6560­
50­
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
51
and
93
[
EPA­
HQ­
OAR­
2004­
0491;
FRL­
]

[
RIN
A2060]

PM2.5
De
Minimis
Emission
Levels
for
General
Conformity
Applicability
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Proposed
rulemaking.

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

DATES:
Comments
on
the
revisions
proposed
today
must
be
received
on
or
before
[
insert
date
30
days
after
publication
in
the
Federal
Register].
Under
the
Paperwork
Reduction
Act,
comments
on
the
information
collection
provisions
must
be
received
by
OMB
on
or
before
[
insert
date
30
days
after
publication
in
the
Federal
Register].
2
ADDRESSES:
Submit
your
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:
A­
and­
R­
Docket@
epa.
gov,
attention
Docket
No.

EPA­
HQ­
OAR­
2004­
0491.


Fax:
202­
566­
1741.


Mail:
PM2.5
De
Minimis
Emission
Levels
for
General
Conformity
Applicability,
Docket
ID
No.
EPA­
HQ­
OAR­
2004­

0491,
Environmental
Protection
Agency
Docket
Center,
Mail
Code:
6102T,
1200
Pennsylvania
Avenue,
N.
W.,
Washington,

D.
C.
20460.
Please
include
a
total
of
two
copies,
if
possible.
In
addition,
please
mail
a
copy
of
your
comments
on
the
information
collection
provisions
to
the
Office
of
Information
and
Regulatory
Affairs,
Office
of
Management
and
Budget
(
OMB),
Attn:
Desk
Officer
for
EPA,
725
17th
St.

NW.,
Washington,
DC
20503.


Hand
Delivery:
PM2.5
De
Minimis
Emission
Levels
for
General
Conformity
Applicability,
Docket
ID
No.
EPA­
HQ­
OAR­

2004­
0491,
Environmental
Protection
Agency
Docket
Center,

EPA
West,
Room
B­
102,
1301
Constitution
Avenue,
N.
W.,

Washington,
D.
C.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation,
and
special
3
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
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
www.
regulations.
gov
or
e­
mail.
The
www.
regulations.
gov
website
is
an
"
anonymous
access"

system,
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
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
4
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.

Docket:
All
documents
in
the
docket
are
listed
in
the
www.
regulations.
gov
index.
Although
listed
in
the
index,

some
information
is
not
publicly
available,
e.
g.,
CBI
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
will
be
publicly
available
only
in
hard
copy.

Publicly
available
docket
materials
are
available
either
electronically
in
www.
regulations.
gov
or
in
hard
copy
at
the
Docket,
EPA/
DC,
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC.
The
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,

excluding
legal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
for
the
Air
Docket
is
(
202)
566­
1742.

FOR
FURTHER
INFORMATION
CONTACT:
Mr.
Thomas
Coda,
Office
of
Air
Quality
Planning
and
Standards,
U.
S.
Environmental
Protection
Agency,
Mail
Code
C539­
02,
Research
Triangle
5
Park,
NC
27711,
phone
number
(
919)
54l­
3037
or
by
e­
mail
at
coda.
tom@
epa.
gov.

I.
Background
A.
What
is
General
Conformity
and
How
Does
it
Affect
Air
Quality?

The
intent
of
the
General
Conformity
requirement
is
to
prevent
the
air
quality
impacts
of
Federal
actions
from
causing
or
contributing
to
a
violation
of
the
NAAQS
or
interfering
with
the
purpose
of
a
State
implementation
plan
(
SIP).
For
the
purpose
of
this
rule,
the
term
"
State
implementation
plan
(
SIP)"
refers
to
all
approved
applicable
and
enforceable
State,
Federal
and
Tribal
implementation
plans
(
TIPs).

In
the
CAA,
Congress
recognized
that
actions
taken
by
Federal
agencies
could
affect
States,
Tribes,
and
local
agencies'
abilities
to
attain
and
maintain
the
NAAQS.

Section
176(
c)
(
42
USC
7506)
of
the
CAA
requires
Federal
agencies
to
ensure
that
their
proposed
actions
conform
to
the
applicable
SIP
for
attaining
and
maintaining
the
NAAQS.

The
CAA
Amendments
of
1990
clarified
and
strengthened
the
provisions
in
section
176(
c).
Because
certain
provisions
of
section
176(
c)
apply
only
to
highway
and
mass
transit
funding
and
approvals
actions,
EPA
published
two
sets
of
regulations
to
implement
section
176(
c).
The
Transportation
Conformity
Regulations,
first
published
on
November
24,
1993
(
58
FR
62188)
and
recently
revised
on
6
July
1,
2004
(
69
FR
40004)
and
May
6,
2005
(
70
FR
24280),

address
Federal
actions
related
to
highway
and
mass
transit
funding
and
approval
actions.
The
General
Conformity
Regulations,
published
on
November
30,
1993
(
58
FR
63214)

and
codified
at
40
CFR
93.150
et
seq.,
cover
all
other
Federal
actions.
This
proposal
applies
only
to
the
General
Conformity
Regulations.

When
the
applicability
analysis
shows
that
the
action
must
undergo
a
conformity
determination,
Federal
agencies
must
first
show
that
the
action
will
meet
all
SIP
control
requirements
such
as
reasonably
available
control
measures,

and
the
emissions
from
the
action
will
not
interfere
with
the
timely
attainment
of
the
standard,
the
maintenance
of
the
standard
or
the
area's
ability
to
achieve
an
interim
emission
reduction
milestone.
Federal
agencies
then
must
demonstrate
conformity
by
meeting
one
or
more
of
the
methods
specified
in
the
regulation
for
determining
conformity:

1.
Demonstrating
that
the
total
direct1
and
indirect2
emissions
are
specifically
identified
and
accounted
for
in
the
applicable
SIP,

1
Direct
emissions
are
emissions
of
a
criteria
pollutant
or
its
precursors
that
are
caused
or
initiated
by
the
Federal
action
and
occur
at
the
same
time
and
place
as
the
action.

2
Indirect
emissions
are
emissions
of
a
criteria
pollutant
or
its
precursors
that:
1)
are
caused
by
the
Federal
action,
but
may
occur
later
in
time
and/
or
may
be
further
removed
in
distance
form
the
action
itself
but
are
still
reasonably
foreseeable;
and
2)
the
Federal
agency
can
practically
control
or
will
maintain
control
over
due
to
the
controlling
program
responsibility
of
the
Federal
action.
7
2.
Obtaining
written
statement
from
the
State
or
local
agency
responsible
for
the
SIP
documenting
that
the
total
direct
and
indirect
emissions
from
the
action
along
with
all
other
emissions
in
the
area
will
not
exceed
the
SIP
emission
budget,

3.
Obtaining
a
written
commitment
from
the
State
to
revise
the
SIP
to
include
the
emissions
from
the
action,

4.
Obtaining
a
statement
from
the
metropolitan
planning
organization
(
MPO)
for
the
area
documenting
that
any
on­
road
motor
vehicle
emissions
are
included
in
the
current
regional
emission
analysis
for
the
area's
transportation
plan
or
transportation
improvement
program,

5.
Fully
offset
the
total
direct
and
indirect
emissions
by
reducing
emissions
of
the
same
pollutant
or
precursor
in
the
same
nonattainment
or
maintenance
area,
or
6.
Where
appropriate,
in
accordance
with
40
CFR
51.858
(
4),
conduct
air
quality
modeling
that
can
demonstrate
that
the
emissions
will
not
cause
or
contribute
to
new
violations
of
the
standards,
or
increase
the
frequency
or
severity
of
any
existing
violations
of
the
standards.

B.
Applicability
Analysis
for
General
Conformity
The
National
Highway
System
Designation
Act
of
1995,

(
Public
Law
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
8
and
areas
that
had
been
redesignated
as
maintenance
areas
with
a
maintenance
plan
under
section
175A
of
the
CAA
only.

Therefore,
only
Federal
actions
taken
in
designated
nonattainment
and
maintenance
areas
are
subject
to
the
General
Conformity
regulation.
In
addition,
the
General
Conformity
Regulations
(
58
FR
63214)
recognize
that
the
vast
majority
of
Federal
actions
do
not
result
in
a
significant
increase
in
emissions
and,
therefore,
include
a
number
of
regulatory
exemptions,
such
as
de
minimis
emission
levels
based
on
the
type
and
severity
of
the
nonattainment
problem
in
an
area.

In
carrying
out
this
type
of
applicability
analysis,

the
Federal
agency
determines
whether
the
total
direct
and
indirect
emissions
from
the
action
are
below
or
above
the
de
minimis
levels.
If
the
action
is
determined
to
have
total
direct
and
indirect
emissions
for
a
given
pollutant
that
are
at
or
above
the
de
minimis
level
for
that
pollutant,
Federal
agencies
must
conduct
a
conformity
determination
for
the
pollutant
unless
the
action
is
presumed
to
conform
under
the
regulation
or
the
action
is
otherwise
exempt.
If
the
action's
emissions
are
below
an
applicable
de
minimis
level,
a
Federal
agency
does
not
have
to
conduct
a
conformity
determination.

C.
Why
is
EPA
Proposing
De
Minimis
Levels
for
PM2.5
Emissions
at
This
Time?
9
The
EPA
has
not
revised
the
General
Conformity
Regulations
since
they
were
promulgated
in
1993,
although
EPA
expects
to
promulgate,
in
a
separate
rulemaking,

proposed
revisions
to
the
General
Conformity
Regulations
in
the
near
future.
For
the
purposes
of
general
conformity,

the
General
Conformity
Regulations
(
58
FR
63214)
define
NAAQS
as
"
those
standards
established
pursuant
to
section
109
of
the
Act
and
include
standards
for
carbon
monoxide
(
CO),
Lead
(
Pb),
nitrogen
dioxide
(
NO2),
ozone,
particulate
matter
(
PM­
10)
and
sulfur
dioxide
(
SO2)."
Since
1993,
EPA
has
reviewed
and
revised
the
NAAQS
for
particulate
matter
to
include
a
new
PM2.5
standard
(
PM2.5
is
particulate
matter
with
an
aerodynamic
diameter
of
up
to
2.5
µ
m,
referred
to
as
the
fine
particle
fraction).
Since
PM2.5
was
established
pursuant
to
section
109
of
the
CAA,
general
conformity
requirements
are
applicable
to
areas
designated
nonattainment
for
this
standard
although
it
is
not
explicitly
included
in
the
examples
of
criteria
pollutants
in
58
FR
63214.

In
July
1997,
EPA
promulgated
two
new
NAAQS
(
62
FR
38652),
one
for
an
8­
hour
ozone
standard
and
one
established
pursuant
to
section
109
of
the
CAA
for
fine
particulate
matter
known
as
PM2.5.
The
new
8­
hour
and
old
1­
hour
ozone
NAAQS
address
the
same
pollutant
but
differ
with
respect
to
the
averaging
time,
therefore,
EPA
retained
10
the
existing
de
minimis
emission
levels
for
ozone
precursors.

The
EPA
designated
areas
as
nonattainment
for
PM2.5
on
April
5,
2005.
Subsequently,
EPA
has
proposed
regulations
to
implement
the
new
particulate
matter
standard
(
70
FR
65984;
November
1,
2005).
Currently,
there
are
no
de
minimis
emission
levels
for
PM2.5.
Although
PM2.5
is
a
subset
of
PM10,
it
differs
from
the
rest
of
PM10.
While,
the
majority
of
ambient
PM10
results
from
direct
emissions
of
the
pollutant,
a
significant
amount
of
the
ambient
PM2.5
can
result
not
only
from
direct
emissions
but
also
from
transformation
of
precursors
and
condensing
of
gaseous
pollutants
in
the
atmosphere.
In
the
preamble
to
the
proposed
regulation
to
implement
the
new
particulate
matter
standard,
EPA
discussed
that
the
key
pollutants
potentially
contributing
to
PM2.5
concentrations
in
the
atmosphere
are
direct
PM2.5
emissions,
SO2,
NOX,
VOC
and
ammonia
(
70
FR
65998).
The
discussion
also
included
EPA's
intent
to
propose
a
separate
rulemaking
to
establish
de
minimis
levels
for
Federal
actions
covered
by
the
General
Conformity
program
(
70
FR
66033).
At
that
time,
EPA
said
it
expected
the
proposed
levels
will
be
identical
to
the
nonattainment
area
major
source
levels
for
the
New
Source
Review
(
NSR)
program.

Section
176(
c)(
6)
states
that
the
general
conformity
requirements
of
section
176(
c)
do
not
apply
to
an
area
11
newly
designated
nonattainment
for
a
new
NAAQS
until
1
year
after
such
designation.
The
EPA
made
PM2.5
designations
on
April
5,
2005;
thus,
the
applicable
general
conformity
requirements
will
not
be
effective
in
these
areas
until
April
5,
2006.
In
the
absence
of
a
regulatory
de
minimis
emission
level
for
PM2.5,
all
Federal
actions
which
cause
any
amount
of
PM2.5
emissions
will
(
unless
otherwise
exempt)

require
a
general
conformity
determination
after
that
date.

This
result
will
create
an
undue
burden
on
Federal
agencies
to
mitigate
or
offset
even
small
emissions
that
would
not
otherwise
contribute
to
violations
of
NAAQS
standards
or
continued
nonattainment.

D.
How
Does
EPA
Determine
the
De
Minimis
Threshold?

The
EPA
has
previously
considered
options
and
taken
comment
on
how
to
set
de
minimis
levels
to
determine
applicability
of
general
conformity
requirements.
The
following
is
a
discussion
of
the
options
considered
and
the
methodology
used
in
setting
de
minimis
levels.
The
EPA
is
proposing
to
use
the
same
methodology
to
set
PM2.5
de
minimis
levels
that
was
previously
publicly
vetted
and
used
for
other
NAAQS
pollutants.

In
the
preamble
to
the
proposal
for
General
Conformity
Regulations
(
58
FR
13841),
EPA
recognized
that
the
very
broad
definition
of
Federal
action
in
the
statute
and
the
number
of
Federal
agencies
subject
to
the
conformity
requirements
could
create
a
requirement
for
individual
12
conformity
decisions
in
the
thousands
per
day.
To
avoid
creating
an
unreasonable
administrative
burden,
EPA
considered
options
for
mechanisms
to
focus
the
efforts
of
affected
agencies
on
key
actions
with
significant
environmental
impact,
rather
than
all
actions.
Prior
to
that
proposal,
EPA
consulted
with
numerous
Federal
agencies,
environmental
groups,
State
and
local
air
quality
agencies,
building
industry
representatives,
and
others.

Following
consultation,
EPA
initially
proposed
a
de
minimis
level
similar
to
that
specified
by
EPA
for
modifications
to
major
stationary
sources
under
the
CAA
preconstruction
review
programs.
Consequently,
the
de
minimis
levels
proposed
for
general
conformity
were
chosen
to
correspond
to
the
emission
rates
defined
in
40
CFR
51.165
(
NSR)
and
51.166
(
prevention
of
significant
deterioration)
as
"
significant."
Activities
with
emissions
impacts
below
the
proposed
de
minimis
levels
would
not
require
conformity
determinations.

After
EPA
received
comments
on
this
proposal,
we
responded
in
the
preamble
to
the
final
General
Conformity
Regulations
(
58
CFR
63228)
and
stated:
"
Given
the
need
to
choose
a
threshold
based
on
air
quality
criteria
and
one
that
avoids
coverage
of
less
significant
projects,
and
in
response
to
certain
comments,
the
de
minimis
levels
for
conformity
analyses
in
the
final
rule
are
based
on
the
Act's
major
stationary
source
definitions 
not
the
13
significance
levels
as
proposed 
for
the
various
pollutants.

Use
of
the
de
minimis
levels
assures
that
the
conformity
rule
covers
only
major
Federal
actions.
Under
the
major
source
definition,
for
example,
the
levels
for
ozone
would
range
from
10
tons/
year
(
VOC
and
NOx)
for
an
extreme
ozone
nonattainment
area
to
100
tons/
year
for
marginal
and
moderate
areas,
not
from
10
tons/
year
to
40
tons/
year
as
proposed...
The
de
minimis
levels
proposed
were
generally
those
used
to
define
when
modifications
to
existing
stationary
sources
require
preconstruction
review.
It
was
pointed
out
to
EPA
in
comments
on
the
proposal
that
these
thresholds
would
result
in
the
need
to
perform
a
conformity
analysis
and
determination
for
projects
that
constituted
a
"
modification"
to
an
existing
source
but
not
a
"
major"

source
in
some
cases.
The
EPA
agrees
that
conformity
applies
more
appropriately
to
"
major"
source
and
after
careful
consideration
has
decided
to
revise
its
original
proposal
in
the
final
rule
to
use
the
emissions
levels
that
define
a
major
source,
except
as
described
above
for
lead.

The
definition
of
a
major
source
under
the
amended
Act
is
explained
in
more
detail
in
the
April
16,
1992
Federal
Register
in
the
EPA's
General
Preamble
to
Title
I
(
57
FR
13498).
Section
51.853(
b)(
3)
of
the
rule
has
also
been
revised
to
remove
the
provisions
that
would
automatically
lower
the
de
minimis
levels
to
that
established
for
stationary
sources
by
the
local
air
quality
agency.
In
14
keeping
with
its
conclusion
that
only
major
sources
should
be
subject
to
conformity
review,
EPA
agrees
that
a
zero
emissions
threshold
as
established
by
some
local
agencies,

should
not
be
required
by
this
rule."

This
mechanism
relying
on
the
major
stationary
source
levels
in
the
statute
as
de
minimis
levels
for
conformity
has
worked
well
over
the
last
12
years
to
lessen
the
administrative
burden
of
Federal
agencies
for
actions
that
emit
relatively
low
emissions
while
addressing
actions
with
significant
emissions
that
could
affect
attainment
of
the
NAAQS.
The
EPA
believes
it
is
appropriate
to
continue
to
use
major
stationary
source
levels
as
de
minimis
levels
for
the
PM2.5
NAAQS
in
line
with
past
practice
and
recognizing
that
Congress
generally
concluded
it
was
appropriate
to
apply
more
stringent
air
quality
review
requirements
on
such
sources.
For
this
reason,
EPA
is
proposing
to
continue
to
use
this
reasonable
and
effective
mechanism
for
setting
de
minimis
levels
for
PM2.5.

The
EPA
proposed
regulations
to
implement
the
new
particulate
matter
standard
(
70
FR
65984;
November
1,

2005).
In
the
preamble
to
that
proposal,
EPA
discussed
that
the
key
pollutants
potentially
contributing
to
PM2.5
concentrations
in
the
atmosphere
are
direct
PM2.5
emissions,

SO2,
NOX,
VOC
and
ammonia
(
70
FR
65998).
While
EPA
recognized
that
SO2,
NOX,
VOC
and
ammonia
are
precursors
of
PM2.5
in
the
scientific
sense
because
these
pollutants
can
15
contribute
to
the
formation
of
PM2.5
in
the
ambient
air,
the
degree
to
which
these
individual
precursors
and
pollutants
contribute
to
PM2.5
formation
in
a
given
location
is
complex
and
variable.
For
ammonia,
there
is
uncertainty
about
emissions
inventories
and
the
potential
efficacy
of
control
measures
from
location
to
location.
For
VOC,
the
role
and
relationship
of
gaseous
organic
material
in
the
formation
of
organic
PM
remains
complex
and
further
research
and
technical
tools
are
needed
to
better
characterize
emissions
inventories
for
specific
VOC
compounds.
In
light
of
these
factors,
EPA
proposed
in
its
rule
to
implement
the
PM2.5
NAAQS
that
States
are
not
required
to
address
VOC's
or
ammonia
as
PM2.5
nonattainment
plan
precursors,
unless
the
State
or
EPA
makes
a
finding
that
VOC's
or
ammonia
significantly
contribute
to
a
PM2.5
nonattainment
problem
in
the
State
or
to
other
downwind
air
quality
concerns.
For
NOx
EPA
proposed
that
States
are
required
to
address
NOx
under
all
aspects
of
the
program,
unless
the
State
and
EPA
makes
a
finding
that
NOx
emissions
from
sources
in
the
State
do
not
significantly
contribute
to
the
PM2.5
problem
in
a
given
area
or
to
other
downwind
air
quality
concerns.

Therefore,
for
the
purposes
of
general
conformity
applicability,
VOC's
and
ammonia
emissions
are
only
considered
PM2.5
precursors
in
nonattainment
areas
where
either
a
State
or
EPA
has
made
a
finding
that
they
significantly
contribute
to
the
PM2.5
problem
in
a
given
area
16
or
to
other
downwind
air
quality
concerns.
Alternatively,

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

II.
Summary
of
the
Proposal
The
EPA
is
proposing
to
revise
the
tables
in
subparagraphs
(
b)(
1)
and
(
b)(
2)
of
40
CFR
91.153
by
adding
the
de
minimis
emission
levels
for
PM2.5.
The
EPA
is
proposing
to
establish
100
tons
per
year
as
the
de
minimis
emission
level
for
direct
PM2.5
and
each
of
its
precursors
as
defined
in
revised
section
91.152.
Since
EPA
did
not
propose
any
classifications
for
the
PM2.5
nonattainment
areas,
EPA
is
not
proposing
PM2.5
de
minimis
emission
levels
for
higher
classified
nonattainment
areas.
If
in
the
future
EPA
classifies
the
PM2.5
nonattainment
areas,
it
will
establish
de
minimis
emission
levels
for
the
areas
based
upon
the
classifications
as
appropriate.
This
proposal,
if
adopted,

would
maintain
the
consistency
between
the
conformity
de
minimis
emission
levels
and
the
size
of
a
major
stationary
source
under
the
NSR
program
(
70
FR
65984).
These
levels
are
also
consistent
with
the
levels
proposed
for
VOC
and
NOX
emissions
in
subpart
1
areas
under
the
8­
hour
ozone
implementation
strategy
(
68
FR
32843).

III.
Statutory
and
Executive
Order
Reviews
17
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866
(
58
FR
51735,
October
4,

1993),
the
Agency
must
determine
whether
the
regulatory
action
is
A
significant
@

and,
therefore,
subject
to
Office
of
Management
and
Budget
(
OMB)
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
A
significant
regulatory
action
@

as
one
that
is
likely
to
result
in
a
regulation
that
may:

1.
Have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,

competition,
jobs,
the
environment,
public
health
or
safety,
or
State,
local,
or
Tribal
governments
or
communities;

2.
Create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;

3.
Materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
4.
Raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President
=

s
priorities,
or
the
principles
set
forth
in
the
Executive
Order.
18
Pursuant
to
the
terms
of
Executive
Order
12866,
it
has
been
determined
that
these
revisions
to
the
regulations
are
considered
a
A
significant
regulatory
action
@

because
they
may
interfere
with
actions
taken
or
planned
by
other
Federal
agencies.
As
such,
this
action
was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
can
be
found
in
the
public
docket.

B.
Paperwork
Reduction
Act
This
action
does
not
directly
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.,
on
non­
Federal
entities.
The
General
Conformity
Regulations
require
Federal
agencies
to
determine
that
their
actions
conform
to
the
SIPs
or
TIPs.
However,
depending
upon
how
Federal
agencies
implement
the
regulations,
non­
Federal
entities
seeking
funding
or
approval
from
those
Federal
agencies
may
be
required
to
submit
information
to
that
agency.

Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,

retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
19
validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.
An
agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
in
40
CFR
are
listed
in
40
CFR
part
9.

C.
Regulatory
Flexibility
Act
The
Regulatory
Flexibility
Act
generally
requires
an
Agency
to
prepare
a
regulatory
flexibility
analysis
of
any
regulation
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedures
Act
or
any
other
statute
unless
the
Agency
certifies
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,
small
organizations,
and
small
governmental
jurisdictions.
20
For
purposes
of
assessing
the
impacts
of
today
=

s
proposed
revisions
to
the
regulations
on
small
entities,

small
entity
is
defined
as:

1.
A
small
business
that
is
a
small
industrial
entity
as
defined
in
the
U.
S.
Small
Business
Administration
(
SBA)

size
standards.
(
See
13
CFR
121.201);

2.
A
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
3.
A
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

Today
=

s
proposed
revisions
to
the
regulations,
if
promulgated
will
not
impose
any
requirements
on
small
entities
and
therefore,
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.

The
General
Conformity
Regulations
require
Federal
agencies
to
conform
to
the
appropriate
State,
Tribal
or
Federal
implementation
plan
for
attaining
clean
air.
We
continue
to
be
interested
in
the
potential
impacts
of
the
regulations
on
small
entities
and
welcome
comments
on
issues
related
to
such
impacts.

D.
Unfunded
Mandates
Reform
Act
21
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
A
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,
22
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,
today
=

s
proposed
regulation
revisions
are
not
subject
to
the
requirements
of
sections
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.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
A
Federalism
@

(
64
FR
43255;
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
A
meaningful
and
timely
input
23
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
Federalism
implications.@

A
Policies
that
have
Federalism
implications
@

is
defined
in
the
Executive
Order
to
include
regulations
that
have
A
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government.@

This
action
does
not
have
Federalism
implications.

The
regulations
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.

Previously,
EPA
determined
the
costs
to
States
to
implement
the
General
Conformity
Regulations
to
be
less
than
$
100,000
per
year.
Thus,
Executive
Order
13132
does
not
apply
to
these
proposed
regulation
revisions.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
Executive
Order
13175,
entitled
A
Consultation
and
Coordination
with
Indian
Tribal
Governments
@

(
65
FR
67249,

November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
A
meaningful
and
timely
input
by
Tribal
24
officials
in
the
development
of
regulatory
policies
that
have
Tribal
implications.@
This
determination
is
stated
below.

These
proposed
regulation
revisions
do
not
have
Tribal
implications
as
defined
by
Executive
Order
13175.
They
do
not
have
a
substantial
direct
effect
on
one
or
more
Indian
Tribes,
since
no
Tribe
has
to
demonstrate
conformity
for
their
actions.
Furthermore,
these
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
encourages
Tribal
input
and
specifically
solicits
comment
on
this
regulation
from
Tribal
officials.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
Executive
Order
13045:
A
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
@

(
62
FR
19885,
April
25
23,
1997)
applies
to
any
rule
that
(
1)
is
determined
to
be
A
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.

H.
Executive
Order
13211:
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
26
These
revisions
to
the
regulations
are
not
considered
a
A
significant
energy
action
@

as
defined
in
Executive
Order
13211,
A
Actions
That
Significantly
Affect
Energy
Supply,

Distribution,
or
Use,@
(
66
FR
28355,
May
22,
2001)
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.

I.
National
Technology
Transfer
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
Advancement
Act
of
1995
(
NTTAA),
Public
Law
No.
104­
113,

section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
(
VCS)
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
The
VCS
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
VCS
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
VCS.

This
revision
to
the
regulations
does
not
involve
technical
standards.
Therefore,
EPA
is
not
considering
the
use
of
any
VCS.
27
However,
EPA
will
encourage
the
Federal
agencies
to
consider
the
use
of
such
standards,
where
appropriate,
in
the
implementation
of
the
General
Conformity
Regulations.

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

Income
Populations
Executive
Order
12898
requires
that
each
Federal
agency
make
achieving
environmental
justice
part
of
its
mission
by
identifying
and
addressing,
as
appropriate,

disproportionately
high
and
adverse
human
health
environmental
effects
of
its
programs,
policies,
and
activities
on
minorities
and
low­
income
populations.

The
EPA
believes
that
these
proposed
revisions
to
the
regulations
should
not
raise
any
environmental
justice
issues.
The
proposed
revisions
to
the
regulations
would,

if
promulgated
revise
procedures
for
other
Federal
agencies
to
follow.
They
do
not
disproportionately
affect
the
health
or
safety
of
minority
or
low
income
populations.

The
EPA
encourages
other
agencies
to
carefully
consider
and
address
environmental
justice
in
their
implementation
of
their
evaluations
and
conformity
determinations.

LIST
OF
SUBJECTS
in
40
CFR
Part
93
Environmental
protection,
Administrative
practice
and
procedures,
Air
pollution
control,
Carbon
monoxide,
28
Intergovernmental
relations,
Lead,
Nitrogen
dioxide,
Ozone,

Particulate
matter,
Reporting
and
recordkeeping
requirements,
Sulfur
dioxide,
Volatile
organic
compounds.

AUTHORITY
42
U.
S.
C.
7401­
7671q
PM2.5
De
Minimis
Emission
levels
for
General
Conformity
Applicability
­­
Page
25
of
30
___________________________
Dated:

___________________________
Stephen
L.
Johnson
Administrator
29
For
the
reasons
stated
in
the
preamble,
Title
40,
Chapter
I
of
the
Code
of
Federal
Regulations
is
amended
as
follows:

Part
93­
Determining
Conformity
of
Federal
Actions
to
State
or
Federal
Implementation
Plans
1.
The
authority
citation
for
part
93
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
7401­
7671q.

Subpart
B
 
[
Amended]

The
additions
and
revisions
read
as
follows:

§
93.152
Definitions.

Precursors
of
a
criteria
pollutant
are:

(
1)
*
*
*

(
2)
*
*
*

(
3)
For
PM2.5:

1.
Sulfur
dioxide
(
SO2)
in
all
PM2.5
nonattainment
and
maintenance
areas,

2.
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
3.
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.
30
§
93.153
Applicability
analysis.

*
*
*
*
*

(
b)
For
Federal
actions
not
covered
by
paragraph
(
a)

of
this
section,
a
conformity
determination
is
required
for
each
criteria
pollutant
or
precursor
where
the
total
of
direct
and
indirect
emissions
of
the
criteria
pollutant
or
precursor
in
a
nonattainment
or
maintenance
area
caused
by
a
Federal
action
would
equal
or
exceed
any
of
the
rates
in
paragraphs
(
b)(
1)
or
(
2)
of
this
section.

(
1)
For
purposes
of
paragraph
(
b)
of
this
section,

the
following
rates
apply
in
nonattainment
areas
(
NAA's):
31
Tons/
year
Ozone
(
VOC's
or
NOx):

Serious
NAA's
50
Severe
NAA's
25
Extreme
NAA's
10
Other
ozone
NAA's
outside
an
ozone
transport
region
100
Other
ozone
NAA's
inside
an
ozone
transport
region:

VOC
50
NOx
100
Carbon
monoxide:
All
NAA's
100
SO2
or
NO2:
All
NAA's
100
PM­
10:

Moderate
NAA's
100
Serious
NAA's
70
PM2.5
Direct
emissions
100
SO2
100
NOx
(
unless
determined
not
to
be
significant
precursors)
100
VOC
or
ammonia
(
if
determined
to
be
significant
precursors)
100
Pb:
All
NAA's
25
32
(
2)
For
purposes
of
paragraph
(
b)
of
this
section,
the
following
rates
apply
in
maintenance
areas:

Tons/
year
Ozone
(
NOx,
SO2
or
NO2):

All
Maintenance
Areas
100
Ozone
(
VOC's):

Maintenance
areas
inside
an
ozone
transport
region
50
Maintenance
areas
outside
an
ozone
transport
region
100
Carbon
monoxide:
All
Maintenance
Areas
100
PM­
10:
All
Maintenance
Areas
100
PM2.5
Direct
emissions
100
SO2
100
NOx
(
unless
determined
not
to
be
significant
precursors)
100
VOC
or
ammonia
(
if
determined
to
be
significant
precursors)
100
Pb:
All
Maintenance
Areas
25
33
Part
51­
[
AMENDED]

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

Authority:
42
U.
S.
C.
7401­
7671q.

Subpart
W
[
AMENDED]

The
additions
and
revisions
read
as
follows:

§
51.852
Definitions.

Precursors
of
a
criteria
pollutant
are:

(
1)
*
*
*

(
2)
*
*
*

(
3)
For
PM2.5:

1.
Sulfur
dioxide
(
SO2)
in
all
PM2.5
nonattainment
and
maintenance
areas,

2.
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
3.
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.

§
51.853
Applicability
analysis.

*
*
*
*
*
34
(
b)
For
Federal
actions
not
covered
by
paragraph
(
a)

of
this
section,
a
conformity
determination
is
required
for
each
criteria
pollutant
or
precursor
where
the
total
of
direct
and
indirect
emissions
of
the
criteria
pollutant
or
precursor
in
a
nonattainment
or
maintenance
area
caused
by
a
Federal
action
would
equal
or
exceed
any
of
the
rates
in
paragraphs
(
b)(
1)
or
(
2)
of
this
section.

(
1)
For
purposes
of
paragraph
(
b)
of
this
section,

the
following
rates
apply
in
nonattainment
areas
(
NAA's):
35
Tons/
year
Ozone
(
VOC's
or
NOx):

Serious
NAA's
50
Severe
NAA's
25
Extreme
NAA's
10
Other
ozone
NAA's
outside
an
ozone
transport
region
100
Other
ozone
NAA's
inside
an
ozone
transport
region:

VOC
50
NOx
100
Carbon
monoxide:
All
NAA's
100
SO2
or
NO2:
All
NAA's
100
PM­
10:

Moderate
NAA's
100
Serious
NAA's
70
PM2.5
Direct
emissions
100
SO2
100
NOx
(
unless
determined
not
to
be
significant
precursors)
100
VOC
or
ammonia
(
if
determined
to
be
significant
precursors)
100
Pb:
All
NAA's
25
36
(
2)
For
purposes
of
paragraph
(
b)
of
this
section,
the
following
rates
apply
in
maintenance
areas:

Tons/
year
Ozone
(
NOx,
SO2
or
NO2):

All
Maintenance
Areas
100
Ozone
(
VOC's):

Maintenance
areas
inside
an
ozone
transport
region
50
Maintenance
areas
outside
an
ozone
transport
region
100
Carbon
monoxide:
All
Maintenance
Areas
100
PM­
10:
All
Maintenance
Areas
100
PM2.5
Direct
emissions
100
SO2
100
NOx
(
unless
determined
not
to
be
significant
precursors)
100
VOC
or
ammonia
(
if
determined
to
be
significant
precursors)
100
Pb:
All
Maintenance
Areas
25
37
