[Federal Register Volume 71, Number 65 (Wednesday, April 5, 2006)]
[Rules and Regulations]
[Pages 17003-17009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3311]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[EPA-HQ-OAR-2004-0491; FRL-8055-3]
RIN 2060-AN60


PM2.5 De Minimis Emission Levels for General 
Conformity Applicability

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; amendments.

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SUMMARY: The EPA is taking direct final action to amend its regulations 
relating to the Clean Air Act (CAA) requirement that Federal actions 
conform to the appropriate State, Tribal or Federal implementation plan 
for attaining clean air (``general conformity'') to add de minimis 
emissions levels for particulate matter with an aerodynamic diameter 
equal or less than 2.5 microns (PM2.5) National Ambient Air 
Quality Standards (NAAQS) and its precursors.

DATES: The direct final rule amendments are effective on June 5, 2006 
without further notice, unless EPA receives adverse comment by May 5, 
2006. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take place.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2004-0491. All documents in the docket are listed on the 
www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Coda, Office of Air Quality 
Planning and Standards, U.S. Environmental Protection Agency, Mail Code 
C539-02, Research Triangle Park, NC 27711, phone number (919) 541-3037 
or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does This Action Apply to Me?

    Today's action applies to all Federal agencies and Federal 
activities.

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 State 
implementation plan (SIP). For the purpose of this rule, the term 
``State implementation plan (SIP)'' refers to all approved applicable 
and enforceable State, Federal and Tribal implementation plans (TIPs).
    In the CAA, Congress recognized that actions taken by Federal 
agencies could affect States, Tribes, and local agencies' abilities to 
attain and maintain the NAAQS. Section 176(c) (42 U.S.C. 7506) of the 
CAA requires Federal agencies to

[[Page 17004]]

ensure that their actions conform to the applicable SIP for attaining 
and maintaining the NAAQS. The CAA Amendments of 1990 clarified and 
strengthened the provisions in section 176(c). Because certain 
provisions of section 176(c) apply only to highway and mass transit 
funding and approvals actions, EPA published two sets of regulations to 
implement section 176(c). The Transportation Conformity Regulations, 
first published on November 24, 1993 (58 FR 62188) and recently revised 
on July 1, 2004 (69 FR 40004) and May 6, 2005 (70 FR 24280), address 
Federal actions related to highway and mass transit funding and 
approval actions. The General Conformity Regulations, published on 
November 30, 1993 (58 FR 63214) and codified at 40 CFR 93.150, cover 
all other Federal actions. This action applies only to the General 
Conformity Regulations.
    When the applicability analysis shows that the action must undergo 
a conformity determination, Federal agencies must first show that the 
action will meet all SIP control requirements such as reasonably 
available control measures, and the emissions from the action will not 
interfere with the timely attainment of the standard, the maintenance 
of the standard or the area's ability to achieve an interim emission 
reduction milestone. Federal agencies then must demonstrate conformity 
by meeting one or more of the methods specified in the regulation for 
determining conformity:
    1. Demonstrating that the total direct \1\ and indirect \2\ 
emissions are specifically identified and accounted for in the 
applicable SIP;
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    \1\ Direct emissions are emissions of a criteria pollutant or 
its precursors that are caused or initiated by the Federal action 
and occur at the same time and place as the action.
    \2\ Indirect emissions are emissions of a criteria pollutant or 
its precursors that: (1) Are caused by the Federal action, but may 
occur later in time and/or may be further removed in distance from 
the action itself but are still reasonably foreseeable; and (2) the 
Federal agency can practically control or will maintain control over 
due to the controlling program responsibility of the Federal action.
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    2. Obtaining written statement from the State or local agency 
responsible for the SIP documenting that the total direct and indirect 
emissions from the action along with all other emissions in the area 
will not exceed the SIP emission budget;
    3. Obtaining a written commitment from the State to revise the SIP 
to include the emissions from the action;
    4. Obtaining a statement from the metropolitan planning 
organization (MPO) for the area documenting that any on-road motor 
vehicle emissions are included in the current regional emission 
analysis for the area's transportation plan or transportation 
improvement program;
    5. Fully offset the total direct and indirect emissions by reducing 
emissions of the same pollutant or precursor in the same nonattainment 
or maintenance area; or
    6. Where appropriate, in accordance with 40 CFR 51.858(4), conduct 
air quality modeling that can demonstrate 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.

B. Applicability Analysis for General Conformity

    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 to areas designated as nonattainment under section 
107 of the CAA and areas that had been redesignated as maintenance 
areas with a maintenance plan under section 175A of the CAA only. 
Therefore, only Federal actions taken in designated nonattainment and 
maintenance areas are subject to the General Conformity regulation. In 
addition, the General Conformity Regulations (58 FR 63214) recognize 
that the vast majority of Federal actions do not result in a 
significant increase in emissions and, therefore, include a number of 
regulatory exemptions, such as de minimis emission levels based on the 
type and severity of the nonattainment problem in an area.
    In carrying out this type of applicability analysis, the Federal 
agency determines whether the total direct and indirect emissions from 
the action are below or above the de minimis levels. If the action is 
determined to have total direct and indirect emissions for a given 
pollutant that are at or above the de minimis level for that pollutant, 
Federal agencies must conduct a conformity determination for the 
pollutant unless the action is presumed to conform under the regulation 
or the action is otherwise exempt. If the action's emissions are below 
an applicable de minimis level, a Federal agency does not have to 
conduct a conformity determination.

C. Why is EPA Establishing De Minimis Levels for PM2.5 
Emissions at This Time?

    The EPA has not revised the General Conformity Regulations since 
they were promulgated in 1993, although EPA expects to promulgate, in a 
separate rulemaking, proposed revisions to the General Conformity 
Regulations in the near future. For the purposes of general conformity, 
the General Conformity Regulations (58 FR 63214) define NAAQS as 
``those standards established pursuant to section 109 of the Act and 
include standards for carbon monoxide (CO), Lead (Pb), nitrogen dioxide 
(NO2), ozone, particulate matter (PM-10) and sulfur dioxide 
(SO2).'' Since 1993, EPA has reviewed and revised the NAAQS 
for particulate matter to include a new PM2.5 standard 
(PM2.5 is particulate matter with an aerodynamic diameter of 
up to 2.5 [mu]m, referred to as the fine particle fraction). Since 
PM2.5 was established pursuant to section 109 of the CAA, 
general conformity requirements are applicable to areas designated 
nonattainment for this standard although it is not explicitly included 
in the examples of criteria pollutants in 58 FR 63214.
    In July 1997, EPA promulgated two new NAAQS (62 FR 38652), one for 
an 8-hour ozone standard and one established pursuant to section 109 of 
the CAA for fine particulate matter known as PM2.5. The new 
8-hour and old 1-hour ozone NAAQS address the same pollutant but differ 
with respect to the averaging time, therefore, EPA retained the 
existing de minimis emission levels for ozone precursors.
    The EPA designated areas as nonattainment for PM2.5 on 
April 5, 2005. Subsequently, EPA has proposed regulations to implement 
the new particulate matter standard (70 FR 65984; November 1, 2005). 
Currently, there are no de minimis emission levels for 
PM2.5. Although PM2.5 is a subset of 
PM10, it differs from the rest of PM10. While the 
majority of ambient PM10 results from direct emissions of 
the pollutant, a significant amount of the ambient PM2.5 can 
result not only from direct emissions but also from transformation of 
precursors and condensing of gaseous pollutants in the atmosphere. In 
the preamble to the proposed regulation to implement the new 
particulate matter standard, EPA discussed that the key pollutants 
potentially contributing to PM2.5 concentrations in the 
atmosphere are direct PM2.5 emissions, SO2, 
NOX, VOC and ammonia (70 FR 65998). The discussion also 
included EPA's intent to issue a separate rulemaking to establish de 
minimis levels for Federal actions covered by the General Conformity 
program (70 FR 66033). At that time, EPA said it expected the levels 
would be identical to the nonattainment area major source levels for 
the New Source Review (NSR) program.
    Section 176(c)(6) states that the general conformity requirements 
of

[[Page 17005]]

section 176(c) do not apply to an area newly designated nonattainment 
for a new NAAQS until 1 year after such designation. The EPA made 
PM2.5 designations on April 5, 2005; thus, the applicable 
general conformity requirements will not be effective in these areas 
until April 5, 2006. Many Federal actions result in little or no direct 
or indirect emissions, and EPA believes that non-exempt Federal actions 
that have covered emissions below the equivalent major source 
thresholds should not be required to prepare an applicability analysis 
under the general conformity rule. The general conformity rule should 
only apply to major sources, not de minimis sources. A different 
interpretation could result in an extremely wasteful process that 
generates vast numbers of useless applicability analyses with no 
environmental benefit.

D. How Does EPA Determine the De Minimis Threshold?

    The EPA has previously considered options and taken comment on how 
to set de minimis levels to determine applicability of general 
conformity requirements. The following is a summary of the options 
previously considered and the methodology used in setting de minimis 
levels. In this direct final rule, the EPA is using the same 
methodology to set PM2.5 de minimis levels that the Agency 
previously used for other NAAQS pollutants.
    In the preamble to the proposal for General Conformity Regulations 
(58 FR 13841), EPA recognized that the very broad definition of Federal 
action in the statute and the number of Federal agencies subject to the 
conformity requirements could create a requirement for individual 
conformity decisions in the thousands per day. To avoid creating an 
unreasonable administrative burden, EPA considered options for 
mechanisms to focus the efforts of affected agencies on key actions 
with significant environmental impact, rather than all actions. Prior 
to that proposal, EPA consulted with numerous Federal agencies, 
environmental groups, State and local air quality agencies, building 
industry representatives, and others. Following consultation, EPA 
initially proposed a de minimis level similar to that specified by EPA 
for modifications to major stationary sources under the CAA 
preconstruction review programs. Consequently, the de minimis levels 
proposed for general conformity were chosen to correspond to the 
emission rates defined in 40 CFR 51.165 (NSR) and 51.166 (prevention of 
significant deterioration) as ``significant.'' Activities with 
emissions impacts below the proposed de minimis levels would not 
require conformity determinations.
    After EPA received comments on this proposal, we responded in the 
preamble to the final General Conformity Regulations (58 FR 63228) and 
stated: ``Given the need to choose a threshold based on air quality 
criteria and one that avoids coverage of less significant projects, and 
in response to certain comments, the de minimis levels for conformity 
analyses in the final rule are based on the Act's major stationary 
source definitions--not the significance levels as proposed--for the 
various pollutants. Use of the de minimis levels assures that the 
conformity rule covers only major Federal actions. Under the major 
source definition, for example, the levels for ozone would range from 
10 tons/year (VOC and NOX) for an extreme ozone 
nonattainment area to 100 tons/year for marginal and moderate areas, 
not from 10 tons/year to 40 tons/year as proposed. The de minimis 
levels proposed were generally those used to define when modifications 
to existing stationary sources require preconstruction review. It was 
pointed out to EPA in comments on the proposal that these thresholds 
would result in the need to perform a conformity analysis and 
determination for projects that constituted a `modification' to an 
existing source but not a `major' source in some cases. The EPA agrees 
that conformity applies more appropriately to `major' source and after 
careful consideration has decided to revise its original proposal in 
the final rule to use the emissions levels that define a major source, 
except as described above for lead. The definition of a major source 
under the amended Act is explained in more detail in the April 16, 1992 
Federal Register in the EPA's General Preamble to Title I (57 FR 
13498). Section 51.853(b)(3) of the rule has also been revised to 
remove the provisions that would automatically lower the de minimis 
levels to that established for stationary sources by the local air 
quality agency. In keeping with its conclusion that only major sources 
should be subject to conformity review, EPA agrees that a zero 
emissions threshold as established by some local agencies, should not 
be required by this rule.'' EPA adopts this rationale for the de 
minimis levels we are setting for PM2.5 in this direct final 
action.
    This mechanism of relying on the major stationary source levels in 
the statute as de minimis levels for conformity has worked well over 
the last 12 years to lessen the administrative burden of Federal 
agencies for actions that emit relatively low emissions while 
addressing actions with significant emissions that could affect 
attainment of the NAAQS. The EPA believes it is appropriate to continue 
to use major stationary source levels as de minimis levels for the 
PM2.5 NAAQS in line with past practice and recognizing that 
Congress generally concluded it was appropriate to apply more stringent 
air quality review requirements on such sources. For this reason, EPA 
has decided to use this reasonable and effective mechanism for setting 
de minimis levels for PM2.5.
    The EPA proposed regulations to implement the new particulate 
matter standard (70 FR 65984) on November 1, 2005). In the preamble to 
that proposal, EPA discussed that the key pollutants potentially 
contributing to PM2.5 concentrations in the atmosphere are 
direct PM2.5 emissions, SO2, NOX,, VOC 
and ammonia (70 FR 65998). While EPA recognized that SO2, 
NOX, VOC and ammonia are precursors of PM2.5 in 
the scientific sense because these pollutants can contribute to the 
formation of PM2.5 in the ambient air, the degree to which 
these individual precursors and pollutants contribute to 
PM2.5 formation in a given location is complex and variable. 
For ammonia, there is uncertainty about emissions inventories and the 
potential efficacy of control measures from location to location. For 
VOC, the role and relationship of gaseous organic material in the 
formation of organic PM remains complex and further research and 
technical tools are needed to better characterize emissions inventories 
for specific VOC compounds. In light of these factors, EPA proposed in 
its rule to implement the PM2.5 NAAQS that States are not 
required to address VOC's or ammonia as PM2.5 nonattainment 
plan precursors, unless the State or EPA makes a finding that VOC's or 
ammonia significantly contribute to a PM2.5 nonattainment 
problem in the State or to other downwind air quality concerns. For 
NOX EPA proposed that States are required to address 
NOX under all aspects of the program, unless the State and 
EPA makes a finding that NOX emissions from sources in the 
State do not significantly contribute to the PM2.5 problem 
in a given area or to other downwind air quality concerns.
    Therefore, for the purposes of general conformity applicability, 
VOC's and ammonia emissions are only considered PM2.5 
precursors in nonattainment areas where either a State or EPA has made 
a finding that they significantly contribute to the PM2.5 
problem in a given area or to other downwind air quality concerns. In 
addition, NOX emissions are considered a PM2.5

[[Page 17006]]

precursor unless the State and EPA make a finding that NOX 
emissions from sources in the State do not significantly contribute to 
the PM2.5 problem in a given area or to other downwind air 
quality concerns.

III. Summary of the Action

    The EPA is revising the tables in sub-paragraphs (b)(1) and (b)(2) 
of 40 CFR 51.853 and 40 CFR 93.153 by adding the de minimis emission 
levels for PM2.5. The EPA is establishing 100 tons per year 
as the de minimis emission level for direct PM2.5 and each 
of its precursors as defined in revised section 91.152. Since EPA did 
not propose any classifications for the PM2.5 nonattainment 
areas, EPA is not establishing PM2.5 de minimis emission 
levels for higher classified nonattainment areas. If, in the future, 
EPA classifies the PM2.5 nonattainment areas, it will 
establish de minimis emission levels for the areas based upon the 
classifications as appropriate. This action will maintain the 
consistency between the conformity de minimis emission levels and the 
size of a major stationary source under the NSR program (70 FR 65984). 
These levels are also consistent with the levels proposed for VOC and 
NOX emissions in subpart 1 areas under the 8-hour ozone 
implementation strategy (68 FR 32843).
    We are publishing this rule without prior proposal because the 
Agency views this as a noncontroversial action and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal should adverse comments be filed. This 
action will be effective June 5, 2006, without further notice unless 
the EPA receives relevant adverse comments by May 5, 2006. If we 
receive such comments, then we will publish a document withdrawing the 
final rule and informing the public that the rule will not take effect. 
All public comments received will then be addressed in a subsequent 
final rule based on the proposed rule. We will not institute a second 
comment period. Parties interested in commenting should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on June 5, 2006 and no further action will be 
taken on the proposed rule.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and, therefore, subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
regulation that may:
    1. Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    3. Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    4. Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that these revisions to the regulations are considered a 
``significant regulatory action'' because they may interfere with 
actions taken or planned by other Federal agencies. As such, this 
action was submitted to OMB for review. Changes made in response to OMB 
suggestions or recommendations can be found in the public docket.

B. Paperwork Reduction Act

    This action does not directly impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., on non-Federal entities. The General Conformity 
Regulations require Federal agencies to determine that their actions 
conform to the SIPs or TIPs. However, depending upon how Federal 
agencies implement the regulations, non-Federal entities seeking 
funding or approval from those Federal agencies may be required to 
submit information to that agency.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information. An agency may not 
conduct or sponsor, and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number. The OMB control numbers for EPA's regulations in 40 CFR 
are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an Agency to 
prepare a regulatory flexibility analysis of any regulation subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the Agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's action 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 121.201);
    2. A governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and
    3. A small organization that is any not-for-profit enterprise which 
is independently owned and operated and is not dominant in its field.
    Today's action will not impose any requirements on small entities 
and therefore, will not have a significant economic impact on a 
substantial number of small entities. The General Conformity 
Regulations require Federal agencies to conform to the appropriate 
State, Tribal or Federal implementation plan for attaining clean air. 
We continue to be interested in the potential impacts of the 
regulations on small entities and welcome comments on issues related to 
such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local,

[[Page 17007]]

and Tribal governments and the private sector. Under section 202 of the 
UMRA, EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final regulations with ``Federal 
mandates'' that may result in expenditures to State, local, and Tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any 1 year. Before promulgating an EPA regulation 
for which a written statement is needed, section 205 of the UMRA 
generally requires EPA to identify and consider a reasonable number of 
regulatory alternatives and to adopt the least costly, most cost-
effective or least burdensome alternative that achieves the objectives 
of the regulation. The provisions of section 205 do not apply when they 
are inconsistent with applicable law. Moreover, section 205 allows EPA 
to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator 
publishes with the final regulations an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory actions with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that these revisions to the regulations do 
not contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and Tribal governments, in the 
aggregate, or the private sector in any 1 year. Thus, today's 
regulation revisions are not subject to the requirements of sections 
202 and 205 of the UMRA.
    The EPA has determined that these regulation revisions contain no 
regulatory requirements that may significantly or uniquely affect small 
governments, including Tribal governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255; August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    This action does not have Federalism implications. The regulations 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. Previously, EPA 
determined the costs to States to implement the General Conformity 
Regulations to be less than $100,000 per year. Thus, Executive Order 
13132 does not apply to these regulation revisions.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This determination is stated 
below.
    These regulation revisions do not have Tribal implications as 
defined by Executive Order 13175. They do not have a substantial direct 
effect on one or more Indian Tribes, since no Tribe has to demonstrate 
conformity for their actions. Furthermore, 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. Because these regulation revisions do not have Tribal 
implications, Executive Order 13175 does not apply.
    Although Executive Order 13175 does not apply to these regulations, 
EPA encourages Tribal input and specifically solicits comment on this 
regulation from Tribal officials.

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

    Executive Order 13045: ``Protection of Children from Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    These revisions to the regulations are not subject to Executive 
Order 13045 because they are not economically significant as defined in 
Executive Order 12866 and because EPA does not have reason to believe 
the environmental health or safety risk addressed by the General 
Conformity Regulations present a disproportionate risk to children. The 
General Conformity Regulations ensure that Federal agencies comply with 
the SIP, TIP or FIP for attaining and maintaining the NAAQS. The NAAQS 
are promulgated to protect the health and welfare of sensitive 
populations, including children.

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

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

I. National Technology Transfer Advancement Act

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

[[Page 17008]]

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

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

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health environmental effects of its programs, policies, and activities 
on minorities and low-income populations.
    The EPA believes that these revisions to the regulations should not 
raise any environmental justice issues. The revisions to the 
regulations would, if promulgated revise procedures for other Federal 
agencies to follow. They do not disproportionately 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 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. This action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be 
effective June 5, 2006.

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 31, 2006.
Stephen L. Johnson,
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--[AMENDED]

0
1. The authority citation for part 51 continues to read as follows:

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

Subpart W--[Amended]

0
2. Section 51.852 is amended by adding paragraph (3) to definition of 
``Precursors of criteria pollutant'' to read as follows:


Sec.  51.852  Definitions.

* * * * *
    Precursors of a criteria pollutant are:
* * * * *
    (3) For PM2.5:
    (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
    (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.
* * * * *

0
3. Section 51.853 is amended by revising paragraph (b) to read as 
follows:


Sec.  51.853  Applicability analysis.

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

------------------------------------------------------------------------
                                                                  Tons/
                                                                   year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
  Serious NAA's................................................       50
  Severe NAA's.................................................       25
  Extreme NAA's................................................       10
  Other ozone NAA's outside an ozone transport region..........      100
Other ozone NAA's inside an ozone transport region:
  VOC..........................................................       50
  NOX..........................................................      100
Carbon monoxide: All NAA's.....................................      100
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
------------------------------------------------------------------------

* * * * *
    (2) For purposes of paragraph (b) of this section, the following 
rates apply in maintenance areas:

------------------------------------------------------------------------
                                                                  Tons/
                                                                   year
------------------------------------------------------------------------
Ozone (NOX, SO2 or NO2): All Maintenance Areas.................      100
Ozone (VOC's):
  Maintenance areas inside an ozone transport region...........       50
  Maintenance areas outside an ozone transport region..........      100
Carbon monoxide: All Maintenance Areas.........................      100
PM-10: All Maintenance Areas...................................      100
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 Maintenance Areas......................................       25
------------------------------------------------------------------------

* * * * *

PART 93--[AMENDED]

0
4. The authority citation for part 93 continues to read as follows:

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

Subpart B--[Amended]

0
5. Section 93.152 is amended by adding paragraph (3) to definition of 
``Precursors of criteria pollutant'' to read as follows:


Sec.  93.152  Definitions.

* * * * *
    Precursors of a criteria pollutant are:
* * * * *
    (3) For PM2.5:

[[Page 17009]]

    (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
    (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.
* * * * *

0
6. Section 93.153 is amended by revising paragraph (b) to read as 
follows:


Sec.  93.153  Applicability analysis.

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

------------------------------------------------------------------------
                                                                  Tons/
                                                                   year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
  Serious NAA's................................................       50
  Severe NAA's.................................................       25
  Extreme NAA's................................................       10
  Other ozone NAA's outside an ozone transport region..........      100
Other ozone NAA's inside an ozone transport region:
  VOC..........................................................       50
  NOX..........................................................      100
Carbon monoxide: All NAA's.....................................      100
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
------------------------------------------------------------------------

* * * * *
    (2) For purposes of paragraph (b) of this section, the following 
rates apply in maintenance areas:

------------------------------------------------------------------------
                                                                  Tons/
                                                                   year
------------------------------------------------------------------------
Ozone (NOX, SO2 or NO2): All Maintenance Areas.................      100
Ozone (VOC's):
  Maintenance areas inside an ozone transport region...........       50
  Maintenance areas outside an ozone transport region..........      100
Carbon monoxide: All Maintenance Areas.........................      100
PM-10: All Maintenance Areas...................................      100
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 Maintenance Areas......................................       25
------------------------------------------------------------------------

* * * * *
[FR Doc. 06-3311 Filed 4-4-06; 8:45 am]
BILLING CODE 6560-50-P