Proposed Rule: Revisions To The General Conformity Regulations

Tuesday,
January 8, 2008
Part II
Environmental
Protection Agency
40 CFR Parts 51 and 93
Revisions to the General Conformity
Regulations; Proposed Rule
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1402 Federal Register / Vol. 73, No. 5 / Tuesday, January 8, 2008 / Proposed Rules
ENVIRONMENTAL PROTECTION the hearing would be published in a special characters, any form of
AGENCY subsequent Federal Register notice. encryption, and be free of any defects or
ADDRESSES: Submit comments, viruses. For additional information
40 CFR Parts 51 and 93 identified by Docket ID No. EPA–HQ– about EPA’s public docket visit the EPA
[EPA–HQ–OAR–2004–0491; FRL–8511–6] OAR–2004–0491, by one of the Docket Center homepage at http://
following methods: www.epa.gov/epahome/dockets.htm.
RIN 2060–AH93 For additional instructions go to section
• www.regulations.gov. Follow the
on-line instructions for submitting I.B. of the SUPPLEMENTARY INFORMATION
Revisions to the General Conformity section of this docket.
Regulations comments.
• E-Mail: a-and-r-docket@epa.gov. Docket: All documents in the docket
AGENCY: Environmental Protection • Fax: (202) 566–9744. are listed in the EDOCKET index at
Agency (EPA). • Mail: Air and Radiation Docket and http://www.regulations.gov index.
ACTION: Proposed rule. Information Center, Environmental Although listed in the index, some
Protection Agency, Docket ID No. EPA– information is not publicly available,
SUMMARY: The EPA is proposing to HQ–OAR–2004–0491, Mail Code: i.e., CBI or other information whose
revise its regulations relating to the 6102T, 1200 Pennsylvania Avenue, disclosure is restricted by statute.
Clean Air Act (CAA) requirement that NW., Washington, DC 20460. Please Certain other material, such as
Federal actions conform to the include duplicate copies, if possible. copyrighted material, is not placed on
appropriate State, Tribal or Federal • Hand Delivery: General Conformity the Internet and will be publicly
implementation plan for attaining clean Revisions, Docket ID No. EPA–HQ– available only in hard copy form.
air (‘‘general conformity’’). EPA has only OAR–2004–0491, Environmental Publicly available docket materials are
revised the General Conformity Protection Agency Docket Center, EPA available either electronically in http://
Regulations once since they were West, Room 3334, 1301 Constitution www.regulations.gov or in hard copy at
promulgated in 1993 to include de Avenue, NW., Washington, DC. Please the Docket, EPA/DC, EPA West, Room
minimis emission levels for fine include duplicate copies, if possible. 3334, 1301 Constitution Ave., NW.,
particulate matter and its precursors Such deliveries are only accepted Washington, DC. The Public Reading
(July 17, 2006). Over this period, EPA during the Docket’s normal hours of Room is open from 8:30 a.m. to 4:30
and other Federal agencies have gained operation, and special arrangements p.m., Monday through Friday, excluding
experience with the implementation of should be made for deliveries of boxed legal holidays. The telephone number
the existing regulations and have information. for the Public Reading Room is (202)
identified several issues with their Instructions: Direct comments to 566–1744, and the telephone number for
implementation. In addition, in 2004 Docket ID No. EPA–HQ–OAR–2004– the Air Docket is (202) 566–1742.
EPA issued regulations to implement 0491. The EPA’s policy is that all Public Hearing. If a public hearing is
the revised ozone standard and in 2007 comments received will be included in held at 9 a.m. in Washington, DC, or at
issued regulations to implement the the public docket without change and an alternate site nearby. Details
new fine particulate matter standard. may be made available online at regarding the hearing (time, date, and
These regulations could affect the http://www.regulations.gov, including location) will be posted on EPA’s Web
timing and process for general any personal information provided, site at http://www.epa.gov/oar/
conformity determinations. State and unless the comment includes genconform_not later than 15 days prior
other air quality agencies are in the information claimed to be Confidential to the hearing date. People interested in
process of developing revised plans to Business Information (CBI) or other presenting oral testimony or inquiring
attain the new standards and the information whose disclosure is as to whether a hearing is to be held
proposed revisions to the General restricted by statute. Do not submit should contact Ms. Pam Long, Air
Conformity Regulations will be helpful information that you consider to be CBI Quality Planning Division, Office of Air
to the State, Tribe, and local agencies as or otherwise protected through http:// Quality Planning and Standards (C504–
well as the Federal agencies in www.regulations.gov or e-mail. The 03), U.S. Environmental Protection
developing and commenting on the http://www.regulations.gov Web site is Agency, Research Triangle Park, NC
proposed SIP revisions. This proposed ‘‘anonymous access’’ systems, which 27711, telephone (919) 541–0641, fax
rule revision provides for a streamline means EPA will not know your identity number (919) 541–5509, e-mail address
process for Federal agencies and States or contact information unless you long.pam@epa.gov, at least 2 days in
and Tribes to ensure Federal activities provide it in the body of your comment. advance of the public hearing (see
are incorporated in these State If you send an e-mail comment directly DATES). People interested in attending
implementation plans (SIPs). Where that to EPA without going through http:// the public hearing must also call Ms.
is not possible it provides an efficient www.regulations.gov, your e-mail Long to verify the time, date, and
and effective process for Federal address will be automatically captured location of the hearing. The public
agencies to ensure their actions do not and included as part of the comment hearing will provide interested parties
cause or contribute to a violation of the that is placed in the public docket and the opportunity to present data, views,
national ambient air quality standards made available on the Internet. If you or arguments concerning the proposed
(NAAQS) or interfere with the purpose submit an electronic comment, EPA action.
of a State, Tribal or Federal recommends that you include your
implementation plan to attain or name and other contact information in FOR FURTHER INFORMATION CONTACT: Mr.
maintain the NAAQS. the body of your comment and with any Thomas Coda, Office of Air Quality
DATES: Comments. Comments must be disk or CD-ROM you submit. If EPA Planning and Standards, U.S.
received on or before March 10, 2008. cannot read your comment due to Environmental Protection Agency, Mail
Public Hearing. If anyone contacts technical difficulties and cannot contact Code C539–02, Research Triangle Park,
EPA requesting a public hearing by you for clarification, EPA may not be NC 27711, phone number (919) 541–
January 23, 2008, we will hold a public able to consider your comment. 3037 or by e-mail at coda.tom@epa.gov.
hearing. Additional information about Electronic files should avoid the use of SUPPLEMENTARY INFORMATION:
Federal Register / Vol. 73, No. 5 / Tuesday, January 8, 2008 / Proposed Rules 1403
I. General Information notice will be posted at http:// Q. 40 CFR 93.165—Early Emission

www.epa.gov/oar/genconform/regs.htm. Reduction Credit Program
A. Does This Action Apply to Me? VI. Statutory and Executive Order Reviews
D. How Is This Preamble Organized? A. Executive Order 12866: Regulatory
Entities affected by this rule include
The information presented in this Planning and Review
Federal agencies and public and private B. Paperwork Reduction Act
entities that receive approvals or preamble is organized as follows: C. Regulatory Flexibility Act
funding from Federal agencies such as I. General Information D. Unfunded Mandates Reform Act
airports and ports. A. Does This Action Apply To Me? E. Executive Order 13132: Federalism
B. What Should I Consider as I Prepare My F. Executive Order 13175: Consultation
B. What Should I Consider as I Prepare Comments for EPA? and Coordination With Indian Tribal
My Comments for EPA? C. Where Can I Obtain Additional Governments
Information? G. Executive Order 13045: Protection of
1. Submitting CBI. Do not submit this D. How Is This Preamble Organized? Children From Environmental Health
information to EPA through http:// II. Background and Safety Risks
www.regulations.gov or e-mail. Clearly A. What Is General Conformity and How H. Executive Order 13211: Actions That
mark the part or all of the information Does It Affect Air Quality? Significantly Affect Energy Supply,
that you claim to be CBI. For CBI B. Why Is EPA Proposing Revisions to Distribution, or Use
These Regulations at This Time? I. National Technology Transfer
information in a disk or CD–ROM that
III. How Are the Existing Regulations Advancement Act
you mail to EPA, mark the outside of the Implemented?
disk or CD–ROM as CBI and then J. Executive Order 12898: Federal Actions
A. Applicability Analysis To Address Environmental Justice in
identify electronically within the disk or B. Conformity Determination Minority Populations and Low-Income
CD–ROM the specific information C. Review Process Populations
claimed as CBI; a copy of the comment IV. Summary of the Proposed Revisions to VII. Statutory Authority
that does not contain the information the General Conformity Regulations
claimed as CBI must be submitted for A. Categories of Proposed Revisions to the II. Background
inclusion in the public docket. General Conformity Regulations
B. What Innovative and Flexible A. What Is General Conformity and How
Information so marked will not be Approaches Are Being Proposed? Does It Affect Air Quality?
disclosed except in accordance with C. What Streamlining and Burden The intent of the General Conformity
procedures set forth in 40 Code of Reduction Measures Are Being requirement is to prevent the air quality
Federal Regulations (CFR) part 2. Proposed?
impacts of Federal actions from causing
2. Tips for Preparing Your Comments. D. What Revisions Provide Tools and
Guidance for Transitioning to New or or contributing to a violation of the
When submitting comments, remember national ambient air quality standards
to: Revised NAAQS?
E. What Revisions Are Being Proposed at (NAAQS) or interfering with the
• Identify the rulemaking by docket the Request of Other Agencies? purpose of a State implementation plan
number and other identifying F. What Are Some of the Clarifications to (SIP), Tribal implementation plan (TIP)
information (subject heading, Federal the Existing Regulations That Are Being or Federal implementation plan (FIP).
Register date and page number). Proposed? In the CAA, Congress recognized that
• Follow directions. The agency may V. Detailed Discussion of the Proposed actions taken by Federal agencies could
ask you to respond to specific questions Revisions
affect State, Tribe, and local agencies’
or organize comments by referencing a A. 40 CFR Part 51, Subpart W—
Determining Conformity of General ability to attain and maintain the
CFR part or section number. NAAQS. Congress added section 176(c)
Federal Actions to State or Federal
• Explain why you agree or disagree; Implementation Plans (42 U.S.C. 7506) to the CAA to ensure
suggest alternatives and substitute B. 40 CFR 93.150—Prohibition Federal agencies proposed actions
language for your requested changes. C. 40 CFR 93.151—State Implementation conform to the applicable SIP, TIP or
• Describe any assumptions and Plan (SIP) Revision FIP for attaining and maintaining the
provide any technical information and/ D. 40 CFR 93.152—Definitions NAAQS. That section requires Federal
or data that you used. If you estimate E. 40 CFR 93.153—Applicability Analysis
entities to find that the emissions from
potential costs or burdens, explain how F. 40 CFR 93.154—Federal Agencies
Responsibility for a Conformity the Federal action will conform with the
you arrived at your estimate in Determination purposes of the SIP, TIP or FIP or not
sufficient detail to allow for it to be G. 40 CFR 93.155—Reporting otherwise interfere with the State’s or
reproduced. Requirements Tribe’s ability to attain and maintain the
• Provide specific examples to H. 40 CFR 93.156—Public Participation NAAQS.
illustrate your concerns, and suggest I. 40 CFR 93.157—Re-evaluation of The CAA Amendments of 1990
alternatives. Conformity clarified and strengthened the
• Explain your views as clearly as J. 40 CFR 93.158—Criteria for Determining provisions in section 176(c). Because
Conformity for General Federal Actions
possible, avoiding the use of profanity certain provisions of section 176(c)
K. 40 CFR 93.159—Procedures for
or personal threats. Conformity Determinations for General apply only to highway and mass transit
• Make sure to submit your Federal Actions funding and approvals actions, EPA
comments by the comment period L. 401 CFR 93.160—Mitigation of Air published two set of regulations to
deadline identified. Quality Impacts implement section 176(c). The
M. 40 CFR 93.161—Conformity Transportation Conformity Regulations,
C. Where Can I Get a Copy of This Evaluations for Installations With first published on November 24, 1993
Document and Other Related Facility-Wide Emission Budget (58 FR 62188) and recently revised on
Information? N. 40 CFR 93.162—Emissions Beyond the July 1, 2004 at 69 FR 40004, May 6,
Time Period Covered by the Applicable
In addition to being available in the SIP or TIP
2005 at 70 FR 24280 and March 10,
docket, an electronic copy of this O. 40 CFR 93.163—Timing of Offsets and 2006 at 71 FR 12468, address Federal
proposal will also be available on the Mitigation Measures actions related to highway and mass
worldwide web. Following signature by P. 40 CFR 93.164—Inter-Precursor Offsets transit funding and approval actions.
the EPA Administrator, a copy of this and Mitigation Measures The General Conformity Regulations,
published on November 30, 1993 (58 FR programs to areas designated as 3. Obtaining a written commitment
63214), cover all other Federal actions. nonattainment under section 107 of the from the State to revise the SIP to
CAA and maintenance areas under include the emissions from the action,
B. Why Is EPA Proposing Revisions to
section 175A of the CAA only. 4. Obtaining a statement from the
These Regulations at This Time?
Therefore, only actions in designated metropolitan planning organization
The EPA recently revised the General nonattainment and maintenance areas (MPO) for the area documenting that
Conformity Regulations to include de are subject to the regulation. In addition, any on-road motor vehicle emissions are
minimis emission levels for particulate the regulations recognize that the vast included in the current regional
matter with an aerodynamic diameter majority of Federal actions do not result emission analysis for the area’s
equal to or less than 2.5 microns (PM2.5) in significant increase in emissions and, transportation plan or transportation
and its precursors (July 17, 2006 at 71 therefore, include a number of improvement program,
FR 40420). Otherwise, EPA has not exemptions such as de minimis 5. Fully offset the total direct and
revised the General Conformity emission levels based on the type and indirect emissions by reducing
Regulations since they were severity of the nonattainment problem. emissions of the same pollutant or
promulgated in 1993. Since that time, In the applicability analysis phase, precursor in the same nonattainment or
EPA and other Federal agencies have the Federal agency determines: maintenance area, or
gained experience with the 1. Whether the action will occur in a 6. Conducting air quality modeling
implementation of the existing nonattainment or maintenance area; that demonstrates that the emissions
regulations and have identified several 2. Whether one of the specific will not cause or contribute to new
issues with their implementation. exemptions apply to the action; violations of the standards, or increase
Therefore, EPA initiated a process to 3. Whether the Federal agency has the frequency or severity of any existing
review, revise and streamline the included the action on its list of violations of the standards. Air quality
regulations. In addition, EPA has ‘‘presumed to conform’’ actions; or modeling cannot be used to demonstrate
recently issued regulations to 4. Whether the total direct and conformity for emissions of ozone
implement the revised ozone standard indirect emissions are below or above precursors or nitrogen dioxide (NO2). As
(69 FR 23951, April 30, 2004 and 70 FR the de minimis levels. stated in EPA’s proposal of the current
71612, November 29, 2005) and Under the current regulations, the regulations (58 FR 13845), due to the
regulations to implement the new applicability analysis phase requires complex interaction of the ozone
particulate matter standard (72 FR Federal agencies to determine if the precursors, the regional nature of the
20586, April 25, 2007). These action is considered ‘‘regionally ozone and NO2 problems, and
regulations could affect the timing and significant,’’ i.e., equal to or greater than limitations of current air quality models,
process for general conformity ten percent of the area’s emission it is not generally appropriate to use an
determinations. State and local air inventory for the pollutant. If the action air quality model to determine the
quality agencies are in the process of is regionally significant, Federal impact on ozone or NO2 concentrations
developing revised SIPs to attain the agencies must conduct a conformity from a single emission source or a single
new standards and knowledge of the determination for the action even Federal action.
proposed revisions to the General though the emissions caused by the
Conformity Regulations may be helpful action are below the de minimis levels, C. Review Process
to the State, Tribal, and local agencies the action is presumed to conform or the As public bodies, Federal agencies
as well as the Federal agencies in action is otherwise exempt. must make their conformity
developing and commenting on the B. Conformity Determination determinations through a public
proposed SIP revisions. process. The General Conformity
When the applicability analysis
III. How Are the Existing Regulations Regulations require Federal agencies to
shows that the action must undergo a
Implemented? provide notice of the draft
conformity determination, Federal
determination to the applicable EPA
The existing regulations do not agencies must first show that the action
Regional Office, the State and local air
specifically identify the roles of Indian will meet all SIP control requirements
quality agencies, the local MPO and,
Tribes nor the applicability of the such as reasonably available control
where applicable, the Federal land
regulations to TIPs. measures, and the emissions from the
manager(s). In addition, the regulations
Federal agencies and other parties action will not interfere with the timely
require Federal agencies to provide at
involved in the conformity process have attainment of the standard, the
least a 30-day comment period on the
found that in implementing the existing maintenance of the standard or the
draft determination and make the final
General Conformity Regulations their area’s ability to achieve an interim
determination public. State agencies
process falls in to three phases: (A) emission reduction milestone. Federal
and the public can appeal the final
Applicability analysis, (B) Conformity agencies then must demonstrate
determination in the U.S. Courts system.
determination, and (C) Review process. conformity by meeting one or more of
Failure by a Federal agency to follow
Besides ensuring that the Federal the methods specified in the regulation
the technical and procedural
actions are in conformance with the SIP, for determining conformity:
1. Demonstrating that the total direct requirements can result in an adverse
the regulations encourage consultation court decision.
between the Federal agency and the and indirect emissions are specifically
State or local air pollution control identified and accounted for in the IV. Summary of the Proposed Revisions
agencies before and during the applicable SIP, to the General Conformity Regulations
environmental review process. 2. Obtaining a written statement from

the State or local agency responsible for A. Categories of Proposed Revisions to
A. Applicability Analysis the SIP documenting that the total direct the General Conformity Regulations
The National Highway System and indirect emissions from the action In accordance with the requirements
Designation Act of 1995, (Pub. L. 104– along with all other emissions in the of section 176(c)(4)(C) of the CAA, when
59) added section 176(c)(5) to the CAA area will not exceed the SIP emission EPA promulgated General Conformity
to limit applicability of the conformity budget, Regulations in 1993 it also promulgated
regulations at 40 CFR part 51, subpart W approval. Once approved, minor actions agencies can include in their ‘‘presume
(sections 850–860) which required under the control of the facility where to conform’’ lists and EPA is also
States to adopt and submit SIPs for an applicability analysis results in a proposing to permit States or Tribes to
General Conformity. In August 2005, determination that the emissions are establish in their General Conformity
Congress passed the Safe, Accountable, below a de minimis threshold could SIPs or TIPs ‘‘presume to conform’’ lists
Flexible, Efficient Transportation Equity proceed with no conformity for actions within their State or Tribal
Act: A Legacy for Users (SAFETEA–LU) determination. Actions at the facility area.
which eliminated the requirement for where the emissions from an action 3. The EPA is proposing to exempt the
States to adopt and submit General under the facility’s control equaled or emissions from stationary sources
Conformity SIPs. Therefore, EPA is exceeded an applicable de minimis permitted under the minor source new
proposing to revise its regulations to threshold could demonstrate that the source review (NSR) programs as EPA’s
make the adoption and submittal of the emissions from the proposed action existing General Conformity regulation
General Conformity SIP or TIP optional along with all other emissions at the already provides for exemptions for
for the State or Tribe. facility are within the EPA approved emissions from major NSR sources.
Because 40 CFR part 51, subpart W facility-wide emission budget. By using
(§§ 51.850–51.860) essentially the facility-wide emission test, the D. What Revisions Provide Tools and
duplicates the regulations promulgated action would be presumed to conform Guidance for Transitioning to New or
at 40 CFR part 93, subpart B (§§ 93.150– and a conformity determination would Revised NAAQS?
93.160), EPA is proposing to delete all not be necessary. Alternatively, a 1. The EPA is proposing to revise the
of subpart W except for § 51.851. In the facility with an approved facility-wide language in the regulation concerning
proposed revision to § 51.851, EPA emission budget could demonstrate conformity evaluations for existing
would require that if a State or Tribe conformity by the conventional methods action during a transition to new
submits a General Conformity SIP or TIP afforded in the General Conformity nonattainment designations or to the
that it be consistent with the regulations. revised regulations.
requirements of 40 CFR part 93, subpart 2. The EPA is proposing a new section 2. The EPA is proposing requirements
B. In addition, EPA is proposing to add (40 CFR 93.165) to explicitly for the implementation of the grace
a provision to 40 CFR 51.851 to allow incorporate the use of early emission period for newly designated
the States and Tribes more flexibility to reduction credits into the regulations. nonattainment areas.
streamline the conformity process The proposal reflects the provisions of 3. The EPA is proposing alternate
conducted under their SIP or TIP. the Airport Early Emission Reduction methods to demonstrate conformity for
In 40 CFR part 93, subpart B, EPA is (AERC) guidance developed in time periods beyond those covered by
proposing to make only specific consultation with the Federal Aviation the SIP or TIP.
revisions to the regulations which (1) Administration (FAA) and provides a 4. The EPA is proposing to allow
clarify the process, (2) delete outdated similar framework for other Federal States or Tribes to include an
or unnecessary requirements, (3) agencies. enforceable commitment in the SIP or
authorize innovative and flexible 3. The EPA is proposing a new section TIP to address future emissions from a
approaches, (4) streamline the process (40 CFR 93.164) to allow, with certain Federal action.
and reduce the paperwork burden, (5) limitations, the emission of one E. What Revisions Are Being Proposed
provide transition tools for precursor of a criteria pollutant to be at the Request of Other Agencies?
implementing new standards, (6) mitigated or offset by the reduction in
incorporate revisions requested by other the emissions of another precursor of 1. Based on EPA’s Interim Air Quality
agencies, and (7) provide a better that pollutant. Policy on Wildland and Prescribed
explanation of regulations and policies. 4. The EPA is proposing a new section Fires, which was developed in
Several of the proposed revisions (40 CFR 93.163) to allow alternate consultation with Federal land
encourage both the Federal agencies and schedules for mitigating emissions managers, EPA is taking comment on
the States or Tribes to take actions in increases. The mitigation timing two possible approaches: (1) To include
advance of the project environmental approach could allow some flexibility a presumption of conformity for
review. Such advance action should for Federal agencies and States or Tribes prescribed fire use that are conducted in
speed the review process for the to negotiate a program for some compliance with certified smoke
individual projects and reduce the emissions mitigation to occur in future management plans (SMPs), and (2) for
delays for the project without impairing years. States or Tribes could consider prescribed fires conducted using State
the environmental review. The EPA this approach to accommodate short- approved basic smoke management
invites comment on this approach. term increases in emissions if there is a practices.
substantial long-term reduction in 2. The EPA is proposing to allow
B. What Innovative and Flexible Federal agencies to obtain emission
Approaches Are Being Proposed? emissions.
offsets for general conformity purposes
1. The EPA is proposing to add a new C. What Streamlining and Burden from another nearby nonattainment or
section (40 CFR 93.161) to allow for a Reduction Measures Are Being maintenance area of equal or higher
facility-wide emission budget approach. Proposed? nonattainment classification provided
Under this voluntary arrangement, 1. The EPA is proposing to delete the the emissions from that area contribute
Federal agencies, in anticipation of provision in the existing regulation to violation of the NAAQS in the area
future major actions, could negotiate a which required Federal agencies to where the Federal action is located or in
facility-wide emission budget with the conduct a conformity determination for the case of maintenance areas, the
appropriate State, Tribal, or local air regionally significant actions even emissions from the nearby area
quality agency responsible for the SIP or though the total direct and indirect contributed in the past to the violations
TIP. The State, Tribal, or local agency emissions from the action were below in the area where the Federal action is
would incorporate the facility-wide the de minimis emission levels. occurring.
emission budget into the applicable SIP 2. The EPA is proposing additional 3. At the request of several Federal
or TIP and submit it to EPA for categories of actions that Federal agencies, EPA is proposing to clarify the
language in the regulation that states and adopting approach, departure and implementation plans. Therefore, EPA
that nothing in these regulations enroute procedures for aircraft is proposing to revise 40 CFR 51.851 to
requires the release of materials and operations above 3,000 feet AGL are make the adoption and submittal of the
other information where disclosure is clearly de minimis. Therefore, the list of General Conformity SIP optional for the
restricted by law. Also, EPA is exemptions under 40 CFR State and eligible federally-recognized
proposing to include a similar 93.153(c)(2)(xxii) has be updated in this Tribal governments.
clarification for CBI. proposal to reflect this conclusion. In promulgating the General
4. Several Federal agencies and other Conformity Regulations in 1993, EPA
parties involved in the process F. What Are Some of the Clarifications
published two sets of regulations: 40
suggested that EPA should consider to the Existing Regulations That Are
CFR Part 51, subpart W (§§ 93.850
exempting construction activity Being Proposed?
through 93.869) directed States to adopt
emissions from the conformity 1. The EPA is proposing to clarify that and submit General Conformity SIPs to
regulations requirements. Although the if the action would result in emissions EPA for approval and 40 CFR Part 93
existing General Conformity Regulations originating in more than one subpart B (§§ 93.150 through 93.160)
do not specifically mention construction nonattainment or maintenance area, the provided the requirements for Federal
emissions, they implicitly require emissions in each area would be treated agencies to follow in conducting their
Federal agencies to include emissions as if they result from a separate action. conformity evaluations before EPA
from construction activities in the 2. The EPA is proposing to establish approved the General Conformity SIP
conformity evaluation. procedures to follow in extending the 6- for the area. Section 40 CFR 51.851
The EPA understands the concerns of month conformity exemption for actions directed States to adopt SIPs meeting
the other Federal agencies and in the taken in response to an emergency. the requirements of 40 CFR part 51,
discussion about the revision to the 3. The EPA is proposing to revise the subpart W. The other sections in subpart
definition of ‘‘caused by,’’ has identified procedures that can be used to W repeat the requirements found in 40
a number of ways that Federal agencies demonstrate conformity with the CFR part 93, subpart B. The EPA is
can work with the State, Tribe, and local applicable SIP. proposing to delete 40 CFR 51.850, and
agencies to ease the burden of reviewing 4. The EPA is proposing to revise the 51.852 through 860 since those sections
construction emissions. In addition, review process to require Federal merely repeat the language in 40 CFR
EPA is seeking comment on the agencies to notify Tribal governments in 93.150 and 93.152 through 160 and
possibility of exempting short-term the nonattainment or maintenance area. include a requirement in 40 CFR
construction projects from the General 5. The EPA is proposing to clarify the 51.851(a) that the General Conformity
Conformity Regulations. One option definition of several terms used in the SIP or TIP must meet the requirements
would be to define short-term emissions regulations. in 40 CFR part 93, subpart B.
as lasting no more than 2 years. Another 6. The EPA is proposing to include In addition, EPA is proposing several
option would be to define short-term specific language to identify the role of revisions to § 51.851.
emissions consistent with how they are Indian Tribes and TIPs. 1. The EPA is proposing to divide
defined for Transportation Conformity.
VI. Detailed Discussion of the Proposed paragraph (b) of 40 CFR 51.851 into four
Currently under the Transportation
Revisions paragraphs—(b), (c), (d), and (e):
Conformity regulations, construction
a. Paragraph (b) stating that until EPA
emissions are not required to be A. 40 CFR Part 51, Subpart W— approves the SIP revision, Federal
included for construction that lasts no Determining Conformity of General agencies must meet the requirements of
longer than 5 years at individual sites. Federal Actions to State or Federal
5. The FAA requested clarification of 40 CFR part 93, subpart B.
Implementation Plans b. Paragraph (c) stating that after EPA
language in the General Conformity
preamble (58 FR 63229) that stated ‘‘the Section 176(c)(4) of the CAA specifies approves a SIP or TIP meeting the
EPA believes that the following actions that EPA conformity regulations include requirement of 40 CFR part 93, subpart
are illustrative of de minimis actions: a requirement for a State to adopt and B, or portion thereof, the Federal
* * * Air traffic control activities and submit to EPA for approval, a SIP to agencies must meet the requirements of
adopting approach, departure and implement the provisions of section the SIP or TIP and portions of 40 CFR
enroute procedures for air operations.’’ 176(c). Section 6011 of SAFETEA-LU part 93, subpart B if not included in the
The FAA conducted a study of ground revised the conformity requirements in approved SIP or TIP. In addition, the
level concentrations caused by elevated section 176(c) of the CAA. Although proposed paragraph (c) states that any
aircraft emissions released above ground most of the revisions affected the conformity requirements in an existing
level (AGL) using EPA-approved models Transportation Conformity implementation plan remain
and conservative assumptions.1 The requirements, section 6011(f) and (g) enforceable until the state submits a
study concluded that aircraft operations also revised the General Conformity revision to its applicable
at or above 3,000 feet AGL have a very requirements. Specifically, section implementation plan to specifically
small effect on ground level 6011(f) revised section 176(c)(4)(A) of remove the conformity requirements
concentrations and could not directly the CAA by including a requirement and that revision is approved by EPA.
result in a violation of the NAAQS in a that the regulations must be periodically Since there is no longer a requirement
local area. Consequently, this study updated and by deleting the for State implementation plans to
validates the EPA’s initial preamble requirement for the States to adopt and include conformity requirements and
language for air traffic control activities submit a General Conformity SIP. the applicable statutes do not grant EPA
Section 6011(g) requires EPA to revise additional authorities to condition

1 Wayson, Roger, and Fleming, Gregg, its conformity regulations by August approval of a State’s request to remove
‘‘Consideration of Air Quality Impacts by Airplane 2007 to meet the revised requirements. the general conformity requirements
Operations at or Above 3000 feet AGL,’’ Volpe The EPA does not interpret this from an implementation plan, it is
National Transportations Systems Center and FAA
Office of Environment & Energy, FAA–AEE–00–01–
provision as prohibiting States or Tribes EPA’s intent, once requested by a State,
DTS–34, September 2000. http://www.faa.gov/ from voluntarily adopting and to expeditiously review and approve
regulations_policies/policy_guidance/envir_policy/. submitting General Conformity implementation plan revisions that seek
to remove general conformity that section and reserves that paragraph. emissions of 55 tons/year, but 30 tons/
requirements. Second, EPA is proposing to add a new year are in one area and 25 tons/year the
c. Paragraph (d) contains the paragraph (e) to the section to state that other area, the action would not require
requirement that the SIP or TIP can be if an action occurs in more that one a conformity determination since it
no less stringent than 40 CFR part 93, nonattainment area that each area must would be considered de minimis in both
subpart B. be evaluated separately. areas. If the action would result in total
d. Paragraph (e) contains the In paragraph (c) of the existing direct and indirect emissions of 85 tons/
requirement that the SIP or TIP can be regulations, EPA identified categories of year, but 60 tons/year are in one area
no more stringent that the requirement actions that were not subject to the and 25 tons/year the other area, the
in 40 CFR part 93, subpart B unless the regulations based on environmental action would require a conformity
provisions apply to non-Federal as well review for the action that was either determination in the areas with
as Federal entities. completed or underway at the time the emission of 60 tons/year but the area
2. The EPA is proposing to add a new regulations were promulgated. The with 25 tons/year would not need a
provision in § 51.851, which allows paragraph was based on the conformity determination since that
States or Tribes to include in their SIP environmental reviews (either the portion of the action would be
or TIP a list of actions that are presumed conformity determination or the considered de minimis in that areas.
to conform. National Environmental Policy Act EPA is proposing emissions from
Since 40 CFR 51.850, 852 through 860 (NEPA) analysis) being completed in actions be treated separately for each
merely repeats the language in 40 CFR early 1994. Therefore, paragraph (c) is nonattainment and maintenance area for
93.150, 93.152 through 93.160, deleting outdated and is not necessary at this the following reasons:
§§ 51.850, 852 though 860 and requiring time. 1. Federal agencies demonstrate
the SIP or TIP to meet the requirements In the new paragraph (e) in § 93.150, conformity to a SIP, TIP or FIP that are
in part 93 subpart B will not change the EPA is specifically proposing that developed on an area-specific basis and
SIP or TIP requirements. However, conformity determinations must be SIPs requirements may vary from one
deleting the sections will reduce the made for each nonattainment or
area to another.
confusion on the requirements in the maintenance area. The emissions from
regulations by removing the duplicative most Federal actions or projects occur 2. The General Conformity
language. In addition, EPA can revise within one nonattainment or Regulations exemptions are also area-
the general conformity requirements by maintenance area, however, some specific. For example, the de minimis
revising only one set of regulations. actions or projects could extend across levels are based upon the type and
Although States or Tribes would have to area boundaries, causing emissions in classification of the nonattainment or
revise any SIPs or TIPs which are in more than one area. A facility (for maintenance area.
place when EPA revises part 93 subpart example, a national park, military 3. Section 176(c)(5) of the CAA limits
B regulations, this would not be an installation or an airport) could be the applicability of the conformity
additional burden since they would located in multiple counties or even in regulations to actions in nonattainment
have to revise their SIP or TIP if EPA multiple States. Emissions from an and maintenance areas. Therefore,
revised the part 51, subpart W action at such facilities could extend actions, which affect broad regions
regulations. across the nonattainment or encompassing several nonattainment,
By dividing paragraph (b) into four maintenance area boundaries. Some maintenance or attainment areas, must
smaller paragraphs, EPA is attempting Federal actions, such as rulemaking or be evaluated based only on the portions
to simplify the language to make the rail merger approvals, could result in of the emissions in the nonattainment
requirements more understandable. The emissions in non-contiguous areas, or and maintenance areas.
EPA did not change the requirements in even nationwide, affecting multiple C. 40 CFR 93.151—State
paragraph (b) of the existing regulations. nonattainment or maintenance areas. Implementation Plan (SIP) Revision
The proposal to allow the States or The existing regulations do not specify
Tribes the flexibility to adopt as part of how actions or projects affecting The main purpose of § 93.151 is to
the General Conformity SIP or TIP a list multiple areas should be addressed. specify that the regulations in part 93
of actions that are presumed to conform Therefore, EPA is proposing that an subpart B apply to Federal actions
resulted from the desire of some States action’s emissions in each area would unless the State or Tribe adopts and
to reduce the need to spend resources be treated as if they result from separate EPA approves a General Conformity SIP
on reviewing actions which are known actions. This would result in the need or TIP for the area. The EPA is not
to conform. Although States and Tribes for two or more separate applicability proposing to change the purpose of the
are not obligated to adopt a ‘‘presume to analysis and conformity determinations section, but is proposing to revise the
conform’’ list as part of their General where general conformity is applicable. section to clarify its wording. The
Conformity SIP, if they do adopt a list The number of conformity existing regulations included statements
they must include a list in their SIP or determinations would correlate to the about the stringency of the SIP
TIP. number of nonattainment or compared to the requirements in
maintenance areas where the action subpart B of part 93. The EPA is
B. 40 CFR 93.150—Prohibition results in direct or indirect emissions proposing to delete those statements
Section 93.150 establishes the general originating in those areas. The analysis because they duplicate statements in 40
prohibition against Federal agencies should provide a comprehensive CFR 51.851 which specifies the
taking actions that do not conform with emissions inventory that includes a requirements for the SIP and TIP.
the SIP and requirements for the Federal clear and separate accounting or
D. 40 CFR 93.152—Definitions
agencies to make the conformity division of emissions by nonattainment
determinations following the or maintenance area. For example, an Section 93.152 provides the definition
procedures of subpart B of part 93. The action may occur in two nonattainment of terms used in the regulations. The
EPA is proposing to make two revisions areas, each with a 50 ton/year de EPA is proposing to revise twelve of the
to § 93.150. First, EPA is proposing to minimis threshold. If the action would definitions, add eleven new terms and
delete the language in paragraph (c) of result in total direct and indirect delete one term as follows:
Applicable implementation plan or construction-related fugitive dust only future actions or projects at the facility,
applicable SIP. The EPA is proposing in PM10 nonattainment and the construction emissions can be
two minor revisions to the definition. maintenance areas where the SIP incorporated into the SIP or TIP.
First, EPA is proposing to correct the identifies those emissions as a For the above reasons, EPA believes
citation for the SIP approval and contributor to the nonattainment that emissions from construction
second, EPA is proposing to clarify the problem. In such a case, the regional activities could in some circumstances
definition by adding a parenthetical PM10 emissions analysis must consider interfere with the SIP or TIP and is
phrase to clarify that the term includes the construction-related fugitive PM10 therefore not proposing to explicitly
an approved Tribal implementation emissions and account for them in the exclude all construction emissions from
plan (TIP). The requirements for eligible determination. The Transportation the definition of emissions ‘‘caused by’’
Tribes are found in 40 CFR 49.6. Conformity Regulations (40 CFR the Federal action. However, this
Applicability analysis. The EPA is 93.122(f)) do not require the proposal provides several options to
proposing to add this new term to consideration of such regional PM2.5 allow Federal agencies and the States or
describe the process of determining if emissions unless the area’s SIP Tribes to list construction emissions as
the Federal agency must conduct a identifies construction-related fugitive ‘‘presume to conform’’ or to exempt the
conformity determination for its action. PM2.5 as a significant contributor to the emissions.
Areawide air quality modeling area’s PM2.5 problem. In addition, the 1. Once included in a SIP-approved
analysis. The EPA is proposing to Transportation Conformity Regulations facility-wide emission budget, the
clarify this definition by making a minor (40 CFR 93.123(c)(5)) do not require construction emissions could be
wording change and by including construction-related carbon monoxide identified as exempt from the general
photochemical grid model in the (CO), PM10, and PM2.5 emissions to be conformity requirements.
definition. Also, EPA is proposing to considered in project-level hot-spot 2. Under the new provisions for
add an example of the type of models analyses (i.e., estimations of future developing a list of ‘‘presume to
that could be used for the areawide air localized CO, PM10 , and PM2.5 conform’’ actions, Federal agencies,
quality modeling analysis. concentrations) unless those emissions States, or Tribes can demonstrate that
Caused by. The basic test established will last for more than 5 years at an
by the existing definition of ‘‘caused by’’ emissions from certain types of
individual site. In the NSR program, construction activities at a facility
is that the emissions would not have only operational emissions from the
occurred in the absence of the Federal would conform to the SIP.
source are required to be evaluated for 3. Some States issue permits for
action (Title I, Section 176). Since the the permit and construction emissions
general conformity regulations were construction emissions. These permits
are not generally included. are essentially minor source NSR
promulgated in 1993, EPA has Since the General Conformity
interpreted the regulations to require a permits and emissions covered by them
Regulations cover a wide variety of
Federal agency to include construction would be exempt.
actions and projects, the regulations
emissions in its conformity analysis. Also, EPA is proposing to clarify that
were drafted to be general enough to
The EPA believes that emissions from cover the differing circumstances. While conformity is based on annual
construction activities initiated by, a majority of Federal actions and emissions. Therefore, Federal agencies
approved or funded by a Federal agency projects may not involve long-term should estimate construction emissions
meets this test and should be included construction activities, some do. For on an annual basis and would only have
in the conformity evaluation. example, increasing the depth of the to demonstrate conformity of
Some Federal agencies have suggested navigable channel in New York Harbor construction emissions during the years
that since construction emissions are is expected to take 9 to 10 years to when the emissions occurred.
generally excluded from consideration complete. In addition, the States and Currently under the Transportation
under the transportation conformity and local agencies can reasonably anticipate Conformity regulations, project level
EPA’s NSR programs, they should not and plan for construction emissions construction emissions are not required
be included in the general conformity from highway and mass transit activities to be included for construction that lasts
evaluation either. Furthermore, some based upon regional transportation no longer than 5 years at individual
agencies pointed out, the emissions plans and historic activities. However, sites. EPA also recognizes that
from construction activities are not the States, Tribes and local agencies construction activities are only
always explicitly included in some SIPs, may not be aware of other Federal temporary and for some projects occur
so it is difficult to demonstrate activities requiring construction or may for short periods of time. Since these
conformity for the emissions and should not be easily able to estimate the temporary construction activities may
not factor into the agencies’ emissions from the construction last between 1 to 5 years, the EPA
demonstrations of conformity to those activities. Therefore, the SIPs or TIPs solicits comments on whether to exempt
SIPs. Finally, it has been suggested that may not adequately account for the emissions from short-term construction
construction emissions are temporary emissions from those activities. activities as well as the appropriate
and not long-term contributors to the In drafting and adopting a SIP and definition of a short-term project.
NAAQS violations and, therefore, may TIP, States, Tribes and local agencies Confidential business information
not be truly reflective of a completed generally allow for some emissions from (CBI). In §§ 93.155 and 93.156, EPA is
project’s contribution to a construction activities either in a also proposing to specify how CBI used
nonattainment or maintenance area’s construction emission category or as in the conformity determination is to be
emissions budget. part of another category, such as off- handled. To support those revisions,
In EPA’s Transportation Conformity road mobile or area sources. The EPA is also proposing to add a
program (40 CFR 51.390 and part 93), emission estimates for these categories definition of CBI. The definition is
construction emissions are generally not are usually based upon historic activity based upon that used to define CBI
included in the conformity evaluation. levels or on projected future activity under the Freedom of Information Act.
The Transportation Conformity levels. Therefore, if at the time the SIP Conformity determination. The EPA is
Regulations (40 CFR 93.122(e)) do or TIP is being developed, the State, proposing to add a new term to describe
require the consideration of PM10 from Tribe or local agency knows about the the decision that a Federal agency
official makes in determining that the nonattainment and maintenance areas Maintenance area. The EPA is
action will conform with the SIP or TIP. (42 U.S.C. 7506(c)(5)) and which proposing to make a minor wording
Conformity evaluation. The EPA is eliminated any need for EPA to issue change to clarify the definition by citing
proposing to add a new definition to attainment area conformity regulations. the regulations and the section of the
describe the entire conformity process The new definition clarifies that EPA CAA used to identify maintenance
from the applicability analysis through interprets this statutory amendment to areas.
the conformity determination, if mean that any indirect emissions Metropolitan Planning Organization.
necessary. originating in an attainment or The EPA is proposing to revise its
Continuing program responsibility. In unclassifiable area do not need to be regulatory definition to make it more
the existing regulations, EPA defined analyzed for general conformity consistent with the statutory definition
the term ‘‘emissions that a Federal purposes. in SAFETEA-LU, which was signed into
agency has a continuing program ‘‘In addition to addressing emissions law on August 10, 2005.
responsibility for.’’ That term was generated outside of nonattainment Mitigation measure. The existing
awkward and confusing. The EPA is areas, EPA proposes to revise the regulations used the term ‘‘mitigation
proposing to shorten the term to the definition of ‘‘indirect emissions’’ to measure’’ and even had a section
‘‘continuing program responsibility’’ add the condition that emissions must specifying the requirements for a
and to reformat the definition to make be of the type that ‘‘the agency can mitigation measure, however the
it clearer. practically control’’ and for which ‘‘the regulations did not define the term. The
Continuous program to implement. EPA is proposing to define a mitigation
agency has continuing program
This term was used in the existing measure as a method of reducing
responsibility.’’ The addition of this
regulations but was not defined. emissions of the pollutant at the
condition clarifies EPA’s long standing
Therefore, EPA is proposing to add a location of the action. This definition
position that Congress did not intend for
definition for this term. The definition would distinguish a mitigation measure
conformity to apply to ‘‘cases where,
would require the Federal agency to from an offset.
although licensing or approving action
have a program to implement the action. National ambient air quality
That program can include a number of is a required initial step for a
subsequent activity that causes standards. In 1997, EPA promulgated
steps such as preparation of final design new NAAQS for both ozone and for fine
plans and can also allow for seasonal emissions, the agency has no control
over that subsequent activity, either particles. The definition in the existing
shutdowns. The definition includes a regulations is broad enough to cover the
requirement that the action does not because there is no continuing program
responsibility or ability to practically new ozone standard. But, the definition
stop for more than 18 months unless did not cover the fine particle standard
such a delay is included in the original control.’’ 58 FR 63,214, 63,221 (Nov. 30,
1993). The Supreme Court noted this known as PM2.5. Therefore, EPA is
plans for the action. revising the definition of NAAQS to
Direct emissions. The EPA is long-held position in ruling that the
Department of Transportation was not include PM2.5.
proposing to revise the definition of
required to undertake a conformity Precursors of criteria pollutants. The
direct emissions to include a
review for its so-called ‘‘Mexican existing regulations define precursors
requirement that the emissions must be
trucks’’ rule. DOT v. Public Citizen, 541 for both ozone and PM10. Since the
reasonably foreseeable. This
U.S. 752 773 (2004). Specifically, the PM2.5 standard was promulgated after
requirement was unintentionally left out
Supreme Court held that DOT’s rule the General Conformity Regulations, the
of the definition when it was
concerning safety regulations for original regulations did not include the
promulgated in 1993.
Emission Inventory. This term is used Mexican motor carriers operating within precursors for PM2.5. Therefore, EPA
but not defined in the existing the United States interior did not trigger recently amended the regulation (July
regulations. Therefore, EPA is proposing conformity even though DOT approval 17, 2006 at 71 FR 40420) to add PM2.5
to add this term to the list. was required for Mexican trucks to cross precursors, consistent with the
EPA. Since some States have the border into the United States. The proposed implementation program for
Environmental Protection Agencies, Court indicated, among other reasons, the PM2.5 standard (70 FR 65984).
EPA is proposing to add ‘‘U.S.’’ in the that DOT ‘‘could not refuse to register 1. Sulfur dioxide is a regulated
definition to clarify that the regulations Mexican motor carriers simply on the pollutant in all PM2.5 nonattainment and
refer to the U.S. Environmental ground that their trucks would pollute maintenance areas.2
Protection Agency. excessively. (DOT) cannot determine 2. Nitrogen oxides are a regulated
Indirect emissions. Some questions whether registered carriers actually will pollutant in all PM2.5 nonattainment
have arisen concerning whether bring trucks into the United States, and maintenance areas unless both the
emissions generated outside a cannot control the routes that carriers State/Tribe and EPA determine that it is
nonattainment area should be accounted take, and cannot determine what the not.
for when making a General Conformity trucks will emit. Any reduction in 3. Volatile organic compounds (VOC)
determination for a Federal action. EPA emissions that would occur at the hands and ammonia are not regulated
is proposing to revise the definition for of (DOT) would be mere happenstance.
2 Sulfur dioxide is not required to be addressed
indirect emissions to clarify that only It cannot be said that (DOT) ‘practicably
in transportation conformity determinations before
indirect emissions originating in a control[s]’ or ‘will maintain control’ a SIP is submitted unless either the state air agency
nonattainment or maintenance area over the vehicle emissions from the or EPA regional office makes a finding that on-road
need to be analyzed for conformity with Mexican trucks, and it follows that the emissions of sulfur dioxide are significant
emissions from the Mexican trucks are contributors to the area’s PM2.5 problem. Sulfur
the applicable SIP. Previous guidance dioxide would be addressed after a PM2.5 SIP is
regarding emissions generated outside not ‘indirect emissions.’ ’’ Id. At 772–73. submitted if the area’s SIP contains an adequate or
of nonattainment areas was issued by Local air quality modeling analysis. approved sulfur dioxide motor vehicle emissions
EPA in 1994, prior to the 1995 statutory The EPA is proposing to revise the budget. EPA based its decision on the de minimis
amount of on-road missions of sulfur dioxide now
amendments to the CAA’s conformity definition to include an example of the and in the future, and on the implementation of low
provisions which made conformity type of models that are used in the local sulfur gasoline beginning in 2004 and low sulfur
applicable only with respect to air quality modeling analysis. diesel fuel beginning in 2006. (70 FR 24283).
pollutants in any PM2.5 nonattainment boundaries of their reservation emission levels for PM2.5. In July 1997,
or maintenance area unless either the (including non-Indian owned fee lands). EPA promulgated two new NAAQS (62
State/Tribe or EPA determines that they For off-reservation areas, tribes must FR 38652) one for an 8-hour ozone
are. demonstrate the basis for jurisdiction. In standard and one for fine particulate
Reasonably foreseeable emissions. As some cases there may be a SIP and a TIP matter known as PM2.5. The new 8-hour
discussed above, under ‘‘direct covering different portions of the same and old 1-hour ozone NAAQS address
emissions,’’ EPA is proposing to qualify nonattainment area. In such cases the same pollutant but differ with
the term direct emissions by stating that emissions from an action that originate respect to the averaging time, therefore,
those emissions must be reasonably in a nonattainment or maintenance area EPA retained the existing de minimis
foreseeable. Therefore, EPA is proposing that has both Tribal lands with a TIP emission levels for ozone precursors.
to revise the term ‘‘reasonably and State land requiring a SIP, the Although PM2.5 is a subset of PM10, it
foreseeable’’ to include ‘‘direct emissions would need to be accounted differs from the rest of PM10. While the
emissions.’’ for separately and the applicability and majority of ambient PM10 results from
Regionally significant action. As conformity analysis would need to be direct emissions of the pollutant, a
discussed in the revisions to 93.153(i) done separately for the TIP and the SIP. significant amount of the ambient PM2.5
below, EPA is proposing to delete the Therefore, EPA is proposing to add this can result not only from direct
regionally significant requirement. definition to the regulation. emissions but also from transformation
Therefore, if EPA’s proposed revision is of precursor and condensing of gaseous
promulgated, there is no need to retain E. 40 CFR 93.153—Applicability
pollutants in the atmosphere. Therefore,
this definition. Analysis
EPA in a separate action has added new
Restricted information. As discussed The EPA is seeking to clarify the de minimis emission levels of 100 tons
in §§ 93.155 and 156 on reporting and process of determining if the General per year for the direct emissions and
public participation, EPA, at the request Conformity requirements are applicable precursors of PM2.5. For completeness,
of the several Federal agencies is to a Federal action. Although EPA is the full table was updated to reflect this
proposing to specify how restricted providing clarification on actions that change.
information used in the conformity are exempt or presumed to conform in 5. The EPA is proposing to revise
determination is to be handled. To this regulation, nothing in this paragraph (d)(1) of § 93.153 to exempt
support those revisions, EPA is also regulation is intended to interfere with emissions covered by a NSR permit for
proposing to add a definition of any exemptions established by law. minor sources. The existing regulations
restricted information. The definition is 1. The EPA is proposing to revise the exempt emissions covered by a NSR
based upon applicable Executive title of the section to include the word permit for major sources but not for
Orders, regulations and statutes ‘‘analysis.’’ The EPA believes that minor sources. Since the purpose of the
pertaining to materials and other adding the word would make the title conformity program is to ensure that
information where disclosure is more descriptive of the section’s Federal actions do not interfere with the
restricted by law. content. SIP, TIP or FIP, in promulgating the
Take or start the Federal action. The 2. The EPA is proposing to make a existing regulations EPA recognized that
EPA is proposing to add a new term to minor wording change to paragraph (a) emissions covered by a major source
define the date when an action occurs and (b) of § 93.153. Paragraph (a) is NSR or prevention of significant
or starts. This date is important in revised to clarify the proper citations deterioration (PSD) permit already had
determining what, if any, conformity under which the Transportation been reviewed to ensure that the
requirements apply when an area is Conformity program is authorized. In emissions did not interfere with the SIP.
designated or re-designated as paragraph (b) EPA is proposing to add Therefore, the existing regulations
nonattainment. The EPA is proposing to the word ‘‘criteria’’ before the word exempt the emissions from sources
define this term as the date the decision- ‘‘pollutant’’ and ‘‘or precursor’’ after the permitted under major source NSR or
maker signs a document such as a grant, word to clarify the paragraph. PSD programs. Since 1993, when the
permit, license or approval. Otherwise, 3. The EPA is proposing to revise the existing regulations were promulgated,
EPA is proposing to define the term as table in sub-paragraph (b)(1) to include States and local agencies have adopted
the date the Federal agency physically all nonattainment areas in the Ozone NSR programs for minor sources as
starts the action that requires the Transport Regions. In 1993, when the required by section 110(a)(2)(C) of the
conformity evaluation. General Conformity Regulations were CAA. These NSR programs for minor
Tribal implementation plan (TIP). The promulgated, all nonattainment areas in sources also ensure that emissions from
EPA is proposing to add a definition for the Ozone Transport Region were the sources (individually and
Tribal implementation plan to mean classified as marginal or above for the 1- collectively) will not interfere with the
plans adopted and submitted by hour ozone NAAQS. However, in SIP. Therefore, EPA is proposing to
Federally recognized Indian Tribes. designating areas for the 8-hour ozone revise the regulation to exempt
Under the Tribal Authority Rule (40 NAAQS, some nonattainment areas emissions permitted under the EPA-
CFR part 49), certain Tribal bodies can were identified as needing to meet only approved NSR programs for minor
adopt and submit implementation plans the requirements in subpart 1 of Part D sources. The EPA believes this approach
to attain and maintain the NAAQS set of Title I of the CAA and were not will reduce the duplicate review of
by EPA, but the Tribal bodies do not set classified. Therefore, EPA is proposing emissions under both minor source NSR
their own ambient air standards. The to revise the table in § 93.153(c)(1) to and conformity programs and treat all
CAA allows tribes to obtain the cover the subpart 1 areas by changing NSR permitted emissions the same way.
authority to run CAA programs for the the category from ‘‘Marginal and Although operating permits issued
regulation of ‘‘air resources within the moderate NAA’s inside an ozone under title V of the CAA meet some of
exterior boundaries of the reservation or transport region’’ to ‘‘other NAA inside the same requirements, EPA is not
other areas within the tribe’s an ozone transport region.’’ proposing to exempt the emissions
jurisdiction’’ [CAA Section 4. In a separate notice EPA recently covered by those permits. The
301(d)(2)(B)]. Tribes have authority over revised the tables in paragraphs (b)(1) conformity program is similar to the
all air resources within the exterior and (b)(2) by adding the de minimis NSR program in that it evaluates new or
modified sources prior to construction, month extensions of the General be included in the documentation and
while the ‘‘title V’’ program is basically Conformity exemption. The Federal draft list. Specifically, EPA is proposing
for operating emissions at existing agencies did not know what they had to to: Add a paragraph to (f) to specify
sources. Therefore, the conformity do to invoke the provision and EPA and when and how more than one
evaluations for any project that also the State agencies had to request ‘‘presumed to conform’’ exception may
requires a title V permit should occur permission to review the decision. In be taken for a Federal action; add a new
before the title V permit is issued. The addition, the public was not given paragraph (g)(3) to specify that Federal
EPA does note that if for some reason notice of the decision to extend the agencies can list actions that are for
an operating permit covers the exemption. individual areas or SIPs or TIPs; add a
emissions, a Federal agency may be able The EPA is not proposing to revise sentence to paragraph (h)(1) to specify
to use the permit to document that the requirements for the initial exemption the information that must be included
emissions are accounted for in the SIP. for actions in response to emergencies. in the documentation; and add a
6. The EPA is proposing to delete ‘‘or The initial governmental actions which sentence to paragraph (h)(2) to allow the
natural disasters such as hurricanes, are typically commenced on the order of Federal agencies to notify EPA
earthquakes, etc.,’’ and ‘‘or disaster’’ hours or days in response to headquarters when the presumed to
from paragraph (d)(2) of § 93.153 emergencies or disasters would still be conform actions would have multi-
because they are unnecessary words. In exempt from the General Conformity regional or national impacts. In
§ 93.152 EPA defines an emergency, requirements for 6 months after the addition, EPA is proposing to revise
therefore the words in § 93.153 commencement of the response to the paragraphs (f) and (h) to include a
describing an ‘‘emergency’’ are not emergency or disaster. However, EPA is reference to the new paragraph (g)(3).
necessary and may be confusing since proposing requirements for Federal In promulgating the existing
they do not include all types of agencies that want to extend the regulations, EPA identified a number of
emergencies. exemption beyond the initial 6-month actions that were ‘‘presumed to
7. The EPA is proposing to amend period. First, EPA is proposing to conform.’’ The regulations also allow
paragraph (e)(2) of § 93.153 to provide require the Federal agencies to allow Federal agencies to establish their own
procedures for reviewing an extension EPA and the State 15 days to review and lists of actions that are ‘‘presumed to
of the exemption from making a provide comments on the draft written conform.’’ Under the existing
conformity determination for actions determination to extend the exemption regulations, Federal agencies must
related to responding to an emergency. at the beginning of the extension period. justify the inclusion of the actions on
A Federal agency, in responding to an Next, EPA is proposing to require their ‘‘presumed to conform’’ list by
emergency event such as a natural Federal agencies to publish a notice either demonstrating: (1) That the
disaster, terrorist attack, or military within 30 days of making the decision. actions will not cause or contribute to
mobilization, may find it impractical to The notice must be published in a daily an air quality problem or otherwise
conduct a conformity evaluation on the general circulation newspaper for the interfere with the SIP, TIP, or FIP, or (2)
action before it must take the action. To affected area. Finally, EPA is proposing that the actions will have emissions
address this situation, 40 CFR to limit the maximum number of 6- below the de minimis levels. The
93.153(d)(2) of the existing regulations month extensions an agency may Federal agencies must provide copies of
provides Federal agencies with a 6- declare on their own to three. Except in the proposed list to EPA, affected State
month exemption from the requirement certain circumstances, the EPA believes and local air quality agencies and
to undertake a conformity analysis for an agency should be able to plan for and MPOs. In addition, the agencies must
actions taken in response to an conduct a conformity evaluation for provide at least a 30-day public
emergency. The EPA recognizes that in actions within the time allowed by three comment period and document its
rare situations it may be impractical, 6-month extensions following the initial response to all comments. The notice of
even after 6 months, to conduct a 6-month exemption (i.e., a total of 2 the proposed and final list must be
conformity evaluation and is proposing years). In this regard, EPA acknowledges published in the Federal Register.
to amend § 93.153(e) to allow the that there could be a circumstance Although EPA has worked with one
agencies to extend the exemption for where an agency’s action in response to Federal agency on its ‘‘presumed to
another 6 months. This section requires an emergency may need additional 6- conform’’ list, no Federal agency has
Federal agencies to make a written month extensions beyond a 2 year published such a list. One issue that has
determination that it is impractical to timeframe and this proposal does not given pause to Federal agency efforts to
conduct an evaluation for the action. limit the number of additional 6-month publish presumed to conform lists is the
The existing regulations are not clear extensions to the emergency provisions. potential for several presumed to
about the number of additional In these cases, EPA is proposing that if conform exemptions to be used in
extensions permitted nor do the more than three extensions of the combination and result in unacceptable
regulations provide any procedures for emergency provisions are needed, for all cumulative air quality impacts. To
agencies to follow in deciding on the subsequent 6-month extensions a address this issue, EPA is proposing in
extension. Federal agency must provide § 93.153(f) that actions specified in an
EPA believes the only time that the information to EPA and the State individual Federal agency’s presumed
extension of the 6-month exemption has stating: (a) The conditions that gave rise to conform list may not be used in
been used was in New York following to the emergency exemption continue to combination with one another when the
the terrorist attack of September 11, exist, and (b) how such conditions total direct and indirect emissions from
2001. In responding to the shutdown of effectively prevent the agency from the combination of actions would equal
the Port Authority Trans-Hudson line conducting a conformity evaluation. or exceed any of the de minimis
between New Jersey and New York, 8. The EPA is proposing to revise thresholds in the General Conformity
certain Federal agencies sponsored a paragraphs (f), (g), and (h) of § 93.153 to regulations. By doing this, EPA believes
ferry service across the Hudson River. permit Federal agencies more flexibility it will ensure that the intent of
The service lasted 2 years until the mass in developing their list of actions that presumed to conform actions—namely
transit service was restored. The Federal are ‘‘presumed to conform’’ and provide reducing the analysis burden for actions
agencies continued with a series of 6- requirements for the materials that must that have little or no direct or indirect
emissions—is met. For example, a emissions of any pollutant represent 10 emission inventory for an area may not
Federal agency may undertake a percent or more of a nonattainment or be readily available since the SIP may
program or project with several maintenance area’s emissions not cover the time period when the
connected actions that must be analyzed inventory.’’ 40 CFR 93.153(i) and (j) emissions will occur. In addition, most
under the environmental review require conformity determinations for national emission inventories are
requirements of NEPA. Several of those all regionally significant actions, published 2 to 3 years after the
actions may individually be listed on regardless of any exemptions or ‘‘inventory’’ year, so if a Federal agency
the agency’s presumed to conform list presumptions of conformity based on is comparing the action’s emissions
because those actions taken by other provisions in the regulations. against the most recent inventory they
themselves would typically have The ‘‘regionally significant’’ action may be looking at an inventory that is
emissions below de minimis levels. If concept was proposed in the 1993 3 to 5 years old.
the agency wishes to determine the Notice of Proposed Rulemaking (58 The EPA is proposing to eliminate the
entire project or program will not FR13836) in order to ‘‘capture those provision. The EPA believes that since
require a conformity determination actions that fall below the de minimis Federal agencies have expended
because it is presumed to conform, it emission levels, but have the potential resources to demonstrate that actions
must first determine, using the to impact the air quality of the region.’’ are not regionally significant and the
emissions predicted in establishing the At that time, EPA requested comments existing provision has not been
presumed to conform action that the on whether the 10 percent level was triggered, eliminating the provision
emissions from the combination of appropriate. In the discussion of would streamline the conformity
actions does not equal or exceed de comments in the preamble to the Final regulations and have little or no
minimis levels. Alternatively, the Rule (58 FR 63214), EPA reported that environmental impact.
agency could exclude the emissions it received comments both in favor of 10. The EPA is proposing to replace
from one presumed to conform action and in opposition to the ‘‘regionally paragraph (i) of § 93.153 with a new
from the applicability analysis and significant’’ action concept. While many paragraph to identify three additional
would only be required to perform an respondents supported the concept, groups of actions that are presumed to
applicability analysis and if required, a there was a diversity of opinions conform. First, EPA is proposing to
conformity determination on the total regarding whether 10 percent was the allow installations with a facility-wide
direct and indirect emissions of the most appropriate level. However, EPA emission budget to presume that an
actions which are not otherwise exempt. reported that no documentation was action at the installation will conform
The EPA believes that the use of a provided to support a different level. provided that the emissions from that
‘‘presumed to conform’’ list is an Some respondents felt that the de action along with all other emissions
important tool for Federal agencies in minimis cut offs would suffice. The EPA from the facility will not exceed the
reducing the review time for Federal decided to retain both the concept and budget. A more detailed discussion of
actions while still ensuring air quality 10 percent level in the final rule. the facility-wide emission budget
goals are met. For example a Federal For a regionally significant action, the concept is found in § 93.161.
land management agency could include Federal agency must conduct a full Second, EPA is taking comment on
on its list of presumed to conform conformity determination even if the allowing Federal agencies to presume
actions prescribed fire use where the action would cause total direct and that the emissions from prescribed
agency has formally committed to apply indirect emissions below the de burns will conform provided the
a list of basic smoke management minimis levels. In over 12 years since burning is conducted under a State
practices developed in cooperation with promulgation of the existing regulations, certified approved SMP. EPA is also
the affected State(s) and/or air pollution no action has been determined to be asking for comments on the approach of
control agencies or Tribal government. regionally significant. The main reason allowing Federal agencies to presume
EPA believes that an additional that actions with emissions below de that the emissions from prescribed
option could be added to the regulations minimis levels are not regionally burns conducted using State approved
to aid Federal agencies in adopting their significant is that the emission basic smoke management practices in a
presumed to conform list. The EPA is inventory for almost all nonattainment nonattainment or maintenance area
proposing to add sub-paragraph (g)(3) to and maintenance areas greatly exceeds conform with a SIP.
clarify that the presumption could be for ten times the de minimis emission In May 1998, EPA worked with States
one facility or for facilities in a specified levels. Review of the 1999 emission and other Federal agencies to develop
area and does not have to be nationally inventory shows that only six (one and publish an interim policy on
applicable. For example, if the ozone, two lead and three sulfur prescribed fires on wildlands. (See
nonattainment area’s SIP includes a dioxide) of over 200 nonattainment Interim Air Quality Policy on Wildland
sector emission budget for construction areas had emission inventories less than and Prescribed Fires, U.S.EPA, May
activities, a facility may be able to ten times the de minimis levels.(See 1998). To comply with the
demonstrate that construction activities Evaluation of Potential Regionally recommendations in the interim policy,
of a certain size or type fits within the Significant Areas Under the General state air regulators and land managers
SIP’s emission budget. With the Conformity Regulations, Science should develop a certified SMP which
concurrence of the State or Tribe, the Applications International Corporation, promotes regional coordination, and
Federal agencies could publish a March 2005, Docket Number OAR– may include real-time air quality
‘‘presumed to conform’’ list that 2004–0491). In other words, except for monitoring. A State SMP establishes a
includes the construction emissions at those six areas, an action with emissions basic framework of procedures and
the specific facility. below de minimis levels would never be requirements for managing smoke from
9. The EPA is proposing to delete the considered regionally significant. a prescribed fire managed for resource
regionally significant test included in Federal agencies have expressed benefits. A SMP is typically developed
paragraph (i) of § 93.153. The existing concern that, in many cases, by a State or Tribe with cooperation and
regulations in § 93.152 define demonstrating that a project is not participation by wildland managers,
‘‘regionally significant’’ as ‘‘a Federal regionally significant is difficult and both public and private, and the general
action for which the direct and indirect time consuming. First, the future total public. The SMPs establish procedures
and requirements for minimizing final revisions of this General define the term to mean that a Federal
emissions and managing smoke Conformity rule, EPA is also requesting agency takes an action when it signs a
dispersion. The goals of SMPs are to comment on an additional approach for permit, license, grant or contract or
mitigate the nuisance and public safety allowing a presumption to conform for otherwise starts the Federal action.
hazards (e.g., on roadways and at emissions from prescribed fires From the time that an area is designated
airports) posed by smoke intrusions into conducted in the absence of a State as nonattainment, agencies will have a
populated areas; to prevent certified SMP, where the Federal agency year to take or start the Federal action.
deterioration of air quality and NAAQS submits a demonstration and obtains If the agency fails to take or start the
violations; and to address visibility written permission from the State prior Federal action during the grace period,
impacts in mandatory Class I Federal to the burn that the planned burn then it must re-evaluate conformity for
areas. employs State approved basic smoke the project based on the requirements
Given the fundamental purpose of the management practices. This approach for the new designation and
SMP, EPA believes that it is reasonable would thereby protect public health in classification.
to assume that any action in compliance nonattainment and maintenance areas
with the certified SMP would be in F. 40 CFR 93.154—Federal Agencies
where a SMP has not been adopted, and
conformance with the applicable SIP. Responsibility for a Conformity
allow Federal agencies the flexibility
Therefore, EPA is taking comment on Determination
needed to conduct necessary prescribed
the approach to designate these actions burning. 1. The EPA is proposing to revise the
as actions presumed to conform. Federal Finally, as discussed above, EPA is title of this section to clarify the purpose
agencies would not have to conduct a also proposing to allow a State or of the section. In the existing regulations
conformity determination for those eligible Tribe, on its own, to adopt in this section is entitled broadly
actions. The presumption to conform is their SIP or TIP a list of actions for ‘‘Conformity Analysis.’’ Since the short
also based on the maintenance in facilities in its borders that it ‘‘presumes section only discusses the requirement
stringency of the existing SMPs where to conform.’’ for each Federal agency to make its own
implemented or the implementation of 11. The EPA is proposing to revise determination, EPA is proposing to
new smoke management programs or paragraph (j) of § 93.153 by deleting the revise the title of the section to more
practices as identified above. reference to regionally significant closely describe the section’s content.
As reflected in the Interim Air Quality emissions, by adding a reference to 2. The EPA is proposing to add
Policy on Wildland and Prescribed paragraph (i) and by describing the language to this section to specifically
Fires, States are provided flexibility on criteria for requiring a conformity state that the conformity determination
the structure of a SMP. Thus, a SMP can determination for an action that must meet the requirements of this
be extensive and detailed, or simply otherwise would be presumed to subpart.
identify the basic smoke management conform. The existing regulations state
G. 40 CFR 93.155—Reporting
practices for minimizing emissions, and that an action cannot be presumed to
Requirements
controlling impacts from a prescribed conform if it was regionally significant
fire. The EPA’s final rule on the or did not in fact meet the requirements 1. Since EPA is proposing to add
Treatment of Data Influenced by of sub-paragraph (g)(1). As discussed additional sections to subpart B, it is
Exceptional Events published in the above, EPA has proposed to delete the proposing to revise the references to
Federal Register on March 22, 2007 regionally significant test, therefore those sections in § 93.155.
(Volume 72, Number 55) states that reference to it is proposed to be deleted 2. Consistent with EPA Tribal
basic smoke management practices from this paragraph. For clarity, instead Authority Rule (63 FR 7253), EPA is
could include, among other practices, of referring to sub-paragraph (g)(1), EPA proposing to provide federally-
steps that will minimize air pollutant is proposing to repeat the requirements recognized Indian Tribal governments
emissions during and after the burn, in this paragraph. the same opportunity to comment on
evaluate dispersion conditions to 12. The EPA is proposing to revise draft conformity determinations as
minimize exposure of sensitive paragraph (k) of § 93.153 to incorporate given to States. Therefore, EPA is
populations, actions to notify the provisions of section 176(c)(6) of the proposing to require the Federal
populations and authorities at sensitive CAA. (42 U.S.C. 7506(c)(6)). In agencies to notify all the federally-
receptors and contingency actions November 2000 (Pub. L. 106–377), recognized Indian Tribal governments
during the fire to reduce exposure of Congress added section 176(c)(6) to the in the nonattainment or maintenance
people at such receptors, identify steps CAA to allow for a conformity transition area. To assist other Federal agencies in
taken to monitor the effects of the fire period for newly designated this notification, EPA is planning to
on air quality, and identify procedures nonattainment areas. That section place a list of the federally-recognized
to ensure that burners are using basic establishes a 1-year grace period Indian Tribal governments in each
smoke management practices. following the effective date of the final nonattainment or maintenance areas on
The Agency plans to begin revising its nonattainment designation of each its General Conformity web site.
Interim Air Quality Policy on Wildland NAAQS before the conformity 3. The EPA is proposing to add an
and Prescribed Fires in 2007 as part of requirements must be met in the area. If alternative procedure for notifying EPA
its overall Fire Strategy. The Agency an agency takes or starts the Federal when the action would result in
believes that the conditions for action before the end of the grace emissions originating in nonattainment
prescribed fires that are presumed to period, it must comply with the or maintenance areas in three or more
conform should be conducted in applicable pre-designation conformity EPA regions. Specifically, EPA is
accordance with programs and practices requirements. If an agency takes or starts proposing to allow agencies to notify the
which meet the requirements of EPA’s the Federal action after the end of the EPA Office of Air Quality Planning and
Air Quality Policy on Wildland and grace period, it must comply with the Standards rather than each individual
Prescribed Fires and those conditions post-designation conformity Regional Office. A single contact point
should be deliberated in the formation requirements. As discussed above in for EPA should be more efficient for the
of the revised policy. To inform the describing the new term ‘‘take or start other Federal agencies than notifying up
development of that policy, and the the Federal action,’’ EPA is proposing to to ten Regional Offices.
4. At the request of the several Federal rulemaking, affect a large number of emissions below the de minimis level.
agencies EPA is proposing to add a new nonattainment and maintenance areas. Since the emissions from the
paragraph to § 93.155 to describe how The notification procedure for such an unmodified action were determined to
restricted information used to support action could be burdensome and be de minimis and not fully evaluated
conformity determinations should be inefficient. Therefore, EPA is proposing to determine conformity, EPA is
handled when provided to EPA, States to allow the Federal agencies to publish proposing the Federal agency conduct a
and Tribal governments. The existing a notice in the Federal Register if the conformity determination if the total
General Conformity Regulation does not action would cause emissions above the emissions (the emissions from the
contain an explicit statement about de minimis levels in more than three unmodified action plus the increased
protecting restricted information from nonattainment or maintenance areas. emissions resulting from the
public release. The interagency review 3. The EPA is proposing to also add modification) equal or exceed the de
and public participation provisions in a new paragraph to § 93.156 to describe minimis levels for the area. EPA seeks
the existing regulation require Federal how restricted information and CBI comment on what actions should be
agencies to make available for review used to support conformity considered to constitute
the draft conformity determination with determinations should be handled in ‘‘modifications’’ for purposes of
supporting materials that describe the providing the information to the public. conformity and under what conditions,
analytical methods and conclusions I. 40 CFR 93.157—Re-Evaluation of if any, a subsequent action should be
relied upon in making the Conformity considered to constitute a ‘‘new’’ action
determination. Disclosure of classified versus modification of an action for
information by a Federal employee is a 1. The EPA is proposing to revise the which a previous de minimis
criminal offense (18 U.S.C. 1905). In title of this section to more determination was made.
addition, certain unclassified appropriately describe the section’s
information is privileged or otherwise content. The existing section is entitled J. 40 CFR 93.158—Criteria for
protected from disclosure. Therefore, ‘‘Frequency of Conformity Determining Conformity for General
several Federal agencies wanted to Determinations.’’ That title implies that Federal Actions
ensure that the General Conformity the general conformity requirements for
1. In § 93.158(a)(1), EPA is proposing
Regulations clearly state that no agency Federal actions must be reevaluated on
to add ‘‘precursor’’ after ‘‘any criteria
or individual was required to release a regular basis. However, the section
pollutant’’ to clarify that Federal
restricted information including, but not states that conformity must be
agencies can demonstrate conformity for
limited to, classified materials. reevaluated only if the determination
the precursors of the criteria pollutants
Therefore, EPA is proposing to revise lapses or the action is modified,
if the precursor emissions are
the regulation to add explicit language resulting in an increase in emissions.
2. If an action’s emissions are below specifically identified and accounted for
concerning the protection of restricted in the applicable SIP, TIP or FIP.
information. In addition, conformity the de minimis levels or the action is
not located in a nonattainment or 2. In § 93.158(a)(2) and (a)(5)(iii), EPA
determinations could, in part, be based is proposing to allow Federal agencies
upon confidential information received maintenance area, a conformity
determination is not required. to obtain emission offsets for the
from business sources. The EPA is
Therefore, the Federal agency would not General Conformity requirements from a
proposing to add specific language to
have a date for the conformity nearby nonattainment or maintenance
the regulation to protect CBI in
determination. The EPA is proposing area of equal or higher classification,
accordance with each Federal agency’s
minor wording changes in paragraphs provided that the emissions from the
policy and regulations for the handling
(a) and (b) to clarify that the date of a nearby area contribute to the violations
of restricted information and CBI. The
completed NEPA analysis, as evidenced of the NAAQS in the area where the
regulations would allow State or EPA
by a signed finding of no significant Federal action is located or, in the case
personnel with the appropriate
impact (FONSI) for an environmental of a maintenance area, the emissions
clearances to be able to view the
assessment, a record of decision (ROD) from the nearby area have contributed
restricted or confidential business
information. for an environmental impact statement, in the past to the violations in the area
or a record of a categorical exclusion where the Federal action is located. The
H. 40 CFR 93.156—Public Participation can be used when a conformity proposal would require such emissions
1. The EPA is proposing to correct the determination is not required. offsets to be obtained through either an
section referenced in § 93.156. The 3. The EPA is proposing to add two approved SIP revision or an equally
existing regulations refers to § 93.158. new paragraphs (d and e) to § 93.157 to enforceable commitment.
The correct reference should be clarify the requirements for needing to This revision to the offset
§ 93.154. Section 93.158 prescribes the conduct a conformity determination requirements would make the General
criteria for conducting a conformity when the action is modified. Paragraph Conformity offset requirements
analysis, while § 93.154 requires Federal (d) deals with modifying an action for consistent with the offset requirements
agencies to make the determination and which the Federal agency made a in section 173(c)(1) of the CAA for the
references the requirements in the other conformity determination. In order to Federal NSR program. It would also
sections of subpart B. make the determination, the Federal provide the Federal agencies more
2. The EPA is proposing to provide an agency had to demonstrate that all the flexibility in obtaining the offsets in
alternative public notification procedure emissions caused by the action areas impacted by transport from nearby
for actions that cause emissions above conformed to the SIP. Therefore, the areas. In light of increased knowledge
the de minimis levels in more than three Federal agency does not have to revise concerning transport of pollutants into
nonattainment or maintenance areas. its conformity determination unless the areas, EPA solicits comments on
The existing regulations require that the modification would result in an increase whether to limit the offsets to
Federal agency publish a notice in a that equals or exceeded the de minimis nonattainment or maintenance areas of
daily newspaper of general circulation emission levels for the area. Paragraph equal or higher classifications, or permit
in the nonattainment or maintenance (e) deals with modifying an action that broader application to all nonattainment
area. Some Federal actions, such as the Federal agency determined had and maintenance areas.
3. In § 93.158(a)(2), (a)(3) and (a)(4), an EPA approved ‘‘Reasonable Further committing to include the emissions
EPA is proposing to revise the Progress’’ plan. By adopting the budget from the Federal action in the SIP.
regulations to address the precursors of and submitting it as part of the SIP or 9. The EPA is proposing to revise
PM2.5. The EPA does not believe that the TIP, the State or Tribe is treating the § 93.158(a)(5)(iv) to delete the use of
current models are adequate to Federal action like any other source in 1990 as the baseline year. As discussed
reasonably predict the project level the area. When the State or Tribal above, when EPA promulgated the
impact of individual precursor sources agency adopts the attainment or existing General Conformity Regulations
of ozone or PM2.5. Therefore, EPA is maintenance SIP or TIP, it will have to in 1993, the designations and
proposing to allow Federal agencies to consider the emissions, and if necessary classifications were based upon the
use modeling to demonstrate conformity require additional controls on the 1990 air quality and emissions. Since
only for directly emitted pollutants. sources. Specifically, EPA solicits 1993, EPA has promulgated new
Precursors of PM2.5 will be treated the comment on whether demonstrating standards and designated additional
same as precursors of ozone and direct conformity to a budget in a milestone areas as nonattainment. Therefore, in
emissions of PM2.5 will be treated the plan (in the absence of an attainment many cases the 1990 date for the
same as CO and PM10. The EPA solicits demonstration) is adequate to ensure baseline emission inventory is
comment on this treatment of the that the emissions from the action will inappropriate. The EPA is proposing to
precursors of PM2.5. not interfere with the timely attainment set the baseline year as the most current
4. In § 93.158(a)(3) and (5), EPA is of the NAAQS. calendar year with a complete emission
proposing to correct two typographical 7. Although not specified in the inventory available before an area is
errors. In sub-paragraph (3), EPA is regulations, EPA believes that a State designated unless EPA sets another
proposing to correct ‘‘meet’’ to ‘‘meets’’ operating permit under title V of the year.
and in sub-paragraph (5), EPA is CAA or other air quality operating In some cases, when EPA establishes
proposing to change ‘‘paragraph permit can serve as documentation of a new level for a standard, an area will
(a)(3(11)’’ to ‘‘paragraph (a)(3)(ii).’’ the State’s or Tribe’s determination. have an existing SIP or TIP for the
5. In § 93.158(a)(5)(i), EPA is 8. The EPA is proposing to revise pollutant that serves as the applicable
proposing to delete the reference to the § 93.158(a)(5)(i)(C) to allow the State or SIP or TIP until a revised SIP or TIP is
year 1990 and replace it with a generic Tribe to commit to including the submitted by the State or Tribe and
reference to the most current calendar emissions from the Federal action in approved by EPA. For example, in
year with a complete emission future SIPs. Under the existing transition from the 1-hour ozone
inventory available before an area is regulations, Federal agencies can standard to the 8-hour ozone standard,
designated unless EPA sets another demonstrate conformity by having the EPA revoked the 1-hour standard 1 year
year. In addition to requiring the State commit to revising the applicable after the effective date of the 8-hour
conformity regulations, the CAA SIP to include the emissions. If a State ozone designation. Although EPA
Amendments of 1990 required the or Tribe agrees to such a commitment, revoked the 1-hour standard, the
designation of areas as nonattainment the State or Tribe must submit a SIP existing ozone SIP remains largely in
based on the existing air quality data. revision within 18 months to include place until it is replaced by the 8-hour
Therefore, when EPA promulgated the the emissions from the action and to ozone SIP. The 1-hour ozone SIP is
existing regulations in 1993, all the make other necessary adjustments in the considered the applicable SIP until it is
designations were based on a 1990 date. SIP to accommodate those emissions. replaced.
Since EPA promulgated the conformity However, the existing SIP or TIP, or a Finally, EPA is proposing to delete
regulations, it has promulgated new 8- SIP or TIP required to be submitted in another alternate baseline year that no
hour ozone and PM2.5 standards and 18 months, may not cover the same longer is applicable in PM10 areas.
designated a number of areas as timeframe covered by the conformity Specifically, we are proposing to delete
nonattainment. By changing the determination. For example, a SIP for a in § 93.158(a)(5)(iv)(A)(3) the use of the
regulations to reference the date when nonattainment area that demonstrates ‘‘year of the baseline inventory in the
the area was designated as attainment may only cover the period PM10 applicable SIP.’’ EPA believes that
nonattainment, EPA is allowing for the until the attainment date while the the proposed deletion of this out-dated
new designations and any future conformity determination may cover baseline year should not affect current
designations. emissions for many years beyond that general conformity determinations in
6. Also in § 93.158(a)(5)(i), EPA is date. The State or Tribe may be PM10 nonattainment and maintenance
proposing to revise the paragraph to submitting future SIPs or TIPs to areas.
allow Federal agencies to make address either maintenance of the
conformity determination based upon a K. 40 CFR 93.159—Procedures for
standard or to address a continuing
State’s or Tribe’s determination that the nonattainment problem that would Conformity Determinations for General
emissions from the action along with all cover the time period of the emissions. Federal Actions
other emissions in the area would not The EPA’s proposed revision to 1. EPA is proposing to change
exceed the emission budget in the § 93.158(a)(5)(i)(C) would continue to § 93.159(b)(1)(ii) to make it more
applicable SIP or TIP. Under the require States to revise the SIP within consistent with when new motor
existing regulations, States could only 18 months of the conformity vehicle emissions factors models are
make such a determination if they had determination based upon a State’s or used in general conformity
an approved attainment demonstration Tribe’s commitment. However, if the determinations. EPA is proposing to
or maintenance SIP. This revision existing SIP or TIP, or a SIP or TIP due clarify that the grace period before such
would allow the State or Tribe to make within 18 months, does not cover the new models are used will be 3 months
its determination based upon a post- time period of the emissions, then the from EPA’s model release or a longer
designation applicable SIP or TIP even State or Tribe, in the SIP revision, can grace period as announced in the
though the plan does not include an include an enforceable commitment to Federal Register. This is more
attainment demonstration. For example, account for the emissions in future SIP consistent with 40 CFR 93.111 of the
the State or Tribe could base their revisions. This approach will allow transportation conformity rule that
determination on an emission budget in States and Tribes flexibility in allows grace periods for new motor
vehicle emissions factor models to be approach, the regulations do not estimates of emissions and growth in
between 3–24 months. specifically authorize its use. This the activities at the facility.
2. The EPA is proposing to revise approach would be entirely voluntary The State or Tribe would include the
§ 93.159(b)(2) and (c) to update the on the part of the Federal agency and emission budget in the existing SIP or
reference to the Compilation of Air would have to be approved by the State, TIP and use the budget for any future
Pollutant Emission Factors and for the Tribe or local agency responsible for the SIP or TIP development. In including
Guideline on Air Quality Modeling. SIP or TIP. For example, States can the emissions in the existing SIP or TIP,
EPA has released updated versions of currently adopt a facility-wide budget States or Tribes can either identify
these documents since it promulgated for a Federal installation as part of the categories in the existing SIP or TIP that
the existing regulations in 1993. SIP. With such a budget, a Federal cover the emissions or can submit a
3. The EPA is proposing to revise agency could easily demonstrate revision to the SIP or TIP to include the
paragraph (d)(1) to clarify that analysis conformity for an action at the emissions. If unusual or unforeseen
is first required for the attainment year installation provided the emissions circumstances warrant a revision, the
specified in the SIP. In some cases, such caused by the action along with all of State, Tribe or local agency and Federal
as SIPs for marginal ozone areas, an the other emissions subject to general agency could agree to revise the budget.
attainment demonstration date was not conformity at the installation stays For example, if the State, Tribe or local
required in the SIP. Therefore, EPA is within the budget. If the State or Tribe agency requires additional reductions to
also proposing that if the SIP or TIP includes the emission budget in the SIP meet their attainment objective or if the
does not specify an attainment or TIP, the emissions would be facility has unexpected growth, a
demonstration year then the analysis is identified and accounted for in the SIP revised budget could be adopted into
required for the latest attainment year or TIP. Alternatively, a State or Tribe the SIP or TIP.
possible under the CAA. Since the CAA could provide a letter to the Federal The EPA believes that the proposed
requires the SIP demonstrate attainment agency stating that the emissions from program would encourage the State,
as expeditiously as possible but no later the installation that are within the Tribe or local air quality agency and the
than the CAA mandated attainment budget conform to the SIP or TIP. This Federal facilities to develop an upfront
date, it is possible that a SIP or TIP proposed section for developing such a emission budget for the facility, and the
could have an earlier attainment date. budget would in conjunction with a action or project environmental review
That earlier date would be the new § 93.153(j) provide a mechanism for would be streamlined as long as the
appropriate year for the conformity presuming that the emissions are in facility remains within an established
analysis. conformance with the SIP or TIP. This budget.
4. The EPA is proposing a minor approach allows State or Tribe and The program would be voluntary on
wording revision to paragraph (d)(2) to Federal agencies to identify acceptable the part of the Federal agency, State,
clarify the paragraph. The EPA is levels of emissions from the installation Tribe and local air quality agency. No
proposing to replace the word ‘‘farthest’’ before starting the environmental review party would be required to participate.
with ‘‘last.’’ The maintenance plans are for the actions and for the agencies to If the parties agreed to participate, an
developed for a 10-year period and expedite the review of the Federal emission budget would be established
revised as necessary for the next 10-year actions at the facilities. based upon specific guidance and
period. The purpose is for conformity to
Under this approach, a State, Tribe or documented growth projections for the
be evaluated for the last year of the
local air quality agency could work with facility.
maintenance plan. The word ‘‘last’’
conveys that meaning. the Federal agency, or a third party The emission budget approach would
authorized by the agency (e.g., an not be applicable to all situations. For
L. 401 CFR 93.160—Mitigation of Air airport authority), who volunteers to example, not all Federal actions or
Quality Impacts develop a facility-wide emission budget projects occur on installations suitable
The EPA is proposing to revise for an installation or facility. In for emission budgets (e.g., one-time
paragraph § 93.160(f) to clarify its principle, at the time the States or actions on non-Federal lands such as a
meaning. The regulations were meant to Tribes agree to a budget, they assume short-term construction project may not
require that the mitigation measures responsibility for ensuring that the have facilities to have a budget). In
include a written commitment from the emissions within the budget will not addition, some installations with
person or organization reducing the interfere with the purpose of the SIP or budgets may on occasion take actions or
emissions and those commitments must TIP, and will be included in future SIPs have projects that would result in the
be fulfilled. or TIPs. The budget would be for a set budget being exceeded. In these cases,
period of time and near the end of that or under any circumstances, a Federal
M. 40 CFR 93.161—Conformity time the State, Tribe or local agency and agency may determine applicability or
Evaluations for Installations With Federal agencies could revise the budget demonstrate conformity with the
Facility-Wide Emission Budget for the next time period. For example, standard requirements contained in
The EPA is proposing to add a new the State, Tribe or local agency and §§ 93.153 through 93.160 and 93.162
section to the regulations to facilitate Federal agency could develop annual through 93.165 of the General
the use of a facility-wide emission budgets covering a 10-year period. Two Conformity regulations. These
budget in evaluating conformity. years before the end of the period, the requirements include, but are not
Federal agencies have stated that they budget would be reviewed and updated limited to, a State certifying emissions
would like to streamline the conformity to cover the next 10-year period. (This are included the SIP, a de minimis
process for individual actions or is the same procedure used for determination or other exemption,
projects, while States have expressed a maintenance plans under section 175A project level mitigation, offsetting
desire for the conformity process to help of the CAA. A maintenance plan is emission reductions, or modeling.
identify and reduce emissions at Federal developed for 10-years and 8 years into Therefore, having a facility-wide
installations. Although the existing that plan a new plan is developed for emissions budget in the SIP would not
regulations do not preclude States and the next 10 years.) The budgets would limit an agency’s option for determining
Federal agencies from using this be developed based upon the latest conformity, but adds an additional less
burdensome option for demonstrating emissions included in the future SIP should also have substantial long-term
conformity. should be based on the latest planning attainment and maintenance benefits.
As discussed earlier in this preamble assumptions at the time of the SIP EPA is also proposing that emissions
under the definition of ‘‘caused by’’, in revision. Although a State is committing reductions used over an alternate
developing the facility-wide emission to include the emissions in the schedule would be consistent with
budget, the Federal agency generally emissions budget for the SIP revisions, statutory requirements that new
would share its plans for construction at this commitment does not prevent the violations are not created, the frequency
the facility. As a result the State, Tribe State from requiring the use of RACT, or severity of existing violations are not
or local agency could consider the RACM or any other control measures increased, and timely attainment is not
emissions from the construction in its within the State’s authority to ensure delayed.
SIP or TIP and they would have three timely attainment of the NAAQS. To ensure these noncontemporaneous
options for handling the construction emission reductions provide greater
emissions under the general conformity O. 40 CFR 93.163—Timing of Offsets environmental benefits in the long term,
program. First, they could include the and Mitigation Measures EPA is proposing to require that the
emissions in a facility-wide emission The EPA is proposing to add a new offset or mitigation ratios be greater than
budget. Second, they could determine section to address the timing of offset one-for-one. Therefore, EPA is
that the construction emissions at the and mitigation measures. First, the proposing a ratio that is no less than the
facility would be covered elsewhere in section generally requires that the NSR offset ratios for the area. These
the SIP or TIP (e.g., in the non-road emission reductions for the offset and ratios are readily available and already
mobile source budget or the area source mitigation measures must occur in the understood to be based on the severity
budget), and thus the emissions could same calendar year as the emission of the nonattainment problem for the
be presumed to conform. Finally, they increases caused by the Federal action area. In addition, EPA seeks comment
could cover the construction emissions and that the reductions are equal to the on other mechanisms that could be used
separately from the emission budget and emissions increases. As an alternative, to require greater than one-for-one
conduct a separate conformity the proposed section would allow, reductions for the offsets and mitigation
evaluation for those emissions. under special conditions and consistent measures that occur in later years or
Since the facility-wide emission with CAA requirements, the State or alternatively if greater than one-for-one
budget would be used to develop the Tribe to approve other schedules for reductions should be required.
SIP or TIP for the area, any Federal offsets or mitigation measures. Also, EPA believes that the mitigation
action at the installation that remains Mitigation measures and offsets are or offset compensation period should
within its budget would not interfere used to reduce the impact of emission not last indefinitely and is proposing
with the SIP or TIP. By developing a increases from a project or action. To that the period should not exceed two
facility-wide emission budget for the minimize the impact of the project’s times the period of the under-mitigated
installation, the Federal agency would emissions, the emissions reductions emissions. For example, a Federal
generate a more accurate emission from offsets or mitigation measures agency may be approving a construction
inventory for the activities at the should occur at the same time as the project lasting 3 years in a serious
installations and provide the State, emission increases from the project. In nonattainment area and that project will
Tribe or local agency with realistic general, EPA has interpreted the cause 150 tons per year of increased
growth projections for the installations. existing regulations to mean that the emissions; the State or Tribe can
The facility-wide emission budgets reductions must occur in the same approve mitigation measures or offsets
would encourage operators to identify calendar year as the emission increases which reduce emissions by less than
ways of reducing emissions and adopt caused by the action because the total 150 tons per year provided the total
control measures when possible in order direct and indirect emissions from an reduction over a 6-year period is equal
to allow for unforeseen growth. action are collated on an annual basis. to or more than 540 tons (150 tons per
Therefore, EPA is proposing to include year times 3 years equals 450 tons times
N. 40 CFR 93.162—Emissions Beyond this interpretation in the regulations. the offset/mitigation ratio of 1.2 to 1 for
the Time Period Covered by the For certain projects, however, it may serious nonattainment areas equals 540
Applicable SIP or TIP be beneficial for the State or Tribe to tons). Besides requesting comment on
The EPA is proposing to add a new approve mitigation measures or offsets the concept of allowing the States or
section to address how Federal agencies that do not provide for emissions Tribes to approve a longer time period
can demonstrate conformity for an reductions equal to the emission for offsetting or mitigating the emission
action that causes emissions beyond the increases for the specific years, but increases, EPA is also seeking comment
time period covered by the SIP or TIP. provide net long-term air quality on the mechanism and procedures used
First, EPA is proposing to allow Federal benefits. For example, a project with to permit/implement the concept. In
agencies to demonstrate conformity relatively high short-term emissions, addition, EPA is seeking comment on
using the last emission budget in the SIP such as a construction project, could be the appropriate time period for the
or TIP. If it is not practicable to mitigated by converting older Federal agencies to offset or mitigate the
demonstrate conformity using that equipment to electric or alternate fuels. increased emissions. The EPA is
technique, then the Federal agency can The State or Tribe may find it requesting comments on using longer
request the State or Tribe to provide an advantageous to allow a short period compensation periods in excess of two
enforceable commitment to include the when the emissions are not fully times the project period.
emissions from the Federal action in a mitigated in return for permanent or the Agreeing to allow the use of offset or
current or future SIP or TIP emissions long-term emissions reductions. mitigation measures in later years does
budget. In such a case, the State or Tribe Therefore, EPA is proposing to allow, not exempt the State or Tribe from
would be required to submit a SIP under certain conditions, the State and meeting any of its SIP or TIP
revision within 18 months to include Federal agency to negotiate alternate obligations, such as reasonable further
the emissions in the current SIP or TIP schedules for the implementation of the progress milestones or attainment
or committing to account for the offsets and mitigation measures. EPA deadlines. Emissions reductions which
emissions in future SIPs or TIPs. The believes that such emissions reductions accrue beyond the compensation period
should be properly reflected in the SIP emissions reductions. In addition, requirements that apply to any offset or
or TIP, e.g. through a SIP revision. Congress authorized such a program for mitigation measure used to compensate
the General Conformity program in the for the increased emissions caused by
P. 40 CFR 93.164—Inter-Precursor
FAA reauthorization act signed in the action. First, the Federal agency
Offsets and Mitigation Measures
December 2003 (Vision 100—A Century must be able to quantify the reductions
EPA is proposing to add a new section of Aviation Reauthorization Act, Pub. L. using reliable techniques. In some cases,
to the regulations to allow the use of 108–176). That Act authorized FAA to however, it may not be possible to
inter-precursor offset and mitigation approve funding of programs to reduce quantify the reductions until after the
measures where they are allowed by the emissions at the airports provided the measure has been implemented. For
SIP. For example, some States and local State would issue emission reduction example, a facility may adopt a strategy
air districts have SIP-approved NSR credits that can be used for General calling for the purchase and use of
regulations that allow new or modified Conformity determinations and NSR alternate-fueled vehicles. Although the
stationary sources to offset the increase offsets. On September 30, 2004, EPA agency could calculate the difference in
in emissions of one criteria pollutant issued guidance on the Airport the emissions between the alternate-
precursor by reducing the emissions of Emission Reduction Credit (AERC) fueled vehicle and the standard vehicle,
another precursor of the same criteria program to implement the requirements it may not know the amount the
pollutant, provided there is an of the December 2003 Act (Guidance on vehicles will be used. In this case, the
environmental benefit to such an Airport Emission Reduction Credits for State or Tribe and Federal agency could
exchange. The existing General Early Measures Through Voluntary agree on an emission factor and
Conformity regulations do not Airport Low Emission Programs, U.S. determine the use at a later time. The
specifically allow or prohibit inter- EPA, Office of Air Quality Planning and reductions must be quantified before the
precursor offsets and mitigation Standards, September 2004). Other credit is used to support a conformity
measures. Therefore, EPA is proposing Federal agencies may benefit from the determination.
to allow such offsets or mitigation opportunity to reduce emissions prior to In proposed paragraph (c), EPA would
measures if they are allowed by a State when the reductions are needed to offset establish the requirements for the use of
or Tribe NSR or trading program emission increases covered by the the credits. If the strategy used to
approved in the SIP; provided they: General Conformity program. produce the credit is implemented at
1. Are technically justified; and To clarify EPA’s intent that this the same facility and in the same
2. have a demonstrated environmental program be allowed for other Federal nonattainment or maintenance area as
benefit. actions, EPA is proposing to add a new the Federal action the credits can be
The ratio for the offsets must be section, § 93.165, to the General used in determining if the action would
consistent with SIP or TIP requirements Conformity Regulations to define the cause emissions above the de minimis
and EPA guidance. requirements of this program. Under the levels. If the strategy is not implemented
The EPA recognizes that the program, Federal agencies or interested at the same facility but is in the same
evaluation of the inter-precursor offsets third parties (such as airport authorities) nonattainment or maintenance areas as
may in some cases be difficult and seeks could identify emission control the action, then the credits can be used
comments on how such offsets or measures and present the proposed as offset or mitigation measures for the
mitigation measures should be reduction to the State, Tribe or local air emissions caused by the action, but not
evaluated. The EPA expects to use these quality agency. If the measure met the to determine if the action emissions fall
comments in developing future criteria for an offset (quantifiable; below de minimis thresholds. In this
guidance documents. consistent with the applicable SIP context, ‘‘same facility’’ means a
Q. 40 CFR 93.165—Early Emission attainment and reasonable further contiguous area that a Federal agency
Reduction Credit Program progress demonstrations; surplus to the manages or exercises control over.
reductions required by and credited to Generally, all actions and operations
The EPA is proposing to add a new other applicable SIP provisions; within a fence line of a facility such as
section to the regulations to establish an enforceable at both the State and an airport and would be considered to
early emission reduction credit program Federal levels; and permanent within be at the ‘‘same facility’’. However,
for facilities subject to the General the timeframe specified by the program) military operations at a civilian airport
Conformity Regulations. The existing as well as all State, Tribe or local would not be considered to be at the
regulations require that the offsets and requirements, the State, Tribe or local ‘‘same facility’’. Therefore, an airport
mitigation measures be in place before agency can approve the measure as could install equipment to supply
the emissions increases caused by the eligible to produce emission reduction power and conditioned air to airplanes
Federal action occur. However, credits. If credits are issued, then a parked at a gate to reduce the use of
emission reduction programs Federal agency can use the credits to diesel generators and auxiliary power
undertaken before the conformity reduce the total of direct and indirect units at an airport terminal. Those
determination is made could be emissions from a proposed action. At reductions could be considered to be
considered as part of the baseline the time the credits are used the State, implemented as part of an airport
emissions and not available as offsets or Tribe or local agency must certify that expansion project to improve the
mitigation measures. To expedite the the reductions still meet the criteria terminal and thus would be at the
project level conformity process, listed above. The credits must be used ‘‘same facility.’’
Federal agencies and project sponsors in the same calendar year in which they Since the general conformity program
could benefit from the ability to reduce are generated. is based on annual emissions, EPA is
emissions in advance of the time that In proposed paragraph (a), EPA would proposing to require that the credits be
the reductions are needed for a establish the ability for the State or used in the same year as they are
conformity evaluation. Although the Tribe and Federal agency to create and generated. Such a restriction would
existing regulations do not address the use the emission reduction credits. ensure consistency with the other parts
concept, The Port of Seattle and the In proposed paragraph (b), EPA of the general conformity program. This
Puget Sound Clean Air Agency identifies the criteria for creating the does not mean that an emission
developed a program to implement early credits. The criteria are the same reduction strategy cannot produce an
annual stream of credits, but does mean maintaining information, and disclosing Federal agencies to assess the effects of
that the reduction credits cannot be and providing information; adjust the their regulatory actions on State, local,
carried over to another year. existing ways to comply with any and Tribal governments and the private
previously applicable instructions and sector. Under section 202 of the UMRA,
VI. Statutory and Executive Order
requirements; train personnel to be able EPA generally must prepare a written
Reviews to respond to a collection of statement, including a cost-benefit
A. Executive Order 12866: Regulatory information; search data sources; analysis, for proposed and final
Planning and Review complete and review the collection of regulations with Federal mandates that
information; and transmit or otherwise may result in expenditures to State,
Under Executive Order 12866 (58 FR
disclose the information. local, and Tribal governments, in the
51735, October 4, 1993), this action is a
An agency may not conduct or
significant regulatory action because it aggregate, or to the private sector, of
sponsor, and a person is not required to
may interfere with actions taken or $100 million or more in any 1 year.
respond to a collection of information
planned by other Federal agencies. unless it displays a currently valid OMB Before promulgating an EPA regulation
Accordingly, EPA submitted this action control number. The OMB control for which a written statement is needed,
to the Office of Management and Budget numbers for EPA’s regulations in 40 section 205 of the UMRA generally
(OMB) for review under EO 12866 and CFR are listed in 40 CFR part 9. requires EPA to identify and consider a
any changes made in response to OMB reasonable number of regulatory
recommendations have been C. Regulatory Flexibility Act alternatives and to adopt the least
documented in the docket for this The Regulatory Flexibility Act (RFA) costly, most cost-effective or least
action. generally requires an Agency to prepare burdensome alternative that achieves
B. Paperwork Reduction Act a regulatory flexibility analysis of any the objectives of the regulation. The
regulation subject to notice and provisions of section 205 do not apply
This action does not directly impose comment rulemaking requirements when they are inconsistent with
an information collection burden under under the Administrative Procedures applicable law. Moreover, section 205
the provisions of the Paperwork Act or any other statute unless the allows EPA to adopt an alternative other
Reduction Act, 44 U.S.C. 3501 et seq., Agency certifies the rule will not have than the least costly, most cost-effective
on non-Federal entities. The General a significant economic impact on a or least burdensome alternative if the
Conformity Regulations require Federal substantial number of small entities.
agencies to determine that their actions Administrator publishes with the final
Small entities include small businesses, regulations an explanation why that
conform to the SIPs or TIPs. However, small organizations, and small
depending upon how Federal agencies alternative was not adopted. Before EPA
governmental jurisdictions. establishes any regulatory requirements
implement the regulations, non-Federal For purposes of assessing the impacts
entities seeking funding or approval that may significantly or uniquely affect
of these proposed regulation revisions
from those Federal agencies may be small governments, including Tribal
on small entities, small entity is defined
required to submit information to that governments, it must have developed
as: (1) A small business that is a small
agency. under section 203 of the UMRA a small
industrial entity as defined in the U.S.
Although the present proposed government agency plan. The plan must
Small Business Administration (SBA)
revisions to the regulations do not provide for notifying potentially
size standards. (See 13 CFR 121.); (2) A
establish any specific new information governmental jurisdiction that is a affected small governments, enabling
collection burden, it would establish government of a city, county, town, officials of affected small governments
alternative voluntary approaches that school district or special district with a to have meaningful and timely input in
may result in a different burden. For population of less than 50,000; and (3) the development of EPA regulatory
example, the proposed facility-wide A small organization that is any not-for- proposals with significant Federal
emission budget would allow Federal profit enterprise which is independently intergovernmental mandates, and
agencies or operators of facilities subject owned and operated and is not informing, educating, and advising
to the General Conformity Requirements dominant in its field. small governments on compliance with
such as commercial service airports to After considering the economic the regulatory requirements.
work with the State, Tribe or local air impact of these proposed revisions to The EPA has determined that these
quality agency to develop an emission the regulations on small entities, I revisions to the regulations do not
budget for the facility. The State, Tribe certify that this action will not have a contain a Federal mandate that may
or local agencies and Federal agencies significant economic impact on a result in expenditures of $100 million or
or third party facility operators would substantial number of small entities. more for State, local, and Tribal
incur the burden of developing the This proposal will not impose any governments, in the aggregate, or the
budget. However, those entities would requirements on small entities. The private sector in any 1 year. Thus, these
be relieved of the burden of conducting General Conformity Regulations require proposed regulation revisions are not
and reviewing some, if not all, the Federal agencies to conform to the subject to the requirements of section
general conformity determinations for appropriate State, Tribal or Federal 202 and 205 of the UMRA.
the facility. implementation plan for attaining clean
Burden means the total time, effort, or air. We continue to be interested in the The EPA has determined that these
financial resources expended by persons potential impacts of the regulations on proposed regulation revisions contain
to generate, maintain, retain, or disclose small entities and welcome comments no regulatory requirements that may
or provide information to or for a on issues related to related to such significantly or uniquely affect small
Federal agency. This includes the time impacts. governments, including Tribal
needed to review instructions; develop, governments because these regulations
acquire, install, and utilize technology D. Unfunded Mandates Reform Act affect Federal agencies only.
and systems for the purposes of Title II of the Unfunded Mandates Nonetheless, EPA carried out
collecting, validating, and verifying Reform Act of 1995 (UMRA), Public consultations with governmental
information, processing and Law 104–4, establishes requirements for entities affected by this regulation.
E. Executive Order 13132—Federalism since no Tribe has to demonstrate that assessed results of early life
Executive Order 13132, entitled conformity for their actions. exposure to criteria air pollutant
Federalism (64 FR 43255, August 10, Furthermore, except for allowing the emissions regulated by this rule.
1999), requires EPA to develop an Tribes to comment on draft conformity
H. Executive Order 13211: Actions That
accountable process to ensure determinations, these proposed
Significantly Affect Energy Supply,
meaningful and timely input by State regulation revisions do not affect the
Distribution, or Use
and local officials in the development of relationship or distribution of power
and responsibilities between the Federal These revisions to the regulations are
regulatory policies that have Federalism not subject to Executive Order 13211,
government and Indian Tribes. The
implications. Policies that have Actions That Significantly Affect Energy
CAA and the Tribal Air Rule establish
Federalism implications are defined in Supply, Distribution, or Use, (66 FR
the relationship of the Federal
the Executive Order to include 28355, May 22, 2001) because they are
government and Tribes in developing
regulations that have substantial direct not likely to have a significant adverse
plans to attain the NAAQS, and these
effects on the States, on the relationship effect on the supply, distribution, or use
revisions to the regulations do nothing
between the national government and of energy. Further, we have concluded
to modify that relationship. Because
the States, or on the distribution of that this rule is not likely to have any
these proposed regulation revisions do
power and responsibilities among the adverse energy effects.
not have Tribal implications, Executive
various levels of government. Order 13175 does not apply.
This action does not have Federalism I. National Technology Transfer
Although Executive Order 13175 does
implications. It will not have substantial Advancement Act
not apply to these regulations, EPA did
direct effects on the States, on the consult with some Tribal officials in Section 12(d) of the National
relationship between the national developing these proposed regulations Technology Transfer Advancement Act
government and the States, or on the revisions and encouraged Tribal input at of 1995 (NTTAA), Public Law 104–113,
distribution of power and an early stage. The EPA specifically section 12(d) (15 U.S.C. 272 note)
responsibilities among the various solicits additional comment on the directs EPA to use voluntary consensus
levels of government, as specified in proposed revisions to the regulations standards (VCS) in its regulatory
Executive Order 13132. Previously, EPA from Tribal officials. activities unless to do so would be
determined the costs to States to inconsistent with applicable law or
implement the General Conformity G. Executive Order 13045: Protection of otherwise impractical. The VCS are
Regulations to be less than $100,000 per Children From Environmental Health technical standards (e.g., materials
year. Thus, Executive Order 13132 does and Safety Risks specifications, test methods, sampling
not apply to these proposed regulation Executive Order 13045: Protection of procedures, and business practices) that
revisions. Children from Environmental Health are developed or adopted by VCS
Although section 6 of Executive Order and Safety Risks (62 FR 19885, April 23, bodies. The NTTAA directs EPA to
13132 does not apply to these proposed 1997) applies to any rule that (1) is provide Congress, through OMB,
regulation revisions, EPA held meetings determined to be economically explanations when the Agency decides
with the Federal agencies and significant as defined under Executive not to use available and applicable VCS.
organizations that prepare technical Order 12866, and (2) concerns an These proposed revisions to the
support for Federal agencies environmental health or safety risk that regulations do not involve technical
determinations at which it described the EPA has reason to believe may have standards. Therefore, EPA is not
approaches it was considering and disproportionate effect on children. If considering the use of any VCS. EPA
provided an opportunity for States, the regulatory action meets both criteria, welcomes comments on this aspect of
Federal agencies and other stakeholders the Agency must evaluate the the proposed rulemaking and,
to comment on the options being environmental health or safety effects of specifically, invites the public to
considered. the planned rule on children, and identify potentially-applicable
In spirit of Executive Order 13121 and explain why the planned regulation is voluntary consensus standards and to
consistent with EPA policy to promote preferable to other potentially effective explain why such standards should be
communications between EPA and State and reasonably feasible alternatives used in this regulation.
and local governments, EPA is soliciting considered by the Agency.
comments on this proposal from State These proposed revisions to the J. Executive Order 12898: Federal
and local officials. regulations are not subject to Executive Actions To Address Environmental
Order 13045 because they are not Justice in Minority Populations and
F. Executive Order 13175—Consultation Low-Income Populations
economically significant as defined in
and Coordination With Indian Tribal
Executive Order 12866 and because EPA Executive Order (EO) 12898 (59 FR
Governments
does not have reason to believe the 7629 (Feb. 16, 1994)) establishes federal
Executive Order 13175, entitled environmental health or safety risk executive policy on environmental
Consultation and Coordination with addressed by the General Conformity justice. Its main provision directs
Indian Tribal Governments (65 FR Regulations present a disproportionate federal agencies, to the greatest extent
67249, November 9, 2000), requires EPA risk to children. The General practicable and permitted by law, to
to develop an accountable process to Conformity Regulations ensure that make environmental justice part of their
ensure meaningful and timely input by Federal agencies comply with the SIP, mission by identifying and addressing,
Tribal officials in the development of TIP or FIP for attaining and maintaining as appropriate, disproportionately high
regulatory policies that have Tribal the NAAQS. The NAAQS are and adverse human health or
implications. promulgated to protect the health and environmental effects of their programs,
These proposed regulation revisions welfare of sensitive populations, policies, and activities on minority
do not have Tribal implications as including children. populations and low-income
specified in Executive Order 13175. The public is invited to submit or populations in the United States.
They do not have a substantial direct identify peer-reviewed studies and data, EPA has determined that this
effect on one or more Indian Tribes, of which the Agency may not be aware, proposed rule will not have
disproportionately high and adverse § 51.851 State implementation plan (SIP) remain enforceable until EPA approves
human health or environmental effects or Tribal implementation plan (TIP) revision. the revision to the SIP or TIP to
on minority or low-income populations (a) A State or eligible Tribe (a specifically remove them.
because it does not affect the level of Federally recognized Tribal government
protection provided to human health or determined to be eligible to submit a PART 93—DETERMINING
the environment. The proposed TIP under 40 CFR 49.6) may submit to CONFORMITY OF FEDERAL ACTIONS
revisions to the regulations would, if the Environmental Protection Agency TO STATE OR FEDERAL
promulgated, revise procedures for (EPA) a revision to its applicable IMPLEMENTATION PLANS
other Federal agencies to follow and implementation plan which contains
4. The authority citation for part 93
does not relax the control measures on criteria and procedures for assessing the
continues to read as follows:
emission sources. As such, they do not conformity of Federal actions to the
affect the health or safety of minority or applicable implementation plan, Authority: 42 U.S.C. 7401–7671q.
low income populations. The EPA consistent with this section and 40 CFR
part 93, subpart B. Subpart B—[Amended]
encourages other agencies to carefully
consider and address environmental (b) Until EPA approves the conformity 5. Section 93.150 is amended by
justice in their implementation of their implementation plan revision permitted removing and reserving paragraph (c)
evaluations and conformity by this section, Federal agencies shall and by adding paragraph (e) to read as
determinations. use the provisions of 40 CFR part 93, follows:
subpart B in addition, to any existing
VII. Statutory Authority applicable State or Tribal requirements, § 93.150 Prohibition.
Clean Air Act Section 176(c) (42 U.S.C. to demonstrate conformity with the * * * * *
7506) applicable SIP or TIP as required by (e) If an action would result in
section 176(c) of the CAA (42 U.S.C. emissions originating in more than one
List of Subjects 7506). nonattainment or maintenance area, the
40 CFR Part 51 (c) Following EPA approval of the conformity must be evaluated for each
State or Tribal conformity provisions (or area separately.
Environmental protection, a portion thereof) in a revision to the 6. Section 93.151 is revised to read as
Administrative practice and procedures, applicable SIP, conformity follows:
Air pollution control, Carbon monoxide, determinations shall be governed by the
Intergovernmental relations, Lead, approved (or approved portion of) State § 93.151 State implementation plan (SIP)
Nitrogen dioxide, Ozone, Particulate criteria and procedures. The Federal revision.
matter, Reporting and recordkeeping conformity regulations contained in 40 The provisions and requirements of
requirements, Sulfur dioxide, Volatile CFR part 93, subpart B would apply this subpart to demonstrate conformity
organic compounds. only for the portion, if any, of the State’s required under section 176(c) of the
or Tribe’s conformity provisions that is Clean Air Act (CAA) apply to all Federal
40 CFR Part 93 actions in designated nonattainment
not approved by EPA.
Environmental protection, (d) The State or Tribal conformity and maintenance areas where EPA has
Administrative practice and procedures, implementation plan criteria and not approved the SIP required under 40
Air pollution control, Carbon monoxide, procedures cannot be any less stringent CFR 51.851. When EPA approves a
Intergovernmental relations, Lead, than the requirements in 40 CFR part State’s conformity provisions (or a
Nitrogen dioxide, Ozone, Particulate 93, subpart B. portion thereof) in a revision to an
matter, Reporting and recordkeeping (e) A State’s or Tribe’s conformity applicable implementation plan, a
requirements, Sulfur dioxide, Volatile provisions may contain criteria and conformity evaluation is governed by
organic compounds. procedures more stringent than the the approved (or approved portion of
requirements described in this subpart the) State criteria and procedures. The
Dated: December 20, 2007. and part 93, subpart B, only if the Federal conformity regulations
Stephen L. Johnson, State’s or Tribe’s conformity provisions contained in this subpart apply only for
Administrator. apply equally to non-Federal as well as the portions, if any, of the State’s
For the reasons stated in the Federal entities. conformity provisions that are not
preamble, title 40, chapter I of the Code (f) In its SIP or TIP, the State or Tribe approved by EPA. In addition, any
of Federal Regulations is proposed to be may identify a list of Federal actions or previously applicable implementation
amended as follows: type of emissions that it presumes will plan conformity requirements remain
conform. The State or Tribe may place enforceable until the EPA approves the
PART 51—REQUIREMENTS FOR whatever limitations on that list that it revision to the applicable SIP to
PREPARATION, ADOPTION, AND deems necessary. The State or Tribe specifically include the revised
SUBMITTAL OF IMPLEMENTATION must demonstrate that the action will requirements or remove requirements.
PLANS not interfere with attainment or 7. Section 93.152 is amended as
maintenance of the standard, meeting follows:
1. The authority citation for part 51 the reasonable further progress a. Add the definition for
continues to read as follows: milestones or other requirements of the ‘‘Applicability analysis.’’
Authority: 23 U.S.C. 101; 42 U.S.C. 7401– Clean Air Act. For example, the State b. Revise the definition of
7671q. may identify the emissions from a ‘‘Applicable implementation plan or
certain type and size of construction applicable SIP.’’

Subpart W—[Amended] activities that it presumes will conform. c. Revise the definition for ‘‘Areawide
Federal agencies can use the list to air quality modeling analysis.’’
2. Remove and reserve § 51.850 and determine their ‘‘presumed to conform’’ d. Add the following definitions in
§§ 51.852 through 51.860. emissions. alphabetical order: ‘‘Confidential
3. Section 51.851 is revised to read as (g) Any previously applicable SIP or business information,’’ ‘‘Conformity
follows: TIP requirements relating to conformity determinations,’’ ‘‘Conformity
evaluations,’’ ‘‘Continuing program accordance with its applicable occur at a different time or place as the
responsibility,’’ and ‘‘Continuous regulations, to be a trade secret—or action;
program to implement.’’ commercial or financial information (2) That are reasonably foreseeable;
e. Revise the definition of ‘‘Direct obtained from a person and privileged (3) That the agency can practically
emissions.’’ or confidential; it is exempt from control; and
f. Add a new definition for ‘‘Emission required disclosure under the Freedom (4) For which the agency has
inventory.’’ of Information Act (5 U.S.C.552(b)(4)). continuing program responsibility.
g. Remove the definition for Conformity determination is the * * * * *
‘‘Emissions that a Federal agency has a evaluation made after an applicability Local air quality modeling analysis
continuing program responsibility for.’’ analysis is completed that a Federal means an assessment of localized
h. Revise the definition of ‘‘EPA.’’ action conforms to the applicable impacts on a scale smaller than the
i. Revise the definition of ‘‘Indirect implementation plan and meets the entire nonattainment or maintenance
Emissions.’’ requirements of this subpart. area, including, for example, congested
j. Revise the definition of ‘‘Local air Conformity evaluation is the entire roadways on a Federal facility, which
quality modeling analysis.’’ process from the applicability analysis uses an air quality dispersion model,
k. Revise the definitions for through the conformity determination e.g., Industrial Source Complex Model
‘‘Maintenance area’’ and ‘‘Metropolitan demonstrating that the Federal action or Emission and Dispersion Model
Planning Organization (MPO).’’ conforms to the requirements of this
l. Add in alphabetical order a System, to determine the effects of
subpart. emissions on air quality.
definition for ‘‘Mitigations measure.’’ Continuing program responsibility
m. Revise the definition for ‘‘National Maintenance area means an area that
means a Federal agency has was designated as nonattainment and
ambient air quality standards’’. responsibility for emissions caused by:
n. In the definitions for ‘‘Precursors of has been re-designated in 40 CFR part
(1) Actions it takes itself; or 81 to attainment, meeting the provisions
a criteria pollutant’’ revise paragraphs (2) Actions of non-Federal entities
(3)(i), (3)(ii) and (3)(iii). of section 107(d)(3)(E) of the Act and
that the Federal agency, in exercising its
o. Revise the definition for has a maintenance plan approved under
normal programs and authorities,
‘‘Reasonably foreseeable emissions.’’ section 175A of the Act.
approves, funds, licenses or permits;
p. Remove the definition for provided the agency can impose * * * * *
‘‘Regionally significant action.’’ conditions on any portion of the action Metropolitan Planning Organization
q. Add the following definitions: that could affect the emissions. (MPO) means the policy board of an
‘‘Restricted information.’’ Continuous program to implement organization created as a result of the
r. Add in alphabetical order the means that the Federal agency has designation process in 23 U.S.C. 134(d).
definitions for ‘‘Take or start the Federal started the action identified in the plan * * * * *
action’’ and ‘‘Tribal implementation and does not stop the actions for more Mitigation measure means any
plan (TIP).’’ than an 18-month period, unless it can method of reducing emissions of the
The additions and revisions read as demonstrate that such a stoppage was pollutant or its precursor taken at the
follows: included in the original plan. location of the Federal action and used
§ 93.152 Definitions. * * * * * to reduce the impact of the emissions of
Direct emissions means those that pollutant caused by the action.
* * * * *
Applicability analysis is the process emissions of a criteria pollutant or its * * * * *
of determining if your Federal action precursors that are caused or initiated National ambient air quality
must be supported by a conformity by the Federal action and originate in a standards (NAAQS) are those standards
determination. nonattainment or maintenance area and established pursuant to section 109 of
Applicable implementation plan or occur at the same time and place as the the Act and include standards for
applicable SIP means the portion (or action and are reasonably foreseeable. carbon monoxide (CO), lead (Pb),
portions) of the SIP or most recent * * * * * nitrogen dioxide (NO2), ozone,
revision thereof, which has been Emission Inventory is a listing of particulate matter (PM–10 and PM2.5),
approved under section 110(k) of the information on the location, type of and sulfur dioxide (SO2).
Act, a Federal implementation plan source, type and quantity of pollutant * * * * *
promulgated under section 110(c) of the emitted as well as other parameters of Precursors of a criteria pollutant are:
Act, or a plan promulgated or approved the emissions. * * * * *
pursuant to section 301 (d) of the Act * * * * * (3) * * *
(Tribal implementation plan or TIP) and EPA means the U.S. Environmental (i) Sulfur dioxide (SO2) in all PM2.5
which implements the relevant Protection Agency. nonattainment and maintenance areas,
requirements of the Act. * * * * * (ii) Nitrogen oxides in all PM2.5
Areawide air quality modeling Indirect emissions means those nonattainment and maintenance areas
analysis means an assessment on a scale emissions of a criteria pollutant or its unless both the State and EPA
that includes the entire nonattainment precursors. For the purposes of this determine that it is not a significant
or maintenance area using an air quality definition, even if a federal licensing, precursor, and
dispersion model or photochemical grid rulemaking or other approving action is (iii) Volatile organic compounds
model to determine the effects of a required initial step for a subsequent (VOC) and ammonia (NH3) only in PM2.5
emissions on air quality, for example, an activity that causes emissions, such nonattainment or maintenance areas
assessment using EPA’s community initial steps do not mean that a federal where either the State or EPA
multilayer air quality (CMAQ) model. agency can practically control any determines that they are significant
* * * * * resulting emissions: precursors.
Confidential business information (1) That are caused or initiated by the Reasonably foreseeable emissions are
(CBI) is information that has been Federal action and originate in the same projected future direct and indirect
determined by a Federal agency, in nonattainment or maintenance area but emissions that are identified at the time
the conformity determination is made; maintenance area caused by a Federal Regional office(s), the affected State(s)
the location of such emissions is known action would equal or exceed any of the and/or air pollution control agencies,
and the emissions are quantifiable as rates in paragraphs (b)(1) or (2) of this and any Federal recognized Indian
described and documented by the section. Tribal government in the nonattainment
Federal agency based on its own (1) For purposes of paragraph (b) of or maintenance area. Those
information and after reviewing any this section, the following rates apply in organizations must be allowed 15 days
information presented to the Federal nonattainment areas (NAA’s): from the beginning of the extension
agency. period to comment on the draft
Tons/year determination, and
* * * * *
Restricted Information is information (ii) Within 30 days after making the
Ozone (VOC’s or NOX): determination, publish a notice of the
that is privileged or that is otherwise Serious NAA’s ................... 50
protected from disclosure pursuant to Severe NAA’s .................... 25
determination by placing a prominent
applicable statutes, Executive Orders, or Extreme NAA’s .................. 10 advertisement in a daily newspaper of
regulations. Such information includes, Other ozone NAA’s outside general circulation in the area affected
but is not limited to: Classified national an ozone transport re- by the action.
gion ................................ 100 (3) If additional actions are necessary
security information, protected critical
Other ozone NAA’s inside in response to an emergency or disaster
infrastructure information, sensitive an ozone transport re- under paragraph (d)(2) of this section
security information, and proprietary gion: beyond the specified time period in
business information. VOC ............................ 50 paragraph (e)(2) of this section, a
Take or start the Federal action means NOX ............................ 100 Federal agency can make a new written
the date that the Federal agency signs or Carbon monoxide: All NAA’s .... 100
determination as described in (e)(2) of
approves the permit, license, grant or SO2 or NO2: All NAA’s ............. 100
PM–10: this section for as many 6-month
contract or otherwise begins the Federal periods as needed, but in no case shall
Moderate NAA’s ................ 100
action that requires a conformity this exemption extend beyond 3 6-
Serious NAA’s ................... 70
evaluation under this subpart. PM2.5: month periods except where an agency:
* * * * * Direct emissions ................ 100 (i) provide information to EPA and
Tribal implementation plan (TIP) SO2 .................................... 100 the State stating that the conditions that
means a plan to implement the national NOX (unless determined gave rise to the emergency exemption
ambient air quality standards adopted not to be significant pre-
continue to exist and how such
cursors) .......................... 100
by a federally recognized Indian Tribal conditions effectively prevent the
VOC or ammonia (if deter-
government determined to be eligible mined to be significant agency from conducting a conformity
under 40 CFR 49.9 and the plan has precursors) ..................... 100 evaluation.
been approved by EPA. Pb: All NAA’s ............................ 25 (ii) [Reserved]
8. Section 93.153 is amended as (f) Notwithstanding other
follows: * * * * * requirements of this subpart, actions
a. By revising paragraph (a). (c) * * * specified by individual Federal agencies
b. By revising paragaraphs (b) (2) * * * that have met the criteria set forth in
introductory text and (b)(1). (xxii) Air traffic control activities and either paragraphs (g)(1) (g)(2) or (g)(3) of
c. By adding paragraph (c)(2)(xxii). adopting approach, departure and this section and the procedures set forth
d. By revising paragraphs (d)(1) and enroute procedures for aircraft in paragraph (h) of this section are
(d)(2). operations above 3,000 feet above presumed to conform, except as
e. By revising paragraph (e)(2). ground level. provided in paragraph (j) of this section.
f. By adding paragraph (e)(3). * * * * * Actions specified by individual Federal
g. By revising paragraph (f). (d) * * * agencies as presumed to conform may
h. By revising paragraph (g) (1) The portion of an action that not be used in combination with one
introductory text. includes major or minor new or another when the total direct and
i. By Adding paragraph (g)(3). modified stationary sources that require indirect emissions from the combination
j. By revising paragraphs (h) a permit under the new source review of actions would equal or exceed any of
introductory text, (h)(1), (h)(2), and (NSR) program (section 173 of the Act) the rates specified in paragraphs (b)(1)
(h)(4). or the prevention of significant or (2) of this section.
k. By revising paragraphs (i), (j), and deterioration program (title I, part C of (g) The Federal agency must meet the
(k). the Act). criteria for establishing activities that
(2) Actions in response to are presumed to conform by fulfilling
§ 93.153 Applicability. emergencies which are typically the requirements set forth in either
(a) Conformity determinations for commenced on the order of hours or paragraphs (g)(1), (g)(2), or (g)(3) of this
Federal actions related to transportation days after the emergency and, if section:
plans, programs and projects developed, applicable, which meet the * * * * *
funded or approved under title 23 requirements of paragraph (e) of this (3) The Federal agency must clearly
U.S.C. or 49 U.S.C. Chapter 53 must section. demonstrate that the emissions from the
meet the procedures and criteria of 40 * * * * * type or category of actions and the
CFR part 51, subpart T, in lieu of the (e) * * * amount of emissions from the action are
procedures set forth in this subpart. (2) For actions which are to be taken included in the applicable SIP and the
(b) For Federal actions not covered by after those actions covered by paragraph State or local air quality agencies
paragraph (a) of this section, a (e)(1) of this section, the Federal agency responsible for the SIP(s) provide
conformity determination is required for makes a new determination as provided written concurrence that the emissions
each criteria pollutant or precursor in paragraph (e)(1) of this section and: from the actions along with all other
where the total of direct and indirect (i) Provides a draft copy of the written expected emissions in the area will not
emissions in a nonattainment or determinations required to affected EPA exceed the emission budget in the SIP.
(h) In addition to meeting the criteria planned burn employs State approved §§ 93.154 through 93.160 and §§ 93.162
for establishing exemptions set forth in basic smoke management practices. through 93.164 must provide to the
paragraphs (g)(1) (g)(2) or (g)(3) of this (3) Emissions for actions that the State appropriate EPA Regional Office(s),
section, the following procedures must identifies in the EPA approved SIP as State and local air quality agencies, any
also be complied with to presume that presumed to conform. federally-recognized Indian Tribal
activities will conform: (j) Even though an action would government in the nonattainment or
(1) The Federal agency must identify otherwise be presumed to conform maintenance area, and, where
through publication in the Federal under paragraph (f) or (i) of this section, applicable, affected Federal land
Register its list of proposed activities an action shall not be presumed to managers, the agency designated under
that are presumed to conform and the conform and the requirements of section 174 of the Act and the MPO a
basis for the presumptions. The notice § 93.150, § 93.151, §§ 93.154 through 30-day notice which describes the
must clearly identify the type and size 93.160 and §§ 93.162 through 93.164 proposed action and the Federal
of the action that would be presumed to shall apply to the action if EPA or a agency’s draft conformity determination
conform and provide criteria for third party shows that the action would: on the action. If the action has multi-
determining if the type and size action (i) Cause or contribute to any new regional or national impacts (e.g., the
qualifies it for the presumption; violation of any standard in any area; action will cause emission increases in
(2) The Federal agency must notify (ii) Interfere with provisions in the excess of the de minimis levels
applicable SIP for maintenance of any identified in § 93.153(b) in two or more
the appropriate EPA Regional Office(s),
standard; of EPA’s Regions), the Federal agency,
State and local air quality agencies and,
(iii) Increase the frequency or severity as an alternative to sending it to EPA
where applicable, the agency designated
of any existing violation of any standard Regional Offices, can provide the notice
under section 174 of the Act and the
in any area; or to EPA’s Office of Air Quality Planning
MPO and provide at least 30 days for (iv) Delay timely attainment of any
the public to comment on the list of and Standards.
standard or any required interim (b) A Federal agency must notify the
proposed activities presumed to emissions reductions or other
conform. If the presumed to conform appropriate EPA Regional Office(s),
milestones in any area including, where State and local air quality agencies, any
action has regional or national applicable, emission levels specified in
application (e.g., the action will cause federally-recognized Indian Tribal
the applicable SIP for purposes of: government in the nonattainment or
emission increases in excess of the de (A) A demonstration of reasonable
minimis levels identified in maintenance area, and, where
further progress; applicable, affected Federal land
paragraph(b) of this section in more (B) A demonstration of attainment; or
than one of EPA’s Regions), the Federal managers, the agency designated under
(C) A maintenance plan.
agency, as an alternative to sending it to (k) The provisions of this subpart section 174 of the Clean Air Act and the
EPA Regional Offices, can send the draft shall apply in all nonattainment and MPO within 30 days after making a final
conformity determination to U.S. EPA, maintenance areas except conformity conformity determination under this
Office of Air Quality Planning and requirements for newly designated subpart.
Standards; (c) The draft and final conformity
nonattainment areas are not applicable
determination shall exclude any
* * * * * until 1 year after the effective date of the
restricted information or confidential
(4) The Federal agency must publish final nonattainment designation for each
business information. The disclosure of
the final list of such activities in the NAAQS and pollutant in accordance
restricted information and confidential
Federal Register. with section 176(c)(6) of the Act.
9. Section 93.154 is revised to read as business information shall be controlled
(i) Emissions from the following by the applicable laws, regulations,
actions are presumed to conform: follows:
security manuals, or executive orders
(1) Actions at installations with § 93.154 Federal agency conformity concerning the use, access, and release
facility-wide emission budgets meeting responsibility. of such materials. Subject to applicable
the requirements in § 93.161 provided Any department, agency, or procedures to protect restricted
that the State has included the emission instrumentality of the Federal information from public disclosure, any
budget in the EPA approved SIP and the government taking an action subject to information or materials excluded from
emissions from the action along with all this subpart must make its own the draft or final conformity
other emissions from the installation conformity determination consistent determination or supporting materials
will not exceed the facility-wide with the requirements of this subpart. In may be made available in a restricted
emission budget. making its conformity determination, a information annex to the determination
Alternative 1 for paragraph (i)(2): Federal agency must follow the for review by Federal and State
(2) Prescribed fires conducted in requirements in §§ 93.155 through representatives who have received
accordance with a State certified smoke 93.160 and §§ 93.162 through 93.165 appropriate clearances to review the
management program (SMP) which and must consider comments from any information.
meets the requirements of EPA’s Air interested parties. Where multiple 11. Section 93.156 is revised to read
Quality Policy on Wildland and Federal agencies have jurisdiction for as follows:
Prescribed Fires. various aspects of a project, a Federal
Alternative 2 for paragraph (i)(2): § 93.156 Public participation.
agency may choose to adopt the analysis
(2) Prescribed fires conducted in of another Federal agency or develop its (a) Upon request by any person
accordance with a State certified smoke own analysis in order to make its regarding a specific Federal action, a
management program (SMP) which conformity determination. Federal agency must make available,
meets the requirements of EPA’s Air 10. Section 93.155 is revised to read subject to the limitation in paragraph(e)
Quality Policy on Wildland and as follows: of this section, for review its draft
Prescribed Fires or, in the absence of a conformity determination under
State certified SMP, where the Federal § 93.155 Reporting requirements. § 93.154 with supporting materials
agency has obtained written assurance (a) A Federal agency making a which describe the analytical methods
from the State prior to the burn that the conformity determination under and conclusions relied upon in making
the applicability analysis and draft emissions above the levels specified in fully offset within the same
conformity determination. paragraph (d) of this section. If a nonattainment or maintenance area (or
(b) A Federal agency must make conformity determination is not nearby area of equal or higher
public its draft conformity required for the action at the time NEPA classification provided the emissions
determination under § 93.154 by placing analysis is completed, the date of the from that area contribute to the
a notice by prominent advertisement in finding of no significant impact (FONSI) violations, or have contributed to
a daily newspaper of general circulation for an Environmental Assessment, a violations in the past, in the area with
in the area affected by the action and by record of decision (ROD) for an the Federal action) through a revision to
providing 30 days for written public Environmental Impact Statement, or a the applicable SIP or a similarly
comment prior to taking any formal categorical exclusion determination can enforceable measure that effects
action on the draft determination. This be used as a substitute date for the emissions reductions so that there is no
comment period may be concurrent conformity determination date. net increase in emissions of that
with any other public involvement, (b) The conformity status of a Federal pollutant;
such as occurs in the National action automatically lapses 5 years from (3) For any directly-emitted criteria
Environmental Policy Act (NEPA) the date a final conformity pollutant, the total of direct and indirect
process. If the action has multi-regional determination is reported under emissions from the action meets the
or national impacts (e.g., the action will § 93.155, unless the Federal action has requirements:
cause emission increases in excess of been completed or a continuous * * * * *
the de minimis levels identified in program to implement the Federal (4) For CO or directly emitted PM—
§ 93.153(b) in two or more of EPA’s action has been commenced. * * * * *
Regions), the Federal agency, as an (c) Ongoing Federal activities at a (5) For ozone or nitrogen dioxide, and
alternative to publishing separate given site showing continuous progress for purposes of paragraphs (a)(3)(ii) and
notices, can publish a notice in the are not new actions and do not require (a)(4)(ii) of this section, each portion of
Federal Register. periodic re-determinations so long as the action or the action as a whole meets
(c) A Federal agency must document such activities are within the scope of any of the following requirements:
its response to all the comments the final conformity determination (i) Where EPA has approved a
received on its draft conformity reported under § 93.155 of the NEPA revision to the applicable
determination under § 93.154 and make analysis. implementation plan after the area was
the comments and responses available, (d) If the Federal agency determines designated as nonattainment and the
subject to the limitation in paragraph (e) through the applicability analysis that a State makes a determination as provided
of this section, upon request by any conformity determination was not in paragraph (a)(5)(i)(A) of this section
person regarding a specific Federal necessary because the emissions for the or where the State makes a commitment
action, within 30 days of the final action were below the limits in as provided in paragraph (a)(5)(i)(B) of
conformity determination. § 93.153(b) and changes to the action this section:
(d) A Federal agency must make would result in the total emissions from
public its final conformity * * * * *
the action being above the limits in (C) Where a Federal agency made a
determination under § 93.154 for a § 93.153(b), then the Federal agency conformity determination based on a
Federal action by placing a notice by must make a conformity determination. State commitment under paragraph
prominent advertisement in a daily 13. Section 93.158 is amended as (a)(5)(i)(B) of this section and the State
newspaper of general circulation in the follows: has submitted a SIP to EPA covering the
area affected by the action within 30 a. Revising paragraphs (a)(1), (a)(2), time period during which the emissions
days of the final conformity (a)(3) introductory text and (a)(4) will occur or is scheduled to submit
determination. If the action would have introductory text; such a SIP within 18 months of the
multi-regional or national impacts the b. Revising paragraph (a)(5) conformity determination, the State
Federal agency, as an alternative, can introductory text; commitment is automatically deemed a
publish the notice in the Federal c. Revising paragraphs (a)(5)(i)
call for a SIP revision by EPA under
Register. introductory text, and (a)(5)(i)(C), and
(e) The draft and final conformity section 110(k)(5) of the Act, effective on
d. Adding (a)(5)(i)(D).
determination shall exclude any the date of the Federal conformity
e. Revising paragraphs (a)(5)(iii),
restricted information or confidential determination and requiring response
(a)(5)(iv) introductory text;
business information. The disclosure of within 18 months or any shorter time
(a)(5)(iv)(A)(1 ), (a)(5)(iv)(A)(2) and
restricted information and confidential within which the State commits to
paragraph (a)(5)(iv)(B).
business information shall be controlled revise the applicable SIP;
§ 93.158 Criteria for determining (D) Where a Federal agency made a
by the applicable laws, regulations or
conformity of general Federal actions. conformity determination based on a
executive orders concerning the release
(a) * * * State commitment under paragraph
of such materials.
12. Section 93.157 is revised to read (1) For any criteria pollutant or (a)(5)(i)(B) of this section and the State
as follows: precursor, the total of direct and has not submitted a SIP covering the
indirect emissions from the action are time period of the emissions will occur
§ 93.157 Reevaluation of conformity. specifically identified and accounted for or is not scheduled to submit such a SIP
(a) Once a conformity evaluation is in the applicable SIP’s attainment or within 18 months of the conformity
completed by a Federal agency, that maintenance demonstration or determination, the State must, within 18
determination is not required to be re- reasonable further progress milestone or months, submit to EPA a revision to the
evaluated if the agency has: maintained in a facility-wide emission budget existing SIP committing to include the
a continuous program to implement the included in a SIP accordance with emissions in the future SIP revision.
action; the determination has not lapsed § 93.161 of this rule; * * * * *
as specified in paragraph (a) of this (2) For precursors of ozone, nitrogen (iii) The action (or portion thereof)
section; or any modification to the dioxide, or PM, the total of direct and fully offsets its emissions within the
action does not result in an increase in indirect emissions from the action are same nonattainment or maintenance
area (or nearby area of equal or higher by EPA as the most current version may that such commitments must be
classification provided the emissions be used unless EPA announces a longer fulfilled.
from that area contribute to the grace period in the Federal Register. (g) After a State revises its SIP to
violations, or have contributed to Conformity analyses for which the adopt its general conformity regulations
violation in the past, in the area with analysis was begun during the grace and EPA approves that SIP revision, any
the Federal action) through a revision to period or no more than 3 years before agreements, including mitigation
the applicable SIP or an equally the Federal Register notice of measures, necessary for a conformity
enforceable measure that effects availability of the latest emission model determination will be both State and
emissions reductions equal to or greater may continue to use the previous Federally enforceable. Enforceability
than the total of direct and indirect version of the model specified by EPA. through the applicable SIP will apply to
emissions from the action so that there (2) For non-motor vehicle sources, all persons who agree to mitigate direct
is no net increase in emissions of that including stationary and area source and indirect emissions associated with
pollutant; emissions, the latest emission factors a Federal action for a conformity
(iv) Where EPA has not approved a specified by EPA in the ‘‘Compilation of determination.
revision to the relevant SIP since the Air Pollutant Emission Factors’’ (AP–42, 16. Subpart B is further amended by
area was designated or reclassified, the http://www.epa.gov/ttn/chiefs/efpac) adding §§ 93.161 through 93.165 to read
total of direct and indirect emissions must be used for the conformity analysis as follows:
from the action for the future years unless more accurate emission data are § 93.161 Conformity evaluation for Federal
(described in § 93.159(d)) do not available, such as actual stack test data installations with facility-wide emission
increase emissions with respect to the from stationary sources which are part budgets.
baseline emissions: of the conformity analysis. (a) The State or local agency
(A) * * * (c) The air quality modeling analyses responsible for implementing and
(1 ) The most current calendar year required under this subpart must be enforcing the SIP can in cooperation
with a complete emission inventory based on the applicable air quality with Federal agencies or third parties
available before an area is designated models, data bases, and other authorized by the agency that operate
unless EPA sets another year, or; requirements specified in the most installations subject to Federal oversight
(2) The emission budget in the recent version of the ‘‘Guideline on Air (e.g., a military base or a commercial
applicable SIP; Quality Models.’’ (Appendix W to 40 service airport) develop and adopt a
* * * * * CFR part 51). facility-wide emission budget to be used
(B) The baseline emissions are the * * * * * for demonstrating conformity under
total of direct and indirect emissions (d) The analyses required under this § 93.158(a)(1). The facility-wide budget
calculated for the future years subpart must be based on the total of must meet the following criteria:
(described in § 93.159(d)) using the direct and indirect emissions from the (1) Be for a set time period;
historic activity levels (described in action and must reflect emission (2) Cover the pollutants or precursors
paragraph (a)(5)(iv)(A) of this section) scenarios that are expected to occur of the pollutants for which the area is
and appropriate emission factors for the under each of the following cases: designated nonattainment or
future years; or (1) The attainment year specified in maintenance;
* * * * * the SIP, or if the SIP does not specify (3) Include specific quantities allowed
14. Section 93.159 is amended by: an attainment year, the latest attainment to be emitted on an annual or seasonal
a. Revising paragraphs (b) year possible under the Act, or basis;
introductory text and (b)(1)(ii); (2) The last year for which emissions (4) The emissions from the facility
b. Revising paragraphs (b)(2) and (c) are projected in the maintenance plan; along with all other emissions in the
introductory text; and (3) The year during which the total of area will not exceed the emission
c. Removing footnotes 1 and 2, direct and indirect emissions from the budget for the area;
d. Revising paragraph (d). action is expected to be the greatest on (5) Include specific measures to
The revisions and additions read as an annual basis; and ensure compliance with the budget such
follows: (4) Any year for which the applicable as periodic reporting requirements or
SIP specifies an emissions budget. compliance demonstration when the
§ 93.159 Procedures for conformity Federal agency is taking an action that
15. Section 93.160 is amended as
determinations of general Federal actions. would otherwise require a conformity
follows:
* * * * * a. Revising paragraph (e); determination;
(b) The analyses required under this b. Revising paragraph (f); and (6) Be submitted to EPA as a SIP
subpart must be based on the latest and c. Revising paragraph (g). revision;
most accurate emission estimation (7) The SIP revision must be approved
techniques available as described below, § 93.160 Mitigation of air quality impacts. by EPA.
unless such techniques are * * * * * (b) The facility-wide budget
inappropriate. If such techniques are (e) When necessary because of developed and adopted in accordance
inappropriate, the Federal agency may changed circumstances, mitigation with paragraph (a) of this section can be
obtain written approval from the measures may be modified so long as revised by following the requirements in
appropriate EPA Regional Administrator the new mitigation measures continue paragraph (a) of this section.
for a modification or substitution, of to support the conformity (c) Total direct and indirect emissions
another technique on a case-by-case determination. Any proposed change in from Federal actions in conjunction
basis or, where appropriate, on a generic the mitigation measures is subject to the with all other emissions subject to
basis for a specific Federal agency reporting requirements of § 93.156 and general conformity from the facility that
program. the public participation requirements of do not exceed the facility budget
(1) * * * § 93.157. adopted pursuant to paragraph (a) of
(ii) A grace period of 3 months shall (f) Written commitments to mitigation this section are presumed to conform to
apply during which the motor vehicle measures must be obtained prior to a the SIP and do not require a conformity
emissions model previously specified positive conformity determination and analysis.
(d) If the total direct and indirect (i) Cause or contribute to a new implementation of the emission
emissions from the Federal actions in violation of any air quality standard, (ii) reduction strategy. In addition, private
conjunction with the other emissions Increase the frequency or severity of any citizens must also be able to initiate
subject to general conformity from the existing violation of any air quality action to ensure compliance with the
facility exceed the budget adopted standard, or control requirement.
pursuant to paragraph (a) of this section, (iii) Delay the timely attainment of (5) The emissions reductions must be
the action must be evaluated for any standard or any interim emissions permanent or the timeframe for the
conformity. A Federal agency can use reductions or other milestones in any reductions must be specified.
the compliance with the facility-wide area. (6) The Federal agency must
emissions budget as part of the (c) The approval by the State of an document the emissions reductions and
demonstration of conformity, i.e., the offset or mitigation measure with provide a copy of the document to the
agency would have to mitigate or offset emissions reductions in another year, State air quality agency and the EPA
the emissions that exceed the emission does not relieve the State of any regional office for review. The
budget. obligation to meet any SIP or Clean Air documentation must include a detailed
(e) If the SIP for the area includes a Act milestone or deadline. description of the strategy and a
category for construction emissions, the discussion of how it meets the
negotiated budget can exempt § 93.164 Inter-precursor mitigation
measures and offsets.
requirements of paragraphs (b)(1)
construction emissions from further through (5) of this section.
conformity analysis. Federal agencies must reduce the (c) Use of emission reduction credits.
same type pollutant as being increased The emission reduction credits created
§ 93.162 Emissions beyond the time by the Federal action except the State
period covered by the SIP. in accordance with paragraph (b) of this
may approve offsets or mitigation section can be used, subject to the
If a Federal action would result in measures of different precursors of the
total direct and indirect emissions following limitations, to reduce the
same criteria pollutant, if such trades emissions increase from a Federal action
which would be emitted beyond the are allowed by a State in a SIP approved
time period covered by the SIP, the at the facility for the conformity
new source review regulation, is evaluation.
Federal agency can: technically justified, and has a
(a) Demonstrate conformity with the (1) If the technique used to create the
demonstrated environmental benefit.
last emission budget in the SIP; or emission reduction is implemented at
(b) Request the State to adopt an § 93.165 Early emission reduction credit the same facility as the Federal action
emissions budget for the action for programs at Federal facilities and and could have occurred in conjunction
inclusion in the SIP. The State must installation subject to Federal oversight. with the Federal action, then the credits
submit a SIP revision to EPA within 18 (a) Federal facilities and installation can be used to reduce the total direct
months either including the emissions subject to Federal oversight can, with and indirect emissions used to
in the existing SIP or establishing an the approval of the State agency determine the applicability of the
enforceable commitment to include the responsible for the SIP in that area, regulation as required in § 93.153 and as
emissions in future SIP revisions based create an early emissions reductions offsets or mitigation measures required
on the latest planning assumptions at credit program. The Federal agency can by § 93.158.
the time of the SIP revision. No such create the emission reduction credits in (2) If the technique used to create the
commitment by a State shall restrict a accordance with the requirements in emission reduction is not implemented
State’s ability require RACT, RACM or paragraph (b) of this section and can at the same facility as the Federal action
any other control measures within the used them in accordance with or could not have occurred in
State’s authority to ensure timely paragraph (c) of this section. conjunction with the Federal action,
attainment of the NAAQS. (b) Creation of emission reduction then the credits cannot be used to
§ 93.163 Timing of offsets and mitigation credits. (1) Emissions reductions must reduce the total direct and indirect
measures. be quantifiable through the use of emissions used to determine the
(a) The emissions reductions from an standard emission factors or applicability of the regulation as
offset or mitigation measure used to measurement techniques. If non- required in § 93.153, but can be used to
demonstrate conformity must occur standard factors or techniques to offset or mitigate the emissions as
during the same calendar year as the quantify the emissions reductions are required by § 93.158.
emission increases from the action used, the Federal agency must receive (3) Emissions reductions credits must
except as provided in paragraph (b) of approval from the State agency be used in the same year in which they
this section. responsible for the implementation of are generated.
(b) The State may approve reductions the SIP and from EPA’s Regional Office. (4) Once the emission reduction
in other years provided: The emission reduction credits do not credits are used, they cannot be used as
(1) The reductions are greater than the have to be quantified before the credits for another conformity
emission increases by the following reduction strategy is implemented, but evaluation. However, unused credits
ratios: must be quantified before the credits are from a strategy used for one conformity
(i) Extreme nonattainment areas ... 1.5:1 used. evaluation can be used for another
(ii) Severe nonattainment areas .... 1.3:1 (2) The emission reduction methods conformity evaluation as long as the
(iii) Serious nonattainment areas 1.2:1 must be consistent with the applicable reduction credits are not double
(iv) Moderate nonattainment areas 1.15:1 SIP attainment and reasonable further counted. For example, emission
(v) All other areas .......................... 1.1:1 progress demonstrations. reduction credits from a control
(2) The time period for completing the (3) The emissions reductions can not measure could be used in one year as
emissions reductions must not exceed be required by or credited to other offset for construction emission
twice the period of the emissions. applicable SIP provisions. increases and in another year to mitigate
(3) The offset or mitigation measure (4) Both the State and Federal air operational emission increases.
with emissions reductions in another quality agencies must be able to take (5) Federal agencies must notify the
year will not: legal action to ensure continued State air quality agency and EPA
Regional Office when the emission

reduction credits are being used.
[FR Doc. E7–25241 Filed 1–7–08; 8:45 am]
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I. General Information notice will be posted at http:// Q. 40 CFR 93.165—Early Emission

environmental review process. 2. Obtaining a written statement from

Section 6011(g) requires EPA to revise additional authorities to condition

certain type and size of construction applicable SIP.’’

Regional Office when the emission

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