Monday, 

April 5, 2010 

Part III 

Environmental 

Protection Agency 

40 CFR Parts 51 and 93 

Revisions to the General Conformity 

Regulations; Final Rule 


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ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 93 

[EPA–HQ–OAR–2006–0669; FRL–9131–7] 

RIN 2060–AH93 

Revisions to the General Conformity 

Regulations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is revising its 

regulations relating to the Clean Air Act 

(CAA) requirement that Federal actions 

conform to the appropriate State, tribal 

or Federal implementation plan (SIP, 

TIP, or FIP) for attaining clean air 

(‘‘General Conformity’’). EPA and other 

Federal agencies have gained experience 

with the implementation of the existing 

regulations, which were promulgated in 

1993 (and underwent minor revisions in 

2006), and have identified several issues 

with their implementation. In addition, 

in 2004, EPA issued regulations to 

implement the revised ozone national 

ambient air quality standards (NAAQS) 

and in 2007 issued regulations to 

implement the new fine particulate 

matter standard. State and other air 

quality agencies are in the process of 

developing revised plans to attain the 

new standards and the revisions to the 

General Conformity Regulations will be 

helpful to the State, Tribe, and local 

agencies in developing, and Federal 

agencies in commenting, on the 

proposed SIPs revisions. This rule 

revision will also facilitate Federal 

agency compliance with conforming its 

activities to the SIPs thereby preventing 

violations of the NAAQS. This rule 

revision provides for a timely and 

effective process for Federal agencies 

and States and Tribes to ensure Federal 

activities are incorporated in these SIPs. 

Where that is not possible, it provides 

an efficient and effective process for 

Federal agencies to ensure their actions 

do not cause or contribute to a violation 

of the NAAQS or interfere with the 

purpose of a SIP, TIP or FIP to attain or 

maintain the NAAQS. 

DATES: This action is effective on July 6, 

2010. 

ADDRESSES: EPA has established a 

docket for this rulemaking under Docket 

ID No. EPA–HQ–OAR–2006–0669. All 

documents in the docket are listed in 

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

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the EPA Docket Center EPA/DC, EPA 

West, Room 3334, 1301 Constitution 

Avenue, Northwest, Washington, DC. 

The Public Reading Room is open from 

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

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the EPA 

Docket Center is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Thomas Coda, Office of Air Quality 

Planning and Standards, U.S. 

Environmental Protection Agency, Mail 

Code C539–02, Research Triangle Park, 

NC 27711, phone number (919) 541– 

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

or Mr. H. Lynn Dail, Office of Air 

Quality Planning and Standards, U.S. 

Environmental Protection Agency, Mail 

Code C539–02, Research Triangle Park, 

NC 27711, phone number (919) 541– 

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

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities affected by this rule include 

Federal agencies and public and private 

entities that receive approvals or 

funding from Federal agencies such as 

airports and seaports. 

B. How is this preamble organized? 

The information presented in this 

preamble is organized as follows: 

Outline 

I. General Information 

A. Does this action apply to me? 

B. How is this preamble organized? 

C. When did EPA propose these revisions 

to the General Conformity Regulations? 

D. Where can I obtain additional 

information? 

II. Background 

A. What is General Conformity and how 

does it affect air quality? 

B. Why is EPA revising these regulations 

at this time? 

III. How are the existing regulations 

implemented? 

A. Applicability Analysis 

B. Conformity Determination 

C. Review Process 

IV. Comments Submitted on the Proposed 

Rule 

V. Summary of the Final Revisions and 

Clarifications of the General Conformity 

Regulations 

A. Overview of Revisions to the General 

Conformity Regulations 

B. What Innovative and Flexible 

Approaches Are Being Finalized? 

C. What Burden Reduction Measures Are 

Being Finalized? 

D. What Revisions Provide Tools and 

Guidance for Transitioning to New or 

Revised NAAQS? 

E. What Revisions Are Being Finalized at 

the Request of Other Agencies? 

F. What Are Some of the Clarifications to 

the Existing Regulations That Are Being 

Finalized? 

VI. Detailed Discussion of the Final Revisions 

to and Clarifications of the General 

Conformity Regulations 

A. 40 CFR Part 51, Subpart W— 

Determining Conformity of General 

Federal Actions to State or Federal 

Implementation Plans 

B. 40 CFR 93.150—Prohibition 

C. 40 CFR 93.151—SIP Revision 

D. 40 CFR 93.152—Definitions 

E. 40 CFR 93.153—Applicability Analysis 

F. 40 CFR 93.154—Federal Agencies 

Responsibility for a Conformity 

Determination 

G. 40 CFR 93.155—Reporting 

Requirements 

H. 40 CFR 93.156—Public Participation 

I. 40 CFR 93.157—Re-Evaluation of 

Conformity 

J. 40 CFR 93.158—Criteria for Determining 

Conformity for General Federal Actions 

K. 40 CFR 93.159—Procedures for 

Conformity Determinations for General 

Federal Actions 

L. 40 CFR 93.160—Mitigation of Air 

Quality Impacts 

M. 40 CFR 93.161—Conformity 

Evaluations for Installations With 

Facility-Wide Emission Budget 

N. 40 CFR 93.162—Emissions Beyond the 

Time Period Covered by the Applicable 

SIP or Tribal Implementation Plan (TIP) 

O. 40 CFR 93.163—Timing of Offsets and 

Mitigation Measures 

P. 40 CFR 93.164—Inter-Precursor Offsets 

and Mitigation Measures 

Q. 40 CFR 93.165—Early Emission 

Reduction Credit Program 

VII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Judicial Review 

VIII. Statutory Authority 


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C. When did EPA propose these 

revisions to the General Conformity 

Regulations? 

The EPA proposed the revised 

General Conformity Regulations in the 

Federal Register on January 8, 2008 at 

73 FR 1402. 

D. Where can I obtain additional 

information? 

In addition to being available in the 

docket, an electronic copy of this final 

rule is also available on the worldwide 

web. Following signature by the EPA 

Administrator, a copy of this notice will 

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

genconform/regs.htm. 

II. Background 

A. What is General Conformity and how 

does it affect air quality? 

The intent of the General Conformity 

requirement is to prevent the air quality 

impacts of Federal actions from causing 

or contributing to a violation of the 

NAAQS or interfering with the purpose 

of a SIP, TIP, or FIP. 

In the CAA, Congress recognized that 

actions taken by Federal agencies could 

affect State, Tribal, and local agencies’ 

ability to attain and maintain the 

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

7506) of the CAA, Congress established 

requirements to ensure Federal agencies 

proposed actions conform to the 

applicable SIP, TIP or FIP for attaining 

and maintaining the NAAQS. That 

section requires Federal entities to find 

that the emissions from the Federal 

action will conform to the purposes of 

the SIP, TIP or FIP or not otherwise 

interfere with the State’s or Tribe’s 

ability to attain and maintain the 

NAAQS. 

The CAA Amendments of 1990 

clarified and strengthened the 

provisions in section 176(c). Because 

certain provisions of section 176(c) 

apply only to highway and mass transit 

funding and approval actions, EPA 

published two sets of regulations to 

implement section 176(c). The 

Transportation Conformity Regulations, 

first published on November 24, 1993 

(58 FR 62188) and revised on July 1, 

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

FR 24280 and March 10, 2006 at 71 FR 

12468, and January 24, 2008 at 73 FR 

4420, address Federal actions related to 

highway and mass transit funding and 

approval actions. The General 

Conformity Regulations, published on 

November 30, 1993 (58 FR 63214), cover 

all other Federal actions. 

B. Why is EPA revising these regulations 

at this time? 

On July 17, 2006 at 71 FR 40420, EPA 

revised the General Conformity 

Regulations to include de minimis 

emission levels for particulate matter 

with an aerodynamic diameter equal to 

or less than 2.5 microns (PM2.5) and its 

precursors. Otherwise, EPA has not 

revised the General Conformity 

Regulations since they were 

promulgated in 1993. Since that time, 

EPA and other Federal agencies have 

gained experience with the 

implementation of the existing 

regulations and have identified several 

issues with their implementation. To 

address these issues, EPA initiated a 

process to review, revise and streamline 

the regulations. In addition, EPA is in 

the process of developing regulations to 

implement the revised ozone standard 

and regulations to implement the new 

particulate matter standard. In the near 

future, State and local air quality 

agencies will be required to develop 

revised SIPs to attain these new 

standards. Knowledge of the revised 

General Conformity Regulations will be 

helpful to the State, Tribal, and local 

agencies in the SIP development process 

as well as the Federal agencies in 

commenting on the proposed SIP 

revisions. This rule revision will also 

facilitate Federal agency compliance 

with conforming its activities to the SIPs 

and thereby preventing violations of the 

NAAQS. 

III. How are the existing regulations 

implemented? 

Federal agencies and other parties 

involved in the conformity process have 

found that in implementing the existing 

General Conformity Regulations their 

process falls into three phases: (A) 

Applicability analysis, (B) Conformity 

determination, and (C) Review process. 

Besides ensuring that the Federal 

actions are in conformance with the SIP, 

the regulations encourage consultation 

between the Federal agency and the 

State or local air pollution control 

agencies before and during the 

environmental review process. 

The existing regulations do not 

specifically identify the roles of Indian 

Tribes in the General Conformity 

process or the connection between the 

regulations and TIPs. In the revised 

regulations, EPA has specifically 

identified tribal agencies as stakeholders 

in the conformity process such as 

requiring specific notification for any 

federally recognized Tribes in the 

nonattainment or maintenance area 

where the action is occurring. In 

addition, the revised regulations also 

clarify that Federal actions must 

conform to any applicable TIP. 

A. Applicability Analysis 

The National Highway System 

Designation Act of 1995 (Pub. L. 104– 

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

to limit applicability of the conformity 

programs only to areas designated as 

nonattainment under section 107 of the 

CAA and maintenance areas established 

under section 175A of the CAA. 

Therefore, only actions which cause 

emissions in designated nonattainment 

and maintenance areas are subject to the 

regulations. In addition, the regulations 

recognize that the vast majority of 

Federal actions do not result in a 

significant increase in emissions and, 

therefore, include a number of 

exemptions such as de minimis 

emission levels based on the type and 

severity of the nonattainment problem. 

In the applicability analysis phase, 

the Federal agency determines: 

1. Whether the action will occur in a 

nonattainment or maintenance area; 

2. Whether one or more of the specific 

exemptions apply to the action; 

3. Whether the Federal agency has 

included the action on its list of 

‘‘presumed to conform’’ actions; 

4. Whether the total direct and 

indirect emissions are below or above 

the de minimis levels; and/or 

5. Where the facility has an emission 

budget approved by the State or Tribe as 

part of the SIP or TIP, the Federal 

agency determines if the emissions from 

the proposed action are within the 

budget. 

If the action will cause emissions 

above the de miminis in any 

nonattainment or maintenance area and 

the action is not otherwise exempt, 

‘‘presumed to conform,’’ or included in 

the existing emissions budget of the SIP 

or TIP, the agency must conduct a 

conformity determination before it takes 

the action. 

B. Conformity Determination 

When the applicability analysis 

shows that the action must undergo a 

conformity determination, Federal 

agencies must first show that the action 

will meet all SIP control requirements 

such as reasonably available control 

measures, and the emissions from the 

action will not cause a new violation of 

the standard, or interfere with the 

timely attainment of the standard, the 

maintenance of the standard, or the 

area’s ability to achieve an interim 

emission reduction milestone. Federal 

agencies then must demonstrate 

conformity by meeting one or more of 

the methods specified in the regulation 

for determining conformity: 


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1. Demonstrating that the total direct 

and indirect emissions are specifically 

identified and accounted for in the 

applicable SIP, 

2. Obtaining a written statement from 

the State, Tribe or local agency 

responsible for the SIP or TIP 

documenting that the total direct and 

indirect emissions from the action along 

with all other emissions in the area will 

not exceed the SIP emission budget, 

3. Obtaining a written commitment 

from the State or Tribe to revise the SIP 

or TIP to include the emissions from the 

action, 

4. Obtaining a statement from the 

metropolitan planning organization 

(MPO) for the area documenting that 

any on-road motor vehicle emissions are 

included in the current regional 

emission analysis for the area’s 

transportation plan or transportation 

improvement program, 

5. Fully offsetting the total direct and 

indirect emissions by reducing 

emissions of the same pollutant or 

precursor in the same nonattainment or 

maintenance area, or 

6. Conducting air quality modeling 

that demonstrates that the emissions 

will not cause or contribute to new 

violations of the standards, or increase 

the frequency or severity of any existing 

violations of the standards. Air quality 

modeling cannot be used to demonstrate 

conformity for emissions of ozone 

precursors or nitrogen dioxide (NO2). As 

stated in EPA’s proposal of the 1993 

regulations (58 FR 13845), due to the 

complex interaction of the ozone 

precursors, the regional nature of the 

ozone and NO2 problems, and 

limitations of current air quality models, 

it is not generally appropriate to use an 

air quality model to determine the 

impact on ozone or NO2 concentrations 

from a single emission source or a single 

Federal action. 

C. Review Process 

As public bodies, Federal agencies 

must make their conformity 

determinations through a public 

process. The General Conformity 

Regulations require Federal agencies to 

provide notice of the draft 

determination to the applicable EPA 

Regional Office, the State and local air 

quality agencies, the local MPO and, 

where applicable, the Federal Land 

Manager(s)(FLM). In addition, the 

regulations require Federal agencies to 

provide at least a 30-day comment 

period on the draft determination and 

make the final determination public. 

State agencies and the public can appeal 

the final determination in the U.S. 

Courts system. Failure by a Federal 

agency to follow the substantive and 

procedural General Conformity 

requirements can result in an adverse 

court decision if challenged. 

IV. Comments Submitted on the 

Proposed Rule 

The proposed rule on the ‘‘Revisions 

to the General Conformity Regulations’’ 

was issued on January 8, 2008 (73 FR 

1402). The EPA received 65 letters from 

State and local governments, Federal 

agencies, environmental groups, and 

private citizens commenting on the 

proposed regulations. Some of the 

comments are discussed in section VI of 

this notice as they were relevant to the 

detailed discussion of revisions. The 

EPA has included a response to 

comments document which addresses 

all of the timely comments received on 

the proposed rule in the docket of this 

rulemaking action (See Docket No. 

EPA–HQ–OAR–2006–0669). 

V. Summary of the Final Revisions and 

Clarifications of the General 

Conformity Regulations 

A. Overview of Revisions to the General 

Conformity Regulations 

In accordance with the requirements 

of section 176(c)(4)(C) of the CAA, when 

EPA promulgated General Conformity 

Regulations in 1993 in 40 CFR 93 

subpart B (sections 150 to 160), it also 

promulgated regulations at 40 CFR part 

51, subpart W (sections 850–860) which 

required States to adopt and submit SIPs 

for General Conformity. In August 2005, 

Congress passed the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA–LU) 

which eliminated the requirement for 

States to adopt and submit General 

Conformity SIPs. Therefore, EPA is 

revising its regulations to make the 

adoption and submittal of the General 

Conformity SIP or TIP optional for the 

State or Tribe. 

Because 40 CFR part 51, subpart W 

(§§ 51.850–51.860) essentially 

duplicates the regulations promulgated 

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

93.160), EPA is deleting all of subpart W 

except for § 51.851. In the revision to 

§ 51.851, EPA is requiring that if a State 

or Tribe submits a General Conformity 

SIP or TIP that it be consistent with the 

requirements of 40 CFR part 93, subpart 

B. The EPA added paragraph (f) to 40 

CFR 51.851 to allow the States and 

Tribes to develop their own ‘‘presumed 

to conform’’ list for actions covered by 

their conformity SIPs or TIPs. 

In 40 CFR part 93, subpart B, EPA is 

making specific revisions to the 

regulations which (1) Clarify the 

process, (2) delete outdated or 

unnecessary requirements, (3) authorize 

innovative and flexible approaches, (4) 

reduce the paperwork burden, (5) 

provide transition tools for 

implementing new standards, (6) 

address issues identified by 

implementing agencies, and (7) provide 

a better explanation of regulations and 

policies. 

Several of the revisions encourage 

both the Federal agencies and the States 

or Tribes to take actions in advance of 

the project environmental review. Such 

advance action should speed the review 

process for the individual projects and 

reduce the delays for the project without 

impairing the environmental review. 

This is discussed in more detail in 

section VI below. 

B. What Innovative and Flexible 

Approaches Are Being Finalized? 

1. The EPA is adding a new section 

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

this voluntary arrangement, Federal 

agencies, in anticipation of future major 

actions, may negotiate a facility-wide 

emission budget with the appropriate 

State, tribal, or local air quality agency 

responsible for the SIP or TIP. The State, 

tribal, or local agency could incorporate 

the facility-wide emission budget into 

the applicable SIP or TIP and submit it 

to EPA for approval. After EPA approves 

the SIP or TIP, any action at the facility 

can be ‘‘presumed to conform’’ provided 

that the emissions from the proposed 

action along with all other emissions at 

the facility are within the EPA approved 

facility-wide emission budget and a 

conformity determination would not be 

necessary. Alternatively, a facility with 

an approved facility-wide emission 

budget could demonstrate conformity by 

the conventional methods afforded in 

the General Conformity Regulations. For 

example, once approved, minor actions 

under the control of the facility where 

an applicability analysis results in a 

determination that the emissions are 

below a de minimis threshold could 

proceed with no conformity 

determination. 

2. The EPA is adding a new section 

(40 CFR 93.165) to explicitly 

incorporate the use of early emission 

reduction credits into the regulations. 

The proposal reflects the provisions 

established by Congress in Federal 

Aviation Administration (FAA) 

Reauthorization Act of 2003 for the 

Airport Early Emission Reduction Credit 

(AERC) program and the guidance to 

implement that program. The revised 

regulations provide a similar framework 

for other Federal agencies. 

3. The EPA is adding a new section 

(40 CFR 93.164) to allow, with certain 

limitations, the emission of one 


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1Wayson, Roger, and Fleming, Gregg, 

‘‘Consideration of Air Quality Impacts by Airplane 

Operations at or Above 3000 feet AGL,’’ Volpe 

National Transportation Systems Center and FAA 

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

DTS–34, September 2000. http://www.faa.gov/ 

regulations_policies/policy_guidance/envir_policy/. 

precursor of a criteria pollutant to be 

mitigated or offset by the reduction in 

the emissions of another precursor of 

that pollutant. 

4. The EPA is adding a new section 

(40 CFR 93.163) to allow alternate 

schedules for mitigating emissions 

increases. The mitigation timing 

approach allows some flexibility for 

Federal agencies and States or Tribes to 

negotiate a program for some emissions 

mitigation to occur in future years. 

States or Tribes can allow this approach 

to accommodate short-term increases in 

emissions if they believe a substantial 

long-term reduction in emissions will 

result from a Federal action. 

C. What Burden Reduction Measures 

Are Being Finalized? 

1. The EPA is deleting the provision 

in the existing regulation (40 CFR 

93.153) that requires Federal agencies to 

conduct a conformity determination for 

regionally significant actions where the 

direct and indirect emissions of any 

pollutant represent 10 percent or more 

of a nonattainment or maintenance 

area’s emissions inventory for that 

pollutant, even though the total direct 

and indirect emissions from the actions 

are below the de minimis emission 

levels or the actions are otherwise 

‘‘presumed to conform’’. 

2. The EPA is adding in 40 CFR 

93.153 new types of actions that Federal 

agencies can include in their ‘‘presumed 

to conform’’ lists and EPA is also 

permitting States or Tribes to establish 

in their General Conformity SIPs or TIPs 

‘‘presumed to conform’’ lists for actions 

within their State or tribal area. 

3. The EPA is finalizing an exemption 

in 40 CFR 93.153 for the emissions from 

stationary sources permitted under the 

minor source New Source Review (NSR) 

programs similar to the EPA’s existing 

General Conformity regulation which 

already provides for exemptions for 

emissions from major NSR sources. 

D. What Revisions Provide Tools and 

Guidance for Transitioning to New or 

Revised NAAQS? 

1. The EPA is adding a definition in 

the regulation (40 CFR 93.152) for ‘‘Take 

or start the Federal action’’ to help 

Federal agencies determine what, if any, 

conformity requirements apply when an 

area is designated or re-designated as 

nonattainment. 

2. The EPA is adding requirements 

(40 CFR 93.153(k)) for the 

implementation of the statutory grace 

period for newly designated 

nonattainment areas. 

3. The EPA is adding alternate 

methods (40 CFR 93.162) to demonstrate 

conformity for time periods beyond 

those covered by the SIP or TIP. The 

EPA is also allowing States or Tribes to 

include an enforceable commitment in 

the SIP or TIP to address future 

emissions from a Federal action. 

E. What Revisions Are Being Finalized 

at the Request of Other Agencies? 

1. As part of EPA’s efforts to finalize 

an Air Quality Policy on Wildland and 

Prescribed Fires, which was undertaken 

in consultation with FLMs, EPA took 

comment on two possible approaches: 

To include a presumption of conformity 

for (1) prescribed fires conducted in 

accordance with a State certified smoke 

management programs (SMPs) which 

meets the requirements of EPA’s Interim 

Air Quality Policy on Wildland and 

Prescribed Fires or an equivalent 

replacement EPA policy, or (2) 

prescribed fires conducted in 

accordance with a State certified SMPs 

which meets the requirements of EPA’s 

Interim Air Quality Policy on Wildland 

and Prescribed Fires or an equivalent 

replacement EPA policy or, in the 

absence of a State certified SMP, where 

the Federal agency has obtained written 

assurance from the State prior to the 

burn that the planned burn employs 

State approved basic smoke 

management practices (BSMP). EPA is 

finalizing option 1 to include a 

presumption of conformity for 

prescribed fires that are conducted in 

compliance with SMPs (40 CFR 

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

prescribed fires employing BSMPs may 

be able to meet a presumption of 

conformity if such a presumption is 

established by an agency following the 

requirements of 93.153(g) or by a State 

following the requirements of 51.851(f). 

In the absence of such SMPs, we 

encourage States and Federal agencies 

to work together to develop and finalize 

SMPs or to include prescribed fires 

conducted in accordance with BSMPs as 

presumed to conform actions in the 

applicable SIP. In addition, Federal 

agencies could undertake actions in 

accordance with 40 CFR 93.153(f) and 

(g) to include prescribed fires conducted 

in accordance with specific BSMPs as 

actions that are presumed to conform. 

2. The EPA is finalizing the proposal 

(40 CFR 93.158) to allow Federal 

agencies to obtain emission offsets for 

general conformity purposes from 

another nearby nonattainment or 

maintenance area of equal or higher 

nonattainment classification provided 

the emissions from that area contribute 

to violation of the NAAQS in the area 

where the Federal action is located or, 

in the case of maintenance areas, the 

emissions from the nearby area 

contributed in the past to the violations 

in the area where the Federal action is 

occurring. 

3. At the request of several Federal 

agencies, EPA is clarifying the language 

in the regulation that states that nothing 

in these regulations (40 CFR 93.155 and 

40 CFR 93.156) requires the release of 

materials and other information where 

disclosure is restricted by law. Also, 

EPA is including a similar clarification 

for CBI. 

4. Several Federal agencies and others 

involved in the General Conformity 

process suggested that EPA should 

consider exempting construction 

activity emissions from the conformity 

regulations requirements (40 CFR 

93.153). Although the existing General 

Conformity Regulations do not 

specifically mention construction 

emissions, they implicitly require 

Federal agencies to include emissions 

from construction activities in the 

conformity evaluation. 

The EPA understands these concerns 

and, in the discussion about the revision 

to the definition of ‘‘caused by,’’ has 

identified a number of ways that Federal 

agencies can work with the State, Tribe, 

and local agencies to address 

construction emissions in the General 

Conformity assessment. However, EPA 

is not finalizing an exemption for 

construction emissions in the revisions 

and is instead affirming that emissions 

from construction activities must be 

considered in a conformity evaluation. 

5. At the request of the FAA, EPA is 

codifying one of the examples contained 

in the preamble to the existing General 

Conformity Regulations (58 FR 63229) 

that stated, ‘‘the EPA believes that the 

following actions are illustrative of de 

minimis actions: * * * Air traffic 

control activities and adopting 

approach, departure and enroute 

procedures for air operations.’’ The FAA 

conducted a study of ground level 

concentrations caused by elevated 

aircraft emissions released above ground 

level (AGL) using EPA-approved models 

and conservative assumptions.1 The 

study concluded that aircraft operations 

at or above the average mixing height of 

3,000 feet AGL have a very small effect 

on ground level concentrations and 

could not directly result in a violation 

of the NAAQS in a local area. 

Consequently, this study supports the 

example provided in EPA’s initial 

preamble language for air traffic control 

activities and adopting approach, 


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departure and enroute procedures for 

aircraft operations above the mixing 

height. As some of the commenters 

noted, the mixing height for some areas 

can vary and some SIPs and TIPs 

identify a specific mixing height to be 

used. Therefore, EPA’s final rule (40 

CFR 93.153) exempts as de minimis 

aircraft emissions above the specific 

mixing height identified in the SIP or 

TIP. If no mixing height is identified in 

the SIP or TIP, the Federal agency can 

use 3,000 feet AGL as a default mixing 

height. The list of exemptions under 40 

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

in this final rule to reflect this policy. 

F. What are some of the clarifications to 

the existing regulations that are being 

finalized? 

1. The EPA is clarifying in 40 CFR 

93.150 the General Conformity 

evaluation for treatment of emissions 

from actions with emissions originating 

in more than one nonattainment or 

maintenance area. The emissions in 

each area would be treated as if they 

result from a separate action. 

2. The EPA is establishing procedures 

in 40 CFR 93.153 to follow in extending 

the 6-month conformity exemption for 

actions taken in response to an 

emergency. 

3. The EPA is revising (40 CFR 

93.158) the procedures that can be used 

to demonstrate conformity with the 

applicable SIP when the SIP does not 

contain an attainment demonstration or 

when the emissions from the Federal 

action are projected beyond the period 

of the SIP. In addition, EPA is adding a 

new section (40 CFR 93.162) to establish 

procedures for demonstrating 

conformity beyond the time period 

covered by the SIP or TIP. 

4. The EPA is revising the review 

process (40 CFR 93.155) to require 

Federal agencies to notify tribal 

governments in the nonattainment or 

maintenance area of General Conformity 

evaluations. 

5. The EPA is clarifying the definition 

(40 CFR 93.152) of several terms used in 

the regulations. 

6. The EPA is including specific 

language throughout the regulations to 

identify the role of Indian Tribes and 

TIPs in the General Conformity 

evaluation. 

VI. Detailed Discussion of the Final 

Revisions to and Clarifications of the 

General Conformity Regulations 

A. 40 CFR Part 51, Subpart W— 

Determining Conformity of General 

Federal Actions to State or Federal 

Implementation Plans 

In 1990, the CAA was amended to 

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

that required States to adopt and submit 

to EPA for approval a SIP to implement 

the provisions of section 176(c). Section 

6011 of SAFETEA–LU revised the 

conformity requirements in section 

176(c) of the CAA. Although most of the 

revisions affected the Transportation 

Conformity requirements, section 

6011(f) also revised the General 

Conformity requirements. Specifically, 

section 6011(f) revised section 

176(c)(4)(A) of the CAA by including a 

requirement that the regulations must be 

periodically updated and by deleting 

the requirement for the States to adopt 

and submit a General Conformity SIP. 

The EPA does not interpret this 

provision as prohibiting States or Tribes 

from voluntarily adopting and 

submitting General Conformity 

implementation plans consistent with 

EPA regulations. Therefore, EPA is 

revising 40 CFR 51.851 to make the 

adoption and submittal of the General 

Conformity SIP optional for the State 

and eligible federally-recognized tribal 

governments. 

In promulgating the General 

Conformity Regulations in 1993, EPA 

published two sets of regulations: 40 

CFR Part 51, subpart W (§§ 51.850 

through 51.860) directed States to adopt 

and submit General Conformity SIPs to 

EPA for approval and 40 CFR Part 93 

subpart B (§§ 93.150 through 93.160) 

provided the requirements for Federal 

agencies to follow in conducting their 

conformity evaluations before EPA 

approved the General Conformity SIP 

for the area. Section 40 CFR 51.851 

directed States to adopt SIPs meeting 

the requirements of 40 CFR part 51, 

subpart W. The other sections in subpart 

W repeated the requirements found in 

40 CFR part 93, subpart B. The EPA is 

deleting 40 CFR 51.850, and §§ 51.852 

through 51.860 since those sections 

merely repeated the language in 40 CFR 

93.150 and §§ 93.152 through 93.160 

and is including a requirement in 40 

CFR 51.851(a) that the General 

Conformity SIP or TIP, if adopted, must 

meet the requirements in 40 CFR part 

93, subpart B. 

In addition, EPA is restructuring 

§ 51.851. 

1. The EPA is dividing paragraph (b) 

of 40 CFR 51.851 into four paragraphs— 

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

a. Paragraph (b) now states that until 

EPA approves the General Conformity 

SIP, Federal agencies must meet the 

requirements of 40 CFR part 93, subpart 

B. 

b. Paragraph (c) states that after EPA 

approves a SIP or TIP meeting the 

requirement of 40 CFR part 93, subpart 

B, or portion thereof, the Federal 

agencies must meet the requirements of 

the SIP or TIP and any other portions of 

40 CFR part 93, subpart B if not 

contained in the approved SIP or TIP. In 

addition, paragraph (g) states that any 

conformity requirements in an existing 

implementation plan remain 

enforceable until the State submits and 

EPA approves a revision to the 

applicable State implementation plan to 

specifically remove the conformity 

requirements. Since there is no longer a 

requirement for SIPs to include 

conformity requirements and the 

applicable statutes do not grant EPA 

additional authorities to condition 

approval of a State’s request to remove 

the General Conformity requirements 

from an implementation plan, it is 

EPA’s intent, once requested by a State, 

to expeditiously review and approve 

implementation plan revisions that seek 

to remove General Conformity 

requirements. 

c. Paragraph (d) contains the 

requirement that the SIP or TIP can be 

no less stringent than 40 CFR part 93, 

subpart B. 

d. Paragraph (e) contains the 

requirement that the SIP or TIP can be 

no more stringent that the requirement 

in 40 CFR part 93, subpart B unless the 

provisions apply equally to non-Federal 

as well as Federal entities. 

2. The EPA is adding a new provision 

in § 51.851(f), which allows States or 

Tribes to include in their SIP or TIP a 

list of actions that are ‘‘presumed to 

conform.’’ For example, the State may 

identify the emissions from a certain 

type and size of construction activities 

that it presumes will conform. 

Comment: Several commenters 

supported EPA’s proposal to make the 

adoption and submittal of the General 

Conformity SIP optional. One 

commenter believed that the 

elimination of the conformity SIP 

requirement in § 93.151 leaves a gap 

regarding the enforcement of mitigation 

measures. 

The commenter noted that under the 

language in the new provision, there is 

no State or Federal enforceability if the 

State withdraws its conformity SIP or 

otherwise fails to retain a requirement 

that written commitments to undertake 

and implement mitigation measures are 

obligations of the SIP. Another 

commenter supported the requirements 

for States to develop conformity SIPs. 

Response: The EPA is revising its 

regulations to be consistent with the 

revised requirements of the CAA. In 

2005, the CAA was revised to eliminate 

the requirement that a State must adopt 

a conformity SIP. If a State does not 

have a conformity SIP, then Federal 

agencies must conduct their evaluation 

under the requirements of 40 CFR 


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93.150–93.165. These requirements are 

essentially the same as the requirements 

contained in the conformity SIPs. 

Therefore, there would be little 

difference in the enforceability of the 

regulations. Mitigation measures are 

included in the SIP or TIP. A conformity 

SIP is not needed to include the 

mitigation measures in the SIP or TIP. 

They are included in the SIP to attain 

or maintain the ambient air quality 

standards. Section 93.160 has been 

changed by deleting the term ‘‘General 

Conformity Regulations’’ to ensure this 

fact is clear. 

B. 40 CFR 93.150—Prohibition 

Section 93.150 establishes the general 

prohibition against Federal agencies 

taking actions that do not conform with 

the SIP and requirements for the Federal 

agencies to make the conformity 

determinations following the 

procedures of subpart B of part 93. The 

EPA is making two revisions to § 93.150. 

First, EPA is deleting the language in 

paragraph (c) of that section and 

reserving that paragraph. Second, EPA 

is adding a new paragraph (e) to the 

section to State that if an action occurs 

in more than one nonattainment area, 

that each area must be evaluated 

separately. 

In paragraph (c) of the 1993 

regulations, EPA identified categories of 

actions that were not subject to the 

regulations based on environmental 

review for the action that was either 

completed or under way at the time the 

regulations were promulgated. The 

paragraph was based on the 

environmental reviews (either the 

conformity determination or the 

National Environmental Policy Act 

(NEPA) analysis) being completed in 

early 1994. Therefore, paragraph (c) was 

outdated and not necessary at this time. 

In the new paragraph (e) in § 93.150, 

EPA is clarifying the regulations to State 

specifically that conformity 

determinations must be made for each 

nonattainment or maintenance area in 

which emissions from the Federal 

action occur. The emissions from most 

Federal actions or projects occur within 

one nonattainment or maintenance area; 

however, some actions or projects could 

extend across area boundaries, causing 

emissions in more than one area. A 

facility (for example, a national park, 

military installation or an airport) could 

be located in multiple counties or in 

multiple States. Emissions from an 

action at such facilities could extend 

across the nonattainment or 

maintenance area boundaries. Some 

Federal actions could result in direct or 

indirect emissions in non-contiguous 

areas, or even nationwide, that are 

above the de minimis thresholds and 

affect multiple nonattainment or 

maintenance areas. The 1993 

regulations did not specify how actions 

or projects affecting multiple areas 

should be addressed. Therefore, EPA 

added paragraph (e) to state that an 

action’s emissions in each area would 

be treated as if they result from separate 

actions. 

The EPA clarified that emissions from 

actions be treated separately for each 

nonattainment and maintenance area for 

the following reasons: 

1. Federal agencies demonstrate 

conformity to a SIP, TIP or FIP that are 

developed on an area-specific basis and 

SIP requirements may vary from one 

area to another. 

2. The General Conformity 

Regulations exemptions are also areaspecific. For example, the de minimis 

levels are based upon the type and 

classification of the nonattainment or 

maintenance area. 

3. Section 176(c)(5) of the CAA limits 

the applicability of the conformity 

regulations to actions in nonattainment 

and maintenance areas. Therefore, 

actions, which affect broad regions 

encompassing several nonattainment, 

maintenance or attainment areas, must 

be evaluated based only on the portions 

of the emissions in the nonattainment 

and maintenance areas. 

C. 40 CFR 93.151—SIP Revision 

The main purpose of § 93.151 is to 

specify that the regulations in part 93 

subpart B apply to Federal actions 

unless the State or Tribe adopts and 

EPA approves a General Conformity SIP 

or TIP for the area. The EPA did not 

change the purpose of the section, but 

is revising the section to clarify its 

wording. The 1993 regulations included 

statements about the stringency of the 

SIP compared to the requirements in 

subpart B of part 93. The EPA is 

deleting those statements because they 

duplicate statements in 40 CFR 51.851 

which specifies the requirements for the 

SIP and TIP. 

D. 40 CFR 93.152—Definitions 

Section 93.152 provides the definition 

of terms used in the regulations. The 

EPA is revising 12 of the definitions, 

adding 11 new terms, and deleting one 

term, and clarifying the scope of an 

existing definition as follows: 

Applicability analysis. The EPA is 

adding this new term to describe the 

process of determining if the Federal 

agency must conduct a conformity 

determination for its action. 

Applicable implementation plan or 

applicable SIP. The EPA is making two 

minor revisions to the definition. First, 

EPA is correcting the citation for the SIP 

approval and second, EPA is clarifying 

the definition by adding a parenthetical 

phrase to clarify that the term includes 

an approved TIP. The requirements for 

eligible Tribes are found in 40 CFR 49.6. 

Area-wide air quality modeling 

analysis. The EPA is clarifying this 

definition by making a minor wording 

change and by including photochemical 

grid model in the definition. Also, EPA 

is adding an example of the type of 

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

Caused by. The basic test established 

by the 1993 regulations’ definition of 

‘‘caused by’’ is that the emissions would 

not have occurred in the absence of the 

Federal action. Since the General 

Conformity Regulations were 

promulgated in 1993, EPA has 

interpreted the regulations to require a 

Federal agency to include construction 

emissions in its conformity analysis. 

The EPA believes that emissions from 

construction activities initiated, 

approved, or funded by a Federal 

agency meets this test and should be 

included in the conformity evaluation. 

Therefore, EPA is clarifying that 

construction emissions are part of the 

total direct and indirect emissions from 

an action. 

Comment: In the January 8, 2008, 

proposal, EPA solicited comment on 

whether construction emissions in 

general or short-term construction 

emissions should be exempt from the 

regulations. In addition, EPA solicited 

comment on what should be considered 

short-term construction emissions (1 to 

5 years). The majority of commenters on 

this issue objected to exempting 

construction emissions. They noted that 

construction emissions can contribute 

significantly to particulate matter (PM) 

exceedances, especially off-road vehicle 

emissions. Some believed that ignoring 

these emissions might drop a project 

below the de minimis threshold and 

result in unmitigated emissions and the 

exposure of local residents to significant 

levels of pollutants such as diesel 

exhaust. However, some commenters 

thought that construction emissions 

should be exempted. They noted that 

construction emissions only peak for a 

short time and that a disproportionate 

amount of time in the conformity 

process is spent on addressing very 

short-term construction-related 

emissions. They also pointed out that 

construction emissions are generally not 

included in NSR or Transportation 

Conformity evaluations. Of the 

commenters that thought construction 

emissions should be exempt, some 

thought they should be exempt for 5 


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years while others thought they should 

be exempt for only 2 years. 

Response: The EPA agrees with the 

majority of commenters on this issue 

that construction emissions can 

contribute significantly to exceedances 

of the NAAQS, particularly exceedances 

of the PM standards. Unlike the 

construction activities associated with 

Transportation Conformity and NSR 

projects, construction activities 

associated with General Conformity 

actions vary widely in type. For 

example, General Conformity is 

concerned about localized impacts of 

the direct and indirect impacts of 

particular action or projects, as reflected 

in case-by-case analysis of emissions 

from specific actions, while 

Transportation Conformity is primarily 

concerned with the regional impacts of 

long-term use of the roads, as reflected 

in analysis of regional transportation 

processes, and secondarily concerned 

with short-term and localized impacts. 

Also, NSR specifically does not apply to 

emissions from mobile sources, which 

includes most construction 

equipment—no such restriction is found 

in General Conformity. Moreover, as 

explained above, EPA believes that 

emissions from construction activities 

initiated, approved, or funded by a 

Federal agency would not have occurred 

in the absence of the Federal action and 

thus meet the ‘‘caused by’’ definition 

included in the general conformity 

regulations. For these reasons, EPA 

believes that it is important that 

construction emissions should be 

considered as part of the General 

Conformity process. EPA also believes 

that other flexibilities in the revised rule 

will help with planning for, and 

addressing, construction emissions in 

the General Conformity process. These 

flexibilities include allowing alternative 

mitigation schedules and including 

construction emissions in a facility 

emission budget. 

Also, EPA is clarifying that 

conformity is based on annual 

emissions. Therefore, Federal agencies 

should estimate construction emissions 

on an annual basis and would only have 

to demonstrate conformity of 

construction emissions during the years 

when the emissions occurred. 

Confidential business information 

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

clarifying how CBI used in the 

conformity determination is to be 

handled. To support those provisions, 

EPA is adding a definition of CBI. The 

definition is based upon that used to 

define CBI under the Freedom of 

Information Act. 

Conformity determination. The EPA is 

adding a new term to describe the 

decision that a Federal agency official 

makes in determining that the action 

will conform with the SIP, TIP or FIP. 

Conformity evaluation. The EPA is 

adding a new definition to describe the 

entire conformity analysis process from 

the applicability analysis through the 

conformity determination, if necessary. 

Continuing program responsibility. In 

the 1993 regulations, EPA used the term 

‘‘emissions that a Federal agency has a 

continuing program responsibility for.’’ 

That term was awkward and confusing. 

The EPA is shortening the term to the 

‘‘continuing program responsibility’’ and 

reformatting the definition to make it 

clearer. 

Continuous program to implement. 

This term was used in the 1993 

regulations but was not defined. 

Therefore, EPA is adding a definition for 

this term. The definition would require 

the Federal agency to have a program to 

implement the action. That program can 

include a number of steps such as 

preparation of final design plans and 

can also allow for seasonal shutdowns. 

The definition includes a requirement 

that the action does not stop for more 

than 18 months unless such a delay is 

included in the original plans for the 

action. 

Direct emissions. The EPA is revising 

the definition of direct emissions to 

include a requirement that the 

emissions must be reasonably 

foreseeable. This revision reflects EPA’s 

policy as set forth in the July 1994 

implementation guidance that direct 

emissions must be reasonably 

foreseeable. (General Conformity 

Guidance: Questions and Answers, 

USEPA, OAQPS, Page 6, Question 2, 

July 13, 1994). 

Emission Inventory. This term is used 

but not defined in the 1993 regulations. 

Therefore, EPA is adding a definition of 

this term. 

EPA. Since some States have 

Environmental Protection Agencies, 

EPA is adding ‘‘U.S.’’ in the definition to 

clarify that the regulations refer to the 

U.S. Environmental Protection Agency. 

Indirect emissions. EPA is revising the 

definition for indirect emissions to 

clarify that only indirect emissions 

originating in a nonattainment or 

maintenance area need to be analyzed 

for conformity with the applicable SIP. 

In addition, EPA is revising the 

definition of ‘‘indirect emissions’’ to 

clarify what is meant by ‘‘the agency can 

practically control’’ and ‘‘for which the 

agency has continuing program 

responsibility.’’ This clarification 

represents EPA’s long standing position 

that Congress did not intend for 

conformity to apply to ‘‘cases where, 

although licensing or approving action 

is a required initial step for a 

subsequent activity that causes 

emissions, the agency has no control 

over that subsequent activity, either 

because there is no continuing program 

responsibility or ability to practically 

control.’’ (58 FR 63.214, 63.221, 

November 30, 1993). (General 

Conformity Guidance: Questions and 

Answers, USEPA, OAQPS, Page 6, 

Question 2, July 13, 1994). 

Comment: One commenter believes 

that excluding emissions over which the 

Federal agency does not have 

continuing program responsibility is 

unlawful. The commenter believes that 

the original definition of ‘‘caused by’’ is 

practical because the conformity 

determination will be made in the 

context of an Environmental Impact 

Statement (EIS) for such major Federal 

projects and NEPA requires an 

assessment of the expected development 

and reasonably foreseeable impacts 

associated with such development. The 

commenter noted that if the agency with 

authority to approve these expansions 

lacks the continuing programmatic 

responsibility to control the use of 

facilities approved by the agency, then 

the proposed activity should not be 

approved. 

The commenter believes that the 

proposed rule definition has the 

potential for allowing massive increases 

in emissions that is anticipated as a 

result of port expansions in some of the 

nation’s most polluted metropolitan 

areas. The commenter also noted that 

the NEPA may also create authority to 

adopt environmental mitigation plans as 

part of an agency’s programmatic 

responsibility. 

Response: The exclusion of emissions 

over which the Federal agency does not 

have a continuing program 

responsibility is related to indirect 

emissions for the General Conformity 

analysis and does not affect the analysis 

required for NEPA review. EPA is not 

changing the requirements of that 

provision; EPA is only clarifying the 

language contained in it. Since 1993, the 

‘‘indirect emissions’’ definition has been 

limited to those emissions for which 

‘‘the Federal agency * * * will maintain 

control over due to continuing 

programmatic responsibility.’’ 

Accordingly, EPA’s reformatting of the 

language in this revision does not 

change the practical impact of this 

definition, and the commenter’s 

suggestion that the definition should 

include emissions over which the 

Federal agency does not have control 

would greatly expand the program 

beyond what EPA believes that the law 

intended. In any event, since EPA did 

not propose to expand the program to 


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2While sulfur dioxide must be addressed in 

general conformity determinations for PM2.5, sulfur 

dioxide is not required to be addressed in 

transportation conformity determinations before a 

SIP is submitted, unless either the State air agency 

or EPA regional office makes a finding that on-road 

emissions of sulfur dioxide are significant 

contributors to the area’s PM2.5 problem. Sulfur 

dioxide would be addressed in transportation 

conformity after a PM2.5 SIP is submitted if the 

area’s SIP contains an adequate or approved sulfur 

dioxide motor vehicle emissions budget. EPA based 

its decision regarding treatment of sulfur dioxide in 

transportation conformity on the de minimis 

amount of on-road emissions of sulfur dioxide now 

and in the future, and on the implementation of low 

sulfur gasoline beginning in 2004 and low sulfur 

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

3While we did not issue a proposal or provide 

an opportunity for public comment for this minor 

correction to the rule, we believe such actions are 

unnecessary because this minor revision in no way 

changes substantive conformity procedures 

described in the general conformity rule but merely 

updates the reference to the proper location of the 

transportation conformity regulations in the CFR. 

include emissions over which a Federal 

agency does not have control, it cannot 

go final with such an expansion in this 

rule. 

Local air quality modeling analysis. 

The EPA is revising the definition to 

include an example of the type of 

models that are used in the local air 

quality modeling analysis. 

Maintenance area. The EPA is making 

a minor wording change to clarify the 

definition by citing the regulations and 

the section of the CAA used to identify 

maintenance areas. 

Metropolitan Planning Organization. 

The EPA is revising its regulatory 

definition to make it more consistent 

with the statutory definition in 

SAFETEA–LU, which was signed into 

law on August 10, 2005. 

Mitigation measure. The 1993 

regulations used the term ‘‘mitigation 

measure’’ and had a section specifying 

the requirements for a mitigation 

measure; however the regulations did 

not define the term. The EPA is defining 

a mitigation measure as a method of 

reducing emissions of the pollutant at 

the location of the action. This 

definition would distinguish a 

mitigation measure from an offset. 

National ambient air quality 

standards. In 1997, EPA promulgated 

new NAAQS for both ozone and for fine 

particles. The definition in the 1993 

regulations is broad enough to cover the 

new ozone standard, but the definition 

did not cover the fine particle standard 

known as PM2.5. Therefore, EPA is 

revising the definition of NAAQS to 

include PM2.5. 

Precursors of criteria pollutants. The 

1993 regulations define precursors for 

both ozone and PM–10. Since the PM2.5

standard was promulgated after the 

General Conformity Regulations, the 

original regulations did not include the 

precursors for 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 of PM2.5 as 

follows: 

1. Sulfur dioxide (SO2) is a regulated 

pollutant in all PM2.5 nonattainment and 

maintenance areas.2

2. Nitrogen oxides (NOX) are regulated 

pollutants in all PM2.5 nonattainment 

and maintenance areas unless both the 

State/Tribe and EPA determine that they 

are not. 

3. Volatile organic compounds (VOC) 

and ammonia (NH3) are not regulated 

pollutants in any PM2.5 nonattainment 

or maintenance area unless either the 

State/Tribe or EPA determines that they 

are. 

Reasonably foreseeable emissions. As 

discussed above, under ‘‘direct 

emissions,’’ EPA is revising the term 

‘‘direct emissions’’ to limit the emissions 

to those which can be reasonably 

foreseeable. Therefore, EPA is revising 

the term ‘‘reasonably foreseeable’’ to 

include ‘‘direct emissions.’’ 

Regionally significant action. As 

discussed in the revisions to 93.153(i) 

below, EPA is deleting the requirement 

that conformity determinations are 

required for actions that would 

normally be exempt if those actions are 

considered regionally significant. 

Therefore, EPA is deleting the definition 

of the term. 

Restricted information. As discussed 

in §§ 93.155 and 156 on reporting and 

public participation, EPA is specifying 

how restricted information used in the 

conformity determination is to be 

handled. To support those revisions, 

EPA is adding a definition of restricted 

information. The definition is based 

upon applicable Executive Orders, 

regulations and statutes pertaining to 

materials and other information where 

disclosure is restricted by law. 

Comment: One commenter requested 

that EPA state that emission data be 

specifically excluded for the definition 

of ‘‘restricted information.’’ 

Response: The EPA agrees that 

emission data generally can not be 

considered ‘‘restricted information.’’ 

Under EPA policy emission data cannot 

be considered as ‘‘confidential business 

information.’’ Only in rare 

circumstances where data are contained 

in documents classified as sensitive 

information to which access is restricted 

by law or regulation to particular classes 

of persons and a formal security 

clearance is required to handle or access 

the classified data would emission data 

from a government facility be ‘‘restricted 

information.’’ In the situations where 

restricted information is used as part of 

the conformity evaluation, EPA will 

work with the appropriate Federal, State 

and tribal agencies to ensure an 

adequate review of the conformity 

evaluation. 

Take or start the Federal action. The 

EPA is adding a new term to define the 

date when an action occurs or starts. 

This date is important in determining 

what, if any, conformity requirements 

apply when an area is designated or redesignated as nonattainment. The EPA 

is defining this term as the date the 

decision-maker signs a document such 

as a grant, permit, license or approval. 

Otherwise, EPA is defining the term as 

the date the Federal agency physically 

starts the action that requires the 

conformity evaluation. 

Tribal implementation plan (TIP). The 

EPA is adding a definition for TIP to 

mean plans adopted and submitted by 

federally recognized Indian Tribes. 

E. 40 CFR 93.153—Applicability 

Analysis 

The EPA is clarifying the process of 

determining if the General Conformity 

requirements are applicable to a Federal 

action. Although EPA is providing 

clarification on actions that are exempt 

or ‘‘presumed to conform’’ in this 

regulation, nothing in this regulation is 

intended to interfere with any 

exemptions previously established by 

law. 

1. The EPA is revising the title of the 

section to include the word ‘‘analysis.’’ 

The EPA believes that adding the word 

would make the title more descriptive of 

the section’s content. 

2. The EPA is making technical 

changes to paragraph (a) of § 93.153. 

The technical correction in section 

93.153(a) is to update the reference to 

the transportation conformity 

regulations. Section 93.153(a) currently 

states that the transportation conformity 

regulations are codified at 40 CFR part 

51 subpart T, but EPA deleted 

transportation conformity criteria and 

procedures from 40 CFR part 51 subpart 

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

Accordingly, section 93.153(a) has been 

revised to refer to the transportation 

conformity criteria and procedures now 

codified at 40 CFR part 93 subpart A.3

EPA is not finalizing the proposed 

changes to paragraph (b). Following 

proposal of changes to this paragraph 

EPA realized that the minor wording 

changes we had proposed (adding the 

word ‘‘criteria’’ before the word 

‘‘pollutant’’ and ‘‘or precursor’’ after the 


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word to clarify the paragraph) had been 

accomplished by changes made to this 

section in a July 17, 2006 regulatory 

action (71 FR 40426). Therefore, EPA is 

making no changes to this paragraph 

from the current regulatory language. 

3. The EPA is revising the table in 

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

nonattainment areas in the Ozone 

Transport Region. In 1993, when the 

General Conformity Regulations were 

promulgated, all nonattainment areas in 

the Ozone Transport Region were 

classified pursuant to Table 1 in CAA 

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

for the 1-hour ozone NAAQS. When 

EPA later designated areas for the 8- 

hour ozone NAAQS, some 

nonattainment areas were identified as 

needing to meet only the requirements 

in subpart 1 of Part D of Title I of the 

CAA and were not classified pursuant to 

Table 1. However, the decision to place 

certain areas only under subpart 1 was 

vacated by the decision in South Coast 

Air Quality Management District v. EPA, 

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

there are currently no areas classified 

under subpart 1, the Court left open the 

door that EPA may be able to justify 

such action in the future. Accordingly, 

EPA is revising the table in 

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

Conformity requirements would apply 

to any area placed in the subpart 1 in 

the future by changing the classification 

from ‘‘Marginal and moderate nonattainment areas inside an ozone 

transport region’’ to ‘‘other nonattainment areas inside an ozone 

transport region.’’ 

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

clarify the exemptions for aircraft 

emissions above the mixing height for 

the area. Specifically, EPA is exempting 

aircraft emissions above the mixing 

height identified in the applicable SIP, 

TIP or FIP. Where the SIP does not 

contain a specific mixing height, EPA is 

establishing a default mixing height of 

3000 feet AGL. In the January 2008 

proposal, EPA had proposed to exempt 

all aircraft emissions above 3000 feet 

AGL. 

Comment: Several commenters 

representing State and local air quality 

agencies objected to excluding the 

emissions from aircraft above 3000 feet 

above ground level. They noted that the 

mixing height varies and can be as high 

as 4,500 feet AGL during the ozone 

season and that pollutants emitted at 

middle and high altitudes can travel 

long distances. They also noted that 

pollution levels were below predicted 

levels following September 12, 2001 

when aircraft were grounded. 

Other commenters representing the 

airports and the airline industry 

supported the exemption emission from 

aircraft above 3000 feet AGL. They 

noted that the FAA study supports the 

conclusion that aircraft operations at or 

above 3,000 feet AGL have a minimal 

effect on ground level pollutant 

concentrations. The commenters also 

noted that flights over almost all major 

U.S. airports must be at least 7000 feet 

AGL; therefore, any commercial aircraft 

operating at 3000 feet would most likely 

either be landing or taking off. The 

commenters also noted that the FAA 

study concluded that any increase in 

ground level concentrations of CO and 

hydrocarbon (HC) due to mixing was 

negligible. 

A Federal agency commenter believes 

that the exemption for air traffic control 

activities should not be restricted by 

altitude. The commenter noted that the 

proposal for exempting aircraft 

operations above 3,000 feet AGL is 

much narrower than what was 

presented in the preamble to the 1993 

General Conformity rule as an example 

of an action that is exempt from the 

General Conformity requirements—‘‘air 

traffic control activities and adopting 

approach, departure and enroute 

procedures for air operations.’’ 

Response: EPA agrees that the aircraft 

emissions above the mixing height do 

not significantly affect ground level 

concentrations and acknowledges that 

the mixing height can vary from one 

area to another. Accordingly, in those 

areas where the applicable SIP or TIP 

specifies a mixing height, EPA is 

requiring the specified mixing height to 

be used. However, in those areas where 

the SIP or TIP does not specify a mixing 

height, EPA is allowing the Federal 

agencies to use 3,000 feet AGL as a 

default mixing height. This conclusion 

is supported by the FAA study. In 

addition, 3,000 feet AGL is commonly 

used as an estimate of the average 

maximum afternoon mixing height 

across the country and most air quality 

models use 3,000 feet AGL as the 

default mixing height. However, we also 

note that the FAA study showed that 

some areas have mixing heights lower 

than 3,000 feet AGL, so we have added 

regulatory language to sub-paragraph 

(xxii) to allow Federal agencies to use a 

different mixing height if they can 

demonstrate that emissions at and above 

that height are de minimis. As a general 

matter, it is in the reasoned discretion 

of the Federal agency to decide which 

methods and analysis it will use when 

determining whether this exemption or 

any other provision applies to the 

emissions from its activity, including 

making an applicability determination 

under section 93.153(b), finding 

emissions result in no increase under 

section 93.153(c)(2), or concluding 

emissions are presumed to conform 

under section 93.153(f). 

5. The EPA is revising paragraph 

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

covered by a NSR permit for minor 

sources. The 1993 regulations exempt 

emissions covered by a NSR permit for 

major sources but not for minor sources. 

EPA concluded at that time that the 

purposes of the General Conformity 

review would be adequately met by the 

major source NSR review, and that 

additional review would not be 

necessary. The EPA now believes that 

minor source NSR provides similar 

review, and that this approach will 

reduce the duplicate review of 

emissions under both minor source NSR 

and conformity programs and treat all 

NSR permitted emissions the same way. 

Accordingly, we are revising 

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

covered by minor source NSR permits 

issued pursuant to the general 

permitting authority provided by 

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

Comment: The majority of 

commenters agreed with the proposal to 

exempt stationary sources permitted 

under the NSR program. They believed 

the review to be redundant and 

unnecessary. 

Some commenters disagreed with 

exempting minor sources. One 

commenter thought that EPA should not 

exempt activities with emissions less 

than the major source threshold from 

conformity review unless some basis 

can be established that the cumulative 

emissions from such sources are truly 

de minimis with respect to the statutory 

conformity tests. The commenter 

suggests that EPA substitute a SIP-based 

program for establishing a budget for 

minor sources in place of the regionally 

significant threshold. Several 

commenters suggested that only NSR 

permits which require offsets or are 

offset on a programmatic basis should 

be exempt from conformity. A few 

commenters thought that, if EPA 

exempts minor sources for the 

conformity evaluation, it must first 

clearly demonstrate that such 

exemptions will not impede States’ 

ability to attain any standard. 

Response: The EPA agrees that 

requiring a conformity analysis for 

emission covered by a minor source 

NSR permit would be redundant and 

provide little environmental benefit. 

EPA believes that the permitting 

authority has the responsibility to 

ensure that the source will not interfere 

with the SIP or otherwise interfere with 

the State’s ability to attain the 


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standards. Minor source NSR permits 

are issued under a SIP-approved 

program, so there has already been a 

determination that the permitting 

program will not contribute to a 

violation of the NAAQS or delay the 

attainment or maintenance of the 

standards. Thus, by issuing a specific 

permit under that program, the 

authority is stating that the emissions 

are accounted for in the SIP, effectively 

providing the same assurances as a 

conformity determination since Federal 

agencies can demonstrate conformity for 

an action by showing that the actions 

will not cause a violation or interfere 

with the SIP. 

6. The EPA is deleting ‘‘or natural 

disasters such as hurricanes, 

earthquakes, etc.,’’ and ‘‘or disaster’’ from 

paragraph (d)(2) of § 93.153 because 

they are unnecessary words. In § 93.152 

EPA defines an emergency; therefore the 

words in § 93.153 describing an 

‘‘emergency’’ are not necessary and may 

be confusing since they do not include 

all types of emergencies. 

7. The EPA is amending paragraph 

(e)(2) of § 93.153 to provide procedures 

for reviewing an extension of the 

exemption from making a conformity 

determination for actions related to 

responding to an emergency. A Federal 

agency, in responding to an emergency 

event such as a natural disaster, terrorist 

attack, military mobilization, or other 

situations (such as wildfire responses) 

that an agency determines fit within the 

definition of emergency found in 

§ 93.152, may find it impractical to 

conduct a conformity evaluation on the 

action before it must take the action. To 

address this situation, 40 CFR 

93.153(d)(2) of the 1993 regulations 

provides Federal agencies with a 

6-month exemption from the 

requirement to undertake a conformity 

analysis for actions taken in response to 

an emergency. The EPA recognizes that 

in rare situations it may be impractical, 

even after 6 months, to conduct a 

conformity evaluation and is amending 

§ 93.153(e) to allow the agencies to 

extend the exemption for another 6 

months. This section requires Federal 

agencies to make a written 

determination that it is impractical to 

conduct an evaluation for the action. 

The 1993 regulations were not clear 

about the number of additional 

extensions permitted under § 93.153(e) 

nor do those regulations provide any 

procedures for agencies to follow in 

deciding on the extension. 

The EPA is not revising requirements 

for the initial exemption for actions in 

response to emergencies. The initial 

governmental actions that are typically 

commenced within hours or days in 

response to emergencies or disasters 

would still be exempt from the General 

Conformity requirements for 6 months 

after the commencement of the response 

to the emergency or disaster. However, 

EPA is adding requirements for Federal 

agencies that want to extend the 

exemption beyond the initial 6-month 

period. First, EPA is requiring the 

Federal agencies to allow EPA and the 

State 15 days to review and provide 

comments on the draft written 

determination to extend the exemption 

at the beginning of the extension period. 

Next, EPA is requiring Federal agencies 

to publish a notice within 30 days of 

making the extension decision. The 

notice must be published in a daily 

general circulation newspaper for the 

affected area. Finally, EPA is limiting 

the maximum number of 6-month 

extensions an agency may declare 

without additional documentation on 

their own to three. Thereafter, the 

revisions require that the agency must 

provide additional information 

concerning the emergency conditions to 

EPA and the State or Tribe. 

8. The EPA is revising paragraphs (f), 

(g), and (h) of § 93.153 to provide 

Federal agencies clear guidance in 

developing their list of actions that are 

‘‘presumed to conform’’ and provide 

requirements for the materials that must 

be included in the documentation and 

draft list. Specifically, EPA is adding 

wording to paragraph (f) to specify 

when and how more than one 

‘‘presumed to conform’’ exception may 

be taken for a Federal action; adding a 

new paragraph (g)(3) to specify that 

Federal agencies can list actions that are 

for individual areas or SIPs or TIPs; 

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

specify the information that must be 

included in the documentation; and 

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

allow the Federal agencies to notify EPA 

headquarters when the ‘‘presumed to 

conform’’ actions would have multiregional or national impacts. In 

addition, EPA is revising paragraphs (f) 

and (h) to include a reference to the new 

paragraph (g)(3). 

In promulgating the existing 

regulations, EPA allowed a number of 

actions that were ‘‘presumed to 

conform.’’ The regulations also allow 

Federal agencies to establish their own 

lists of actions that are ‘‘presumed to 

conform’’ with applicable SIPs and TIPs. 

Under the 1993 regulations, Federal 

agencies must justify the inclusion of 

the actions on their ‘‘presumed to 

conform’’ list by either demonstrating: 

(1) That the actions will not cause or 

contribute to an air quality problem or 

otherwise interfere with the SIP, TIP, or 

FIP, or (2) that the actions will have 

emissions below the de minimis levels. 

The Federal agencies must provide 

copies of the proposed list to EPA, 

affected State and local air quality 

agencies and MPOs. In addition, the 

agencies must provide at least a 

30-day public comment period and 

document its response to all comments. 

The notice of the proposed and final list 

must be published in the Federal 

Register. 

The EPA is adding sub-paragraph 

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

apply to one facility or for facilities in 

a specified area and does not have to be 

nationally applicable. For example, if 

the nonattainment area’s SIP includes a 

sector emission budget for construction 

activities, a facility in that area may be 

able to demonstrate that construction 

activities of a certain size or type fits 

within the SIP’s emission budget. With 

the concurrence of the State or Tribe, 

the Federal agencies could publish a 

‘‘presumed to conform’’ list that includes 

the construction activity emissions that 

are specific to a facility. 

9. The EPA is deleting the regionally 

significant test included in paragraph (i) 

of § 93.153. The existing regulations in 

§ 93.152 define ‘‘regionally significant’’ 

as ‘‘a federal action for which the direct 

and indirect emissions of any pollutant 

represent 10 percent or more of a 

nonattainment or maintenance area’s 

emissions inventory.’’ 40 CFR 93.153(i) 

and (j) require conformity 

determinations for all regionally 

significant actions, regardless of any 

exemptions or presumptions of 

conformity based on other provisions in 

the regulations. 

Comment: Some commenters 

supported deletion of the regionally 

significant provision noting that it is 

unnecessary, not helpful in determining 

whether a Federal action will conform 

to the SIP, and is an administrative 

burden. Other commenters believed that 

the provision should be retained or 

strengthened or a more appropriate 

percentage of the area’s inventory be 

used for the test. Some commenters also 

pointed out that in light of the new 

PM2.5 and 8-hour ozone standards, 

certain Federal projects might become 

‘‘regionally significant’’ in the near 

future. 

Response: EPA agrees that the 

determination of whether actions with 

emissions below the de minimis 

emission levels are regionally 

significant has been a burden to some 

Federal agencies with little or no 

environmental benefit. Analysis 

discussed in the proposal showed that 

the emission inventory for most 

nonattainment and maintenance areas 

well exceeded the ten times the de 


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minimis emission levels for the area, 

such that no emissions could actually be 

regionally significant. Although several 

commenters question whether the 

regionally significant test might be 

important for the new PM2.5 and 8-hour 

ozone standards, they presented no 

information to show that the de minimis 

emission levels would exceed 10 

percent of the inventory for potential 

nonattainment areas for those standards. 

10. In a revised paragraph (i) of 

§ 93.153, EPA allows installations with 

a facility-wide emission budget to 

presume that an action at the 

installation will conform provided that 

the emissions from that action along 

with all other emissions from the 

facility will not exceed the budget. A 

more detailed discussion of the facilitywide emission budget concept is found 

in § 93.161. 

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

emissions from a prescribed fire 

conducted under an approved smoke 

management program as ‘‘presumed to 

conform.’’ In the January 2008 proposal, 

EPA asked for comments on two options 

for allowing a presumption of 

conformity for prescription fires. Option 

1 would have allowed Federal agencies 

to presume that the emissions from 

prescribed burns will conform provided 

the burning is conducted under a State 

certified approved SMP or an equivalent 

replacement EPA policy. Option 2 

would have also allowed Federal 

agencies, in the absence of a certified 

SMP, to presume that emissions from 

prescribed burns will conform provided 

they obtain written permission from the 

State and use BSMP. 

Comment: The EPA received many 

comments in support of the second 

option, which allows Federal agencies 

to determine, in absence of a certified 

SMP, that prescription fires conducted 

using BSMP are considered ‘‘presumed 

to conform’’ to the SIP. Some 

commenters noted that to be consistent 

with the ‘‘Treatment of Data Influenced 

by Exceptional Events’’ rule (72 FR 

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

not certify a SMP, the exemption should 

be for burns using State approved 

BSMP. Many commenters also 

supported the first option, noting that it 

was reasonable to assume that any 

action conducted in compliance with 

the certified SMP would be in 

compliance with the SIP. One 

commenter thought that the 

presumption of conformity for burns 

conducted under BSMP is not 

acceptable because BSMP are in no way 

connected to air quality and will not 

ensure that resulting emissions from a 

prescribed burn would conform to the 

SIP. This commenter also noted that the 

use of SMP may be acceptable, but EPA 

has not yet issued its final wildland fire 

policy. Another commenter suggested 

that if prescribed burns under certified 

SMP or a BSMP are ‘‘presumed to 

conform,’’ there needs to be a simple 

way to flag the data from affected 

monitors. Numerous commenters 

recommended that the definition of 

emergency include wildfires. 

Response: After considering the 

various practices and the comments 

received, the EPA believes option 1 

presented in the proposed rule is more 

protective of the air quality than option 

2. However, we also recognize that 

prescribed fires employing BSMPs may 

be able to meet a presumption of 

conformity if such a presumption is 

established by an agency following the 

requirements of 93.153(g) or by a State 

following the requirements of 51.851(f). 

Under option 1, prescribed fires 

conducted in compliance with a SMP 

are ‘‘presumed to conform.’’ The purpose 

of an SMP is to mitigate nuisance smoke 

and public safety hazards, prevent 

NAAQS violations, protect public 

health, and address visibility impacts in 

Class I areas. EPA also notes that SMPs 

establish procedures and requirements 

for minimizing emissions. EPA 

recognizes that prescribed burns 

employing BSMPs may be as protective 

of air quality in areas where no SMP 

exists. BSMPs can be connected to air 

quality and may protect air quality as 

outlined in the ‘‘Treatment of Data 

Influenced by Exceptional Events’’ rule. 

In order to assure the adequacy of the 

BSMPs to meet the legal requirements of 

the General Conformity program as 

outlined in section 176, Federal agency 

developed BSMPs must be publicly and 

State reviewed as part of a presumed to 

conform action under section 93.153(g) 

or 51.851(f) of these regulations to 

establish such a presumption. Because 

the EPA chose not to require the 

certification of the SMP under the final 

‘‘Treatment of Data Influenced by 

Exceptional Events’’ rule, EPA is also 

removing the term ‘‘certified’’ from this 

final General Conformity Rule. Finally, 

EPA has identified wildfire response as 

an example of an emergency event that 

may be exempt from General 

Conformity requirements under 93.153 

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

it fits within the definition of emergency 

found in § 93.152. 

12. As discussed above, EPA also 

added a provision in § 93.153(i) to allow 

a State or Tribe to adopt in their SIP or 

TIP a list of actions it ‘‘presumes to 

conform.’’ 

13. The EPA is revising paragraph (j) 

of § 93.153 by deleting the reference to 

regionally significant emissions, by 

adding a reference to paragraph (i) and 

by describing the criteria for requiring a 

conformity determination for an action 

that otherwise would be ‘‘presumed to 

conform.’’ The 1993 regulations state 

that an action cannot be ‘‘presumed to 

conform’’ if it was regionally significant 

or did not in fact meet the requirements 

of sub-paragraph (g)(1). As discussed 

above, EPA has deleted the regionally 

significant test, therefore reference to it 

is has been deleted from this paragraph. 

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

requirements in this paragraph. 

14. The EPA is revising paragraph (k) 

of § 93.153 to incorporate the provisions 

of section 176(c)(6) of the CAA. (42 

U.S.C. 7506(c)(6)). In November 2000, 

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

CAA to allow for a conformity grace 

period for newly designated 

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

That section establishes a 1-year grace 

period following the effective date of the 

final nonattainment designation for each 

new or revised NAAQS before the 

conformity requirements must be met in 

the area. If an agency takes or starts the 

Federal action before the end of the 

grace period, it must comply with the 

applicable pre-designation conformity 

requirements. If an agency takes or starts 

the Federal action after the end of the 

grace period, it must comply with the 

post-designation conformity 

requirements. As discussed above in 

describing the new term ‘‘take or start 

the federal action,’’ EPA is defining the 

term to mean that a Federal agency takes 

an action when it signs a permit, 

license, grant or contract or otherwise 

physically starts the Federal action. 

From the time that an area is designated 

as nonattainment, agencies will have a 

year to take or start the Federal action. 

If the agency fails to take or start the 

Federal action during the grace period, 

then it must re-evaluate conformity for 

the project based on the requirements 

for the new designation and 

classification. 

F. 40 CFR 93.154—Federal Agencies 

Responsibility for a Conformity 

Determination 

1. The EPA is revising the title of this 

section to clarify the purpose of the 

section. In the 1993 regulations this 

section is entitled broadly ‘‘Conformity 

Analysis.’’ Since the short section only 

discusses the requirement for each 

Federal agency to make its own 

determination, EPA is revising the title 

of the section to more closely describe 

the section’s content. 

2. The EPA is adding language to this 

section to specifically state that the 


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conformity determination must meet the 

requirements of this subpart. 

G. 40 CFR 93.155—Reporting 

Requirements 

1. Since EPA is adding additional 

sections to subpart B, it is revising the 

references to those sections in § 93.155. 

2. Consistent with EPA’s Tribal 

Authority Rule (63 FR 7253), EPA is 

providing federally-recognized Indian 

tribal governments the same 

opportunity to comment on draft 

conformity determinations as given to 

States. Therefore, EPA is requiring the 

Federal agencies to notify all the 

federally-recognized Indian tribal 

governments in the nonattainment or 

maintenance area. 

3. The EPA is adding an alternative 

procedure for notifying EPA when the 

action would result in emissions 

originating in nonattainment or 

maintenance areas in three or more EPA 

regions. Specifically, EPA is allowing 

agencies to notify the EPA Office of Air 

Quality Planning and Standards rather 

than each individual regional office. A 

single contact point for EPA should be 

more efficient for the other Federal 

agencies than notifying up to 10 

regional Offices. This final notification 

provision also corrects an inconsistency 

between the proposed rule preamble 

and the proposed regulation, which 

stated that the EPA Office of Air Quality 

Planning and Standards could be 

contacted when the action would result 

in emissions originating in 

nonattainment or maintenance areas in 

two or more EPA regions. 

4. The EPA is adding a new paragraph 

to § 93.155 to describe how restricted 

information used to support conformity 

determinations should be handled when 

provided to EPA, States and Tribal 

governments. The 1993 General 

Conformity Regulations do not contain 

an explicit statement about protecting 

restricted information from public 

release. The interagency review and 

public participation provisions in the 

1993 regulations require Federal 

agencies to make available for review 

the draft conformity determination with 

supporting materials that describe the 

analytical methods and conclusions 

relied upon in making the 

determination. Disclosure of classified 

information by a Federal employee is a 

criminal offense (18 U.S.C. 1905). In 

addition, certain unclassified 

information is privileged or otherwise 

protected from disclosure. Therefore, 

several Federal agencies wanted to 

ensure that the General Conformity 

Regulations clearly state that no agency 

or individual was required to release 

restricted information including, but not 

limited to, classified materials. 

Therefore, EPA is revising the regulation 

to add explicit language concerning the 

protection of restricted information. In 

addition, conformity determinations 

could, in part, be based upon restricted 

information. The EPA is adding specific 

language to the regulation to protect 

restricted information in accordance 

with each Federal agency’s policy and 

regulations for the handling of restricted 

information. The regulations would 

allow State or EPA personnel with the 

appropriate clearances to be able to 

view the restricted information. 

H. 40 CFR 93.156—Public Participation 

1. The EPA is correcting the section 

referenced in § 93.156. The 1993 

regulations refer to § 93.158. The correct 

reference should be § 93.154. Section 

93.158 prescribes the criteria for 

conducting a conformity analysis, while 

§ 93.154 requires Federal agencies to 

make the determination and references 

the requirements in the other sections of 

subpart B. 

2. The EPA is providing an alternative 

public notification procedure for actions 

that cause emissions above the de 

minimis levels in three or more EPA 

regions. This corrects a mistake made in 

the proposed rule preamble that stated, 

‘‘EPA is proposing to provide an 

alternative public notification procedure 

for actions that cause emissions above 

the de minimis levels in more than three 

nonattainment or maintenance areas.’’ In 

addition, this corrects an inconsistency 

with the proposed regulation, which 

stated that the alternative public 

notification procedure is for actions that 

have multi-regional or national impacts 

in two or more regions. The 1993 

regulations require that the Federal 

agency publish a notice in a daily 

newspaper of general circulation in the 

nonattainment or maintenance area. 

Some Federal actions affect a large 

number of nonattainment and 

maintenance areas. The notification 

procedure for such an action could be 

burdensome and inefficient. Therefore, 

EPA is amending the rules to allow the 

Federal agencies to publish a notice in 

the Federal Register if the action would 

cause emissions above the de minimis 

levels in three or more nonattainment or 

maintenance areas. 

3. The EPA is adding a new paragraph 

to § 93.156 to describe how restricted 

information and CBI used to support 

conformity determinations should be 

handled in providing the information to 

the public. 

I. 40 CFR 93.157—Re-Evaluation of 

Conformity 

1. The EPA is revising the title of this 

section to more appropriately describe 

the section’s content. The 1993 

regulations section is entitled, 

‘‘Frequency of Conformity 

Determinations.’’ That title implies that 

the General Conformity requirements for 

Federal actions must be reevaluated on 

a regular basis. However, the section 

states that conformity must be 

reevaluated only if the determination 

lapses or the action is modified, 

resulting in an increase in emissions. 

2. If an action’s emissions are below 

the de minimis levels or the action is 

not located in a nonattainment or 

maintenance area, a conformity 

determination is not required. 

Therefore, the Federal agency would not 

have a date for the conformity 

determination to use in determining if 

reevaluation is required. The EPA is 

making minor wording changes in 

paragraphs (a) and (b) to clarify that the 

date of a completed NEPA analysis, as 

evidenced by a signed finding of no 

significant impact (FONSI) for an 

environmental assessment, a record of 

decision (ROD) for an environmental 

impact statement, or a record of a 

categorical exclusion, can be used when 

a conformity determination is not 

required. 

3. The EPA is adding a new paragraph 

(d) to § 93.157 to clarify the 

requirements for needing to conduct a 

conformity determination when the 

action is modified. Paragraph (d) deals 

with modifying an action for which the 

Federal agency made a conformity 

determination. In order to make the 

original determination, the Federal 

agency had to demonstrate that all the 

emissions caused by the initial action 

conformed to the SIP. Since conformity 

determinations are only needed for 

emissions that exceed the de minimis 

levels, EPA has clarified in the rule that 

the Federal agency does not have to 

revise its conformity determination 

unless the modification would result in 

an increase that equals or exceeded the 

de minimis emission levels for the area. 

Paragraph (d) also deals with modifying 

an action that the Federal agency 

determined had emissions below the de 

minimis level. Since the emissions from 

the unmodified action were determined 

to be de minimis and not fully evaluated 

to determine conformity, EPA is 

requiring Federal agencies to conduct a 

conformity determination for the 

modified action if the total emissions 

(the emissions from the unmodified 

action plus the increased emissions 

resulting from the modification) equal 


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or exceed the de minimis levels for the 

area. Thus, in both situations, all 

emissions that exceed de minimis levels 

are evaluated for conformity impacts, 

either initially or after modification. 

J. 40 CFR 93.158—Criteria for 

Determining Conformity for General 

Federal Actions 

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

precursor’’ after ‘‘any criteria pollutant’’ 

to clarify that Federal agencies must 

demonstrate conformity for the 

precursors of the criteria pollutants if 

the precursor emissions are specifically 

identified and accounted for in the 

applicable SIP, TIP or FIP. 

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

is allowing Federal agencies to obtain 

emission offsets for the General 

Conformity requirements from a nearby 

nonattainment or maintenance area of 

equal or higher classification, provided 

that the emissions from the nearby area 

contribute to the violations of the 

NAAQS in the area where the Federal 

action is located or, in the case of a 

maintenance area, the emissions from 

the nearby area have contributed in the 

past to the violations in the area where 

the Federal action is located. The 

regulation requires such emissions 

offsets to be obtained through either an 

approved SIP revision or an equally 

enforceable commitment. 

Comment: Commenters representing 

Federal agencies, industry groups and 

some State air quality agencies 

supported the provision to allow offsets 

from nearby nonattainment or 

maintenance areas. Some of these 

commenters suggested that additional 

limits could be imposed on the use of 

the out-of-area offsets. Several 

commenters representing State air 

quality agencies opposed the allowing 

of offsets from other areas. The 

commenters noted that EPA regulations 

and Federal court rulings limit the area 

from which emissions reductions can be 

creditable for attainment 

demonstrations. They also opposed 

allowing offsets because conformity 

generally applies to mobile source 

emissions that are different from 

stationary source emissions covered by 

NSR. 

Response: The EPA agrees that offsets 

should be allowed in nearby 

nonattainment areas in the same manner 

as they are allowed under the NSR 

program. We agree with the commenter 

that EPA regulations and judicial 

rulings place limits on the area from 

which emissions reductions can be 

creditable for attainment 

demonstrations. The intent of those 

limits is to ensure that the emissions 

from the nearby nonattainment area 

contribute to the violations, or have 

contributed to violations in the past, in 

the area in which the Federal action 

takes place. This is consistent with the 

overall revisions to this regulation. 

Therefore, we are also recommending 

that Federal agencies show that they 

have met the requirements of 

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

originate from an area that contributes 

to the violations, or have contributed to 

violations in the past, in the areas with 

the Federal action—by using the same 

techniques EPA has approved by rule or 

guidance for demonstrating contributing 

emissions in other SIP-related 

determinations, such as Reasonable 

Further Progress, Rate of Progress, or 

Attainment Demonstrations for a 

particular pollutant or pollutant 

precursor. By limiting the offsets to 

areas that contribute or have contributed 

to the nonattainment, EPA is narrowing 

the potential offsets to areas that will 

result in a benefit to the nonattainment 

or maintenance area in which the 

Federal action will take place. 

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

EPA is revising the regulations to 

address the precursors of PM2.5. The 

EPA does not believe that the current 

models are adequate to reasonably 

predict the project level impact of 

individual precursor sources of ozone or 

PM2.5. Therefore, EPA is allowing 

Federal agencies to use modeling to 

demonstrate conformity only for 

directly emitted pollutants. Precursors 

of PM2.5 will be treated the same as 

precursors of ozone and direct 

emissions of PM2.5 will be treated the 

same as CO and PM–10 for purposes of 

identifying available tests to 

demonstrate conformity. 

4. In § 93.158(a)(3) and (5), EPA is 

correcting two typographical errors. In 

sub-paragraph (3), EPA is correcting 

‘‘meet’’ to ‘‘meets’’ and in sub-paragraph 

(5), EPA is changing ‘‘paragraph 

(a)(30)(11)’’ to ‘‘paragraph (a)(3)(ii).’’ 

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

deleting the reference to the year 1990 

and replacing it with a generic reference 

to the most current calendar year with 

a complete emission inventory available 

before an area is designated unless EPA 

sets another year. In addition to 

requiring the conformity regulations, the 

CAA Amendments of 1990 required the 

designation of areas as nonattainment 

based on the existing air quality data. 

Therefore, when EPA promulgated the 

1993 regulations, all the designations 

were based on a 1990 date. Since EPA 

promulgated the conformity regulations, 

it has promulgated new 8-hour ozone 

and PM2.5 standards and designated a 

number of areas as nonattainment. By 

changing the regulations to reference the 

date when the area was designated as 

nonattainment, EPA is allowing for the 

General Conformity regulations to 

address these new designations and any 

future designations through 

identification of appropriate inventory 

levels. In addition, including the option 

to allow EPA to set another year for the 

baseline allows EPA and other Federal 

agencies to work together to determine 

if another baseline may be appropriate 

for determining conformity of a 

particular action, such as determining 

that an agency can rely on one specific 

baseline year for an action subject to 

both the general and transportation 

conformity regulations when those 

regulations otherwise indicate 

application of two different baseline 

years. 

6. Also in § 93.158(a)(5)(i), EPA is 

revising the paragraph to allow Federal 

agencies to make conformity 

determinations based upon a State’s or 

Tribe’s determination that the emissions 

from the action along with all other 

emissions in the area would not exceed 

the emission budget in the applicable 

SIP or TIP. Under the 1993 regulations, 

States could only make such a 

determination if they had an approved 

attainment demonstration or 

maintenance SIP. This revision would 

allow the State or Tribe to make its 

determination based upon a postdesignation applicable SIP or TIP even 

though the plan does not include an 

attainment demonstration. For example, 

the State or Tribe could base their 

determination on an emission budget in 

an EPA-approved ‘‘Reasonable Further 

Progress’’ plan. By adopting the budget 

and submitting it as part of the SIP or 

TIP, the State or Tribe is treating the 

Federal action like any other source in 

the area. When the State or tribal agency 

adopts the attainment or maintenance 

SIP or TIP, it will have to consider the 

emissions from the Federal action, and 

if necessary require additional controls 

on the sources as necessary to meet air 

quality needs. 

7. The EPA is revising 

§ 93.158(a)(5)(i)(C) to allow the State or 

Tribe to commit to including the 

emissions from the Federal action in 

future SIPs. Under the 1993 regulations, 

Federal agencies can demonstrate 

conformity by having the State commit 

to revising the applicable SIP to include 

the emissions. If a State or Tribe agrees 

to such a commitment, the State or 

Tribe must submit a SIP revision within 

18 months to include the emissions 

from the action and to make other 

necessary adjustments in the SIP to 

accommodate those emissions. 

However, the existing SIP or TIP (or a 

SIP or TIP required to be submitted in 


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18 months) may not cover the same 

timeframe covered by the conformity 

determination. For example, a SIP for a 

nonattainment area that demonstrates 

attainment may only cover the period 

until the attainment date while the 

conformity determination may cover 

emissions for many years beyond that 

date. The State or Tribe may be 

submitting future SIPs or TIPs to 

address either maintenance of the 

standard or to address a continuing 

nonattainment problem that would 

cover the time period of the emissions. 

The revision to § 93.158(a)(5)(i)(C) 

would continue to require States to 

revise the SIP within 18 months of the 

conformity determination based upon a 

State’s or Tribe’s commitment. 

However, if the existing SIP or TIP (or 

a SIP or TIP due within 18 months) does 

not cover the time period of the 

emissions, then the State or Tribe will 

submit a SIP revision that includes an 

enforceable commitment to account for 

the emissions in future SIP revisions. 

This approach will allow States and 

Tribes flexibility in committing to 

include the emissions from the Federal 

action in the SIP covering the relevant 

time period. 

8. The EPA is revising 

§ 93.158(a)(5)(iv) to delete the use of 

1990 as the baseline year. As discussed 

above, when EPA promulgated the 

existing General Conformity Regulations 

in 1993, the designations and 

classifications were based upon the 

1990 air quality and emissions. Since 

1993, EPA has promulgated new 

standards and designated additional 

areas as nonattainment. Therefore, in 

many cases the 1990 date for the 

baseline emission inventory is 

inappropriate. The EPA is setting the 

baseline year as the most current 

calendar year with a complete emission 

inventory available before an area is 

designated unless EPA sets another 

year. As noted above, including the 

option to allow EPA to set another year 

for the baseline allows EPA and other 

Federal agencies to work together to 

determine if another baseline may be 

appropriate for determining conformity 

of a particular action. 

Finally, EPA is deleting another 

alternate baseline year that no longer is 

applicable in PM–10 areas. Specifically, 

EPA is deleting in 

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

‘‘year of the baseline inventory in the 

PM–10 applicable SIP.’’ EPA believes 

that the deletion of this outdated 

baseline year should not affect current 

General Conformity determinations in 

PM–10 nonattainment and maintenance 

areas. 

K. 40 CFR 93.159—Procedures for 

Conformity Determinations for General 

Federal Actions 

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

address when new motor vehicle 

emissions factors models are used in 

General Conformity determinations. 

EPA is clarifying that the grace period 

before such new models are used will be 

3 months from EPA’s model release, 

unless a longer grace period is 

announced in the Federal Register. This 

is more consistent with 40 CFR 93.111 

of the transportation conformity rule 

that allows grace periods for new motor 

vehicle emissions factor models to be 

between 3–24 months. 

2. The EPA is revising § 93.159(b)(2) 

and (c) to update the reference to the 

Compilation of Air Pollutant Emission 

Factors and the Guideline on Air 

Quality Modeling. EPA has released 

updated versions of these documents 

since it promulgated the existing 

regulations in 1993. 

3. The EPA is revising paragraph 

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

required for the attainment year 

specified in the SIP. In some cases, such 

as SIPs for marginal ozone areas, an 

attainment demonstration date was not 

required in the SIP. Therefore, EPA is 

requiring that if the SIP or TIP does not 

specify an attainment demonstration 

year then the analysis is conducted for 

the latest attainment year possible under 

the CAA. Since the CAA requires the 

SIP demonstrate attainment as 

expeditiously as possible but no later 

than the CAA mandated attainment 

date, it is possible that a SIP or TIP 

could have an earlier attainment date. 

That earlier date if specified in the SIP 

would be the appropriate year for the 

conformity analysis. 

4. The EPA is making a minor 

wording revision to paragraph (d)(2) to 

clarify the paragraph. The EPA is 

replacing the word ‘‘farthest’’ with ‘‘last.’’ 

The maintenance plans are developed 

for a 10-year period and revised as 

necessary for the next 10-year period. 

The purpose is for conformity to be 

evaluated for the last year of the 

maintenance plan. The word ‘‘last’’ 

conveys that meaning. 

L. 40 CFR 93.160—Mitigation of Air 

Quality Impacts 

The EPA is revising paragraph 

§ 93.160(f) to clarify its meaning. The 

regulations were meant to require that 

the mitigation measures include a 

written commitment from the person or 

organization reducing the emissions and 

that those commitments must be 

fulfilled. EPA is adding text to state that 

those commitments must be fulfilled to 

clearly provide for enforcement of those 

commitments under the Federal 

regulations. 

M. 40 CFR 93.161—Conformity 

Evaluations for Installations With 

Facility-Wide Emission Budget 

The EPA is adding a new section to 

the regulations to facilitate the use of a 

facility-wide emission budget in 

evaluating conformity. Although the 

existing regulations do not preclude 

States and Federal agencies from using 

this approach, the regulations do not 

specifically authorize its use. This 

section for developing such a budget 

would be in conjunction with a new 

§ 93.153(i)(1), which provides a 

mechanism for demonstrating that the 

emissions are in conformance with the 

SIP or TIP. This approach allows States 

or Tribes and Federal agencies to 

identify acceptable levels of emissions 

from the facility for inclusion in the SIP 

before starting the environmental review 

for the actions and thereby expedite the 

review of the Federal actions at the 

facilities that do not exceed the 

emission levels. 

The EPA believes that this provision 

would encourage the State, Tribe or 

local air quality agency and the Federal 

facilities to develop an upfront emission 

budget for the facility, and the action or 

project environmental review would be 

streamlined as long as the facility 

remains within an established budget. 

The development and use of a facilitywide emission budget would be 

voluntary on the part of the Federal 

agency, State, Tribe and local air quality 

agency. No party would be required to 

participate. If the parties agreed to 

participate, an emission budget would 

be established based upon specific 

guidance and documented growth 

projections for the facility, and adoption 

of that budget into a SIP or TIP would 

demonstrate that the area could meet its 

air quality obligations with the 

identified emission budget. 

Comment: The majority of 

commenters supported the concept of 

the facility-wide emission budget 

approach with the appropriate 

consultation and input from the States. 

Many noted that it will not interfere 

with attainment of the NAAQS. 

However, some commenters 

disapproved of the budget approach and 

expressed concern about a Federal 

agency/airport being allowed to 

establish their own budget without 

having to do additional analysis. 

While generally agreeing with the 

approach, many commenters asked EPA 

for clarifications. Several commenters 

asked for clarification in the final rule 

that this is voluntary for both the 


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Federal agency and the States and the 

States can opt to use the existing 

General Conformity approach. In 

addition, some commenters asked EPA 

to include provisions requiring such 

measures as periodic reporting of 

emissions, anti-backsliding, and a 

requirement to obtain offsets if the 

budget is exceeded. Another commenter 

requested that on-site pollution 

prevention projects be required to occur 

contemporaneously with any proposed 

emission changes at the facility. Many 

commenters requested that EPA clarify 

the applicability of this provision to 

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

Response: The EPA agrees with most 

of the commenters that the facility-wide 

emissions budget approach will not 

interfere with attainment of the NAAQS 

and will provide flexibility to the 

facilities in meeting the General 

Conformity requirements. EPA believes 

that this approach benefits both the air 

regulatory agencies and the regulated 

facilities. State air quality agencies 

would benefit by having better emission 

estimates, including growth estimates 

from the installation and Federal 

agencies would benefit by having the 

General Conformity process 

streamlined, reducing the amount of 

time it takes to demonstrate conformity. 

EPA is clarifying in the final rule that 

this approach is completely voluntary 

by both the State and the Federal 

agency. If the State or Tribe agrees to 

allow the facility to use the emission 

budget approach, it must ensure that the 

budget that it approves meets all 

applicable air quality requirements such 

as attainment deadlines and reasonable 

further progress milestones. Thus, in 

developing and approving such budgets, 

we encourage the facilities and the State 

or Tribe to consult with other agencies 

or authorities as may be appropriate. For 

example, we encourage consultation 

with the local MPO if a facility-wide 

emissions budget includes on-road 

mobile emissions that might also be 

included in an MPO’s regional 

emissions analysis. 

While the State or Tribe must approve 

a facility-wide budget into the SIP or 

TIP, once they have done so they cannot 

compel an agency to demonstrate 

conformity with another approach if the 

Federal agency chooses to show 

conformity with the approved facilitywide emission budget. Federal agencies 

may use any approach to demonstrate 

conformity provided for in the rule. 

Facilities that are not federally 

controlled or operated, but are subject to 

Federal approvals, permits or funding 

(such as airports and seaports) may 

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

by a Federal agency to satisfy its General 

Conformity responsibilities. The 

approval by the State of a facility-wide 

emissions budget into the SIP does not 

relieve the State of any obligation to 

meet any SIP or CAA requirements, 

milestones or deadlines. 

N. 40 CFR 93.162—Emissions Beyond 

the Time Period Covered by the 

Applicable SIP or TIP 

The EPA is adding a new section to 

address how Federal agencies can 

demonstrate conformity for an action 

that causes emissions beyond the time 

period covered by the SIP or TIP. First, 

EPA is allowing Federal agencies to 

demonstrate conformity using the last 

emission budget in the SIP or TIP. If it 

is not practicable to demonstrate 

conformity using that technique, then 

the Federal agency can request the State 

or Tribe to provide an enforceable 

commitment to include the emissions 

from the Federal action in a current or 

future SIP or TIP emissions budget. In 

such a case, the State or Tribe would be 

required to submit a SIP revision within 

18 months to either include the 

emissions in the current SIP or TIP or 

a commitment to account for the 

emissions in future SIPs or TIPs. The 

emissions included in the future SIP 

should be based on the latest planning 

assumptions at the time of the SIP 

revision. Although a State is committing 

to include the emissions in the 

emissions budget for the SIP revisions, 

this commitment does not prevent the 

State from requiring the use for the 

affected sources of reasonably available 

control technology (RACT), reasonably 

available control measures (RACM) or 

any other control measures within the 

State’s authority to ensure timely 

attainment of the NAAQS. 

O. 40 CFR 93.163—Timing of Offsets 

and Mitigation Measures 

Mitigation measures and offsets are 

used to reduce the impact of emission 

increases from a project or action. To 

alleviate the impact of the project’s 

emissions, the emissions reductions 

from offsets or mitigation measures 

should occur at the same time as the 

emission increases from the project. In 

general, EPA has interpreted the 

existing regulations to mean that the 

reductions must occur in the same 

calendar year as the emission increases 

caused by the action because the total 

direct and indirect emissions from an 

action are collated on an annual basis. 

Therefore, EPA has decided to include 

this interpretation in the regulations. 

The EPA is adding a new section to 

address the timing of offset and 

mitigation measures. First, the section 

generally requires that the emission 

reductions for the offset and mitigation 

measures must occur in the same 

calendar year as the emission increases 

caused by the Federal action and that 

the reductions are equal to the 

emissions increases. As an alternative, 

the new section would allow, under 

special conditions and consistent with 

CAA requirements, the State or Tribe to 

approve other schedules for offsets or 

mitigation measures. EPA is requiring 

that emissions reductions used over an 

alternate schedule must be consistent 

with statutory requirements that new 

violations are not created, the frequency 

or severity of existing violations are not 

increased, and timely attainment or 

interim milestones are not delayed. 

Therefore, when a State or Tribe 

approves an alternative schedule for 

emissions reductions, it is assuring that 

the increased emissions that occur 

during the period of the Federal action 

do not violate any of the three Clean Air 

Act requirements described above. 

To ensure that these noncontemporaneous emission reductions 

provide greater environmental benefits 

in the long term, EPA is requiring that 

the offset or mitigation ratios for 

alternative schedules be greater than 

one-for-one. Therefore, EPA is requiring 

a ratio that is no less than the applicable 

NSR offset ratios for the area. These 

ratios are readily available and already 

understood to be based on the severity 

of the nonattainment problem for the 

area. 

Also, EPA believes that the mitigation 

or offset compensation period should 

not last indefinitely and is requiring that 

the period should not exceed two times 

the period of the under-mitigated 

emissions. For example, a Federal 

agency may be supporting a 

construction project lasting 3 years in a 

serious nonattainment area and that 

project will cause 150 tons per year of 

increased emissions; the State or Tribe 

can approve mitigation measures or 

offsets which reduce emissions by less 

than 150 tons per year provided the 

total reduction over a 6-year period is 

equal to or more than 540 tons (150 tons 

per year times 3 years equals 450 tons 

times the offset/mitigation ratio of 1.2 to 

1 for serious nonattainment areas equals 

540 tons). 

Agreeing to allow the use of offsets or 

mitigation measures in later years does 

not exempt the State or Tribe from 

timely meeting any of its SIP or TIP 

obligations, such as reasonable further 

progress milestones or attainment 

deadlines. Emissions reductions which 

accrue beyond the compensation period 

should be properly reflected in the SIP 

or TIP, e.g., through a SIP revision. 


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Comment: Several commenters 

representing Federal agencies, industry 

and airports supported the flexibility in 

the timing of offsets and mitigation 

measures. The commenters believe that 

EPA needs to clarify what entity would 

determine whether the alternative time 

period for mitigation would trigger the 

three statutory factors for conformity 

and how such entity would do so. One 

commenter recommended that the State 

or tribal agency responsible for the SIP 

be the appropriate entity. Another 

commenter requested that EPA clarify 

the use of emission reduction credits in 

such cases. In addition, a commenter 

urges EPA to reduce the offset ratios to 

no more than 1.2:1 in extreme 

nonattainment areas and to provide a 

fixed period of time for completing the 

emissions reductions recommending a 

5-year compensation period to be 

included in the rule. 

Some commenters representing State 

and local air quality agencies objected to 

the alternate schedule provision for 

offsets. The commenters believe that 

mitigation measures and offsets must be 

contemporaneous and occur in the same 

calendar year as the emission increases. 

If EPA adopts the provision, the 

commenters suggested additional 

limitation on the use of the alternative 

schedule, such as a 3-year maximum 

time limit for the schedule and 

requiring more than a one-for-one offset. 

Response: The EPA believes the rule 

should be finalized as proposed. This 

will allow Federal agencies to work 

with States or Tribes to develop an 

alternative schedule for the emission 

reductions in cases where a greater 

environmental benefit can be obtained. 

The requirement for the additional 

reductions to meet the ratios in the 

regulations ensures that the area is 

receiving at least a minimum 

environmental benefit consistent with 

other CAA programs. Since State or 

tribal approval is required for the 

alternative schedule, those agencies 

have the ability to ensure that the 

alternative schedule not cause or 

contribute to a violation of the SIP or 

TIP. In addition, EPA has added 

additional wording to clarify that the 

State or Tribe is not compelled to 

approve a proposed alternate schedule 

for mitigation measures. 

P. 40 CFR 93.164—Inter-Precursor 

Offsets and Mitigation Measures 

The EPA is adding a new section to 

the regulations to allow the use of interprecursor offset and mitigation 

measures where they are allowed by the 

SIP. For example, some States and local 

air districts have SIP-approved NSR 

regulations that allow new or modified 

stationary sources to offset the increase 

in emissions of one criteria pollutant 

precursor by reducing the emissions of 

another precursor of the same criteria 

pollutant, provided there is an 

environmental benefit to such an 

exchange and an appropriate ratio of 

precursor reductions has been 

established. The 1993 General 

Conformity regulations do not 

specifically allow or prohibit interprecursor offsets and mitigation 

measures. Therefore, EPA is revising the 

regulations to allow such offsets or 

mitigation measures if they are allowed 

by a State or tribal NSR or trading 

program approved in the SIP, provided 

they: 

1. Are technically justified; and 

2. Have a demonstrated 

environmental benefit. 

The ratio for the offsets must be 

consistent with SIP or TIP requirements 

and EPA guidance. 

Comments: Commenters from a wide 

range of affiliations supported the 

provision for inter-precursor offsets 

with some conditions. The commenters 

suggested that offsets should be allowed 

only with adequate technical support 

and appropriate ratios for interpollutant mitigation. Others thought 

EPA should provide a guidance 

document on what States may consider 

as reasonable tradeoffs and procedures 

for evaluating such tradeoffs at the same 

time as the final rule publication. Many 

believed the provisions should only be 

implemented with the full involvement 

and approval of the State, local or tribal 

air quality agency. Some commenters 

representing State air quality agencies 

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

the objection. 

Response: The EPA believes that 

allowing inter-precursor offsets will 

allow facilities flexibility in meeting the 

General Conformity requirements and 

agrees to change the regulations to allow 

for the trading of inter-precursor 

emissions only if two conditions are 

met. First, such trades must be allowed 

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

State must already allow for interprecursor offsets or trading through a 

SIP-approved NSR program, 

transportation conformity program, or in 

the attainment or reasonable further 

progress (RFP) demonstration to ensure 

conformance with a SIP or a TIP. 

Second, the trade must be technically 

justified and have demonstrated 

environmental benefits. This technical 

justification and demonstration should 

be accomplished by showing that the 

precursors are area specific and 

appropriate ratios are identified in the 

SIP. As needed, EPA will provide 

guidance on tradeoffs and procedures 

for evaluating such tradeoffs. 

Q. 40 CFR 93.165—Early Emission 

Reduction Credit Program 

The EPA is adding a new section to 

the regulations to establish an early 

emission reduction credit program for 

facilities subject to the General 

Conformity Regulations. The existing 

regulations require that the offsets and 

mitigation measures be in place before 

the emissions increases caused by the 

Federal action occur. However, 

emission reduction programs 

undertaken before the conformity 

determination is made could be 

considered as part of the baseline 

emissions and not available as offsets or 

mitigation measures for future actions 

subject to the General Conformity 

requirements. To expedite the project 

level conformity process, EPA believes 

Federal agencies and project sponsors 

could benefit from the ability to reduce 

emissions in advance of the time that 

the reductions are needed for a 

conformity evaluation, while at the 

same time meeting the goals of the SIP 

and TIP. 

The EPA is adding a new section, 

§ 93.165, to the General Conformity 

Regulations to define the requirements 

of this program. Under the program, 

Federal agencies or project proponents 

(such as airport authorities) could 

identify emission control measures and 

present the proposed reduction to the 

State, Tribe or local air quality agency. 

If the measure met the criteria for an 

offset (quantifiable; consistent with the 

applicable SIP attainment and RFP 

demonstrations; surplus to the 

reductions required by and credited to 

other applicable SIP provisions; 

enforceable at both the State and 

Federal levels; and permanent within 

the timeframe specified by the program) 

as well as all State, Tribe or local 

requirements, the State, Tribe or local 

agency can approve the measure as 

eligible to produce emission reduction 

credits. If credits are issued, then a 

Federal agency will be allowed to use 

the credits to reduce the total of direct 

and indirect emissions from a future 

proposed action. At the time the credits 

are used, the State, Tribe or local agency 

must certify that the reductions still 

meet the criteria listed above. The 

credits must be used in the same 

calendar year in which they are 

generated under this program. 

In paragraph (a), EPA establishes the 

ability for the State or Tribe and Federal 

agency to create and use the emission 

reduction credits. 

In paragraph (b), EPA identifies the 

criteria for creating the credits. The 


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criteria are similar to the requirements 

that apply to any offset or mitigation 

measure used to compensate for the 

increased emissions caused by the 

action. First, the Federal agency must be 

able to quantify the reductions using 

reliable techniques. In some cases, 

however, it may not be possible to 

precisely quantify the reductions until 

after the measure has been 

implemented. For example, a facility 

may adopt a strategy calling for the 

purchase and use of alternate-fueled 

vehicles. Although the agency could 

calculate the difference in the emissions 

between the alternate-fueled vehicle and 

the standard vehicle, it may not know 

the amount the vehicles will be used. In 

this case, the State or Tribe and Federal 

agency could agree on an emission 

factor and determine the use at a later 

time. However, the reductions must be 

quantified before the credit is used to 

support a conformity determination. 

In paragraph (c), EPA establishes the 

requirements for the use of the credits. 

If the emission reduction credits are 

created at the same facility and in the 

same nonattainment or maintenance 

area as the Federal action, the credits 

can be used to reduce the total 

emissions from the action. This may 

allow the Federal agency to determine 

the action conforms because the total 

emissions are below the de minimis 

levels for the area. If the strategy is not 

implemented at the same facility but is 

in the same nonattainment or 

maintenance areas as the action, then 

the credits can be used as offsets or 

mitigation measures for the emissions 

caused by the action, but not to 

determine if the action emissions fall 

below de minimis thresholds. In this 

context, ‘‘same facility’’ means a 

contiguous area that a Federal agency 

manages or exercises control over. 

Generally, all actions and operations 

within a fence line of a facility such as 

an airport would be considered to be at 

the ‘‘same facility.’’ However, military 

operations at a civilian airport would 

not be considered to be at the ‘‘same 

facility.’’ Therefore, an airport could 

install equipment to supply power and 

conditioned air to airplanes parked at a 

gate to reduce the use of diesel 

generators and auxiliary power units at 

an airport terminal. Those reductions 

could be considered to be implemented 

as part of an airport expansion project 

to improve the terminal and thus would 

be at the ‘‘same facility.’’ 

Since the General Conformity 

program is based on annual emissions, 

EPA is requiring that the credits be used 

in the same year as they are generated 

under the program. Such a restriction 

would ensure consistency with the 

other parts of the General Conformity 

program. This does not mean that an 

emission reduction strategy cannot 

produce an annual stream of credits, but 

does mean that the reduction credits 

cannot be carried over to another year. 

Although the emission reduction credits 

must meet the criteria for use of offsets 

or other mitigation measures, EPA is not 

allowing the credits to be combined 

with other program areas such as the 

alternate schedules for mitigation 

measures under § 93.163 or the interprecursor mitigation offset program 

under § 93.164. At this time, EPA 

believes that, because of the newness of 

the emission reduction credit program 

and the lack of available 

implementation data, it is better to take 

a conservative approach on 

implementing the program to ensure 

that it can be effectively implemented 

and evaluated. 

Comment: Most commenters 

supported EPA’s proposal to allow the 

use of emission reduction credits 

(ERCs). One commenter thought that 

EPA should clarify when the ERCs can 

be used. Several commenters disagreed 

with the proposal, citing concerns such 

as violations of conformity, while 

another was concerned about the 

additional resources required to certify 

the ERC and track them over time, and 

avoidance of formal conformity 

determinations. Still another commenter 

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

is no ability for States and the public to 

enforce the measures relied upon to 

generate emission reduction credits. 

Response: The EPA believes that by 

allowing early ERCs, Federal agencies 

will be encouraged to develop emission 

reduction programs before they are 

needed as offsets for conformity 

determinations. Since the emissions are 

accounted for on an annual basis, the 

unused credits would benefit the 

environment. The emission reduction 

programs could be implemented in 

conjunction with the action requiring 

the conformity determination. 

Therefore, the use of ERC would not 

encourage an agency to violate 

conformity. In any event, under this 

provision all Federal actions would 

need applicable offsetting reductions by 

the time the conformity determination 

was made. EPA does not believe States 

will be required to use more resources 

since States and Tribes are only 

required to verify the credits when they 

are used in a conformity evaluation, 

while the agency relying upon the 

credits is required to document that 

usage. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

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

action is a ‘‘significant regulatory action’’ 

because it may interfere with actions 

taken or planned by other Federal 

agencies. Accordingly, EPA submitted 

this action to the Office of Management 

and Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action does not directly impose 

an information collection burden under 

the provisions of the Paperwork 

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

on non-Federal entities. The General 

Conformity Regulations require Federal 

agencies to determine that their actions 

conform to the SIPs or TIPs. However, 

depending upon how Federal agencies 

implement the regulations, non-Federal 

entities seeking funding or approval 

from those Federal agencies may be 

required to submit information to that 

agency. 

Although the present revisions to the 

regulations do not establish any specific 

new information collection burden, it 

would establish alternative voluntary 

approaches that may result in a different 

burden. For example, the proposed 

facility-wide emission budget would 

allow Federal agencies or operators of 

facilities subject to the General 

Conformity requirements such as 

commercial service airports to work 

with the State, Tribe or local air quality 

agency to develop an emission budget 

for the facility. The State, Tribe or local 

agencies and Federal agencies or third 

party facility operators would incur the 

burden of developing the budget. 

However, those entities are not required 

to implement such a program and 

would be relieved of the burden of 

conducting and reviewing some, if not 

all, of the General Conformity 

determinations for the facility if they do 

so. States are not required to implement 

a program that would increase their 

burden, and we assume they would not 

choose to do so. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an Agency to prepare 

a regulatory flexibility analysis of any 

regulation subject to notice and 

comment rulemaking requirements 

under the Administrative Procedures 

Act or any other statute unless the 


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Agency certifies the rule will not have 

a significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

this final rule on small entities, small 

entity is defined as: (1) A small business 

that is a small industrial entity as 

defined in the U.S. Small Business 

Administration (SBA) size standards. 

(See 13 CFR 121.); (2) A governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) A small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impact of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This final rule will not impose any 

significant requirements on small 

entities, because the General Conformity 

Regulations set requirements on Federal 

agencies to show that their actions 

conform to the appropriate State, tribal 

or Federal implementation plan for 

attaining clean air. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. The 

action imposes no enforceable duty on 

any State, local or tribal governments or 

the private sector. Therefore, this action 

is not subject to the requirements of 

section 202 and 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. The 

General Conformity Regulations set 

requirements on Federal agencies to 

show that their actions conform to the 

appropriate State, tribal or Federal 

implementation plan for attaining clean 

air. 

E. Executive Order 13132—Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The General 

Conformity Regulations set 

requirements on Federal agencies to 

show that their actions conform to the 

appropriate State, tribal or Federal 

implementation plan for attaining clean 

air. Thus, Executive Order 13132 does 

not apply to this action. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). They do not have a substantial 

direct effect on one or more Indian 

Tribes, since no Tribe has to 

demonstrate conformity for their 

actions. Furthermore, except for 

allowing the Tribes to comment on draft 

conformity determinations, these 

regulation revisions do not affect the 

relationship or distribution of power 

and responsibilities between the Federal 

government and Indian Tribes. The 

CAA and the Tribal Air Rule establish 

the relationship of the Federal 

government and Tribes in developing 

plans to attain the NAAQS, and these 

revisions to the regulations do nothing 

to modify that relationship. Thus, 

Executive Order 13175 does not apply 

to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211 (66 FR 28355, May 22, 2001), 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. The 

General Conformity Regulations set 

requirements on Federal agencies to 

show that their actions conform to the 

appropriate State, tribal or Federal 

implementation plan for attaining clean 

air. Further, we have concluded that 

this rule is not likely to have any 

adverse energy effects. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

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

directs EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. The VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by VCS 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable VCS. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any VCS. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629, (Feb. 16, 1994)) establishes 

Federal executive policy on 

environmental justice. Its main 

provision directs Federal agencies, to 

the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The revisions to the 

regulations would revise procedures for 

other Federal agencies to follow and 

does not relax the progress toward 

attainment and maintenance for the 

NAAQS as required by individual SIPs 

and TIPs As such, they do not affect the 

health or safety of minority or low 

income populations. The EPA 

encourages other agencies to carefully 

consider and address environmental 

justice in their implementation of their 

evaluations and conformity 

determinations. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 


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Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

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

will be effective July 6, 2010. 

VII. Statutory Authority 

The statutory authority for this action 

is provided by section 176(c) of the CAA 

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

List of Subjects 

40 CFR Part 51 

Environmental protection, 

Administrative practice and procedures, 

Air pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur dioxide, Volatile 

organic compounds. 

40 CFR Part 93 

Environmental protection, 

Administrative practice and procedures, 

Air pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur dioxide, Volatile 

organic compounds. 

Dated: March 24, 2010. 

Lisa P. Jackson, 

Administrator. 

■ For the reasons stated in the preamble, 

title 40, chapter I of the Code of Federal 

Regulations is amended as follows: 

PART 51—REQUIREMENTS FOR 

PREPARATION, ADOPTION, AND 

SUBMITTAL OF IMPLEMENTATION 

PLANS 

■ 1. The authority citation for part 51 

continues to read as follows: 

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

7671q. 

Subpart W—[Amended] 

§ 51.850 [Removed and Reserved] 

■ 2. Remove and reserve § 51.850. 

■ 3. Section 51.851 is revised to read as 

follows: 

§ 51.851 State implementation plan (SIP) 

or Tribal implementation plan (TIP) revision. 

(a) A State or eligible Tribe (a 

federally recognized tribal government 

determined to be eligible to submit a 

TIP under 40 CFR 49.6) may submit to 

the Environmental Protection Agency 

(EPA) a revision to its applicable 

implementation plan which contains 

criteria and procedures for assessing the 

conformity of Federal actions to the 

applicable implementation plan, 

consistent with this section and 40 CFR 

part 93, subpart B. 

(b) Until EPA approves the conformity 

implementation plan revision permitted 

by this section, Federal agencies shall 

use the provisions of 40 CFR part 93, 

subpart B in addition to any existing 

applicable State or tribal requirements, 

to demonstrate conformity with the 

applicable SIP or TIP as required by 

section 176(c) of the CAA (42 U.S.C. 

7506). 

(c) Following EPA approval of the 

State or tribal conformity provisions (or 

a portion thereof) in a revision to the 

applicable SIP or TIP, conformity 

determinations shall be governed by the 

approved (or approved portion of) State 

or tribal criteria and procedures. The 

Federal conformity regulations 

contained in 40 CFR part 93, subpart B 

would apply only for the portion, if any, 

of the part 93 requirements not 

contained in the State or Tribe 

conformity provisions approved by 

EPA. 

(d) The State or tribal conformity 

implementation plan criteria and 

procedures cannot be any less stringent 

than the requirements in 40 CFR part 

93, subpart B. 

(e) A State’s or Tribe’s conformity 

provisions may contain criteria and 

procedures more stringent than the 

requirements described in this subpart 

and part 93, subpart B, only if the 

State’s or Tribe’s conformity provisions 

apply equally to non-Federal as well as 

Federal entities. 

(f) In its SIP or TIP, the State or Tribe 

may identify a list of Federal actions or 

type of emissions that it presumes will 

conform. The State or Tribe may place 

whatever limitations on that list that it 

deems necessary. The State or Tribe 

must demonstrate that the action will 

not interfere with timely attainment or 

maintenance of the standard, meeting 

the reasonable further progress 

milestones or other requirements of the 

Clean Air Act. Federal agencies can rely 

on the list to determine that their 

emissions conform with the applicable 

SIP or TIP. 

(g) Any previously applicable SIP or 

TIP requirements relating to conformity 

remain enforceable until EPA approves 

the revision to the SIP or TIP to 

specifically remove them. 

§§ 51.852 through 51.860 [Removed 

and Reserved] 

■ 4. Remove and reserve §§ 51.852 

through 51.860. 

PART 93—DETERMINING 

CONFORMITY OF FEDERAL ACTIONS 

TO STATE TRIBAL OR FEDERAL 

IMPLEMENTATION PLANS 

■ 5. The authority citation for part 93 

continues to read as follows: 

Authority: 42 U.S.C. 7401–7671q. 

Subpart B—[Amended] 

■ 6. Section 93.150 is amended by 

removing and reserving paragraph (c) 

and by adding paragraph (e) to read as 

follows: 

§ 93.150 Prohibition. 

* * * * * 

(e) If an action would result in 

emissions originating in more than one 

nonattainment or maintenance area, the 

conformity must be evaluated for each 

area separately. 

■ 7. Section 93.151 is revised to read as 

follows: 

§ 93.151 State implementation plan (SIP) 

revision. 

The provisions and requirements of 

this subpart to demonstrate conformity 

required under section 176(c) of the 

Clean Air Act (CAA) apply to all Federal 

actions in designated nonattainment 

and maintenance areas where EPA has 

not approved the General Conformity 

SIP revision allowed under 40 CFR 

51.851. When EPA approves a State’s or 

Tribe’s conformity provisions (or a 

portion thereof) in a revision to an 

applicable implementation plan, a 

conformity evaluation is governed by 

the approved (or approved portion of 

the) State or Tribe’s criteria and 

procedures. The Federal conformity 

regulations contained in this subpart 

apply only for the portions, if any, of the 

part 93 requirements not contained in 

the State or Tribe conformity provisions 

approved by EPA. In addition, any 

previously applicable implementation 

plan conformity requirements remain 

enforceable until the EPA approves the 

revision to the applicable SIP to 

specifically include the revised 

requirements or remove requirements. 

■ 8. Section 93.152 is amended as 

follows: 

■ a. Adding in alphabetical order a 

definition for ‘‘Applicability analysis.’’ 

■ b. Revising the definition of 

‘‘Applicable implementation plan or 

applicable SIP.’’ 


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■ c. Revising the definition for 

‘‘Areawide air quality modeling 

analysis.’’ 

■ d. Adding the following definitions in 

alphabetical order: ‘‘Confidential 

business information (CBI),’’ 

‘‘Conformity determination,’’ 

‘‘Conformity evaluation,’’ ‘‘Continuing 

program responsibility,’’ and 

‘‘Continuous program to implement.’’ 

■ e. Revising the definition of ‘‘Direct 

emissions.’’ 

■ f. Adding in alphabetical order a 

definition for ‘‘Emission inventory.’’ 

■ g. Removing the definition for 

‘‘Emissions that a Federal agency has a 

continuing program responsibility for.’’ 

■ h. Revising the definition of ‘‘EPA.’’ 

■ i. Revising the definition of ‘‘Indirect 

Emissions.’’ 

■ j. Revising the definition of ‘‘Local air 

quality modeling analysis.’’ 

■ k. Revising the definitions for 

‘‘Maintenance area’’ and ‘‘Metropolitan 

Planning Organization (MPO).’’ 

■ l. Adding in alphabetical order a 

definition for ‘‘Mitigation measure.’’ 

■ m. Revising the definition for 

‘‘National ambient air quality standards 

(NAAQS).’’ 

■ n. In the definitions for ‘‘Precursors of 

a criteria pollutant,’’ revising paragraphs 

(3)(i), (3)(ii) and (3)(iii). 

■ o. Revising the definition for 

‘‘Reasonably foreseeable emissions.’’ 

■ p. Removing the definition for 

‘‘Regionally significant action.’’ 

■ q. Adding the following definitions: 

‘‘Restricted information.’’ 

■ r. Adding in alphabetical order the 

definitions for ‘‘Take or start the Federal 

action’’ and ‘‘Tribal implementation plan 

(TIP).’’ 

The additions and revisions read as 

follows: 

§ 93.152 Definitions. 

* * * * * 

Applicability analysis is the process 

of determining if your Federal action 

must be supported by a conformity 

determination. 

Applicable implementation plan or 

applicable SIP means the portion (or 

portions) of the SIP or most recent 

revision thereof, which has been 

approved under section 110(k) of the 

Act, a Federal implementation plan 

promulgated under section 110(c) of the 

Act, or a plan promulgated or approved 

pursuant to section 301 (d) of the Act 

(Tribal implementation plan or TIP) and 

which implements the relevant 

requirements of the Act. 

Areawide air quality modeling 

analysis means an assessment on a scale 

that includes the entire nonattainment 

or maintenance area using an air quality 

dispersion model or photochemical grid 

model to determine the effects of 

emissions on air quality, for example, an 

assessment using EPA’s community 

multi-scale air quality (CMAQ) 

modeling system. 

* * * * * 

Confidential business information 

(CBI) means information that has been 

determined by a Federal agency, in 

accordance with its applicable 

regulations, to be a trade secret, or 

commercial or financial information 

obtained from a person and privileged 

or confidential and is exempt from 

required disclosure under the Freedom 

of Information Act (5 U.S.C. 552(b)(4)). 

Conformity determination is the 

evaluation (made after an applicability 

analysis is completed) that a Federal 

action conforms to the applicable 

implementation plan and meets the 

requirements of this subpart. 

Conformity evaluation is the entire 

process from the applicability analysis 

through the conformity determination 

that is used to demonstrate that the 

Federal action conforms to the 

requirements of this subpart. 

Continuing program responsibility 

means a Federal agency has 

responsibility for emissions caused by: 

(1) Actions it takes itself; or 

(2) Actions of non-Federal entities 

that the Federal agency, in exercising its 

normal programs and authorities, 

approves, funds, licenses or permits, 

provided the agency can impose 

conditions on any portion of the action 

that could affect the emissions. 

Continuous program to implement 

means that the Federal agency has 

started the action identified in the plan 

and does not stop the actions for more 

than an 18-month period, unless it can 

demonstrate that such a stoppage was 

included in the original plan. 

* * * * * 

Direct emissions means those 

emissions of a criteria pollutant or its 

precursors that are caused or initiated 

by the Federal action and originate in a 

nonattainment or maintenance area and 

occur at the same time and place as the 

action and are reasonably foreseeable. 

* * * * * 

Emission Inventory means a listing of 

information on the location, type of 

source, type and quantity of pollutant 

emitted as well as other parameters of 

the emissions. 

* * * * * 

EPA means the U.S. Environmental 

Protection Agency. 

* * * * * 

Indirect emissions means those 

emissions of a criteria pollutant or its 

precursors: 

(1) That are caused or initiated by the 

Federal action and originate in the same 

nonattainment or maintenance area but 

occur at a different time or place as the 

action; 

(2) That are reasonably foreseeable; 

(3) That the agency can practically 

control; and 

(4) For which the agency has 

continuing program responsibility. 

For the purposes of this definition, 

even if a Federal licensing, rulemaking 

or other approving action is a required 

initial step for a subsequent activity that 

causes emissions, such initial steps do 

not mean that a Federal agency can 

practically control any resulting 

emissions. 

* * * * * 

Local air quality modeling analysis 

means an assessment of localized 

impacts on a scale smaller than the 

entire nonattainment or maintenance 

area, including, for example, congested 

roadways on a Federal facility, which 

uses an air quality dispersion model 

(e.g., Industrial Source Complex Model 

or Emission and Dispersion Model 

System) to determine the effects of 

emissions on air quality. 

Maintenance area means an area that 

was designated as nonattainment and 

has been re-designated in 40 CFR part 

81 to attainment, meeting the provisions 

of section 107(d)(3)(E) of the Act and 

has a maintenance plan approved under 

section 175A of the Act. 

* * * * * 

Metropolitan Planning Organization 

(MPO) means the policy board of an 

organization created as a result of the 

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

* * * * * 

Mitigation measure means any 

method of reducing emissions of the 

pollutant or its precursor taken at the 

location of the Federal action and used 

to reduce the impact of the emissions of 

that pollutant caused by the action. 

National ambient air quality 

standards (NAAQS) are those standards 

established pursuant to section 109 of 

the Act and include standards for 

carbon monoxide (CO2), lead (Pb), 

nitrogen dioxide (NO2), ozone, 

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

and sulfur dioxide (SO2). 

* * * * * 

Precursors of a criteria pollutant are: 

* * * * * 

(3) * * * 

(i) Sulfur dioxide (SO2) in all PM2.5 

nonattainment and maintenance areas, 

(ii) Nitrogen oxides in all PM2.5 

nonattainment and maintenance areas 

unless both the State and EPA 

determine that it is not a significant 

precursor, and 


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(iii) Volatile organic compounds 

(VOC) and ammonia (NH3) only in 

PM2.5 nonattainment or maintenance 

areas where either the State or EPA 

determines that they are significant 

precursors. 

Reasonably foreseeable emissions are 

projected future direct and indirect 

emissions that are identified at the time 

the conformity determination is made; 

the location of such emissions is known 

and the emissions are quantifiable as 

described and documented by the 

Federal agency based on its own 

information and after reviewing any 

information presented to the Federal 

agency. 

* * * * * 

Restricted Information is information 

that is privileged or that is otherwise 

protected from disclosure pursuant to 

applicable statutes, Executive Orders, or 

regulations. Such information includes, 

but is not limited to: Classified national 

security information, protected critical 

infrastructure information, sensitive 

security information, and proprietary 

business information. 

Take or start the Federal action means 

the date that the Federal agency signs or 

approves the permit, license, grant or 

contract or otherwise physically begins 

the Federal action that requires a 

conformity evaluation under this 

subpart. 

* * * * * 

Tribal implementation plan (TIP) 

means a plan to implement the national 

ambient air quality standards adopted 

and submitted by a federally recognized 

Indian tribal government determined to 

be eligible under 40 CFR 49.9 and the 

plan has been approved by EPA. 

■ 9. Section 93.153 is amended as 

follows: 

■ a. By revising the table in paragraph 

(b)(1). 

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

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

(d)(2). 

■ d. By revising paragraph (e)(2). 

■ e. By adding paragraph (e)(3). 

■ f. By revising paragraph (f). 

■ g. By revising paragraph (g) 

introductory text. 

■ h. By adding paragraph (g)(3). 

■ i. By revising paragraphs (h) 

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

(h)(4). 

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

(k). 

§ 93.153 Applicability analysis. 

* * * * * 

(1) * * * 

Tons/year 

Ozone (VOC’s or NOX): 

Tons/year 

Serious NAA’s ........................... 50 

Severe NAA’s ............................ 25 

Extreme NAA’s .......................... 10 

Other ozone NAA’s outside an 

ozone transport region .......... 100 

Other ozone NAA’s inside an 

ozone transport region: 

VOC .......................................... 50 

NOX ........................................... 100 

Carbon monoxide: All NAA’s ........ 100 

SO2 or NO2: All NAA’s ................. 100 

PM–10: 

Moderate NAA’s ........................ 100 

Serious NAA’s ........................... 70 

PM2.5: 

Direct emissions ........................ 100 

SO2 ............................................ 100 

NOX (unless determined not to 

be significant precursors) ...... 100 

VOC or ammonia (if determined 

to be significant precursors) .. 100 

Pb: All NAA’s ................................ 25 

* * * * * 

(c) * * * 

(2) * * * 

(xxii) Air traffic control activities and 

adopting approach, departure, and 

enroute procedures for aircraft 

operations above the mixing height 

specified in the applicable SIP or TIP. 

Where the applicable SIP or TIP does 

not specify a mixing height, the Federal 

agency can use the 3,000 feet above 

ground level as a default mixing height, 

unless the agency demonstrates that use 

of a different mixing height is 

appropriate because the change in 

emissions at and above that height 

caused by the Federal action is de 

minimis. 

* * * * * 

(d) * * * 

(1) The portion of an action that 

includes major or minor new or 

modified stationary sources that require 

a permit under the new source review 

(NSR) program (Section 110(a)(2)(c) and 

Section 173 of the Act) or the 

prevention of significant deterioration 

program (title I, part C of the Act). 

(2) Actions in response to 

emergencies which are typically 

commenced on the order of hours or 

days after the emergency and, if 

applicable, which meet the 

requirements of paragraph (e) of this 

section. 

* * * * * 

(e) * * * 

(2) For actions which are to be taken 

after those actions covered by paragraph 

(e)(1) of this section, the Federal agency 

makes a new determination as provided 

in paragraph (e)(1) of this section and: 

(i) Provides a draft copy of the written 

determinations required to affected EPA 

Regional office(s), the affected State(s) 

and/or air pollution control agencies, 

and any Federal recognized Indian tribal 

government in the nonattainment or 

maintenance area. Those organizations 

must be allowed 15 days from the 

beginning of the extension period to 

comment on the draft determination; 

and 

(ii) Within 30 days after making the 

determination, publish a notice of the 

determination by placing a prominent 

advertisement in a daily newspaper of 

general circulation in the area affected 

by the action. 

(3) If additional actions are necessary 

in response to an emergency or disaster 

under paragraph (d)(2) of this section 

beyond the specified time period in 

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

Federal agency can make a new written 

determination as described in (e)(2) of 

this section for as many 6-month 

periods as needed, but in no case shall 

this exemption extend beyond three 6- 

month periods except where an agency: 

(i) Provides information to EPA and 

the State or Tribe stating that the 

conditions that gave rise to the 

emergency exemption continue to exist 

and how such conditions effectively 

prevent the agency from conducting a 

conformity evaluation. 

(ii) [Reserved] 

(f) Notwithstanding other 

requirements of this subpart, actions 

specified by individual Federal agencies 

that have met the criteria set forth in 

either paragraphs (g)(1), (g)(2), or (g)(3) 

of this section and the procedures set 

forth in paragraph (h) of this section are 

‘‘presumed to conform,’’ except as 

provided in paragraph (j) of this section. 

Actions specified by individual Federal 

agencies as ‘‘presumed to conform’’ may 

not be used in combination with one 

another when the total direct and 

indirect emissions from the combination 

of actions would equal or exceed any of 

the rates specified in paragraphs (b)(1) 

or (2) of this section. 

(g) The Federal agency must meet the 

criteria for establishing activities that 

are ‘‘presumed to conform’’ by fulfilling 

the requirements set forth in either 

paragraphs (g)(1), (g)(2), or (g)(3) of this 

section: 

* * * * * 

(3) The Federal agency must clearly 

demonstrate that the emissions from the 

type or category of actions and the 

amount of emissions from the action are 

included in the applicable SIP and the 

State, local, or tribal air quality agencies 

responsible for the SIP(s) or TIP(s) 

provide written concurrence that the 

emissions from the actions along with 

all other expected emissions in the area 

will not exceed the emission budget in 

the SIP. 


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(h) In addition to meeting the criteria 

for establishing exemptions set forth in 

paragraphs (g)(1), (g)(2), or (g)(3) of this 

section, the following procedures must 

also be complied with to presume that 

activities will conform: 

(1) The Federal agency must identify 

through publication in the Federal 

Register its list of proposed activities 

that are ‘‘presumed to conform’’ and the 

basis for the presumptions. The notice 

must clearly identify the type and size 

of the action that would be ‘‘presumed 

to conform’’ and provide criteria for 

determining if the type and size of 

action qualifies it for the presumption; 

(2) The Federal agency must notify 

the appropriate EPA Regional Office(s), 

State, local, and tribal air quality 

agencies and, where applicable, the 

agency designated under section 174 of 

the Act and the MPO and provide at 

least 30 days for the public to comment 

on the list of proposed activities 

‘‘presumed to conform.’’ If the 

‘‘presumed to conform’’ action has 

regional or national application (e.g., the 

action will cause emission increases in 

excess of the de minimis levels 

identified in paragraph (b) of this 

section in more than one of EPA’s 

Regions), the Federal agency, as an 

alternative to sending it to EPA Regional 

Offices, can send the draft conformity 

determination to U.S. EPA, Office of Air 

Quality Planning and Standards; 

* * * * * 

(4) The Federal agency must publish 

the final list of such activities in the 

Federal Register. 

(i) Emissions from the following 

actions are ‘‘presumed to conform’’: 

(1) Actions at installations with 

facility-wide emission budgets meeting 

the requirements in § 93.161 provided 

that the State or Tribe has included the 

emission budget in the EPA-approved 

SIP and the emissions from the action 

along with all other emissions from the 

installation will not exceed the facilitywide emission budget. 

(2) Prescribed fires conducted in 

accordance with a smoke management 

program (SMP) which meets the 

requirements of EPA’s Interim Air 

Quality Policy on Wildland and 

Prescribed Fires or an equivalent 

replacement EPA policy. 

(3) Emissions for actions that the State 

or Tribe identifies in the EPA-approved 

SIP or TIP as ‘‘presumed to conform.’’ 

(j) Even though an action would 

otherwise be ‘‘presumed to conform’’ 

under paragraph (f) or (i) of this section, 

an action shall not be ‘‘presumed to 

conform’’ and the requirements of 

§ 93.150, § 93.151, §§ 93.154 through 

93.160 and §§ 93.162 through 93.164 

shall apply to the action if EPA or a 

third party shows that the action would: 

(1) Cause or contribute to any new 

violation of any standard in any area; 

(2) Interfere with provisions in the 

applicable SIP or TIP for maintenance of 

any standard; 

(3) Increase the frequency or severity 

of any existing violation of any standard 

in any area; or 

(4) Delay timely attainment of any 

standard or any required interim 

emissions reductions or other 

milestones in any area including, where 

applicable, emission levels specified in 

the applicable SIP or TIP for purposes 

of: 

(i) A demonstration of reasonable 

further progress; 

(ii) A demonstration of attainment; or 

(iii) A maintenance plan. 

(k) The provisions of this subpart 

shall apply in all nonattainment and 

maintenance areas except conformity 

requirements for newly designated 

nonattainment areas are not applicable 

until 1 year after the effective date of the 

final nonattainment designation for each 

NAAQS and pollutant in accordance 

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

■ 10. Section 93.154 is revised to read 

as follows: 

§ 93.154 Federal agency conformity 

responsibility. 

Any department, agency, or 

instrumentality of the Federal 

government taking an action subject to 

this subpart must make its own 

conformity determination consistent 

with the requirements of this subpart. In 

making its conformity determination, a 

Federal agency must follow the 

requirements in §§ 93.155 through 

93.160 and §§ 93.162 through 93.165 

and must consider comments from any 

interested parties. Where multiple 

Federal agencies have jurisdiction for 

various aspects of a project, a Federal 

agency may choose to adopt the analysis 

of another Federal agency or develop its 

own analysis in order to make its 

conformity determination. 

■ 11. Section 93.155 is revised to read 

as follows: 

§ 93.155 Reporting requirements. 

(a) A Federal agency making a 

conformity determination under 

§§ 93.154 through 93.160 and §§ 93.162 

through 93.164 must provide to the 

appropriate EPA Regional Office(s), 

State and local air quality agencies, any 

federally-recognized Indian tribal 

government in the nonattainment or 

maintenance area, and, where 

applicable, affected Federal land 

managers, the agency designated under 

section 174 of the Act and the MPO, a 

30-day notice which describes the 

proposed action and the Federal 

agency’s draft conformity determination 

on the action. If the action has multiregional or national impacts (e.g., the 

action will cause emission increases in 

excess of the de minimis levels 

identified in § 93.153(b) in three or more 

of EPA’s Regions), the Federal agency, 

as an alternative to sending it to EPA 

Regional Offices, can provide the notice 

to EPA’s Office of Air Quality Planning 

and Standards. 

(b) A Federal agency must notify the 

appropriate EPA Regional Office(s), 

State and local air quality agencies, any 

federally-recognized Indian tribal 

government in the nonattainment or 

maintenance area, and, where 

applicable, affected Federal land 

managers, the agency designated under 

section 174 of the Clean Air Act and the 

MPO, within 30 days after making a 

final conformity determination under 

this subpart. 

(c) The draft and final conformity 

determination shall exclude any 

restricted information or confidential 

business information. The disclosure of 

restricted information and confidential 

business information shall be controlled 

by the applicable laws, regulations, 

security manuals, or executive orders 

concerning the use, access, and release 

of such materials. Subject to applicable 

procedures to protect restricted 

information from public disclosure, any 

information or materials excluded from 

the draft or final conformity 

determination or supporting materials 

may be made available in a restricted 

information annex to the determination 

for review by Federal and State 

representatives who have received 

appropriate clearances to review the 

information. 

■ 12. Section 93.156 is revised to read 

as follows: 

§ 93.156 Public participation. 

(a) Upon request by any person 

regarding a specific Federal action, a 

Federal agency must make available, 

subject to the limitation in paragraph (e) 

of this section, for review its draft 

conformity determination under 

§ 93.154 with supporting materials 

which describe the analytical methods 

and conclusions relied upon in making 

the applicability analysis and draft 

conformity determination. 

(b) A Federal agency must make 

public its draft conformity 

determination under § 93.154 by placing 

a notice by prominent advertisement in 

a daily newspaper of general circulation 

in the area affected by the action and by 

providing 30 days for written public 

comment prior to taking any formal 


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action on the draft determination. This 

comment period may be concurrent 

with any other public involvement, 

such as occurs in the National 

Environmental Policy Act (NEPA) 

process. If the action has multi-regional 

or national impacts (e.g., the action will 

cause emission increases in excess of 

the de minimis levels identified in 

§ 93.153(b) in three or more of EPA’s 

Regions), the Federal agency, as an 

alternative to publishing separate 

notices, can publish a notice in the 

Federal Register. 

(c) A Federal agency must document 

its response to all the comments 

received on its draft conformity 

determination under § 93.154 and make 

the comments and responses available, 

subject to the limitation in paragraph (e) 

of this section, upon request by any 

person regarding a specific Federal 

action, within 30 days of the final 

conformity determination. 

(d) A Federal agency must make 

public its final conformity 

determination under § 93.154 for a 

Federal action by placing a notice by 

prominent advertisement in a daily 

newspaper of general circulation in the 

area affected by the action within 30 

days of the final conformity 

determination. If the action would have 

multi-regional or national impacts, the 

Federal agency, as an alternative, can 

publish the notice in the Federal 

Register. 

(e) The draft and final conformity 

determination shall exclude any 

restricted information or confidential 

business information. The disclosure of 

restricted information and confidential 

business information shall be controlled 

by the applicable laws, regulations or 

executive orders concerning the release 

of such materials. 

■ 13. Section 93.157 is revised to read 

as follows: 

§ 93.157 Reevaluation of conformity. 

(a) Once a conformity determination 

is completed by a Federal agency, that 

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

a continuous program to implement the 

action; the determination has not lapsed 

as specified in paragraph (b) of this 

section; or any modification to the 

action does not result in an increase in 

emissions above the levels specified in 

§ 93.153(b). If a conformity 

determination is not required for the 

action at the time NEPA analysis is 

completed, the date of the finding of no 

significant impact (FONSI) for an 

Environmental Assessment, a record of 

decision (ROD) for an Environmental 

Impact Statement, or a categorical 

exclusion determination can be used as 

a substitute date for the conformity 

determination date. 

(b) The conformity status of a Federal 

action automatically lapses 5 years from 

the date a final conformity 

determination is reported under 

§ 93.155, unless the Federal action has 

been completed or a continuous 

program to implement the Federal 

action has commenced. 

(c) Ongoing Federal activities at a 

given site showing continuous progress 

are not new actions and do not require 

periodic re-determinations so long as 

such activities are within the scope of 

the final conformity determination 

reported under § 93.155. 

(d) If the Federal agency originally 

determined through the applicability 

analysis that a conformity determination 

was not necessary because the 

emissions for the action were below the 

limits in § 93.153(b) and changes to the 

action would result in the total 

emissions from the action being above 

the limits in § 93.153(b), then the 

Federal agency must make a conformity 

determination. 

■ 14. Section 93.158 is amended as 

follows: 

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

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

introductory text; 

■ b. Revising paragraph (a)(5) 

introductory text; 

■ c. Revising paragraphs (a)(5)(i) 

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

■ d. Adding paragraph (a)(5)(i)(D). 

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

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

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

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

§ 93.158 Criteria for determining 

conformity of general Federal actions. 

(a) * * * 

(1) For any criteria pollutant or 

precursor, the total of direct and 

indirect emissions from the action are 

specifically identified and accounted for 

in the applicable SIP’s attainment or 

maintenance demonstration or 

reasonable further progress milestone or 

in a facility-wide emission budget 

included in a SIP in accordance with 

§ 93.161; 

(2) For precursors of ozone, nitrogen 

dioxide, or PM, the total of direct and 

indirect emissions from the action are 

fully offset within the same 

nonattainment or maintenance area (or 

nearby area of equal or higher 

classification provided the emissions 

from that area contribute to the 

violations, or have contributed to 

violations in the past, in the area with 

the Federal action) through a revision to 

the applicable SIP or a similarly 

enforceable measure that effects 

emissions reductions so that there is no 

net increase in emissions of that 

pollutant; 

(3) For any directly-emitted criteria 

pollutant, the total of direct and indirect 

emissions from the action meets the 

requirements: 

* * * * * 

(4) For CO or directly emitted PM— 

* * * * * 

(5) For ozone or nitrogen dioxide, and 

for purposes of paragraphs (a)(3)(ii) and 

(a)(4)(ii) of this section, each portion of 

the action or the action as a whole meets 

any of the following requirements: 

(i) Where EPA has approved a 

revision to the applicable 

implementation plan after the area was 

designated as nonattainment and the 

State or Tribe makes a determination as 

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

section or where the State or Tribe 

makes a commitment as provided in 

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

* * * * * 

(C) Where a Federal agency made a 

conformity determination based on a 

State’s or Tribe’s commitment under 

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

the State has submitted a SIP or TIP to 

EPA covering the time period during 

which the emissions will occur or is 

scheduled to submit such a SIP or TIP 

within 18 months of the conformity 

determination, the State commitment is 

automatically deemed a call for a SIP or 

TIP revision by EPA under section 

110(k)(5) of the Act, effective on the 

date of the Federal conformity 

determination and requiring response 

within 18 months or any shorter time 

within which the State or Tribe commits 

to revise the applicable SIP; 

(D) Where a Federal agency made a 

conformity determination based on a 

State or tribal commitment under 

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

the State or Tribe has not submitted a 

SIP covering the time period when the 

emissions will occur or is not scheduled 

to submit such a SIP within 18 months 

of the conformity determination, the 

State or Tribe must, within 18 months, 

submit to EPA a revision to the existing 

SIP committing to include the emissions 

in the future SIP revision. 

* * * * * 

(iii) The action (or portion thereof) 

fully offsets its emissions within the 

same nonattainment or maintenance 

area (or nearby area of equal or higher 

classification provided the emissions 

from that area contribute to the 

violations, or have contributed to 

violation in the past, in the area with 

the Federal action) through a revision to 

the applicable SIP or an equally 

enforceable measure that effects 


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emissions reductions equal to or greater 

than the total of direct and indirect 

emissions from the action so that there 

is no net increase in emissions of that 

pollutant; 

(iv) Where EPA has not approved a 

revision to the relevant SIP since the 

area was designated or reclassified, the 

total of direct and indirect emissions 

from the action for the future years 

(described in § 93.159(d)) do not 

increase emissions with respect to the 

baseline emissions: 

(A) * * * 

(1) The most current calendar year 

with a complete emission inventory 

available before an area is designated 

unless EPA sets another year; or 

(2) The emission budget in the 

applicable SIP; 

* * * * * 

(B) The baseline emissions are the 

total of direct and indirect emissions 

calculated for the future years 

(described in § 93.159(d)) using the 

historic activity levels (described in 

paragraph (a)(5)(iv)(A) of this section) 

and appropriate emission factors for the 

future years; or 

* * * * * 

■ 15. Section 93.159 is amended as 

follows: 

■ a. Revising paragraphs (b) 

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

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

introductory text; and 

■ c. Revising paragraph (d). 

The revisions and additions read as 

follows: 

§ 93.159 Procedures for conformity 

determinations of general Federal actions. 

* * * * * 

(b) The analyses required under this 

subpart must be based on the latest and 

most accurate emission estimation 

techniques available as described below, 

unless such techniques are 

inappropriate. If such techniques are 

inappropriate, the Federal agency may 

obtain written approval from the 

appropriate EPA Regional Administrator 

for a modification or substitution, of 

another technique on a case-by-case 

basis or, where appropriate, on a generic 

basis for a specific Federal agency 

program. 

(1) * * * 

(ii) A grace period of 3 months shall 

apply during which the motor vehicle 

emissions model previously specified 

by EPA as the most current version may 

be used unless EPA announces a longer 

grace period in the Federal Register. 

Conformity analyses for which the 

analysis was begun during the grace 

period or no more than 3 months before 

the Federal Register notice of 

availability of the latest emission model 

may continue to use the previous 

version of the model specified by EPA. 

(2) For non-motor vehicle sources, 

including stationary and area source 

emissions, the latest emission factors 

specified by EPA in the ‘‘Compilation of 

Air Pollutant Emission Factors’’ (AP–42, 

http://www.epa.gov/ttn/chiefs/efpac) 

must be used for the conformity analysis 

unless more accurate emission data are 

available, such as actual stack test data 

from the stationary sources which are 

part of the conformity analysis. 

(c) The air quality modeling analyses 

required under this subpart must be 

based on the applicable air quality 

models, data bases, and other 

requirements specified in the most 

recent version of the ‘‘Guideline on Air 

Quality Models.’’ (Appendix W to 40 

CFR part 51). 

* * * * * 

(d) The analyses required under this 

subpart must be based on the total of 

direct and indirect emissions from the 

action and must reflect emission 

scenarios that are expected to occur 

under each of the following cases: 

(1) The attainment year specified in 

the SIP, or if the SIP does not specify 

an attainment year, the latest attainment 

year possible under the Act; or 

(2) The last year for which emissions 

are projected in the maintenance plan; 

(3) The year during which the total of 

direct and indirect emissions from the 

action is expected to be the greatest on 

an annual basis; and 

(4) Any year for which the applicable 

SIP specifies an emissions budget. 

■ 16. Section 93.160 is amended as 

follows: 

■ a. Revising paragraph (e); 

■ b. Revising paragraph (f); and 

■ c. Revising paragraph (g). 

§ 93.160 Mitigation of air quality impacts. 

* * * * * 

(e) When necessary because of 

changed circumstances, mitigation 

measures may be modified so long as 

the new mitigation measures continue 

to support the conformity 

determination. Any proposed change in 

the mitigation measures is subject to the 

reporting requirements of § 93.156 and 

the public participation requirements of 

§ 93.157. 

(f) Written commitments to mitigation 

measures must be obtained prior to a 

positive conformity determination and 

such commitments must be fulfilled. 

(g) After a State or Tribe revises its 

SIP or TIP and EPA approves that SIP 

revision, any agreements, including 

mitigation measures, necessary for a 

conformity determination will be both 

State or tribal and federally enforceable. 

Enforceability through the applicable 

SIP or TIP will apply to all persons who 

agree to mitigate direct and indirect 

emissions associated with a Federal 

action for a conformity determination. 

■ 17. Subpart B is amended by adding 

§ 93.161 to read as follows: 

§ 93.161 Conformity evaluation for Federal 

installations with facility-wide emission 

budgets. 

(a) The State, local or tribal agency 

responsible for implementing and 

enforcing the SIP or TIP can in 

cooperation with Federal agencies or 

third parties authorized by the agency 

that operate installations subject to 

Federal oversight develop and adopt a 

facility-wide emission budget to be used 

for demonstrating conformity under 

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

must meet the following criteria: 

(1) Be for a set time period; 

(2) Cover the pollutants or precursors 

of the pollutants for which the area is 

designated nonattainment or 

maintenance; 

(3) Include specific quantities allowed 

to be emitted on an annual or seasonal 

basis; 

(4) The emissions from the facility 

along with all other emissions in the 

area will not exceed the emission 

budget for the area; 

(5) Include specific measures to 

ensure compliance with the budget, 

such as periodic reporting requirements 

or compliance demonstration, when the 

Federal agency is taking an action that 

would otherwise require a conformity 

determination; 

(6) Be submitted to EPA as a SIP 

revision; 

(7) The SIP revision must be approved 

by EPA. 

(b) The facility-wide budget 

developed and adopted in accordance 

with paragraph (a) of this section can be 

revised by following the requirements in 

paragraph (a) of this section. 

(c) Total direct and indirect emissions 

from Federal actions in conjunction 

with all other emissions subject to 

General Conformity from the facility 

that do not exceed the facility budget 

adopted pursuant to paragraph (a) of 

this section are ‘‘presumed to conform’’ 

to the SIP and do not require a 

conformity analysis. 

(d) If the total direct and indirect 

emissions from the Federal actions in 

conjunction with the other emissions 

subject to General Conformity from the 

facility exceed the budget adopted 

pursuant to paragraph (a) of this section, 

the action must be evaluated for 

conformity. A Federal agency can use 

the compliance with the facility-wide 


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emissions budget as part of the 

demonstration of conformity, i.e., the 

agency would have to mitigate or offset 

the emissions that exceed the emission 

budget. 

(e) If the SIP for the area includes a 

category for construction emissions, the 

negotiated budget can exempt 

construction emissions from further 

conformity analysis. 

■ 18. Subpart B is amended by adding 

§ 93.162 to read as follows: 

§ 93.162 Emissions beyond the time 

period covered by the SIP. 

If a Federal action would result in 

total direct and indirect emissions above 

the applicable thresholds which would 

be emitted beyond the time period 

covered by the SIP, the Federal agency 

can: 

(a) Demonstrate conformity with the 

last emission budget in the SIP; or 

(b) Request the State or Tribe to adopt 

an emissions budget for the action for 

inclusion in the SIP. The State or Tribe 

must submit a SIP or TIP revision to 

EPA within 18 months either including 

the emissions in the existing SIP or 

establishing an enforceable commitment 

to include the emissions in future SIP 

revisions based on the latest planning 

assumptions at the time of the SIP 

revision. No such commitment by a 

State or Tribe shall restrict a State’s or 

Tribe’s ability to require RACT, RACM 

or any other control measures within 

the State’s or Tribe’s authority to ensure 

timely attainment of the NAAQS. 

■ 19. Subpart B is amended by adding 

§ 193.163 to read as follows: 

§ 93.163 Timing of offsets and mitigation 

measures. 

(a) The emissions reductions from an 

offset or mitigation measure used to 

demonstrate conformity must occur 

during the same calendar year as the 

emission increases from the action 

except, as provided in paragraph (b) of 

this section. 

(b) The State or Tribe may approve 

emissions reductions in other years 

provided: 

(1) The reductions are greater than the 

emission increases by the following 

ratios: 

(i) Extreme nonattainment 

areas .................................... 1.5:1 

(ii) Severe nonattainment 

areas .................................... 1.3:1 

(iii) Serious nonattainment 

areas .................................... 1.2:1 

(iv) Moderate nonattainment 

areas .................................... 1.15:1 

(v) All other areas ................. 1.1:1 

(2) The time period for completing the 

emissions reductions must not exceed 

twice the period of the emissions. 

(3) The offset or mitigation measure 

with emissions reductions in another 

year will not: 

(i) Cause or contribute to a new 

violation of any air quality standard, 

(ii) Increase the frequency or severity 

of any existing violation of any air 

quality standard; or 

(iii) Delay the timely attainment of 

any standard or any interim emissions 

reductions or other milestones in any 

area. 

(c) The approval by the State or Tribe 

of an offset or mitigation measure with 

emissions reductions in another year 

does not relieve the State or Tribe of any 

obligation to meet any SIP or Clean Air 

Act milestone or deadline. The approval 

of an alternate schedule for mitigation 

measures is at the discretion of the State 

or Tribe, and they are not required to 

approve an alternate schedule. 

■ 20. Subpart B is amended by adding 

§ 93.164 to read as follows: 

§ 93.164 Inter-precursor mitigation 

measures and offsets. 

Federal agencies must reduce the 

same type of pollutant as being 

increased by the Federal action except 

the State or Tribe may approve offsets 

or mitigation measures of different 

precursors of the same criteria pollutant, 

if such trades are allowed by a State or 

Tribe in a SIP or TIP approved NSR 

regulation, is technically justified, and 

has a demonstrated environmental 

benefit. 

■ 21. Subpart B is amended by adding 

§ 93.165 to read as follows: 

§ 93.165 Early emission reduction credit 

programs at Federal facilities and 

installation subject to Federal oversight. 

(a) Federal facilities and installations 

subject to Federal oversight can, with 

the approval of the State or tribal agency 

responsible for the SIP or TIP in that 

area, create an early emissions 

reductions credit program. The Federal 

agency can create the emission 

reduction credits in accordance with the 

requirements in paragraph (b) of this 

section and can use them in accordance 

with paragraph (c) of this section. 

(b) Creation of emission reduction 

credits. 

(1) Emissions reductions must be 

quantifiable through the use of standard 

emission factors or measurement 

techniques. If non-standard factors or 

techniques to quantify the emissions 

reductions are used, the Federal agency 

must receive approval from the State or 

tribal agency responsible for the 

implementation of the SIP or TIP and 

from EPA’s Regional Office. The 

emission reduction credits do not have 

to be quantified before the reduction 

strategy is implemented, but must be 

quantified before the credits are used in 

the General Conformity evaluation. 

(2) The emission reduction methods 

must be consistent with the applicable 

SIP or TIP attainment and reasonable 

further progress demonstrations. 

(3) The emissions reductions cannot 

be required by or credited to other 

applicable SIP or TIP provisions. 

(4) Both the State or Tribe and Federal 

air quality agencies must be able to take 

legal action to ensure continued 

implementation of the emission 

reduction strategy. In addition, private 

citizens must also be able to initiate 

action to ensure compliance with the 

control requirement. 

(5) The emissions reductions must be 

permanent or the timeframe for the 

reductions must be specified. 

(6) The Federal agency must 

document the emissions reductions and 

provide a copy of the document to the 

State or tribal air quality agency and the 

EPA regional office for review. The 

documentation must include a detailed 

description of the emission reduction 

strategy and a discussion of how it 

meets the requirements of paragraphs 

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

(c) Use of emission reduction credits. 

The emission reduction credits created 

in accordance with paragraph (b) of this 

section can be used, subject to the 

following limitations, to reduce the 

emissions increase from a Federal action 

at the facility for the conformity 

evaluation. 

(1) If the technique used to create the 

emission reduction is implemented at 

the same facility as the Federal action 

and could have occurred in conjunction 

with the Federal action, then the credits 

can be used to reduce the total direct 

and indirect emissions used to 

determine the applicability of the 

regulation as required in § 93.153 and as 

offsets or mitigation measures required 

by § 93.158. 

(2) If the technique used to create the 

emission reduction is not implemented 

at the same facility as the Federal action 

or could not have occurred in 

conjunction with the Federal action, 

then the credits cannot be used to 

reduce the total direct and indirect 

emissions used to determine the 

applicability of the regulation as 

required in § 93.153, but can be used to 

offset or mitigate the emissions as 

required by § 93.158. 

(3) Emissions reductions credits must 

be used in the same year in which they 

are generated. 

(4) Once the emission reduction 

credits are used, they cannot be used as 

credits for another conformity 

evaluation. However, unused credits 


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Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations 17279 

from a strategy used for one conformity 

evaluation can be used for another 

conformity evaluation as long as the 

reduction credits are not double 

counted. 

(5) Federal agencies must notify the 

State or tribal air quality agency 

responsible for the implementation of 

the SIP or TIP and EPA Regional Office 

when the emission reduction credits are 

being used. 

[FR Doc. 2010–7047 Filed 4–2–10; 8:45 am] 

BILLING CODE 6560–50–P 


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