[Federal Register Volume 73, Number 5 (Tuesday, January 8, 2008)]
[Proposed Rules]
[Pages 1402-1428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25241]



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Part II





Environmental Protection Agency





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40 CFR Parts 51 and 93



Revisions to the General Conformity Regulations; Proposed Rule

  Federal Register / Vol. 73, No. 5 / Tuesday, January 8, 2008 / 
Proposed Rules  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[EPA-HQ-OAR-2004-0491; FRL-8511-6]
RIN 2060-AH93


Revisions to the General Conformity Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to revise 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''). EPA has only revised the General 
Conformity Regulations once since they were promulgated in 1993 to 
include de minimis emission levels for fine particulate matter and its 
precursors (July 17, 2006). Over this period, EPA and other Federal 
agencies have gained experience with the implementation of the existing 
regulations and have identified several issues with their 
implementation. In addition, in 2004 EPA issued regulations to 
implement the revised ozone standard and in 2007 issued regulations to 
implement the new fine particulate matter standard. These regulations 
could affect the timing and process for general conformity 
determinations. State and other air quality agencies are in the process 
of developing revised plans to attain the new standards and the 
proposed revisions to the General Conformity Regulations will be 
helpful to the State, Tribe, and local agencies as well as the Federal 
agencies in developing and commenting on the proposed SIP revisions. 
This proposed rule revision provides for a streamline process for 
Federal agencies and States and Tribes to ensure Federal activities are 
incorporated in these State implementation plans (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 national ambient air quality standards (NAAQS) or 
interfere with the purpose of a State, Tribal or Federal implementation 
plan to attain or maintain the NAAQS.

DATES: Comments. Comments must be received on or before March 10, 2008.
    Public Hearing. If anyone contacts EPA requesting a public hearing 
by January 23, 2008, we will hold a public hearing. Additional 
information about the hearing would be published in a subsequent 
Federal Register notice.

ADDRESSES: Submit comments, identified by Docket ID No. EPA-HQ-OAR-
2004-0491, by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     E-Mail: [email protected].
     Fax: (202) 566-9744.
     Mail: Air and Radiation Docket and Information Center, 
Environmental Protection Agency, Docket ID No. EPA-HQ-OAR-2004-0491, 
Mail Code: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 
Please include duplicate copies, if possible.
     Hand Delivery: General Conformity Revisions, Docket ID No. 
EPA-HQ-OAR-2004-0491, Environmental Protection Agency Docket Center, 
EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. 
Please include duplicate copies, if possible. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct comments to Docket ID No. EPA-HQ-OAR-2004-
0491. The EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is ``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions go to section I.B. of 
the SUPPLEMENTARY INFORMATION section of this docket.
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in http://www.regulations.gov or in hard copy at the Docket, EPA/DC, EPA West, 
Room 3334, 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.
    Public Hearing. If a public hearing is held at 9 a.m. in 
Washington, DC, or at an alternate site nearby. Details regarding the 
hearing (time, date, and location) will be posted on EPA's Web site at 
http://www.epa.gov/oar/genconform_not later than 15 days prior to the 
hearing date. People interested in presenting oral testimony or 
inquiring as to whether a hearing is to be held should contact Ms. Pam 
Long, Air Quality Planning Division, Office of Air Quality Planning and 
Standards (C504-03), U.S. Environmental Protection Agency, Research 
Triangle Park, NC 27711, telephone (919) 541-0641, fax number (919) 
541-5509, e-mail address [email protected], at least 2 days in advance 
of the public hearing (see DATES). People interested in attending the 
public hearing must also call Ms. Long to verify the time, date, and 
location of the hearing. The public hearing will provide interested 
parties the opportunity to present data, views, or arguments concerning 
the proposed action.

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: 

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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 ports.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information claimed as CBI; a copy of the comment that does 
not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 Code of 
Federal Regulations (CFR) part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions. The agency may ask you to respond to 
specific questions or organize comments by referencing a CFR part or 
section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used. If you estimate potential costs 
or burdens, explain how you arrived at your estimate in sufficient 
detail to allow for it to be reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. Where Can I Get a Copy of This Document and Other Related 
Information?

    In addition to being available in the docket, an electronic copy of 
this proposal will also be 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.

D. How Is This Preamble Organized?

    The information presented in this preamble is organized as follows:
I. General Information
    A. Does This Action Apply To Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
    C. Where Can I Obtain Additional Information?
    D. How Is This Preamble Organized?
II. Background
    A. What Is General Conformity and How Does It Affect Air 
Quality?
    B. Why Is EPA Proposing Revisions to These Regulations at This 
Time?
III. How Are the Existing Regulations Implemented?
    A. Applicability Analysis
    B. Conformity Determination
    C. Review Process
IV. Summary of the Proposed Revisions to the General Conformity 
Regulations
    A. Categories of Proposed Revisions to the General Conformity 
Regulations
    B. What Innovative and Flexible Approaches Are Being Proposed?
    C. What Streamlining and Burden Reduction Measures Are Being 
Proposed?
    D. What Revisions Provide Tools and Guidance for Transitioning 
to New or Revised NAAQS?
    E. What Revisions Are Being Proposed at the Request of Other 
Agencies?
    F. What Are Some of the Clarifications to the Existing 
Regulations That Are Being Proposed?
V. Detailed Discussion of the Proposed Revisions
    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--State Implementation Plan (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. 401 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 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
VI. 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
VII. Statutory Authority

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 national ambient air quality standards (NAAQS) or 
interfering with the purpose of a State implementation plan (SIP), 
Tribal implementation plan (TIP) or Federal implementation plan (FIP).
    In the CAA, Congress recognized that actions taken by Federal 
agencies could affect State, Tribe, and local agencies' ability to 
attain and maintain the NAAQS. Congress added section 176(c) (42 U.S.C. 
7506) to the CAA 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 with 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 approvals 
actions, EPA published two set 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 at 
69 FR 40004, May 6, 2005 at 70 FR 24280 and March 10, 2006 at 71 FR 
12468, address Federal actions related to highway and mass transit 
funding and approval actions. The General Conformity Regulations,

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published on November 30, 1993 (58 FR 63214), cover all other Federal 
actions.

B. Why Is EPA Proposing Revisions to These Regulations at This Time?

    The EPA recently 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 (July 17, 2006 at 71 FR 40420). 
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. Therefore, EPA initiated a process to review, revise 
and streamline the regulations. In addition, EPA has recently issued 
regulations to implement the revised ozone standard (69 FR 23951, April 
30, 2004 and 70 FR 71612, November 29, 2005) and regulations to 
implement the new particulate matter standard (72 FR 20586, April 25, 
2007). These regulations could affect the timing and process for 
general conformity determinations. State and local air quality agencies 
are in the process of developing revised SIPs to attain the new 
standards and knowledge of the proposed revisions to the General 
Conformity Regulations may be helpful to the State, Tribal, and local 
agencies as well as the Federal agencies in developing and commenting 
on the proposed SIP revisions.

III. How Are the Existing Regulations Implemented?

    The existing regulations do not specifically identify the roles of 
Indian Tribes nor the applicability of the regulations to TIPs.
    Federal agencies and other parties involved in the conformity 
process have found that in implementing the existing General Conformity 
Regulations their process falls in to 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.

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 to areas designated as nonattainment under section 
107 of the CAA and maintenance areas under section 175A of the CAA 
only. Therefore, only actions in designated nonattainment and 
maintenance areas are subject to the regulation. In addition, the 
regulations recognize that the vast majority of Federal actions do not 
result in 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 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; or
    4. Whether the total direct and indirect emissions are below or 
above the de minimis levels.
    Under the current regulations, the applicability analysis phase 
requires Federal agencies to determine if the action is considered 
``regionally significant,'' i.e., equal to or greater than ten percent 
of the area's emission inventory for the pollutant. If the action is 
regionally significant, Federal agencies must conduct a conformity 
determination for the action even though the emissions caused by the 
action are below the de minimis levels, the action is presumed to 
conform or the action is otherwise exempt.

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 
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 and indirect emissions are 
specifically identified and accounted for in the applicable SIP,
    2. Obtaining a 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. 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 current 
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). 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 technical and 
procedural requirements can result in an adverse court decision.

IV. Summary of the Proposed Revisions to the General Conformity 
Regulations

A. Categories of Proposed 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 it 
also promulgated

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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 proposing to revise 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 proposing to delete all of 
subpart W except for Sec.  51.851. In the proposed revision to Sec.  
51.851, EPA would require 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. In addition, EPA is proposing to add a 
provision to 40 CFR 51.851 to allow the States and Tribes more 
flexibility to streamline the conformity process conducted under their 
SIP or TIP.
    In 40 CFR part 93, subpart B, EPA is proposing to make only 
specific revisions to the regulations which (1) clarify the process, 
(2) delete outdated or unnecessary requirements, (3) authorize 
innovative and flexible approaches, (4) streamline the process and 
reduce the paperwork burden, (5) provide transition tools for 
implementing new standards, (6) incorporate revisions requested by 
other agencies, and (7) provide a better explanation of regulations and 
policies.
    Several of the proposed 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. The EPA invites 
comment on this approach.

B. What Innovative and Flexible Approaches Are Being Proposed?

    1. The EPA is proposing to add 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, could 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 would incorporate 
the facility-wide emission budget into the applicable SIP or TIP and 
submit it to EPA for approval. 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. Actions at the facility where 
the emissions from an action under the facility's control equaled or 
exceeded an applicable de minimis threshold could demonstrate that the 
emissions from the proposed action along with all other emissions at 
the facility are within the EPA approved facility-wide emission budget. 
By using the facility-wide emission test, the action would be presumed 
to conform 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.
    2. The EPA is proposing 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 of the Airport Early 
Emission Reduction (AERC) guidance developed in consultation with the 
Federal Aviation Administration (FAA) and provides a similar framework 
for other Federal agencies.
    3. The EPA is proposing a new section (40 CFR 93.164) to allow, 
with certain limitations, the emission of one 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 proposing a new section (40 CFR 93.163) to allow 
alternate schedules for mitigating emissions increases. The mitigation 
timing approach could allow 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 could consider this approach 
to accommodate short-term increases in emissions if there is a 
substantial long-term reduction in emissions.

C. What Streamlining and Burden Reduction Measures Are Being Proposed?

    1. The EPA is proposing to delete the provision in the existing 
regulation which required Federal agencies to conduct a conformity 
determination for regionally significant actions even though the total 
direct and indirect emissions from the action were below the de minimis 
emission levels.
    2. The EPA is proposing additional categories of actions that 
Federal agencies can include in their ``presume to conform'' lists and 
EPA is also proposing to permit States or Tribes to establish in their 
General Conformity SIPs or TIPs ``presume to conform'' lists for 
actions within their State or Tribal area.
    3. The EPA is proposing to exempt the emissions from stationary 
sources permitted under the minor source new source review (NSR) 
programs as EPA's existing General Conformity regulation 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 proposing to revise the language in the regulation 
concerning conformity evaluations for existing action during a 
transition to new nonattainment designations or to the revised 
regulations.
    2. The EPA is proposing requirements for the implementation of the 
grace period for newly designated nonattainment areas.
    3. The EPA is proposing alternate methods to demonstrate conformity 
for time periods beyond those covered by the SIP or TIP.
    4. The EPA is proposing to allow 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 Proposed at the Request of Other Agencies?

    1. Based on EPA's Interim Air Quality Policy on Wildland and 
Prescribed Fires, which was developed in consultation with Federal land 
managers, EPA is taking comment on two possible approaches: (1) To 
include a presumption of conformity for prescribed fire use that are 
conducted in compliance with certified smoke management plans (SMPs), 
and (2) for prescribed fires conducted using State approved basic smoke 
management practices.
    2. The EPA is proposing 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 proposing to 
clarify the

[[Page 1406]]

language in the regulation that states that nothing in these 
regulations requires the release of materials and other information 
where disclosure is restricted by law. Also, EPA is proposing to 
include a similar clarification for CBI.
    4. Several Federal agencies and other parties involved in the 
process suggested that EPA should consider exempting construction 
activity emissions from the conformity regulations requirements. 
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 the concerns of the other Federal agencies 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 ease the burden of 
reviewing construction emissions. In addition, EPA is seeking comment 
on the possibility of exempting short-term construction projects from 
the General Conformity Regulations. One option would be to define 
short-term emissions as lasting no more than 2 years. Another option 
would be to define short-term emissions consistent with how they are 
defined for Transportation Conformity. Currently under the 
Transportation Conformity regulations, construction emissions are not 
required to be included for construction that lasts no longer than 5 
years at individual sites.
    5. The FAA requested clarification of language in the General 
Conformity preamble (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 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 validates the EPA's initial preamble language for air traffic 
control activities and adopting approach, departure and enroute 
procedures for aircraft operations above 3,000 feet AGL are clearly de 
minimis. Therefore, the list of exemptions under 40 CFR 
93.153(c)(2)(xxii) has be updated in this proposal to reflect this 
conclusion.
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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 Transportations 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 Proposed?

    1. The EPA is proposing to clarify that if the action would result 
in 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 proposing to establish procedures to follow in 
extending the 6-month conformity exemption for actions taken in 
response to an emergency.
    3. The EPA is proposing to revise the procedures that can be used 
to demonstrate conformity with the applicable SIP.
    4. The EPA is proposing to revise the review process to require 
Federal agencies to notify Tribal governments in the nonattainment or 
maintenance area.
    5. The EPA is proposing to clarify the definition of several terms 
used in the regulations.
    6. The EPA is proposing to include specific language to identify 
the role of Indian Tribes and TIPs.

VI. Detailed Discussion of the Proposed Revisions

A. 40 CFR Part 51, Subpart W--Determining Conformity of General Federal 
Actions to State or Federal Implementation Plans

    Section 176(c)(4) of the CAA specifies that EPA conformity 
regulations include a requirement for a State 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) and (g) 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. Section 6011(g) requires EPA to revise its conformity 
regulations by August 2007 to meet the revised requirements. The EPA 
does not interpret this provision as prohibiting States or Tribes from 
voluntarily adopting and submitting General Conformity implementation 
plans. Therefore, EPA is proposing to revise 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.  93.850 through 93.869) 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 repeat the 
requirements found in 40 CFR part 93, subpart B. The EPA is proposing 
to delete 40 CFR 51.850, and 51.852 through 860 since those sections 
merely repeat the language in 40 CFR 93.150 and 93.152 through 160 and 
include a requirement in 40 CFR 51.851(a) that the General Conformity 
SIP or TIP must meet the requirements in 40 CFR part 93, subpart B.
    In addition, EPA is proposing several revisions to Sec.  51.851.
    1. The EPA is proposing to divide paragraph (b) of 40 CFR 51.851 
into four paragraphs--(b), (c), (d), and (e):
    a. Paragraph (b) stating that until EPA approves the SIP revision, 
Federal agencies must meet the requirements of 40 CFR part 93, subpart 
B.
    b. Paragraph (c) stating 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 portions of 40 CFR part 93, subpart B if not included in the 
approved SIP or TIP. In addition, the proposed paragraph (c) states 
that any conformity requirements in an existing implementation plan 
remain enforceable until the state submits a revision to its applicable 
implementation plan to specifically remove the conformity requirements 
and that revision is approved by EPA. Since there is no longer a 
requirement for State implementation plans 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

[[Page 1407]]

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 to non-Federal as well as Federal entities.
    2. The EPA is proposing to add a new provision in Sec.  51.851, 
which allows States or Tribes to include in their SIP or TIP a list of 
actions that are presumed to conform.
    Since 40 CFR 51.850, 852 through 860 merely repeats the language in 
40 CFR 93.150, 93.152 through 93.160, deleting Sec. Sec.  51.850, 852 
though 860 and requiring the SIP or TIP to meet the requirements in 
part 93 subpart B will not change the SIP or TIP requirements. However, 
deleting the sections will reduce the confusion on the requirements in 
the regulations by removing the duplicative language. In addition, EPA 
can revise the general conformity requirements by revising only one set 
of regulations. Although States or Tribes would have to revise any SIPs 
or TIPs which are in place when EPA revises part 93 subpart B 
regulations, this would not be an additional burden since they would 
have to revise their SIP or TIP if EPA revised the part 51, subpart W 
regulations.
    By dividing paragraph (b) into four smaller paragraphs, EPA is 
attempting to simplify the language to make the requirements more 
understandable. The EPA did not change the requirements in paragraph 
(b) of the existing regulations.
    The proposal to allow the States or Tribes the flexibility to adopt 
as part of the General Conformity SIP or TIP a list of actions that are 
presumed to conform resulted from the desire of some States to reduce 
the need to spend resources on reviewing actions which are known to 
conform. Although States and Tribes are not obligated to adopt a 
``presume to conform'' list as part of their General Conformity SIP, if 
they do adopt a list they must include a list in their SIP or TIP.

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 proposing to make two revisions to Sec.  93.150. First, EPA is 
proposing to delete the language in paragraph (c) of that section and 
reserves that paragraph. Second, EPA is proposing to add a new 
paragraph (e) to the section to state that if an action occurs in more 
that one nonattainment area that each area must be evaluated 
separately.
    In paragraph (c) of the existing 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 
underway 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) is outdated and 
is not necessary at this time.
    In the new paragraph (e) in Sec.  93.150, EPA is specifically 
proposing that conformity determinations must be made for each 
nonattainment or maintenance area. 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 even in multiple States. Emissions from an action 
at such facilities could extend across the nonattainment or maintenance 
area boundaries. Some Federal actions, such as rulemaking or rail 
merger approvals, could result in emissions in non-contiguous areas, or 
even nationwide, affecting multiple nonattainment or maintenance areas. 
The existing regulations do not specify how actions or projects 
affecting multiple areas should be addressed. Therefore, EPA is 
proposing that an action's emissions in each area would be treated as 
if they result from separate actions. This would result in the need for 
two or more separate applicability analysis and conformity 
determinations where general conformity is applicable. The number of 
conformity determinations would correlate to the number of 
nonattainment or maintenance areas where the action results in direct 
or indirect emissions originating in those areas. The analysis should 
provide a comprehensive emissions inventory that includes a clear and 
separate accounting or division of emissions by nonattainment or 
maintenance area. For example, an action may occur in two nonattainment 
areas, each with a 50 ton/year de minimis threshold. If the action 
would result in total direct and indirect emissions of 55 tons/year, 
but 30 tons/year are in one area and 25 tons/year the other area, the 
action would not require a conformity determination since it would be 
considered de minimis in both areas. If the action would result in 
total direct and indirect emissions of 85 tons/year, but 60 tons/year 
are in one area and 25 tons/year the other area, the action would 
require a conformity determination in the areas with emission of 60 
tons/year but the area with 25 tons/year would not need a conformity 
determination since that portion of the action would be considered de 
minimis in that areas. EPA is proposing 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 SIPs 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--State Implementation Plan (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 is not proposing to change the purpose of the section, but is 
proposing to revise the section to clarify its wording. The existing 
regulations included statements about the stringency of the SIP 
compared to the requirements in subpart B of part 93. The EPA is 
proposing to delete 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 proposing to revise twelve of the definitions, 
add eleven new terms and delete one term as follows:

[[Page 1408]]

    Applicable implementation plan or applicable SIP. The EPA is 
proposing two minor revisions to the definition. First, EPA is 
proposing to correct the citation for the SIP approval and second, EPA 
is proposing to clarify the definition by adding a parenthetical phrase 
to clarify that the term includes an approved Tribal implementation 
plan (TIP). The requirements for eligible Tribes are found in 40 CFR 
49.6.
    Applicability analysis. The EPA is proposing to add this new term 
to describe the process of determining if the Federal agency must 
conduct a conformity determination for its action.
    Areawide air quality modeling analysis. The EPA is proposing to 
clarify this definition by making a minor wording change and by 
including photochemical grid model in the definition. Also, EPA is 
proposing to add an example of the type of models that could be used 
for the areawide air quality modeling analysis.
    Caused by. The basic test established by the existing definition of 
``caused by'' is that the emissions would not have occurred in the 
absence of the Federal action (Title I, Section 176). 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 by, approved or funded by a 
Federal agency meets this test and should be included in the conformity 
evaluation.
    Some Federal agencies have suggested that since construction 
emissions are generally excluded from consideration under the 
transportation conformity and EPA's NSR programs, they should not be 
included in the general conformity evaluation either. Furthermore, some 
agencies pointed out, the emissions from construction activities are 
not always explicitly included in some SIPs, so it is difficult to 
demonstrate conformity for the emissions and should not factor into the 
agencies' demonstrations of conformity to those SIPs. Finally, it has 
been suggested that construction emissions are temporary and not long-
term contributors to the NAAQS violations and, therefore, may not be 
truly reflective of a completed project's contribution to a 
nonattainment or maintenance area's emissions budget.
    In EPA's Transportation Conformity program (40 CFR 51.390 and part 
93), construction emissions are generally not included in the 
conformity evaluation. The Transportation Conformity Regulations (40 
CFR 93.122(e)) do require the consideration of PM10 from 
construction-related fugitive dust only in PM10 
nonattainment and maintenance areas where the SIP identifies those 
emissions as a contributor to the nonattainment problem. In such a 
case, the regional PM10 emissions analysis must consider the 
construction-related fugitive PM10 emissions and account for 
them in the determination. The Transportation Conformity Regulations 
(40 CFR 93.122(f)) do not require the consideration of such regional 
PM2.5 emissions unless the area's SIP identifies 
construction-related fugitive PM2.5 as a significant 
contributor to the area's PM2.5 problem. In addition, the 
Transportation Conformity Regulations (40 CFR 93.123(c)(5)) do not 
require construction-related carbon monoxide (CO), PM10, and 
PM2.5 emissions to be considered in project-level hot-spot 
analyses (i.e., estimations of future localized CO, PM10 , 
and PM2.5 concentrations) unless those emissions will last 
for more than 5 years at an individual site. In the NSR program, only 
operational emissions from the source are required to be evaluated for 
the permit and construction emissions are not generally included.
    Since the General Conformity Regulations cover a wide variety of 
actions and projects, the regulations were drafted to be general enough 
to cover the differing circumstances. While a majority of Federal 
actions and projects may not involve long-term construction activities, 
some do. For example, increasing the depth of the navigable channel in 
New York Harbor is expected to take 9 to 10 years to complete. In 
addition, the States and local agencies can reasonably anticipate and 
plan for construction emissions from highway and mass transit 
activities based upon regional transportation plans and historic 
activities. However, the States, Tribes and local agencies may not be 
aware of other Federal activities requiring construction or may not be 
easily able to estimate the emissions from the construction activities. 
Therefore, the SIPs or TIPs may not adequately account for the 
emissions from those activities.
    In drafting and adopting a SIP and TIP, States, Tribes and local 
agencies generally allow for some emissions from construction 
activities either in a construction emission category or as part of 
another category, such as off-road mobile or area sources. The emission 
estimates for these categories are usually based upon historic activity 
levels or on projected future activity levels. Therefore, if at the 
time the SIP or TIP is being developed, the State, Tribe or local 
agency knows about the future actions or projects at the facility, the 
construction emissions can be incorporated into the SIP or TIP.
    For the above reasons, EPA believes that emissions from 
construction activities could in some circumstances interfere with the 
SIP or TIP and is therefore not proposing to explicitly exclude all 
construction emissions from the definition of emissions ``caused by'' 
the Federal action. However, this proposal provides several options to 
allow Federal agencies and the States or Tribes to list construction 
emissions as ``presume to conform'' or to exempt the emissions.
    1. Once included in a SIP-approved facility-wide emission budget, 
the construction emissions could be identified as exempt from the 
general conformity requirements.
    2. Under the new provisions for developing a list of ``presume to 
conform'' actions, Federal agencies, States, or Tribes can demonstrate 
that emissions from certain types of construction activities at a 
facility would conform to the SIP.
    3. Some States issue permits for construction emissions. These 
permits are essentially minor source NSR permits and emissions covered 
by them would be exempt.
    Also, EPA is proposing to clarify 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.
    Currently under the Transportation Conformity regulations, project 
level construction emissions are not required to be included for 
construction that lasts no longer than 5 years at individual sites. EPA 
also recognizes that construction activities are only temporary and for 
some projects occur for short periods of time. Since these temporary 
construction activities may last between 1 to 5 years, the EPA solicits 
comments on whether to exempt emissions from short-term construction 
activities as well as the appropriate definition of a short-term 
project.
    Confidential business information (CBI). In Sec. Sec.  93.155 and 
93.156, EPA is also proposing to specify how CBI used in the conformity 
determination is to be handled. To support those revisions, EPA is also 
proposing to add 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 proposing to add a new term to 
describe the decision that a Federal agency

[[Page 1409]]

official makes in determining that the action will conform with the SIP 
or TIP.
    Conformity evaluation. The EPA is proposing to add a new definition 
to describe the entire conformity process from the applicability 
analysis through the conformity determination, if necessary.
    Continuing program responsibility. In the existing regulations, EPA 
defined the term ``emissions that a Federal agency has a continuing 
program responsibility for.'' That term was awkward and confusing. The 
EPA is proposing to shorten the term to the ``continuing program 
responsibility'' and to reformat the definition to make it clearer.
    Continuous program to implement. This term was used in the existing 
regulations but was not defined. Therefore, EPA is proposing to add 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 proposing to revise the definition of 
direct emissions to include a requirement that the emissions must be 
reasonably foreseeable. This requirement was unintentionally left out 
of the definition when it was promulgated in 1993.
    Emission Inventory. This term is used but not defined in the 
existing regulations. Therefore, EPA is proposing to add this term to 
the list.
    EPA. Since some States have Environmental Protection Agencies, EPA 
is proposing to add ``U.S.'' in the definition to clarify that the 
regulations refer to the U.S. Environmental Protection Agency.
    Indirect emissions. Some questions have arisen concerning whether 
emissions generated outside a nonattainment area should be accounted 
for when making a General Conformity determination for a Federal 
action. EPA is proposing to revise 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. Previous guidance regarding emissions 
generated outside of nonattainment areas was issued by EPA in 1994, 
prior to the 1995 statutory amendments to the CAA's conformity 
provisions which made conformity applicable only with respect to 
nonattainment and maintenance areas (42 U.S.C. 7506(c)(5)) and which 
eliminated any need for EPA to issue attainment area conformity 
regulations. The new definition clarifies that EPA interprets this 
statutory amendment to mean that any indirect emissions originating in 
an attainment or unclassifiable area do not need to be analyzed for 
general conformity purposes.
    ``In addition to addressing emissions generated outside of 
nonattainment areas, EPA proposes to revise the definition of 
``indirect emissions'' to add the condition that emissions must be of 
the type that ``the agency can practically control'' and for which 
``the agency has continuing program responsibility.'' The addition of 
this condition clarifies 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 (Nov. 30, 1993). The Supreme Court noted this long-held position 
in ruling that the Department of Transportation was not required to 
undertake a conformity review for its so-called ``Mexican trucks'' 
rule. DOT v. Public Citizen, 541 U.S. 752 773 (2004). Specifically, the 
Supreme Court held that DOT's rule concerning safety regulations for 
Mexican motor carriers operating within the United States interior did 
not trigger conformity even though DOT approval was required for 
Mexican trucks to cross the border into the United States. The Court 
indicated, among other reasons, that DOT ``could not refuse to register 
Mexican motor carriers simply on the ground that their trucks would 
pollute excessively. (DOT) cannot determine whether registered carriers 
actually will bring trucks into the United States, cannot control the 
routes that carriers take, and cannot determine what the trucks will 
emit. Any reduction in emissions that would occur at the hands of (DOT) 
would be mere happenstance. It cannot be said that (DOT) `practicably 
control[s]' or `will maintain control' over the vehicle emissions from 
the Mexican trucks, and it follows that the emissions from the Mexican 
trucks are not `indirect emissions.' '' Id. At 772-73.
    Local air quality modeling analysis. The EPA is proposing to revise 
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 proposing to make 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 proposing to revise 
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 existing regulations used the term 
``mitigation measure'' and even had a section specifying the 
requirements for a mitigation measure, however the regulations did not 
define the term. The EPA is proposing to define 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 
existing 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 existing regulations define 
precursors for both ozone and PM10. Since the 
PM2.5 standard was promulgated after the General Conformity 
Regulations, the original regulations did not include the precursors 
for PM2.5. Therefore, EPA recently amended the regulation 
(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).
    1. Sulfur dioxide is a regulated pollutant in all PM2.5 
nonattainment and maintenance areas.\2\
---------------------------------------------------------------------------

    \2\ 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 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 on the de minimis 
amount of on-road missions 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).
---------------------------------------------------------------------------

    2. Nitrogen oxides are a regulated pollutant in all PM2.5 
nonattainment and maintenance areas unless both the State/Tribe and EPA 
determine that it is not.
    3. Volatile organic compounds (VOC) and ammonia are not regulated

[[Page 1410]]

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 proposing to qualify the term direct 
emissions by stating that those emissions must be reasonably 
foreseeable. Therefore, EPA is proposing to revise the term 
``reasonably foreseeable'' to include ``direct emissions.''
    Regionally significant action. As discussed in the revisions to 
93.153(i) below, EPA is proposing to delete the regionally significant 
requirement. Therefore, if EPA's proposed revision is promulgated, 
there is no need to retain this definition.
    Restricted information. As discussed in Sec. Sec.  93.155 and 156 
on reporting and public participation, EPA, at the request of the 
several Federal agencies is proposing to specify how restricted 
information used in the conformity determination is to be handled. To 
support those revisions, EPA is also proposing to add 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.
    Take or start the Federal action. The EPA is proposing to add 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 proposing to define this term as the date the decision-maker signs a 
document such as a grant, permit, license or approval. Otherwise, EPA 
is proposing to define the term as the date the Federal agency 
physically starts the action that requires the conformity evaluation.
    Tribal implementation plan (TIP). The EPA is proposing to add a 
definition for Tribal implementation plan to mean plans adopted and 
submitted by Federally recognized Indian Tribes. Under the Tribal 
Authority Rule (40 CFR part 49), certain Tribal bodies can adopt and 
submit implementation plans to attain and maintain the NAAQS set by 
EPA, but the Tribal bodies do not set their own ambient air standards. 
The CAA allows tribes to obtain the authority to run CAA programs for 
the regulation of ``air resources within the exterior boundaries of the 
reservation or other areas within the tribe's jurisdiction'' [CAA 
Section 301(d)(2)(B)]. Tribes have authority over all air resources 
within the exterior boundaries of their reservation (including non-
Indian owned fee lands). For off-reservation areas, tribes must 
demonstrate the basis for jurisdiction. In some cases there may be a 
SIP and a TIP covering different portions of the same nonattainment 
area. In such cases emissions from an action that originate in a 
nonattainment or maintenance area that has both Tribal lands with a TIP 
and State land requiring a SIP, the emissions would need to be 
accounted for separately and the applicability and conformity analysis 
would need to be done separately for the TIP and the SIP. Therefore, 
EPA is proposing to add this definition to the regulation.

E. 40 CFR 93.153--Applicability Analysis

    The EPA is seeking to clarify 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 established by law.
    1. The EPA is proposing to revise 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 proposing to make a minor wording change to paragraph 
(a) and (b) of Sec.  93.153. Paragraph (a) is revised to clarify the 
proper citations under which the Transportation Conformity program is 
authorized. In paragraph (b) EPA is proposing to add the word 
``criteria'' before the word ``pollutant'' and ``or precursor'' after 
the word to clarify the paragraph.
    3. The EPA is proposing to revise the table in sub-paragraph (b)(1) 
to include all nonattainment areas in the Ozone Transport Regions. In 
1993, when the General Conformity Regulations were promulgated, all 
nonattainment areas in the Ozone Transport Region were classified as 
marginal or above for the 1-hour ozone NAAQS. However, in designating 
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. Therefore, EPA is 
proposing to revise the table in Sec.  93.153(c)(1) to cover the 
subpart 1 areas by changing the category from ``Marginal and moderate 
NAA's inside an ozone transport region'' to ``other NAA inside an ozone 
transport region.''
    4. In a separate notice EPA recently revised the tables in 
paragraphs (b)(1) and (b)(2) by adding the de minimis emission levels 
for PM2.5. In July 1997, EPA promulgated two new NAAQS (62 
FR 38652) one for an 8-hour ozone standard and one 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. 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 precursor and condensing of gaseous pollutants 
in the atmosphere. Therefore, EPA in a separate action has added new de 
minimis emission levels of 100 tons per year for the direct emissions 
and precursors of PM2.5. For completeness, the full table 
was updated to reflect this change.
    5. The EPA is proposing to revise paragraph (d)(1) of Sec.  93.153 
to exempt emissions covered by a NSR permit for minor sources. The 
existing regulations exempt emissions covered by a NSR permit for major 
sources but not for minor sources. Since the purpose of the conformity 
program is to ensure that Federal actions do not interfere with the 
SIP, TIP or FIP, in promulgating the existing regulations EPA 
recognized that emissions covered by a major source NSR or prevention 
of significant deterioration (PSD) permit already had been reviewed to 
ensure that the emissions did not interfere with the SIP. Therefore, 
the existing regulations exempt the emissions from sources permitted 
under major source NSR or PSD programs. Since 1993, when the existing 
regulations were promulgated, States and local agencies have adopted 
NSR programs for minor sources as required by section 110(a)(2)(C) of 
the CAA. These NSR programs for minor sources also ensure that 
emissions from the sources (individually and collectively) will not 
interfere with the SIP. Therefore, EPA is proposing to revise the 
regulation to exempt emissions permitted under the EPA-approved NSR 
programs for minor sources. The EPA believes 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.
    Although operating permits issued under title V of the CAA meet 
some of the same requirements, EPA is not proposing to exempt the 
emissions covered by those permits. The conformity program is similar 
to the NSR program in that it evaluates new or

[[Page 1411]]

modified sources prior to construction, while the ``title V'' program 
is basically for operating emissions at existing sources. Therefore, 
the conformity evaluations for any project that also requires a title V 
permit should occur before the title V permit is issued. The EPA does 
note that if for some reason an operating permit covers the emissions, 
a Federal agency may be able to use the permit to document that the 
emissions are accounted for in the SIP.
    6. The EPA is proposing to delete ``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 proposing to amend 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, or military mobilization, 
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 existing 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 proposing to amend 
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 existing regulations are not clear about the number 
of additional extensions permitted nor do the regulations provide any 
procedures for agencies to follow in deciding on the extension.
    EPA believes the only time that the extension of the 6-month 
exemption has been used was in New York following the terrorist attack 
of September 11, 2001. In responding to the shutdown of the Port 
Authority Trans-Hudson line between New Jersey and New York, certain 
Federal agencies sponsored a ferry service across the Hudson River. The 
service lasted 2 years until the mass transit service was restored. The 
Federal agencies continued with a series of 6-month extensions of the 
General Conformity exemption. The Federal agencies did not know what 
they had to do to invoke the provision and EPA and the State agencies 
had to request permission to review the decision. In addition, the 
public was not given notice of the decision to extend the exemption.
    The EPA is not proposing to revise requirements for the initial 
exemption for actions in response to emergencies. The initial 
governmental actions which are typically commenced on the order of 
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 proposing requirements for Federal agencies that want to extend the 
exemption beyond the initial 6-month period. First, EPA is proposing to 
require 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 proposing to require Federal agencies to publish a notice within 
30 days of making the decision. The notice must be published in a daily 
general circulation newspaper for the affected area. Finally, EPA is 
proposing to limit the maximum number of 6-month extensions an agency 
may declare on their own to three. Except in certain circumstances, the 
EPA believes an agency should be able to plan for and conduct a 
conformity evaluation for actions within the time allowed by three 6-
month extensions following the initial 6-month exemption (i.e., a total 
of 2 years). In this regard, EPA acknowledges that there could be a 
circumstance where an agency's action in response to an emergency may 
need additional 6-month extensions beyond a 2 year timeframe and this 
proposal does not limit the number of additional 6-month extensions to 
the emergency provisions. In these cases, EPA is proposing that if more 
than three extensions of the emergency provisions are needed, for all 
subsequent 6-month extensions a Federal agency must provide information 
to EPA and the State stating: (a) The conditions that gave rise to the 
emergency exemption continue to exist, and (b) how such conditions 
effectively prevent the agency from conducting a conformity evaluation.
    8. The EPA is proposing to revise paragraphs (f), (g), and (h) of 
Sec.  93.153 to permit Federal agencies more flexibility 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 proposing to: Add a 
paragraph to (f) to specify when and how more than one ``presumed to 
conform'' exception may be taken for a Federal action; add a new 
paragraph (g)(3) to specify that Federal agencies can list actions that 
are for individual areas or SIPs or TIPs; add a sentence to paragraph 
(h)(1) to specify the information that must be included in the 
documentation; and add 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 proposing to revise paragraphs (f) and (h) to include 
a reference to the new paragraph (g)(3).
    In promulgating the existing regulations, EPA identified 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.'' Under the existing 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.
    Although EPA has worked with one Federal agency on its ``presumed 
to conform'' list, no Federal agency has published such a list. One 
issue that has given pause to Federal agency efforts to publish 
presumed to conform lists is the potential for several presumed to 
conform exemptions to be used in combination and result in unacceptable 
cumulative air quality impacts. To address this issue, EPA is proposing 
in Sec.  93.153(f) that actions specified in an individual Federal 
agency's presumed to conform list 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 de minimis 
thresholds in the General Conformity regulations. By doing this, EPA 
believes it will ensure that the intent of presumed to conform 
actions--namely reducing the analysis burden for actions that have 
little or no direct or indirect

[[Page 1412]]

emissions--is met. For example, a Federal agency may undertake a 
program or project with several connected actions that must be analyzed 
under the environmental review requirements of NEPA. Several of those 
actions may individually be listed on the agency's presumed to conform 
list because those actions taken by themselves would typically have 
emissions below de minimis levels. If the agency wishes to determine 
the entire project or program will not require a conformity 
determination because it is presumed to conform, it must first 
determine, using the emissions predicted in establishing the presumed 
to conform action that the emissions from the combination of actions 
does not equal or exceed de minimis levels. Alternatively, the agency 
could exclude the emissions from one presumed to conform action from 
the applicability analysis and would only be required to perform an 
applicability analysis and if required, a conformity determination on 
the total direct and indirect emissions of the actions which are not 
otherwise exempt.
    The EPA believes that the use of a ``presumed to conform'' list is 
an important tool for Federal agencies in reducing the review time for 
Federal actions while still ensuring air quality goals are met. For 
example a Federal land management agency could include on its list of 
presumed to conform actions prescribed fire use where the agency has 
formally committed to apply a list of basic smoke management practices 
developed in cooperation with the affected State(s) and/or air 
pollution control agencies or Tribal government.
    EPA believes that an additional option could be added to the 
regulations to aid Federal agencies in adopting their presumed to 
conform list. The EPA is proposing to add sub-paragraph (g)(3) to 
clarify that the presumption could be for 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 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 emissions at the specific 
facility.
    9. The EPA is proposing to delete 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.
    The ``regionally significant'' action concept was proposed in the 
1993 Notice of Proposed Rulemaking (58 FR13836) in order to ``capture 
those actions that fall below the de minimis emission levels, but have 
the potential to impact the air quality of the region.'' At that time, 
EPA requested comments on whether the 10 percent level was appropriate. 
In the discussion of comments in the preamble to the Final Rule (58 FR 
63214), EPA reported that it received comments both in favor of and in 
opposition to the ``regionally significant'' action concept. While many 
respondents supported the concept, there was a diversity of opinions 
regarding whether 10 percent was the most appropriate level. However, 
EPA reported that no documentation was provided to support a different 
level. Some respondents felt that the de minimis cut offs would 
suffice. The EPA decided to retain both the concept and 10 percent 
level in the final rule.
    For a regionally significant action, the Federal agency must 
conduct a full conformity determination even if the action would cause 
total direct and indirect emissions below the de minimis levels. In 
over 12 years since promulgation of the existing regulations, no action 
has been determined to be regionally significant. The main reason that 
actions with emissions below de minimis levels are not regionally 
significant is that the emission inventory for almost all nonattainment 
and maintenance areas greatly exceeds ten times the de minimis emission 
levels. Review of the 1999 emission inventory shows that only six (one 
ozone, two lead and three sulfur dioxide) of over 200 nonattainment 
areas had emission inventories less than ten times the de minimis 
levels.(See Evaluation of Potential Regionally Significant Areas Under 
the General Conformity Regulations, Science Applications International 
Corporation, March 2005, Docket Number OAR-2004-0491). In other words, 
except for those six areas, an action with emissions below de minimis 
levels would never be considered regionally significant.
    Federal agencies have expressed concern that, in many cases, 
demonstrating that a project is not regionally significant is difficult 
and time consuming. First, the future total emission inventory for an 
area may not be readily available since the SIP may not cover the time 
period when the emissions will occur. In addition, most national 
emission inventories are published 2 to 3 years after the ``inventory'' 
year, so if a Federal agency is comparing the action's emissions 
against the most recent inventory they may be looking at an inventory 
that is 3 to 5 years old.
    The EPA is proposing to eliminate the provision. The EPA believes 
that since Federal agencies have expended resources to demonstrate that 
actions are not regionally significant and the existing provision has 
not been triggered, eliminating the provision would streamline the 
conformity regulations and have little or no environmental impact.
    10. The EPA is proposing to replace paragraph (i) of Sec.  93.153 
with a new paragraph to identify three additional groups of actions 
that are presumed to conform. First, EPA is proposing to allow 
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.
    Second, EPA is taking comment on allowing Federal agencies to 
presume that the emissions from prescribed burns will conform provided 
the burning is conducted under a State certified approved SMP. EPA is 
also asking for comments on the approach of allowing Federal agencies 
to presume that the emissions from prescribed burns conducted using 
State approved basic smoke management practices in a nonattainment or 
maintenance area conform with a SIP.
    In May 1998, EPA worked with States and other Federal agencies to 
develop and publish an interim policy on prescribed fires on wildlands. 
(See Interim Air Quality Policy on Wildland and Prescribed Fires, 
U.S.EPA, May 1998). To comply with the recommendations in the interim 
policy, state air regulators and land managers should develop a 
certified SMP which promotes regional coordination, and may include 
real-time air quality monitoring. A State SMP establishes a basic 
framework of procedures and requirements for managing smoke from a 
prescribed fire managed for resource benefits. A SMP is typically 
developed by a State or Tribe with cooperation and participation by 
wildland managers, both public and private, and the general public. The 
SMPs establish procedures

[[Page 1413]]

and requirements for minimizing emissions and managing smoke 
dispersion. The goals of SMPs are to mitigate the nuisance and public 
safety hazards (e.g., on roadways and at airports) posed by smoke 
intrusions into populated areas; to prevent deterioration of air 
quality and NAAQS violations; and to address visibility impacts in 
mandatory Class I Federal areas.
    Given the fundamental purpose of the SMP, EPA believes that it is 
reasonable to assume that any action in compliance with the certified 
SMP would be in conformance with the applicable SIP. Therefore, EPA is 
taking comment on the approach to designate these actions as actions 
presumed to conform. Federal agencies would not have to conduct a 
conformity determination for those actions. The presumption to conform 
is also based on the maintenance in stringency of the existing SMPs 
where implemented or the implementation of new smoke management 
programs or practices as identified above.
    As reflected in the Interim Air Quality Policy on Wildland and 
Prescribed Fires, States are provided flexibility on the structure of a 
SMP. Thus, a SMP can be extensive and detailed, or simply identify the 
basic smoke management practices for minimizing emissions, and 
controlling impacts from a prescribed fire. The EPA's final rule on the 
Treatment of Data Influenced by Exceptional Events published in the 
Federal Register on March 22, 2007 (Volume 72, Number 55) states that 
basic smoke management practices could include, among other practices, 
steps that will minimize air pollutant emissions during and after the 
burn, evaluate dispersion conditions to minimize exposure of sensitive 
populations, actions to notify populations and authorities at sensitive 
receptors and contingency actions during the fire to reduce exposure of 
people at such receptors, identify steps taken to monitor the effects 
of the fire on air quality, and identify procedures to ensure that 
burners are using basic smoke management practices.
    The Agency plans to begin revising its Interim Air Quality Policy 
on Wildland and Prescribed Fires in 2007 as part of its overall Fire 
Strategy. The Agency believes that the conditions for prescribed fires 
that are presumed to conform should be conducted in accordance with 
programs and practices which meet the requirements of EPA's Air Quality 
Policy on Wildland and Prescribed Fires and those conditions should be 
deliberated in the formation of the revised policy. To inform the 
development of that policy, and the final revisions of this General 
Conformity rule, EPA is also requesting comment on an additional 
approach for allowing a presumption to conform for emissions from 
prescribed fires conducted in the absence of a State certified SMP, 
where the Federal agency submits a demonstration and obtains written 
permission from the State prior to the burn that the planned burn 
employs State approved basic smoke management practices. This approach 
would thereby protect public health in nonattainment and maintenance 
areas where a SMP has not been adopted, and allow Federal agencies the 
flexibility needed to conduct necessary prescribed burning.
    Finally, as discussed above, EPA is also proposing to allow a State 
or eligible Tribe, on its own, to adopt in their SIP or TIP a list of 
actions for facilities in its borders that it ``presumes to conform.''
    11. The EPA is proposing to revise 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 existing 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 proposed to delete the regionally significant test, 
therefore reference to it is proposed to be deleted from this 
paragraph. For clarity, instead of referring to sub-paragraph (g)(1), 
EPA is proposing to repeat the requirements in this paragraph.
    12. The EPA is proposing to revise 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 (Pub. L. 106-377), Congress added section 
176(c)(6) to the CAA to allow for a conformity transition period for 
newly designated nonattainment areas. That section establishes a 1-year 
grace period following the effective date of the final nonattainment 
designation of each 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 
proposing to define the term to mean that a Federal agency takes an 
action when it signs a permit, license, grant or contract or otherwise 
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 proposing to revise the title of this section to 
clarify the purpose of the section. In the existing 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 proposing to revise the title of the 
section to more closely describe the section's content.
    2. The EPA is proposing to add language to this section to 
specifically state that the conformity determination must meet the 
requirements of this subpart.

G. 40 CFR 93.155--Reporting Requirements

    1. Since EPA is proposing to add additional sections to subpart B, 
it is proposing to revise the references to those sections in Sec.  
93.155.
    2. Consistent with EPA Tribal Authority Rule (63 FR 7253), EPA is 
proposing to provide federally-recognized Indian Tribal governments the 
same opportunity to comment on draft conformity determinations as given 
to States. Therefore, EPA is proposing to require the Federal agencies 
to notify all the federally-recognized Indian Tribal governments in the 
nonattainment or maintenance area. To assist other Federal agencies in 
this notification, EPA is planning to place a list of the federally-
recognized Indian Tribal governments in each nonattainment or 
maintenance areas on its General Conformity web site.
    3. The EPA is proposing to add 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 proposing to allow 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 ten 
Regional Offices.

[[Page 1414]]

    4. At the request of the several Federal agencies EPA is proposing 
to add 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 existing 
General Conformity Regulation does not contain an explicit statement 
about protecting restricted information from public release. The 
interagency review and public participation provisions in the existing 
regulation 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 proposing 
to revise the regulation to add explicit language concerning the 
protection of restricted information. In addition, conformity 
determinations could, in part, be based upon confidential information 
received from business sources. The EPA is proposing to add specific 
language to the regulation to protect CBI in accordance with each 
Federal agency's policy and regulations for the handling of restricted 
information and CBI. The regulations would allow State or EPA personnel 
with the appropriate clearances to be able to view the restricted or 
confidential business information.

H. 40 CFR 93.156--Public Participation

    1. The EPA is proposing to correct the section referenced in Sec.  
93.156. The existing regulations refers 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 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. 
The existing 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, such as rulemaking, affect a 
large number of nonattainment and maintenance areas. The notification 
procedure for such an action could be burdensome and inefficient. 
Therefore, EPA is proposing 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 more than three nonattainment or 
maintenance areas.
    3. The EPA is proposing to also add 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 proposing to revise the title of this section to more 
appropriately describe the section's content. The existing 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. The EPA is 
proposing 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 proposing to add two new paragraphs (d and e) 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 determination, the 
Federal agency had to demonstrate that all the emissions caused by the 
action conformed to the SIP. Therefore, 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 (e) 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 proposing the Federal agency conduct a conformity 
determination if the total emissions (the emissions from the unmodified 
action plus the increased emissions resulting from the modification) 
equal or exceed the de minimis levels for the area. EPA seeks comment 
on what actions should be considered to constitute ``modifications'' 
for purposes of conformity and under what conditions, if any, a 
subsequent action should be considered to constitute a ``new'' action 
versus modification of an action for which a previous de minimis 
determination was made.

J. 40 CFR 93.158--Criteria for Determining Conformity for General 
Federal Actions

    1. In Sec.  93.158(a)(1), EPA is proposing to add ``precursor'' 
after ``any criteria pollutant'' to clarify that Federal agencies can 
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 proposing to allow 
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 
proposal would require such emissions offsets to be obtained through 
either an approved SIP revision or an equally enforceable commitment.
    This revision to the offset requirements would make the General 
Conformity offset requirements consistent with the offset requirements 
in section 173(c)(1) of the CAA for the Federal NSR program. It would 
also provide the Federal agencies more flexibility in obtaining the 
offsets in areas impacted by transport from nearby areas. In light of 
increased knowledge concerning transport of pollutants into areas, EPA 
solicits comments on whether to limit the offsets to nonattainment or 
maintenance areas of equal or higher classifications, or permit broader 
application to all nonattainment and maintenance areas.

[[Page 1415]]

    3. In Sec.  93.158(a)(2), (a)(3) and (a)(4), EPA is proposing to 
revise 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 proposing to 
allow 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\. The EPA 
solicits comment on this treatment of the precursors of 
PM2.5.
    4. In Sec.  93.158(a)(3) and (5), EPA is proposing to correct two 
typographical errors. In sub-paragraph (3), EPA is proposing to correct 
``meet'' to ``meets'' and in sub-paragraph (5), EPA is proposing to 
change ``paragraph (a)(3(11)'' to ``paragraph (a)(3)(ii).''
    5. In Sec.  93.158(a)(5)(i), EPA is proposing to delete the 
reference to the year 1990 and replace 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 existing 
regulations in 1993, 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 new designations and any future designations.
    6. Also in Sec.  93.158(a)(5)(i), EPA is proposing to revise the 
paragraph to allow Federal agencies to make conformity determination 
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 existing 
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, and if necessary require additional 
controls on the sources. Specifically, EPA solicits comment on whether 
demonstrating conformity to a budget in a milestone plan (in the 
absence of an attainment demonstration) is adequate to ensure that the 
emissions from the action will not interfere with the timely attainment 
of the NAAQS.
    7. Although not specified in the regulations, EPA believes that a 
State operating permit under title V of the CAA or other air quality 
operating permit can serve as documentation of the State's or Tribe's 
determination.
    8. The EPA is proposing to revise 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 existing 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 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 EPA's proposed 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, in the SIP revision, can include 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.
    9. The EPA is proposing to revise 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 proposing to set 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.
    In some cases, when EPA establishes a new level for a standard, an 
area will have an existing SIP or TIP for the pollutant that serves as 
the applicable SIP or TIP until a revised SIP or TIP is submitted by 
the State or Tribe and approved by EPA. For example, in transition from 
the 1-hour ozone standard to the 8-hour ozone standard, EPA revoked the 
1-hour standard 1 year after the effective date of the 8-hour ozone 
designation. Although EPA revoked the 1-hour standard, the existing 
ozone SIP remains largely in place until it is replaced by the 8-hour 
ozone SIP. The 1-hour ozone SIP is considered the applicable SIP until 
it is replaced.
    Finally, EPA is proposing to delete another alternate baseline year 
that no longer is applicable in PM10 areas. Specifically, we 
are proposing to delete in Sec.  93.158(a)(5)(iv)(A)(3) the use of the 
``year of the baseline inventory in the PM10 applicable 
SIP.'' EPA believes that the proposed deletion of this out-dated 
baseline year should not affect current general conformity 
determinations in PM10 nonattainment and maintenance areas.

K. 40 CFR 93.159--Procedures for Conformity Determinations for General 
Federal Actions

    1. EPA is proposing to change Sec.  93.159(b)(1)(ii) to make it 
more consistent with when new motor vehicle emissions factors models 
are used in general conformity determinations. EPA is proposing to 
clarify that the grace period before such new models are used will be 3 
months from EPA's model release or a longer grace period as 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

[[Page 1416]]

vehicle emissions factor models to be between 3-24 months.
    2. The EPA is proposing to revise Sec.  93.159(b)(2) and (c) to 
update the reference to the Compilation of Air Pollutant Emission 
Factors and for 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 proposing to revise 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 also proposing that if the SIP or TIP does not specify an 
attainment demonstration year then the analysis is required 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 would 
be the appropriate year for the conformity analysis.
    4. The EPA is proposing a minor wording revision to paragraph 
(d)(2) to clarify the paragraph. The EPA is proposing to replace 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. 401 CFR 93.160--Mitigation of Air Quality Impacts

    The EPA is proposing to revise 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 those commitments must be fulfilled.

M. 40 CFR 93.161--Conformity Evaluations for Installations With 
Facility-Wide Emission Budget

    The EPA is proposing to add a new section to the regulations to 
facilitate the use of a facility-wide emission budget in evaluating 
conformity. Federal agencies have stated that they would like to 
streamline the conformity process for individual actions or projects, 
while States have expressed a desire for the conformity process to help 
identify and reduce emissions at Federal installations. Although the 
existing regulations do not preclude States and Federal agencies from 
using this approach, the regulations do not specifically authorize its 
use. This approach would be entirely voluntary on the part of the 
Federal agency and would have to be approved by the State, Tribe or 
local agency responsible for the SIP or TIP. For example, States can 
currently adopt a facility-wide budget for a Federal installation as 
part of the SIP. With such a budget, a Federal agency could easily 
demonstrate conformity for an action at the installation provided the 
emissions caused by the action along with all of the other emissions 
subject to general conformity at the installation stays within the 
budget. If the State or Tribe includes the emission budget in the SIP 
or TIP, the emissions would be identified and accounted for in the SIP 
or TIP. Alternatively, a State or Tribe could provide a letter to the 
Federal agency stating that the emissions from the installation that 
are within the budget conform to the SIP or TIP. This proposed section 
for developing such a budget would in conjunction with a new Sec.  
93.153(j) provide a mechanism for presuming that the emissions are in 
conformance with the SIP or TIP. This approach allows State or Tribe 
and Federal agencies to identify acceptable levels of emissions from 
the installation before starting the environmental review for the 
actions and for the agencies to expedite the review of the Federal 
actions at the facilities.
    Under this approach, a State, Tribe or local air quality agency 
could work with the Federal agency, or a third party authorized by the 
agency (e.g., an airport authority), who volunteers to develop a 
facility-wide emission budget for an installation or facility. In 
principle, at the time the States or Tribes agree to a budget, they 
assume responsibility for ensuring that the emissions within the budget 
will not interfere with the purpose of the SIP or TIP, and will be 
included in future SIPs or TIPs. The budget would be for a set period 
of time and near the end of that time the State, Tribe or local agency 
and Federal agencies could revise the budget for the next time period. 
For example, the State, Tribe or local agency and Federal agency could 
develop annual budgets covering a 10-year period. Two years before the 
end of the period, the budget would be reviewed and updated to cover 
the next 10-year period. (This is the same procedure used for 
maintenance plans under section 175A of the CAA. A maintenance plan is 
developed for 10-years and 8 years into that plan a new plan is 
developed for the next 10 years.) The budgets would be developed based 
upon the latest estimates of emissions and growth in the activities at 
the facility.
    The State or Tribe would include the emission budget in the 
existing SIP or TIP and use the budget for any future SIP or TIP 
development. In including the emissions in the existing SIP or TIP, 
States or Tribes can either identify categories in the existing SIP or 
TIP that cover the emissions or can submit a revision to the SIP or TIP 
to include the emissions. If unusual or unforeseen circumstances 
warrant a revision, the State, Tribe or local agency and Federal agency 
could agree to revise the budget. For example, if the State, Tribe or 
local agency requires additional reductions to meet their attainment 
objective or if the facility has unexpected growth, a revised budget 
could be adopted into the SIP or TIP.
    The EPA believes that the proposed program 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 program 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.
    The emission budget approach would not be applicable to all 
situations. For example, not all Federal actions or projects occur on 
installations suitable for emission budgets (e.g., one-time actions on 
non-Federal lands such as a short-term construction project may not 
have facilities to have a budget). In addition, some installations with 
budgets may on occasion take actions or have projects that would result 
in the budget being exceeded. In these cases, or under any 
circumstances, a Federal agency may determine applicability or 
demonstrate conformity with the standard requirements contained in 
Sec. Sec.  93.153 through 93.160 and 93.162 through 93.165 of the 
General Conformity regulations. These requirements include, but are not 
limited to, a State certifying emissions are included the SIP, a de 
minimis determination or other exemption, project level mitigation, 
offsetting emission reductions, or modeling. Therefore, having a 
facility-wide emissions budget in the SIP would not limit an agency's 
option for determining conformity, but adds an additional less

[[Page 1417]]

burdensome option for demonstrating conformity.
    As discussed earlier in this preamble under the definition of 
``caused by'', in developing the facility-wide emission budget, the 
Federal agency generally would share its plans for construction at the 
facility. As a result the State, Tribe or local agency could consider 
the emissions from the construction in its SIP or TIP and they would 
have three options for handling the construction emissions under the 
general conformity program. First, they could include the emissions in 
a facility-wide emission budget. Second, they could determine that the 
construction emissions at the facility would be covered elsewhere in 
the SIP or TIP (e.g., in the non-road mobile source budget or the area 
source budget), and thus the emissions could be presumed to conform. 
Finally, they could cover the construction emissions separately from 
the emission budget and conduct a separate conformity evaluation for 
those emissions.
    Since the facility-wide emission budget would be used to develop 
the SIP or TIP for the area, any Federal action at the installation 
that remains within its budget would not interfere with the SIP or TIP. 
By developing a facility-wide emission budget for the installation, the 
Federal agency would generate a more accurate emission inventory for 
the activities at the installations and provide the State, Tribe or 
local agency with realistic growth projections for the installations. 
The facility-wide emission budgets would encourage operators to 
identify ways of reducing emissions and adopt control measures when 
possible in order to allow for unforeseen growth.

N. 40 CFR 93.162--Emissions Beyond the Time Period Covered by the 
Applicable SIP or TIP

    The EPA is proposing to add 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 
proposing to allow 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 include the 
emissions in the current SIP or TIP or committing 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 of RACT, 
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

    The EPA is proposing to add 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 proposed section would 
allow, under special conditions and consistent with CAA requirements, 
the State or Tribe to approve other schedules for offsets or mitigation 
measures.
    Mitigation measures and offsets are used to reduce the impact of 
emission increases from a project or action. To minimize 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 is proposing to include this 
interpretation in the regulations.
    For certain projects, however, it may be beneficial for the State 
or Tribe to approve mitigation measures or offsets that do not provide 
for emissions reductions equal to the emission increases for the 
specific years, but provide net long-term air quality benefits. For 
example, a project with relatively high short-term emissions, such as a 
construction project, could be mitigated by converting older equipment 
to electric or alternate fuels. The State or Tribe may find it 
advantageous to allow a short period when the emissions are not fully 
mitigated in return for permanent or the long-term emissions 
reductions. Therefore, EPA is proposing to allow, under certain 
conditions, the State and Federal agency to negotiate alternate 
schedules for the implementation of the offsets and mitigation 
measures. EPA believes that such emissions reductions should also have 
substantial long-term attainment and maintenance benefits. EPA is also 
proposing that emissions reductions used over an alternate schedule 
would be consistent with statutory requirements that new violations are 
not created, the frequency or severity of existing violations are not 
increased, and timely attainment is not delayed.
    To ensure these noncontemporaneous emission reductions provide 
greater environmental benefits in the long term, EPA is proposing to 
require that the offset or mitigation ratios be greater than one-for-
one. Therefore, EPA is proposing a ratio that is no less than the 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. In addition, EPA seeks comment on other 
mechanisms that could be used to require greater than one-for-one 
reductions for the offsets and mitigation measures that occur in later 
years or alternatively if greater than one-for-one reductions should be 
required.
    Also, EPA believes that the mitigation or offset compensation 
period should not last indefinitely and is proposing that the period 
should not exceed two times the period of the under-mitigated 
emissions. For example, a Federal agency may be approving 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). 
Besides requesting comment on the concept of allowing the States or 
Tribes to approve a longer time period for offsetting or mitigating the 
emission increases, EPA is also seeking comment on the mechanism and 
procedures used to permit/implement the concept. In addition, EPA is 
seeking comment on the appropriate time period for the Federal agencies 
to offset or mitigate the increased emissions. The EPA is requesting 
comments on using longer compensation periods in excess of two times 
the project period.
    Agreeing to allow the use of offset or mitigation measures in later 
years does not exempt the State or Tribe from 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

[[Page 1418]]

should be properly reflected in the SIP or TIP, e.g. through a SIP 
revision.

P. 40 CFR 93.164--Inter-Precursor Offsets and Mitigation Measures

    EPA is proposing to add 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. The existing General Conformity regulations do not 
specifically allow or prohibit inter-precursor offsets and mitigation 
measures. Therefore, EPA is proposing to allow such offsets or 
mitigation measures if they are allowed by a State or Tribe 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.
    The EPA recognizes that the evaluation of the inter-precursor 
offsets may in some cases be difficult and seeks comments on how such 
offsets or mitigation measures should be evaluated. The EPA expects to 
use these comments in developing future guidance documents.

Q. 40 CFR 93.165--Early Emission Reduction Credit Program

    The EPA is proposing to add 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. To 
expedite the project level conformity process, 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. Although the existing regulations do not address the 
concept, The Port of Seattle and the Puget Sound Clean Air Agency 
developed a program to implement early emissions reductions. In 
addition, Congress authorized such a program for the General Conformity 
program in the FAA reauthorization act signed in December 2003 (Vision 
100--A Century of Aviation Reauthorization Act, Pub. L. 108-176). That 
Act authorized FAA to approve funding of programs to reduce emissions 
at the airports provided the State would issue emission reduction 
credits that can be used for General Conformity determinations and NSR 
offsets. On September 30, 2004, EPA issued guidance on the Airport 
Emission Reduction Credit (AERC) program to implement the requirements 
of the December 2003 Act (Guidance on Airport Emission Reduction 
Credits for Early Measures Through Voluntary Airport Low Emission 
Programs, U.S. EPA, Office of Air Quality Planning and Standards, 
September 2004). Other Federal agencies may benefit from the 
opportunity to reduce emissions prior to when the reductions are needed 
to offset emission increases covered by the General Conformity program.
    To clarify EPA's intent that this program be allowed for other 
Federal actions, EPA is proposing to add a new section, Sec.  93.165, 
to the General Conformity Regulations to define the requirements of 
this program. Under the program, Federal agencies or interested third 
parties (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 
reasonable further progress 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 can use the credits to reduce the 
total of direct and indirect emissions from a 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.
    In proposed paragraph (a), EPA would establish the ability for the 
State or Tribe and Federal agency to create and use the emission 
reduction credits.
    In proposed paragraph (b), EPA identifies the criteria for creating 
the credits. The criteria are the same 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 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. The reductions must be quantified 
before the credit is used to support a conformity determination.
    In proposed paragraph (c), EPA would establish the requirements for 
the use of the credits. If the strategy used to produce the credit is 
implemented at the same facility and in the same nonattainment or 
maintenance area as the Federal action the credits can be used in 
determining if the action would cause emissions above the de minimis 
levels. 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 offset 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 and 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 proposing to require that the credits be used in the same year 
as they are generated. 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

[[Page 1419]]

annual stream of credits, but does mean that the reduction credits 
cannot be carried over to another year.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 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 proposed 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 
would be relieved of the burden of conducting and reviewing some, if 
not all, the general conformity determinations for the facility.
    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 (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 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 these proposed regulation 
revisions 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 these proposed revisions 
to the regulations on small entities, I certify that this action will 
not have a significant economic impact on a substantial number of small 
entities. This proposal will not impose any requirements on 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 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, 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 
proposals 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, these proposed 
regulation revisions are not subject to the requirements of section 202 
and 205 of the UMRA.
    The EPA has determined that these proposed regulation revisions 
contain no regulatory requirements that may significantly or uniquely 
affect small governments, including Tribal governments because these 
regulations affect Federal agencies only. Nonetheless, EPA carried out 
consultations with governmental entities affected by this regulation.

[[Page 1420]]

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 are 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. 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. 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 proposed regulation revisions.
    Although section 6 of Executive Order 13132 does not apply to these 
proposed regulation revisions, EPA held meetings with the Federal 
agencies and organizations that prepare technical support for Federal 
agencies determinations at which it described the approaches it was 
considering and provided an opportunity for States, Federal agencies 
and other stakeholders to comment on the options being considered.
    In spirit of Executive Order 13121 and consistent with EPA policy 
to promote communications between EPA and State and local governments, 
EPA is soliciting comments on this proposal from State and local 
officials.

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.
    These proposed regulation revisions do not have Tribal implications 
as specified in 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, except for 
allowing the Tribes to comment on draft conformity determinations, 
these proposed 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 proposed regulation 
revisions do not have Tribal implications, Executive Order 13175 does 
not apply.
    Although Executive Order 13175 does not apply to these regulations, 
EPA did consult with some Tribal officials in developing these proposed 
regulations revisions and encouraged Tribal input at an early stage. 
The EPA specifically solicits additional comment on the proposed 
revisions to the regulations 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 proposed 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.
    The public is invited to submit or identify peer-reviewed studies 
and data, of which the Agency may not be aware, that assessed results 
of early life exposure to criteria air pollutant emissions regulated by 
this rule.

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

    These revisions to the regulations are not subject to Executive 
Order 13211, Actions That Significantly Affect Energy Supply, 
Distribution, or Use, (66 FR 28355, May 22, 2001) because they are not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Further, we have concluded that this 
rule is not likely to have any adverse energy effects.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer 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.
    These proposed revisions to the regulations do not involve 
technical standards. Therefore, EPA is not considering the use of any 
VCS. EPA welcomes comments on this aspect of the proposed rulemaking 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

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.
    EPA has determined that this proposed rule will not have

[[Page 1421]]

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 proposed revisions to the regulations would, if 
promulgated, revise procedures for other Federal agencies to follow and 
does not relax the control measures on emission sources. 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.

VII. Statutory Authority

Clean Air Act Section 176(c) (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: December 20, 2007.
Stephen L. Johnson,
Administrator.
    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

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

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

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart W--[Amended]

    2. Remove and reserve Sec.  51.850 and Sec. Sec.  51.852 through 
51.860.
    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, 
conformity determinations shall be governed by the approved (or 
approved portion of) State 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 State's or Tribe's 
conformity provisions that is not 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 attainment or maintenance of the standard, 
meeting the reasonable further progress milestones or other 
requirements of the Clean Air Act. For example, the State may identify 
the emissions from a certain type and size of construction activities 
that it presumes will conform. Federal agencies can use the list to 
determine their ``presumed to conform'' emissions.
    (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.

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

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

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

Subpart B--[Amended]

    5. 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.
    6. 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 SIP required under 40 
CFR 51.851. When EPA approves a State'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 criteria and procedures. The Federal conformity 
regulations contained in this subpart apply only for the portions, if 
any, of the State's conformity provisions that are not 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.
    7. Section 93.152 is amended as follows:
    a. Add the definition for ``Applicability analysis.''
    b. Revise the definition of ``Applicable implementation plan or 
applicable SIP.''
    c. Revise the definition for ``Areawide air quality modeling 
analysis.''
    d. Add the following definitions in alphabetical order: 
``Confidential business information,'' ``Conformity determinations,'' 
``Conformity

[[Page 1422]]

evaluations,'' ``Continuing program responsibility,'' and ``Continuous 
program to implement.''
    e. Revise the definition of ``Direct emissions.''
    f. Add a new definition for ``Emission inventory.''
    g. Remove the definition for ``Emissions that a Federal agency has 
a continuing program responsibility for.''
    h. Revise the definition of ``EPA.''
    i. Revise the definition of ``Indirect Emissions.''
    j. Revise the definition of ``Local air quality modeling 
analysis.''
    k. Revise the definitions for ``Maintenance area'' and 
``Metropolitan Planning Organization (MPO).''
    l. Add in alphabetical order a definition for ``Mitigations 
measure.''
    m. Revise the definition for ``National ambient air quality 
standards''.
    n. In the definitions for ``Precursors of a criteria pollutant'' 
revise paragraphs (3)(i), (3)(ii) and (3)(iii).
    o. Revise the definition for ``Reasonably foreseeable emissions.''
    p. Remove the definition for ``Regionally significant action.''
    q. Add the following definitions: ``Restricted information.''
    r. Add 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 multilayer air quality (CMAQ) model.
* * * * *
    Confidential business information (CBI) is 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; it 
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 demonstrating 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 is 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. 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:
    (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.
* * * * *
    Local air quality modeling analysis means an assessment of 
localized impacts on a scale smaller than the entire nonattainment or 
maintenance area, including, for example, congested roadways on a 
Federal facility, which uses an air quality dispersion model, e.g., 
Industrial Source Complex Model or Emission and Dispersion Model 
System, to determine the effects of emissions on air quality.
    Maintenance area means an area that was designated as nonattainment 
and has been re-designated in 40 CFR part 81 to attainment, meeting the 
provisions of section 107(d)(3)(E) of the Act and has a maintenance 
plan approved under section 175A of the Act.
* * * * *
    Metropolitan Planning Organization (MPO) means the policy board of 
an organization created as a result of the designation process in 23 
U.S.C. 134(d).
* * * * *
    Mitigation measure means any method of reducing emissions of the 
pollutant or its precursor taken at the location of the Federal action 
and used to reduce the impact of the emissions of that pollutant caused 
by the action.
* * * * *
    National ambient air quality standards (NAAQS) are those standards 
established pursuant to section 109 of the Act and include standards 
for carbon monoxide (CO), 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
    (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

[[Page 1423]]

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 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 by a federally 
recognized Indian Tribal government determined to be eligible under 40 
CFR 49.9 and the plan has been approved by EPA.
    8. Section 93.153 is amended as follows:
    a. By revising paragraph (a).
    b. By revising paragaraphs (b) introductory text and (b)(1).
    c. By adding paragraph (c)(2)(xxii).
    d. By revising paragraphs (d)(1) and (d)(2).
    e. By revising paragraph (e)(2).
    f. By adding paragraph (e)(3).
    g. By revising paragraph (f).
    h. By revising paragraph (g) introductory text.
    i. By Adding paragraph (g)(3).
    j. By revising paragraphs (h) introductory text, (h)(1), (h)(2), 
and (h)(4).
    k. By revising paragraphs (i), (j), and (k).


Sec.  93.153  Applicability.

    (a) Conformity determinations for Federal actions related to 
transportation plans, programs and projects developed, funded or 
approved under title 23 U.S.C. or 49 U.S.C. Chapter 53 must meet the 
procedures and criteria of 40 CFR part 51, subpart T, in lieu of the 
procedures set forth in this subpart.
    (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 
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                     100
     precursors)...........................................
    VOC or ammonia (if determined to be significant                  100
     precursors)...........................................
Pb: All NAA's..............................................           25
------------------------------------------------------------------------

* * * * *
    (c) * * *
    (2) * * *
    (xxii) Air traffic control activities and adopting approach, 
departure and enroute procedures for aircraft operations above 3,000 
feet above ground level.
* * * * *
    (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 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 3 6-month periods except where an agency:
    (i) provide information to EPA and the State 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 or local 
air quality agencies responsible for the SIP(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 1424]]

    (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 
action qualifies it for the presumption;
    (2) The Federal agency must notify the appropriate EPA Regional 
Office(s), State and local 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 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.
    Alternative 1 for paragraph (i)(2):
    (2) Prescribed fires conducted in accordance with a State certified 
smoke management program (SMP) which meets the requirements of EPA's 
Air Quality Policy on Wildland and Prescribed Fires.
    Alternative 2 for paragraph (i)(2):
    (2) Prescribed fires conducted in accordance with a State certified 
smoke management program (SMP) which meets the requirements of EPA's 
Air Quality Policy on Wildland and Prescribed Fires 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.
    (3) Emissions for actions that the State identifies in the EPA 
approved SIP 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:
    (i) Cause or contribute to any new violation of any standard in any 
area;
    (ii) Interfere with provisions in the applicable SIP for 
maintenance of any standard;
    (iii) Increase the frequency or severity of any existing violation 
of any standard in any area; or
    (iv) 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 for 
purposes of:
    (A) A demonstration of reasonable further progress;
    (B) A demonstration of attainment; or
    (C) 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.
    9. 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.
    10. 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 two 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.
    11. 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

[[Page 1425]]

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 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 two 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.
    12. Section 93.157 is revised to read as follows:


Sec.  93.157  Reevaluation of conformity.

    (a) Once a conformity evaluation 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 (a) of this 
section; or any modification to the action does not result in an 
increase in emissions above the levels specified in paragraph (d) of 
this section. 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 been 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 of the NEPA 
analysis.
    (d) If the Federal agency determines 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.
    13. Section 93.158 is amended as follows:
    a. Revising paragraphs (a)(1), (a)(2), (a)(3) introductory text and 
(a)(4) introductory text;
    b. Revising paragraph (a)(5) introductory text;
    c. Revising paragraphs (a)(5)(i) introductory text, and 
(a)(5)(i)(C), and
    d. Adding (a)(5)(i)(D).
    e. Revising paragraphs (a)(5)(iii), (a)(5)(iv) introductory text; 
(a)(5)(iv)(A)(1 ), (a)(5)(iv)(A)(2) and paragraph (a)(5)(iv)(B).


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 accordance with Sec.  
93.161 of this rule;
    (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 makes a determination as provided in paragraph (a)(5)(i)(A) 
of this section or where the State 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 commitment under paragraph (a)(5)(i)(B) of this section and the 
State has submitted a SIP to EPA covering the time period during which 
the emissions will occur or is scheduled to submit such a SIP within 18 
months of the conformity determination, the State commitment is 
automatically deemed a call for a SIP 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 commits to revise the applicable SIP;
    (D) Where a Federal agency made a conformity determination based on 
a State commitment under paragraph (a)(5)(i)(B) of this section and the 
State has not submitted a SIP covering the time period of the emissions 
will occur or is not scheduled to submit such a SIP within 18 months of 
the conformity determination, the State 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

[[Page 1426]]

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 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
* * * * *
    14. Section 93.159 is amended by:
    a. Revising paragraphs (b) introductory text and (b)(1)(ii);
    b. Revising paragraphs (b)(2) and (c) introductory text; and
    c. Removing footnotes 1 and 2,
    d. 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 years 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 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.
    15. Section 93.160 is amended as follows:
    a. Revising paragraph (e);
    b. Revising paragraph (f); and
    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 that such commitments 
must be fulfilled.
    (g) After a State revises its SIP to adopt its general conformity 
regulations and EPA approves that SIP revision, any agreements, 
including mitigation measures, necessary for a conformity determination 
will be both State and Federally enforceable. Enforceability through 
the applicable SIP will apply to all persons who agree to mitigate 
direct and indirect emissions associated with a Federal action for a 
conformity determination.
    16. Subpart B is further amended by adding Sec. Sec.  93.161 
through 93.165 to read as follows:


Sec.  93.161  Conformity evaluation for Federal installations with 
facility-wide emission budgets.

    (a) The State or local agency responsible for implementing and 
enforcing the SIP can in cooperation with Federal agencies or third 
parties authorized by the agency that operate installations subject to 
Federal oversight (e.g., a military base or a commercial service 
airport) 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.

[[Page 1427]]

    (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 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.


Sec.  93.162  Emissions beyond the time period covered by the SIP.

    If a Federal action would result in total direct and indirect 
emissions 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 to adopt an emissions budget for the action 
for inclusion in the SIP. The State must submit a SIP 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 shall restrict 
a State's ability require RACT, RACM or any other control measures 
within the State's authority to ensure timely attainment of the NAAQS.


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 may approve 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 of an offset or mitigation measure 
with emissions reductions in another year, does not relieve the State 
of any obligation to meet any SIP or Clean Air Act milestone or 
deadline.


Sec.  93.164  Inter-precursor mitigation measures and offsets.

    Federal agencies must reduce the same type pollutant as being 
increased by the Federal action except the State may approve offsets or 
mitigation measures of different precursors of the same criteria 
pollutant, if such trades are allowed by a State in a SIP approved new 
source review regulation, is technically justified, and has a 
demonstrated environmental benefit.


Sec.  93.165  Early emission reduction credit programs at Federal 
facilities and installation subject to Federal oversight.

    (a) Federal facilities and installation subject to Federal 
oversight can, with the approval of the State agency responsible for 
the SIP 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 used 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 agency responsible for the 
implementation of the SIP 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.
    (2) The emission reduction methods must be consistent with the 
applicable SIP attainment and reasonable further progress 
demonstrations.
    (3) The emissions reductions can not be required by or credited to 
other applicable SIP provisions.
    (4) Both the State 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 air quality agency and the 
EPA regional office for review. The documentation must include a 
detailed description of the 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 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. For example, emission reduction credits from a 
control measure could be used in one year as offset for construction 
emission increases and in another year to mitigate operational emission 
increases.
    (5) Federal agencies must notify the State air quality agency and 
EPA

[[Page 1428]]

Regional Office when the emission reduction credits are being used.

 [FR Doc. E7-25241 Filed 1-7-08; 8:45 am]
BILLING CODE 6560-50-P