analytical methods and conclusions relied upon inmaking the applicability analysis and draft conformity determination. (b)AFederal agency must make public its draft conformity determination under 

### §93.154 by placing

a notice by prominent advertisement in

a daily newspaper ofgeneral circulation in the area affected bythe 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 maybe concurrent with any other public involvement, such as occurs in the National Environmental Policy Act (NEPA) process. Ifthe action has multi-regional

ornational impacts (e.g., the action will

cause emission increases in excess of the deminimislevels identified in §93.153(b) in three or more ofEPA's Regions), the Federal agency, as an alternative topublishing separate notices, can publish a notice inthe 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) ofthis section, upon request by any person regarding a specific Federal action, within 30 days ofthe final conformity determination.

(d)A Federal agency must make public its final conformity determination under §93.154 for a Federal actionby placing a notice by prominent advertisement in a daily
newspaper ofgeneral circulation in the

area affected by the action within 30 days ofthe final conformity determination. Ifthe action would have multi-regional or national impacts, the Federal agency, as an alternative, can publish the notice inthe 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 ofsuch materials.
* 13. Section 93.157 isrevised toread

as follows:
§93.157 Reevaluation ofconformity.

(a) Once a conformity determination is completed by a Federal agency, that determination is not required tobe reevaluated ifthe agency has maintained

a continuous program to implement the action; the determination has not lapsed

as specified in paragraph (b) ofthis section; or any modification to the action does not result in an increase in emissions above the levels specified in §93.153(b). Ifa conformity determination is not required for the action at the time NEPA analysis is completed, the date ofthe finding ofno significant impact (FONSI)for an Environmental Assessment, a record of decision (ROD) for an Environmental Impact Statement, or a categorical exclusion determination canbe used as a substitute date for the conformity determination date. (b)The conformity status ofa Federal action automatically lapses 5years 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)Ifthe 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:

ma. Revising paragraphs (a)(1), (a)(2), (a)(3) introductory text and (a)(4) introductory text; * b. Revising paragraph (a)(5) introductory text;

mc. Revising paragraphs (a)(5)(i) introductory text, and (a)(5)(i)(C); * d.Adding paragraph (a)(5)(i)(D).

me. 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 Criteriafor determining conformity ofgeneral Federal actions. (a) * * * (1)For any criteria pollutant or precursor, the total ofdirect 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 afacility-wide emission budget included in a SIP in accordance with 

### §93.161;

(2)Forprecursors of ozone, nitrogen dioxide, or PM, the total ofdirect and indirect emissions from the action are fully offset within the same nonattainment or maintenance area (or nearby area ofequal orhigher 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 thatthere is no net increase in emissions ofthat pollutant; (3)For any directly-emitted criteria pollutant, the total ofdirect and indirect emissions from the action meets the requirements:

* * * * *

(4) ForCO or directly emitted PM-

* * * * *

(5)Forozone or nitrogen dioxide, and for purposes ofparagraphs (a)(3)(ii) and (a)(4)(ii) ofthis section, each portion of the action or the action as a whole meets any ofthe 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) ofthis section orwhere the State or Tribe makes a commitment as provided in paragraph (a)(5)(i)(B) ofthis 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) ofthis section and the State has submitted a SIP orTIP 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) ofthe Act, effective onthe date ofthe 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) ofthis 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 ofthe conformity determination, the State or Tribe must,within 18 months, submitto EPA a revision to the existing SIP committing to include the emissions in the future SIP revision.

(iii)The action (orportion thereof) fully offsets its emissions within the

same nonattainment or maintenance

area (or nearby area ofequal 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 orgreater than the total ofdirect andindirect emissions from the action so thatthere is no netincrease in emissions ofthat pollutant; (iv)Where EPA has not approved a revision to the relevant SIP since the

area was designated or reclassified, the total ofdirect 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 anotheryear; or (2) The emission budget in the applicable SIP;

• * * * *

(B) The baseline emissions are the total ofdirect 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) ofthis 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. Revisingparagraphs (b)(2) and (c) introductory text; and



### mc.Revising paragraph (d).

The revisions and additions read as follows:
§93.159 Procedures for conformity determinations ofgeneral Federal actions.

• * * * *

(b)The analyses required under this subpart must bebased on the latest and
most accurate emission estimation techniques available as described below, unless such techniques are inappropriate. Ifsuch techniques are inappropriate, the Federal agency may obtain written approval from the appropriate EPA Regional Administrator for amodification or substitution, of another technique on a case-by-case basis or, where appropriate, on ageneric basis for a specific Federal agency program. (1)* * * (ii)A grace period of3months shall apply during which the motor vehicle emissions model previously specified by EPA as the mostcurrent version may be used unless EPA announces alonger grace period in the Federal Register. Conformity analyses for which the analysis was begun during the grace period or no more than 3months before the Federal Register notice of availability ofthe latest emission model
may continue to use the previous version ofthe 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 "Compilationof 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 ofthe conformity analysis. (c) The air quality modeling analyses required under this subpart must be based on the applicable air quality models, databases, and other requirements specified in the most recent version ofthe "Guideline on Air Quality Models." (Appendix Wto 40 CFR part 51).

* * * * *

(d)The analyses required under this subpart mustbe based on the total of direct and indirect emissions from the action and must reflect emission scenarios that are expected to occur under each ofthe following cases: (1)The attainment year specified in the SIP, or ifthe 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 tobe the greatest on

an annual basis; and (4) Anyyear 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



### mc. Revising paragraph (g). 

### §93.160 Mitigationof air qualityimpacts.

* * * * *

(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 tomitigation

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. SubpartB is amendedbyadding §93.161 to read as follows:
§93.161 Conformityevaluation for Federal installationswithfacility-wideemission budgets.

(a)The State, local ortribal agency responsible for implementing and enforcing the SIP or TIP canin 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 settime period; (2)Cover the pollutants or precursors ofthe pollutants for which the area is designated nonattainment or maintenance; (3)Include specific quantities allowed
tobe 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 toEPA 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) ofthis section can be revised byfollowing 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 notrequire a conformity analysis.

(d)Ifthe total direct andindirect 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) ofthis section, the action mustbe evaluated for conformity. AFederal agency canuse the compliance with the facility-wide 

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emissions budget as part ofthe demonstration ofconformity, i.e., the
agency would have to mitigate or offset the emissions that exceed the emission budget. (e) Ifthe SIP forthe area includes a category for construction emissions, the negotiated budget can exempt construction emissions from further conformity analysis. * 18. SubpartB is amendedbyadding §93.162 to read as follows: §93.162 Emissions beyond thetime period covered bythe SIP.

Ifa 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 orTribe
must submit a SIP orTIP 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 ofthe SIP revision. No such commitment by a State or Tribe shall restrict a State's or Tribe's abilityto require RACT, RACM

orany other control measures within the State's or Tribe's authority to ensure timely attainment ofthe NAAQS.
* 19. SubpartB is amendedbyadding §193.163 toread as follows:
§93.163 Timing ofoffsetsand 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, asprovided 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

.................................... 1.15:1 (v) All other areas

................. 1.1:1

(2)The time period for completing the emissions reductions must not exceed twice the period of the emissions. (3)The offset or mitigation measure with emissions reductions in another year will not: (i) Cause or contribute to a new violation ofany air quality standard, (ii)Increase the frequency or severity of any existing violation ofany 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 orTribe 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 ofthe State

or Tribe, and they are not required to approve an alternate schedule. * 20. SubpartB is amended byadding §93.164 to read asfollows:
§93.164 Inter-precursor mitigation
measures and offsets.

Federal agencies must reduce the

same type ofpollutant as being increased by the Federal action except the State or Tribe may approve offsets

or mitigation measures of different
precursors ofthe same criteria pollutant, if such trades are allowed by a State or Tribe in a SIP or TIP approved NSR regulation, is technicallyjustified, and has a demonstrated environmental benefit. * 21. SubpartB is amended byadding §93.165 to read asfollows:
§93.165 Earlyemission reduction credit programs at Federal facilitiesand installation subjectto Federal oversight.

(a)Federal facilities and installations subject toFederal oversight can, with the approval ofthe State ortribal 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) ofthis section and can use them in accordance with paragraph (c) ofthis section. (b) Creation of emission reduction credits. (1)Emissions reductions mustbe quantifiable through the use of standard emission factors or measurement techniques. Ifnon-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 ofthe SIP or TIP and from EPA's Regional Office. The emission reduction credits do not have
to be quantified before thereduction strategy isimplemented, 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 andFederal air quality agencies mustbe able totake legal action to ensure continued implementation ofthe emission reduction strategy. In addition,private citizens must alsobe able to initiate action to ensure compliance with the control requirement.

(5)The emissions reductions must be permanent or the timeframe for the reductions mustbe specified. (6) The Federal agency must document the emissions reductions and provide a copy ofthe document to the State or tribal air quality agency and the EPA regional office for review. The documentation must include a detailed description ofthe emission reduction strategy and a discussion ofhowit
meets the requirements ofparagraphs (b)(1) through (5)ofthis section.

(c) Use ofemission reduction credits. The emission reduction credits created in accordance with paragraph (b) ofthis section canbe used, subject to the following limitations, to reduce the emissions increase from a Federal action
atthe facility for the conformity evaluation.

(1)Ifthe 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

canbe used to reduce the total direct and indirect emissions usedto determine the applicability ofthe regulation as required in §93.153 and as offsets or mitigation measures required by §93.158. (2)Ifthe technique used to create the emission reduction is not implemented
atthe same facility as the Federal action

orcould not have occurred in conjunction with the Federal action, then the credits cannot be usedto reduce the total direct andindirect emissions used to determine the applicability ofthe regulation as required in §93.153, but canbe usedto 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 ortribal air quality agency responsible for the implementation of the SIP or TIP and EPA Regional Office when the emission reduction credits are being used.

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

BILLING CODE 6560-50-P 

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