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[Federal Register: April 5, 2010 (Volume 75, Number 64)]
[Rules and Regulations]               
[Page 17253-17279]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ap10-15]                         


[[Page 17253]]

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Part III





Environmental Protection Agency





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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.

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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

[[Page 17255]]

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:

[[Page 17256]]

    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 (Sec. Sec.  51.850-51.860) 
essentially duplicates the regulations promulgated at 40 CFR part 93, 
subpart B (Sec. Sec.  93.150-93.160), EPA is deleting all of subpart W 
except for Sec.  51.851. In the revision to Sec.  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 
facility-wide emission budget approach. Under this voluntary 
arrangement, Federal agencies, in anticipation of future major actions, 
may negotiate a facility-wide emission budget with the appropriate 
State, tribal, or local air quality agency responsible for the SIP or 
TIP. The State, tribal, or local agency could incorporate the facility-
wide emission budget into the applicable SIP or TIP and submit it to 
EPA for approval. After EPA approves the SIP or TIP, any action at the 
facility can be ``presumed to conform'' provided that the emissions 
from the proposed action along with all other emissions at the facility 
are within the EPA approved facility-wide emission budget and a 
conformity determination would not be necessary. Alternatively, a 
facility with an approved facility-wide emission budget could 
demonstrate conformity by the conventional methods afforded in the 
General Conformity Regulations. For example, once approved, minor 
actions under the control of the facility where an applicability 
analysis results in a determination that the emissions are below a de 
minimis threshold could proceed with no conformity determination.
    2. The EPA is adding a new section (40 CFR 93.165) to explicitly 
incorporate the use of early emission reduction credits into the 
regulations. The proposal reflects the provisions established by 
Congress in Federal Aviation Administration (FAA) Reauthorization Act 
of 2003 for the Airport Early Emission Reduction Credit (AERC) program 
and the guidance to implement that program. The revised regulations 
provide a similar framework for other Federal agencies.
    3. The EPA is adding a new section (40 CFR 93.164) to allow, with 
certain limitations, the emission of one

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precursor of a criteria pollutant to be mitigated or offset by the 
reduction in the emissions of another precursor of that pollutant.
    4. The EPA is adding a new section (40 CFR 93.163) to allow 
alternate schedules for mitigating emissions increases. The mitigation 
timing approach allows some flexibility for Federal agencies and States 
or Tribes to negotiate a program for some emissions mitigation to occur 
in future years. States or Tribes can allow this approach to 
accommodate short-term increases in emissions if they believe a 
substantial long-term reduction in emissions will result from a Federal 
action.

C. What Burden Reduction Measures Are Being Finalized?

    1. The EPA is deleting the provision in the existing regulation (40 
CFR 93.153) that requires Federal agencies to conduct a conformity 
determination for regionally significant actions where the direct and 
indirect emissions of any pollutant represent 10 percent or more of a 
nonattainment or maintenance area's emissions inventory for that 
pollutant, even though the total direct and indirect emissions from the 
actions are below the de minimis emission levels or the actions are 
otherwise ``presumed to conform''.
    2. The EPA is adding in 40 CFR 93.153 new types of actions that 
Federal agencies can include in their ``presumed to conform'' lists and 
EPA is also permitting States or Tribes to establish in their General 
Conformity SIPs or TIPs ``presumed to conform'' lists for actions 
within their State or tribal area.
    3. The EPA is finalizing an exemption in 40 CFR 93.153 for the 
emissions from stationary sources permitted under the minor source New 
Source Review (NSR) programs similar to the EPA's existing General 
Conformity regulation which already provides for exemptions for 
emissions from major NSR sources.

D. What Revisions Provide Tools and Guidance for Transitioning to New 
or Revised NAAQS?

    1. The EPA is adding a definition in the regulation (40 CFR 93.152) 
for ``Take or start the Federal action'' to help Federal agencies 
determine what, if any, conformity requirements apply when an area is 
designated or re-designated as nonattainment.
    2. The EPA is adding requirements (40 CFR 93.153(k)) for the 
implementation of the statutory grace period for newly designated 
nonattainment areas.
    3. The EPA is adding alternate methods (40 CFR 93.162) to 
demonstrate conformity for time periods beyond those covered by the SIP 
or TIP. The EPA is also allowing States or Tribes to include an 
enforceable commitment in the SIP or TIP to address future emissions 
from a Federal action.

E. What Revisions Are Being Finalized at the Request of Other Agencies?

    1. As part of EPA's efforts to finalize an Air Quality Policy on 
Wildland and Prescribed Fires, which was undertaken in consultation 
with FLMs, EPA took comment on two possible approaches: To include a 
presumption of conformity for (1) prescribed fires conducted in 
accordance with a State certified smoke management programs (SMPs) 
which meets the requirements of EPA's Interim Air Quality Policy on 
Wildland and Prescribed Fires or an equivalent replacement EPA policy, 
or (2) prescribed fires conducted in accordance with a State certified 
SMPs which meets the requirements of EPA's Interim Air Quality Policy 
on Wildland and Prescribed Fires or an equivalent replacement EPA 
policy or, in the absence of a State certified SMP, where the Federal 
agency has obtained written assurance from the State prior to the burn 
that the planned burn employs State approved basic smoke management 
practices (BSMP). EPA is finalizing option 1 to include a presumption 
of conformity for prescribed fires that are conducted in compliance 
with SMPs (40 CFR 93.153(i)(2)), with recognition that prescribed fires 
employing BSMPs may be able to meet a presumption of conformity if such 
a presumption is established by an agency following the requirements of 
93.153(g) or by a State following the requirements of 51.851(f). In the 
absence of such SMPs, we encourage States and Federal agencies to work 
together to develop and finalize SMPs or to include prescribed fires 
conducted in accordance with BSMPs as presumed to conform actions in 
the applicable SIP. In addition, Federal agencies could undertake 
actions in accordance with 40 CFR 93.153(f) and (g) to include 
prescribed fires conducted in accordance with specific BSMPs as actions 
that are presumed to conform.
    2. The EPA is finalizing the proposal (40 CFR 93.158) to allow 
Federal agencies to obtain emission offsets for general conformity 
purposes from another nearby nonattainment or maintenance area of equal 
or higher nonattainment classification provided the emissions from that 
area contribute to violation of the NAAQS in the area where the Federal 
action is located or, in the case of maintenance areas, the emissions 
from the nearby area contributed in the past to the violations in the 
area where the Federal action is occurring.
    3. At the request of several Federal agencies, EPA is clarifying 
the language in the regulation that states that nothing in these 
regulations (40 CFR 93.155 and 40 CFR 93.156) requires the release of 
materials and other information where disclosure is restricted by law. 
Also, EPA is including a similar clarification for CBI.
    4. Several Federal agencies and others involved in the General 
Conformity process suggested that EPA should consider exempting 
construction activity emissions from the conformity regulations 
requirements (40 CFR 93.153). Although the existing General Conformity 
Regulations do not specifically mention construction emissions, they 
implicitly require Federal agencies to include emissions from 
construction activities in the conformity evaluation.
    The EPA understands these concerns and, in the discussion about the 
revision to the definition of ``caused by,'' has identified a number of 
ways that Federal agencies can work with the State, Tribe, and local 
agencies to address construction emissions in the General Conformity 
assessment. However, EPA is not finalizing an exemption for 
construction emissions in the revisions and is instead affirming that 
emissions from construction activities must be considered in a 
conformity evaluation.
    5. At the request of the FAA, EPA is codifying one of the examples 
contained in the preamble to the existing General Conformity 
Regulations (58 FR 63229) that stated, ``the EPA believes that the 
following actions are illustrative of de minimis actions: * * * Air 
traffic control activities and adopting approach, departure and enroute 
procedures for air operations.'' The FAA conducted a study of ground 
level concentrations caused by elevated aircraft emissions released 
above ground level (AGL) using EPA-approved models and conservative 
assumptions.\1\ The study concluded that aircraft operations at or 
above the average mixing height of 3,000 feet AGL have a very small 
effect on ground level concentrations and could not directly result in 
a violation of the NAAQS in a local area. Consequently, this study 
supports the example provided in EPA's initial preamble language for 
air traffic control activities and adopting approach,

[[Page 17258]]

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.
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    \1\ Wayson, Roger, and Fleming, Gregg, ``Consideration of Air 
Quality Impacts by Airplane Operations at or Above 3000 feet AGL,'' 
Volpe National Transportation Systems Center and FAA Office of 
Environment & Energy, FAA-AEE-00-01-DTS-34, September 2000. http://www.faa.gov/regulations_policies/policy_guidance/envir_policy/.
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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 
(Sec. Sec.  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 (Sec. Sec.  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 Sec. Sec.  51.852 through 51.860 since those sections 
merely repeated the language in 40 CFR 93.150 and Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 17259]]

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 Sec.  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 Sec.  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 area-
specific. For example, the de minimis levels are based upon the type 
and classification of the nonattainment or maintenance area.
    3. Section 176(c)(5) of the CAA limits the applicability of the 
conformity regulations to actions in nonattainment and maintenance 
areas. Therefore, actions, which affect broad regions encompassing 
several nonattainment, maintenance or attainment areas, must be 
evaluated based only on the portions of the emissions in the 
nonattainment and maintenance areas.

C. 40 CFR 93.151--SIP Revision

    The main purpose of Sec.  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 area-wide 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

[[Page 17260]]

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 Sec. Sec.  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

[[Page 17261]]

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\
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    \2\ While 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).
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    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 Sec. Sec.  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 re-designated 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 Sec.  
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\
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    \3\ While we did not issue a proposal or provide an opportunity 
for public comment for this minor correction to the rule, we believe 
such actions are unnecessary because this minor revision in no way 
changes substantive conformity procedures described in the general 
conformity rule but merely updates the reference to the proper 
location of the transportation conformity regulations in the CFR.
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    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

[[Page 17262]]

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 Sec.  
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 non-attainment areas inside 
an ozone transport region'' to ``other non-attainment areas inside an 
ozone transport region.''
    4. The EPA is adding a new sub-paragraph (xxii) to Sec.  
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 Sec.  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 Sec.  
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

[[Page 17263]]

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 Sec.  
93.153 because they are unnecessary words. In Sec.  93.152 EPA defines 
an emergency; therefore the words in Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 
multi-regional 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 Sec.  93.153. The existing regulations in Sec.  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

[[Page 17264]]

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 Sec.  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 facility-wide 
emission budget concept is found in Sec.  93.161.
    11. Also in Sec.  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 Sec.  93.152.
    12. As discussed above, EPA also added a provision in Sec.  
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 Sec.  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 sub-paragraph (g)(1), EPA is repeating 
the requirements in this paragraph.
    14. The EPA is revising paragraph (k) of Sec.  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

[[Page 17265]]

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 Sec.  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 Sec.  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 Sec.  93.156. 
The 1993 regulations refer to Sec.  93.158. The correct reference 
should be Sec.  93.154. Section 93.158 prescribes the criteria for 
conducting a conformity analysis, while Sec.  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 Sec.  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 Sec.  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

[[Page 17266]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 
post-designation applicable SIP or TIP even though the plan does not 
include an attainment demonstration. For example, the State or Tribe 
could base their determination on an emission budget in an EPA-approved 
``Reasonable Further Progress'' plan. By adopting the budget and 
submitting it as part of the SIP or TIP, the State or Tribe is treating 
the Federal action like any other source in the area. When the State or 
tribal agency adopts the attainment or maintenance SIP or TIP, it will 
have to consider the emissions 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 Sec.  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

[[Page 17267]]

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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 facility-wide 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

[[Page 17268]]

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 facility-wide 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 
facility-wide 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 non-contemporaneous 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.

[[Page 17269]]

    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 inter-precursor offset and mitigation measures where they are 
allowed by the SIP. For example, some States and local air districts 
have SIP-approved NSR regulations that allow new or modified stationary 
sources to offset the increase in emissions of one criteria pollutant 
precursor by reducing the emissions of another precursor of the same 
criteria pollutant, provided there is an environmental benefit to such 
an exchange and an appropriate ratio of precursor reductions has been 
established. The 1993 General Conformity regulations do not 
specifically allow or prohibit inter-precursor 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 inter-pollutant 
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 inter-precursor 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 inter-precursor 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, Sec.  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

[[Page 17270]]

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 Sec.  93.163 or the inter-precursor mitigation offset program 
under Sec.  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 
Sec.  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

[[Page 17271]]

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

[[Page 17272]]

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.

0
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

0
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]


Sec.  51.850  [Removed and Reserved]

0
2. Remove and reserve Sec.  51.850.

0
3. Section 51.851 is revised to read as follows:


Sec.  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.
    Sec. Sec.  51.852 through 51.860 [Removed and Reserved]

0
4. Remove and reserve Sec. Sec.  51.852 through 51.860.

PART 93--DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE TRIBAL 
OR FEDERAL IMPLEMENTATION PLANS

0
5. The authority citation for part 93 continues to read as follows:

    Authority:  42 U.S.C. 7401-7671q.

Subpart B--[Amended]

0
6. Section 93.150 is amended by removing and reserving paragraph (c) 
and by adding paragraph (e) to read as follows:


Sec.  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.

0
7. Section 93.151 is revised to read as follows:


Sec.  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.

0
8. Section 93.152 is amended as follows:
0
a. Adding in alphabetical order a definition for ``Applicability 
analysis.''
0
b. Revising the definition of ``Applicable implementation plan or 
applicable SIP.''

[[Page 17273]]

0
c. Revising the definition for ``Areawide air quality modeling 
analysis.''
0
d. Adding the following definitions in alphabetical order: 
``Confidential business information (CBI),'' ``Conformity 
determination,'' ``Conformity evaluation,'' ``Continuing program 
responsibility,'' and ``Continuous program to implement.''
0
e. Revising the definition of ``Direct emissions.''
0
f. Adding in alphabetical order a definition for ``Emission 
inventory.''
0
g. Removing the definition for ``Emissions that a Federal agency has a 
continuing program responsibility for.''
0
h. Revising the definition of ``EPA.''
0
i. Revising the definition of ``Indirect Emissions.''
0
j. Revising the definition of ``Local air quality modeling analysis.''
0
k. Revising the definitions for ``Maintenance area'' and ``Metropolitan 
Planning Organization (MPO).''
0
l. Adding in alphabetical order a definition for ``Mitigation 
measure.''
0
m. Revising the definition for ``National ambient air quality standards 
(NAAQS).''
0
n. In the definitions for ``Precursors of a criteria pollutant,'' 
revising paragraphs (3)(i), (3)(ii) and (3)(iii).
0
o. Revising the definition for ``Reasonably foreseeable emissions.''
0
p. Removing the definition for ``Regionally significant action.''
0
q. Adding the following definitions: ``Restricted information.''
0
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:


Sec.  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

[[Page 17274]]

    (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.

0
9. Section 93.153 is amended as follows:
0
a. By revising the table in paragraph (b)(1).
0
b. By adding paragraph (c)(2)(xxii).
0
c. By revising paragraphs (d)(1) and (d)(2).
0
d. By revising paragraph (e)(2).
0
e. By adding paragraph (e)(3).
0
f. By revising paragraph (f).
0
g. By revising paragraph (g) introductory text.
0
h. By adding paragraph (g)(3).
0
i. By revising paragraphs (h) introductory text, (h)(1), (h)(2), and 
(h)(4).
0
j. By revising paragraphs (i), (j), and (k).


Sec.  93.153  Applicability analysis.

* * * * *
    (1) * * *

------------------------------------------------------------------------
                                                               Tons/year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
  Serious NAA's..............................................         50
  Severe NAA's...............................................         25
  Extreme NAA's..............................................         10
  Other ozone NAA's outside an ozone transport region........        100
Other ozone NAA's inside an ozone transport region:
  VOC........................................................         50
  NOX........................................................        100
Carbon monoxide: All NAA's...................................        100
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.

[[Page 17275]]

    (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 Sec.  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 facility-wide 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 Sec.  93.150, 
Sec.  93.151, Sec. Sec.  93.154 through 93.160 and Sec. Sec.  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.
0
10. Section 93.154 is revised to read as follows:


Sec.  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 Sec. Sec.  93.155 through 93.160 and 
Sec. Sec.  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.

0
11. Section 93.155 is revised to read as follows:


Sec.  93.155  Reporting requirements.

    (a) A Federal agency making a conformity determination under 
Sec. Sec.  93.154 through 93.160 and Sec. Sec.  93.162 through 93.164 
must provide to the appropriate EPA Regional Office(s), State and local 
air quality agencies, any federally-recognized Indian tribal government 
in the nonattainment or maintenance area, and, where applicable, 
affected Federal land managers, the agency designated under section 174 
of the Act and the MPO, a 30-day notice which describes the proposed 
action and the Federal agency's draft conformity determination on the 
action. If the action has multi-regional or national impacts (e.g., the 
action will cause emission increases in excess of the de minimis levels 
identified in Sec.  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.

0
12. Section 93.156 is revised to read as follows:


Sec.  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 Sec.  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 Sec.  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

[[Page 17276]]

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 
Sec.  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 Sec.  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 Sec.  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.

0
13. Section 93.157 is revised to read as follows:


Sec.  93.157  Reevaluation of conformity.

    (a) Once a conformity determination is completed by a Federal 
agency, that determination is not required to be re-evaluated 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 Sec.  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 Sec.  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 Sec.  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 
Sec.  93.153(b) and changes to the action would result in the total 
emissions from the action being above the limits in Sec.  93.153(b), 
then the Federal agency must make a conformity determination.

0
14. Section 93.158 is amended as follows:
0
a. Revising paragraphs (a)(1), (a)(2), (a)(3) introductory text and 
(a)(4) introductory text;
0
b. Revising paragraph (a)(5) introductory text;
0
c. Revising paragraphs (a)(5)(i) introductory text, and (a)(5)(i)(C);
0
d. Adding paragraph (a)(5)(i)(D).
0
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).


Sec.  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 
Sec.  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

[[Page 17277]]

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 
Sec.  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 Sec.  
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
* * * * *

0
15. Section 93.159 is amended as follows:
0
a. Revising paragraphs (b) introductory text and (b)(1)(ii);
0
b. Revising paragraphs (b)(2) and (c) introductory text; and
0
c. Revising paragraph (d).
    The revisions and additions read as follows:


Sec.  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.

0
16. Section 93.160 is amended as follows:
0
a. Revising paragraph (e);
0
b. Revising paragraph (f); and
0
c. Revising paragraph (g).


Sec.  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 
Sec.  93.156 and the public participation requirements of Sec.  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.

0
17. Subpart B is amended by adding Sec.  93.161 to read as follows:


Sec.  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 Sec.  
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

[[Page 17278]]

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.

0
18. Subpart B is amended by adding Sec.  93.162 to read as follows:


Sec.  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.

0
19. Subpart B is amended by adding Sec.  193.163 to read as follows:


Sec.  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.

0
20. Subpart B is amended by adding Sec.  93.164 to read as follows:


Sec.  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.

0
21. Subpart B is amended by adding Sec.  93.165 to read as follows:


Sec.  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 Sec.  
93.153 and as offsets or mitigation measures required by Sec.  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 Sec.  
93.153, but can be used to offset or mitigate the emissions as required 
by Sec.  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

[[Page 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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