1
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
51
and
93
[
OAR­
2004­
0491;
FRL­
]

[
RIN
2020­
AH93]

Proposed
Revisions
to
the
General
Conformity
Regulations
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Proposed
rulemaking.

SUMMARY:
The
EPA
is
proposing
to
revise
its
regulations
relating
to
the
Clean
Air
Act
(
CAA)
requirement
that
Federal
actions
conform
to
the
appropriate
State,
Tribal
or
Federal
implementation
plan
for
attaining
clean
air
("
general
conformity").

DATES:
Comments
on
the
revisions
proposed
today
must
be
received
on
or
before
[
insert
date
60
days
after
publication
in
the
Federal
Register].

ADDRESSES:
Submit
comments,
identified
by
Docket
ID
No.

OAR­
2004­
0491,
by
one
of
the
following
methods:


Federal
eRulemaking
Portal:
http://
www.
regulations.
gov.

Follow
the
on­
line
instructions
for
submitting
comments.


Agency
Web
site:
http://
www.
epa.
gov/
edocket.
EDOCKET,

EPA's
electronic
public
docket
and
comment
system,
is
EPA's
preferred
method
for
receiving
comments.
Follow
the
on­
line
instructions
for
submitting
comments.
2

E­
mail:
A­
and­
R­
Docket@
epa.
gov
attention
Docket
No.

OAR­
2004­
0491.


Fax:
202­
566­
1741.


Mail:
General
Conformity
Revisions,
Docket
ID
No.
OAR­

2004­
0491,
Environmental
Protection
Agency
Docket
Center,

Mail
Code:
6102T,
1200
Pennsylvania
Avenue,
N.
W.,

Washington,
D.
C.
20460.
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if
possible.
In
addition,
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comments
on
the
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collection
provisions
to
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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:
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Conformity
Revisions,
Docket
ID
No.
OAR­
2004­
0491.,
Environmental
Protection
Agency
Docket
Center,
EPA
West,
Room
B­
102,
1301
Pennsylvania
Avenue,

N.
W.,
Washington,
D.
C.
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Instructions:
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comments
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ID
No.
OAR­
2004­

0491.
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EPA's
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comments
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edocket,
3
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For
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public
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visit
EDOCKET
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or
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4
Federal
Register
of
May
31,
2002
(
67
FR
38102).

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EDOCKET
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at
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Docket,

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DC,
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B102,
1301
Constitution
Ave.,
NW,

Washington,
DC.
The
Public
Reading
Room
is
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Reading
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and
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number
for
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is
(
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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)
54l­
3037
or
by
e­
mail
at
coda.
tom@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

Table
of
Contents
I.
Background
A.
What
Is
General
Conformity
and
How
Does
it
Affect
Air
Quality?
5
B.
Why
is
EPA
Proposing
Revisions
to
These
Regulations
at
This
Time?

II.
Summary
of
the
Existing
General
Conformity
Regulations
A.
Applicability
Analysis
B.
Conformity
Determination
C.
Review
Process
III.
Summary
of
the
Proposed
Revisions
to
the
General
Conformity
Regulations
A.
Categories
of
Proposed
Revisions
to
the
General
Conformity
Regulations
B.
What
Innovative
and
Flexible
Approaches
are
Being
Proposed?
C.
What
Streamlining
and
Burden
Reduction
Measures
are
Being
Proposed?
D.
What
Revisions
Provide
Tools
and
Guidance
for
Transitioning
to
New
or
Revised
NAAQS?
E.
What
Revisions
are
Being
Proposed
at
the
Request
of
Other
Agencies?
F.
What
are
Some
of
the
Clarifications
to
the
Existing
Regulations
That
are
Being
Proposed?

IV.
Detailed
Discussion
of
the
Proposed
Revisions
A.
40
CFR
51
Subpart
W
 
Determining
Conformity
of
General
Federal
Actions
to
State
or
Federal
Implementation
Plans
B.
40
CFR
93.150
 
Prohibition
C.
40
CFR
93.151
 
State
Implementation
Plan
(
SIP)
Revision
D.
40
CFR93.152
 
Definitions
E.
40
CFR
93.153
 
Applicability
Analysis
F.
40
CFR
93.154
 
Federal
Agencies
Responsibility
for
a
Conformity
Determination
G.
40
CFR
93.155
 
Reporting
Requirements
H.
40
CFR
93.156
 
Public
Participation
I.
40
CFR
93.157
 
Re­
evaluation
of
Conformity
J.
40
CFR
93.158
 
Criteria
for
Determining
Conformity
for
General
Federal
Actions
K.
40
93.159
 
Procedures
for
Conformity
Determinations
for
General
Federal
Actions
L.
401
CFR
93.160
 
Mitigation
of
Air
Quality
Impacts
M.
40
CFR
93.161
 
Conformity
Evaluations
for
Installations
With
Facility­
Wide
Emission
Budget
N.
40
CFR
93.162
 
Emissions
Beyond
the
Time
Period
Covered
by
the
Applicable
SIP
or
TIP
6
O.
40
CFR
93.163
 
Timing
of
Offsets
and
Mitigation
Measures
P.
40
CFR
93.164
 
Inter­
Precursor
Offsets
and
Mitigation
Measures
Q.
40
CFR
93.165
 
Early
Emission
Reduction
Credit
Program
V.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
B.
Paperwork
Reduction
Act
C.
Regulatory
Flexibility
Act
D.
Unfunded
Mandates
Reform
Act
E.
Executive
Order
13132:
Federalism
F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
H.
Executive
Order
13211:
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
I.
National
Technology
Transfer
Advancement
Act
J.
Executive
Order
12898:
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
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
national
ambient
air
quality
standards
(
NAAQS)
or
interfering
with
the
purpose
of
a
State
implementation
plan
(
SIP),
Tribal
implementation
plan
(
TIP)
or
Federal
implementation
plan(
FIP).

In
the
CAA,
Congress
recognized
that
actions
taken
by
Federal
agencies
could
affect
State,
Tribe,
and
local
7
agencies'
ability
to
attain
and
maintain
the
NAAQS.

Congress
added
section
176(
c)
(
42
USC
7506)
to
the
CAA
to
ensure
Federal
agencies
=

proposed
actions
conform
to
the
applicable
SIP,
TIP
or
FIP
for
attaining
and
maintaining
the
NAAQS.
That
section
requires
Federal
entities
to
find
that
the
emissions
from
the
Federal
action
will
not
exceed
emissions
budgets
established
in
the
SIP,
TIP
or
FIP
or
not
otherwise
interfere
with
the
State
=

s
or
Tribe's
ability
to
attain
and
maintain
the
NAAQS.

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

B.
Why
is
EPA
Proposing
Revisions
to
These
Regulations
at
This
Time?
8
The
EPA
has
recently
proposed
to
revise
the
General
Conformity
Regulations
to
include
de
minimis
emission
levels
for
particulate
matter
with
an
aerodynamic
diameter
equal
to
or
less
than
2.5
microns
(
PM2.5)
and
its
precursors.
Otherwise,
EPA
has
not
revised
the
General
Conformity
Regulations
since
they
were
promulgated
in
1993.
Since
that
time,
EPA
and
other
Federal
agencies
have
gained
experience
with
the
implementation
of
the
existing
regulations
and
have
identified
several
issues
with
their
implementation.
Therefore,
EPA
initiated
a
process
to
review,
revise
and
streamline
the
regulations.

In
addition,
EPA
has
recently
issued
regulations
to
implement
the
revised
ozone
standard
(
69
FR
23951,
April
30,
2004)
and
proposed
regulations
to
implement
the
new
particulate
matter
standard
(
70
FR
65984,
November
1,

2005).
These
regulations
could
affect
the
timing
and
process
for
general
conformity
determinations.
State
and
local
air
quality
agencies
are
in
the
process
of
developing
revised
SIPs
to
attain
the
new
standards
and
knowledge
of
the
proposed
revisions
to
the
General
Conformity
Regulations
may
be
helpful
to
the
State,
Tribe,

and
local
agencies
as
well
as
the
Federal
agencies
in
developing
and
commenting
on
the
proposed
SIP
revisions.

II.
How
are
the
Existing
Regulations
Implemented?
9
The
existing
regulations
do
not
specifically
identify
the
roles
of
Indian
Tribes
nor
the
applicability
of
the
regulations
to
TIPs.

Federal
agencies
and
other
parties
involved
in
the
conformity
process
have
found
that
in
implementing
the
existing
General
Conformity
Regulations
their
process
falls
in
to
three
phases:
(
A)
Applicability
analysis,
(
B)

Conformity
determination,
and
(
C)
Review
process.
Besides
ensuring
that
the
Federal
actions
are
in
conformance
with
the
SIP,
the
regulations
encourage
consultation
between
the
Federal
agency
and
the
State
or
local
air
pollution
control
agencies
before
and
during
the
environmental
review
process.

A.
Applicability
Analysis
The
National
Highway
System
Designation
Act
of
1995,

(
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
and
maintenance
areas
under
section
175A
of
the
CAA
only.

Therefore,
only
actions
in
designated
nonattainment
and
maintenance
areas
are
subject
to
the
regulation.
In
addition,
the
regulations
recognize
that
the
vast
majority
of
Federal
actions
do
not
result
in
significant
increase
in
emissions
and,
therefore,
include
a
number
of
10
exemptions
such
as
de
minimis
emission
levels
based
on
the
type
and
severity
of
the
nonattainment
problem.

In
the
applicability
analysis
phase,
the
Federal
agency
determines:

1.
Whether
the
action
will
occur
in
a
nonattainment
or
maintenance
area;

2.
Whether
one
of
the
specific
exemptions
apply
to
the
action;

3.
Whether
the
Federal
agency
has
included
the
action
on
its
list
of
"
presumed
to
conform"
actions;
or
4.
Whether
the
total
direct
and
indirect
emissions
are
below
or
above
the
de
minimis
levels.

Under
the
current
regulations,
the
applicability
analysis
phase
requires
Federal
agencies
to
determine
if
the
action
is
considered
"
regionally
significant,"
i.
e.,

equal
to
or
greater
than
ten
percent
of
the
area's
emission
inventory
for
the
pollutant.
If
the
action
is
regionally
significant,
Federal
agencies
must
conduct
a
conformity
determination
for
the
action
even
though
the
emissions
caused
by
the
action
are
below
the
de
minimis
levels,
the
action
is
presumed
to
conform
or
the
action
is
otherwise
exempt.

B.
Conformity
Determination
11
When
the
applicability
analysis
shows
that
the
action
must
undergo
a
conformity
determination,
Federal
agencies
must
first
show
that
the
action
will
meet
all
SIP
control
requirements
such
as
reasonably
available
control
measures,
and
the
emissions
from
the
action
will
not
interfere
with
the
timely
attainment
of
the
standard,
the
maintenance
of
the
standard
or
the
area's
ability
to
achieve
an
interim
emission
reduction
milestone.
Federal
agencies
then
must
demonstrate
conformity
by
meeting
one
or
more
of
the
methods
specified
in
the
regulation
for
determining
conformity:

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

2.
Obtaining
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
12
current
regional
emission
analysis
for
the
area's
transportation
plan
or
transportation
improvement
program,

5.
Fully
offset
the
total
direct
and
indirect
emissions
by
reducing
emissions
of
the
same
pollutant
or
precursor
in
the
same
nonattainment
or
maintenance
area,

or
6.
Conducting
air
quality
modeling
that
demonstrates
that
the
emissions
will
not
cause
or
contribute
to
new
violations
of
the
standards,
or
increase
the
frequency
or
severity
of
any
existing
violations
of
the
standards.
Air
quality
modeling
cannot
be
used
to
demonstrate
conformity
for
emissions
of
ozone
precursors
or
nitrogen
dioxide
(
NO2).
As
stated
in
EPA's
proposal
of
the
current
regulations
(
58
FR
13845),
due
to
the
complex
interaction
of
the
ozone
precursors,
the
regional
nature
of
the
ozone
and
NO2
problems,
and
limitations
of
current
air
quality
models,
it
is
not
generally
appropriate
to
use
an
air
quality
model
to
determine
the
impact
on
ozone
or
NO2
concentrations
from
a
single
emission
source
or
a
single
Federal
action.

C.
Review
Process
As
public
bodies,
Federal
agencies
must
make
their
conformity
determinations
through
a
public
process.
The
General
Conformity
Regulations
require
Federal
agencies
to
13
provide
notice
of
the
draft
determination
to
the
applicable
EPA
Regional
Office,
the
State
and
local
air
quality
agencies,
the
local
MPO
and,
where
applicable,
the
Federal
land
manager(
s).
In
addition,
the
regulations
require
Federal
agencies
to
provide
at
least
a
30­
day
comment
period
on
the
draft
determination
and
make
the
final
determination
public.
State
agencies
and
the
public
can
appeal
the
final
determination
in
the
U.
S.
Courts
system.
Failure
by
a
Federal
agency
to
follow
the
technical
and
procedural
requirements
can
result
in
an
adverse
court
decision.

III.
Summary
of
The
Proposed
Revisions
to
the
General
Conformity
Regulations
A.
Categories
of
Proposed
Revisions
to
the
General
Conformity
Regulations
In
accordance
with
the
requirements
of
section
176(
c)(
4)(
C)
of
the
CAA,
when
EPA
promulgated
General
Conformity
Regulations
in
1993
it
also
promulgated
regulations
at
40
CFR
51
subpart
W
(
§
§
850­
860)
which
required
States
to
adopt
and
submit
SIPs
for
General
Conformity.
In
August
2005,
Congress
passed
the
Safe,

Accountable,
Flexible,
Efficient
Transportation
Equity
Act:
A
Legacy
for
Users
(
SAFETEA­
LU)
which
eliminated
the
requirement
for
States
to
adopt
and
submit
General
14
Conformity
SIPs.
Therefore,
EPA
is
proposing
to
revise
its
regulations
to
make
the
adoption
and
submittal
of
the
General
Conformity
SIP
or
TIP
optional
for
the
State
or
Tribe.

Because
40
CFR
50
subpart
W
(
§
§
850
 
860)
essentially
duplicate
the
regulations
promulgated
at
40
CFR
93
subpart
B
(
§
§
150­
160),
EPA
is
proposing
to
delete
all
of
subpart
W
except
for
§
851.
In
the
proposed
revision
to
§
51.851,
EPA
would
require
that
if
a
State
or
Tribe
submits
a
General
Conformity
SIP
or
TIP
that
it
be
consistent
with
the
requirements
of
40
CFR
93
subpart
B.
In
addition,
EPA
is
proposing
to
add
a
provision
to
40
CFR
51.851
to
allow
the
States
and
Tribes
more
flexibility
to
streamline
the
conformity
process
conducted
under
their
SIP
or
TIP.

In
40
CFR
93
subpart
B,
EPA
is
proposing
to
make
only
specific
revisions
to
the
regulations
which
(
1)
clarify
the
process,
(
2)
delete
outdated
or
unnecessary
requirements,
(
3)
authorize
innovative
and
flexible
approaches,
(
4)
streamline
the
process
and
reduce
the
paperwork
burden,
(
5)
provide
transition
tools
for
implementing
new
standards,
(
6)
incorporate
revisions
requested
by
other
agencies,
and
(
7)
provide
a
better
explanation
of
regulations
and
policies.
15
Several
of
the
proposed
revisions
encourage
both
the
Federal
agencies
and
the
States
or
Tribes
to
take
actions
in
advance
of
the
project
environmental
review.
Such
advance
action
should
speed
the
review
process
for
the
individual
projects
and
reduce
the
delays
for
the
project
without
impairing
the
environmental
review.
The
EPA
invites
comment
on
this
approach.

B.
What
Innovative
and
Flexible
Approaches
are
Being
Proposed?

1.
The
EPA
is
proposing
to
add
a
new
section
(
40
CFR
93.161)
to
allow
for
a
facility­
wide
emission
budget
approach.
Under
this
approach,
Federal
facilities,
in
anticipation
of
future
action,
could
negotiate
a
facilitywide
emission
budget
with
the
appropriate
State,
Tribal
or
local
air
quality
agency
responsible
for
the
SIP
or
TIP.

The
State,
Tribe
or
local
agency
would
incorporate
the
facility­
wide
emission
budget
into
the
applicable
SIP
or
TIP
and
submit
it
to
EPA
for
approval.
If
the
Federal
agency
demonstrates
that
the
emissions
from
the
proposed
action
along
with
all
other
emissions
at
the
facility
are
within
the
EPA
approved
facility­
wide
emission
budget,
the
action
would
be
presumed
to
conform
and
a
conformity
determination
would
not
be
necessary.
16
2.
The
EPA
is
proposing
a
new
section
(
40
CFR
93.165)
to
explicitly
incorporate
the
use
of
early
emission
reduction
credits
into
the
regulations.
The
proposal
reflects
the
provisions
of
the
Airport
Early
Emission
Reduction
(
AERC)
guidance
developed
in
consultation
with
the
Federal
Aviation
Administration
(
FAA)
and
provides
a
similar
framework
for
other
Federal
agencies.

3.
The
EPA
is
proposing
a
new
section
(
40
CFR
93.164)
to
allow,
with
certain
limitations,
the
emission
of
one
precursor
of
a
criteria
pollutant
to
be
mitigated
or
offset
by
the
reduction
in
the
emissions
of
another
precursor
of
that
pollutant.

4.
The
EPA
is
proposing
a
new
section
(
40
CFR
93.163)
to
allow
alternate
schedules
for
mitigating
emissions
increases.
The
mitigation
timing
approach
could
allow
some
flexibility
for
Federal
agencies
and
States
or
Tribes
to
negotiate
a
program
for
some
emissions
mitigation
to
occur
in
future
years.
States
or
Tribes
could
consider
this
approach
to
accommodate
short­
term
increases
in
emissions
if
there
is
a
substantial
long­
term
reduction
in
emissions.

C.
What
Streamlining
and
Burden
Reduction
Measures
are
Being
Proposed?
17
1.
The
EPA
is
proposing
to
delete
the
provision
in
the
existing
regulation
which
required
Federal
agencies
to
conduct
a
conformity
determination
for
regionally
significant
actions
even
though
the
total
direct
and
indirect
emissions
from
the
action
were
below
the
de
minimis
emission
levels.

2.
The
EPA
is
proposing
additional
categories
of
actions
that
Federal
agencies
can
include
in
their
"
presume
to
conform"
lists
and
EPA
is
also
proposing
to
permit
States
or
Tribes
to
establish
in
their
General
Conformity
SIPs
or
TIPs
"
presume
to
conform"
lists
for
actions
within
their
State
or
Tribal
area.

3.
The
EPA
is
proposing
to
exempt
the
emissions
from
stationary
sources
permitted
under
the
minor
source
new
source
review
(
NSR)
programs
as
EPA's
existing
regulation
already
provides
for
exemptions
for
emissions
from
major
NSR
sources.

D.
What
Revisions
Provide
Tools
and
Guidance
for
Transitioning
to
New
or
Revised
NAAQS?

1.
The
EPA
is
proposing
to
revise
the
language
in
the
regulation
concerning
conformity
evaluations
for
existing
action
during
a
transition
to
new
nonattainment
designations
or
to
the
revised
regulations.
18
2.
The
EPA
is
proposing
requirements
for
the
implementation
of
the
grace
period
for
newly
designated
nonattainment
areas.

3.
The
EPA
is
proposing
alternate
methods
to
demonstrate
conformity
for
time
periods
beyond
those
covered
by
the
SIP
or
TIP.

4.
The
EPA
is
proposing
to
allow
States
or
Tribes
to
include
an
enforceable
commitment
in
the
SIP
or
TIP
to
address
future
emissions
from
a
Federal
action.

E.
What
Revisions
are
Being
Proposed
at
The
Request
of
Other
Agencies?

1.
Based
on
EPA's
Interim
Air
Quality
Policy
on
Wildland
and
Prescribed
Fires,
which
was
developed
in
consultation
with
Federal
land
managers,
EPA
is
proposing
to
include
a
presumption
of
conformity
for
prescribed
fires
that
are
in
compliance
with
approved
smoke
management
plans
(
SMPs).

2.
The
EPA
is
proposing
to
allow
Federal
agencies
to
obtain
emission
offsets
for
general
conformity
purposes
from
another
nearby
nonattainment
or
maintenance
area
of
equal
or
higher
nonattainment
classification
provided
the
emissions
from
that
area
contribute
to
violation
of
the
NAAQS
in
the
area
where
the
Federal
action
is
located
or
in
the
case
of
maintenance
areas,
the
emissions
from
the
19
nearby
area
contributed
in
the
past
to
the
violations
in
the
area
where
the
Federal
action
is
occurring.

3.
At
the
request
of
the
Department
of
Defense
(
DoD),
EPA
is
proposing
to
clarify
the
language
in
the
regulation
that
states
that
nothing
in
these
regulations
requires
the
release
of
classified
materials.
Also,
EPA
is
proposing
to
include
a
similar
clarification
for
CBI.

4.
Several
Federal
agencies
and
other
parties
involved
in
the
process
suggested
that
EPA
should
consider
exempting
construction
activity
emissions
from
the
conformity
regulations
requirements.
Although
the
existing
General
Conformity
Regulations
do
not
specifically
mention
construction
emissions,
they
implicitly
require
Federal
agencies
to
include
emissions
from
construction
activities
in
the
conformity
evaluation.

The
EPA
understands
the
concerns
of
the
other
Federal
agencies
and
in
the
discussion
about
the
revision
to
the
definition
of
"
caused
by,"
has
identified
a
number
of
ways
that
Federal
agencies
can
work
with
the
State,
Tribe,
and
local
agencies
to
ease
the
burden
of
reviewing
construction
emissions.
In
addition,
EPA
is
seeking
comment
on
the
possibility
of
exempting
short
term
(
one
to
two
years)
construction
projects
from
the
General
Conformity
Regulations.
20
F.
What
are
Some
of
the
Clarifications
to
the
Existing
Regulations
That
are
Being
Proposed?

1.
The
EPA
is
proposing
to
clarify
that
if
the
action
would
result
in
emissions
in
more
than
one
nonattainment
or
maintenance
area,
the
emissions
in
each
area
would
be
treated
as
if
they
result
from
a
separate
action.

2.
The
EPA
is
proposing
to
establish
procedures
to
follow
in
extending
the
6­
month
conformity
exemption
for
actions
taken
in
response
to
an
emergency.

3.
The
EPA
is
proposing
to
revise
the
procedures
that
can
be
used
to
demonstrate
conformity
with
the
applicable
SIP.

4.
The
EPA
is
proposing
to
revise
the
review
process
to
require
Federal
agencies
to
notify
Tribal
governments
in
the
nonattainment
or
maintenance
area.

5.
The
EPA
is
proposing
to
clarify
the
definition
of
several
terms
used
in
the
regulations.

6.
The
EPA
is
proposing
to
include
specific
language
to
identify
the
role
of
Indian
Tribes
and
TIPs.

IV.
Detailed
Discussion
of
the
Proposed
Revisions
A.
40
CFR
51
Subpart
W
 
Determining
Conformity
of
General
Federal
Actions
to
State
or
Federal
Implementation
Plans
21
Section
176(
c)(
4)
of
the
CAA
specifies
that
EPA
conformity
regulations
include
a
requirement
for
a
State
to
adopt
and
submit
to
EPA
for
approval,
a
SIP
to
implement
the
provisions
of
section
176(
c).
Section
6011
of
SAFETEA­
LU
revised
the
conformity
requirements
in
section
176(
c)
of
the
CAA.
Although
most
of
the
revisions
affected
the
Transportation
Conformity
requirements,

section
6011(
f)
and
(
g)
also
revised
the
General
Conformity
requirements.
Specifically,
section
6011(
f)

revised
section
176(
c)(
4)(
A)
of
the
CAA
by
including
a
requirement
that
the
regulations
must
be
periodically
updated
and
by
deleting
the
requirement
for
the
States
to
adopt
and
submit
a
General
Conformity
SIP.
Section
6011(
g)
requires
EPA
to
revise
its
conformity
regulations
by
August
2007
to
meet
the
revised
requirements.
The
EPA
does
not
interpret
this
provision
as
prohibiting
States
or
Tribes
from
voluntarily
adopting
and
submitting
General
Conformity
implementation
plans.
Therefore,
EPA
is
proposing
to
revise
40
CFR
51.851
to
make
the
adoption
and
submittal
of
the
General
Conformity
SIP
optional
for
the
State
and
eligible
federally­
recognized
Tribal
governments.

In
promulgating
the
General
Conformity
Regulations
in
1993,
EPA
published
two
sets
of
regulations:
40
CFR
51
22
subpart
W
(
§
§
850
through
869)
directed
States
to
adopt
and
submit
General
Conformity
SIPs
to
EPA
for
approval
and
40
CFR
93
subpart
B
(
§
§
150
through
160)
provided
the
requirements
for
Federal
agencies
to
follow
in
conducting
their
conformity
evaluations
before
EPA
approved
the
General
Conformity
SIP
for
the
area.
Section
40
CFR
51.851
directed
States
to
adopt
SIPs
meeting
the
requirements
of
40
CFR
51
subpart
W.
The
other
sections
in
subpart
W
repeat
the
requirements
found
in
40
CFR
93
subpart
B.
The
EPA
is
proposing
to
delete
§
§
40
CFR
51.850,
and
51.852
through
860
since
those
sections
merely
repeat
the
language
in
§
§
40
CFR
93.150
and
93.152
through
160
and
include
a
requirement
in
40
CFR
51.851(
a)
that
the
General
Conformity
SIP
or
TIP
must
meet
the
requirements
in
40
CFR
93
subpart
B.

In
addition,
EPA
is
proposing
several
revisions
to
§
51.851.

1.
The
EPA
is
proposing
to
divide
paragraph
(
b)
of
40
CFR
51.851
into
four
paragraphs
(
b,
c,
d,
and
e):

a.
Paragraph
(
b)
stating
that
until
EPA
approves
the
SIP
revision,
Federal
agencies
must
meet
the
requirements
of
40
CFR
part
93
subpart
B.

b.
Paragraph
(
c)
stating
that
after
EPA
approves
a
SIP
or
TIP
meeting
the
requirement
of
40
CFR
93
subpart
B,
23
or
portion
thereof,
the
Federal
agencies
must
meet
the
requirements
of
the
SIP
or
TIP
and
portions
of
40
CFR
93
subpart
B
if
not
included
in
the
approved
SIP
or
TIP.
In
addition,
the
proposed
paragraph
(
c)
states
that
the
previous
SIPs
remain
in
effect
until
EPA
approves
a
revision.

c.
Paragraph
(
d)
contains
the
requirement
that
the
SIP
or
TIP
can
be
no
less
stringent
than
40
CFR
93
subpart
B.

d.
Paragraph
(
e)
contains
the
requirement
that
the
SIP
or
TIP
can
be
no
more
stringent
that
the
requirement
in
40
CFR
93
subpart
B
unless
the
provisions
apply
to
non­

Federal
as
well
as
Federal
entities.

2.
The
EPA
is
proposing
to
add
a
new
provision
in
§
51.851,
which
allows
States
or
Tribes
to
include
in
their
SIP
or
TIP
a
list
of
actions
that
are
presumed
to
conform.

Since
§
§
40
CFR
51.850,
852
through
860
merely
repeats
the
language
in
§
§
40
CFR
93.150,
152
through
160,
deleting
§
§
51.850,
852
though
860
and
requiring
the
SIP
or
TIP
to
meet
the
requirements
in
part
93
subpart
B
will
not
change
the
SIP
or
TIP
requirements.
However,
deleting
the
sections
will
reduce
the
confusion
on
the
requirements
in
the
regulations
by
removing
the
duplicative
language.
In
addition,
EPA
can
revise
the
general
conformity
24
requirements
by
revising
only
one
set
of
regulations.

Although
States
or
Tribes
would
have
to
revise
any
SIPs
or
TIPs
which
are
in
place
when
EPA
revises
part
93
subpart
B
regulations,
this
would
not
be
an
additional
burden
since
they
would
have
to
revise
their
SIP
or
TIP
if
EPA
revised
the
part
51
subpart
W
regulations.

By
dividing
paragraph
(
b)
into
four
smaller
paragraphs,
EPA
is
attempting
to
simplify
the
language
to
make
the
requirements
more
understandable.
The
EPA
did
not
change
the
requirements
in
paragraph
(
b)
of
the
existing
regulations.

The
proposal
to
allow
the
States
or
Tribes
the
flexibility
to
adopt
as
part
of
the
General
Conformity
SIP
or
TIP
a
list
of
actions
that
are
presumed
to
conform
resulted
from
the
desire
of
some
States
to
reduce
the
need
to
spend
resources
on
reviewing
actions
which
are
known
to
conform.
Although
States
and
Tribes
are
not
obligated
to
adopt
a
"
presume
to
conform"
list
as
part
of
their
General
Conformity
SIP,
if
they
do
adopt
a
list
they
must
include
a
list
in
their
SIP
or
TIP.

B.
40
CFR
93.150
 
Prohibition
Section
93.150
establishes
the
general
prohibition
against
Federal
agencies
taking
actions
that
do
not
conform
with
the
SIP
and
requirements
for
the
Federal
25
agencies
to
make
the
conformity
determinations
following
the
procedures
of
subpart
B
of
part
93.
The
EPA
is
proposing
to
make
two
revisions
to
§
93.150.
First,
EPA
is
proposing
to
delete
the
language
in
paragraph
(
c)
of
that
section
and
reserves
that
paragraph.
Second,
EPA
is
proposing
to
add
a
new
paragraph
(
e)
to
the
section
to
state
that
if
an
action
occurs
in
more
that
one
nonattainment
area
that
each
area
must
be
evaluated
separately.

In
paragraph
(
c)
of
the
existing
regulations,
EPA
identified
categories
of
actions
that
were
not
subject
to
the
regulations
based
on
environmental
review
for
the
action
that
was
either
completed
or
underway
at
the
time
the
regulations
were
promulgated.
The
paragraph
was
based
on
the
environmental
reviews
(
either
the
conformity
determination
or
the
National
Environmental
Policy
Act
(
NEPA)
analysis)
being
completed
in
early
1994.

Therefore,
paragraph
(
c)
is
outdated
and
is
not
necessary
at
this
time.

In
the
new
paragraph
(
e)
in
§
93.150,
EPA
is
specifically
proposing
that
conformity
determinations
must
be
made
for
each
nonattainment
or
maintenance
area.
The
emissions
from
most
Federal
actions
or
projects
occur
within
one
nonattainment
or
maintenance
area,
however,
26
some
actions
or
projects
could
extend
across
area
boundaries,
causing
emissions
in
more
than
one
area.
A
facility
(
for
example,
a
national
park,
military
installation
or
an
airport)
could
be
located
in
multiple
counties
or
even
in
multiple
States.
Emissions
from
an
action
at
such
facilities
could
extend
across
the
nonattainment
or
maintenance
area
boundaries.
Some
Federal
actions,
such
as
rulemaking
or
rail
merger
approvals,
could
result
in
emissions
in
non­
contiguous
areas,
or
even
nationwide,
affecting
multiple
nonattainment
or
maintenance
areas.
The
existing
regulations
do
not
specify
how
actions
or
projects
affecting
multiple
areas
should
be
addressed.
Therefore,

EPA
is
proposing
that
emissions
from
actions
or
projects
be
treated
separately
for
each
nonattainment
and
maintenance
area
for
the
following
reasons:

1.
Federal
agencies
demonstrate
conformity
to
a
SIP,

TIP
or
FIP
that
are
developed
on
an
area­
specific
basis
and
SIPs
requirements
may
vary
from
one
area
to
another.

2.
The
General
Conformity
Regulations
exemptions
are
also
area­
specific.
For
example,
the
de
minimis
levels
are
based
upon
the
type
and
classification
of
the
nonattainment
or
maintenance
area.
27
3.
Section
176(
c)(
5)
of
the
CAA
limits
the
applicability
of
the
conformity
regulations
to
actions
in
nonattainment
and
maintenance
areas.
Therefore,
actions,

which
affect
broad
regions
encompassing
several
nonattainment,
maintenance
or
attainment
areas,
must
be
evaluated
based
only
on
the
portions
of
the
emissions
in
the
nonattainment
and
maintenance
areas.

C.
40
CFR
93.151
 
State
Implementation
Plan
(
SIP)

Revision
The
main
purpose
of
§
93.151
is
to
specify
that
the
regulations
in
part
93
subpart
B
apply
to
Federal
actions
unless
the
State
or
Tribe
adopts
and
EPA
approves
a
General
Conformity
SIP
or
TIP
for
the
area.
The
EPA
is
not
proposing
to
change
the
purpose
of
the
section,
but
is
proposing
to
revise
the
section
to
clarify
its
wording.

The
existing
regulations
included
statements
about
the
stringency
of
the
SIP
compared
to
the
requirements
in
subpart
B
of
part
93.
The
EPA
is
proposing
to
delete
those
statements
because
they
duplicate
statements
in
40
CFR
51.851
which
specifies
the
requirements
for
the
SIP
and
TIP.

D.
40
CFR
93.152
 
Definitions
Section
93.152
provides
the
definition
of
terms
used
in
the
regulations.
The
EPA
is
proposing
to
revise
twelve
28
of
the
definitions,
add
eleven
new
terms
and
delete
one
term
as
follows:

Applicable
implementation
plan
or
applicable
SIP.

The
EPA
is
proposing
two
minor
revisions
to
the
definition.
First,
EPA
is
proposing
to
correct
the
citation
for
the
SIP
approval
and
second,
EPA
is
proposing
to
clarify
the
definition
by
adding
a
parenthetical
phrase
to
clarify
that
the
term
includes
an
approved
Tribal
implementation
plan
(
TIP).
The
requirements
for
eligible
Tribes
are
found
in
40
CFR
49.6.

Applicability
analysis.
The
EPA
is
proposing
to
add
this
new
term
to
describe
the
process
of
determining
if
the
Federal
agency
must
conduct
a
conformity
determination
for
its
action.

Areawide
air
quality
modeling
analysis.
The
EPA
is
proposing
to
clarify
this
definition
by
making
a
minor
wording
change
and
by
including
photochemical
grid
model
in
the
definition.
Also,
EPA
is
proposing
to
add
an
example
of
the
type
of
models
that
could
be
used
for
the
areawide
air
quality
modeling
analysis.

Caused
by.
The
EPA
is
not
proposing
to
revise
the
definition
of
"
caused
by."
The
basic
test
established
by
the
existing
definition
of
"
caused
by"
is
that
the
emissions
would
not
have
occurred
in
the
absence
of
the
29
Federal
action.
Since
the
general
conformity
regulations
were
promulgated
in
1993,
EPA
has
interpreted
the
regulations
to
require
a
Federal
agency
to
include
construction
emissions
in
its
conformity
analysis.
The
EPA
believes
that
emissions
from
construction
activities
initiated
by,
approved
or
funded
by
a
Federal
agency
meets
this
test
and
should
be
included
in
the
conformity
evaluation.

Some
Federal
agencies
have
argued
that
since
construction
emissions
are
generally
excluded
from
consideration
under
the
transportation
conformity
and
EPA's
NSR
programs,
they
should
not
be
included
in
the
general
conformity
evaluation.
Furthermore,
some
agencies
pointed
out
that
the
emissions
from
construction
activities
are
not
always
explicitly
included
in
some
SIPs,
so
it
is
difficult
to
demonstrate
conformity
for
the
emissions
and
should
not
factor
into
the
agencies'

demonstrations
of
conformity
to
those
SIPs.
Finally,
the
agencies
argued
that
construction
emissions
are
temporary
and
not
long­
term
contributors
to
the
NAAQS
violations
and
are,
therefore,
not
truly
reflective
of
a
completed
project's
contribution
to
a
nonattainment
or
maintenance
area's
emissions
budget.
30
In
EPA's
Transportation
Conformity
program
(
40
CFR
93.100­
135),
construction
emissions
are
generally
not
included
in
the
conformity
evaluation.
The
Transportation
Conformity
Regulations
(
40
CFR
93.122(
e))
do
require
the
consideration
of
PM10
from
construction­
related
fugitive
dust
only
in
PM10
nonattainment
and
maintenance
areas
where
the
SIP
identifies
those
emissions
as
a
contributor
to
the
nonattainment
problem.
In
such
a
case,
the
regional
PM10
emissions
analysis
must
consider
the
construction­
related
fugitive
PM10
emissions
and
account
for
them
in
the
determination.
The
Transportation
Conformity
Regulations
(
40
CFR
93.122(
f))
do
not
require
the
consideration
of
PM2.5
unless
the
area's
SIP
identifies
construction­
related
fugitive
PM2.5
as
a
significant
contributor
to
the
area's
PM2.5
problem.
In
addition,
the
Transportation
Conformity
Regulations
(
40
CFR
93.123(
c)(
5))
do
not
require
construction­
related
carbon
monoxide
(
CO)
and
PM10
emissions
to
be
considered
in
hot­
spot
analyses
(
i.
e.,

estimations
of
future
localized
CO
and
PM10
concentrations)

unless
those
emissions
will
last
for
more
than
5
years
at
an
individual
site.
In
the
NSR
program,
only
operational
emissions
from
the
source
are
required
to
be
evaluated
for
the
permit
and
construction
emissions
are
not
generally
included.
31
Since
the
General
Conformity
Regulations
cover
a
wide
variety
of
actions
and
projects,
the
regulations
were
drafted
to
be
general
enough
to
cover
the
differing
circumstances.
While
a
majority
of
Federal
actions
and
projects
may
not
involve
long­
term
construction
activities,
some
do.
For
example,
increasing
the
depth
of
the
navigable
channel
in
New
York
Harbor
is
expected
to
take
9
to
10
years
to
complete.
In
addition,
the
States
and
local
agencies
can
reasonably
anticipate
and
plan
for
construction
emissions
from
highway
and
mass
transit
activities
based
upon
regional
transportation
plans
and
historic
activities.
However,
the
States,
Tribes
and
local
agencies
may
not
be
aware
of
other
Federal
activities
requiring
construction
or
may
not
be
easily
able
to
estimate
the
emissions
from
the
construction
activities.
Therefore,
the
SIPs
or
TIPs
may
not
adequately
account
for
the
emissions
from
those
activities.

In
drafting
and
adopting
a
SIP
and
TIP,
States,

Tribes
and
local
agencies
generally
allow
for
some
emissions
from
construction
activities
either
in
a
construction
emission
category
or
as
part
of
another
category,
such
as
off­
road
mobile
sources.
The
emission
estimates
for
these
categories
are
usually
based
upon
32
historic
activity
levels
or
on
projected
future
activity
levels.
Therefore,
if
at
the
time
the
SIP
or
TIP
is
being
developed,
the
State,
Tribe
or
local
agency
knows
about
the
future
actions
or
projects
at
the
facility,
the
construction
emissions
can
be
incorporated
into
the
SIP
or
TIP.

For
the
above
reasons,
EPA
believes
that
emissions
from
construction
activities
can
interfere
with
the
SIP
or
TIP
and
is
proposing
to
explicitly
include
construction
emissions
in
the
definition
of
emissions
"
caused
by"
the
Federal
action.
However,
EPA
is
providing
several
options
to
allow
Federal
agencies
and
the
States
or
Tribes
to
list
construction
emissions
as
"
presume
to
conform"
or
to
exempt
the
emissions.

1.
Once
included
in
a
SIP­
approved
facility­
wide
emission
budget,
the
construction
emissions
could
be
identified
as
exempt
from
the
general
conformity
requirements.

2.
Under
the
new
provisions
for
developing
a
list
of
"
presume
to
conform"
actions,
Federal
agencies,
States,
or
Tribes
can
demonstrate
that
emissions
from
certain
types
of
construction
activities
at
a
facility
would
conform
to
the
SIP.
33
3.
Some
States
issue
permits
for
construction
emissions.
These
permits
are
essentially
minor
source
NSR
permits
and
emissions
covered
by
them
would
be
exempt.

Also,
EPA
is
clarifying
that
conformity
is
based
on
annual
emissions.
Therefore,
Federal
agencies
should
estimate
construction
emissions
on
an
annual
basis
and
would
only
have
to
demonstrate
conformity
of
construction
emissions
during
the
years
when
the
emissions
occurred.

The,
EPA
recognizes
that
construction
activities
are
only
temporary
and
for
some
projects
occur
for
less
than
a
year
or
two,
therefore,
EPA
is
also
seeking
comment
on
whether
it
should
revise
the
regulations
to
exempt
emissions
from
short­
term
(
for
example
less
than
1
or
2
years)
construction
projects
from
the
regulations.
The
EPA
solicits
comments
on
and
justification
for
the
concept
of
exempting
emissions
from
short­
term
construction
activities
and
the
definition
of
a
short­
term
project.

Classified
information.
As
discussed
in
§
§
93.155
and
156
on
reporting
and
public
participation,
EPA,
at
the
request
of
the
DoD,
is
proposing
to
specify
how
classified
information
used
in
the
conformity
determination
is
to
be
handled.
To
support
those
revisions,
EPA
is
also
proposing
to
add
a
definition
of
classified
information.

The
definition
is
based
upon
applicable
Executive
Orders,
34
regulations
and
statutes
pertaining
to
classified
materials.

Confidential
business
information
(
CBI).
In
§
§
93.155
and
156,
EPA
is
also
proposing
to
specify
how
CBI
used
in
the
conformity
determination
is
to
be
handled.
To
support
those
revisions,
EPA
is
also
proposing
to
add
a
definition
of
CBI.
The
definition
is
based
upon
that
used
to
define
CBI
under
the
Freedom
of
Information
Act.

Conformity
determination.
The
EPA
is
proposing
to
add
a
new
term
to
describe
the
decision
that
a
Federal
agency
official
makes
in
determining
that
the
action
will
conform
with
the
SIP
or
TIP.

Conformity
evaluation.
The
EPA
is
proposing
to
add
a
new
definition
to
describe
the
entire
conformity
process
from
the
applicability
analysis
through
the
conformity
determination,
if
necessary.

Continuing
program
responsibility.
In
the
existing
regulations,
EPA
defined
the
term
"
emissions
that
a
Federal
agency
has
a
continuing
program
responsibility
for."
That
term
was
awkward
and
confusing.
The
EPA
is
proposing
to
shorten
the
term
to
the
"
continuing
program
responsibility"
and
to
reformat
the
definition
to
make
it
clearer.
35
Continuous
program
to
implement.
This
term
was
used
in
the
existing
regulations
but
was
not
defined.

Therefore,
EPA
is
proposing
to
add
a
definition
for
this
term.
The
definition
would
require
the
Federal
agency
to
have
a
program
to
implement
the
action.
That
program
can
include
a
number
of
steps
such
as
preparation
of
final
design
plans
and
can
also
allow
for
seasonal
shutdowns.

The
definition
includes
a
requirement
that
the
action
does
not
stop
for
more
than
18
months
unless
such
a
delay
is
included
in
the
original
plans
for
the
action.

Direct
emissions.
The
EPA
is
proposing
to
revise
the
definition
of
direct
emissions
to
include
a
requirement
that
the
emissions
must
be
reasonably
foreseeable.
This
requirement
was
unintentionally
left
out
of
the
definition
when
it
was
promulgated
in
1993.

Emergency.
The
EPA
is
proposing
to
make
a
minor
wording
change
to
the
definition
of
emergency.
Actions
in
response
to
an
emergency
do
not
require
a
conformity
determination
if
they
occur
with
6
months
of
the
emergency.
The
existing
regulation
provides
the
following
as
examples
of
events
that
can
be
considered
as
emergencies:

1.
Natural
disasters
such
as
hurricanes
and
earthquakes,
36
2.
Civil
disturbances
such
as
terrorist
acts,
and
3)
Military
mobilizations.

The
EPA
believes
that
a
military
mobilization
is
a
response
to
an
emergency,
not
the
emergency
itself.

Therefore,
EPA
is
proposing
to
substitute
the
term
"
acts
of
war"
for
the
term
military
mobilizations.
"
Acts
of
war"
include
aggressive
action
by
foreign
governments
or
groups
that
threaten
the
security
of
the
United
States.

Emission
Inventory.
This
term
is
used
but
not
defined
in
the
existing
regulations.
Therefore,
EPA
is
proposing
to
add
this
term
to
the
list.

EPA.
Since
some
States
have
Environmental
Protection
Agencies,
EPA
is
proposing
to
add
"
U.
S."
in
the
definition
to
clarify
that
the
regulations
refer
to
the
U.
S.

Environmental
Protection
Agency.

Local
air
quality
modeling
analysis.
The
EPA
is
proposing
to
revise
the
definition
to
include
an
example
of
the
type
of
models
that
are
used
in
the
local
air
quality
modeling
analysis.

Maintenance
area.
The
EPA
is
proposing
to
make
a
minor
wording
change
to
clarify
the
definition
by
citing
the
regulations
and
the
section
of
the
CAA
used
to
identify
maintenance
areas.
37
Mitigation
measure.
The
existing
regulations
used
the
term
"
mitigation
measure"
and
even
had
a
section
specifying
the
requirements
for
a
mitigation
measure,

however
the
regulations
did
not
define
the
term.
The
EPA
is
proposing
to
define
a
mitigation
measure
as
a
method
of
reducing
emissions
of
the
pollutant
at
the
location
of
the
action.
This
definition
would
distinguish
a
mitigation
measure
from
an
offset.

National
ambient
air
quality
standards.
In
1997,
EPA
promulgated
new
national
ambient
air
quality
standards
(
NAAQS)
for
both
ozone
and
for
fine
particles.
The
definition
in
the
existing
regulations
is
broad
enough
to
cover
the
new
ozone
standard.
But,
the
definition
did
not
cover
the
fine
particle
standard
known
as
PM2.5.

Therefore,
EPA
is
revising
the
definition
of
NAAQS
to
include
PM2.5.

National
security.
As
part
of
the
provisions
for
handling
classified
materials,
EPA
is
proposing
to
use
the
term
"
national
security."
Therefore,
EPA
is
proposing
to
add
a
definition
for
that
term.

Precursors
of
criteria
pollutants.
The
existing
regulations
define
precursors
for
both
ozone
and
PM10.

Since
the
PM2.5
standard
was
promulgated
after
the
General
Conformity
Regulations,
the
existing
regulations
do
not
38
include
the
precursors
for
PM2.5.
Therefore,
EPA
is
proposing
to
add
PM2.5
precursors,
consistent
with
the
proposed
implementation
program
for
the
PM2.5
standard
(
70
FR
65984).

1.
Sulfur
dioxide
is
a
regulated
pollutant
in
all
PM2.5
nonattainment
and
maintenance
areas.

2.
Nitrogen
oxides
are
a
regulated
pollutant
in
all
PM2.5
nonattainment
and
maintenance
areas
unless
both
the
State/
Tribe
and
EPA
determine
that
it
is
not.

3.
Volatile
organic
compounds
(
VOC)
and
ammonia
are
not
regulated
pollutants
in
any
PM2.5
nonattainment
or
maintenance
area
unless
either
the
State/
Tribe
or
EPA
determines
that
they
are.

Reasonably
foreseeable
emissions.
As
discussed
above,
under
"
direct
emissions,"
EPA
is
proposing
to
qualify
the
term
direct
emissions
by
stating
that
those
emissions
must
be
reasonably
foreseeable.
Therefore,
EPA
is
proposing
to
revise
the
term
"
reasonably
foreseeable"

to
include
"
direct
emissions."

Regionally
significant
action.
As
discussed
in
the
revisions
to
paragraph
93.153(
i)
below,
EPA
is
proposing
to
delete
the
regionally
significant
requirement.

Therefore,
if
EPA's
proposed
revision
is
promulgated,

there
is
no
need
to
retain
this
definition.
39
Take
or
start
the
Federal
action.
The
EPA
is
proposing
to
add
a
new
term
to
define
the
date
when
an
action
occurs
or
starts.
This
date
is
important
in
determining
what,
if
any,
conformity
requirements
apply
when
an
area
is
designated
or
re­
designated
as
nonattainment.
The
EPA
is
proposing
to
define
this
term
as
the
date
of
the
decision­
maker
signs
a
document
such
as
a
grant,
permit,
license
or
approval.
Otherwise,
EPA
is
proposing
to
define
the
term
as
the
date
the
Federal
agency
physically
starts
the
action
that
requires
the
conformity
evaluation.

Tribal
implementation
plan
(
TIP).
The
EPA
is
proposing
to
add
a
definition
for
Tribal
implementation
plan
to
mean
plans
adopted
and
submitted
by
Federally
recognized
Indian
Tribes.
Under
the
Tribal
Authority
Rule
(
40
CFR
part
49),
certain
Tribal
bodies
can
adopt
and
submit
implementation
plans
to
attain
and
maintain
the
NAAQS.
Therefore,
EPA
is
proposing
to
add
this
definition
to
the
regulation.

E.
40
CFR
93.153
 
Applicability
Analysis
1.
The
EPA
is
proposing
to
revise
the
title
of
the
section
to
include
the
word
"
analysis."
The
EPA
believes
that
adding
the
word
would
make
the
title
more
descriptive
of
the
section's
content.
40
2.
The
EPA
is
proposing
to
make
a
minor
wording
change
to
paragraph
(
b)
of
§
93.153.
The
EPA
is
proposing
to
add
the
word
"
criteria"
before
the
word
"
pollutant"
and
"
or
precursor"
after
the
word
to
clarify
the
paragraph.

3.
The
EPA
is
proposing
to
revise
the
table
in
subparagraph
(
b)(
1)
to
include
all
nonattainment
areas
in
the
Ozone
Transport
Regions.
In
1993,
when
the
General
Conformity
Regulations
were
promulgated,
all
nonattainment
areas
in
the
Ozone
Transport
Region
were
classified
as
marginal
or
above
for
the
1­
hour
ozone
NAAQS.
However,
in
designating
areas
for
the
8­
hour
ozone
NAAQS,
some
nonattainment
areas
were
identified
as
needing
to
meet
only
the
requirements
in
subpart
1
of
Part
D
of
Title
I
of
the
CAA
and
were
not
classified.
Therefore,
EPA
is
proposing
to
revise
the
table
in
93.153(
c)(
1)
to
cover
the
subpart
1
areas
by
changing
the
category
from
"
Marginal
and
moderate
NAA's
inside
an
ozone
transport
region"
to
"
other
NAA
inside
an
ozone
transport
region."

4.
In
a
separate
notice
EPA
proposed
to
revise
the
tables
in
sub­
paragraphs
(
b)(
1)
and
(
b)
(
2)
by
adding
the
de
minimis
emission
levels
for
PM2.5.
In
July
1997,
EPA
promulgated
two
new
NAAQS
(
62
FR
38652)
one
for
an
8­
hour
ozone
standard
and
one
for
fine
particulate
matter
known
as
PM2.5.
The
new
8­
hour
and
old
1­
hour
ozone
NAAQS
41
address
the
same
pollutant
but
differ
with
respect
to
the
averaging
time,
therefore,
EPA
retained
the
existing
de
minimis
emission
levels
for
ozone
precursors.
Although
PM2.5
is
a
subset
of
PM10,
it
differs
from
the
rest
of
PM10.

While,
the
majority
of
ambient
PM10
results
from
direct
emissions
of
the
pollutant,
a
significant
amount
of
the
ambient
PM2.5
can
result
not
only
from
direct
emissions
but
also
from
transformation
of
precursor
and
condensing
of
gaseous
pollutants
in
the
atmosphere.
Therefore,
EPA
is
proposing
to
add
new
de
minimis
emission
levels
for
the
direct
emissions
and
precursors
of
PM2.5.
The
EPA
proposed
to
establish
100
tons
per
year
as
the
de
minimis
emission
level
for
direct
PM2.5
and
each
of
its
precursors.
Since
EPA
did
not
propose
any
classifications
for
the
PM2.5
nonattainment
areas,
EPA
did
not
propose
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.
This
proposal,

if
adopted,
would
maintain
the
consistency
between
the
de
minimis
emission
levels
and
the
size
of
a
major
stationary
source
under
the
NSR
program
(
70
FR
65984).

5.
In
sub­
paragraph
(
c)(
2)(
iii),
EPA
is
proposing
to
clarify
that
the
exemption
for
"
rulemaking
and
policy
42
development
and
issuance"
applies
to
the
process
of
those
actions
and
not
to
the
substance
of
the
action.
The
U.
S.

Court
of
Appeals
for
the
Ninth
Circuit
has
stated
that
" 
the
categorical
exception
encompasses
on
the
`
development
and
issuance'
of
the
Federal
regulations,
not
the
substantive
results
of
their
promulgation
and
implementation."(
Public
Citizen
v.
Department
of
Transportation,
316
F.
3d
1002
(
9th
Cir.
January
16,
2003);

reversed
on
other
grounds
Department
of
Transp.
V.
Public
Citizen
541
U.
S.
752,
124
S.
Ct.
2204
(
June
7,
2004))

Although
this
decision
was
appealed
to
the
U.
S.
Supreme
Court,
the
court's
holding
concerning
the
exemption
for
rulemaking
was
not
challenged.
The
EPA
is
proposing
to
add
"
Procedures
for"
before
rulemaking
to
clarify
that
the
exemption
applies
to
the
process
of
the
rulemaking
and
not
to
the
substance
of
the
regulation.

6.
The
EPA
is
proposing
to
revise
sub­
paragraph
(
d)(
1)
of
§
93.153
to
exempt
emissions
covered
by
a
NSR
permit
for
minor
sources.
The
existing
regulations
exempt
emissions
covered
by
a
NSR
permit
for
major
sources
but
not
for
minor
sources.
Since
the
purpose
of
the
conformity
program
is
to
ensure
that
Federal
actions
do
not
interfere
with
the
SIP,
TIP
or
FIP,
in
promulgating
the
existing
regulations
EPA
recognized
that
emissions
43
covered
by
a
major
source
NSR
or
prevention
of
significant
deterioration
(
PSD)
permit
already
had
been
reviewed
to
ensure
that
the
emissions
did
not
interfere
with
the
SIP.

Therefore,
the
existing
regulations
exempt
the
emissions
from
sources
permitted
under
major
source
NSR
or
PSD
programs.
Since
1993,
when
the
existing
regulations
were
promulgated,
States
and
local
agencies
have
adopted
NSR
programs
for
minor
sources
as
required
by
section
110(
a)(
2)(
C)
of
the
CAA.
These
NSR
programs
for
minor
sources
also
ensure
that
emissions
from
the
sources
(
individually
and
collectively)
will
not
interfere
with
the
SIP.
Therefore,
EPA
is
proposing
to
revise
the
regulation
to
exempt
emissions
permitted
under
the
EPAapproved
NSR
programs
for
minor
sources.
The
EPA
believes
this
approach
will
reduce
the
duplicate
review
of
emissions
under
both
minor
source
NSR
and
conformity
programs
and
treat
all
NSR
permitted
emissions
the
same
way.

Although
operating
permits
issued
under
title
V
of
the
CAA
meet
some
of
the
same
requirements,
EPA
is
not
proposing
to
exempt
the
emissions
covered
by
those
permits.
The
conformity
program
is
similar
to
the
NSR
program
in
that
it
evaluates
new
or
modified
sources
prior
to
construction,
while
the
"
title
V"
program
is
basically
44
for
operating
emissions
at
existing
sources.
Therefore,

the
conformity
evaluations
for
any
project
that
also
requires
a
title
V
permit
should
occur
before
the
title
V
permit
is
issued.
The
EPA
does
note
that
if
for
some
reason
an
operating
permit
covers
the
emissions,
a
Federal
agency
may
be
able
to
use
the
permit
to
document
that
the
emissions
are
accounted
for
in
the
SIP.

7.
The
EPA
is
proposing
to
delete
"
natural
disaster
such
as
hurricanes,
earthquakes,
etc.,"
and
"
or
disaster"

from
sub­
paragraph
(
d)(
2)
of
§
93.153
because
they
are
unnecessary
words.
In
§
93.152,
EPA
defined
emergency
to
cover
natural
disasters
(
e.
g.,
hurricanes
or
earthquakes),

civil
disturbances
(
e.
g.,
riots
or
terrorist
attacks)
and
acts
of
war.
Therefore,
the
words
describing
an
"
emergency"
are
not
necessary
and
may
be
confusing
since
they
do
not
include
all
types
of
emergencies.

8.
The
EPA
is
proposing
to
amend
sub­
paragraph
(
e)(
2)
of
§
93.153
to
provide
procedures
for
reviewing
an
extension
of
the
exemption
from
making
a
conformity
determination
for
actions
related
to
responding
to
an
emergency.
A
Federal
agency,
in
responding
to
an
emergency
event
such
as
a
natural
disaster,
terrorist
attack,
or
act
of
war,
may
find
it
impractical
to
conduct
a
conformity
evaluation
on
the
action
before
it
must
take
45
the
action.
To
address
this
situation,
section
40
CFR
93.153(
e)
of
the
existing
regulations
provides
Federal
agencies
with
a
6­
month
exemption
from
the
requirement
to
undertake
a
conformity
analysis
for
actions
taken
in
response
to
an
emergency.
The
EPA
recognizes
that
in
rare
situations
it
may
be
impractical,
even
after
6
months,
to
conduct
a
conformity
evaluation
and
is
proposing
to
amend
§
93.153(
e)
to
allow
the
agencies
to
extend
the
exemption
for
another
6
months.
This
section
requires
Federal
agencies
to
make
a
finding
that
it
is
impractical
to
conduct
an
evaluation
for
the
action.
The
existing
regulations
are
unclear
about
the
number
of
additional
extensions
permitted
nor
do
the
regulations
provide
any
procedures
for
agencies
to
follow
in
deciding
on
the
extension.

The
only
time
that
the
extension
of
the
6­
month
exemption
has
been
used
was
in
New
York
following
the
terrorist
attack
of
September
11,
2001.
In
responding
to
the
shutdown
of
the
Port
Authority
Trans­
Hudson
line
between
New
Jersey
and
New
York,
certain
Federal
agencies
sponsored
a
ferry
service
across
the
Hudson
River.
The
service
lasted
2
years
until
the
mass
transit
service
was
restored.
The
Federal
agencies
continued
with
a
series
of
6­
month
extensions
of
the
General
Conformity
exemption.
46
The
Federal
agencies
did
not
know
what
they
had
to
do
to
invoke
the
provision
and
EPA
and
the
State
agencies
had
to
request
permission
to
review
the
decision.
In
addition,

the
public
was
not
given
notice
of
the
decision
to
extend
the
exemption.

The
EPA
is
not
proposing
to
revise
requirements
for
the
initial
exemption
for
actions
in
response
to
emergencies.
The
initial
governmental
action
in
response
to
emergencies
would
still
be
exempt
from
the
General
Conformity
requirements
for
6
months
from
the
date
of
the
emergency.
However,
EPA
is
proposing
requirements
for
Federal
agencies
that
want
to
extend
the
exemption
beyond
the
initial
6­
month
period.
First,
EPA
is
proposing
to
require
the
Federal
agencies
to
allow
EPA
and
the
State
15
days
to
review
the
draft
decision
to
extend
the
exemption.

Next,
EPA
is
proposing
to
require
Federal
agencies
to
publish
a
notice
within
30
days
of
making
the
decision.

The
notice
must
be
published
in
a
daily
general
circulation
newspaper
for
the
affected
area.
Finally,
EPA
is
proposing
to
limit
the
maximum
number
of
6­
month
extensions
to
three.
The
EPA
believes
an
agency
should
be
able
to
plan
for
and
conduct
a
conformity
evaluation
for
actions
that
extend
beyond
2
years.
47
9.
The
EPA
is
proposing
to
revise
paragraphs
(
f),

(
g),
and
(
h)
of
§
93.153
to
permit
Federal
agencies
more
flexibility
in
developing
their
list
of
actions
that
are
"
presumed
to
conform"
and
provide
requirements
for
the
materials
that
must
be
included
in
the
documentation
and
draft
list.
Specifically,
EPA
is
proposing
to
add
a
new
sub­
paragraph
(
g)(
3)
to
specify
that
Federal
agencies
can
list
actions
that
are
for
individual
areas
or
SIPs
or
TIPs,
to
add
a
sentence
to
sub­
paragraph
(
h)(
1)
to
specify
the
information
that
must
be
included
in
the
documentation,
and
to
add
a
sentence
to
sub­
paragraph
(
h)(
2)
to
allow
the
Federal
agencies
to
notify
EPA
headquarters
when
the
presumed
to
conform
actions
would
have
multi­
regional
or
national
impacts.
In
addition,
EPA
is
proposing
to
revise
paragraphs
(
f)
and
(
h)
to
include
a
reference
to
the
new
sub­
paragraph
(
g)(
3).

In
promulgating
the
existing
regulations,
EPA
identified
a
number
of
actions
that
were
"
presumed
to
conform."
The
regulations
also
allow
Federal
agencies
to
establish
their
own
lists
of
actions
that
are
"
presumed
to
conform."
Under
the
existing
regulations,
Federal
agencies
must
justify
the
inclusion
of
the
actions
on
their
"
presumed
to
conform"
list
by
either
demonstrating:

(
1)
that
the
actions
will
not
cause
or
contribute
to
an
48
air
quality
problem
or
otherwise
interfere
with
the
SIP,

TIP,
or
FIP,
or
(
2)
that
the
actions
will
have
emissions
below
the
de
minimis
levels.
The
Federal
agencies
must
provide
copies
of
the
proposed
list
to
EPA,
affected
State
and
local
air
quality
agencies
and
MPOs.
In
addition,
the
agencies
must
provide
at
least
a
30­
day
public
comment
period
and
document
its
response
to
all
comments.
The
notice
of
the
proposed
and
final
list
must
be
published
in
the
Federal
Register.

Although
EPA
has
worked
with
one
Federal
agency
on
its
"
presumed
to
conform"
list,
no
Federal
agency
has
published
such
a
list.
The
EPA
believes
that
the
use
of
a
"
presumed
to
conform"
list
could
be
an
important
tool
for
Federal
agencies
in
reducing
the
review
time
for
Federal
actions.
Also,
EPA
believes
that
an
additional
option
could
be
added
to
the
regulations
to
aid
Federal
agencies
in
adopting
their
list.
The
EPA
is
proposing
to
add
subparagraph
(
g)(
3)
to
clarify
that
the
presumption
could
be
for
one
facility
or
for
facilities
in
a
specified
area
and
does
not
have
to
be
nationally
applicable.
For
example,

if
the
nonattainment
area's
SIP
includes
a
sector
emission
budget
for
construction
activities,
a
facility
may
be
able
to
demonstrate
that
construction
activities
of
a
certain
size
or
type
fits
within
the
SIP's
emission
budget.
With
49
the
concurrence
of
the
State
or
Tribe,
the
Federal
agencies
could
publish
a
"
presumed
to
conform"
list
that
includes
the
construction
emissions
at
the
specific
facility.

10.
The
EPA
is
proposing
to
delete
the
regionally
significant
test
included
in
paragraph
(
i)
of
§
93.153.

The
existing
regulations
in
§
93.152
define
"
regionally
significant"
as
"
a
Federal
action
for
which
the
direct
and
indirect
emissions
of
any
pollutant
represent
10
percent
or
more
of
a
nonattainment
or
maintenance
area's
emissions
inventory."
Paragraphs
93.153(
i)
and
(
j)
require
conformity
determinations
for
all
regionally
significant
actions,
regardless
of
any
exemptions
or
presumptions
of
conformity
based
on
other
provisions
in
the
regulations.

The
"
regionally
significant"
action
concept
was
proposed
in
the
1993
Notice
of
Proposed
Rulemaking
(
58
FR13836)
in
order
to
"
capture
those
actions
that
fall
below
the
de
minimis
emission
levels,
but
have
the
potential
to
impact
the
air
quality
of
the
region."
At
that
time,
EPA
requested
comments
on
whether
the
10
percent
level
was
appropriate.
In
the
discussion
of
comments
in
the
preamble
to
the
Final
Rule
(
58
FR
63214),

EPA
reported
that
it
received
comments
both
in
favor
of
and
in
opposition
to
the
"
regionally
significant"
action
50
concept.
While
many
respondents
supported
the
concept,

there
was
a
diversity
of
opinions
regarding
whether
10
percent
was
the
most
appropriate
level.
However,
EPA
reported
that
no
documentation
was
provided
to
support
a
different
level.
Some
respondents
felt
that
the
de
minimis
cut
offs
would
suffice.
The
EPA
decided
to
retain
both
the
concept
and
10
percent
level
in
the
final
rule.

For
a
regionally
significant
action,
the
Federal
agency
must
conduct
a
full
conformity
determination
even
if
the
action
would
cause
total
direct
and
indirect
emissions
below
the
de
minimis
levels.
In
over
12
years
since
promulgation
of
the
existing
regulations,
no
action
has
been
determined
to
be
regionally
significant.
The
main
reason
that
actions
with
emissions
below
de
minimis
levels
are
not
regionally
significant
is
that
the
emission
inventory
for
almost
all
nonattainment
and
maintenance
areas
greatly
exceeds
ten
times
the
de
minimis
emission
levels.
Review
of
the
1999
emission
inventory
shows
that
only
six
(
one
ozone,
two
lead
and
three
sulfur
dioxide)
of
over
200
nonattainment
areas
had
emission
inventories
less
than
ten
times
the
de
minimis
levels.(
See
Evaluation
of
Potential
Regionally
Significant
Areas
Under
the
General
Conformity
Regulations,
Science
Applications
International
Corporation,
March
2005,
Docket
Number
OAR
51
2004­
0491).
In
other
words,
except
for
those
six
areas,

an
action
with
emissions
below
de
minimis
levels
would
never
be
considered
regionally
significant.

Federal
agencies
have
expressed
concern
that,
in
many,
cases
demonstrating
that
a
project
is
not
regionally
significant
is
difficult
and
time
consuming.
First,
the
future
total
emission
inventory
for
an
area
may
not
be
readily
available
since
the
SIP
may
not
cover
the
time
period
when
the
emissions
will
occur.
In
addition,
most
national
emission
inventories
are
published
2
to
3
years
after
the
"
inventory"
year,
so
if
a
Federal
agency
is
comparing
the
action's
emissions
against
the
most
recent
inventory
they
may
be
looking
at
an
inventory
that
is
3
to
5
years
old.

The
EPA
is
proposing
to
eliminate
the
provision.
The
EPA
believes
that
since
Federal
agencies
have
expended
resources
to
demonstrate
that
actions
are
not
regionally
significant
and
the
existing
provision
has
not
been
triggered,
eliminating
the
provision
would
streamline
the
conformity
regulations
and
have
little
or
no
environmental
impact.

11.
The
EPA
is
proposing
to
replace
paragraph
(
i)
of
§
93.153
with
a
new
paragraph
to
identify
three
additional
groups
of
actions
that
are
presumed
to
conform.
First,
EPA
52
is
proposing
to
allow
installations
with
a
facility­
wide
emission
budget
to
presume
that
an
action
at
the
installation
will
conform
provided
that
the
emissions
from
that
action
along
with
all
other
emissions
from
the
facility
will
not
exceed
the
budget.
A
more
detailed
discussion
of
the
emission
budget
concept
is
found
in
§
93.161.

Second,
EPA
is
proposing
to
allow
Federal
agencies
to
presume
that
the
emissions
from
prescribed
burns
will
conform
provided
the
burning
is
conducted
under
an
approved
SMP.
In
May
1998,
EPA
worked
with
States
and
other
Federal
agencies
to
develop
and
publish
an
interim
policy
on
prescribed
fires
on
Federal
lands.
(
See
Interim
Air
Quality
Policy
on
Wildland
and
Prescribed
Fires,

U.
S.
EPA,
May
1998).
To
comply
with
the
requirements
in
the
interim
policy,
Federal
land
managers
must
develop
a
certified
SMP
through
regional
coordination,
and
include
real­
time
air
quality
monitoring.
The
SMPs
establish
procedures
and
requirements
for
minimizing
emissions
and
managing
smoke
dispersion.
The
goals
of
SMPs
are
to
mitigate
the
nuisance
and
public
safety
hazards
(
e.
g.,
on
roadways
and
at
airports)
posed
by
smoke
intrusions
into
populated
areas;
to
prevent
deterioration
of
air
quality
53
and
NAAQS
violations;
and
to
address
visibility
impacts
in
mandatory
Class
I
Federal
areas.

Given
the
fundamental
purpose
of
the
SMP,
EPA
believes
that
it
is
reasonable
to
assume
that
any
action
in
compliance
with
the
certified
SMP
would
be
in
conformance
with
the
applicable
SIP.
Therefore,
EPA
is
proposing
to
designate
these
actions
as
actions
presumed
to
conform.
Federal
agencies
would
not
have
to
conduct
a
conformity
determination
for
those
actions.

Finally,
as
discussed
above,
EPA
is
also
proposing
to
allow
a
State
or
eligible
Tribe,
on
its
own,
to
adopt
in
their
SIP
or
TIP
a
list
of
actions
for
facilities
in
its
borders
that
it
"
presumes
to
conform."

12.
The
EPA
is
proposing
to
revise
paragraph
(
j)
of
§
93.153
by
deleting
the
reference
to
regionally
significant
emissions,
by
adding
a
reference
to
paragraph
(
i)
and
by
describing
the
criteria
for
requiring
a
conformity
determination
for
an
action
that
otherwise
would
be
presumed
to
conform.
The
existing
regulations
state
that
an
action
cannot
be
presumed
to
conform
if
it
was
regionally
significant
or
did
not
in
fact
meet
the
requirements
of
sub­
paragraph
(
g)(
1).
As
discussed
above,

EPA
has
proposed
to
delete
the
regionally
significant
test,
therefore
reference
to
it
is
proposed
to
be
deleted
54
from
this
paragraph.
For
clarity,
instead
of
referring
to
sub­
paragraph
(
g)(
1),
EPA
is
proposing
to
repeat
the
requirements
in
this
paragraph.

13.
The
EPA
is
proposing
to
revise
paragraph
(
k)
of
§
93.153
to
incorporate
the
provisions
of
section
176(
c)(
6)

of
the
CAA.
(
42
U.
S.
C.
7506(
c)(
6)).
In
November
2000
(
Public
Law
106­
377),
Congress
added
section
176(
c)(
6)
to
the
CAA
to
allow
for
a
conformity
transition
period
for
newly
designated
nonattainment
areas.
That
section
establishes
a
1­
year
grace
period
following
designation
before
the
conformity
requirements
must
be
met
in
the
area.
If
an
agency
takes
or
starts
the
Federal
action
before
the
end
of
the
grace
period,
it
must
comply
with
the
applicable
pre­
designation
conformity
requirements.

If
an
agency
takes
or
starts
the
Federal
action
after
the
end
of
the
grace
period,
it
must
comply
with
the
postdesignation
conformity
requirements.
As
discussed
above
in
describing
the
new
term
"
take
or
start
the
Federal
action,"
EPA
is
proposing
to
define
the
term
to
mean
that
a
Federal
agency
takes
an
action
when
it
signs
a
permit,

license,
grant
or
contract
or
otherwise
starts
the
Federal
action.
From
the
time
that
an
area
is
designated
as
nonattainment,
agencies
will
have
a
year
to
take
or
start
the
Federal
action.
If
the
agency
fails
to
take
or
start
55
the
Federal
action
during
the
grace
period,
then
it
must
re­
evaluate
conformity
for
the
project
based
on
the
requirements
for
the
new
designation
and
classification.

F.
40
CFR
93.154
 
Federal
Agencies
Responsibility
for
a
Conformity
Determination
1.
The
EPA
is
proposing
to
revise
the
title
of
this
section
to
clarify
the
purpose
of
the
section.
In
the
existing
regulations
this
section
is
entitled
broadly
"
Conformity
Analysis."
Since
the
short
section
only
discusses
the
requirement
for
each
Federal
agency
to
make
its
own
determination,
EPA
is
proposing
to
revise
the
title
of
the
section
to
more
closely
describe
the
section's
content.

2.
The
EPA
is
proposing
to
add
language
to
this
section
to
specifically
state
that
the
conformity
determination
must
meet
the
requirements
of
this
subpart.

G.
40
CFR
93.155
 
Reporting
Requirements
1.
Since
EPA
is
proposing
to
add
additional
sections
to
subpart
B,
it
is
proposing
to
revise
the
references
to
those
sections
in
§
93.155.

2.
Consistent
with
EPA
Tribal
Authority
Rule
(
63
FR
7253),
EPA
is
proposing
to
provide
federally­
recognized
Indian
Tribal
governments
the
same
opportunity
to
comment
on
draft
conformity
determinations
as
given
to
States.
56
Therefore,
EPA
is
proposing
to
require
the
Federal
agencies
to
notify
all
the
federally­
recognized
Indian
Tribal
governments
in
the
nonattainment
or
maintenance
area.
To
assist
other
Federal
agencies
in
this
notification,
EPA
is
planning
to
place
a
list
of
the
federally­
recognized
Indian
Tribal
governments
in
each
nonattainment
or
maintenance
areas
on
its
General
Conformity
web
site.

3.
The
EPA
is
proposing
to
add
an
alternative
procedure
for
notifying
EPA
when
the
action
would
result
in
emissions
in
nonattainment
or
maintenance
areas
in
three
or
more
EPA
regions.
Specifically,
EPA
is
proposing
to
allow
the
agencies
to
notify
the
EPA
Office
of
Air
Quality
Planning
and
Standards
rather
than
each
individual
Regional
Office.
A
single
contact
point
for
EPA
should
be
more
efficient
for
the
other
Federal
agencies
than
notifying
up
to
ten
Regional
Offices.

4.
At
the
request
of
the
DoD,
EPA
is
proposing
to
add
a
new
paragraph
to
§
93.155
to
describe
how
classified
materials
used
to
support
conformity
determinations
should
be
handled
when
provided
to
EPA,
States
and
Tribal
governments.
The
existing
General
Conformity
Regulation
does
not
contain
an
explicit
statement
about
protecting
classified
information
from
public
release.
The
57
interagency
review
and
public
participation
provisions
in
the
existing
regulation
require
Federal
agencies
to
make
available
for
review
the
draft
conformity
determination
with
supporting
materials
which
describe
the
analytical
methods
and
conclusions
relied
upon
in
making
the
determination.
Disclosure
of
classified
information
by
a
Federal
employee
is
a
criminal
offense
(
18
U.
S.
C.
§
1905).

Therefore,
DoD
wanted
to
ensure
that
the
General
Conformity
Regulations
clearly
state
that
no
agency
or
individual
was
required
to
release
classified
materials.

Therefore,
EPA
is
proposing
to
revise
the
regulation
to
add
explicit
language
concerning
the
protection
of
classified
material.
In
addition,
conformity
determinations
could,
in
part,
be
based
upon
confidential
information
received
from
business
sources.
The
EPA
is
proposing
to
add
specific
language
to
the
regulation
to
protect
CBI
in
accordance
with
each
Federal
agencies'

policy
and
regulations
for
the
handling
of
classified
materials
and
CBI.
The
regulations
would
allow
State
or
EPA
personnel
with
the
appropriate
security
clearances
to
be
able
to
view
the
classified
or
confidential
business
materials.

H.
40
CFR
93.156
 
Public
Participation
58
1.
The
EPA
is
proposing
to
correct
the
section
referenced
in
§
93.156.
The
existing
regulations
refers
to
§
93.158.
The
correct
reference
should
be
§
93.154.

Section
93.158
prescribes
the
criteria
for
conducting
a
conformity
analysis,
while
§
93.154
requires
Federal
agencies
to
make
the
determination
and
references
the
requirements
in
the
other
sections
of
subpart
B.

2.
The
EPA
is
proposing
to
provide
an
alternative
public
notification
procedure
for
actions
that
cause
emissions
above
the
de
minimis
levels
in
more
than
three
nonattainment
or
maintenance
areas.
The
existing
regulations
require
that
the
Federal
agency
publish
a
notice
in
a
daily
newspaper
of
general
circulation
in
the
nonattainment
or
maintenance
area.
Some
Federal
actions,

such
as
rulemaking,
affect
a
large
number
of
nonattainment
and
maintenance
areas.
The
notification
procedure
for
such
an
action
could
be
burdensome
and
inefficient.

Therefore,
EPA
is
proposing
to
allow
the
Federal
agencies
to
publish
a
notice
in
the
Federal
Register
if
the
action
would
cause
emissions
above
the
de
minimis
levels
in
more
than
three
nonattainment
or
maintenance
areas.

3.
The
EPA
is
proposing
to
also
add
a
new
paragraph
to
§
93.156
to
describe
how
classified
materials
and
CBI
59
used
to
support
conformity
determinations
should
be
handled
in
providing
the
information
to
the
public.

I.
40
CFR
93.157
 
Re­
evaluation
of
Conformity
1.
The
EPA
is
proposing
to
revise
the
title
of
this
section
to
more
appropriately
describe
the
section's
content.
The
existing
section
is
entitled
"
Frequency
of
Conformity
Determinations."
That
title
implies
that
the
general
conformity
requirements
for
Federal
actions
must
be
reevaluated
on
a
regular
basis.
However,
the
section
states
that
conformity
must
be
reevaluated
only
if
the
determination
lapses
or
the
action
is
modified
resulting
in
an
increase
in
emissions.

2.
If
an
action's
emissions
are
below
the
de
minimis
levels
or
the
action
is
not
located
in
a
nonattainment
or
maintenance
area,
a
conformity
determination
is
not
required.
Therefore,
the
Federal
agency
would
not
have
a
date
for
the
conformity
determination.
The
EPA
is
proposing
minor
wording
changes
in
paragraphs
(
a)
and
(
b)

to
clarify
that
the
date
of
a
completed
NEPA
analysis,
as
evidenced
by
a
signed
finding
of
no
significant
impact
(
FONSI)
for
an
environmental
assessment
or
a
record
of
decision
(
ROD)
for
an
environmental
impact
statement,
can
be
used
when
a
conformity
determination
is
not
required.
60
3.
The
EPA
is
proposing
to
add
two
new
paragraphs
(
d
and
e)
to
§
93.157
to
clarify
the
requirements
for
needing
to
conduct
a
conformity
determination
when
the
action
is
modified.
Paragraph
(
d)
deals
with
modifying
an
action
for
which
the
Federal
agency
made
a
conformity
determination.
In
order
to
make
the
determination,
the
Federal
agency
had
to
demonstrate
that
all
the
emissions
caused
by
the
action
conformed
to
the
SIP.
Therefore,
the
Federal
agency
does
not
have
to
revise
its
conformity
determination
unless
the
modification
would
result
in
an
increase
that
equals
or
exceeded
the
de
minimis
emission
levels
for
the
area.
Paragraph
(
e)
deals
with
modifying
an
action
that
the
Federal
agency
determined
had
emissions
below
the
de
minimis
level.
Since
the
emissions
from
the
unmodified
action
were
not
evaluated,
the
Federal
agency
must
conduct
a
conformity
determination
if
the
total
emissions
(
the
emissions
from
the
unmodified
action
plus
the
increased
emissions
resulting
from
the
modification)

equal
or
exceed
the
de
minimis
levels
for
the
area.

J.
40
CFR
93.158
 
Criteria
for
Determining
Conformity
for
General
Federal
Actions
1.
In
sub­
paragraph
93.158(
a)(
1),
EPA
is
proposing
to
add
"
precursor"
after
"
any
criteria
pollutant"
to
clarify
that
Federal
agencies
can
demonstrate
conformity
61
for
the
precursors
of
the
criteria
pollutants
if
the
precursors
are
specifically
identified
and
accounted
for
in
the
applicable
SIP
TIP
or
FIP.

2.
In
sub­
paragraphs
93.158(
a)(
2)
and
(
a)(
5)(
iii),

EPA
is
proposing
to
allow
Federal
agencies
to
obtain
emission
offsets
for
the
General
Conformity
requirements
from
a
nearby
nonattainment
or
maintenance
area
of
equal
or
higher
classification,
provided
that
the
emissions
from
the
nearby
area
contribute
to
the
violations
of
the
NAAQS
in
the
area
where
the
Federal
action
is
located
or,
in
the
case
of
a
maintenance
area,
the
emissions
from
the
nearby
area
have
contributed
in
the
past
to
the
violations
in
the
area
where
the
Federal
action
is
located.
This
revision
to
the
offset
requirements
would
make
the
General
Conformity
offset
requirements
consistent
with
the
offset
requirements
in
section
173(
c)(
1)
of
the
CAA
for
the
Federal
NSR
program.
It
would
also
provide
the
Federal
agencies
more
flexibility
in
obtaining
the
offsets,

especially
in
areas
impacted
by
transport
from
nearby
areas.
In
light
of
increased
knowledge
concerning
transport
of
pollutants
into
areas,
EPA
solicits
comments
on
the
appropriateness
of
limiting
the
offsets
to
nonattainment
or
maintenance
areas
of
equal
or
higher
classifications.
62
3.
In
sub­
paragraphs
93.158(
a)(
2),
(
a)(
3)
and
(
a)(
4),
EPA
is
proposing
to
revise
the
regulations
to
address
the
precursors
of
PM2.5.
The
EPA
does
not
believe
that
the
current
models
are
adequate
to
reasonably
predict
the
impact
of
individual
precursor
sources
of
ozone
or
PM2.5.
Therefore,
EPA
is
proposing
to
allow
Federal
agencies
to
use
modeling
to
demonstrate
conformity
only
for
directly­
emitted
pollutants.
Precursors
of
PM2.5
will
be
treated
the
same
as
precursors
of
ozone
and
direct
emissions
of
PM2.5
will
be
treated
the
same
as
CO
and
PM10.

The
EPA
solicits
comment
on
this
treatment
of
the
precursors
of
PM2.5.

4.
In
sub­
paragraphs
93.158(
a)(
3)
and
(
5),
EPA
is
proposing
to
correct
two
typographical
errors.
In
subparagraph
(
3),
EPA
is
proposing
to
correct
"
meet"
to
"
meets"
and
in
sub­
paragraph
(
5),
EPA
is
proposing
to
change
"
paragraph
(
a)(
3(
11)"
to
"
paragraph
(
a)(
3)(
ii)."

5.
In
sub­
paragraph
93.158(
a)(
5)(
i),
EPA
is
proposing
to
delete
the
reference
to
the
year
1990
and
replace
it
with
a
generic
reference
to
a
year
in
which
the
area
was
designated
as
nonattainment.
In
addition
to
requiring
the
conformity
regulations,
the
CAA
Amendments
of
1990
required
the
designation
of
areas
as
nonattainment
based
on
the
existing
air
quality
data.
Therefore,
when
63
EPA
promulgated
the
existing
regulations
in
1993,
all
the
designations
were
based
on
a
1990
date.
Since
EPA
promulgated
the
conformity
regulations,
it
has
promulgated
two
new
standards
and
designated
a
number
of
areas
as
nonattainment.
By
changing
the
regulations
to
reference
the
date
when
the
area
was
designated
as
nonattainment,

EPA
is
allowing
for
the
new
designations
and
any
future
designations.

6.
Also
in
93.158(
a)(
5)(
i),
EPA
is
proposing
to
revise
the
sub­
paragraph
to
allow
Federal
agencies
to
make
conformity
determination
based
upon
a
State's
or
Tribe's
determination
that
the
emissions
from
the
action
along
with
all
other
emissions
in
the
area
would
not
exceed
the
emission
budget
in
the
applicable
SIP
or
TIP.
Under
the
existing
regulations,
States
could
only
make
such
a
determination
if
they
had
an
approved
attainment
demonstration
or
maintenance
SIP.
This
revision
would
allow
the
State
or
Tribe
to
make
its
determination
based
upon
a
post­
designation
applicable
SIP
or
TIP
even
though
the
plan
does
not
include
an
attainment
demonstration.

For
example,
the
State
or
Tribe
could
base
their
determination
on
an
emission
budget
in
an
EPA
approved
"
Reasonable
Further
Progress"
plan.
By
adopting
the
budget
and
submitting
it
as
part
of
the
SIP
or
TIP,
the
64
State
or
Tribe
is
treating
the
Federal
action
like
any
other
source
in
the
area.
When
the
State
or
Tribal
agency
adopts
the
attainment
or
maintenance
SIP
or
TIP,
it
will
have
to
consider
the
emissions,
and
if
necessary
require
additional
controls
on
the
sources.
Specifically,
EPA
solicits
comment
on
whether
demonstrating
conformity
to
a
budget
in
a
milestone
plan
(
in
the
absence
of
an
attainment
demonstration)
is
adequate
to
ensure
that
the
emissions
from
the
action
will
not
interfere
with
the
timely
attainment
of
the
NAAQS.

7.
Although
not
specified
in
the
regulations,
EPA
believes
that
a
State
operating
permit
under
title
V
of
the
CAA
or
other
air
quality
operating
permit
can
serve
as
documentation
of
the
State's
or
Tribe's
determination.

8.
The
EPA
is
proposing
to
revise
sub­
paragraph
93.158(
a)(
5)(
i)(
C)
to
allow
the
State
or
Tribe
to
commit
to
including
the
emissions
from
the
Federal
action
in
future
SIPs.
Under
the
existing
regulations,
Federal
agencies
can
demonstrate
conformity
by
having
the
State
commit
to
revising
the
applicable
SIP
to
include
the
emissions.
If
a
State
or
Tribe
agrees
to
such
a
commitment,
the
State
or
Tribe
must
submit
a
SIP
revision
within
18
months
to
include
the
emissions
from
the
action
and
to
make
other
necessary
adjustments
in
the
SIP
to
65
accommodate
those
emissions.
However,
the
existing
SIP
or
TIP,
or
a
SIP
or
TIP
required
to
be
submitted
in
18
months,
may
not
cover
the
same
timeframe
covered
by
the
conformity
determination.
For
example,
a
SIP
for
a
nonattainment
area
that
demonstrates
attainment
may
only
cover
the
period
until
the
attainment
date
while
the
conformity
determination
may
cover
emissions
for
many
years
beyond
that
date.
The
State
or
Tribe
may
be
submitting
future
SIPs
or
TIPs
to
address
either
maintenance
of
the
standard
or
to
address
a
continuing
nonattainment
problem
that
would
cover
the
time
period
of
the
emissions.
The
EPA's
proposed
revision
to
subparagraph
93.158(
a)(
5)(
i)(
C)
would
continue
to
require
States
to
revise
the
SIP
within
18
months
of
the
conformity
determination
based
upon
a
State's
or
Tribe's
commitment.
However,
if
the
existing
SIP
or
TIP,
or
a
SIP
or
TIP
due
within
18
months,
does
not
cover
the
time
period
of
the
emissions,
then
the
State
or
Tribe,
in
the
SIP
revision,
can
include
an
enforceable
commitment
to
account
for
the
emissions
in
future
SIP
revisions.
This
approach
will
allow
States
and
Tribes
flexibility
in
committing
to
include
the
emissions
from
the
Federal
action
in
the
SIP.
66
9.
The
EPA
is
proposing
to
revise
sub­
paragraph
93.158(
a)(
5)(
iv)
to
delete
the
use
of
1990
as
the
baseline
year.
As
discussed
above,
when
EPA
promulgated
the
existing
General
Conformity
Regulations
in
1993,
the
designations
and
classifications
were
based
upon
the
1990
air
quality
and
emissions.
Since
1993,
EPA
has
promulgated
new
standards
and
designated
additional
areas
as
nonattainment.
Therefore,
in
many
cases
the
1990
date
for
the
baseline
emission
inventory
is
inappropriate.
The
EPA
is
proposing
to
set
the
baseline
year
as
the
calendar
year
for
the
most
recent
designation
or
classification.

In
some
cases,
when
EPA
establishes
a
new
level
for
a
standard,
an
area
will
have
an
existing
SIP
or
TIP
for
the
pollutant
which
serves
as
the
applicable
SIP
or
TIP
until
a
revised
SIP
or
TIP
is
submitted
by
the
State
or
Tribe
and
approved
by
EPA.
For
example,
in
transition
from
the
1­
hour
ozone
standard
to
the
8­
hour
ozone
standard,
EPA
revoked
the
1­
hour
standard
1
year
after
the
effective
date
of
the
8­
hour
ozone
designation.
Although
EPA
revoked
the
1­
hour
standard,
the
existing
ozone
SIP
remains
largely
in
place
until
it
is
replaced
by
the
8­

hour
ozone
SIP.
The
1­
hour
ozone
SIP
is
considered
the
applicable
SIP
until
it
is
replaced.
67
K.
40
CFR
93.159
 
Procedures
for
Conformity
Determinations
for
General
Federal
Actions
1.
The
EPA
is
proposing
to
revise
sub­
paragraphs
93.159(
b)(
2)
and
(
c)
to
update
the
reference
to
the
Compilation
of
Air
Pollutant
Emission
Factors
and
for
the
Guideline
on
Air
Quality
Modeling.
EPA
has
released
updated
versions
of
these
documents
since
it
promulgated
the
existing
regulations
in
1993.

2.
The
EPA
is
proposing
to
revise
sub­
paragraph
(
d)(
1)
to
clarify
that
analysis
is
first
required
for
the
attainment
year
specified
in
the
SIP.
If
the
SIP
or
TIP
does
not
specify
an
attainment
year,
then
the
analysis
is
required
for
the
CAA
mandated
attainment
year.
Since
the
CAA
requires
the
SIP
demonstrate
attainment
as
expeditiously
as
possible
but
no
later
than
the
CAA
mandated
attainment
date,
it
is
possible
that
a
SIP
or
TIP
could
have
an
earlier
attainment
date.
That
earlier
date
would
be
the
appropriate
year
for
the
conformity
analysis.

3.
The
EPA
is
proposing
a
minor
wording
revision
to
sub­
paragraph
(
d)(
2)
to
clarify
the
paragraph.
The
EPA
is
proposing
to
replace
the
word
"
farthest"
with
"
last."
The
maintenance
plans
are
developed
for
a
10­
year
period
and
revised
as
necessary
for
the
next
10­
year
period.
The
purpose
is
for
conformity
to
be
evaluated
for
the
last
68
year
of
the
maintenance
plan.
The
word
"
last"
conveys
that
meaning.

L.
401
CFR
93.160
 
Mitigation
of
Air
Quality
Impacts
The
EPA
is
proposing
to
revise
paragraph
§
93.160(
f)

to
clarify
its
meaning.
The
regulations
were
meant
to
require
that
the
mitigation
measures
include
a
written
commitment
from
the
person
or
organization
reducing
the
emissions
and
those
commitments
must
be
fulfilled.

M.
40
CFR
93.161
 
Conformity
Evaluations
for
Installations
With
Facility­
Wide
Emission
Budget
The
EPA
is
proposing
to
add
a
new
section
to
the
regulations
to
facilitate
the
use
of
a
facility­
wide
emission
budget
in
evaluating
conformity.
Federal
agencies
have
stated
that
they
would
like
to
streamline
the
conformity
process
for
individual
actions
or
projects,

while
States
have
expressed
a
desire
for
the
conformity
process
to
help
identify
and
reduce
emissions
at
Federal
installations.
Although
the
existing
regulations
do
not
preclude
States
and
Federal
agencies
from
using
this
approach,
the
regulations
do
not
specifically
authorize
its
use.
For
example,
States
can
currently
adopt
a
facility­
wide
budget
for
a
Federal
installation
as
part
of
the
SIP.
With
such
a
budget,
a
Federal
agency
could
69
easily
demonstrate
conformity
for
an
action
at
the
installation
provided
the
emissions
caused
by
the
action
along
with
all
of
the
other
emissions
at
the
installation
stays
within
the
budget.
If
the
State
or
Tribe
includes
the
emission
budget
in
the
SIP
or
TIP,
the
emissions
would
be
identified
and
accounted
for
in
the
SIP
or
TIP.

Alternatively
a
State
or
Tribe
could
provide
a
letter
to
the
Federal
agency
stating
that
the
emissions
from
the
installation
that
are
within
the
budget
conform
to
the
SIP
or
TIP.
This
proposed
section
for
developing
such
a
budget
would
in
conjunction
with
a
new
paragraph
93.153(
j)

provide
a
mechanism
for
presuming
that
the
emissions
are
in
conformance
with
the
SIP
or
TIP.
This
approach
allows
State
or
Tribe
and
Federal
agencies
to
identify
acceptable
levels
of
emissions
from
the
installation
before
starting
the
environmental
review
for
the
actions
and
for
the
agencies
to
expedite
the
review
of
the
Federal
actions
at
the
facilities.

Under
this
approach,
a
State,
Tribe
or
local
air
quality
agency
could
work
with
the
Federal
agency
or
third
party
(
e.
g.,
an
airport
authority)
who
volunteers
to
develop
a
facility­
wide
emission
budget
for
an
installation.
In
principle,
at
the
time
the
States
or
Tribes
agree
to
a
budget,
they
assume
responsibility
for
70
ensuring
that
the
emissions
within
the
budget
will
not
interfere
with
the
purpose
of
the
SIP
or
TIP,
and
will
be
included
in
future
SIPs
or
TIPs.
The
budget
would
be
for
a
set
period
of
time
and
near
the
end
of
that
time
the
State,
Tribe
or
local
agency
and
Federal
agencies
could
revise
the
budget
for
the
next
time
period.
For
example,

the
State,
Tribe
or
local
agency
and
Federal
agency
could
develop
annual
budgets
covering
a
10­
year
period.
Two
years
before
the
end
of
the
period,
the
budget
would
be
reviewed
and
updated
to
cover
the
next
10­
year
period.

(
This
is
the
same
procedure
used
for
maintenance
plans
under
section
175A
of
the
CAA.
A
maintenance
plan
is
developed
for
10­
years
and
8
years
into
that
plan
a
new
plan
is
developed
for
the
next
10
years.)
The
budgets
would
be
developed
based
upon
the
latest
estimates
of
emissions
and
growth
in
the
activities
at
the
facility.

The
State
or
Tribe
would
include
the
emission
budget
in
the
existing
SIP
or
TIP
and
use
the
budget
for
any
future
SIP
or
TIP
development.
In
including
the
emissions
in
the
existing
SIP
or
TIP,
States
or
Tribes
can
either
identify
categories
in
the
existing
SIP
or
TIP
that
cover
the
emissions
or
can
submit
a
revision
to
the
SIP
or
TIP
to
include
the
emissions.
If
unusual
or
unforeseen
circumstances
warrant
a
revision,
the
State,
Tribe
or
71
local
agency
and
Federal
agency
could
agree
to
revise
the
budget.
For
example,
if
the
State,
Tribe
or
local
agency
requires
additional
reductions
to
meet
their
attainment
objective
or
if
the
facility
has
unexpected
growth,
a
revised
budget
could
be
adopted
into
the
SIP
or
TIP.

The
EPA
believes
that
the
proposed
program
would
encourage
the
State,
Tribe
or
local
air
quality
agency
and
the
Federal
facilities
to
develop
an
upfront
emission
budget
for
the
facility,
and
the
action
or
project
environmental
review
would
be
streamlined
as
long
as
the
facility
remains
within
an
established
budget.

The
program
would
be
voluntary
on
the
part
of
the
facility,
State,
Tribe
and
local
air
quality
agency.
No
party
would
be
required
to
participate.
If
the
parties
agreed
to
participate,
an
emission
budget
would
be
established
based
upon
specific
guidance
and
documented
growth
projections
for
the
facility.

The
emission
budget
approach
would
not
be
applicable
to
all
situations.
For
example,
not
all
Federal
actions
or
projects
occur
on
installations
suitable
for
emission
budgets
(
e.
g.,
one­
time
actions
on
non­
Federal
lands
such
as
permit
approval
or
a
short­
term
construction
project
may
not
have
facilities
to
have
a
budget).
In
addition,

some
installations
with
budgets
may
on
occasion
take
72
actions
or
have
projects
that
would
result
in
the
budget
being
exceeded.
In
these
cases,
the
Federal
agencies
would
need
to
demonstrate
conformity
under
the
other
requirements
of
the
regulations.

In
developing
the
facility
emission
budget,
the
Federal
agency
generally
would
share
its
plans
for
construction
at
the
facility.
As
a
result
the
State,
Tribe
or
local
agency
could
consider
the
emissions
from
the
construction
in
its
SIP
or
TIP
and
they
would
have
three
options
for
handling
the
construction
emissions
under
the
general
conformity
program.
First,
they
could
include
the
emissions
in
a
facility­
wide
emission
budget.
Second,

they
could
determine
that
the
construction
emissions
at
the
facility
would
be
covered
elsewhere
in
the
SIP
or
TIP
(
e.
g.,
in
the
non­
road
mobile
source
budget
or
the
area
source
budget),
and
thus
the
emissions
could
be
presumed
to
conform.
Finally,
they
could
cover
the
construction
emissions
separately
from
the
emission
budget
and
conduct
a
separate
conformity
evaluation
for
those
emissions.

Since
the
emission
budget
would
be
used
to
develop
the
SIP
or
TIP
for
the
area,
any
Federal
action
at
the
installation
that
remains
within
its
budget
would
not
interfere
with
the
SIP
or
TIP.
By
developing
a
budget
for
the
installation,
the
Federal
agency
would
generate
a
more
73
accurate
emission
inventory
for
the
activities
at
the
installations
and
provide
the
State,
Tribe
or
local
agency
with
realistic
growth
projections
for
the
installations.

The
emission
budgets
would
encourage
operators
to
identify
ways
of
reducing
emissions
and
adopt
control
measures
when
possible
in
order
to
allow
for
unforeseen
growth.

N.
40
CFR
93.162
 
Emissions
Beyond
the
Time
Period
Covered
by
The
Applicable
SIP
or
TIP
The
EPA
is
proposing
to
add
a
new
section
to
address
how
Federal
agencies
can
demonstrate
conformity
for
an
action
that
causes
emissions
beyond
the
time
period
covered
by
the
SIP
or
TIP.
First,
EPA
is
proposing
to
allow
Federal
agencies
to
demonstrate
conformity
using
the
last
emission
budget
in
the
SIP
or
TIP.
If
it
is
not
practicable
to
demonstrate
conformity
using
that
technique,
then
the
Federal
agency
can
request
the
State
or
Tribe
to
adopt
a
SIP
or
TIP
budget
for
the
future
years.
If
a
State
or
Tribe
adopts
such
a
budget,
it
would
be
required
to
submit
a
SIP
revision
within
18
months
to
include
the
emissions
in
the
SIP
or
TIP
or
committing
to
account
for
the
emissions
in
future
SIPs
or
TIPs.

O.
40
CFR
93.163
 
Timing
of
Offsets
and
Mitigation
Measures
74
The
EPA
is
proposing
to
add
a
new
section
to
address
the
timing
of
offset
and
mitigation
measures.
First,
the
section
generally
requires
that
the
emission
reductions
for
the
offset
and
mitigation
measures
must
occur
in
the
same
calendar
year
as
the
emission
increases
caused
by
the
Federal
action
and
that
the
reductions
are
equal
to
the
emissions
increases.
As
an
alternative,
the
proposed
section
would
allow,
under
special
conditions,
the
State
or
Tribe
to
approve
other
schedules
for
offsets
or
mitigation
measures.

Mitigation
measures
and
offsets
are
used
to
reduce
the
impact
of
emission
increases
from
a
project
or
action.

To
minimize
the
impact
of
the
project's
emissions,
the
emissions
reductions
from
offsets
or
mitigation
measures
should
occur
at
the
same
time
as
the
emission
increases
from
the
project.
In
general,
EPA
has
interpreted
the
existing
regulations
to
mean
that
the
reductions
must
occur
in
the
same
calendar
year
as
the
emission
increases
caused
by
the
action
because
the
total
direct
and
indirect
emissions
from
an
action
are
collated
on
an
annual
basis.

Therefore,
EPA
is
proposing
to
include
this
interpretation
in
the
regulations.

For
certain
projects,
however,
it
may
be
beneficial
for
the
State
or
Tribe
to
approve
mitigation
measures
or
75
offsets
that
do
not
provide
for
emissions
reductions
equal
to
the
emission
increases
for
the
specific
years,
but
provide
net
long­
term
air
quality
benefits.
For
example,

a
project
with
relatively
high
short­
term
emissions,
such
as
a
construction
project,
could
be
mitigated
by
converting
older
equipment
to
electric
or
alternate
fuels.

The
State
or
Tribe
may
find
it
advantageous
to
allow
a
short
period
when
the
emissions
are
not
fully
mitigated
in
return
for
permanent
or
the
long­
term
emissions
reductions.
Therefore,
EPA
is
proposing
to
allow,
under
certain
conditions,
the
State
and
Federal
agency
to
negotiate
alternate
schedules
for
the
implementation
of
the
offsets
and
mitigation
measures.
However,
EPA
believes
that
such
emissions
reductions
should
have
substantial
long­
term
attainment
and
maintenance
benefits.

The
EPA
is
proposing
to
require
that
the
offset
or
mitigation
ratios
be
no
less
than
the
NSR
offset
ratios
for
the
area.
These
ratios
are
simple,
available,
and
are
based
on
the
severity
of
the
nonattainment
problem
for
the
area.
In
addition,
EPA
seeks
comment
on
other
mechanisms
that
could
be
used
to
require
greater
than
one­
for­
one
reductions
for
the
offsets
and
mitigation
measures
that
occur
in
later
years.
Also,
EPA
believes
that
the
mitigation
or
offset
compensation
period
should
not
last
76
indefinitely
and
is
proposing
that
the
period
should
not
exceed
two
times
the
period
of
the
under­
mitigated
emissions.
For
example,
a
Federal
agency
may
be
approving
a
construction
project
lasting
3
years
in
a
serious
nonattainment
area
and
that
project
will
cause
150
tons
per
year
of
increased
emissions;
the
State
or
Tribe
can
approve
mitigation
measures
or
offsets
which
reduce
emissions
by
less
than
150
tons
per
year
provided
the
total
reduction
over
a
6­
year
period
is
equal
to
or
more
than
540
tons
(
150
tons
per
year
times
3
years
equals
450
tons
times
the
offset/
mitigation
ratio
of
1.2
to
1
for
serious
nonattainment
areas
equals
540
tons).
Besides
requesting
comment
on
the
concept
of
allowing
the
States
or
Tribes
to
approve
a
longer
time
period
for
offsetting
or
mitigating
the
emission
increases,
EPA
is
also
seeking
comment
on
the
mechanism
and
procedures
used
to
permit/
implement
the
concept.
In
addition,
EPA
is
seeking
comment
on
the
appropriate
time
period
for
the
Federal
agencies
to
offset
or
mitigate
the
increased
emissions.

The
EPA
is
requesting
comments
on
using
longer
compensation
periods
in
excess
of
two
times
the
project
period.

Agreeing
to
allow
the
use
of
offset
or
mitigation
measures
in
later
years
does
not
exempt
the
State
or
Tribe
77
from
meeting
any
of
its
SIP
or
TIP
obligations,
such
as
reasonable
further
progress
milestones
or
attainment
deadlines.
Emissions
reductions
which
accrue
beyond
the
compensation
period
should
be
properly
reflected
in
the
SIP
or
TIP,
e.
g.
through
a
SIP
revision.

P.
40
CFR
93.164
 
Inter­
Precursor
Offsets
and
Mitigation
Measures
EPA
is
proposing
to
add
a
new
section
to
the
regulations
to
allow
the
use
of
inter­
precursor
offset
and
mitigation
measures
where
they
are
allowed
by
the
SIP.

For
example,
some
States
and
local
air
districts
have
SIPapproved
NSR
regulations
that
allow
new
or
modified
stationary
sources
to
offset
the
increase
in
emissions
of
one
criteria
pollutant
precursor
by
reducing
the
emissions
of
another
precursor
of
the
same
criteria
pollutant,

provided
there
is
an
environmental
benefit
to
such
an
exchange.
The
existing
General
Conformity
regulations
does
not
specifically
allow
or
prohibit
inter­
precursor
offsets
and
mitigation
measures.
Therefore,
EPA
is
proposing
to
allow
such
offsets
or
mitigation
measures
if
they
are
allowed
by
a
State
or
Tribe
NSR
or
trading
program
approved
in
the
SIP;
provided
they:

1.
are
technically
justified;
and
2.
have
a
demonstrated
environmental
benefit.
78
The
ratio
for
the
offsets
must
be
consistent
with
SIP
or
TIP
requirements
and
EPA
guidance.

The
EPA
recognizes
that
the
evaluation
of
the
interprecursor
offsets
may
in
some
cases
be
difficult
and
seeks
comments
on
how
such
offsets
or
mitigation
measures
should
be
evaluated.
The
EPA
expects
to
use
these
comments
in
developing
future
guidance
documents.

Q.
40
CFR
93.165
 
Early
Emission
Reduction
Credit
Program
The
EPA
is
proposing
to
add
a
new
section
to
the
regulations
to
establish
an
early
emission
reduction
credit
program
for
facilities
subject
to
the
General
Conformity
Regulations.
The
existing
regulations
require
that
the
offsets
and
mitigation
measures
be
in
place
before
the
emissions
increases
caused
by
the
Federal
action
occur.
However,
emission
reduction
programs
undertaken
before
the
conformity
determination
is
made
could
be
considered
as
part
of
the
baseline
emissions
and
not
available
as
offsets
or
mitigation
measures.
To
expedite
the
project
level
conformity
process,
Federal
agencies
and
project
sponsors
could
benefit
from
the
ability
to
reduce
emissions
in
advance
of
the
time
that
the
reductions
are
needed
for
a
conformity
evaluation.

Although
the
existing
regulations
do
not
address
the
79
concept,
The
Port
of
Seattle
and
the
Puget
Sound
Clean
Air
Agency
developed
a
program
to
implement
early
emissions
reductions.
In
addition,
Congress
authorized
such
a
program
for
the
General
Conformity
program
in
the
FAA
reauthorization
act
signed
in
December
2003
(
Vision
100
 ­

A
Century
of
Aviation
Reauthorization
Act,
Public
Law
108­

176).
That
Act
authorized
FAA
to
approve
funding
of
programs
to
reduce
emissions
at
the
airports
provided
the
State
would
issue
emission
reduction
credits
that
can
be
used
for
General
Conformity
determinations
and
NSR
offsets.
On
September
30,
2004,
EPA
issued
guidance
on
the
Airport
Emission
Reduction
Credit
(
AERC)
program
to
implement
the
requirements
of
the
December
2003
Act
(
Guidance
on
Airport
Emission
Reduction
Credits
for
Early
Measures
Through
Voluntary
Airport
Low
Emission
Programs,

U.
S.
EPA,
Office
of
Air
Quality
Planning
and
Standards,

September
2004).
Other
Federal
agencies
may
like
to
have
the
opportunity
to
reduce
emissions
prior
to
when
the
reductions
are
needed
to
offset
emission
increases
covered
by
the
General
Conformity
program.

To
clarify
EPA's
intent
that
this
program
be
allowed
for
other
Federal
actions,
EPA
is
proposing
to
add
a
new
section,
§
93.165,
to
the
General
Conformity
Regulations
to
define
the
requirements
of
this
program.
Under
the
80
program,
Federal
agencies
or
interested
third
parties
(
such
as
airport
authorities)
could
identify
emission
control
measures
and
present
the
proposed
reduction
to
the
State,
Tribe
or
local
air
quality
agency.
If
the
measure
met
the
criteria
for
an
offset
(
quantifiable;
consistent
with
the
applicable
SIP
attainment
and
reasonable
further
progress
demonstrations;
surplus
to
the
reductions
required
by
and
credited
to
other
applicable
SIP
provisions;
enforceable
at
both
the
State
and
Federal
levels;
and
permanent
within
the
timeframe
specified
by
the
program)
as
well
as
all
State,
Tribe
or
local
requirements,
the
State,
Tribe
or
local
agency
can,
but
is
not
obligated
to,
approve
the
measure
as
eligible
to
produce
emission
reduction
credits.
If
credits
are
issued,
then
a
Federal
agency
can
use
the
credits
to
reduce
the
total
of
direct
and
indirect
emissions
from
a
proposed
action.
At
the
time
the
credits
are
used
the
State,
Tribe
or
local
agency
must
certify
that
the
reductions
still
meet
the
criteria
listed
above.
The
credits
must
be
used
in
the
same
calendar
year
in
which
they
are
generated.

In
proposed
paragraph
(
a),
EPA
would
establish
the
ability
for
the
State
or
Tribe
and
Federal
agency
to
create
and
use
the
emission
reduction
credits.
81
In
proposed
paragraph
(
b),
EPA
identifies
the
criteria
for
creating
the
credits.
The
criteria
are
the
same
requirements
that
apply
to
any
offset
or
mitigation
measure
used
to
compensate
for
the
increased
emissions
caused
by
the
action.
First,
the
Federal
agency
must
be
able
to
quantify
the
reductions
using
reliable
techniques.

In
some
cases,
however,
it
may
not
be
possible
to
quantify
the
reductions
until
after
the
measure
has
been
implemented.
For
example,
a
facility
may
adopt
a
strategy
calling
for
the
purchase
and
use
of
alternate­
fueled
vehicles.
Although
the
agency
could
calculate
the
difference
in
the
emissions
between
the
alternate­
fueled
vehicle
and
the
standard
vehicle,
it
may
not
know
the
amount
the
vehicles
will
be
used.
In
this
case,
the
State
or
Tribe
and
Federal
agency
could
agree
on
an
emission
factor
and
determine
the
use
at
a
later
time.
The
reductions
must
be
quantified
before
the
credit
is
used
to
support
a
conformity
determination.

In
proposed
paragraph
(
c),
EPA
would
establish
the
requirements
for
the
use
of
the
credits.
If
the
strategy
used
to
produce
the
credit
is
reasonably
connected
to
the
Federal
action,
the
reductions
can
be
added
into
the
net
total
direct
and
indirect
emissions
caused
by
the
action.

In
other
words,
the
credits
can
be
used
in
determining
if
82
the
action
would
cause
emissions
above
the
de
minimis
levels.
If
the
strategy
is
not
reasonably
connected
to
the
action,
then
the
credits
can
be
used
as
offset
or
mitigation
measures
for
the
emissions
caused
by
the
action.
By
reasonably
connected,
EPA
means
that
it
would
be
likely
that
had
the
emission
reduction
strategy
not
been
implemented
early
it
would
have
been
implemented
at
the
time
of
the
Federal
action.
For
example,
an
airport
could
install
equipment
to
supply
power
and
conditioned
air
to
airplanes
parked
at
a
gate
to
reduce
the
use
of
diesel
generators
and
auxiliary
power
units.
Those
reductions
could
probably
be
considered
reasonably
connected
to
an
airport
expansion
project
to
improve
the
terminal.
However,
they
probably
would
not
be
considered
reasonably
connected
to
construction
of
an
aircraft
repair
facility
on
the
airport
property.
Since
the
general
conformity
program
is
based
on
annual
emissions,
EPA
is
proposing
to
require
that
the
credits
be
used
in
the
same
year
as
they
are
generated.
Such
a
restriction
would
ensure
consistency
with
the
other
parts
of
the
general
conformity
program.
This
does
not
mean
that
an
emission
reduction
strategy
can
not
produce
an
annual
stream
of
credits,
but
does
mean
that
the
reduction
credits
can
not
be
carried
over
to
another
year.
83
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
A
significant
@

and,
therefore,
subject
to
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.
84
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
the
Office
of
Management
and
Budget
(
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.

Although
the
present
proposed
revisions
to
the
regulations
do
not
establish
any
specific
new
information
collection
burden,
it
would
establish
alternative
voluntary
approaches
that
may
result
in
a
different
burden.
For
example,
the
proposed
facility­
wide
emission
budget
would
allow
Federal
agencies
or
operators
of
85
facilities
subject
to
the
General
Conformity
Requirements
such
as
commercial
service
airports
to
work
with
the
State,
Tribe
or
local
air
quality
agency
to
develop
an
emission
budget
for
the
facility.
The
State,
Tribe
or
local
agencies
and
Federal
agencies
or
third
party
facility
operators
would
incur
the
burden
of
developing
the
budget.
However,
those
entities
would
be
relieved
of
the
burden
of
conducting
and
reviewing
some,
if
not
all,

the
general
conformity
determinations
for
the
facility.

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

retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,

validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.
An
agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
86
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
proposed
regulations
revisions
on
small
entities,
small
entity
is
defined
as:

1.
A
small
business
that
is
a
small
industrial
entity
as
defined
in
the
U.
S.
Small
Business
Administration
(
SBA)
size
standards.
(
See
13
CFR
121.);

2.
A
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
87
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
of
Federal
implementation
plan
for
attaining
clean
air.
We
continue
to
be
interested
in
the
potential
impacts
of
the
regulations
on
small
entities
and
welcome
comments
on
issues
related
to
related
to
such
impacts.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Public
Law
104­
4,
establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,
and
Tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
regulationss
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
88
year.
Before
promulgating
an
EPA
regulations
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
to
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
regulation.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,

section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
regulations
an
explanation
why
that
alternative
was
not
adopted.
Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
Tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.
89
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
regulations
revisions
are
not
subject
to
the
requirements
of
section
202
and
205
of
the
UMRA.

The
EPA
has
determined
that
these
proposed
regulation
revisions
contain
no
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,

including
Tribal
governments.
Nonetheless,
EPA
carried
out
consultations
with
governmental
entities
affected
by
this
regulation.

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
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
90
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government.@

This
action
does
not
have
Federalism
implications.

It
will
not
have
substantial
direct
effects
on
the
States,

on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,

as
specified
in
Executive
Order
13132.
Previously,
EPA
determined
the
costs
to
States
to
implement
the
General
Conformity
Regulations
to
be
less
than
$
100,000
per
year.

Thus,
Executive
Order
13132
does
not
apply
to
these
proposed
regulation
revisions.

Although
section
6
of
Executive
Order
13132
does
not
apply
to
these
proposed
regulation
revisions,
EPA
held
meetings
with
the
Federal
agencies
and
organizations
that
prepare
technical
support
for
Federal
agencies
determinations
at
which
it
described
the
approaches
it
was
considering
and
provided
an
opportunity
for
States,

Federal
agencies
and
other
stakeholders
to
comment
on
the
options
being
considered.

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,
91
November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
A
meaningful
and
timely
input
by
Tribal
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,
except
for
allowing
the
Tribes
to
comment
on
draft
conformity
determinations,
these
proposed
regulation
revisions
do
not
affect
the
relationship
or
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
Tribes.
The
CAA
and
the
Tribal
Air
Rule
establish
the
relationship
of
the
Federal
government
and
Tribes
in
developing
plans
to
attain
the
NAAQS,
and
these
revisions
to
the
regulations
do
nothing
to
modify
that
relationship.

Because
these
proposed
regulations
revisions
do
not
have
Tribal
implications,
Executive
Order
13175
does
not
apply.

Although
Executive
Order
13175
does
not
apply
to
these
regulations,
EPA
did
consult
with
some
Tribal
officials
in
developing
these
proposed
regulations
revisions
and
encouraged
Tribal
input
at
an
early
stage.
92
The
EPA
specifically
solicits
additional
comment
on
the
revisions
to
the
regulations
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
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
93
FIP
for
attaining
and
maintaining
the
NAAQS.
The
NAAQSs
are
promulgated
to
protect
the
health
and
welfare
of
sensitive
population,
including
children.

H.
Executive
Order
13211:
Actions
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
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.
94
This
revisions
to
the
regulations
do
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,

disproportionate
high
and
adverse
human
health
or
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.
As
such,
they
do
not
affect
the
health
or
safety
of
minority
or
low
income
populations.

The
EPA
encourages
other
agencies
to
carefully
consider
and
address
environmental
justice
in
their
implementation
of
their
evaluations
and
conformity
determinations.
95
LIST
OF
SUBJECTS
in
40
CFR
Parts
51
and
93
Environmental
protection,
Administrative
practice
and
procedures,
Air
pollution
control,
Carbon
monoxide,
96
Proposed
General
Conformity
Revisions
Page
94
of
128
with
reg
text
Intergovernmental
relations,
Lead,
Nitrogen
dioxide,

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

AUTHORITY
42
U.
S.
C.
7401­
7671q
Dated:

___________________________
Stephen
L.
Johnson
Administrator
97
For
the
reasons
stated
in
the
preamble,
Title
40,
Chapter
I
of
the
Code
of
Federal
Regulations
is
amended
as
follows:

Part
51­
Requirements
for
Preparation,
Adoption,
and
Submittal
of
Implementation
Plans
1.
The
authority
citation
for
part
51
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
7401­
7671q.

Subpart
W
­[
Amended]

2.
Remove
and
reserve
§
51.850
and
§
§
51.852
through
51.860
3.
Section
51.851
is
amended
by
revising
paragraph
(
a);

by
revising
and
dividing
paragraph
(
b)
into
paragraphs
(
b),
(
c),
(
d),
and
(
e);
and
by
adding
paragraph
(
f);
to
read
as
follows:

§
51.851
State
implementation
plan
(
SIP)
or
Tribal
implementation
plan
(
TIP)
revision.

(
a)
A
State
or
eligible
Tribe
(
a
Federally
recognized
Tribal
government
determined
to
be
eligible
to
submit
a
TIP
under
40
CFR
49.6)
may
submit
to
the
Environmental
Protection
Agency
(
EPA)
a
revision
to
its
applicable
implementation
plan
which
contains
criteria
and
procedures
for
assessing
the
conformity
of
Federal
actions
to
the
applicable
implementation
plan,
consistent
with
this
section
and
part
93,
subpart
B.
98
(
b)
Until
EPA
approves
the
conformity
implementation
plan
revision
permitted
by
this
section,
Federal
agencies
shall
use
the
provisions
of
40
CFR
part
93,
subpart
B
in
addition,
to
any
existing
applicable
State
or
Tribal
requirements,
to
demonstrate
conformity
with
the
applicable
SIP
or
TIP
as
required
by
section
176(
c)
of
the
CAA
(
42
USC
7506).

(
c)
Following
EPA
approval
of
the
State
or
Tribal
conformity
provisions
(
or
a
portion
thereof)
in
a
revision
to
the
applicable
SIP,
conformity
determinations
shall
be
governed
by
the
approved
(
or
approved
portion
of)
State
criteria
and
procedures.
The
Federal
conformity
regulations
contained
in
40
CFR
93,
subpart
B
would
apply
only
for
the
portion,
if
any,
of
the
State's
or
Tribe's
conformity
provisions
that
is
not
approved
by
EPA.

(
d)
The
State
or
Tribal
conformity
plan
criteria
and
procedures
cannot
be
any
less
stringent
than
the
requirements
in
40
CFR
part
93,
subpart
B.

(
e)
A
State's
or
Tribe's
conformity
provisions
may
contain
criteria
and
procedures
more
stringent
than
the
requirements
described
in
this
subpart
and
part
93,

subpart
B,
only
if
the
State's
or
Tribe's
conformity
provisions
apply
equally
to
non­
Federal
as
well
as
Federal
entities.
99
(
f)
In
its
SIP
or
TIP,
the
State
or
Tribe
may
identify
a
list
of
Federal
actions
or
type
of
emissions
that
it
presumes
will
conform.
The
State
or
Tribe
may
place
whatever
limitations
on
that
list
that
it
deems
necessary.
The
State
or
Tribe
must
demonstrate
that
the
action
will
not
interfere
with
attainment
or
maintenance
of
the
standard,
meeting
the
reasonable
further
progress
milestones
or
other
requirements
of
the
Clean
Air
Act.

For
example,
the
State
may
identify
the
emissions
from
a
certain
type
and
size
of
construction
activities
that
it
presumes
will
conform.
Federal
agencies
can
use
the
list
to
determine
their
"
presumed
to
conform"
emissions.

(
g)
Any
previously
applicable
SIP
or
TIP
requirements
relating
to
conformity
remain
enforceable
until
EPA
approves
the
revision
to
the
SIP
or
TIP
to
specifically
remove
them.
100
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]

2.
Section
93.150
is
amended
by
removing
and
reserving
paragraph
(
c)
and
by
adding
paragraph
(
e)
to
read
as
follows:

§
93.150
Prohibition
*
*
*
*
*

(
c)
Remove
and
Reserved.

*
*
*
*
*

(
e)
If
an
action
would
result
in
emissions
in
more
than
one
nonattainment
or
maintenance
area,
the
conformity
must
be
evaluated
for
each
area
separately.

3.
Section
93.151
is
amended
by
revising
the
section
to
read
as
follows:

§
93.151
State
implementation
plan
(
SIP)
revision.

The
provisions
and
requirements
of
this
subpart
to
demonstrate
conformity
required
under
section
176(
c)
of
101
the
Clean
Air
Act
(
CAA)
apply
to
all
Federal
actions
in
designated
nonattainment
and
maintenance
areas
where
EPA
has
not
approved
the
SIP
required
under
40
CFR
51.851.

When
EPA
approves
a
State's
conformity
provisions
(
or
a
portion
thereof)
in
a
revision
to
an
applicable
implementation
plan,
a
conformity
evaluation
is
governed
by
the
approved
(
or
approved
portion
of)
the
State
criteria
and
procedures.
The
Federal
conformity
regulations
contained
in
this
subpart
apply
only
for
the
portions,
if
any,
of
the
State's
conformity
provisions
that
are
not
approved
by
EPA.
In
addition,
any
previously
applicable
implementation
plan
conformity
requirements
remain
enforceable
until
the
EPA
approves
the
revision
to
the
applicable
SIP
to
specifically
include
the
revised
requirements.

4.
Section
93.152
is
amended
as
follows:

a.
After
the
definition
for
"
Affected
Federal
land
manager,"
add
the
definition
for
"
Applicability
analysis."

b.
Revise
the
definition
of
"
Applicable
implementation
plan
or
applicable
SIP."

c.
Revise
the
definition
for
"
Areawide
air
quality
modeling
analysis."

d.
Following
the
definition
of
"
Caused
by,"
add
the
following
definitions:
"
Classified
information,"
102
"
Confidential
business
information,"
"
Conformity
determination,"
"
Conformity
evaluation,"
"
Continuing
program
responsibility,"
and
"
Continuous
program
to
implement."

e.
Revise
the
definition
of
"
Direct
emissions."

f.
Revise
the
definition
of
"
Emergency."

g.
After
the
definition
for
"
Emission
budget,"
add
a
new
definition
for
"
Emission
inventory."

h.
Delete
the
definition
for
"
Emissions
that
a
Federal
agency
has
a
continuing
program
responsibility
for."

i.
Revise
the
definition
of
"
EPA."

j
Revise
the
definition
of
"
Local
air
quality
modeling
analysis."

k.
After
the
definition
of
"
Milestone,"
add
a
definition
for
"
Mitigations
measure."

l.
Revise
the
definition
of
"
Maintenance
area."

m.
Revise
the
definition
for
"
National
ambient
air
quality
standards"
to
include
PM2.5.

n.
After
the
definition
of
"
National
ambient
air
quality
standards,"
add
the
definition
for
"
National
security."
103
o.
Revise
definitions
for
"
Precursors
of
a
criteria
pollutant
are:"
by
adding
sub­
paragraphs
(
3)(
i),
(
3)(
ii)

and
(
3)(
iii).

p.
Revise
the
definition
for
"
Reasonably
foreseeable
emissions."

q.
Delete
the
definition
for
"
Regionally
significant
action."

r.
After
the
definition
of
"
regional
water
and/
or
wastewater
project,"
add
a
definition
for
"
take
or
start
the
Federal
action:"

The
additions
and
revisions
read
as
follows:

§
93.152
Definitions
*
*
*
*
*

Applicability
analysis
is
the
process
of
determining
if
your
Federal
action
must
be
supported
by
a
conformity
determination.

Applicable
implementation
plan
or
applicable
SIP
means
the
portion
(
or
portions)
of
the
SIP
or
most
recent
revision
thereof,
which
has
been
approved
under
section
110(
k)
of
the
Act,
a
Federal
implementation
plan
promulgated
under
section
110(
c)
of
the
Act,
or
a
plan
promulgated
or
approved
pursuant
to
section
301
(
d)
of
the
Act
(
Tribal
implementation
plan
or
TIP)
and
which
implements
the
relevant
requirements
of
the
Act.
104
Areawide
air
quality
modeling
analysis
means
an
assessment
on
a
scale
that
includes
the
entire
nonattainment
or
maintenance
area
using
an
air
quality
dispersion
model
or
photochemical
grid
model
to
determine
the
effects
of
emissions
on
air
quality,
for
example,
an
assessment
using
EPA's
community
multilayer
air
quality
(
CMAQ)
model.

*
*
*
*
*

Classified
Information
as
defined
by
Classified
Information
Procedures
Act
18
U.
S.
C.
A.
App.
3,
§
1(
a)
means
information
or
materials
subject
to
the
including
of
any
information
or
material
that
has
been
determined
by
the
United
States
Government
pursuant
to
an
Executive
Order,

statute,
or
regulation,
to
require
protection
against
unauthorized
disclosure
for
reasons
of
national
security
and
any
restricted
data,
as
defined
in
paragraph
r.
of
section
11
of
the
Atomic
Energy
Act
of
1954
(
42
U.
S.
C.

2014(
y)(
b)).

Confidential
business
information
(
CBI)
is
information
that
has
been
determined
by
a
Federal
agency,

in
accordance
with
its
applicable
regulations,
to
be
a
trade
secret
or
commercial
or
financial
information
obtained
from
a
person
and
privileged
or
confidential;
it
is
exempt
from
required
disclosure
under
the
Freedom
of
105
Information
Act
(
5
U.
S.
C.
552(
b)(
4)).

Conformity
determination
is
the
evaluation
made
after
an
applicability
analysis
is
completed
that
a
Federal
action
conforms
to
the
applicable
implementation
plan
and
meets
the
requirements
of
this
subpart.

Conformity
evaluation
is
the
entire
process
from
the
applicability
analysis
through
the
conformity
determination
demonstrating
that
the
Federal
action
conforms
to
the
requirements
of
this
subpart.

Continuing
program
responsibility
means
a
Federal
agency
has
responsibility
for
emissions
caused
by:

1.
Actions
it
takes
itself,
or
2.
Actions
of
non­
Federal
entities
that
the
Federal
agency,
in
exercising
its
normal
programs
and
authorities,

approves,
funds,
licenses
or
permits;
provided
the
agency
can
impose
conditions
on
any
portion
of
the
action
that
could
affect
the
emissions.

Continuous
program
to
implement
means
that
the
Federal
agency
has
started
the
action
identified
in
the
plan
and
does
not
stop
the
actions
for
more
than
an
18­

month
period,
unless
it
can
demonstrate
that
such
a
stoppage
was
included
in
the
original
plan.

*
*
*
*
*

Direct
emissions
means
those
emissions
of
a
criteria
106
pollutant
or
its
precursors
that
are
caused
or
initiated
by
the
Federal
action
and
occur
at
the
same
time
and
place
as
the
action
and
are
reasonably
foreseeable.

Emergency
means
a
situation
where
extremely
quick
action
on
the
part
of
the
Federal
agencies
involved
is
needed
and
where
the
timing
of
such
Federal
activities
makes
it
impractical
to
meet
the
requirements
of
this
subpart,
because
of
events
such
as
natural
disasters
(
e.
g.,
hurricanes
or
earthquakes),
civil
disturbances
(
e.
g.,
riots
and
terrorist
acts),
or
acts
of
war.

Emission
Inventory
is
a
listing
of
information
on
the
location,
type
of
source,
type
and
quantity
of
pollutant
emitted
as
well
as
other
parameters
of
the
emissions.

*
*
*
*
*

EPA
means
the
U.
S.
Environmental
Protection
Agency.

*.*
*
*
*

Local
air
quality
modeling
analysis
means
an
assessment
of
localized
impacts
on
a
scale
smaller
than
the
entire
nonattainment
or
maintenance
area,
including,

for
example,
congested
roadway
intersections
and
highways
or
transit
terminals,
which
uses
an
air
quality
dispersion
model,
e.
g.,
Industrial
Source
Complex
Model
or
Emission
and
Dispersion
Model
System,
to
determine
the
effects
of
emissions
on
air
quality.
107
Maintenance
area
means
an
area
that
was
designated
as
nonattainment
and
has
been
re­
designated
in
40
CFR
part
81
to
attainment,
meeting
the
provisions
of
section
107(
d)(
3)(
E)
of
the
Act
and
has
a
maintenance
plan
approved
under
section
175A
of
the
Act.

*
*
*
*
*

Mitigation
measure
means
any
method
of
reducing
emissions
of
the
pollutant
or
its
precursor
taken
at
the
location
of
the
Federal
action
and
used
to
reduce
the
impact
of
the
emissions
of
that
pollutant
caused
by
the
action.

National
ambient
air
quality
standards
(
NAAQS)
are
those
standards
established
pursuant
to
section
109
of
the
Act
and
include
standards
for
carbon
monoxide
(
CO),
lead
(
Pb),
nitrogen
dioxide
(
NO2),
ozone,
particulate
matter
(
PM­
10
and
PM2.5),
and
sulfur
dioxide
(
SO2).

National
Security
means
activities
for
the
national
defense,
homeland
security
and
foreign
relations
of
the
United
States.

*
*
*
*
*

Precursors
of
a
criteria
pollutant
are:

(
1)
*
*
*

(
2)
*
*
*

(
3)
For
PM2.5:
108
(
i)
Sulfur
dioxide
(
SO2)
in
all
PM2.5
nonattainment
and
maintenance
areas,

(
ii)
Nitrogen
oxides
in
all
PM2.5
nonattainment
and
maintenance
areas
unless
both
the
State
and
EPA
determine
that
it
is
not
a
significant
precursor,
and
(
iii)
Volatile
organic
compounds
(
VOC)
and
ammonia
(
NH3)
only
in
PM2.5
nonattainment
or
maintenance
areas
where
either
the
State
or
EPA
determines
that
they
are
significant
precursors.

Reasonably
foreseeable
emissions
are
projected
future
direct
and
indirect
emissions
that
are
identified
at
the
time
the
conformity
determination
is
made;
the
location
of
such
emissions
is
known
and
the
emissions
are
quantifiable;
as
described
and
documented
by
the
Federal
agency
based
on
its
own
information
and
after
reviewing
any
information
presented
to
the
Federal
agency.

*
*
*
*
*

Take
or
start
the
Federal
action
means
the
date
that
the
Federal
agency
signs
or
approves
the
permit,
license,

grant
or
contract
or
otherwise
begins
the
Federal
action
that
requires
a
conformity
evaluation
under
this
subpart.

Tribal
implementation
plan
(
TIP)
means
a
plan
to
implement
the
national
ambient
air
quality
standards
adopted
by
a
federally­
recognized
Indian
Tribal
government
109
determined
to
be
eligible
under
40
CFR
49.9
and
the
plan
has
been
approved
by
EPA.

*
*
*
*
*

5.
Section
93.153
is
amended
by
revising
the
title
of
the
section;
revising
paragraphs
(
b),
(
c)(
1),

(
c)(
2)(
iii),
(
d),
(
e)(
2),
(
f),
(
g)(
1),
(
g)(
3),
(
h),
(
i)

(
j),
and
(
k),.

§
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
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):
110
Tons/
year
Ozone
(
VOC's
or
NOx):

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

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

Moderate
NAA's
100
Serious
NAA's
70
PM2.5
Direct
emissions
100
SO2
100
NOx
(
unless
determined
not
to
be
significant
precursors)
100
VOC
or
ammonia
(
if
determined
to
be
significant
precursors)
100
Pb:
All
NAA's
25
(
c)
The
requirements
of
this
subpart
shall
not
apply
to
the
following
Federal
actions:

(
1)
Actions
where
the
total
direct
and
indirect
emissions
are
below
the
emissions
levels
specified
in
paragraph
(
b)
of
this
section.
111
(
2)
*
*
*

(
iii)
Procedures
for
rulemaking
and
policy
development
and
issuance.

*
*
*
*
*

(
d)
*
*
*

(
1)
The
portion
of
an
action
that
includes
major
or
minor
new
or
modified
stationary
sources
that
require
a
permit
under
the
new
source
review
(
NSR)
program
(
section
173
of
the
Act)
or
the
prevention
of
significant
deterioration
program
(
title
I,
part
C
of
the
Act).

(
2)
Actions
in
response
to
emergencies
which
are
commenced
on
the
order
of
hours
or
days
after
the
emergency
and,
if
applicable,
which
meet
the
requirements
of
paragraph
(
e)
of
this
section.

*
*
*
*
*

(
e)
*
*
*

(
1)
*
*
*

(
2)
For
actions
which
are
to
be
taken
after
those
actions
covered
by
paragraph
(
e)(
1)
of
this
section,
the
Federal
agency
makes
a
new
determination
as
provided
in
paragraph
(
e)(
1)
of
this
section
and:

(
i)
provides
a
draft
copy
of
the
written
determinations
required
to
affected
EPA
Regional
office(
s),
the
affected
State(
s)
and/
or
air
pollution
112
control
agencies,
and
any
Federal
recognized
Indian
Tribal
government
in
the
nonattainment
or
maintenance
area.

Those
organizations
must
be
allowed
15
days
to
comment
on
the
draft
determination,
and
(
ii)
Within
30
days
after
making
the
determination,

publish
a
notice
of
the
determination
by
placing
a
prominent
advertisement
in
a
daily
newspaper
of
general
circulation
in
the
area
affected
by
the
action.

(
3)
If
additional
actions
are
necessary
beyond
the
specified
time
period
in
(
2)
above,
a
Federal
agency
can
make
a
new
written
determination
as
described
in
(
2)

above,
but
in
no
case
shall
this
exemption
extend
beyond
2
years
from
the
date
of
the
emergency.

(
f)
Notwithstanding
other
requirements
of
this
subpart,
actions
specified
by
individual
Federal
agencies
that
have
met
the
criteria
set
forth
in
either
paragraphs
(
g)(
1)
(
g)(
2)
or
(
g)(
3)
of
this
section
and
the
procedures
set
forth
in
paragraph
(
h)
of
this
section
are
presumed
to
conform,
except
as
provided
in
paragraph
(
j)
of
this
section.

(
g)
The
Federal
agency
must
meet
the
criteria
for
establishing
activities
that
are
presumed
to
conform
by
fulfilling
the
requirements
set
forth
in
either
paragraphs
(
g)(
1),
(
g)(
2),
or
(
g)(
3)
of
this
section:
113
(
1)
*
*
*

(
2)
*
*
*

(
3)
The
Federal
agency
must
clearly
demonstrate
that
the
emissions
from
the
type
or
category
of
actions
and
the
amount
of
emissions
from
the
action
are
included
in
the
applicable
SIP
and
the
State
or
local
air
quality
agencies
responsible
for
the
SIP(
s)
provide
written
concurrence
that
the
emissions
from
the
actions
along
with
all
other
expected
emissions
in
the
area
will
not
exceed
the
emission
budget
in
the
SIP.

(
h)
In
addition
to
meeting
the
criteria
for
establishing
exemptions
set
forth
in
paragraphs
(
g)(
1)

(
g)(
2)
or
(
g)(
3)
of
this
section,
the
following
procedures
must
also
be
complied
with
to
presume
that
activities
will
conform:

(
1)
The
Federal
agency
must
identify
through
publication
in
the
Federal
Register
its
list
of
proposed
activities
that
are
presumed
to
conform
and
the
basis
for
the
presumptions.
The
notice
must
clearly
identify
the
type
and
size
of
the
action
that
would
be
presumed
to
conform
and
provide
criteria
for
determining
if
the
type
and
size
action
qualifies
it
for
the
presumption;

(
2)
The
Federal
agency
must
notify
the
appropriate
EPA
Regional
Office(
s),
State
and
local
air
quality
114
agencies
and,
where
applicable,
the
agency
designated
under
section
174
of
the
Act
and
the
MPO
and
provide
at
least
30
days
for
the
public
to
comment
on
the
list
of
proposed
activities
presumed
to
conform.
If
the
presumed
to
conform
action
has
regional
or
national
application
(
e.
g.,
the
action
will
cause
emission
increases
in
excess
of
the
de
minimis
levels
identified
in
§
93.153
(
b)
in
more
than
three
of
EPA's
Regions),
the
Federal
agency,
as
an
alternative
to
sending
it
to
EPA
Regional
Offices,
can
send
the
draft
conformity
determination
to
U.
S.
EPA,

Office
of
Air
Quality
Planning
and
Standards;

(
3)
*
*
*

(
4)
The
Federal
agency
must
publish
the
final
list
of
such
activities
in
the
Federal
Register.

(
i)
Emissions
from
the
following
actions
are
presumed
to
conform:

(
1)
Actions
at
installations
with
facility­
wide
emission
budgets
meeting
the
requirements
in
§
93.161
provided
that
the
State
has
included
the
emission
budget
in
the
EPA
approved
SIP
and
the
emissions
from
the
action
along
with
all
other
emissions
from
the
installation
will
not
exceed
the
facility­
wide
emission
budget.

(
2)
Prescription
fires
conducted
in
accordance
with
approved
smoke
management
plan
which
meets
the
115
requirements
of
EPA's
Interim
Air
Quality
Policy
on
Wildland
and
Prescribed
Fires.

(
3)
Emissions
for
actions
that
the
State
identifies
in
the
EPA
approved
SIP
as
presumed
to
conform.

(
j)
Even
though
an
action
would
otherwise
be
presumed
to
conform
under
paragraph
(
f)
or
(
i)
of
this
section,
an
action
shall
not
be
presumed
to
conform
and
the
requirements
of
§
§
93.150,
§
93.151,
§
§
93.154
through
§
93.160
and
§
§
93.162
through
93.164
shall
apply
to
the
action
if
EPA
or
a
third
party
shows
that
the
action
would:

(
i)
Cause
or
contribute
to
any
new
violation
of
any
standard
in
any
area;

(
ii)
Interfere
with
provisions
in
the
applicable
SIP
for
maintenance
of
any
standard;

(
iii)
Increase
the
frequency
or
severity
of
any
existing
violation
of
any
standard
in
any
area;
or
(
iv)
Delay
timely
attainment
of
any
standard
or
any
required
interim
emissions
reductions
or
other
milestones
in
any
area
including,
where
applicable,
emission
levels
specified
in
the
applicable
SIP
for
purposes
of:

(
A)
A
demonstration
of
reasonable
further
progress;

(
B)
A
demonstration
of
attainment;
or
(
C)
A
maintenance
plan.
116
(
k)
The
provisions
of
this
subpart
shall
apply
in
all
nonattainment
and
maintenance
areas
except
conformity
requirements
for
newly
designated
nonattainment
areas
are
not
applicable
until
1
year
after
the
effective
date
of
the
designation
in
accordance
with
section
176(
c)(
6)
of
the
Act.

6.
Section
93.154
is
amended
by
revising
the
title
of
the
section
and
revising
the
section
to
read
as
follows:

§
93.154
Federal
agency
conformity
responsibility.

Any
department,
agency,
or
instrumentality
of
the
Federal
government
taking
an
action
subject
to
this
subpart
must
make
its
own
conformity
determination
consistent
with
the
requirements
of
this
subpart.
In
making
its
conformity
determination,
a
Federal
agency
must
follow
the
requirements
in
§
§
93.155
through
93.160
and
§
§
93.162
through
93.165
and
must
consider
comments
from
any
interested
parties.
Where
multiple
Federal
agencies
have
jurisdiction
for
various
aspects
of
a
project,
a
Federal
agency
may
choose
to
adopt
the
analysis
of
another
Federal
agency
or
develop
its
own
analysis
in
order
to
make
its
conformity
determination.

7.
Section
93.155
is
amended
by
revising
paragraphs
(
a)
and
(
b)
and
adding
paragraph
(
c)
to
read
as
follows:
117
§
93.155
Reporting
requirements.

(
a)
A
Federal
agency
making
a
conformity
determination
under
§
§
93.154
through
93.160
and
§
§
93.162
through
93.164
must
provide
to
the
appropriate
EPA
Regional
Office(
s),
State
and
local
air
quality
agencies,

any
federally­
recognized
Indian
Tribal
government
in
the
nonattainment
or
maintenance
area,
and,
where
applicable,

affected
Federal
land
managers,
the
agency
designated
under
section
174
of
the
Act
and
the
MPO
a
30­
day
notice
which
describes
the
proposed
action
and
the
Federal
agency's
draft
conformity
determination
on
the
action.
If
the
action
has
multi­
regional
or
national
impacts
(
e.
g.,

the
action
will
cause
emission
increases
in
excess
of
the
de
minimis
levels
identified
in
§
93.153
(
b)
in
three
or
more
of
EPA's
Regions),
the
Federal
agency,
as
an
alternative
to
sending
it
to
EPA
Regional
Offices,
can
provide
the
notice
to
EPA's
Office
of
Air
Quality
Planning
and
Standards.

(
b)
A
Federal
agency
must
notify
the
appropriate
EPA
Regional
Office(
s),
State
and
local
air
quality
agencies,

any
federally­
recognized
Indian
Tribal
government
in
the
nonattainment
or
maintenance
area,
and,
where
applicable,

affected
Federal
land
managers,
the
agency
designated
under
section
174
of
the
Clean
Air
Act
and
the
MPO
within
118
30
days
after
making
a
final
conformity
determination
under
this
subpart.

(
c)
The
draft
and
final
conformity
determination
shall
exclude
any
classified
information
or
confidential
business
information.
The
disclosure
of
classified
information
and
confidential
business
information
shall
be
controlled
by
the
applicable
laws,
regulations,
security
manuals,
or
executive
orders
concerning
the
use,
access,

and
release
of
such
materials.
Subject
to
applicable
procedures
to
protect
classified
information
from
public
disclosure,
any
information
or
materials
excluded
from
the
draft
or
final
conformity
determination
or
supporting
materials
may
be
made
available
in
a
classified
annex
to
the
determination
for
review
by
Federal
and
State
representatives
who
have
received
appropriate
security
clearances.

8.
Section
93.156
is
amended
by
revising
paragraphs
(
a),
(
b),
(
c),
and
(
d)
and
adding
paragraph
(
e)
to
read
as
follows:

§
93.156
Public
participation.

(
a)
Upon
request
by
any
person
regarding
a
specific
Federal
action,
a
Federal
agency
must
make
available,

subject
to
the
limitation
in
(
e)
of
this
section,
for
review
its
draft
conformity
determination
under
§
93.154
119
with
supporting
materials
which
describe
the
analytical
methods
and
conclusions
relied
upon
in
making
the
applicability
analysis
and
draft
conformity
determination.

(
b)
A
Federal
agency
must
make
public
its
draft
conformity
determination
under
§
93.154
by
placing
a
notice
by
prominent
advertisement
in
a
daily
newspaper
of
general
circulation
in
the
area
affected
by
the
action
and
by
providing
30
days
for
written
public
comment
prior
to
taking
any
formal
action
on
the
draft
determination.
This
comment
period
may
be
concurrent
with
any
other
public
involvement,
such
as
occurs
in
the
National
Environmental
Policy
Act
(
NEPA)
process.
If
the
action
has
multiregional
or
national
impacts
(
e.
g.,
the
action
will
cause
emission
increases
in
excess
of
the
de
minimis
levels
identified
in
§
93.153
(
b)
in
three
or
more
of
EPA's
Regions),
the
Federal
agency,
as
an
alternative
to
publishing
separate
notices,
can
publish
a
notice
in
the
Federal
Register.

(
c)
A
Federal
agency
must
document
its
response
to
all
the
comments
received
on
its
draft
conformity
determination
under
§
93.154
and
make
the
comments
and
responses
available,
subject
to
the
limitation
in
paragraph
(
e)
of
this
section,
upon
request
by
any
person
120
regarding
a
specific
Federal
action,
within
30
days
of
the
final
conformity
determination.

(
d)
A
Federal
agency
must
make
public
its
final
conformity
determination
under
§
93.154
for
a
Federal
action
by
placing
a
notice
by
prominent
advertisement
in
a
daily
newspaper
of
general
circulation
in
the
area
affected
by
the
action
within
30
days
of
the
final
conformity
determination.
If
the
action
would
have
multiregional
or
national
impacts
the
Federal
agency,
as
an
alternative,
can
publish
the
notice
in
the
Federal
Register.

(
e)
The
draft
and
final
conformity
determination
shall
exclude
any
classified
information
or
confidential
business
information.
The
disclosure
of
classified
information
and
confidential
business
information
shall
be
controlled
by
the
applicable
laws,
regulations
or
executive
orders
concerning
the
release
of
such
materials.

9.
Section
93.157
is
amended
by
revising
the
title
of
the
section
,
adding
introductory
text;
revising
paragraphs
(
a)
and
(
b)
and
adding
paragraph
(
d),
to
read
as
follows:

§
93.157
Reevaluation
of
conformity.

Once
a
conformity
evaluation
is
completed
by
a
Federal
agency,
that
determination
is
not
required
to
be
121
re­
evaluated
if
the
agency
has
(
1)
maintained
a
continuous
program
to
implement
the
action;
(
2)
the
determination
has
not
lapsed
as
specified
in
paragraph
(
a)
of
this
section;

or
(
3)
any
modification
to
the
action
does
not
result
in
an
increase
in
emissions
above
the
levels
specified
in
subparagraphs
(
c)
and
(
d)
of
this
section.
If
a
conformity
determination
is
not
required
for
the
action
at
the
time
NEPA
analysis
is
completed,
the
date
of
the
finding
of
no
significant
impact
(
FONSI)
for
an
Environmental
Assessment,
or
a
record
of
decision
(
ROD)

for
an
Environmental
Impact
Statement,
can
be
used
as
a
substitute
date
for
the
conformity
determination
date.

(
a)
The
conformity
status
of
a
Federal
action
automatically
lapses
5
years
from
the
date
a
final
conformity
determination
is
reported
under
§
93.155,
unless
the
Federal
action
has
been
completed
or
a
continuous
program
to
implement
the
Federal
action
has
been
commenced.

(
b)
Ongoing
Federal
activities
at
a
given
site
showing
continuous
progress
are
not
new
actions
and
do
not
require
periodic
re­
determinations
so
long
as
such
activities
are
within
the
scope
of
the
final
conformity
determination
reported
under
§
93.155
or
the
NEPA
analysis.

*
*
*
*
*
122
(
d)
If
the
Federal
agency
determines
through
the
applicability
analysis
that
a
conformity
determination
was
not
necessary
because
the
emissions
for
the
action
were
below
the
limits
in
§
93.153(
b)
and
changes
to
the
action
would
result
in
the
total
emissions
from
the
action
being
above
the
limits
in
§
93.153(
b),
then
the
Federal
agency
must
make
a
conformity
determination.

10.
Section
93.158
is
amended
as
follows:

a.
Revising
sub­
paragraphs
(
a)(
1),
(
a)(
2),
(
a)(
3)

and
(
a)(
4);

b.
Correcting
the
sub­
paragraph
citation
in
(
a)(
5);

c.
Revising
sub­
paragraphs
(
a)(
5)(
i),
and
(
a)(
5)(
i)(
C),
and
d.
Revising
sub­
paragraphs
(
a)(
5)(
iii),
(
a)(
5)(
iv);

(
a)(
5)(
iv)(
A)(
1),
(
a)(
5)(
iv)(
A)(
2)
and
paragraph
(
a)(
5)(
iv)(
A)(
3).

The
revised
and
new
paragraphs
in
§
93.158
read
as
follows:

§
93.158
Criteria
for
determining
conformity
of
general
Federal
actions
(
a)
An
action
required
under
§
93.153
to
have
a
conformity
determination
for
a
specific
pollutant
or
precursor,
will
be
determined
to
conform
to
the
applicable
SIP
if,
for
each
pollutant
that
exceeds
the
rates
in
123
§
93.153(
b),
or
otherwise
requires
a
conformity
determination
due
to
the
total
of
direct
and
indirect
emissions
from
the
action,
the
action
meets
the
requirements
of
paragraph
(
c)
of
this
section,
and
meets
any
of
the
following
requirements:

(
1)
For
any
criteria
pollutant
or
precursor,
the
total
of
direct
and
indirect
emissions
from
the
action
are
specifically
identified
and
accounted
for
in
the
applicable
SIP's
attainment
or
maintenance
demonstration
or
reasonable
further
progress
milestone;

(
2)
For
precursors
of
ozone,
nitrogen
dioxide,
or
PM,

the
total
of
direct
and
indirect
emissions
from
the
action
are
fully
offset
within
the
same
nonattainment
or
maintenance
area
(
or
nearby
area
of
equal
or
higher
classification
provided
the
emissions
from
that
area
contribute
to
the
violations,
or
have
contributed
to
violation
in
the
past,
in
the
area
with
the
Federal
action)
through
a
revision
to
the
applicable
SIP
or
a
similarly
enforceable
measure
that
effects
emissions
reductions
so
that
there
is
no
net
increase
in
emissions
of
that
pollutant;

(
3)
For
any
directly­
emitted
criteria
pollutant,
the
total
of
direct
and
indirect
emissions
from
the
action
meets
the
requirements:
124
*
*
*

(
4)
For
CO
or
directly
emitted
PM 

(
i)*
*
*

(
ii)*
*
*

(
5)
For
ozone
or
nitrogen
dioxide,
and
for
purposes
of
paragraphs
(
a)(
3)(
ii)
and
(
a)(
4)(
ii)
of
this
section,

each
portion
of
the
action
or
the
action
as
a
whole
meets
any
of
the
following
requirements:

(
i)
Where
EPA
has
approved
a
revision
to
the
applicable
implementation
plan
after
the
area
was
designated
as
nonattainment
and
the
State
makes
a
determination
as
provided
in
paragraph
(
a)(
5)(
i)(
A)
of
this
section
or
where
the
State
makes
a
commitment
as
provided
in
paragraph
(
a)(
5)(
i)(
B)
of
this
section:

*
*
*
*
*

(
C)
Where
a
Federal
agency
made
a
conformity
determination
based
on
a
State
commitment
under
paragraph
(
a)(
5)(
i)(
B)
of
this
section
and
the
State
has
submitted
a
SIP
to
EPA
covering
the
time
period
during
which
the
emissions
will
occur
or
is
scheduled
to
submit
such
a
SIP
within
18
months
of
the
conformity
determination,
the
State
commitment
is
automatically
deemed
a
call
for
a
SIP
revision
by
EPA
under
section
110(
k)(
5)
of
the
Act,

effective
on
the
date
of
the
Federal
conformity
125
determination
and
requiring
response
within
18
months
or
any
shorter
time
within
which
the
State
commits
to
revise
the
applicable
SIP;

(
D)
Where
a
Federal
agency
made
a
conformity
determination
based
on
a
State
commitment
under
paragraph
(
a)(
5)(
i)(
B)
of
this
section
and
the
State
has
not
submitted
a
SIP
covering
the
time
period
of
the
emissions
will
occur
or
is
not
scheduled
to
submit
such
a
SIP
within
18
months
of
the
conformity
determination,
the
State
must,

within
18
months,
submit
to
EPA
a
revision
to
the
existing
SIP
committing
to
include
the
emissions
in
the
future
SIP
revision.

(
ii)
*
*
*

(
iii)
The
action
(
or
portion
thereof)
fully
offsets
its
emissions
within
the
same
nonattainment
or
maintenance
area
(
or
nearby
area
of
equal
or
higher
classification
provided
the
emissions
from
that
area
contribute
to
the
violations,
or
have
contributed
to
violation
in
the
past,

in
the
area
with
the
Federal
action)
through
a
revision
to
the
applicable
SIP
or
an
equally
enforceable
measure
that
effects
emissions
reductions
equal
to
or
greater
than
the
total
of
direct
and
indirect
emissions
from
the
action
so
that
there
is
no
net
increase
in
emissions
of
that
pollutant;
126
(
iv)
Where
EPA
has
not
approved
a
revision
to
the
relevant
SIP
since
the
area
was
designated
or
reclassified,
the
total
of
direct
and
indirect
emissions
from
the
action
for
the
future
years
(
described
in
§
93.159(
d))
do
not
increase
emissions
with
respect
to
the
baseline
emissions:

(
A)
*
*
*

(
1)
The
calendar
year
that
is
the
basis
for
the
most
recent
designation
or
classification;

(
2)
The
emission
budget
in
the
applicable
SIP;

(
B)
The
baseline
emissions
are
the
total
of
direct
and
indirect
emissions
calculated
for
the
future
years
(
described
in
§
93.159(
d))
using
the
historic
activity
levels
(
described
in
paragraph
(
a)(
5)(
iv)(
A)
of
this
section)
and
appropriate
emission
factors
for
the
future
years;
or
*
*
*
*
*

11.
Section
93.159
is
amended
by:

a.
Adding
the
section
symbol
to
the
title;
correcting
typographical
errors
in
paragraphs
(
b)
and
(
b)(
1)(
ii);

b.
Revising
paragraphs
(
b)(
2)
and
(
c);
and
c.
Deleting
the
footnotes
in
those
paragraphs,
and
revising
paragraph
(
d)
including
adding
sub­
paragraph
(
d)(
4).
127
The
revisions
and
additions
read
as
follows:

§
93.159
Procedures
for
conformity
determinations
of
general
Federal
actions.

*
*
*
*
*

(
b)
The
analyses
required
under
this
subpart
must
be
based
on
the
latest
and
most
accurate
emission
estimation
techniques
available
as
described
below,
unless
such
techniques
are
inappropriate.
If
such
techniques
are
inappropriate,
the
Federal
agency
may
obtain
written
approval
from
the
appropriate
EPA
Regional
Administrator
for
a
modification
or
substitution,
of
another
technique
on
a
case­
by­
case
basis
or,
where
appropriate,
on
a
generic
basis
for
a
specific
Federal
agency
program.

(
1)
*
*
*

(
i)
*
*
*

(
ii)
A
grace
period
of
3
months
shall
apply
during
which
the
motor
vehicle
emissions
model
previously
specified
by
EPA
as
the
most
current
version
may
be
used.

Conformity
analyses
for
which
the
analysis
was
begun
during
the
grace
period
or
no
more
than
3
years
before
the
Federal
Register
notice
of
availability
of
the
latest
emission
model
may
continue
to
use
the
previous
version
of
the
model
specified
by
EPA.
128
(
2)
For
non­
motor
vehicle
sources,
including
stationary
and
area
source
emissions,
the
latest
emission
factors
specified
by
EPA
in
the
"
Compilation
of
Air
Pollutant
Emission
Factors"
(
AP­
42,

www.
epa.
gov/
ttn/
chiefs/
efpac)
must
be
used
for
the
conformity
analysis
unless
more
accurate
emission
data
are
available,
such
as
actual
stack
test
data
from
stationary
sources
which
are
part
of
the
conformity
analysis.

(
c)
The
air
quality
modeling
analyses
required
under
this
subpart
must
be
based
on
the
applicable
air
quality
models,
data
bases,
and
other
requirements
specified
in
the
most
recent
version
of
the
`
Guideline
on
Air
Quality
Models."
(
Appendix
W
to
40
CFR
part
51.
The
latest
revision
was
on
April
15,
2003,
at
68
FR
18440).

*
*
*
*
*

(
d)
The
analyses
required
under
this
subpart
must
be
based
on
the
total
of
direct
and
indirect
emissions
from
the
action
and
must
reflect
emission
scenarios
that
are
expected
to
occur
under
each
of
the
following
cases:

(
1)
The
attainment
year
specified
in
the
SIP,
or
if
the
SIP
does
not
specify
an
attainment
year,
the
Act
mandated
attainment
year,
or
129
(
2)
The
last
year
for
which
emissions
are
projected
in
the
maintenance
plan;

(
3)
The
year
during
which
the
total
of
direct
and
indirect
emissions
from
the
action
is
expected
to
be
the
greatest
on
an
annual
basis;
and
(
4)
Any
year
for
which
the
applicable
SIP
specifies
an
emissions
budget.

12.
Section
93.160
is
amended
by:

a.
Adding
the
section
symbol
to
the
title;

b.
Correcting
a
typographical
error
in
paragraphs
(
e)
and
(
g);
and
c.
Revising
paragraph
(
f).

The
revised
paragraphs
in
93.160
read
as
follows:

§
93.160
Mitigation
of
air
quality
impacts.

*
*
*
*
*

(
e)
When
necessary
because
of
changed
circumstances,

mitigation
measures
may
be
modified
so
long
as
the
new
mitigation
measures
continue
to
support
the
conformity
determination.
Any
proposed
change
in
the
mitigation
measures
is
subject
to
the
reporting
requirements
of
§
93.156
and
the
public
participation
requirements
of
§
93.157.
130
(
f)
Written
commitments
to
mitigation
measures
must
be
obtained
prior
to
a
positive
conformity
determination
and
that
such
commitments
must
be
fulfilled.

(
g)
After
a
State
revises
its
SIP
to
adopt
its
general
conformity
regulations
and
EPA
approves
that
SIP
revision,
any
agreements,
including
mitigation
measures,

necessary
for
a
conformity
determination
will
be
both
State
and
Federally
enforceable.
Enforceability
through
the
applicable
SIP
will
apply
to
all
persons
who
agree
to
mitigate
direct
and
indirect
emissions
associated
with
a
Federal
action
for
a
conformity
determination.

Subpart
B
is
further
amended
by
adding
§
§
93.161
through
93.165
to
read
as
follows:

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

(
a)
State
or
local
agency
responsible
for
implementing
and
enforcing
the
SIP
can
in
cooperation
with
Federal
agencies
or
third
parties
that
operate
installations
subject
to
Federal
oversight
(
e.
g.,
a
military
base
or
a
commercial
service
airport)
develop
and
adopt
a
facility­
wide
emission
budget
to
be
used
for
demonstrating
conformity.
The
budget
must
meet
the
following
criteria:

(
1)
Be
for
a
set
time
period;
131
(
2)
Cover
the
pollutants
or
precursors
of
the
pollutants
for
which
the
area
is
designated
nonattainment
or
maintenance;

(
3)
Include
specific
quantities
allowed
to
be
emitted
on
an
annual
or
seasonal
basis;

(
4)
The
emissions
from
the
facility
along
with
all
other
emissions
in
the
area
will
not
exceed
the
emission
budget
for
the
area;

(
5)
Include
specific
measures
to
ensure
compliance
with
the
budget
such
as
periodic
reporting
requirements
or
compliance
demonstration
when
the
Federal
agency
is
taking
an
action
that
would
otherwise
require
a
conformity
determination;

(
6)
Be
submitted
to
EPA
as
a
SIP
revision;

(
7)
The
SIP
revision
must
be
approved
by
EPA.

(
b)
The
budget
developed
and
adopted
in
accordance
with
section
(
a)
above
can
be
revised
by
following
the
requirements
in
section
(
a)
above.

(
c)
Total
direct
and
indirect
emissions
from
Federal
actions
in
conjunction
with
all
other
emissions
from
the
facility
that
do
not
exceed
the
facility
budget
adopted
pursuant
to
section
(
a)
above
are
presumed
to
conform
to
the
SIP
and
do
not
require
a
conformity
analysis.

(
d)
If
the
total
direct
and
indirect
emissions
from
132
the
Federal
actions
in
conjunction
with
the
other
emissions
from
the
facility
exceed
the
budget
adopted
pursuant
to
paragraph
(
a)
above,
the
action
must
be
evaluated
for
conformity.
A
Federal
agency
can
use
the
compliance
with
the
emissions
budget
as
part
of
the
demonstration
of
conformity,
i.
e.,
the
agency
would
have
to
mitigate
or
offset
the
emissions
that
exceed
the
emission
budget.

(
e)
If
the
SIP
for
the
area
includes
a
category
for
construction
emissions,
the
negotiated
budget
can
exempt
construction
emissions
from
further
conformity
analysis.

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

If
a
Federal
action
would
result
in
total
direct
and
indirect
emissions
which
would
be
emitted
beyond
the
time
period
covered
by
the
SIP,
the
Federal
agency
can:

(
a)
Demonstrate
conformity
with
the
last
emission
budget
in
the
SIP;
or
(
b)
Request
the
State
to
adopt
an
emissions
budget
for
the
action
for
inclusion
in
the
SIP.
The
State
must
submit
a
SIP
revision
to
EPA
within
18
months
either
including
the
emissions
in
the
SIP
or
establishing
an
enforceable
commitment
to
include
the
emissions
in
future
SIP
revisions.
133
§
93.163
Timing
of
offsets
and
mitigation
measures.

(
a)
The
emissions
reductions
from
an
offset
or
mitigation
measure
used
to
demonstrate
conformity
must
occur
during
the
same
calendar
year
as
the
emission
increases
from
the
action
except
as
provided
in
paragraph
(
b)
of
this
section.

(
b)
The
State
may
approve
reductions
in
other
years
provided:

(
1)
The
reductions
are
greater
than
the
emission
increases
by
the
following
ratios:

(
i)
Extreme
nonattainment
areas
1.5:
1
(
ii)
Severe
nonattainment
areas
1.3:
1
(
iii)
Serious
nonattainment
areas
1.2:
1
(
iv)
Moderate
nonattainment
areas
1.15:
1
(
v)
All
other
areas
1.1:
1
(
2)
The
time
period
for
completing
the
emissions
reductions
must
not
exceed
twice
the
period
of
the
emissions.

(
3)
The
offset
or
mitigation
measure
with
emissions
reductions
in
another
year
will
not:

(
i)
Cause
or
contribute
to
a
new
violation
of
any
air
quality
standard,

(
ii)
Increase
the
frequency
or
severity
of
any
existing
violation
of
any
air
quality
standard,
or
134
(
iii)
Delay
the
timely
attainment
of
any
standard
or
any
interim
emissions
reductions
or
other
milestones
in
any
area.

(
c)
The
approval
by
the
State
of
an
offset
or
mitigation
measure
with
emissions
reductions
in
another
year,
does
not
relieve
the
State
of
any
obligation
to
meet
any
SIP
or
Clean
Air
Act
milestone
or
deadline.

§
93.164
Inter­
precursor
mitigation
measures
and
offsets
Federal
agencies
must
reduce
the
same
type
pollutant
as
being
increased
by
the
Federal
action
except
the
State
may
approve
offsets
or
mitigation
measures
of
different
precursors
of
the
same
criteria
pollutant,
if
such
trades
are
allowed
by
a
State
in
a
SIP
approved
new
source
review
regulation,
is
technically
justified,
and
has
a
demonstrated
environmental
benefit.

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

(
a)
Federal
facilities
and
installation
subject
to
Federal
oversight
can,
with
the
approval
of
the
State
agency
responsible
for
the
SIP
in
that
area,
create
an
early
emissions
reductions
credit
program.
The
Federal
agency
can
create
the
emission
reduction
credits
in
accordance
with
the
requirements
in
paragraph
(
b)
below
135
and
can
used
them
in
accordance
with
paragraph
(
c)
below.

(
b)
Creation
of
emission
reduction
credits
(
1)
Emissions
reductions
must
be
quantifiable
through
the
use
of
standard
emission
factors
or
measurement
techniques.
If
non­
standard
factors
or
techniques
to
quantify
the
emissions
reductions
are
used,
the
Federal
agency
must
receive
approval
from
the
State
agency
responsible
for
the
implementation
of
the
SIP
and
from
EPA's
Regional
Office.
The
emission
reduction
credits
do
not
have
to
be
quantified
before
the
reduction
strategy
is
implemented,
but
must
be
quantified
before
the
credits
are
used.

(
2)
The
emission
reduction
methods
must
be
consistent
with
the
applicable
SIP
attainment
and
reasonable
further
progress
demonstrations.

(
3)
The
emissions
reductions
can
not
be
required
by
or
credited
to
other
applicable
SIP
provisions.

(
4)
Both
the
State
and
Federal
air
quality
agencies
must
be
able
to
take
legal
action
to
ensure
continued
implementation
of
the
emission
reduction
strategy.
In
addition,
private
citizens
must
also
be
able
to
initiate
action
to
ensure
compliance
with
the
control
requirement.

(
5)
The
emissions
reductions
must
be
permanent
or
the
timeframe
for
the
reductions
must
be
specified.
136
(
6)
The
Federal
agency
must
document
the
emissions
reductions
and
provide
a
copy
of
the
document
to
the
State
air
quality
agency
and
the
EPA
regional
office
for
review.

The
documentation
must
include
a
detailed
description
of
the
strategy
and
a
discussion
of
how
it
meets
the
requirements
of
sub­
paragraphs
(
1)
through
(
5)
of
this
section.

(
c)
Use
of
emission
reduction
credits.

The
emission
reduction
credits
created
in
accordance
with
paragraph
(
b)
above
can
be
used,
subject
to
the
following
limitations,
to
reduce
the
emissions
increase
from
a
Federal
action
at
the
facility
for
the
conformity
evaluation.

(
1)
If
the
technique
used
to
create
the
emission
reduction
is
reasonably
connected
to
the
Federal
action
and
could
have
occurred
in
conjunction
with
the
Federal
action,
then
the
credits
can
be
used
to
reduce
the
total
direct
and
indirect
emissions
used
to
determine
the
applicability
of
the
regulation
as
required
in
§
93.153
and
as
offsets
or
mitigation
measures
required
by
§
93.158.

(
2)
If
the
technique
used
to
create
the
emission
reduction
is
not
reasonably
connected
to
the
Federal
action
or
could
not
have
occurred
in
conjunction
with
the
Federal
action,
then
the
credits
cannot
be
used
to
reduce
137
the
total
direct
and
indirect
emissions
used
to
determine
the
applicability
of
the
regulation
as
required
in
§
93.153,
but
can
be
used
to
offset
or
mitigate
the
emissions
as
required
by
§
93.158.

(
3)
Emissions
reductions
credits
must
be
used
in
the
same
year
in
which
they
are
generated.

(
4)
Once
the
emission
reduction
credits
are
used,

they
cannot
be
used
as
credits
for
another
conformity
evaluation.
However,
unused
credits
from
a
strategy
used
for
one
conformity
evaluation
can
be
used
for
another
conformity
evaluation
as
long
as
the
reduction
credits
are
not
double
counted.
For
example,
emission
reduction
credits
from
a
control
measure
could
be
used
in
one
year
as
offset
for
construction
emission
increases
and
in
another
year
to
mitigate
operational
emission
increases.

(
5)
Federal
agencies
must
notify
the
State
air
quality
agency
and
EPA
Regional
Office
when
the
emission
reduction
credits
are
being
used.
