

[Federal Register: July 17, 2006 (Volume 71, Number 136)]
[Rules and Regulations]               
[Page 40420-40427]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy06-11]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[EPA-HQ-OAR-2004-0491; FRL-8197-4]
RIN 2060-AN60

 
PM2.5 De Minimis Emission Levels for General Conformity 
Applicability

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

DATES: The final rule amendments are effective on July 17, 2006.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2004-0491. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 

the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
through http://www.regulations.gov or in hard copy at the Air Docket, EPA/DC, 

EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742.

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

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

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

II. Background

A. What Is General Conformity and How Does It Affect Air Quality?

    The intent of the General Conformity requirement is to prevent the 
air quality impacts of Federal actions from causing or contributing to 
a violation of the NAAQS or interfering with the purpose of a State 
implementation plan (SIP). For the purpose of this rule, the term 
``State implementation plan (SIP)'' refers to all approved applicable 
and enforceable State, Federal and Tribal implementation plans (TIPs).
    In the CAA, Congress recognized that actions taken by Federal 
agencies could affect States, Tribes, and local agencies' abilities to 
attain and maintain the NAAQS. Section 176(c)(42 U.S.C. 7506) of the 
CAA requires Federal agencies to ensure that their actions conform to 
the applicable SIP for attaining and maintaining the NAAQS. The CAA 
Amendments of 1990 clarified and strengthened the provisions in section 
176(c). Because certain provisions of section 176(c) apply only to 
highway and mass transit funding and approvals actions, EPA published 
two sets of regulations to implement section 176(c). The Transportation 
Conformity Regulations, first published on November 24, 1993 (58 FR 
62188) and recently revised on July 1, 2004 (69 FR 40004) and May 6, 
2005 (70 FR 24280), address Federal actions related to highway and mass 
transit funding and approval actions. The General Conformity 
Regulations, published on November 30, 1993 (58 FR 63214) and codified 
at 40 CFR 93.150, cover all other Federal actions. This action applies 
only to the General Conformity Regulations.
    When the applicability analysis shows that the action must undergo 
a conformity determination, Federal agencies must first show that the 
action will meet all SIP control requirements such as reasonably 
available control measures, and the emissions from the action will not 
interfere with the timely attainment of the standard, the maintenance 
of the standard or the area's ability to achieve an interim emission 
reduction milestone. Federal agencies then must demonstrate conformity 
by meeting one or more of the methods specified in the regulation for 
determining conformity:
    1. Demonstrating that the total direct \1\ and indirect \2\ 
emissions are specifically identified and accounted for in the 
applicable SIP,
    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

[[Page 40421]]

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,
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    \1\ Direct emissions are emissions of a criteria pollutant or 
its precursors that are caused or initiated by the Federal action 
and occur at the same time and place as the action.
    \2\ Indirect emissions are emissions of a criteria pollutant or 
its precursors that: (1) Are caused by the Federal action, but may 
occur later in time and/or may be further removed in distance from 
the action itself but are still reasonably foreseeable; and (2) the 
Federal agency can practically control or will maintain control over 
due to the controlling program responsibility of the Federal action.
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    5. Fully offset the total direct and indirect emissions by reducing 
emissions of the same pollutant or precursor in the same nonattainment 
or maintenance area, or
    6. Where appropriate, in accordance with 40 CFR 51.858(4), conduct 
air quality modeling that can demonstrate that the emissions will not 
cause or contribute to new violations of the standards, or increase the 
frequency or severity of any existing violations of the standards.

B. Applicability Analysis for General Conformity

    The National Highway System Designation Act of 1995, (Pub. L. 104-
59) added section 176(c)(5) to the CAA to limit applicability of the 
conformity programs to areas designated as nonattainment under section 
107 of the CAA and areas that had been redesignated as maintenance 
areas with a maintenance plan under section 175A of the CAA only. 
Therefore, only Federal actions taken in designated nonattainment and 
maintenance areas are subject to the General Conformity regulation. In 
addition, the General Conformity Regulations (58 FR 63214) recognize 
that the vast majority of Federal actions do not result in a 
significant increase in emissions and, therefore, include a number of 
regulatory exemptions, such as de minimis emission levels based on the 
type and severity of the nonattainment problem in an area.
    In carrying out this type of applicability analysis, the Federal 
agency determines whether the total direct and indirect emissions from 
the action are below or above the de minimis levels. If the action is 
determined to have total direct and indirect emissions for a given 
pollutant that are at or above the de minimis level for that pollutant, 
Federal agencies must conduct a conformity determination for the 
pollutant unless the action is presumed to conform under the regulation 
or the action is otherwise exempt. If the action's emissions are below 
an applicable de minimis level, a Federal agency does not have to 
conduct a conformity determination.

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

    The EPA has not revised the General Conformity Regulations since 
they were promulgated in 1993, although EPA expects to promulgate, in a 
separate rulemaking, proposed revisions to the General Conformity 
Regulations in the near future. For the purposes of general conformity, 
the General Conformity Regulations (58 FR 63214) define NAAQS as 
``those standards established pursuant to section 109 of the Act and 
include standards for carbon monoxide (CO), Lead (Pb), nitrogen dioxide 
(NO2), ozone, particulate matter (PM10) and 
sulfur dioxide (SO2).'' Since 1993, EPA has reviewed and 
revised the NAAQS for particulate matter to include a new 
PM2.5 standard (PM2.5 is particulate matter with 
an aerodynamic diameter of up to 2.5 [mu] referred to as the fine 
particle fraction). Since PM2.5 was established pursuant to 
section 109 of the CAA, general conformity requirements are applicable 
to areas designated nonattainment for this standard although it is not 
explicitly included in the examples of criteria pollutants in 58 FR 
63214.
    In July 1997, EPA promulgated two new NAAQS (62 FR 38652), one for 
an 8-hour ozone standard and one established pursuant to section 109 of 
the CAA for fine particulate matter known as PM2.5. The new 
8-hour and old 1-hour ozone NAAQS address the same pollutant but differ 
with respect to the averaging time, therefore, EPA retained the 
existing de minimis emission levels for ozone precursors.
    The EPA designated areas as nonattainment for PM2.5 on 
April 5, 2005. Subsequently, EPA has proposed regulations to implement 
the new particulate matter standard (70 FR 65984; November 1, 2005). 
Currently, there are no de minimis emission levels for 
PM2.5. Although PM2.5 is a subset of 
PM10, it differs from the rest of PM10. While the 
majority of ambient PM10 results from direct emissions of 
the pollutant, a significant amount of the ambient PM2.5 can 
result not only from direct emissions but also from transformation of 
precursors and condensing of gaseous pollutants in the atmosphere. In 
the preamble to the proposed regulation to implement the new 
particulate matter standard, EPA included a discussion about the key 
pollutants potentially contributing to PM2.5 concentrations 
in the atmosphere which are direct PM2.5 emissions, 
SO2, NOX, VOC and ammonia (70 FR 65998). The 
discussion also included EPA's intent to issue a separate rulemaking to 
establish de minimis levels for Federal actions covered by the General 
Conformity program (70 FR 66033). At that time, EPA said it expected 
the levels would be identical to the nonattainment area major source 
levels for the New Source Review (NSR) program. While EPA recognized 
that SO2, NOX, VOC and ammonia are precursors of 
PM2.5 in the scientific sense because these pollutants can 
contribute to the formation of PM2.5 in the ambient air, the 
degree to which these individual precursors and pollutants contribute 
to PM2.5 formation in a given location is complex and 
variable. For ammonia, there is uncertainty about emissions inventories 
and the potential efficacy of control measures from location to 
location. For VOC, the role and relationship of gaseous organic 
material in the formation of organic PM remains complex and further 
research and technical tools are needed to better characterize 
emissions inventories for specific VOC compounds. In light of these 
factors, EPA proposed in its rule to implement the PM2.5 
NAAQS that States are not required to address VOC's or ammonia as 
PM2.5 nonattainment plan precursors, unless the State or EPA 
makes a finding that VOC's or ammonia significantly contribute to a 
PM2.5 nonattainment problem in the State or to other 
downwind air quality concerns. For NOX EPA proposed that 
States are required to address NOX as a PM2.5 
nonattainment 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.
    Section 176(c)(6) states that the general conformity requirements 
of section 176(c) do not apply to an area newly designated 
nonattainment for a new NAAQS until 1 year after such designation. The 
EPA made PM2.5 designations on April 5, 2005; thus, the 
applicable general conformity requirements were not effective in these 
areas until April 5, 2006. Many Federal actions result in little or no 
direct or indirect emissions and EPA believes that non-exempt Federal 
actions that have covered emissions below the equivalent major source 
thresholds should not be required to prepare an applicability analysis 
under the general conformity rule. The general conformity rule should 
only apply to major sources, not de minimis sources. A different 
interpretation could result in an extremely wasteful process that 
generates vast numbers of useless

[[Page 40422]]

applicability analyses with no environmental benefit.

D. How Does EPA Determine the De Minimis Threshold?

    The EPA has previously considered options and taken comment on how 
to set de minimis levels to determine applicability of general 
conformity requirements. The following is a summary of the options 
previously considered and the methodology used in setting de minimis 
levels. In this final rule, the EPA is using the same methodology to 
set PM2.5 de minimis levels that the Agency previously used 
for other NAAQS pollutants.
    In the preamble to the proposal for General Conformity Regulations 
(58 FR 13841), EPA recognized that the very broad definition of Federal 
action in the statute and the number of Federal agencies subject to the 
conformity requirements could create a requirement for individual 
conformity decisions in the thousands per day. To avoid creating an 
unreasonable administrative burden, EPA considered options for 
mechanisms to focus the efforts of affected agencies on key actions 
with significant environmental impact, rather than all actions. Prior 
to that proposal, EPA consulted with numerous Federal agencies, 
environmental groups, State and local air quality agencies, building 
industry representatives, and others. Following consultation, EPA 
initially proposed a de minimis level similar to that specified by EPA 
for modifications to major stationary sources under the CAA 
preconstruction review programs. Consequently, the de minimis levels 
proposed for general conformity were chosen to correspond to the 
emission rates defined in 40 CFR 51.165 (NSR) and 51.166 (prevention of 
significant deterioration) as ``significant.'' Activities with 
emissions impacts below the proposed de minimis levels would not 
require conformity determinations.
    After EPA received comments on this proposal, we responded in the 
preamble to the final General Conformity Regulations (58 FR 63228) and 
stated:

    ``Given the need to choose a threshold based on air quality 
criteria and one that avoids coverage of less significant projects, 
and in response to certain comments, the de minimis levels for 
conformity analyses in the final rule are based on the Act's major 
stationary source definitions-not the significance levels as 
proposed-for the various pollutants. Use of the de minimis levels 
assures that the conformity rule covers only major Federal actions. 
Under the major source definition, for example, the levels for ozone 
would range from 10 tons/year (VOC and NOX) for an 
extreme ozone nonattainment area to 100 tons/year for marginal and 
moderate areas, not from 10 tons/year to 40 tons/year as proposed. 
The de minimis levels proposed were generally those used to define 
when modifications to existing stationary sources require 
preconstruction review. It was pointed out to EPA in comments on the 
proposal that these thresholds would result in the need to perform a 
conformity analysis and determination for projects that constituted 
a `modification' to an existing source but not a `major' source in 
some cases. The EPA agrees that conformity applies more 
appropriately to `major' source and after careful consideration has 
decided to revise its original proposal in the final rule to use the 
emissions levels that define a major source, except as described 
above for lead. The definition of a major source under the amended 
Act is explained in more detail in the April 16, 1992 Federal 
Register in the EPA's General Preamble to Title I (57 FR 13498). 
Section 51.853(b)(3) of the rule has also been revised to remove the 
provisions that would automatically lower the de minimis levels to 
that established for stationary sources by the local air quality 
agency. In keeping with its conclusion that only major sources 
should be subject to conformity review, EPA agrees that a zero 
emissions threshold as established by some local agencies, should 
not be required by this rule.''

    The EPA adopts this rationale for the de minimis levels we are 
setting for PM2.5 in this final action.
    This mechanism of relying on the major stationary source levels in 
the statute as de minimis levels for conformity has worked well over 
the last 12 years to lessen the administrative burden of Federal 
agencies for actions that emit relatively low emissions while 
addressing actions with significant emissions that could affect 
attainment of the NAAQS. The EPA believes it is appropriate to continue 
to use major stationary source levels as de minimis levels for the 
PM2.5 NAAQS in line with past practice and recognizing that 
Congress generally concluded it was appropriate to apply more stringent 
air quality review requirements to major sources. For this reason, EPA 
has decided to use this reasonable and effective mechanism for setting 
de minimis levels for PM2.5.
    The EPA proposed regulations to implement the new particulate 
matter standard (70 FR 65984) on November 1, 2005). In the preamble to 
that proposal, EPA included a discussion about the key pollutants 
potentially contributing to PM2.5 concentrations in the 
atmosphere which are direct PM2.5 emissions, SO2, 
NOX, VOC and ammonia (70 FR 65998). While EPA recognized 
that SO2, NOX, VOC and ammonia are precursors of 
PM2.5 in the scientific sense because these pollutants can 
contribute to the formation of PM2.5 in the ambient air, the 
degree to which these individual precursors and pollutants contribute 
to PM2.5 formation in a given location is complex and 
variable. For ammonia, there is uncertainty about emissions inventories 
and the potential efficacy of control measures from location to 
location. For VOC, the role and relationship of gaseous organic 
material in the formation of organic PM remains complex and further 
research and technical tools are needed to better characterize 
emissions inventories for specific VOC compounds. In light of these 
factors, EPA proposed in its rule to implement the PM2.5 
NAAQS that States are not required to address VOC's or ammonia as 
PM2.5 nonattainment plan precursors, unless the State or EPA 
makes a finding that VOC's or ammonia significantly contribute to a 
PM2.5 nonattainment problem in the State or to other 
downwind air quality concerns. For NOX EPA proposed that 
States are required to address NOX under all aspects of the 
program, unless the State and EPA makes a finding that NOX 
emissions from sources in the State do not significantly contribute to 
the PM2.5 problem in a given area or to other downwind air 
quality concerns. For SO2 EPA proposed that States are 
required to address SO2 as a PM2.5 nonattainment 
precursor. Therefore, for the purposes of general conformity 
applicability, VOC's and ammonia emissions are only considered 
PM2.5 precursors in nonattainment areas where either a State 
or EPA has made a finding that they significantly contribute to the 
PM2.5 problem in a given area or to other downwind air 
quality concerns; 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; and SO2 are 
always considered a PM2.5 precursor. The EPA's proposed 
implementation strategy for the PM2.5 standard included 
options for addressing PM2.5 precursors in other air quality 
planning programs (e.g., New Source Review for stationary sources). The 
public has had the opportunity to comment on these options during the 
comment period for that rulemaking. The EPA will consider those 
comments in its final PM2.5 implementation rule. Today's 
final rule should not be interpreted as prejudging our decision on the 
PM2.5 precursor requirements that will be finalized in the 
PM2.5 implementation rulemaking. Our final rule for the 
implementation proposal will reflect how PM2.5 precursors 
should

[[Page 40423]]

best be considered in those air quality planning programs and the 
comments received on that proposal. While EPA's final decisions on 
PM2.5 precursors must be legally consistent, EPA could take 
differing positions with respect to various precursors in other 
programs (e.g., New Source Review for stationary sources) as 
appropriate to the programmatic needs, technical information, legal 
requirements and pollution sources relevant to the differing programs.
    The EPA notes, however, that if in the future we change our legal 
rationale or technical basis for considering PM2.5 
precursors among the various air quality planning programs from the 
positions currently under consideration as a result of comments 
received on the PM2.5 implementation strategy proposal, such 
changes could necessitate a subsequent revision to the general 
conformity rule. In the case where an amendment to the General 
Conformity regulations is needed to reflect an alternative approach to 
considering PM2.5 precursors, EPA would conduct such a 
revision through full public notice and comment rulemaking.

III. Response to Comments

    The proposed rule published on April 5, 2006 solicited comments on 
establishing 100 tons per year of PM2.5 direct or precursor 
emissions as the de minimis threshold for General Conformity 
applicability. Three comments were received, one in support of the 
proposed de minimis level, and two other comments suggesting lower 
levels. Responses to these comments follow.

A. De Minimis Level for Prescribed Burning

1. Comment
    A commenter stated that ``leaving out prescribed burning with its 
release of fine particulate matter and mercury is absolutely wrong.'' 
In addition, the commenter stated that he does not understand why EPA 
does not address the way certain Federal agencies, like the National 
Park Service, engage in prescribed burning on Federal lands and that 
EPA needs to address this ``wrongdoing.''
2. Response
    To the extent that this comment is stating that prescribed burning 
should be regulated as an activity by the General Conformity rule, such 
comment is beyond the scope of this action since this rulemaking does 
not concern any substantive requirements for any Federal activities nor 
does it address ways in which a Federal activity such as prescribed 
burning can be found to conform to an applicable implementation plan. 
EPA is currently considering whether to promulgate proposed revisions 
to the General conformity rule, including ways in which activities can 
be found to conform, and if such a rule were proposed in the future, 
EPA encourages the commenter to submit comments at that time. To the 
extent that the commenter intended his comment to mean that EPA should 
not promulgate a de minimis level for prescribed burning activities, 
EPA notes that the General Conformity regulations are not structured to 
provide differing de minimis levels for different types of Federal 
activities. The EPA has proposed uniform de minimis emission rates for 
all Federal activities independent of their source because pollution is 
pollution, whether caused by prescribed burning or any other Federal 
activity. In other words, all of the de minimis levels are based on 
levels of pollution impact from all types of federal activities, 
whatever they may be. Prescribed burning activities do not produce any 
new type of pollution which would necessitate a different type of de 
minimis level or no level at all. The EPA believes that the General 
Conformity rule's de minimis thresholds should provide for the uniform 
treatment of air pollution emissions regardless of their source.

B. De Minimis Level for Direct PM2.5 Emissions

1. Comment
    One commenter suggested lower de minimis levels for directly 
emitted PM2.5. The commenter proposed that the de minimis 
level for emissions of direct PM2.5 should be set 
significantly lower than 100 tons per year--in the range of 25-50 tons 
per year in areas that are likely to attain the PM2.5 NAAQS 
within 5 years, and a level of 10-25 tons per year in areas that are 
likely to take more than five years to achieve the NAAQS.
2. Response
    The intent of the de minimis levels is to assure that the General 
Conformity rule covers only major Federal actions that are major 
sources of emission. The Act in section 302(j) defines a major source 
as meaning ``any stationary facility or source of air pollutants which 
directly emits, or has the potential to emit, one hundred tons per year 
or more of any air pollutant (including any major emitting facility or 
source of fugitive emissions of any such pollutant, as determined by 
rule by the Administrator).'' This definition provides a Congressional 
threshold for a major source. As discussed in the preamble of the 
proposal, EPA is using the same methodology to set the de minimis level 
for PM2.5 as it did for the other NAAQS pollutants (with the 
exception of lead). This methodology is based on a level found in 
statute as defining major stationary sources of air pollution. The 
commenter suggests a sliding scale for the direct PM2.5 de 
minimis level based on the severity of the attainment problem which is 
akin to a classification scheme. A classification scheme was 
constructed for PM10 non-attainment areas and the Act 
provides for a lower major sources definition threshold of 70 tons per 
year in section 189(b)(3) for PM10 areas classified as 
serious. The EPA designated all PM2.5 nonattainment areas 
under subpart 1 of the Act. Subpart 1 does not mandate a classification 
scheme for nonattainment areas based on the severity of an area's air 
quality problem. Therefore, there is no basis for EPA to determine in 
this rulemaking what would constitute a serious PM2.5 
nonattainment problem and set different de minimis levels based on 
seriousness of the air quality problem. Absent a classification scheme 
for PM2.5, EPA does not believe that basing the de minimis 
levels on differing air quality levels is warranted at this time. If a 
different classification approach is taken in the PM2.5 
implementation rule, we may consider addressing this issue differently.

IV. Summary of the Action

    The EPA is revising the tables in sub-paragraphs (b)(1) and (b)(2) 
of 40 CFR 51.853 and 40 CFR 93.153 by adding the de minimis emission 
levels for PM2.5. The EPA is establishing the proposed 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. The precursors for the purposes of general conformity 
applicability are, VOC's and ammonia emissions are only considered 
PM2.5 precursors in nonattainment areas where either a State 
or EPA has made a finding that they significantly contribute to the 
PM2.5 problem in a given area or to other downwind air 
quality concerns; 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; and SO2 
emissions are always considered a PM2.5 precursor. Since EPA 
did not propose any classifications for the PM2.5 
nonattainment areas, EPA is not

[[Page 40424]]

establishing PM2.5 de minimis emission levels for higher 
classified nonattainment areas. This action will maintain the 
consistency between the conformity de minimis emission levels and the 
size of a major stationary source under the Act (section 302(j) and 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).

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and, therefore, subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
regulation that may:
    1. Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    3. Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    4. Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that these revisions to the regulations are considered a 
``significant regulatory action'' because although they do not impose 
any additional requirements on other Federal agencies, they do affect 
the process Federal agencies use to determine applicability of existing 
requirements. As such, this action was submitted to OMB for review.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an Agency to 
prepare a regulatory flexibility analysis of any regulation subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute unless the Agency certifies the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's action on small 
entities, small entity is defined as:
    1. A small business that is a small industrial entity as defined in 
the U.S. Small Business Administration (SBA) size standards. (See 13 
CFR 121.201);
    2. A governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and
    3. A small organization that is any not-for-profit enterprise which 
is independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's regulation 
revisions, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Today's 
action 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.

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 actions with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that these revisions to the regulations do 
not contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and Tribal governments, in the 
aggregate, or the private sector in any 1 year. Thus, today's 
regulation revisions are not subject to the requirements of sections 
202 and 205 of the UMRA.
    The EPA has determined that these regulation revisions contain no

[[Page 40425]]

regulatory requirements that may significantly or uniquely affect small 
governments, including Tribal governments.

E. Executive Order 13132: Federalism

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

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' This determination is stated 
below.
    These regulation revisions do not have Tribal implications as 
defined by Executive Order 13175. They do not have a substantial direct 
effect on one or more Indian Tribes, since no Tribe has to demonstrate 
conformity for their actions. Furthermore, these regulation revisions 
do not affect the relationship or distribution of power and 
responsibilities between the Federal government and Indian Tribes. The 
CAA and the Tribal Air Rule establish the relationship of the Federal 
government and Tribes in developing plans to attain the NAAQS, and 
these revisions to the regulations do nothing to modify that 
relationship. Because these regulation revisions do not have Tribal 
implications, Executive Order 13175 does not apply.

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

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

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

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

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 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.
    However, EPA will encourage the Federal agencies to consider the 
use of such standards, where appropriate, in the implementation of the 
General Conformity Regulations.

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

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health environmental effects of its programs, policies, and activities 
on minorities and low-income populations.
    The EPA believes that these revisions to the regulations should not 
raise any environmental justice issues. The revisions to the 
regulations would, if promulgated revise procedures for other Federal 
agencies to follow. They do not disproportionately affect the health or 
safety of minority or low income populations. The EPA encourages other 
agencies to carefully consider and address environmental justice in 
their implementation of their evaluations and conformity 
determinations.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. It requires that a Major rule cannot take effect until 
60 days after it is published in the Federal Register. This action is 
not a ``major rule'' as defined by 5 U.S.C. 804(2). Therefore this rule 
will be effective July 17, 2006.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

[[Page 40426]]

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: July 11, 2006.
Stephen L. Johnson,
Administrator.

0
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--[AMENDED]

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

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

Subpart W--[Amended]

0
2. Section 51.852 is amended by removing the ``; and'' at the end of 
paragraph (1) and adding a period in its place and adding paragraph (3) 
to definition of ``Precursors of criteria pollutant'' to read as 
follows:


Sec.  51.852  Definitions.

* * * * *
    Precursors of a criteria pollutant are:
* * * * *
    (3) For PM2.5:
    (i) Sulfur dioxide (SO2) in all PM2.5 
nonattainment and maintenance areas,
    (ii) Nitrogen oxides in all PM2.5 nonattainment and 
maintenance areas unless both the State and EPA determine that it is 
not a significant precursor, and
    (iii) Volatile organic compounds (VOC) and ammonia (NH3) 
only in PM2.5 nonattainment or maintenance areas where 
either the State or EPA determines that they are significant 
precursors.
* * * * *

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


Sec.  51.853  Applicability.

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

------------------------------------------------------------------------
                                                               Tons/year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
    Serious NAA's............................................         50
    Severe NAA's.............................................         25
    Extreme NAA's............................................         10
    Other ozone NAA's outside an ozone transport region......        100
Other ozone NAA's inside an ozone transport region:
    VOC......................................................         50
    NOX......................................................        100
Carbon monoxide: All NAA's...................................        100
SO2 or NO2: All NAA's........................................        100
PM-10:
    Moderate NAA's...........................................        100
    Serious NAA's............................................         70
PM2.5:
    Direct emissions.........................................        100
    SO2......................................................        100
    NOX (unless determined not to be a significant precursor)        100
    VOC or ammonia (if determined to be significant                  100
     precursors).............................................
Pb: All NAA's................................................         25
------------------------------------------------------------------------

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

------------------------------------------------------------------------
                                                               Tons/year
------------------------------------------------------------------------
Ozone (NOX, SO2 or NO2):
    All Maintenance Areas....................................        100
Ozone (VOC's):
    Maintenance areas inside an ozone transport region.......         50
    Maintenance areas outside an ozone transport region......        100
Carbon monoxide: All Maintenance Areas.......................        100
PM-10: All Maintenance Areas.................................        100
PM2.5:
    Direct emissions.........................................        100
    SO2......................................................        100
    NOX (unless determined not to be a significant precursor)        100
    VOC or ammonia (if determined to be significant                  100
     precursors).............................................
Pb: All Maintenance Areas....................................         25
------------------------------------------------------------------------


[[Page 40427]]

* * * * *

PART 93--[AMENDED]

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

    Authority: 21 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart B--[Amended]

0
5. Section 93.152 is amended by removing the ``; and'' at the end of 
paragraph (1) and adding a period in its place and adding paragraph (3) 
to definition of ``Precursors of criteria pollutant'' to read as 
follows:


Sec.  93.152  Definitions.

* * * * *
    Precursors of a criteria pollutant are:
* * * * *
    (3) For PM2.5:
    (i) Sulfur dioxide (SO2) in all PM2.5 
nonattainment and maintenance areas,
    (ii) Nitrogen oxides in all PM2.5 nonattainment and 
maintenance areas unless both the State and EPA determine that it is 
not a significant precursor, and
    (iii) Volatile organic compounds (VOC) and ammonia (NH3) 
only in PM2.5 nonattainment or maintenance areas where 
either the State or EPA determines that they are significant 
precursors.
* * * * *

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


Sec.  93.153  Applicability.

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

------------------------------------------------------------------------
                                                               Tons/year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
  Serious NAA's..............................................         50
  Severe NAA's...............................................         25
  Extreme NAA's..............................................         10
  Other ozone NAA's outside an ozone transport region........        100
Other ozone NAA's inside an ozone transport region:
  VOC........................................................         50
  NOX........................................................        100
Carbon monoxide: All NAA's...................................        100
SO2 or NO2: All NAA's........................................        100
PM-10:
  Moderate NAA's.............................................        100
  Serious NAA's..............................................         70
PM2.5:
  Direct emissions...........................................        100
  SO2........................................................        100
  NOX (unless determined not to be a significant precursor)..        100
  VOC or ammonia (if determined to be significant precursors)        100
Pb: All NAA's................................................         25
------------------------------------------------------------------------

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

------------------------------------------------------------------------
                                                               Tons/year
------------------------------------------------------------------------
Ozone (NOX, SO2 or NO2):
  All Maintenance Areas......................................        100
Ozone (VOC's):
  Maintenance areas inside an ozone transport region.........         50
  Maintenance areas outside an ozone transport region........        100
Carbon monoxide: All Maintenance Areas.......................        100
PM-10: All Maintenance Areas.................................        100
PM2.5:
  Direct emissions...........................................        100
  SO2........................................................        100
  NOX (unless determined not to be a significant precursor)..        100
  VOC or ammonia (if determined to be significant precursors)        100
Pb: All Maintenance Areas....................................         25
------------------------------------------------------------------------

* * * * *
 [FR Doc. E6-11241 Filed 7-14-06; 8:45 am]

BILLING CODE 6560-50-P
