6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[EPA-HQ-OAR-2004-0491; FRL-      ]

RIN 2060-AH93

Revisions to the General Conformity Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is revising its regulations relating to the Clean Air
Act (CAA) requirement that federal actions conform to the appropriate
state, tribal or federal implementation plan (SIP, TIP, or FIP) for
attaining clean air (“General Conformity”).  EPA and other federal
agencies have gained experience with the implementation of the existing
regulations, which were promulgated in 1993 (and underwent minor
revisions in 2006) and have identified several issues with their
implementation. In addition, in 2004, EPA issued regulations to
implement the revised ozone National Ambient Air Quality Standards
(NAAQS) and in 2007 issued regulations to implement the new fine
particulate matter standard. State and other air quality agencies are in
the process of developing revised plans to attain the new standards and
the revisions to the General Conformity Regulations will be helpful to
the state, tribe, and local agencies in developing and federal agencies
in commenting on the proposed SIPs revisions.  This rule revision will
also facilitate federal agency compliance with conforming its activities
to the SIPs thereby preventing violations of the NAAQS.  This rule
revision provides for a timely and effective process for federal
agencies and states and tribes to ensure federal activities are
incorporated in these SIPs. Where that is not possible, it provides an
efficient and effective process for federal agencies to ensure their
actions do not cause or contribute to a violation of the NAAQS or
interfere with the purpose of a SIP, TIP or FIP to attain or maintain
the NAAQS.

DATE: This action is effective on [INSERT DATE 90 DAYS FROM PUBLICATION
IN THE FEDERAL REGISTER]

ADDRESSES: EPA has established a docket for this rulemaking under Docket
ID No. EPA-HQ-OAR-2004-0491.  All documents in the docket are listed in
the   HYPERLINK "http://www.regulations.gov"  www.regulations.gov 
index.  Although listed in the index, some information is not publicly
available, e.g., Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute.  Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy.  Publicly available
docket materials are available either electronically in   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  or in hard copy at
the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution
Avenue, Northwest, Washington, D.C.  The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays.  The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the EPA Docket Center is (202)
566-1742. 

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

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does This Action Apply to Me?

    Entities affected by this rule include federal agencies and public
and private entities that receive approvals or funding from federal
agencies such as airports and seaports.

B.  How is This Preamble Organized?

	The information presented in this preamble is organized as follows:

Outline

I. General Information

	A. Does This Action Apply To Me?

	B. How is this preamble organized?

C. When did EPA propose these revisions to the General Conformity
Regulations?

    	D. Where Can I Obtain Additional Information?

II. Background

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

B. Why Is EPA Revising These Regulations at This Time?

III. How are the Existing Regulations Implemented?

     A. Applicability Analysis

B. Conformity Determination

C. Review Process

IV. Comments Submitted on the Proposed Rule

V. Summary of the Final Revisions and Clarifications of the General
Conformity Regulations

A. Overview of Revisions to the General Conformity Regulations

B. What Innovative and Flexible Approaches Are Being Finalized?

C. What Burden Reduction Measures Are Being Finalized?

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

E. What Revisions Are Being Finalized at the Request of Other Agencies?

F. What Are Some of the Clarifications to the Existing Regulations That
Are Being Finalized?

VI. Detailed Discussion of the Final Revisions to and Clarifications of
the General Conformity Regulations

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

B. 40 CFR 93.150--Prohibition

C. 40 CFR 93.151--SIP Revision

D. 40 CFR 93.152--Definitions

E. 40 CFR 93.153--Applicability Analysis

F. 40 CFR 93.154--Federal Agencies Responsibility for a Conformity
Determination

G. 40 CFR 93.155--Reporting Requirements

H. 40 CFR 93.156--Public Participation

I. 40 CFR 93.157--Re-evaluation of Conformity

J. 40 CFR 93.158--Criteria for Determining 

Conformity for General Federal Actions

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

L. 401 CFR 93.160--Mitigation of Air Quality Impacts

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

N. 40 CFR 93.162--Emissions Beyond the Time Period Covered by the
Applicable SIP or Tribal Implementation Plan (TIP)

O. 40 CFR 93.163--Timing of Offsets and Mitigation Measures

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

Mitigation Measures

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

VII. 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

K.  Congressional Review Act

L.  Judicial Review

VIII. Statutory Authority

C. When did EPA propose these revisions to the General Conformity
Regulations?

The EPA proposed the revised General Conformity Regulations in the
Federal Register on January 8, 2008 at 73 FR 1402.  

D. Where Can I Obtain Additional Information?

    In addition to being available in the docket, an electronic copy of
this final rule is also available on the worldwide web. Following
signature by the EPA Administrator, a copy of this notice will be posted
at  HYPERLINK
"http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html
&log=linklog&to=http://www.epa.gov/oar/genconform/regs.htm"
http://www.epa.gov/oar/genconform/regs.htm .

II. Background

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

The intent of the General Conformity requirement is to prevent the air
quality impacts of federal actions from causing or contributing to a
violation of the NAAQS or interfering with the purpose of a SIP, TIP, or
FIP.

In the CAA, Congress recognized that actions taken by federal agencies
could affect state, tribal, and local agencies' ability to attain and
maintain the NAAQS.  In section 176(c)(42 U.S.C. 7506) of CAA, Congress
established requirements to ensure federal agencies proposed actions
conform to the applicable SIP, TIP or FIP for attaining and maintaining
the NAAQS.  That section requires federal entities to find that the
emissions from the federal action will conform to the purposes of the
SIP, TIP or FIP or not otherwise interfere with the state's or tribe's
ability to attain and maintain the NAAQS.

The CAA Amendments of 1990 clarified and strengthened the provisions in
section 176(c).  Because certain provisions of section 176(c) apply only
to highway and mass transit funding and approval actions, EPA published
two sets of regulations to implement section 176(c).  The Transportation
Conformity Regulations, first published on November 24, 1993 (58 FR
62188) and recently revised on July 1, 2004 at 69 FR 40004, May 6, 2005
at 70 FR 24280 and March 10, 2006 at 71 FR 12468, and January 24, 2008
at 73 FR 4420, 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 Revising These Regulations at This Time?

On July 17, 2006 at 71 FR 40420, EPA revised the General Conformity
Regulations to include de minimis emission levels for particulate matter
with an aerodynamic diameter equal to or less than 2.5 microns (PM2.5)
and its precursors.  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 is in
the process of developing regulations to implement the revised ozone
standard and regulations to implement the new particulate matter
standard.  In the near future, state and local air quality agencies will
be required to develop revised SIPs to attain these new standards.
Knowledge of the revised General Conformity Regulations will be helpful
to the state, tribal, and local agencies in the SIP development process
as well as the federal agencies in commenting on the proposed SIP
revisions. This rule revision will also facilitate federal agency
compliance with conforming its activities to the SIPs and thereby
preventing violations of the NAAQS.  

III.  How are the Existing Regulations Implemented?

Federal agencies and other parties involved in the conformity process
have found that in implementing the existing General Conformity
Regulations their process falls into 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.

The existing regulations do not specifically identify the roles of
Indian tribes in the General Conformity process or the connection
between the regulations and TIPs.  In the revised regulations, EPA has
specifically identified tribal agencies as stakeholders in the
conformity process such as requiring specific notification for any
federally recognized tribes in the nonattainment or maintenance area
where the action is occurring.  In addition, the revised regulations
also clarify that federal actions must conform to any applicable TIP.

A. Applicability Analysis

The National Highway System Designation Act of 1995 (Pub. L. 104-59)
added section 176(c)(5) to the CAA to limit applicability of the
conformity programs only to areas designated as nonattainment under
section 107 of the CAA and maintenance areas established under section
175A of the CAA.  Therefore, only actions which cause emissions in
designated nonattainment and maintenance areas are subject to the
regulations.  In addition, the regulations recognize that the vast
majority of federal actions do not result in a significant increase in
emissions and, therefore, include a number of exemptions such as de
minimis emission levels based on the type and severity of the
nonattainment problem.

In the applicability analysis phase, the federal agency determines:

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

2. Whether one or more 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; 

4. Whether the total direct and indirect emissions are below or above
the de minimis levels; and/or

5. Where the facility has an emission budget approved by the state or
tribe as part of the SIP or TIP, the federal agency determines if the
emissions from the proposed action are within the budget.

	If the action will cause emissions above the de miminis in any
nonattainment or maintenance area and the action is not otherwise
exempt, “presumed to conform,” or included in the existing emissions
budget of the SIP or TIP, the agency must conduct a conformity
determination before it takes the action.

B. Conformity Determination

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

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

2. Obtaining a written statement from the state, tribe or local agency
responsible for the SIP or TIP 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 or tribe to revise the
SIP or TIP to include the emissions from the action,

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

5. Fully offsetting 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 1993 regulations (58 FR 13845), due
to the complex interaction of the ozone precursors, the regional nature
of the ozone and NO2 problems, and limitations of current air quality
models, it is not generally appropriate to use an air quality model to
determine the impact on ozone or NO2 concentrations from a single
emission source or a single federal action.

C. Review Process

As public bodies, federal agencies must make their conformity
determinations through a public process.  The General Conformity
Regulations require federal agencies to provide notice of the draft
determination to the applicable EPA Regional Office, the state and local
air quality agencies, the local MPO and, where applicable, the Federal
Land Manager(s)(FLM).  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 substantive and
procedural General Conformity requirements can result in an adverse
court decision if challenged.

IV. Comments Submitted on the Proposed Rule

	The proposed rule on the “Revisions to the General Conformity
Regulations” was issued on January 8, 2008 (  HYPERLINK
"http://www.epa.gov/fedrgstr/EPA-AIR/2006/March/Day-10/a2179.htm"  73 FR
1402 ).  The EPA received 65 letters from state and local governments,
federal agencies, environmental groups, and private citizens commenting
on the proposed regulations.  Some of the comments are discussed in
section VI of this notice as they were relevant to the detailed
discussion of revisions.  The EPA has included a response to comments
document which addresses all of the timely comments received on the
proposed rule in the docket of this rulemaking action (See Docket No.
EPA-HQ-OAR-2004-0491).

V.  Summary of the Final Revisions and Clarifications of the General
Conformity Regulations

A.  Overview of 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 in 40 CFR 93
subpart B (sections 150 to 160) it also promulgated regulations at 40
CFR part 51, subpart W (sections 850-860) which required states to adopt
and submit SIPs for General Conformity.  In August 2005, Congress passed
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU) which eliminated the requirement for
states to adopt and submit General Conformity SIPs.  Therefore, EPA is
revising its regulations to make the adoption and submittal of the
General Conformity SIP or TIP optional for the state or tribe.

	Because 40 CFR part 51, subpart W (§§51.850-51.860) essentially
duplicates the regulations promulgated at 40 CFR part 93, subpart B
(§§93.150-93.160), EPA is deleting all of subpart W except for
§51.851.  In the revision to §51.851, EPA is requiring that if a state
or tribe submits a General Conformity SIP or TIP that it be consistent
with the requirements of 40 CFR part 93, subpart B. The EPA added
paragraph (f) to 40 CFR 51.851 to allow the states and tribes to develop
their own “presumed to conform” list for actions covered by their
conformity SIPs or TIPs.

	In 40 CFR part 93, subpart B, EPA is making specific revisions to the
regulations which (1) clarify the process, (2) delete outdated or
unnecessary requirements, (3) authorize innovative and flexible
approaches, (4) reduce the paperwork burden, (5) provide transition
tools for implementing new standards, (6) address issues identified by
implementing agencies, and (7) provide a better explanation of
regulations and policies.

	Several of the 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.  This is discussed in more detail in
section VI below.

B.  What Innovative and Flexible Approaches Are Being Finalized?

	1. The EPA is adding a new section (40 CFR 93.161) to allow for a
facility-wide emission budget approach. Under this voluntary
arrangement, federal agencies, in anticipation of future major actions,
may negotiate a facility-wide emission budget with the appropriate
state, tribal, or local air quality agency responsible for the SIP or
TIP.  The state, tribal, or local agency could incorporate the
facility-wide emission budget into the applicable SIP or TIP and submit
it to EPA for approval.  After EPA approves the SIP or TIP, any action
at the facility can be “presumed to conform” provided that the
emissions from the proposed action along with all other emissions at the
facility are within the EPA approved facility-wide emission budget and a
conformity determination would not be necessary.  Alternatively, a
facility with an approved facility-wide emission budget could
demonstrate conformity by the conventional methods afforded in the
General Conformity Regulations.  For example, once approved, minor
actions under the control of the facility where an applicability
analysis results in a determination that the emissions are below a de
minimis threshold could proceed with no conformity determination.

	2. The EPA is adding 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 established by
Congress in Federal Aviation Administration (FAA) Reauthorization Act of
2003 for the Airport Early Emission Reduction Credit (AERC) program and
the guidance to implement that program.  The revised regulations provide
a similar framework for other federal agencies.

	3. The EPA is adding 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 adding a new section (40 CFR 93.163) to allow alternate
schedules for mitigating emissions increases. The mitigation timing
approach allows 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 can allow this approach to accommodate
short-term increases in emissions if they believe a substantial
long-term reduction in emissions will result from a federal action.

C. What Burden Reduction Measures Are Being Finalized?

	1. The EPA is deleting the provision in the existing regulation (40 CFR
93.153) that required federal agencies to conduct a conformity
determination for regionally significant actions where the direct and
indirect emissions of any pollutant represent 10 percent or more of a
nonattainment or maintenance area’s emissions inventory for that
pollutant, even though the total direct and indirect emissions from the
actions were below the de minimis emission levels or the actions were
otherwise “presumed to conform”.

	2. The EPA is adding in 40 CFR 93.153 new types of actions that federal
agencies can include in their “presumed to conform” lists and EPA is
also permitting states or tribes to establish in their General
Conformity SIPs or TIPs “presumed to conform” lists for actions
within their state or tribal area.

	3. The EPA is finalizing an exemption in 40 CFR 93.153 for the
emissions from stationary sources permitted under the minor source New
Source Review (NSR) programs similar to the EPA's existing General
Conformity regulation which 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 adding a definition in the regulation (40 CFR 93.152) for
“Take or start the Federal action” to help federal agencies
determine what, if any, conformity requirements apply when an area is
designated or re-designated as nonattainment.

	2. The EPA is adding requirements 40 CFR 93.153(k) for the
implementation of the statutory grace period for newly designated
nonattainment areas.

	3. The EPA is adding alternate methods (40 CFR 93.162) to demonstrate
conformity for time periods beyond those covered by the SIP or TIP.  The
EPA is also allowing 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 Finalized at the Request of Other Agencies?

	1. As part of EPA's efforts to finalize an Air Quality Policy on
Wildland and Prescribed Fires, which was undertaken in consultation with
FLMs, EPA took comment on two possible approaches: To include a
presumption of conformity for (1) prescribed fires conducted in
accordance with a state certified smoke management programs (SMPs) which
meets the requirements of EPA’s Air Quality Policy on Wildland and
Prescribed Fires, or (2) prescribed fires conducted in accordance with a
state certified SMPs which meets the requirements of EPA’s Air Quality
Policy on Wildland and Prescribed Fires or, in the absence of a stated
certified SMP, where the federal agency has obtained written assurance
from the state prior to the burn that the planned burn employs state
approved basic smoke management practices (BSMP).  EPA is finalizing
option 1 to include a presumption of conformity for prescribed fires
that are conducted in compliance with SMPs (40 CFR 93.153(i)(2)).

	2. The EPA is finalizing the proposal (40 CFR 93.158) to allow federal
agencies to obtain emission offsets for general conformity purposes from
another nearby nonattainment or maintenance area of equal or higher
nonattainment classification provided the emissions from that area
contribute to violation of the NAAQS in the area where the federal
action is located or, in the case of maintenance areas, the emissions
from the nearby area contributed in the past to the violations in the
area where the federal action is occurring.

	3. At the request of several federal agencies, EPA is clarifying the
language in the regulation that states that nothing in these regulations
(40 CFR 93.155 and 40 CFR 93.156) requires the release of materials and
other information where disclosure is restricted by law.  Also, EPA is
including a similar clarification for CBI.

	4. Several federal agencies and others involved in the General
Conformity process suggested that EPA should consider exempting
construction activity emissions from the conformity regulations
requirements(40 CFR 93.153).  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 these concerns 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 address construction emissions in the General Conformity
assessment.  However, EPA is not finalizing an exemption for
construction emissions in the revisions and is instead affirming that
emissions from construction activities must be considered in a
conformity evaluation.  

	5. At the request of the FAA, EPA is codifying one of the examples
contained in the preamble to the existing General Conformity Regulations
(58 FR 63229) that stated “the EPA believes that the following actions
are illustrative of de minimis actions: * * * Air traffic control
activities and adopting approach, departure and enroute procedures for
air operations.”  The FAA conducted a study of ground level
concentrations caused by elevated aircraft emissions released above
ground level (AGL) using EPA-approved models and conservative
assumptions.  The study concluded that aircraft operations at or above
the average mixing height of 3,000 feet AGL have a very small effect on
ground level concentrations and could not directly result in a violation
of the NAAQS in a local area. Consequently, this study supports the
example provided in EPA's initial preamble language for air traffic
control activities and adopting approach, departure and enroute
procedures for aircraft operations above the mixing height.  As some of
the commenters noted, the mixing height for some areas can vary and some
SIPs and TIPs identify a specific mixing height to be used.  Therefore,
EPA’s final rule (40 CFR 93.153) exempts as de minimis aircraft
emissions above the specific mixing height identified in the SIP or TIP.
 If no mixing height is identified in the SIP or TIP, the federal agency
can use 3,000 feet AGL as a default mixing height.  The list of
exemptions under 40 CFR 93.153(c)(2)(xxii) has been updated in this
final rule to reflect this policy.

F. What Are Some of the Clarifications to the Existing Regulations That
Are Being Finalized?

	1. The EPA is clarifying in 40 CFR 93.150 the General Conformity
evaluation for treatment of emissions from actions with emissions
originating in more than one nonattainment or maintenance area. The
emissions in each area would be treated as if they result from a
separate action.

	2. The EPA is establishing procedures in 40 CFR 93.153 to follow in
extending the 6-month conformity exemption for actions taken in response
to an emergency.

	3. The EPA is revising (40 CFR 93.158) the procedures that can be used
to demonstrate conformity with the applicable SIP when the SIP does not
contain an attainment demonstration or when the emissions from the
federal action are projected beyond the period of the SIP.  In addition,
EPA is adding a new section (40 CFR 93.162) to establish procedures for
demonstrating conformity beyond the time period covered by the SIP or
TIP.

	4. The EPA is revising the review process (40 CFR 93.155) to require
federal agencies to notify tribal governments in the nonattainment or
maintenance area of General Conformity evaluations.

	5. The EPA is clarifying the definition (40 CFR 93.152) of several
terms used in the regulations.

	6. The EPA is including specific language through out the regulations
to identify the role of Indian tribes and TIPs in the General Conformity
evaluation.

VI. Detailed Discussion of the Final Revisions to and Clarifications of
the General Conformity Regulations

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

In 1990, the CAA was amended to include a provision in Section 176(c)(4)
that required states 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) 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.  The EPA does not interpret
this provision as prohibiting states or tribes from voluntarily adopting
and submitting General Conformity implementation plans consistent with
EPA regulations.  Therefore, EPA is revising 40 CFR 51.851 to make the
adoption and submittal of the General Conformity SIP optional for the
state and eligible federally-recognized tribal governments.

In promulgating the General Conformity Regulations in 1993, EPA
published two sets of regulations: 40 CFR Part 51, subpart W (§§51.850
through 51.860) directed states to adopt and submit General Conformity
SIPs to EPA for approval and 40 CFR Part 93 subpart B (§§93.150
through 93.160) provided the requirements for federal agencies to follow
in conducting their conformity evaluations before EPA approved the
General Conformity SIP for the area.  Section 40 CFR 51.851 directed
states to adopt SIPs meeting the requirements of 40 CFR part 51, subpart
W. The other sections in subpart W repeated the requirements found in 40
CFR part 93, subpart B.  The EPA is deleting 40 CFR 51.850, and
§§51.852 through 51.860 since those sections merely repeated the
language in 40 CFR 93.150 and §§93.152 through 93.160 and is including
a requirement in 40 CFR 51.851(a) that the General Conformity SIP or
TIP, if adopted, must meet the requirements in 40 CFR part 93, subpart
B.

In addition, EPA is restructuring §51.851.

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

a. Paragraph (b) now states that until EPA approves the General
Conformity SIP, federal agencies must meet the requirements of 40 CFR
part 93, subpart B.

b. Paragraph (c) states that after EPA approves a SIP or TIP meeting the
requirement of 40 CFR part 93, subpart B, or portion thereof, the
federal agencies must meet the requirements of the SIP or TIP and any
other portions of 40 CFR part 93, subpart B if not contained in the
approved SIP or TIP.  In addition, paragraph (g) states that any
conformity requirements in an existing implementation plan remain
enforceable until the state submits and EPA approves a revision to the
applicable state implementation plan to specifically remove the
conformity requirements.  Since there is no longer a requirement for
SIPs to include conformity requirements and the applicable statutes do
not grant EPA additional authorities to condition approval of a state's
request to remove the General Conformity requirements from an
implementation plan, it is EPA's intent, once requested by a state, to
expeditiously review and approve implementation plan revisions that seek
to remove General Conformity requirements.

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

d. Paragraph (e) contains the requirement that the SIP or TIP can be no
more stringent that the requirement in 40 CFR part 93, subpart B unless
the provisions apply equally to non-federal as well as federal entities.

2. The EPA is adding a new provision in §51.851(f), which allows states
or tribes to include in their SIP or TIP a list of actions that are
“presumed to conform”. For example, the state may identify the
emissions from a certain type and size of construction activities that
it presumes will conform.  

Comment:  Several commenters supported EPA’s proposal to make the
adoption and submittal of the General Conformity SIP optional. One
commenter believed that the elimination of the conformity SIP
requirement in §93.151 leaves a gap regarding the enforcement of
mitigation measures. 

The commenter noted that under the language in the new provision, there
is no state or federal enforceability if the state withdraws its
conformity SIP or otherwise fails to retain a requirement that written
commitments to undertake and implement mitigation measures are
obligations of the SIP.  Another commenter supported the requirements
for states to develop conformity SIPs.

Response:  The EPA is revising its regulations to be consistent with the
revised requirements of the CAA.  In 2005, the CAA was revised to
eliminate the requirement that a state must adopt a conformity SIP.  If
a state does not have a conformity SIP, then federal agencies must
conduct their evaluation under the requirements of 40 CFR 93.150-93.165.
 These requirements are essentially the same as the requirements
contained in the conformity SIPs.  Therefore, there would be little
difference in the enforceability of the regulations.  Mitigation
measures are not included in the SIP or TIP.  A conformity SIP is not
needed to include the mitigation measures in the SIP or TIP.  They are
included in the SIP to attain or maintain the ambient air quality
standards.  Section 93.160 has been changed by deleting the term
“General Conformity Regulations” to ensure this fact is clear. 

B. 40 CFR 93.150--Prohibition

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

In paragraph (c) of the 1993 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) was outdated and not necessary at
this time.

In the new paragraph (e) in §93.150, EPA is clarifying the regulations
to state specifically that conformity determinations must be made for
each nonattainment or maintenance area in which emissions from the
federal action occur. The emissions from most federal actions or
projects occur within one nonattainment or maintenance area; however,
some actions or projects could extend across area boundaries, causing
emissions in more than one area.  A facility (for example, a national
park, military installation or an airport) could be located in multiple
counties or 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
1993 regulations did not specify how actions or projects affecting
multiple areas should be addressed.  Therefore, EPA added paragraph (e)
to state that an action's emissions in each area would be treated as if
they result from separate actions.

The EPA clarified that emissions from actions be treated separately for
each nonattainment and maintenance area for the following reasons:

1. Federal agencies demonstrate conformity to a SIP, TIP or FIP that are
developed on an area-specific basis and SIP requirements may vary from
one area to another.

2. The General Conformity Regulations exemptions are also area-specific.
 For example, the de minimis levels are based upon the type and
classification of the nonattainment or maintenance area.

3. Section 176(c)(5) of the CAA limits the applicability of the
conformity regulations to actions in nonattainment and maintenance
areas.  Therefore, actions, which affect broad regions encompassing
several nonattainment, maintenance or attainment areas, must be
evaluated based only on the portions of the emissions in the
nonattainment and maintenance areas.

C. 40 CFR 93.151—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
did not change the purpose of the section, but is revising the section
to clarify its wording. The 1993 regulations included statements about
the stringency of the SIP compared to the requirements in subpart B of
part 93.  The EPA is deleting 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 revising 12 of the definitions, adding 11 new terms, and
deleting one term, and clarifying the scope of an existing definition as
follows:

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

Applicable implementation plan or applicable SIP.  The EPA is making two
minor revisions to the definition.  First, EPA is correcting the
citation for the SIP approval and second, EPA is clarifying the
definition by adding a parenthetical phrase to clarify that the term
includes an approved TIP.  The requirements for eligible tribes are
found in 40 CFR 49.6.

Area-wide air quality modeling analysis.  The EPA is clarifying this
definition by making a minor wording change and by including
photochemical grid model in the definition.  Also, EPA is adding an
example of the type of models that could be used for the area-wide air
quality modeling analysis.

Caused by.  The basic test established by the 1993 regulations’
definition of “caused by” is that the emissions would not have
occurred in the absence of the 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.  Therefore, EPA is clarifying that construction emissions
are part of the total direct and indirect emissions from an action.

Comment:  In the January 8, 2008 proposal, EPA solicited comment on
whether construction emissions in general or short-term construction
emissions should be exempt from the regulations.  In addition, EPA
solicited comment on what should be considered short-term construction
emissions (1 to 5 years).  The majority of commenters on this issue
objected to exempting construction emissions.  They noted that
construction emissions can contribute significantly to particulate
matter (PM) exceedances, especially off-road vehicle emissions.  Some
believed that ignoring these emissions might drop a project below the de
minimis threshold and result in unmitigated emissions and the exposure
of local residents to significant levels of pollutants such as diesel
exhaust.  However, some commenters thought that construction emissions
should be exempted.  They noted that construction emissions only peak
for a short time and that a disproportionate amount of time in the
conformity process is spent on addressing very short-term
construction-related emissions.  They also pointed out that construction
emissions are generally not included in NSR or Transportation Conformity
evaluations.  Of the commenters that thought construction emissions
should be exempt, some thought they should be exempt for 5 years while
others thought they should be exempt for only 2 years.

Response:  The EPA agrees with the majority of commenters on this issue
that construction emissions can contribute significantly to exceedances
of the NAAQS, particularly exceedances of the PM standards.  Unlike the
construction activities associated with Transportation Conformity and
NSR projects, construction activities associated with General Conformity
actions vary widely in type.  For example, Transportation Conformity is
concerned with the regional impacts of long-term use of the roads while
General Conformity is concerned about localized impacts of the direct
and indirect impacts of particular action or projects.  Also, NSR
specifically does not apply to emissions from mobile sources, which
includes most construction equipment -- no such restriction is found in
General Conformity.  Therefore, EPA believes that it is important that
construction emissions should be considered as part of the General
Conformity process.  EPA also believes that other flexibilities in the
revised rule will help with planning for, and addressing, construction
emissions in the General Conformity process.  These flexibilities
include allowing alternative mitigation schedules and including
construction emissions in a facility emission budget. 

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.

Confidential business information (CBI).  In §§93.155 and 93.156, EPA
is clarifying how CBI used in the conformity determination is to be
handled.  To support those provisions, EPA is adding 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 adding a new term to describe the
decision that a federal agency official makes in determining that the
action will conform with the SIP, TIP or FIP.

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

Continuing program responsibility.  In the 1993 regulations, EPA used
the term “emissions that a federal agency has a continuing program
responsibility for.” That term was awkward and confusing.  The EPA is
shortening the term to the “continuing program responsibility” and
reformatting the definition to make it clearer.

Continuous program to implement.  This term was used in the 1993
regulations but was not defined.  Therefore, EPA is adding 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 revising the definition of direct
emissions to include a requirement that the emissions must be reasonably
foreseeable.  This revision reflects EPA’s policy as set forth in the
July 1994 implementation guidance that direct emissions must be
reasonably foreseeable. (General Conformity Guidance: Questions and
Answers, USEPA, OAQPS, Page 6, Question 2, July 13, 1994). 

Emission Inventory.  This term is used but not defined in the 1993
regulations. Therefore, EPA is adding a definition of this term.

EPA.  Since some states have Environmental Protection Agencies, EPA is
adding “U.S.” in the definition to clarify that the regulations
refer to the U.S. Environmental Protection Agency.

Indirect emissions.  EPA is revising the definition for indirect
emissions to clarify that only indirect emissions originating in a
nonattainment or maintenance area need to be analyzed for conformity
with the applicable SIP.  In addition, EPA is revising the definition of
“indirect emissions” to clarify what is meant by “the agency can
practically control” and “for which the agency has continuing
program responsibility.” This clarification represents EPA's long
standing position that Congress did not intend for conformity to apply
to “cases where, although licensing or approving action is a required
initial step for a subsequent activity that causes emissions, the agency
has no control over that subsequent activity, either because there is no
continuing program responsibility or ability to practically control.”
(58 FR 63.214,63.221, November 30, 1993). (General Conformity Guidance:
Questions and Answers, USEPA, OAQPS, Page 6, Question 2, July 13,
1994). 

Comment:  One commenter believes that excluding emissions over which the
federal agency does not have continuing program responsibility is
unlawful.  The commenter believes that the original definition of
“caused by” is practical because the conformity determination will
be made in the context of an Environmental Impact Statement (EIS) for
such major federal projects and NEPA requires an assessment of the
expected development and reasonably foreseeable impacts associated with
such development.  The commenter noted that if the agency with authority
to approve these expansions lacks the continuing programmatic
responsibility to control the use of facilities approved by the agency,
then the proposed activity should not be approved 

	The commenter believes that the proposed rule definition has the
potential for allowing massive increases in emissions that is
anticipated as a result of port expansions in some of the nations’
most polluted metropolitan areas. The commenter also noted that the NEPA
may also create authority to adopt environmental mitigation plans as
part of an agency’s programmatic responsibility.

Response:  The exclusion of emissions over which the federal agency does
not have a continuing program responsibility is related to indirect
emissions for the General Conformity analysis and does not affect the
analysis required for NEPA review.  EPA is not changing the requirements
of that provision; EPA is only clarifying the language contained in it. 
Since 1993, the “indirect emissions” definition has been limited to
those emissions for which “the federal agency…will maintain control
over due to continuing programmatic responsibility.”   Accordingly,
EPA’s reformatting of the language in this revision does not change
the practical impact of this definition, and the commenter’s
suggestion that the definition should include emissions over which the
federal agency does not have control would greatly expand the program
beyond what EPA believes that the law intended.  In any event, since EPA
did not propose to expand the program to include emissions over which a
federal agency does not have control, it cannot go final with such an
expansion in this rule.

Local air quality modeling analysis.  The EPA is revising 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 making a minor wording change to clarify
the definition by citing the regulations and the section of the CAA used
to identify maintenance areas.

Metropolitan Planning Organization.  The EPA is revising its regulatory
definition to make it more consistent with the statutory definition in
SAFETEA-LU, which was signed into law on August 10, 2005.

Mitigation measure.  The 1993 regulations used the term “mitigation
measure” and had a section specifying the requirements for a
mitigation measure; however the regulations did not define the term. 
The EPA is defining a mitigation measure as a method of reducing
emissions of the pollutant at the location of the action.  This
definition would distinguish a mitigation measure from an offset.

National ambient air quality standards.  In 1997, EPA promulgated new
NAAQS for both ozone and for fine particles.  The definition in the 1993
regulations is broad enough to cover the new ozone standard, but the
definition did not cover the fine particle standard known as PM2.5.
Therefore, EPA is revising the definition of NAAQS to include PM2.5.

Precursors of criteria pollutants.  The 1993 regulations define
precursors for both ozone and PM-10. Since the PM2.5 standard was
promulgated after the General Conformity Regulations, the original
regulations did not include the precursors for PM2.5.  EPA recently
amended the regulations (July 17, 2006 at 71 FR 40420) to add PM2.5
precursors, consistent with the proposed implementation program for the
PM2.5 standard (70 FR 65984).  The EPA defined the precursors of PM2.5
as follows:

	1. Sulfur dioxide (SO2) is a regulated pollutant in all PM2.5
nonattainment and maintenance areas.

2. Nitrogen oxides (NOX) are regulated pollutants in all PM2.5
nonattainment and maintenance areas unless both the state/tribe and EPA
determine that they are not.

3. Volatile organic compounds (VOC) and ammonia (NH3) 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 revising the term “direct emissions” to limit
the emissions to those which can be reasonably foreseeable.  Therefore,
EPA is revising the term “reasonably foreseeable” to include
“direct emissions.”

Regionally significant action.  As discussed in the revisions to
93.153(i) below, EPA is deleting the requirement that conformity
determinations are required for actions that would normally be exempt if
those actions are considered regionally significant.  Therefore, EPA is
deleting the definition of the term.

Restricted information.  As discussed in §§93.155 and 156 on reporting
and public participation, EPA is specifying how restricted information
used in the conformity determination is to be handled.  To support those
revisions, EPA is adding a definition of restricted information.  The
definition is based upon applicable Executive Orders, regulations and
statutes pertaining to materials and other information where disclosure
is restricted by law.

Comment:  One commenter requested that EPA state that emission data be
specifically excluded for the definition of “restricted
information.”  

Response:  The EPA agrees that emission data generally can not be
considered “restricted information.”  Under EPA policy emission data
cannot be considered as “confidential business information.”  Only
in rare circumstances where data is contained in documents classified as
sensitive information to which access is restricted by law or regulation
to particular classes of persons and a formal security clearance is
required to handle or access the classified data would emission data
from a government facility be “restricted information.”  In the
situations where restricted information is used as part of the
conformity evaluation, EPA will work with the appropriate federal, state
and tribal agencies to ensure an adequate review of the conformity
evaluation.

Take or start the federal action.  The EPA is adding 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 defining
this term as the date the decision-maker signs a document such as a
grant, permit, license or approval.  Otherwise, EPA is defining the term
as the date the federal agency physically starts the action that
requires the conformity evaluation.

Tribal implementation plan (TIP).  The EPA is adding a definition for
TIP to mean plans adopted and submitted by federally recognized Indian
tribes. 

E. 40 CFR 93.153--Applicability Analysis

The EPA is clarifying the process of determining if the General
Conformity requirements are applicable to a federal action.  Although
EPA is providing clarification on actions that are exempt or “presumed
to conform” in this regulation, nothing in this regulation is intended
to interfere with any exemptions previously established by law.

1.  The EPA is revising the title of the section to include the word
“analysis.”  The EPA believes that adding the word would make the
title more descriptive of the section's content.

2.  The EPA is making technical changes to paragraph (a) and (b) of
§93.153.  The technical correction in section 93.153(a) is to update
the reference to the transportation conformity regulations. Section
93.153(a) currently states that the transportation conformity
regulations are codified at 40 CFR part 51 subpart T, but EPA deleted
transportation conformity criteria and procedures from 40 CFR part 51
subpart T a number of years ago.  (62 FR 43779)  Accordingly, section
93.153(a) has been revised to refer to the transportation conformity
criteria and procedures now codified at 40 CFR part 93 subpart A.  

EPA is not finalizing the proposed changes to paragraph (b).   Following
proposal of changes to this paragraph EPA realized that the minor
wording changes we had proposed (adding the word “criteria” before
the word “pollutant” and “or precursor” after the word to
clarify the paragraph) had been accomplished by changes made to this
section in a July 17, 2006 regulatory action (71 FR 40426).  Therefore,
EPA is making no changes to this paragraph from the current regulatory
language.

3.  The EPA is revising the table in sub-paragraph (b)(1) to include all
nonattainment areas in the Ozone Transport Regions.  In 1993, when the
General Conformity Regulations were promulgated, all nonattainment areas
in the Ozone Transport Region were classified pursuant to Table 1 in CAA
section 181(a)(1) as marginal or above for the 1-hour ozone NAAQS.  When
EPA later designated  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 pursuant to Table 1.  However, the decision to place certain
areas only under subpart 1 was vacated by the decision in South Coast
Air Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006). 
Although there are currently no areas classified under subpart 1, the
Court left open the door that EPA may be able to justify such action in
the future.  Accordingly, EPA is revising the table in §93.153(c)(1) to
ensure that the General Conformity requirements would apply to any area
placed in  the subpart 1 in the future by changing the classification
from “Marginal and moderate non-attainment areas inside an ozone
transport region” to “other non-attainment areas inside an ozone
transport region.”

	4.  The EPA is adding a new sub-paragraph (xxii) to §93.153(c)(2) to
clarify the exemptions for aircraft emissions above the mixing height
for the area.  Specifically, EPA is exempting aircraft emissions above
the mixing height identified in the applicable SIP, TIP or FIP.  Where
the SIP does not contain a specific mixing height, EPA is establishing a
default mixing height of 3000 feet AGL.  In the January 2008 proposal,
EPA had proposed to exempt all aircraft emissions above 3000 feet AGL.  

Comment:  Several commenters representing state and local air quality
agencies objected to excluding the emissions from aircraft above 3000
feet above ground level.  They noted that the mixing height varies and
can be as high as 4,500 feet AGL during the ozone season and that
pollutants emitted at middle and high altitudes can travel long
distances.  They also noted that pollution levels were below predicted
levels following September 12, 2001 when aircraft were grounded. 

	Other commenters representing the airports and the airline industry
supported the exemption emission from aircraft above 3000 feet AGL. 
They noted that the FAA study supports the conclusion that aircraft
operations at or above 3,000 feet AGL have a minimal effect on ground
level pollutant concentrations. The commenters also noted that flights
over almost all major U.S. airports must be at least 7000 feet AGL;
therefore, any commercial aircraft operating at 3000 feet would most
likely either be landing or taking off.  The commenters also noted that
the FAA study concluded that any increase in ground level concentrations
of CO and hydrocarbon (HC) due to mixing was negligible. 

	A federal agency commenter believes that the exemption for air traffic
control activities should not be restricted by altitude.  The commenter
noted that the proposal for exempting aircraft operations above 3,000
feet AGL is much narrower than what was presented in the preamble to the
1993 General Conformity rule as an example of an action that is exempt
from the General Conformity requirements – “air traffic control
activities and adopting approach, departure and enroute procedures for
air operations.”  

Response:  EPA agrees that the aircraft emissions above the mixing
height do not significantly affect ground level concentrations and
acknowledges that the mixing height can vary from one area to another. 
Accordingly, in those areas where the applicable SIP or TIP specifies a
mixing height, EPA is requiring the specified mixing height to be used. 
However, in those areas where the SIP or TIP does not specify a mixing
height, EPA is allowing the federal agencies to use 3,000 feet AGL as a
default mixing height.  This conclusion is supported by the FAA study. 
In addition, 3,000 feet AGL is commonly used as an estimate of the
average maximum afternoon mixing height across the country and most air
quality models use 3,000 feet AGL as the default mixing height. 

5. The EPA is revising paragraph (d)(1) of §93.153 to exempt emissions
covered by a NSR permit for minor sources. The 1993 regulations exempt
emissions covered by a NSR permit for major sources but not for minor
sources. EPA concluded at that time that the purposes of the General
Conformity review would be adequately met by the major source NSR
review, and that additional review would not be necessary.  The EPA now
believes that minor source NSR provides similar review, and that 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.  Accordingly, we are revising §93.153(d)(1) to also
exempt emissions covered by minor source NSR permits issued pursuant to
the general permitting authority provided by section 110(a)(2)(c) of the
CAA.

Comment:  The majority of commenters agreed with the proposal to exempt
stationary sources permitted under the NSR program.  They believed the
review to be redundant and unnecessary.  

Some commenters disagreed with exempting minor sources.  One commenter
thought that EPA should not exempt activities with emissions less than
the major source threshold from conformity review unless some basis can
be established that the cumulative emissions from such sources are truly
de minimis with respect to the statutory conformity tests.  The
commenter suggests that EPA substitute a SIP-based program for
establishing a budget for minor sources in place of the regionally
significant threshold.  Several commenters suggested that only NSR
permits which require offsets or are offset on a programmatic basis
should be exempt from conformity.  A few commenters thought that, if EPA
exempts minor sources for the conformity evaluation, it must first
clearly demonstrate that such exemptions will not impede States’
ability to attain any standard.  

Response:  The EPA agrees that requiring a conformity analysis for
emission covered by a minor source NSR permit would be redundant and
provide little environmental benefit.  EPA believes that the permitting
authority has the responsibility to ensure that the source will not
interfere with the SIP or otherwise interfere with the state’s ability
to attain the standards.  Minor source NSR permits are issued under a
SIP-approved program, so there has already been a determination that the
permitting program will not contribute to a violation of the NAAQS or
delay the attainment or maintenance of the standards.  Thus, by issuing
a specific permit under that program, the authority is stating that the
emissions are accounted for in the SIP, effectively providing the same
assurances as a conformity determination since federal agencies can
demonstrate conformity for an action by showing that the actions will
not cause a violation or interfere with the SIP. 

6.  The EPA is deleting “or natural disasters such as hurricanes,
earthquakes, etc.,” and “or disaster” from paragraph (d)(2) of
§93.153 because they are unnecessary words.  In §93.152 EPA defines an
emergency; therefore the words in §93.153 describing an “emergency”
are not necessary and may be confusing since they do not include all
types of emergencies.

7.  The EPA is amending 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 military mobilization, may
find it impractical to conduct a conformity evaluation on the action
before it must take the action.  To address this situation, 40 CFR
93.153(d)(2) of the 1993 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 amending §93.153(e)
to allow the agencies to extend the exemption for another 6 months. 
This section requires federal agencies to make a written determination
that it is impractical to conduct an evaluation for the action.  The
1993 regulations were not clear about the number of additional
extensions permitted under §93.153(e) nor do those regulations provide
any procedures for agencies to follow in deciding on the extension.

The EPA is not revising requirements for the initial exemption for
actions in response to emergencies.  The initial governmental actions
that are typically commenced within hours or days in response to
emergencies or disasters would still be exempt from the General
Conformity requirements for six months after the commencement of the
response to the emergency or disaster.  However, EPA is adding
requirements for federal agencies that want to extend the exemption
beyond the initial 6-month period.  First, EPA is requiring the federal
agencies to allow EPA and the state 15 days to review and provide
comments on the draft written determination to extend the exemption at
the beginning of the extension period.  Next, EPA is requiring federal
agencies to publish a notice within 30 days of making the extension
decision.  The notice must be published in a daily general circulation
newspaper for the affected area.  Finally, EPA is limiting the maximum
number of 6-month extensions an agency may declare without additional
documentation on their own to three.  Thereafter, the revisions require
that the agency must provide additional information concerning the
emergency conditions to EPA and the state or tribe 

8.  The EPA is revising paragraphs (f), (g), and (h) of §93.153 to
provide federal agencies clear guidance 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 adding wording to paragraph (f) to specify when
and how more than one “presumed to conform” exception may be taken
for a federal action; adding a new paragraph (g)(3) to specify that
federal agencies can list actions that are for individual areas or SIPs
or TIPs; adding a sentence to paragraph (h)(1) to specify the
information that must be included in the documentation; and adding a
sentence to paragraph (h)(2) to allow the federal agencies to notify EPA
headquarters when the “presumed to conform” actions would have
multi-regional or national impacts. In addition, EPA is revising
paragraphs (f) and (h) to include a reference to the new paragraph
(g)(3).

In promulgating the existing regulations, EPA allowed 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” with applicable SIPs and TIPs.  Under the 1993
regulations, federal agencies must justify the inclusion of the actions
on their “presumed to conform” list by either demonstrating:  (1)
That the actions will not cause or contribute to an air quality problem
or otherwise interfere with the SIP, TIP, or FIP, or (2) that the
actions will have emissions below the de minimis levels.  The federal
agencies must provide copies of the proposed list to EPA, affected state
and local air quality agencies and MPOs.  In addition, the agencies must
provide at least a 30-day public comment period and document its
response to all comments.  The notice of the proposed and final list
must be published in the Federal Register.

The EPA is adding sub-paragraph (g)(3) to clarify that a presumption
could apply to 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 in that area may be able to
demonstrate that construction activities of a certain size or type fits
within the SIP's emission budget.  With the concurrence of the state or
tribe, the federal agencies could publish a “presumed to conform”
list that includes the construction activity emissions that are specific
to a facility.

9. The EPA is deleting 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.”  40 CFR
93.153(i) and (j) require conformity determinations for all regionally
significant actions, regardless of any exemptions or presumptions of
conformity based on other provisions in the regulations.  

Comment:  Some commenters supported deletion of the regionally
significant provision noting that it is unnecessary, not helpful in
determining whether a federal action will conform to the SIP, and is an
administrative burden.  Other commenters believed that the provision
should be retained or strengthened or a more appropriate percentage of
the area’s inventory be used for the test.  Some commenters also
pointed out that in light of the new PM2.5 and 8-hour ozone standards,
certain federal projects might become “regionally significant” in
the near future.  

Response:  EPA agrees that the determination of whether actions with
emissions below the de minimis emission levels are regionally
significant has been a burden to some federal agencies with little or no
environmental benefit.  Analysis discussed in the proposal showed that
the emission inventory for most nonattainment and maintenance areas well
exceeded the ten times the de minimis emission levels for the area, such
that no emissions could actually be regionally significant.  Although
several commenters question whether the regionally significant test
might be important for the new PM2.5 and 8-hour ozone standards, they
presented no information to show that the de minimis emission levels
would exceed 10 percent of the inventory for potential nonattainment
areas for those standards.  

10.  In a revised paragraph (i) of §93.153, EPA allows installations
with a facility-wide emission budget to presume that an action at the
installation will conform provided that the emissions from that action
along with all other emissions from the facility will not exceed the
budget.  A more detailed discussion of the facility-wide emission budget
concept is found in §93.161.

11.  Also in §93.153(i), EPA identified emissions from a prescribed
fire conducted under an approved smoke management program as “presumed
to conform.”  In the January 2008 proposal, EPA asked for comments on
two options for allowing a presumption of conformity for prescription
fires.  Option 1 would have allowed federal agencies to presume that the
emissions from prescribed burns will conform provided the burning is
conducted under a state certified approved SMP.  Option 2 would have
also allowed federal agencies, in the absence of a certified SMP, to
presume that emissions from prescribed burns will conform provided they
obtain written permission from the state and uses BSMP. 

Comment:  The EPA received many comments in support of the second
option, which allows federal agencies to determine, in absence of a
certified SMP, that prescription fires conducted using BSMP are
considered “presumed to conform” to the SIP.  Some commenters noted
that to be consistent with the “Treatment of Data Influenced by
Exceptional Events” rule (72 FR 13559, March 22, 2007), if the state
does not certify a SMP, the exemption should be for burns using state
approved BSMP.  Many commenters also supported the first option, noting
that it was reasonable to assume that any action conducted in compliance
with the certified SMP would be in compliance with the SIP.  One
commenter thought that the presumption of conformity for burns conducted
under BSMP is not acceptable because BSMP are in no way connected to air
quality and will not ensure that resulting emissions from a prescribed
burn would conform to the SIP.  This commenter also noted that the use
of SMP may be acceptable, but EPA has not yet issued its final wildland
fire policy.  Another commenter suggested that if prescribed burns under
certified SMP or a BSMP are “presumed to conform,” there needs to be
a simple way to flag the data from affected monitors.  Numerous
commenters recommended that the definition of emergency episode include
wildfires.

Response:  After considering the various practices and the comments
received, the EPA believes option 1 presented in the proposed rule is
more protective of the air quality than option 2.  Under option 1,
prescribed fires conducted in compliance with a SMP are “presumed to
conform”.  The primary purpose of a SMP is to reduce emissions from
prescribed burns, thus preventing deterioration of air quality and NAAQS
violations, mitigating visibility impacts in mandatory Class I federal
areas and mitigating the nuisance and public safety hazards (e.g., on
roadways and at airports) posed by smoke intrusions into populated
areas.  EPA also notes that SMPs establish procedures and requirements
for minimizing emissions.  EPA believes such purposes and requirements
are consistent with the underlying purpose of the General Conformity
program.  EPA does not believe that the second approach contains
assurances that emissions would not contribute to new violations. 
Because the EPA chose not to require the certification of the SMP under
the final “Treatment of Data Influenced by Exceptional Events” rule,
EPA is also removing the term “certified” from this final General
Conformity Rule.  Finally, EPA does not believe that the rule needs to
identify wildland fires as an emergency event that is exempt from
General Conformity since responses to natural disasters are already
identified as exempt from conformity.

12.  As discussed above, EPA also added a provision in §93.153(i) to
allow a state or tribe to adopt in their SIP or TIP a list of actions it
“presumes to conform.”

13.  The EPA is revising 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 1993 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 deleted the regionally significant test, therefore reference to
it is has been deleted from this paragraph.  For clarity, instead of
referring to sub-paragraph (g)(1), EPA is repeating the requirements in
this paragraph.

14.  The EPA is revising 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, Congress added section 176(c)(6) to the CAA to allow for
a conformity grace period for newly designated nonattainment areas (Pub.
L. 106-377).  That section establishes a 1-year grace period following
the effective date of the final nonattainment designation for each new
or revised NAAQS before the conformity requirements must be met in the
area.  If an agency takes or starts the federal action before the end of
the grace period, it must comply with the applicable pre-designation
conformity requirements.  If an agency takes or starts the federal
action after the end of the grace period, it must comply with the
post-designation conformity requirements. As discussed above in
describing the new term “take or start the federal action,” EPA is
defining the term to mean that a federal agency takes an action when it
signs a permit, license, grant or contract or otherwise physically
starts the federal action.  From the time that an area is designated as
nonattainment, agencies will have a year to take or start the federal
action.  If the agency fails to take or start the federal action during
the grace period, then it must re-evaluate conformity for the project
based on the requirements for the new designation and classification.

F. 40 CFR 93.154--Federal Agencies Responsibility for a Conformity
Determination

1.  The EPA is revising the title of this section to clarify the purpose
of the section.  In the 1993 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 revising the title of the section to more closely
describe the section’s content.

2. The EPA is adding 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 adding additional sections to subpart B, it is revising
the references to those sections in §93.155.

2. Consistent with EPA’s Tribal Authority Rule (63 FR 7253), EPA is
providing federally-recognized Indian tribal governments the same
opportunity to comment on draft conformity determinations as given to
states.  Therefore, EPA is requiring the federal agencies to notify all
the federally-recognized Indian tribal governments in the nonattainment
or maintenance area. 

3. The EPA is adding an alternative procedure for notifying EPA when the
action would result in emissions originating in nonattainment or
maintenance areas in three or more EPA regions.  Specifically, EPA is
allowing 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 10 regional Offices.  This final notification
provision also corrects an inconsistency between the proposed rule
preamble and the proposed regulation, which stated that the EPA Office
of Air Quality Planning and Standards could be contacted when the action
would result in emissions originating in nonattainment or maintenance
areas in two or more EPA regions. 

4. The EPA is adding a new paragraph to §93.155 to describe how
restricted information used to support conformity determinations should
be handled when provided to EPA, states and tribal governments.  The
1993 General Conformity Regulations do not contain an explicit statement
about protecting restricted information from public release.  The
interagency review and public participation provisions in the 1993
regulations require federal agencies to make available for review the
draft conformity determination with supporting materials that describe
the analytical methods and conclusions relied upon in making the
determination.  Disclosure of classified information by a federal
employee is a criminal offense (18 U.S.C. 1905).  In addition, certain
unclassified information is privileged or otherwise protected from
disclosure.  Therefore, several federal agencies wanted to ensure that
the General Conformity Regulations clearly state that no agency or
individual was required to release restricted information including, but
not limited to, classified materials.  Therefore, EPA is revising the
regulation to add explicit language concerning the protection of
restricted information.  In addition, conformity determinations could,
in part, be based upon restricted information.  The EPA is adding
specific language to the regulation to protect restricted information in
accordance with each federal agency's policy and regulations for the
handling of restricted information.  The regulations would allow state
or EPA personnel with the appropriate clearances to be able to view the
restricted information.

H. 40 CFR 93.156--Public Participation

1. The EPA is correcting the section referenced in §93.156. The 1993
regulations refer 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 providing an alternative public notification procedure for
actions that cause emissions above the de minimis levels in three or
more EPA Regions.  This corrects a mistake made in the proposed rule
preamble that stated “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.”  In addition, this corrects an inconsistency with the proposed
regulation, which stated that the alternative public notification
procedure is for actions that have multi-regional or national impacts in
two or more regions.  The 1993 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 amending the rules 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 three or
more nonattainment or maintenance areas.

3. The EPA is adding a new paragraph to §93.156 to describe how
restricted information and CBI used to support conformity determinations
should be handled in providing the information to the public.

I. 40 CFR 93.157--Reevaluation of Conformity

1.  The EPA is revising the title of this section to more appropriately
describe the section's content.  The 1993 regulations 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 to use in
determining if reevaluation is required.  The EPA is making minor
wording changes in paragraphs (a) and (b) to clarify that the date of a
completed NEPA analysis, as evidenced by a signed finding of no
significant impact (FONSI) for an environmental assessment, a record of
decision (ROD) for an environmental impact statement, or a record of a
categorical exclusion, can be used when a conformity determination is
not required.

3.  The EPA is adding a new paragraph (d) 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 original determination, the federal agency had to demonstrate
that all the emissions caused by the initial action conformed to the
SIP.  Since conformity determinations are only needed for emissions that
exceed the de minimis levels, EPA has clarified in the rule that 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 (d)
also deals with modifying an action that the federal agency determined
had emissions below the de minimis level.  Since the emissions from the
unmodified action were determined to be de minimis and not fully
evaluated to determine conformity, EPA is requiring federal agencies to
conduct a conformity determination for the modified action 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.  Thus, in both situations, all emissions
that exceed de minimis levels are evaluated for conformity impacts,
either initially or after modification 

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

1.  In §93.158(a)(1), EPA is adding “or precursor” after “any
criteria pollutant” to clarify that federal agencies must demonstrate
conformity for the precursors of the criteria pollutants if the
precursor emissions are specifically identified and accounted for in the
applicable SIP, TIP or FIP.

2. In §93.158(a)(2) and (a)(5)(iii), EPA is allowing federal agencies
to obtain emission offsets for the General Conformity requirements from
a nearby nonattainment or maintenance area of equal or higher
classification, provided that the emissions from the nearby area
contribute to the violations of the NAAQS in the area where the federal
action is located or, in the case of a maintenance area, the emissions
from the nearby area have contributed in the past to the violations in
the area where the federal action is located.  The regulation requires
such emissions offsets to be obtained through either an approved SIP
revision or an equally enforceable commitment.

Comment:  Commenters representing federal agencies, industry groups and
some state air quality agencies supported the provision to allow offsets
from nearby nonattainment or maintenance areas.  Some of these
commenters suggested that additional limits could be imposed on the use
of the out of area offsets.  Several commenters representing state air
quality agencies opposed the allowing of offsets from other areas.  The
commenters noted that EPA regulations and federal court rulings limit
the area from which emissions reductions can be creditable for
attainment demonstrations.  They also opposed allowing offsets because
conformity generally applies to mobile source emissions that are
different from stationary source emissions covered by NSR.

Response:  The EPA agrees that offsets should be allowed in nearby
nonattainment areas in the same manner as they are allowed under the NSR
program.  We agree with the commenter that EPA regulations and judicial
rulings place limits on the area from which emissions reductions can be
creditable for attainment demonstrations. The intent of those limits is
to ensure that the emissions from the nearby nonattainment area
contribute to the violations, or have contributed to violations in the
past, in the area in which the federal action takes place.  This is
consistent with the overall revisions to this regulation.  Therefore, we
are also recommending that federal agencies show that they have met the
requirements of §93.158(a)(2) -- that the emission offsets originate
are from an area that contributes to the violations, or have contributed
to violations in the past, in the areas with the federal action -- by
using the same techniques EPA has approved by rule or guidance for
demonstrating contributing emissions in other SIP-related
determinations, such as Reasonable Further Progress, Rate of Progress,
or Attainment Demonstrations for a particular pollutant or pollutant
precursor.  By limiting the offsets to areas that contribute or have
contributed to the nonattainment, EPA is narrowing the potential offsets
to areas that will result in a benefit to the nonattainment or
maintenance area in which the federal action will take place.  EPA also
agrees that Transportation Conformity addresses mobile sources, but the
same is not true for General Conformity.  While there are some actions
subject to the General Conformity Regulations that only involve mobile
sources, a large number of other action involve stationary and mobile
sources.  

3.  In §93.158(a)(2), (a)(3) and (a)(4), EPA is revising the
regulations to address the precursors of PM2.5.  The EPA does not
believe that the current models are adequate to reasonably predict the
project level impact of individual precursor sources of ozone or PM2.5. 
Therefore, EPA is allowing federal agencies to use modeling to
demonstrate conformity only for directly emitted pollutants.  Precursors
of PM2.5 will be treated the same as precursors of ozone and direct
emissions of PM2.5 will be treated the same as CO and PM-10 for purposes
of identifying available tests to demonstrate conformity. 

4.  In §93.158(a)(3) and (5), EPA is correcting two typographical
errors. In sub-paragraph (3), EPA is correcting “meet” to
“meets” and in sub-paragraph (5), EPA is changing “paragraph
(a)(3(11)” to “paragraph (a)(3)(ii).”

5. In §93.158(a)(5)(i), EPA is deleting the reference to the year 1990
and replacing it with a generic reference to the most current calendar
year with a complete emission inventory available before an area is
designated unless EPA sets another year.  In addition to requiring the
conformity regulations, the CAA Amendments of 1990 required the
designation of areas as nonattainment based on the existing air quality
data.  Therefore, when EPA promulgated the 1993 regulations, all the
designations were based on a 1990 date.  Since EPA promulgated the
conformity regulations, it has promulgated new 8-hour ozone and PM2.5
standards and designated a number of areas as nonattainment.  By
changing the regulations to reference the date when the area was
designated as nonattainment, EPA is allowing for the General Conformity
regulations to address these new designations and any future
designations through identification of appropriate inventory levels.

6. Also in §93.158(a)(5)(i), EPA is revising the paragraph to allow
federal agencies to make conformity determinations 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 1993 regulations, states could
only make such a determination if they had an approved attainment
demonstration or maintenance SIP.  This revision would allow the state
or tribe to make its determination based upon a post-designation
applicable SIP or TIP even though the plan does not include an
attainment demonstration.  For example, the state or tribe could base
their determination on an emission budget in an EPA approved
“Reasonable Further Progress” plan.  By adopting the budget and
submitting it as part of the SIP or TIP, the state or tribe is treating
the federal action like any other source in the area.  When the state or
tribal agency adopts the attainment or maintenance SIP or TIP, it will
have to consider the emissions from the federal action, and if necessary
require additional controls on the sources as necessary to meet air
quality needs.

7. The EPA is revising §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 1993 regulations, federal agencies can demonstrate
conformity by having the state commit to revising the applicable SIP to
include the emissions. If a state or tribe agrees to such a commitment,
the state or tribe must submit a SIP revision within 18 months to
include the emissions from the action and to make other necessary
adjustments in the SIP to accommodate those emissions. However, the
existing SIP or TIP (or a SIP or TIP required to be submitted in 18
months) may not cover the same timeframe covered by the conformity
determination.  For example, a SIP for a nonattainment area that
demonstrates attainment may only cover the period until the attainment
date while the conformity determination may cover emissions for many
years beyond that date.  The state or tribe may be submitting future
SIPs or TIPs to address either maintenance of the standard or to address
a continuing nonattainment problem that would cover the time period of
the emissions.  The revision to §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 will
submit a SIP revision that includes 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 covering the relevant time period.

8. The EPA is revising §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 setting the
baseline year as the most current calendar year with a complete emission
inventory available before an area is designated unless EPA sets another
year.

Finally, EPA is deleting another alternate baseline year that no longer
is applicable in PM-10 areas.  Specifically, EPA is deleting in
§93.158(a)(5)(iv)(A)(3) the use of the “year of the baseline
inventory in the PM-10 applicable SIP.”  EPA believes that the
deletion of this out-dated baseline year should not affect current
General Conformity determinations in PM-10 nonattainment and maintenance
areas.

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

1. EPA is changing §93.159(b)(1)(ii) to address when new motor vehicle
emissions factors models are used in General Conformity determinations. 
EPA is clarifying that the grace period before such new models are used
will be 3 months from EPA's model release, unless a longer grace period
is announced in the Federal Register.  This is more consistent with 40
CFR 93.111 of the transportation conformity rule that allows grace
periods for new motor vehicle emissions factor models to be between 3-24
months.

2. The EPA is revising §93.159(b)(2) and (c) to update the reference to
the Compilation of Air Pollutant Emission Factors and the Guideline on
Air Quality Modeling.  EPA has released updated versions of these
documents since it promulgated the existing regulations in 1993.

3. The EPA is revising paragraph (d)(1) to clarify that analysis is
first required for the attainment year specified in the SIP.  In some
cases, such as SIPs for marginal ozone areas, an attainment
demonstration date was not required in the SIP. Therefore, EPA is
requiring that if the SIP or TIP does not specify an attainment
demonstration year then the analysis is conducted for the latest
attainment year possible under the CAA. Since the CAA requires the SIP
demonstrate attainment as expeditiously as possible but no later than
the CAA mandated attainment date, it is possible that a SIP or TIP could
have an earlier attainment date.  That earlier date if specified in the
SIP would be the appropriate year for the conformity analysis.

4. The EPA is making a minor wording revision to paragraph (d)(2) to
clarify the paragraph. The EPA is replacing the word “farthest” with
“last.”  The maintenance plans are developed for a 10-year period
and revised as necessary for the next 10-year period.  The purpose is
for conformity to be evaluated for the last year of the maintenance
plan.  The word “last” conveys that meaning.

L. 40 CFR 93.160--Mitigation of Air Quality Impacts

The EPA is revising 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 that those commitments must be fulfilled.  EPA is adding
text to state that those commitments must be fulfilled to clearly
provide for enforcement of those commitments under the federal
regulations.

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

The EPA is adding a new section to the regulations to facilitate the use
of a facility-wide emission budget in evaluating conformity.  Although
the existing regulations do not preclude states and federal agencies
from using this approach, the regulations do not specifically authorize
its use.  This section for developing such a budget would be in
conjunction with a new §93.153(i)(1), which provides a mechanism for
demonstrating that the emissions are in conformance with the SIP or TIP.
 This approach allows states or tribes and federal agencies to identify
acceptable levels of emissions from the facility for inclusion in the
SIP before starting the environmental review for the actions and thereby
expedite the review of the federal actions at the facilities that do not
exceed the emission levels.

The EPA believes that this provision 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 development and use of a facility-wide emission budget would be
voluntary on the part of the federal agency, state, tribe and local air
quality agency.  No party would be required to participate.  If the
parties agreed to participate, an emission budget would be established
based upon specific guidance and documented growth projections for the
facility, and adoption of that budget into a SIP or TIP would
demonstrate that the area could meet its air quality obligations with
the identified emission budget.

Comment:  The majority of commenters supported the concept of the
facility-wide emission budget approach with the appropriate consultation
and input from the states.  Many noted that it will not interfere with
attainment of the NAAQS.  However, some commenters disapproved of the
budget approach and expressed concern about a federal agency/airport
being allowed to establish their own budget without having to do
additional analysis.    

While generally agreeing with the approach, many commenters asked EPA
for clarifications.  Several commenters asked for clarification in the
final rule that this is voluntary for both the federal agency and the
states and the states can opt to use the existing General Conformity
approach.  In addition, some commenters asked EPA to include provisions
requiring such measures as periodic reporting of emissions,
anti-backsliding, and a requirement to obtain offsets if the budget is
exceeded.  Another commenter requested that on-site pollution prevention
projects be required to occur contemporaneously with any proposed
emission changes at the facility.  Many commenters requested that EPA
clarify the applicability of this provision to non-federal facilities
(e.g., airports).

Response: The EPA agrees with most of the commenters that the
facility-wide emissions budget approach will not interfere with
attainment of the NAAQS and will provide flexibility to the facilities
in meeting the General Conformity requirements.  EPA believes that this
approach benefits both the air regulatory agencies and the regulated
facilities.  State air quality agencies would benefit by having better
emission estimates, including growth estimates from the installation and
federal agencies would benefit by having the General Conformity process
streamlined, reducing the amount of time it takes to demonstrate
conformity.  EPA is clarifying in the final rule that this approach is
completely voluntary by both the state and the federal agency.  If the
state or tribe agrees to allow the facility to use the emission budget
approach, it must ensure that the budget that it approves meets all
applicable air quality requirements such as attainment deadlines and
reasonable further progress milestones.  While the state or tribe must
approve a facility-wide budget into the SIP or TIP, once they have done
so they cannot compel an agency to demonstrate conformity with another
approach if the federal agency chooses to show conformity with the
approved facility-wide emission budget.  Federal agencies may use any
approach to demonstrate conformity provided for in the rule.  Facilities
that are not federally controlled or operated, but are subject to
federal approvals, permits or funding (such as airports and seaports)
may work with the state to establish facility-wide emissions budget that
can be used by a federal agency to satisfy its General Conformity
responsibilities.  The approval by the state of a facility-wide
emissions budget into the SIP does not relieve the state of any
obligation to meet any SIP or CAA requirements, milestones or deadlines.

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

The EPA is adding 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 allowing federal
agencies to demonstrate conformity using the last emission budget in the
SIP or TIP.  If it is not practicable to demonstrate conformity using
that technique, then the federal agency can request the state or tribe
to provide an enforceable commitment to include the emissions from the
federal action in a current or future SIP or TIP emissions budget.  In
such a case, the state or tribe would be required to submit a SIP
revision within 18 months to either include the emissions in the current
SIP or TIP or a commitment to account for the emissions in future SIPs
or TIPs.  The emissions included in the future SIP should be based on
the latest planning assumptions at the time of the SIP revision. 
Although a state is committing to include the emissions in the emissions
budget for the SIP revisions, this commitment does not prevent the state
from requiring the use for the effected sources of reasonably available
control technology (RACT), reasonably available control measures (RACM)
or any other control measures within the state's authority to ensure
timely attainment of the NAAQS.

O. 40 CFR 93.163--Timing of Offsets and Mitigation Measures

Mitigation measures and offsets are used to reduce the impact of
emission increases from a project or action.  To alleviate 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 has decided to include this interpretation
in the regulations.

The EPA is adding 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 new section would allow, under special conditions
and consistent with CAA requirements, the state or tribe to approve
other schedules for offsets or mitigation measures.  EPA is requiring
that emissions reductions used over an alternate schedule must be
consistent with statutory requirements that new violations are not
created, the frequency or severity of existing violations are not
increased, and timely attainment or interim milestones are not delayed. 
Therefore, when a state or tribe approves an alternative schedule for
emissions reductions, it is assuring that the increased emissions that
occur during the period of the federal action do not violate any of the
three Clean Air Act requirements described above.

To ensure that these non-contemporaneous emission reductions provide
greater environmental benefits in the long term, EPA is requiring that
the offset or mitigation ratios for alternative schedules be greater
than one-for-one.  Therefore, EPA is requiring a ratio that is no less
than the applicable NSR offset ratios for the area.  These ratios are
readily available and already understood to be based on the severity of
the nonattainment problem for the area.

Also, EPA believes that the mitigation or offset compensation period
should not last indefinitely and is requiring that the period should not
exceed two times the period of the under-mitigated emissions.  For
example, a federal agency may be supporting 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).

Agreeing to allow the use of offsets or mitigation measures in later
years does not exempt the state or tribe from timely 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.

Comment:  Several commenters representing federal agencies, industry and
airports supported the flexibility in the timing of offsets and
mitigation measures.  The commenters believe that EPA needs to clarify
what entity would determine whether the alternative time period for
mitigation would trigger the three statutory factors for conformity and
how such entity would do so.  One commenter recommended that the state
or tribal agency responsible for the SIP be the appropriate entity. 
Another commenter requested that EPA clarify the use of emission
reduction credits in such cases.  In addition, a commenter urges EPA to
reduce the offset ratios to no more than 1.2:1 in extreme nonattainment
areas and to provide a fixed period of time for completing the emissions
reductions recommending a 5-year compensation period to be included in
the rule. 

	Some commenters representing state and local air quality agencies
objected to the alternate schedule provision for offsets.  The
commenters believe that mitigation measures and offsets must be
contemporaneous and occur in the same calendar year as the emission
increases.  If EPA adopts the provision, the commenters suggested
additional limitation on the use of the alternative schedule, such as a
3 year maximum time limit for the schedule and requiring more than a
one-for-one offset.

Response:  The EPA believes the rule should be finalized as proposed. 
This will allow federal agencies to work with states or tribes to
develop an alternative schedule for the emission reductions in cases
where a greater environmental benefit can be obtained.  The requirement
for the additional reductions to meet the ratios in the regulations
ensures that the area is receiving at least a minimum environmental
benefit consistent with other CAA programs.  Since state or tribal
approval is required for the alternative schedule, those agencies have
the ability to ensure that the alternative schedule not cause or
contribute to a violation of the SIP or TIP.  In addition, EPA has added
additional wording to clarify that the state or tribe is not compelled
to approve a proposed alternate schedule for mitigation measures. 

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

The EPA is adding a new section to the regulations to allow the use of
inter-precursor offset and mitigation measures where they are allowed by
the SIP.  For example, some states and local air districts have
SIP-approved NSR regulations that allow new or modified stationary
sources to offset the increase in emissions of one criteria pollutant
precursor by reducing the emissions of another precursor of the same
criteria pollutant, provided there is an environmental benefit to such
an exchange and an appropriate ratio of precursor reductions has been
established.  The 1993 General Conformity regulations do not
specifically allow or prohibit inter-precursor offsets and mitigation
measures.  Therefore, EPA is revising the regulations to allow such
offsets or mitigation measures if they are allowed by a state or tribal
NSR or trading program approved in the SIP, provided they:

1. Are technically justified; and

2. Have a demonstrated environmental benefit.

The ratio for the offsets must be consistent with SIP or TIP
requirements and EPA guidance.

Comments:  Commenters from a wide range of affiliations supported the
provision for inter-precursor offsets with some conditions.  The
commenters suggested that offsets should be allowed only with adequate
technical support and appropriate ratios for inter-pollutant mitigation.
 Others thought EPA should provide a guidance document on what states
may consider as reasonable tradeoffs and procedures for evaluating such
tradeoffs at the same time as the final rule publication.  Many believed
the provisions should only be implemented with the full involvement and
approval of the state, local or tribal air quality agency.  Some
commenters representing state air quality agencies objected to the
provision for inter-precursor offsets but gave no reason for the
objection.

Response:  The EPA believes that allowing inter-precursor offsets will
allow facilities flexibility in meeting the General Conformity
requirements and agrees to change the regulations to allow for the
trading of inter-precursor emissions only if two conditions are met. 
First, such trades must be allowed by the state or tribe in a SIP or
TIP.  The state must already allow for inter-precursor offsets or
trading through a SIP-approved NSR program, transportation conformity
program, or in the attainment or reasonable further progress (RFP)
demonstration to ensure conformance with a SIP or a TIP.  Second, the
trade must be technically justified and have demonstrated environmental
benefits. This technical justification and demonstration should be
accomplished by showing that the precursors are area specific and
appropriate ratios are identified in the SIP.  As needed, EPA will
provide guidance on tradeoffs and procedures for evaluating such
tradeoffs.

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

The EPA is adding 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 for future actions subject
to the General Conformity requirements.  To expedite the project level
conformity process, EPA believes 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, while
at the same time meeting the goals of the SIP and TIP. 

The EPA is adding a new section, §93.165, to the General Conformity
Regulations to define the requirements of this program.  Under the
program, federal agencies or project proponents (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 RFP demonstrations; surplus to
the reductions required by and credited to other applicable SIP
provisions; enforceable at both the state and federal levels; and
permanent within the timeframe specified by the program) as well as all
state, tribe or local requirements, the state, tribe or local agency can
approve the measure as eligible to produce emission reduction credits. 
If credits are issued, then a federal agency will be allowed to use the
credits to reduce the total of direct and indirect emissions from a
future 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 under this program.

In paragraph (a), EPA establishes the ability for the state or tribe and
federal agency to create and use the emission reduction credits.

In paragraph (b), EPA identifies the criteria for creating the credits. 
The criteria are similar to the 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 precisely 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.  However, the reductions must be
quantified before the credit is used to support a conformity
determination.

In paragraph (c), EPA establishes the requirements for the use of the
credits.  If the emission reduction credits are created at the same
facility and in the same nonattainment or maintenance area as the
federal action, the credits can be used to reduce the total emissions
from the action.  This may allow the federal agency to determine the
action conforms because the total emissions are below the de minimis
levels for the area.  If the strategy is not implemented at the same
facility but is in the same nonattainment or maintenance areas as the
action, then the credits can be used as offsets or mitigation measures
for the emissions caused by the action, but not to determine if the
action emissions fall below de minimis thresholds.  In this context,
“same facility” means a contiguous area that a federal agency
manages or exercises control over.  Generally, all actions and
operations within a fence line of a facility such as an airport would be
considered to be at the “same facility.” However, military
operations at a civilian airport would not be considered to be at the
“same facility.”  Therefore, an airport could install equipment to
supply power and conditioned air to airplanes parked at a gate to reduce
the use of diesel generators and auxiliary power units at an airport
terminal. Those reductions could be considered to be implemented as part
of an airport expansion project to improve the terminal and thus would
be at the “same facility.”

Since the General Conformity program is based on annual emissions, EPA
is requiring that the credits be used in the same year as they are
generated under the program. Such a restriction would ensure consistency
with the other parts of the General Conformity program.  This does not
mean that an emission reduction strategy cannot produce an annual stream
of credits, but does mean that the reduction credits cannot be carried
over to another year.  Although the emission reduction credits must meet
the criteria for use of offsets or other mitigation measures, EPA is not
allowing the credits to be combined with  other program areas such as
the alternate schedules for mitigation measures under §93.163 or the
inter-precursor mitigation offset program under §93.164.  At this time,
EPA believes that, because of the newness of the emission reduction
credit program and the lack of available implementation data, it is
better to take a conservative approach on implementing the program to
ensure that it can be effectively implemented and evaluated. 

Comment:  Most commenters supported EPA’s proposal to allow the use of
emission reduction credits (ERCs).  One commenter thought that EPA
should clarify when the ERCs can be used.  Several commenters disagreed
with the proposal, citing concerns such as violations of conformity,
while another was concerned about the additional resources required to
certify the ERC and track them over time, and avoidance of formal
conformity determinations.  Still another commenter thought that under
§93.165(b)(4) there is no ability for states and the public to enforce
the measures relied upon to generate emission reduction credits.

Response:  The EPA believes that by allowing early ERCs, federal
agencies will be encouraged to develop emission reduction programs
before they are needed as offsets for conformity determinations.  Since
the emissions are accounted for on an annual basis, the unused credits
would benefit the environment.  The emission reduction programs could be
implemented in conjunction with the action requiring the conformity
determination.  Therefore, the use of ERC would not encourage an agency
to violate conformity. In any event, under this provision all federal
actions would need applicable offsetting reductions by the time the
conformity determination was made.  EPA does not believe states will be
required to use more resources since states and tribes are only required
to verify the credits when they are used in a conformity evaluation,
while the agency relying upon the credits is required to document that
usage.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this
action is a “significant regulatory action” because it may interfere
with actions taken or planned by other federal agencies.  Accordingly,
EPA submitted this action to the Office of Management and Budget (OMB)
for review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

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

Although the present revisions to the regulations do not establish any
specific new information collection burden, it would establish
alternative voluntary approaches that may result in a different burden.
For example, the proposed facility-wide emission budget would allow
federal agencies or operators of facilities subject to the General
Conformity requirements such as commercial service airports to work with
the state, tribe or local air quality agency to develop an emission
budget for the facility.  The state, tribe or local agencies and federal
agencies or third party facility operators would incur the burden of
developing the budget.  However, those entities are not required to
implement such a program and would be relieved of the burden of
conducting and reviewing some, if not all, of the General Conformity
determinations for the facility if they do so.  States are not required
to implement a program that would increase their burden, and we assume
they would not choose to do so.

	C.  Regulatory Flexibility Act

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

For purposes of assessing the impacts of these regulation revisions on
small entities, small entity is defined as:  (1) A small business that
is a small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards. (See 13 CFR 121.); (2) A
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) A small organization that is any not-for-profit
enterprise which is independently owned and operated and is not dominant
in its field.

After considering the economic impact of these revisions to the
regulations on small entities, I certify that this action will not have
a significant economic impact on a substantial number of small entities.
 These revisions will not impose any significant requirements on small
entities, because the General Conformity Regulations set requirements on
federal agencies to show that their actions conform to the appropriate
state, tribal or federal implementation plan for attaining clean air. 

D. Unfunded Mandates Reform Act

 This action contains no federal mandates under the provisions of Title
II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private sector.
Therefore, this action is not subject to the requirements of section 202
and 205 of the UMRA.

This action is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.  Nonetheless, EPA
carried out consultations with governmental entities affected by this
regulation.

E.  Executive Order 13132--Federalism

	Executive Order 13132, entitled “Federalism” (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
“meaningful and timely input by state and local officials in the
development of regulatory policies that have Federalism implications.”
 “Policies that have Federalism implications are defined in the
Executive Order to include regulations that have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.”

This final rule 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 regulation revisions.

In the spirit of Executive Order 13121 and consistent with EPA policy to
promote communications between EPA and state and local governments, EPA
held meetings with the federal agencies and organizations that prepare
technical support for federal agencies determinations.  EPA 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

This action does not have tribal implications, as specified in Executive
Order 13175 (65 FR 67249, November 9, 2000).  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
regulation revisions do not affect the relationship or distribution of
power and responsibilities between the federal government and Indian
tribes. The CAA and the Tribal Air Rule establish the relationship of
the federal government and tribes in developing plans to attain the
NAAQS, and these revisions to the regulations do nothing to modify that
relationship. Because these regulation revisions do not have tribal
implications, Executive Order 13175 does not apply.

Although Executive Order 13175 does not apply to these regulations, EPA
did consult with some tribal officials in developing these regulations
revisions and encouraged tribal input at an early stage.  The EPA
specifically solicited additional comment on the proposed revisions to
the regulations from tribal officials. 

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

	EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only
to those regulatory actions that concern health or safety risks, such
that the analysis required under section 5-501 of the EO has the
potential to influence the regulation.  This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.

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

This action is not a “significant energy action” as defined in
Executive Order 13211 (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.  Further, we have concluded that this rule is not
likely to have any adverse energy effects.

I. National Technology Transfer Advancement Act

 	Section 12(d) of the National Technology Transfer Advancement Act of
1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards (VCS) in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical.  The VCS are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by VCS bodies. The NTTAA
directs EPA to provide Congress, through OMB, explanations when the
Agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, EPA did not
consider the use of any VCS.

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

Executive Order (EO) 12898 (59 FR 7629, (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.

	The EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not affect
the level of protection provided to human health or the environment. 
The revisions to the regulations would revise procedures for other
federal agencies to follow and does not relax the progress toward
attainment and maintenance for the NAAQS as required by individual SIPs
and TIPs  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.

K.  Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States.  EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal Register.
 This action is not a “major rule” as defined by 5 U.S.C. 804(2). 
This rule will be effective [INSERT DATE 90 DAYS AFTER DATE OF
PUBLICATION IN FEDERAL REGISTER].

VII. Statutory Authority

The statutory authority for this action is provided by section 176(c) of
the CAA as amended (42 U.S.C. 7506).  

This notice is also subject to section 307(d) of the CAA (42 U.S.C.
7405(d)).

List of Subjects

40 CFR Part 51

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

Page 95 of 133 - Revisions to the General Conformity Regulations

40 CFR Part 93

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

_______________________________

Dated:

_______________________________

Lisa P. Jackson,

Administrator.

        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: 23 U.S.C. 101; 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 revised 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 40 CFR part 93,
subpart B.

(b) Until EPA approves the conformity implementation plan revision
permitted by this section, federal agencies shall use the provisions of
40 CFR part 93, subpart B in addition to any existing applicable state
or tribal requirements, to demonstrate conformity with the applicable
SIP or TIP as required by section 176(c) of the CAA (42 U.S.C. 7506).

(c) Following EPA approval of the state or tribal conformity provisions
(or a portion thereof) in a revision to the applicable SIP or TIP,
conformity determinations shall be governed by the approved (or approved
portion of) state or tribal criteria and procedures. The federal
conformity regulations contained in 40 CFR part 93, subpart B would
apply only for the portion, if any, of the part 93 requirements not
contained in the state or tribe conformity provisions approved by EPA.

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

(e) A state's or tribe's conformity provisions may contain criteria and
procedures more stringent than the requirements described in this
subpart and part 93, subpart B, only if the state's or tribe's
conformity provisions apply equally to non-federal as well as federal
entities.

(f) In its SIP or TIP, the state or tribe may identify a list of federal
actions or type of emissions that it presumes will conform. The state or
tribe may place whatever limitations on that list that it deems
necessary. The state or tribe must demonstrate that the action will not
interfere with timely attainment or maintenance of the standard, meeting
the reasonable further progress milestones or other requirements of the
Clean Air Act. Federal agencies can rely on the list to determine that
their emissions conform with the applicable SIP or TIP.

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

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

4. The authority citation for part 93 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.

Subpart B--[Amended]

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

§93.150 Prohibition.

* * * * *

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

6. Section 93.151 is revised to read as follows:

§93.151 State implementation plan (SIP) revision.

The provisions and requirements of this subpart to demonstrate
conformity required under section 176(c) of the Clean Air Act (CAA)
apply to all federal actions in designated nonattainment and maintenance
areas where EPA has not approved the General Conformity SIP revision
allowed under 40 CFR 51.851. When EPA approves a state's or tribe’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 or tribe’s criteria
and procedures. The federal conformity regulations contained in this
subpart apply only for the portions, if any, of the part 93 requirements
not contained in the state or tribe conformity provisions approved by
EPA. In addition, any previously applicable implementation plan
conformity requirements remain enforceable until the EPA approves the
revision to the applicable SIP to specifically include the revised
requirements or remove requirements.

7. Section 93.152 is amended as follows:

a. Adding in alphabetical order a definition for “Applicability
analysis.”    

b. Revising the definition of “Applicable implementation plan or
applicable SIP.”

c. Revising the definition for “Areawide air quality modeling
analysis.”

d. Adding the following definitions in alphabetical order:
“Confidential business information,” “Conformity determination,”
“Conformity evaluation,” “Continuing program responsibility,”
and “Continuous program to implement.”

e. Revising the definition of “Direct emissions.”

f. Adding in alphabetical order a definition for “Emission
inventory.”

g. Removing the definition for “Emissions that a federal agency has a
continuing program responsibility for.”

h. Revising the definition of “EPA.”

i. Revising the definition of “Indirect Emissions.”

j. Revising the definition of “Local air quality modeling analysis.”

k. Revising the definitions for “Maintenance area” and
“Metropolitan Planning Organization (MPO).”

l. Adding in alphabetical order a definition for “Mitigation
measure.”

m. Revising the definition for “National ambient air quality standards
(NAAQS).”

n. In the definitions for Precursors of a criteria pollutant” revising
paragraphs (3)(i), (3)(ii) and (3)(iii).

o. Revising the definition for “Reasonably foreseeable emissions.”

p. Removing the definition for “Regionally significant action.”

q. Adding the following definitions: “Restricted information.”

r. Adding in alphabetical order the definitions for “Take or start the
federal action” and “Tribal implementation plan (TIP).”

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.

Areawide air quality modeling analysis means an assessment on a scale
that includes the entire nonattainment or maintenance area using an air
quality dispersion model or photochemical grid model to determine the
effects of emissions on air quality, for example, an assessment using
EPA's community multilayer air quality (CMAQ) model.

* * * * *

Confidential business information (CBI) means 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 and is
exempt from required disclosure under the Freedom of Information Act (5
U.S.C. 552(b)(4)).

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

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

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

(1) Actions it takes itself; or

(2) Actions of non-federal entities that the federal agency, in
exercising its normal programs and authorities, approves, funds,
licenses or permits, provided the agency can impose conditions on any
portion of the action that could affect the emissions.

Continuous program to implement means that the federal agency has
started the action identified in the plan and does not stop the actions
for more than an 18-month period, unless it can demonstrate that such a
stoppage was included in the original plan.

* * * * *

Direct emissions means those emissions of a criteria pollutant or its
precursors that are caused or initiated by the federal action and
originate in a nonattainment or maintenance area and occur at the same
time and place as the action and are reasonably foreseeable.

* * * * *

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

* * * * *

EPA means the U.S. Environmental Protection Agency.

* * * * *

Indirect emissions means those emissions of a criteria pollutant or its
precursors:

(1) That are caused or initiated by the Federal action and originate in
the same nonattainment or maintenance area but occur at a different time
or place as the action;

(2) That are reasonably foreseeable;

(3) That the agency can practically control; and

(4) For which the agency has continuing program responsibility.

For the purposes of this definition, even if a federal licensing,
rulemaking or other approving action is a required initial step for a
subsequent activity that causes emissions, such initial steps do not
mean that a Federal agency can practically control any resulting
emissions.

* * * * *

Local air quality modeling analysis means an assessment of localized
impacts on a scale smaller than the entire nonattainment or maintenance
area, including, for example, congested roadways on a federal facility,
which uses an air quality dispersion model (e.g., Industrial Source
Complex Model or Emission and Dispersion Model System) to determine the
effects of emissions on air quality.

Maintenance area means an area that was designated as nonattainment and
has been re-designated in 40 CFR part 81 to attainment, meeting the
provisions of section 107(d)(3)(E) of the Act and has a maintenance plan
approved under section 175A of the Act.

* * * * *

Metropolitan Planning Organization (MPO) means the policy board of an
organization created as a result of the designation process in 23 U.S.C.
134(d).

* * * * *

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

* * * * *

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

* * * * *

Precursors of a criteria pollutant are:

* * * * *

(3) * * *

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

(ii) Nitrogen oxides in all PM2.5 nonattainment and maintenance areas
unless both the state and EPA determine that it is not a significant
precursor, and

(iii) Volatile organic compounds (VOC) and ammonia (NH3) only in PM2.5
nonattainment or maintenance areas where either the state or EPA
determines that they are significant precursors.

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

* * * * *

Restricted Information is information that is privileged or that is
otherwise protected from disclosure pursuant to applicable statutes,
Executive Orders, or regulations. Such information includes, but is not
limited to: Classified national security information, protected critical
infrastructure information, sensitive security information, and
proprietary business information.

Take or start the federal action means the date that the federal agency
signs or approves the permit, license, grant or contract or otherwise
physically 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 and submitted by a federally
recognized Indian tribal government determined to be eligible under 40
CFR 49.9 and the plan has been approved by EPA.

8. Section 93.153 is amended as follows:

a. By revising the table in paragraph (b)(1).

b. By adding paragraph (c)(2)(xxii).

c. By revising paragraphs (d)(1) and (d)(2).

d. By revising paragraph (e)(2).

e. By adding paragraph (e)(3).

f. By revising paragraph (f).

g. By revising paragraph (g) introductory text.

h. By adding paragraph (g)(3).

i. By revising paragraphs (h) introductory text, (h)(1), (h)(2), and
(h)(4).

j. By revising paragraphs (i), (j), and (k).

§93.153 Applicability analysis.

* * * * *

(1) For purposes of paragraph (b) of this section, the following rates
apply in nonattainment areas (NAA's):

-------------------------------------------------------

Tons/year

-------------------------------------------------------

Ozone (VOC's or NOX):

    Serious NAA's................................50

    Severe NAA's.................................25

    Extreme NAA's................................10

    Other ozone NAA's outside 

     an ozone transport region..................100

    Other ozone NAA's inside an ozone transport region:

    VOC..........................................50

    NOX.........................................100

Carbon monoxide: All NAA's......................100

SO2 or NO2: All NAA's...........................100

PM-10:

    Moderate NAA's..............................100

    Serious NAA's................................70

PM2.5:

    Direct emissions............................100

    SO2.........................................100

    NOX (unless determined 

    not to be significant precursors)...........100

    VOC or ammonia (if determined 

    to be significant precursors)...............100

Pb: 

    All NAA's....................................25

-------------------------------------------------------

* * * * *

(c) * * *

(2) * * *

(xxii) Air traffic control activities for aircraft approaching or
departing airports or enroute that occur above the mixing height
specified in the applicable SIP or TIP.  Where the applicable SIP or TIP
does not specify a mixing height, the federal agency can use the 3,000
feet above ground level as a default mixing height.

* * * * *

(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 (§110(a)(2)(c) and §173 of the Act) or the
prevention of significant deterioration program (title I, part C of the
Act).

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

* * * * *

(e) * * *

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

(i) Provides a draft copy of the written determinations required to
affected EPA Regional office(s), the affected state(s) and/or air
pollution control agencies, and any federal recognized Indian tribal
government in the nonattainment or maintenance area. Those organizations
must be allowed 15 days from the beginning of the extension period to
comment on the draft determination; and

(ii) Within 30 days after making the determination, publish a notice of
the determination by placing a prominent advertisement in a daily
newspaper of general circulation in the area affected by the action.

(3) If additional actions are necessary in response to an emergency or
disaster under paragraph (d)(2) of this section beyond the specified
time period in paragraph (e)(2) of this section, a federal agency can
make a new written determination as described in (e)(2) of this section
for as many 6-month periods as needed, but in no case shall this
exemption extend beyond three 6-month periods except where an agency:

(i) provides information to EPA and the state or tribe stating that the
conditions that gave rise to the emergency exemption continue to exist
and how such conditions effectively prevent the agency from conducting a
conformity evaluation.

(ii) [Reserved]

(f) Notwithstanding other requirements of this subpart, actions
specified by individual federal agencies that have met the criteria set
forth in either paragraphs (g)(1), (g)(2), or (g)(3) of this section and
the procedures set forth in paragraph (h) of this section are
“presumed to conform,” except as provided in paragraph (j) of this
section.  Actions specified by individual federal agencies as
“presumed to conform” may not be used in combination with one
another when the total direct and indirect emissions from the
combination of actions would equal or exceed any of the rates specified
in paragraphs (b)(1) or (2) of this section.

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

* * * * *

(3) The federal agency must clearly demonstrate that the emissions from
the type or category of actions and the amount of emissions from the
action are included in the applicable SIP and the state, local, or
tribal air quality agencies responsible for the SIP(s) or TIP(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 of
action qualifies it for the presumption;

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

* * * * *

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

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

(1) Actions at installations with facility-wide emission budgets meeting
the requirements in §93.161 provided that the state or tribe 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) Prescribed fires conducted in accordance with a smoke management
program (SMP) which meets the requirements of EPA's Air Quality Policy
on Wildland and Prescribed Fires or an equivalent replacement EPA
policy.

(3) Emissions for actions that the state or tribe identifies in the EPA
approved SIP or TIP 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 or TIP 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 or TIP for
purposes of:

(A) A demonstration of reasonable further progress;

(B) A demonstration of attainment; or

(C) A maintenance plan.

(k) The provisions of this subpart shall apply in all nonattainment and
maintenance areas except conformity requirements for newly designated
nonattainment areas are not applicable until 1 year after the effective
date of the final nonattainment designation for each NAAQS and pollutant
in accordance with section 176(c)(6) of the Act.

9. Section 93.154 is revised to read as follows:

§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.

10. Section 93.155 is revised to read as follows:

§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 30 days after
making a final conformity determination under this subpart.

(c) The draft and final conformity determination shall exclude any
restricted information or confidential business information. The
disclosure of restricted information and confidential business
information shall be controlled by the applicable laws, regulations,
security manuals, or executive orders concerning the use, access, and
release of such materials. Subject to applicable procedures to protect
restricted information from public disclosure, any information or
materials excluded from the draft or final conformity determination or
supporting materials may be made available in a restricted information
annex to the determination for review by federal and state
representatives who have received appropriate clearances to review the
information.

11. Section 93.156 is revised to read as follows:

§93.156 Public participation.

(a) Upon request by any person regarding a specific federal action, a
federal agency must make available, subject to the limitation in
paragraph (e) of this section, for review its draft conformity
determination under §93.154 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
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 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 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 multi-regional or national
impacts, the federal agency, as an alternative, can publish the notice
in the Federal Register.

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

12. Section 93.157 is revised to read as follows:

§93.157 Reevaluation of conformity.

(a) Once a conformity determination is completed by a federal agency,
that determination is not required to be re-evaluated if the agency has:
maintained a continuous program to implement the action; the
determination has not lapsed as specified in paragraph (b) of this
section; or any modification to the action does not result in an
increase in emissions above the levels specified in §93.153(b).  If a
conformity determination is not required for the action at the time NEPA
analysis is completed, the date of the finding of no significant impact
(FONSI) for an Environmental Assessment, a record of decision (ROD) for
an Environmental Impact Statement, or a categorical exclusion
determination can be used as a substitute date for the conformity
determination date.

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

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

(d) If the federal agency originally determined 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.

13. Section 93.158 is amended as follows:

a. Revising paragraphs (a)(1), (a)(2), (a)(3) introductory text and
(a)(4) introductory text;

b. Revising paragraph (a)(5) introductory text;

c. Revising paragraphs (a)(5)(i) introductory text, and (a)(5)(i)(C;

d. Adding paragraph(a)(5)(i)(D).

e. Revising paragraphs (a)(5)(iii), (a)(5)(iv) introductory text;
(a)(5)(iv)(A)(1), (a)(5)(iv)(A)(2) and paragraph (a)(5)(iv)(B).

§93.158 Criteria for determining conformity of general federal actions.

(a) * * *

(1) For any criteria pollutant or precursor, the total of direct and
indirect emissions from the action are specifically identified and
accounted for in the applicable SIP's attainment or maintenance
demonstration or reasonable further progress milestone or in a
facility-wide emission budget included in a SIP accordance with
§93.161;

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

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

* * * * *

(4) For CO or directly emitted PM--

* * * * *

(5) For ozone or nitrogen dioxide, and for purposes of paragraphs
(a)(3)(ii) and (a)(4)(ii) of this section, each portion of the action or
the action as a whole meets any of the following requirements:

(i) Where EPA has approved a revision to the applicable implementation
plan after the area was designated as nonattainment and the state or
tribe makes a determination as provided in paragraph (a)(5)(i)(A) of
this section or where the state or tribe 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’s or tribe’s commitment under paragraph (a)(5)(i)(B) of this
section and the state has submitted a SIP or TIP to EPA covering the
time period during which the emissions will occur or is scheduled to
submit such a SIP or TIP within 18 months of the conformity
determination, the state commitment is automatically deemed a call for a
SIP or TIP revision by EPA under section 110(k)(5) of the Act, effective
on the date of the federal conformity determination and requiring
response within 18 months or any shorter time within which the state or
tribe commits to revise the applicable SIP;

(D) Where a federal agency made a conformity determination based on a
state or tribal commitment under paragraph (a)(5)(i)(B) of this section
and the state or tribe has not submitted a SIP covering the time period
when the emissions will occur or is not scheduled to submit such a SIP
within 18 months of the conformity determination, the state or tribe
must, within 18 months, submit to EPA a revision to the existing SIP
committing to include the emissions in the future SIP revision.

* * * * *

(iii) The action (or portion thereof) fully offsets its emissions within
the same nonattainment or maintenance area (or nearby area of equal or
higher classification provided the emissions from that area contribute
to the violations, or have contributed to violation in the past, in the
area with the federal action) through a revision to the applicable SIP
or an equally enforceable measure that effects emissions reductions
equal to or greater than the total of direct and indirect emissions from
the action so that there is no net increase in emissions of that
pollutant;

(iv) Where EPA has not approved a revision to the relevant SIP since the
area was designated or reclassified, the total of direct and indirect
emissions from the action for the future years (described in
§93.159(d)) do not increase emissions with respect to the baseline
emissions:

(A) * * *

(1) The most current calendar year with a complete emission inventory
available before an area is designated unless EPA sets another year; or

(2) The emission budget in the applicable SIP;

* * * * *

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

* * * * *

14. Section 93.159 is amended as follows:

a. Revising paragraphs (b) introductory text and (b)(1)(ii);

b. Revising paragraphs (b)(2) and (c) introductory text; and

c. Removing footnotes 1 and 2,

d. Revising paragraph (d).

The revisions and additions read as follows:

§93.159 Procedures for conformity determinations of general Federal
actions.

* * * * *

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

(1) * * *

(ii) A grace period of 3 months shall apply during which the motor
vehicle emissions model previously specified by EPA as the most current
version may be used unless EPA announces a longer grace period in the
Federal Register. Conformity analyses for which the analysis was begun
during the grace period or no more than 3 months before the Federal
Register notice of availability of the latest emission model may
continue to use the previous version of the model specified by EPA.

(2) For non-motor vehicle sources, including stationary and area source
emissions, the latest emission factors specified by EPA in the 

“Compilation of Air Pollutant Emission Factors” (AP-42,
http://www.epa.gov/ttn/chiefs/efpac) must be used for the conformity
analysis unless more accurate emission data are available, such as
actual stack test data from the stationary sources which are part of the
conformity analysis.

(c) The air quality modeling analyses required under this subpart must
be based on the applicable air quality models, data bases, and other
requirements specified in the most recent version of the “Guideline on
Air Quality Models.” (Appendix W to 40 CFR part 51).

* * * * *

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

(1) The attainment year specified in the SIP, or if the SIP does not
specify an attainment year, the latest attainment year possible under
the Act; or

(2) The last year for which emissions are projected in the maintenance
plan;

(3) The year during which the total of direct and indirect emissions
from the action is expected to be the greatest on an annual basis; and

(4) Any year for which the applicable SIP specifies an emissions budget.

15. Section 93.160 is amended as follows:

a. Revising paragraph (e);

b. Revising paragraph (f); and

c. Revising paragraph (g).

§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.

(f) Written commitments to mitigation measures must be obtained prior to
a positive conformity determination and such commitments must be
fulfilled.

(g) After a state or tribe revises its SIP or TIP and EPA approves that
SIP revision, any agreements, including mitigation measures, necessary
for a conformity determination will be both state or tribal and
federally enforceable. Enforceability through the applicable SIP or TIP
will apply to all persons who agree to mitigate direct and indirect
emissions associated with a federal action for a conformity
determination.

16. Subpart B is amended by adding §93.161 to read as follows:

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

(a) The state, local or tribal agency responsible for implementing and
enforcing the SIP or TIP can in cooperation with federal agencies or
third parties authorized by the agency that operate installations
subject to federal oversight develop and adopt a facility-wide emission
budget to be used for demonstrating conformity under §93.158(a)(1). 
The facility-wide budget must meet the following criteria:

(1) Be for a set time period;

(2) Cover the pollutants or precursors of the pollutants for which the
area is designated nonattainment or maintenance;

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

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

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

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

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

(b) The facility-wide budget developed and adopted in accordance with
paragraph (a) of this section can be revised by following the
requirements in paragraph (a) of this section.

(c) Total direct and indirect emissions from federal actions in
conjunction with all other emissions subject to General Conformity from
the facility that do not exceed the facility budget adopted pursuant to
paragraph (a) of this section are “presumed to conform” to the SIP
and do not require a conformity analysis.

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

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

17.  Subpart B is amended by adding §93.162 to read as follows:

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

If a federal action would result in total direct and indirect emissions
above the applicable thresholds 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 or tribe to adopt an emissions budget for the
action for inclusion in the SIP. The state or tribe must submit a SIP or
TIP revision to EPA within 18 months either including the emissions in
the existing SIP or establishing an enforceable commitment to include
the emissions in future SIP revisions based on the latest planning
assumptions at the time of the SIP revision. No such commitment by a
state or tribe shall restrict a state's or tribe’s ability to require
RACT, RACM or any other control measures within the state's or tribe’s
authority to ensure timely attainment of the NAAQS.

18.  Subpart B is amended by adding §193.163 to read as follows:

§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 or tribe may approve emissions reductions in other years
provided:

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

(i) Extreme nonattainment areas........... 1.5:1

(ii) Severe nonattainment areas............1.3:1

(iii) Serious nonattainment areas..........1.2:1

(iv) Moderate nonattainment areas.........1.15:1

(v) All other areas........................1.1:1

(2) The time period for completing the emissions reductions must not
exceed twice the period of the emissions.

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

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

(ii) Increase the frequency or severity of any 

existing violation of any air quality standard; or

(iii) Delay the timely attainment of any standard or any interim
emissions reductions or other milestones in any area.

(c) The approval by the state or tribe of an offset or mitigation
measure with emissions reductions in another year does not relieve the
state or tribe of any obligation to meet any SIP or Clean Air Act
milestone or deadline.  The approval of an alternate schedule for
mitigation measures is at the discretion of the state or tribe, and they
are not required to approve an alternate schedule.  

19. Subpart B is amended by adding §93.164 to read as follows:

§93.164 Inter-precursor mitigation measures and offsets.

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

20. Subpart B is amended by adding §93.165 to read as follows:

§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 or tribal agency responsible for the
SIP or TIP in that area, create an early emissions reductions credit
program. The federal agency can create the emission reduction credits in
accordance with the requirements in paragraph (b) of this section and
can use them in accordance with paragraph (c) of this section.

(b) Creation of emission reduction credits. 

(1) Emissions reductions must be quantifiable through the use of
standard emission factors or measurement techniques. If non-standard
factors or techniques to quantify the emissions reductions are used, the
federal agency must receive approval from the state or tribal agency
responsible for the implementation of the SIP or TIP 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 in the General Conformity
evaluation.

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

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

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

(5) The emissions reductions must be permanent or the timeframe for the
reductions must be specified.

(6) The federal agency must document the emissions reductions and
provide a copy of the document to the state or tribal air quality agency
and the EPA regional office for review. The documentation must include a
detailed description of the emission reduction strategy and a discussion
of how it meets the requirements of paragraphs (b)(1) through (5) of
this section.

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

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

(2) If the technique used to create the emission reduction is not
implemented at the same facility as the federal action or could not have
occurred in conjunction with the federal action, then the credits cannot
be used to reduce the total direct and indirect emissions used to
determine the applicability of the regulation as required in §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. 

(5) Federal agencies must notify the state or tribal air quality agency
responsible for the implementation of the SIP or TIP and EPA Regional
Office when the emission reduction credits are being used.

 Wayson, Roger, and Fleming, Gregg, ``Consideration of Air Quality
Impacts by Airplane Operations at or Above 3000 feet AGL,'' Volpe
National Transportations Systems Center and FAA Office of Environment &
Energy, FAA-AEE-00-01-DTS-34, September 2000.   HYPERLINK
"http://www.faa.gov/regulations_policies/policy_guidance/envir_policy/" 
http://www.faa.gov/regulations_policies/policy_guidance/envir_policy/ 

 While sulfur dioxide must be addressed in general conformity
determinations for PM2.5 , sulfur dioxide is not required to be
addressed in transportation conformity determinations before a SIP is
submitted, unless either the state air agency or EPA regional office
makes a finding that on-road emissions of sulfur dioxide are significant
contributors to the area's PM2.5 problem.  Sulfur dioxide would be
addressed in transportation conformity after a PM2.5 SIP is submitted if
the area's SIP contains an adequate or approved sulfur dioxide motor
vehicle emissions budget.  EPA based its decision regarding treatment of
sulfur dioxide in transportation conformity on the de minimis amount of
on-road emissions of sulfur dioxide now and in the future, and on the
implementation of low sulfur gasoline beginning in 2004 and low sulfur
diesel fuel beginning in 2006. (70 FR 24283).

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