[Federal Register: April 5, 2010 (Volume 75, Number 64)]
[Rules and Regulations]
[Page 17253-17279]
[DOCID:fr05ap10-15]

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Part III

Environmental Protection Agency

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40 CFR Parts 51 and 93

Revisions to the General Conformity Regulations; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[EPA-HQ-OAR-2006-0669; FRL-9131-7]
RIN 2060-AH93

Revisions to the General Conformity Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

DATES: This action is effective on July 6, 2010.

ADDRESSES: EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2006-0669. All documents in the docket are
listed in the http://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy. Publicly available docket materials are available
either electronically in http://www.regulations.gov or in hard copy at
the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution
Avenue, Northwest, Washington, DC. The Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the EPA Docket Center is (202)
566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Coda, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency, Mail Code
C539-02, Research Triangle Park, NC 27711, phone number<PHONE_NUMBER>
or by e-mail at<EMAIL_ADDRESS>or Mr. H. Lynn Dail, Office of Air
Quality Planning and Standards, U.S. Environmental Protection Agency,
Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919)
541-2363 or by e-mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

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

B. How is this preamble organized?

    The information presented in this preamble is organized as follows:

Outline

I. General Information
    A. Does this action apply to me?
    B. How is this preamble organized?
    C. When did EPA propose these revisions to the General
Conformity Regulations?
    D. Where can I obtain additional information?
II. Background
    A. What is General Conformity and how does it affect air
quality?
    B. Why is EPA revising these regulations at this time?
III. How are the existing regulations implemented?
    A. Applicability Analysis
    B. Conformity Determination
    C. Review Process
IV. Comments Submitted on the Proposed Rule
V. Summary of the Final Revisions and Clarifications of the General
Conformity Regulations
    A. Overview of Revisions to the General Conformity Regulations
    B. What Innovative and Flexible Approaches Are Being Finalized?
    C. What Burden Reduction Measures Are Being Finalized?
    D. What Revisions Provide Tools and Guidance for Transitioning
to New or Revised NAAQS?
    E. What Revisions Are Being Finalized at the Request of Other
Agencies?
    F. What Are Some of the Clarifications to the Existing
Regulations That Are Being Finalized?
VI. Detailed Discussion of the Final Revisions to and Clarifications
of the General Conformity Regulations
    A. 40 CFR Part 51, Subpart W--Determining Conformity of General
Federal Actions to State or Federal Implementation Plans
    B. 40 CFR 93.150--Prohibition
    C. 40 CFR 93.151--SIP Revision
    D. 40 CFR 93.152--Definitions
    E. 40 CFR 93.153--Applicability Analysis
    F. 40 CFR 93.154--Federal Agencies Responsibility for a
Conformity Determination
    G. 40 CFR 93.155--Reporting Requirements
    H. 40 CFR 93.156--Public Participation
    I. 40 CFR 93.157--Re-Evaluation of Conformity
    J. 40 CFR 93.158--Criteria for Determining Conformity for
General Federal Actions
    K. 40 CFR 93.159--Procedures for Conformity Determinations for
General Federal Actions
    L. 40 CFR 93.160--Mitigation of Air Quality Impacts
    M. 40 CFR 93.161--Conformity Evaluations for Installations With
Facility-Wide Emission Budget
    N. 40 CFR 93.162--Emissions Beyond the Time Period Covered by
the Applicable SIP or Tribal Implementation Plan (TIP)
    O. 40 CFR 93.163--Timing of Offsets and Mitigation Measures
    P. 40 CFR 93.164--Inter-Precursor Offsets and Mitigation
Measures
    Q. 40 CFR 93.165--Early Emission Reduction Credit Program
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act
    L. Judicial Review
VIII. Statutory Authority

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

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

D. Where can I obtain additional information?

    In addition to being available in the docket, an electronic copy of
this final rule is also available on the worldwide web. Following
signature by the EPA Administrator, a copy of this notice will be
posted at http://www.epa.gov/oar/genconform/regs.htm.

II. Background

A. What is General Conformity and how does it affect air quality?

    The intent of the General Conformity requirement is to prevent the
air quality impacts of Federal actions from causing or contributing to
a violation of the NAAQS or interfering with the purpose of a SIP, TIP,
or FIP.
    In the CAA, Congress recognized that actions taken by Federal
agencies could affect State, Tribal, and local agencies' ability to
attain and maintain the NAAQS. In section 176(c) (42 U.S.C. 7506) of
the CAA, Congress established requirements to ensure Federal agencies
proposed actions conform to the applicable SIP, TIP or FIP for
attaining and maintaining the NAAQS. That section requires Federal
entities to find that the emissions from the Federal action will
conform to the purposes of the SIP, TIP or FIP or not otherwise
interfere with the State's or Tribe's ability to attain and maintain
the NAAQS.
    The CAA Amendments of 1990 clarified and strengthened the
provisions in section 176(c). Because certain provisions of section
176(c) apply only to highway and mass transit funding and approval
actions, EPA published two sets of regulations to implement section
176(c). The Transportation Conformity Regulations, first published on
November 24, 1993 (58 FR 62188) and revised on July 1, 2004 at 69 FR
40004, May 6, 2005 at 70 FR 24280 and March 10, 2006 at 71 FR 12468,
and January 24, 2008 at 73 FR 4420, address Federal actions related to
highway and mass transit funding and approval actions. The General
Conformity Regulations, published on November 30, 1993 (58 FR 63214),
cover all other Federal actions.

B. Why is EPA revising these regulations at this time?

    On July 17, 2006 at 71 FR 40420, EPA revised the General Conformity
Regulations to include de minimis emission levels for particulate
matter with an aerodynamic diameter equal to or less than 2.5 microns
(PM2.5) and its precursors. Otherwise, EPA has not revised
the General Conformity Regulations since they were promulgated in 1993.
Since that time, EPA and other Federal agencies have gained experience
with the implementation of the existing regulations and have identified
several issues with their implementation. To address these issues, EPA
initiated a process to review, revise and streamline the regulations.
In addition, EPA is in the process of developing regulations to
implement the revised ozone standard and regulations to implement the
new particulate matter standard. In the near future, State and local
air quality agencies will be required to develop revised SIPs to attain
these new standards. Knowledge of the revised General Conformity
Regulations will be helpful to the State, Tribal, and local agencies in
the SIP development process as well as the Federal agencies in
commenting on the proposed SIP revisions. This rule revision will also
facilitate Federal agency compliance with conforming its activities to
the SIPs and thereby preventing violations of the NAAQS.

III. How are the existing regulations implemented?

    Federal agencies and other parties involved in the conformity
process have found that in implementing the existing General Conformity
Regulations their process falls into three phases: (A) Applicability
analysis, (B) Conformity determination, and (C) Review process. Besides
ensuring that the Federal actions are in conformance with the SIP, the
regulations encourage consultation between the Federal agency and the
State or local air pollution control agencies before and during the
environmental review process.
    The existing regulations do not specifically identify the roles of
Indian Tribes in the General Conformity process or the connection
between the regulations and TIPs. In the revised regulations, EPA has
specifically identified tribal agencies as stakeholders in the
conformity process such as requiring specific notification for any
federally recognized Tribes in the nonattainment or maintenance area
where the action is occurring. In addition, the revised regulations
also clarify that Federal actions must conform to any applicable TIP.

A. Applicability Analysis

    The National Highway System Designation Act of 1995 (Pub. L. 104-
59) added section 176(c)(5) to the CAA to limit applicability of the
conformity programs only to areas designated as nonattainment under
section 107 of the CAA and maintenance areas established under section
175A of the CAA. Therefore, only actions which cause emissions in
designated nonattainment and maintenance areas are subject to the
regulations. In addition, the regulations recognize that the vast
majority of Federal actions do not result in a significant increase in
emissions and, therefore, include a number of exemptions such as de
minimis emission levels based on the type and severity of the
nonattainment problem.
    In the applicability analysis phase, the Federal agency determines:
    1. Whether the action will occur in a nonattainment or maintenance
area;
    2. Whether one or more of the specific exemptions apply to the
action;
    3. Whether the Federal agency has included the action on its list
of ``presumed to conform'' actions;
    4. Whether the total direct and indirect emissions are below or
above the de minimis levels; and/or
    5. Where the facility has an emission budget approved by the State
or Tribe as part of the SIP or TIP, the Federal agency determines if
the emissions from the proposed action are within the budget.
    If the action will cause emissions above the de miminis in any
nonattainment or maintenance area and the action is not otherwise
exempt, ``presumed to conform,'' or included in the existing emissions
budget of the SIP or TIP, the agency must conduct a conformity
determination before it takes the action.

B. Conformity Determination

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

    1. Demonstrating that the total direct and indirect emissions are
specifically identified and accounted for in the applicable SIP,
    2. Obtaining a written statement from the State, Tribe or local
agency responsible for the SIP or TIP documenting that the total direct
and indirect emissions from the action along with all other emissions
in the area will not exceed the SIP emission budget,
    3. Obtaining a written commitment from the State or Tribe to revise
the SIP or TIP to include the emissions from the action,
    4. Obtaining a statement from the metropolitan planning
organization (MPO) for the area documenting that any on-road motor
vehicle emissions are included in the current regional emission
analysis for the area's transportation plan or transportation
improvement program,
    5. Fully offsetting the total direct and indirect emissions by
reducing emissions of the same pollutant or precursor in the same
nonattainment or maintenance area, or
    6. Conducting air quality modeling that demonstrates that the
emissions will not cause or contribute to new violations of the
standards, or increase the frequency or severity of any existing
violations of the standards. Air quality modeling cannot be used to
demonstrate conformity for emissions of ozone precursors or nitrogen
dioxide (NO2). As stated in EPA's proposal of the 1993
regulations (58 FR 13845), due to the complex interaction of the ozone
precursors, the regional nature of the ozone and NO2
problems, and limitations of current air quality models, it is not
generally appropriate to use an air quality model to determine the
impact on ozone or NO2 concentrations from a single emission
source or a single Federal action.

C. Review Process

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

IV. Comments Submitted on the Proposed Rule

    The proposed rule on the ``Revisions to the General Conformity
Regulations'' was issued on January 8, 2008 (73 FR 1402). The EPA
received 65 letters from State and local governments, Federal agencies,
environmental groups, and private citizens commenting on the proposed
regulations. Some of the comments are discussed in section VI of this
notice as they were relevant to the detailed discussion of revisions.
The EPA has included a response to comments document which addresses
all of the timely comments received on the proposed rule in the docket
of this rulemaking action (See Docket No. EPA-HQ-OAR-2006-0669).

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

A. Overview of Revisions to the General Conformity Regulations

    In accordance with the requirements of section 176(c)(4)(C) of the
CAA, when EPA promulgated General Conformity Regulations in 1993 in 40
CFR 93 subpart B (sections 150 to 160), it also promulgated regulations
at 40 CFR part 51, subpart W (sections 850-860) which required States
to adopt and submit SIPs for General Conformity. In August 2005,
Congress passed the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) which
eliminated the requirement for States to adopt and submit General
Conformity SIPs. Therefore, EPA is revising its regulations to make the
adoption and submittal of the General Conformity SIP or TIP optional
for the State or Tribe.
    Because 40 CFR part 51, subpart W (Sec. Sec.  51.850-51.860)
essentially duplicates the regulations promulgated at 40 CFR part 93,
subpart B (Sec. Sec.  93.150-93.160), EPA is deleting all of subpart W
except for Sec.  51.851. In the revision to Sec.  51.851, EPA is
requiring that if a State or Tribe submits a General Conformity SIP or
TIP that it be consistent with the requirements of 40 CFR part 93,
subpart B. The EPA added paragraph (f) to 40 CFR 51.851 to allow the
States and Tribes to develop their own ``presumed to conform'' list for
actions covered by their conformity SIPs or TIPs.
    In 40 CFR part 93, subpart B, EPA is making specific revisions to
the regulations which (1) Clarify the process, (2) delete outdated or
unnecessary requirements, (3) authorize innovative and flexible
approaches, (4) reduce the paperwork burden, (5) provide transition
tools for implementing new standards, (6) address issues identified by
implementing agencies, and (7) provide a better explanation of
regulations and policies.
    Several of the revisions encourage both the Federal agencies and
the States or Tribes to take actions in advance of the project
environmental review. Such advance action should speed the review
process for the individual projects and reduce the delays for the
project without impairing the environmental review. This is discussed
in more detail in section VI below.

B. What Innovative and Flexible Approaches Are Being Finalized?

    1. The EPA is adding a new section (40 CFR 93.161) to allow for a
facility-wide emission budget approach. Under this voluntary
arrangement, Federal agencies, in anticipation of future major actions,
may negotiate a facility-wide emission budget with the appropriate
State, tribal, or local air quality agency responsible for the SIP or
TIP. The State, tribal, or local agency could incorporate the facility-
wide emission budget into the applicable SIP or TIP and submit it to
EPA for approval. After EPA approves the SIP or TIP, any action at the
facility can be ``presumed to conform'' provided that the emissions
from the proposed action along with all other emissions at the facility
are within the EPA approved facility-wide emission budget and a
conformity determination would not be necessary. Alternatively, a
facility with an approved facility-wide emission budget could
demonstrate conformity by the conventional methods afforded in the
General Conformity Regulations. For example, once approved, minor
actions under the control of the facility where an applicability
analysis results in a determination that the emissions are below a de
minimis threshold could proceed with no conformity determination.
    2. The EPA is adding a new section (40 CFR 93.165) to explicitly
incorporate the use of early emission reduction credits into the
regulations. The proposal reflects the provisions established by
Congress in Federal Aviation Administration (FAA) Reauthorization Act
of 2003 for the Airport Early Emission Reduction Credit (AERC) program
and the guidance to implement that program. The revised regulations
provide a similar framework for other Federal agencies.
    3. The EPA is adding a new section (40 CFR 93.164) to allow, with
certain limitations, the emission of one

precursor of a criteria pollutant to be mitigated or offset by the
reduction in the emissions of another precursor of that pollutant.
    4. The EPA is adding a new section (40 CFR 93.163) to allow
alternate schedules for mitigating emissions increases. The mitigation
timing approach allows some flexibility for Federal agencies and States
or Tribes to negotiate a program for some emissions mitigation to occur
in future years. States or Tribes can allow this approach to
accommodate short-term increases in emissions if they believe a
substantial long-term reduction in emissions will result from a Federal
action.

C. What Burden Reduction Measures Are Being Finalized?

    1. The EPA is deleting the provision in the existing regulation (40
CFR 93.153) that requires Federal agencies to conduct a conformity
determination for regionally significant actions where the direct and
indirect emissions of any pollutant represent 10 percent or more of a
nonattainment or maintenance area's emissions inventory for that
pollutant, even though the total direct and indirect emissions from the
actions are below the de minimis emission levels or the actions are
otherwise ``presumed to conform''.
    2. The EPA is adding in 40 CFR 93.153 new types of actions that
Federal agencies can include in their ``presumed to conform'' lists and
EPA is also permitting States or Tribes to establish in their General
Conformity SIPs or TIPs ``presumed to conform'' lists for actions
within their State or tribal area.
    3. The EPA is finalizing an exemption in 40 CFR 93.153 for the
emissions from stationary sources permitted under the minor source New
Source Review (NSR) programs similar to the EPA's existing General
Conformity regulation which already provides for exemptions for
emissions from major NSR sources.

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

    1. The EPA is adding a definition in the regulation (40 CFR 93.152)
for ``Take or start the Federal action'' to help Federal agencies
determine what, if any, conformity requirements apply when an area is
designated or re-designated as nonattainment.
    2. The EPA is adding requirements (40 CFR 93.153(k)) for the
implementation of the statutory grace period for newly designated
nonattainment areas.
    3. The EPA is adding alternate methods (40 CFR 93.162) to
demonstrate conformity for time periods beyond those covered by the SIP
or TIP. The EPA is also allowing States or Tribes to include an
enforceable commitment in the SIP or TIP to address future emissions
from a Federal action.

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

    1. As part of EPA's efforts to finalize an Air Quality Policy on
Wildland and Prescribed Fires, which was undertaken in consultation
with FLMs, EPA took comment on two possible approaches: To include a
presumption of conformity for (1) prescribed fires conducted in
accordance with a State certified smoke management programs (SMPs)
which meets the requirements of EPA's Interim Air Quality Policy on
Wildland and Prescribed Fires or an equivalent replacement EPA policy,
or (2) prescribed fires conducted in accordance with a State certified
SMPs which meets the requirements of EPA's Interim Air Quality Policy
on Wildland and Prescribed Fires or an equivalent replacement EPA
policy or, in the absence of a State certified SMP, where the Federal
agency has obtained written assurance from the State prior to the burn
that the planned burn employs State approved basic smoke management
practices (BSMP). EPA is finalizing option 1 to include a presumption
of conformity for prescribed fires that are conducted in compliance
with SMPs (40 CFR 93.153(i)(2)), with recognition that prescribed fires
employing BSMPs may be able to meet a presumption of conformity if such
a presumption is established by an agency following the requirements of
93.153(g) or by a State following the requirements of 51.851(f). In the
absence of such SMPs, we encourage States and Federal agencies to work
together to develop and finalize SMPs or to include prescribed fires
conducted in accordance with BSMPs as presumed to conform actions in
the applicable SIP. In addition, Federal agencies could undertake
actions in accordance with 40 CFR 93.153(f) and (g) to include
prescribed fires conducted in accordance with specific BSMPs as actions
that are presumed to conform.
    2. The EPA is finalizing the proposal (40 CFR 93.158) to allow
Federal agencies to obtain emission offsets for general conformity
purposes from another nearby nonattainment or maintenance area of equal
or higher nonattainment classification provided the emissions from that
area contribute to violation of the NAAQS in the area where the Federal
action is located or, in the case of maintenance areas, the emissions
from the nearby area contributed in the past to the violations in the
area where the Federal action is occurring.
    3. At the request of several Federal agencies, EPA is clarifying
the language in the regulation that states that nothing in these
regulations (40 CFR 93.155 and 40 CFR 93.156) requires the release of
materials and other information where disclosure is restricted by law.
Also, EPA is including a similar clarification for CBI.
    4. Several Federal agencies and others involved in the General
Conformity process suggested that EPA should consider exempting
construction activity emissions from the conformity regulations
requirements (40 CFR 93.153). Although the existing General Conformity
Regulations do not specifically mention construction emissions, they
implicitly require Federal agencies to include emissions from
construction activities in the conformity evaluation.
    The EPA understands these concerns and, in the discussion about the
revision to the definition of ``caused by,'' has identified a number of
ways that Federal agencies can work with the State, Tribe, and local
agencies to address construction emissions in the General Conformity
assessment. However, EPA is not finalizing an exemption for
construction emissions in the revisions and is instead affirming that
emissions from construction activities must be considered in a
conformity evaluation.
    5. At the request of the FAA, EPA is codifying one of the examples
contained in the preamble to the existing General Conformity
Regulations (58 FR 63229) that stated, ``the EPA believes that the
following actions are illustrative of de minimis actions: * * * Air
traffic control activities and adopting approach, departure and enroute
procedures for air operations.'' The FAA conducted a study of ground
level concentrations caused by elevated aircraft emissions released
above ground level (AGL) using EPA-approved models and conservative
assumptions.\1\ The study concluded that aircraft operations at or
above the average mixing height of 3,000 feet AGL have a very small
effect on ground level concentrations and could not directly result in
a violation of the NAAQS in a local area. Consequently, this study
supports the example provided in EPA's initial preamble language for
air traffic control activities and adopting approach,

departure and enroute procedures for aircraft operations above the
mixing height. As some of the commenters noted, the mixing height for
some areas can vary and some SIPs and TIPs identify a specific mixing
height to be used. Therefore, EPA's final rule (40 CFR 93.153) exempts
as de minimis aircraft emissions above the specific mixing height
identified in the SIP or TIP. If no mixing height is identified in the
SIP or TIP, the Federal agency can use 3,000 feet AGL as a default
mixing height. The list of exemptions under 40 CFR 93.153(c)(2)(xxii)
has been updated in this final rule to reflect this policy.
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    \1\ Wayson, Roger, and Fleming, Gregg, ``Consideration of Air
Quality Impacts by Airplane Operations at or Above 3000 feet AGL,''
Volpe National Transportation Systems Center and FAA Office of
Environment & Energy, FAA-AEE-00-01-DTS-34, September 2000. http://
www.faa.gov/regulations_policies/policy_guidance/envir_policy/.
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F. What are some of the clarifications to the existing regulations that
are being finalized?

    1. The EPA is clarifying in 40 CFR 93.150 the General Conformity
evaluation for treatment of emissions from actions with emissions
originating in more than one nonattainment or maintenance area. The
emissions in each area would be treated as if they result from a
separate action.
    2. The EPA is establishing procedures in 40 CFR 93.153 to follow in
extending the 6-month conformity exemption for actions taken in
response to an emergency.
    3. The EPA is revising (40 CFR 93.158) the procedures that can be
used to demonstrate conformity with the applicable SIP when the SIP
does not contain an attainment demonstration or when the emissions from
the Federal action are projected beyond the period of the SIP. In
addition, EPA is adding a new section (40 CFR 93.162) to establish
procedures for demonstrating conformity beyond the time period covered
by the SIP or TIP.
    4. The EPA is revising the review process (40 CFR 93.155) to
require Federal agencies to notify tribal governments in the
nonattainment or maintenance area of General Conformity evaluations.
    5. The EPA is clarifying the definition (40 CFR 93.152) of several
terms used in the regulations.
    6. The EPA is including specific language throughout the
regulations to identify the role of Indian Tribes and TIPs in the
General Conformity evaluation.

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

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

    In 1990, the CAA was amended to include a provision in section
176(c)(4) that required States to adopt and submit to EPA for approval
a SIP to implement the provisions of section 176(c). Section 6011 of
SAFETEA-LU revised the conformity requirements in section 176(c) of the
CAA. Although most of the revisions affected the Transportation
Conformity requirements, section 6011(f) also revised the General
Conformity requirements. Specifically, section 6011(f) revised section
176(c)(4)(A) of the CAA by including a requirement that the regulations
must be periodically updated and by deleting the requirement for the
States to adopt and submit a General Conformity SIP. The EPA does not
interpret this provision as prohibiting States or Tribes from
voluntarily adopting and submitting General Conformity implementation
plans consistent with EPA regulations. Therefore, EPA is revising 40
CFR 51.851 to make the adoption and submittal of the General Conformity
SIP optional for the State and eligible federally-recognized tribal
governments.
    In promulgating the General Conformity Regulations in 1993, EPA
published two sets of regulations: 40 CFR Part 51, subpart W
(Sec. Sec.  51.850 through 51.860) directed States to adopt and submit
General Conformity SIPs to EPA for approval and 40 CFR Part 93 subpart
B (Sec. Sec.  93.150 through 93.160) provided the requirements for
Federal agencies to follow in conducting their conformity evaluations
before EPA approved the General Conformity SIP for the area. Section 40
CFR 51.851 directed States to adopt SIPs meeting the requirements of 40
CFR part 51, subpart W. The other sections in subpart W repeated the
requirements found in 40 CFR part 93, subpart B. The EPA is deleting 40
CFR 51.850, and Sec. Sec.  51.852 through 51.860 since those sections
merely repeated the language in 40 CFR 93.150 and Sec. Sec.  93.152
through 93.160 and is including a requirement in 40 CFR 51.851(a) that
the General Conformity SIP or TIP, if adopted, must meet the
requirements in 40 CFR part 93, subpart B.
    In addition, EPA is restructuring Sec.  51.851.
    1. The EPA is dividing paragraph (b) of 40 CFR 51.851 into four
paragraphs--(b), (c), (d), and (e):
    a. Paragraph (b) now states that until EPA approves the General
Conformity SIP, Federal agencies must meet the requirements of 40 CFR
part 93, subpart B.
    b. Paragraph (c) states that after EPA approves a SIP or TIP
meeting the requirement of 40 CFR part 93, subpart B, or portion
thereof, the Federal agencies must meet the requirements of the SIP or
TIP and any other portions of 40 CFR part 93, subpart B if not
contained in the approved SIP or TIP. In addition, paragraph (g) states
that any conformity requirements in an existing implementation plan
remain enforceable until the State submits and EPA approves a revision
to the applicable State implementation plan to specifically remove the
conformity requirements. Since there is no longer a requirement for
SIPs to include conformity requirements and the applicable statutes do
not grant EPA additional authorities to condition approval of a State's
request to remove the General Conformity requirements from an
implementation plan, it is EPA's intent, once requested by a State, to
expeditiously review and approve implementation plan revisions that
seek to remove General Conformity requirements.
    c. Paragraph (d) contains the requirement that the SIP or TIP can
be no less stringent than 40 CFR part 93, subpart B.
    d. Paragraph (e) contains the requirement that the SIP or TIP can
be no more stringent that the requirement in 40 CFR part 93, subpart B
unless the provisions apply equally to non-Federal as well as Federal
entities.
    2. The EPA is adding a new provision in Sec.  51.851(f), which
allows States or Tribes to include in their SIP or TIP a list of
actions that are ``presumed to conform.'' For example, the State may
identify the emissions from a certain type and size of construction
activities that it presumes will conform.
    Comment: Several commenters supported EPA's proposal to make the
adoption and submittal of the General Conformity SIP optional. One
commenter believed that the elimination of the conformity SIP
requirement in Sec.  93.151 leaves a gap regarding the enforcement of
mitigation measures.
    The commenter noted that under the language in the new provision,
there is no State or Federal enforceability if the State withdraws its
conformity SIP or otherwise fails to retain a requirement that written
commitments to undertake and implement mitigation measures are
obligations of the SIP. Another commenter supported the requirements
for States to develop conformity SIPs.
    Response: The EPA is revising its regulations to be consistent with
the revised requirements of the CAA. In 2005, the CAA was revised to
eliminate the requirement that a State must adopt a conformity SIP. If
a State does not have a conformity SIP, then Federal agencies must
conduct their evaluation under the requirements of 40 CFR

93.150-93.165. These requirements are essentially the same as the
requirements contained in the conformity SIPs. Therefore, there would
be little difference in the enforceability of the regulations.
Mitigation measures are included in the SIP or TIP. A conformity SIP is
not needed to include the mitigation measures in the SIP or TIP. They
are included in the SIP to attain or maintain the ambient air quality
standards. Section 93.160 has been changed by deleting the term
``General Conformity Regulations'' to ensure this fact is clear.

B. 40 CFR 93.150--Prohibition

    Section 93.150 establishes the general prohibition against Federal
agencies taking actions that do not conform with the SIP and
requirements for the Federal agencies to make the conformity
determinations following the procedures of subpart B of part 93. The
EPA is making two revisions to Sec.  93.150. First, EPA is deleting the
language in paragraph (c) of that section and reserving that paragraph.
Second, EPA is adding a new paragraph (e) to the section to State that
if an action occurs in more than one nonattainment area, that each area
must be evaluated separately.
    In paragraph (c) of the 1993 regulations, EPA identified categories
of actions that were not subject to the regulations based on
environmental review for the action that was either completed or under
way at the time the regulations were promulgated. The paragraph was
based on the environmental reviews (either the conformity determination
or the National Environmental Policy Act (NEPA) analysis) being
completed in early 1994. Therefore, paragraph (c) was outdated and not
necessary at this time.
    In the new paragraph (e) in Sec.  93.150, EPA is clarifying the
regulations to State specifically that conformity determinations must
be made for each nonattainment or maintenance area in which emissions
from the Federal action occur. The emissions from most Federal actions
or projects occur within one nonattainment or maintenance area;
however, some actions or projects could extend across area boundaries,
causing emissions in more than one area. A facility (for example, a
national park, military installation or an airport) could be located in
multiple counties or in multiple States. Emissions from an action at
such facilities could extend across the nonattainment or maintenance
area boundaries. Some Federal actions could result in direct or
indirect emissions in non-contiguous areas, or even nationwide, that
are above the de minimis thresholds and affect multiple nonattainment
or maintenance areas. The 1993 regulations did not specify how actions
or projects affecting multiple areas should be addressed. Therefore,
EPA added paragraph (e) to state that an action's emissions in each
area would be treated as if they result from separate actions.
    The EPA clarified that emissions from actions be treated separately
for each nonattainment and maintenance area for the following reasons:
    1. Federal agencies demonstrate conformity to a SIP, TIP or FIP
that are developed on an area-specific basis and SIP requirements may
vary from one area to another.
    2. The General Conformity Regulations exemptions are also area-
specific. For example, the de minimis levels are based upon the type
and classification of the nonattainment or maintenance area.
    3. Section 176(c)(5) of the CAA limits the applicability of the
conformity regulations to actions in nonattainment and maintenance
areas. Therefore, actions, which affect broad regions encompassing
several nonattainment, maintenance or attainment areas, must be
evaluated based only on the portions of the emissions in the
nonattainment and maintenance areas.

C. 40 CFR 93.151--SIP Revision

    The main purpose of Sec.  93.151 is to specify that the regulations
in part 93 subpart B apply to Federal actions unless the State or Tribe
adopts and EPA approves a General Conformity SIP or TIP for the area.
The EPA did not change the purpose of the section, but is revising the
section to clarify its wording. The 1993 regulations included
statements about the stringency of the SIP compared to the requirements
in subpart B of part 93. The EPA is deleting those statements because
they duplicate statements in 40 CFR 51.851 which specifies the
requirements for the SIP and TIP.

D. 40 CFR 93.152--Definitions

    Section 93.152 provides the definition of terms used in the
regulations. The EPA is revising 12 of the definitions, adding 11 new
terms, and deleting one term, and clarifying the scope of an existing
definition as follows:
    Applicability analysis. The EPA is adding this new term to describe
the process of determining if the Federal agency must conduct a
conformity determination for its action.
    Applicable implementation plan or applicable SIP. The EPA is making
two minor revisions to the definition. First, EPA is correcting the
citation for the SIP approval and second, EPA is clarifying the
definition by adding a parenthetical phrase to clarify that the term
includes an approved TIP. The requirements for eligible Tribes are
found in 40 CFR 49.6.
    Area-wide air quality modeling analysis. The EPA is clarifying this
definition by making a minor wording change and by including
photochemical grid model in the definition. Also, EPA is adding an
example of the type of models that could be used for the area-wide air
quality modeling analysis.
    Caused by. The basic test established by the 1993 regulations'
definition of ``caused by'' is that the emissions would not have
occurred in the absence of the Federal action. Since the General
Conformity Regulations were promulgated in 1993, EPA has interpreted
the regulations to require a Federal agency to include construction
emissions in its conformity analysis. The EPA believes that emissions
from construction activities initiated, approved, or funded by a
Federal agency meets this test and should be included in the conformity
evaluation. Therefore, EPA is clarifying that construction emissions
are part of the total direct and indirect emissions from an action.
    Comment: In the January 8, 2008, proposal, EPA solicited comment on
whether construction emissions in general or short-term construction
emissions should be exempt from the regulations. In addition, EPA
solicited comment on what should be considered short-term construction
emissions (1 to 5 years). The majority of commenters on this issue
objected to exempting construction emissions. They noted that
construction emissions can contribute significantly to particulate
matter (PM) exceedances, especially off-road vehicle emissions. Some
believed that ignoring these emissions might drop a project below the
de minimis threshold and result in unmitigated emissions and the
exposure of local residents to significant levels of pollutants such as
diesel exhaust. However, some commenters thought that construction
emissions should be exempted. They noted that construction emissions
only peak for a short time and that a disproportionate amount of time
in the conformity process is spent on addressing very short-term
construction-related emissions. They also pointed out that construction
emissions are generally not included in NSR or Transportation
Conformity evaluations. Of the commenters that thought construction
emissions should be exempt, some thought they should be exempt for 5

years while others thought they should be exempt for only 2 years.
    Response: The EPA agrees with the majority of commenters on this
issue that construction emissions can contribute significantly to
exceedances of the NAAQS, particularly exceedances of the PM standards.
Unlike the construction activities associated with Transportation
Conformity and NSR projects, construction activities associated with
General Conformity actions vary widely in type. For example, General
Conformity is concerned about localized impacts of the direct and
indirect impacts of particular action or projects, as reflected in
case-by-case analysis of emissions from specific actions, while
Transportation Conformity is primarily concerned with the regional
impacts of long-term use of the roads, as reflected in analysis of
regional transportation processes, and secondarily concerned with
short-term and localized impacts. Also, NSR specifically does not apply
to emissions from mobile sources, which includes most construction
equipment--no such restriction is found in General Conformity.
Moreover, as explained above, EPA believes that emissions from
construction activities initiated, approved, or funded by a Federal
agency would not have occurred in the absence of the Federal action and
thus meet the ``caused by'' definition included in the general
conformity regulations. For these reasons, EPA believes that it is
important that construction emissions should be considered as part of
the General Conformity process. EPA also believes that other
flexibilities in the revised rule will help with planning for, and
addressing, construction emissions in the General Conformity process.
These flexibilities include allowing alternative mitigation schedules
and including construction emissions in a facility emission budget.
    Also, EPA is clarifying that conformity is based on annual
emissions. Therefore, Federal agencies should estimate construction
emissions on an annual basis and would only have to demonstrate
conformity of construction emissions during the years when the
emissions occurred.
    Confidential business information (CBI). In Sec. Sec.  93.155 and
93.156, EPA is clarifying how CBI used in the conformity determination
is to be handled. To support those provisions, EPA is adding a
definition of CBI. The definition is based upon that used to define CBI
under the Freedom of Information Act.
    Conformity determination. The EPA is adding a new term to describe
the decision that a Federal agency official makes in determining that
the action will conform with the SIP, TIP or FIP.
    Conformity evaluation. The EPA is adding a new definition to
describe the entire conformity analysis process from the applicability
analysis through the conformity determination, if necessary.
    Continuing program responsibility. In the 1993 regulations, EPA
used the term ``emissions that a Federal agency has a continuing
program responsibility for.'' That term was awkward and confusing. The
EPA is shortening the term to the ``continuing program responsibility''
and reformatting the definition to make it clearer.
    Continuous program to implement. This term was used in the 1993
regulations but was not defined. Therefore, EPA is adding a definition
for this term. The definition would require the Federal agency to have
a program to implement the action. That program can include a number of
steps such as preparation of final design plans and can also allow for
seasonal shutdowns. The definition includes a requirement that the
action does not stop for more than 18 months unless such a delay is
included in the original plans for the action.
    Direct emissions. The EPA is revising the definition of direct
emissions to include a requirement that the emissions must be
reasonably foreseeable. This revision reflects EPA's policy as set
forth in the July 1994 implementation guidance that direct emissions
must be reasonably foreseeable. (General Conformity Guidance: Questions
and Answers, USEPA, OAQPS, Page 6, Question 2, July 13, 1994).
    Emission Inventory. This term is used but not defined in the 1993
regulations. Therefore, EPA is adding a definition of this term.
    EPA. Since some States have Environmental Protection Agencies, EPA
is adding ``U.S.'' in the definition to clarify that the regulations
refer to the U.S. Environmental Protection Agency.
    Indirect emissions. EPA is revising the definition for indirect
emissions to clarify that only indirect emissions originating in a
nonattainment or maintenance area need to be analyzed for conformity
with the applicable SIP. In addition, EPA is revising the definition of
``indirect emissions'' to clarify what is meant by ``the agency can
practically control'' and ``for which the agency has continuing program
responsibility.'' This clarification represents EPA's long standing
position that Congress did not intend for conformity to apply to
``cases where, although licensing or approving action is a required
initial step for a subsequent activity that causes emissions, the
agency has no control over that subsequent activity, either because
there is no continuing program responsibility or ability to practically
control.'' (58 FR 63.214, 63.221, November 30, 1993). (General
Conformity Guidance: Questions and Answers, USEPA, OAQPS, Page 6,
Question 2, July 13, 1994).
    Comment: One commenter believes that excluding emissions over which
the Federal agency does not have continuing program responsibility is
unlawful. The commenter believes that the original definition of
``caused by'' is practical because the conformity determination will be
made in the context of an Environmental Impact Statement (EIS) for such
major Federal projects and NEPA requires an assessment of the expected
development and reasonably foreseeable impacts associated with such
development. The commenter noted that if the agency with authority to
approve these expansions lacks the continuing programmatic
responsibility to control the use of facilities approved by the agency,
then the proposed activity should not be approved.
    The commenter believes that the proposed rule definition has the
potential for allowing massive increases in emissions that is
anticipated as a result of port expansions in some of the nation's most
polluted metropolitan areas. The commenter also noted that the NEPA may
also create authority to adopt environmental mitigation plans as part
of an agency's programmatic responsibility.
    Response: The exclusion of emissions over which the Federal agency
does not have a continuing program responsibility is related to
indirect emissions for the General Conformity analysis and does not
affect the analysis required for NEPA review. EPA is not changing the
requirements of that provision; EPA is only clarifying the language
contained in it. Since 1993, the ``indirect emissions'' definition has
been limited to those emissions for which ``the Federal agency * * *
will maintain control over due to continuing programmatic
responsibility.'' Accordingly, EPA's reformatting of the language in
this revision does not change the practical impact of this definition,
and the commenter's suggestion that the definition should include
emissions over which the Federal agency does not have control would
greatly expand the program beyond what EPA believes that the law
intended. In any event, since EPA did not propose to expand the program
to

include emissions over which a Federal agency does not have control, it
cannot go final with such an expansion in this rule.
    Local air quality modeling analysis. The EPA is revising the
definition to include an example of the type of models that are used in
the local air quality modeling analysis.
    Maintenance area. The EPA is making a minor wording change to
clarify the definition by citing the regulations and the section of the
CAA used to identify maintenance areas.
    Metropolitan Planning Organization. The EPA is revising its
regulatory definition to make it more consistent with the statutory
definition in SAFETEA-LU, which was signed into law on August 10, 2005.
    Mitigation measure. The 1993 regulations used the term ``mitigation
measure'' and had a section specifying the requirements for a
mitigation measure; however the regulations did not define the term.
The EPA is defining a mitigation measure as a method of reducing
emissions of the pollutant at the location of the action. This
definition would distinguish a mitigation measure from an offset.
    National ambient air quality standards. In 1997, EPA promulgated
new NAAQS for both ozone and for fine particles. The definition in the
1993 regulations is broad enough to cover the new ozone standard, but
the definition did not cover the fine particle standard known as
PM2.5. Therefore, EPA is revising the definition of NAAQS to
include PM2.5.
    Precursors of criteria pollutants. The 1993 regulations define
precursors for both ozone and PM-10. Since the PM2.5
standard was promulgated after the General Conformity Regulations, the
original regulations did not include the precursors for
PM2.5. EPA recently amended the regulations (July 17, 2006
at 71 FR 40420) to add PM2.5 precursors, consistent with the
proposed implementation program for the PM2.5 standard (70
FR 65984). The EPA defined the precursors of PM2.5 as
follows:
    1. Sulfur dioxide (SO2) is a regulated pollutant in all
PM2.5 nonattainment and maintenance areas.\2\
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    \2\ While sulfur dioxide must be addressed in general conformity
determinations for PM2.5, sulfur dioxide is not required
to be addressed in transportation conformity determinations before a
SIP is submitted, unless either the State air agency or EPA regional
office makes a finding that on-road emissions of sulfur dioxide are
significant contributors to the area's PM2.5 problem.
Sulfur dioxide would be addressed in transportation conformity after
a PM2.5 SIP is submitted if the area's SIP contains an
adequate or approved sulfur dioxide motor vehicle emissions budget.
EPA based its decision regarding treatment of sulfur dioxide in
transportation conformity on the de minimis amount of on-road
emissions of sulfur dioxide now and in the future, and on the
implementation of low sulfur gasoline beginning in 2004 and low
sulfur diesel fuel beginning in 2006. (70 FR 24283).
---------------------------------------------------------------------------

    2. Nitrogen oxides (NOX) are regulated pollutants in all
PM2.5 nonattainment and maintenance areas unless both the
State/Tribe and EPA determine that they are not.
    3. Volatile organic compounds (VOC) and ammonia (NH3)
are not regulated pollutants in any PM2.5 nonattainment or
maintenance area unless either the State/Tribe or EPA determines that
they are.
    Reasonably foreseeable emissions. As discussed above, under
``direct emissions,'' EPA is revising the term ``direct emissions'' to
limit the emissions to those which can be reasonably foreseeable.
Therefore, EPA is revising the term ``reasonably foreseeable'' to
include ``direct emissions.''
    Regionally significant action. As discussed in the revisions to
93.153(i) below, EPA is deleting the requirement that conformity
determinations are required for actions that would normally be exempt
if those actions are considered regionally significant. Therefore, EPA
is deleting the definition of the term.
    Restricted information. As discussed in Sec. Sec.  93.155 and 156
on reporting and public participation, EPA is specifying how restricted
information used in the conformity determination is to be handled. To
support those revisions, EPA is adding a definition of restricted
information. The definition is based upon applicable Executive Orders,
regulations and statutes pertaining to materials and other information
where disclosure is restricted by law.
    Comment: One commenter requested that EPA state that emission data
be specifically excluded for the definition of ``restricted
information.''
    Response: The EPA agrees that emission data generally can not be
considered ``restricted information.'' Under EPA policy emission data
cannot be considered as ``confidential business information.'' Only in
rare circumstances where data are contained in documents classified as
sensitive information to which access is restricted by law or
regulation to particular classes of persons and a formal security
clearance is required to handle or access the classified data would
emission data from a government facility be ``restricted information.''
In the situations where restricted information is used as part of the
conformity evaluation, EPA will work with the appropriate Federal,
State and tribal agencies to ensure an adequate review of the
conformity evaluation.
    Take or start the Federal action. The EPA is adding a new term to
define the date when an action occurs or starts. This date is important
in determining what, if any, conformity requirements apply when an area
is designated or re-designated as nonattainment. The EPA is defining
this term as the date the decision-maker signs a document such as a
grant, permit, license or approval. Otherwise, EPA is defining the term
as the date the Federal agency physically starts the action that
requires the conformity evaluation.
    Tribal implementation plan (TIP). The EPA is adding a definition
for TIP to mean plans adopted and submitted by federally recognized
Indian Tribes.

E. 40 CFR 93.153--Applicability Analysis

    The EPA is clarifying the process of determining if the General
Conformity requirements are applicable to a Federal action. Although
EPA is providing clarification on actions that are exempt or ``presumed
to conform'' in this regulation, nothing in this regulation is intended
to interfere with any exemptions previously established by law.
    1. The EPA is revising the title of the section to include the word
``analysis.'' The EPA believes that adding the word would make the
title more descriptive of the section's content.
    2. The EPA is making technical changes to paragraph (a) of Sec.
93.153. The technical correction in section 93.153(a) is to update the
reference to the transportation conformity regulations. Section
93.153(a) currently states that the transportation conformity
regulations are codified at 40 CFR part 51 subpart T, but EPA deleted
transportation conformity criteria and procedures from 40 CFR part 51
subpart T a number of years ago. (62 FR 43779) Accordingly, section
93.153(a) has been revised to refer to the transportation conformity
criteria and procedures now codified at 40 CFR part 93 subpart A.\3\
---------------------------------------------------------------------------

    \3\ While we did not issue a proposal or provide an opportunity
for public comment for this minor correction to the rule, we believe
such actions are unnecessary because this minor revision in no way
changes substantive conformity procedures described in the general
conformity rule but merely updates the reference to the proper
location of the transportation conformity regulations in the CFR.
---------------------------------------------------------------------------

    EPA is not finalizing the proposed changes to paragraph (b).
Following proposal of changes to this paragraph EPA realized that the
minor wording changes we had proposed (adding the word ``criteria''
before the word ``pollutant'' and ``or precursor'' after the

word to clarify the paragraph) had been accomplished by changes made to
this section in a July 17, 2006 regulatory action (71 FR 40426).
Therefore, EPA is making no changes to this paragraph from the current
regulatory language.
    3. The EPA is revising the table in sub-paragraph (b)(1) to include
all nonattainment areas in the Ozone Transport Region. In 1993, when
the General Conformity Regulations were promulgated, all nonattainment
areas in the Ozone Transport Region were classified pursuant to Table 1
in CAA section 181(a)(1) as marginal or above for the 1-hour ozone
NAAQS. When EPA later designated areas for the 8-hour ozone NAAQS, some
nonattainment areas were identified as needing to meet only the
requirements in subpart 1 of Part D of Title I of the CAA and were not
classified pursuant to Table 1. However, the decision to place certain
areas only under subpart 1 was vacated by the decision in South Coast
Air Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006).
Although there are currently no areas classified under subpart 1, the
Court left open the door that EPA may be able to justify such action in
the future. Accordingly, EPA is revising the table in Sec.
93.153(c)(1) to ensure that the General Conformity requirements would
apply to any area placed in the subpart 1 in the future by changing the
classification from ``Marginal and moderate non-attainment areas inside
an ozone transport region'' to ``other non-attainment areas inside an
ozone transport region.''
    4. The EPA is adding a new sub-paragraph (xxii) to Sec.
93.153(c)(2) to clarify the exemptions for aircraft emissions above the
mixing height for the area. Specifically, EPA is exempting aircraft
emissions above the mixing height identified in the applicable SIP, TIP
or FIP. Where the SIP does not contain a specific mixing height, EPA is
establishing a default mixing height of 3000 feet AGL. In the January
2008 proposal, EPA had proposed to exempt all aircraft emissions above
3000 feet AGL.
    Comment: Several commenters representing State and local air
quality agencies objected to excluding the emissions from aircraft
above 3000 feet above ground level. They noted that the mixing height
varies and can be as high as 4,500 feet AGL during the ozone season and
that pollutants emitted at middle and high altitudes can travel long
distances. They also noted that pollution levels were below predicted
levels following September 12, 2001 when aircraft were grounded.
    Other commenters representing the airports and the airline industry
supported the exemption emission from aircraft above 3000 feet AGL.
They noted that the FAA study supports the conclusion that aircraft
operations at or above 3,000 feet AGL have a minimal effect on ground
level pollutant concentrations. The commenters also noted that flights
over almost all major U.S. airports must be at least 7000 feet AGL;
therefore, any commercial aircraft operating at 3000 feet would most
likely either be landing or taking off. The commenters also noted that
the FAA study concluded that any increase in ground level
concentrations of CO and hydrocarbon (HC) due to mixing was negligible.
    A Federal agency commenter believes that the exemption for air
traffic control activities should not be restricted by altitude. The
commenter noted that the proposal for exempting aircraft operations
above 3,000 feet AGL is much narrower than what was presented in the
preamble to the 1993 General Conformity rule as an example of an action
that is exempt from the General Conformity requirements--``air traffic
control activities and adopting approach, departure and enroute
procedures for air operations.''
    Response: EPA agrees that the aircraft emissions above the mixing
height do not significantly affect ground level concentrations and
acknowledges that the mixing height can vary from one area to another.
Accordingly, in those areas where the applicable SIP or TIP specifies a
mixing height, EPA is requiring the specified mixing height to be used.
However, in those areas where the SIP or TIP does not specify a mixing
height, EPA is allowing the Federal agencies to use 3,000 feet AGL as a
default mixing height. This conclusion is supported by the FAA study.
In addition, 3,000 feet AGL is commonly used as an estimate of the
average maximum afternoon mixing height across the country and most air
quality models use 3,000 feet AGL as the default mixing height.
However, we also note that the FAA study showed that some areas have
mixing heights lower than 3,000 feet AGL, so we have added regulatory
language to sub-paragraph (xxii) to allow Federal agencies to use a
different mixing height if they can demonstrate that emissions at and
above that height are de minimis. As a general matter, it is in the
reasoned discretion of the Federal agency to decide which methods and
analysis it will use when determining whether this exemption or any
other provision applies to the emissions from its activity, including
making an applicability determination under section 93.153(b), finding
emissions result in no increase under section 93.153(c)(2), or
concluding emissions are presumed to conform under section 93.153(f).
    5. The EPA is revising paragraph (d)(1) of Sec.  93.153 to exempt
emissions covered by a NSR permit for minor sources. The 1993
regulations exempt emissions covered by a NSR permit for major sources
but not for minor sources. EPA concluded at that time that the purposes
of the General Conformity review would be adequately met by the major
source NSR review, and that additional review would not be necessary.
The EPA now believes that minor source NSR provides similar review, and
that this approach will reduce the duplicate review of emissions under
both minor source NSR and conformity programs and treat all NSR
permitted emissions the same way. Accordingly, we are revising Sec.
93.153(d)(1) to also exempt emissions covered by minor source NSR
permits issued pursuant to the general permitting authority provided by
section 110(a)(2)(c) of the CAA.
    Comment: The majority of commenters agreed with the proposal to
exempt stationary sources permitted under the NSR program. They
believed the review to be redundant and unnecessary.
    Some commenters disagreed with exempting minor sources. One
commenter thought that EPA should not exempt activities with emissions
less than the major source threshold from conformity review unless some
basis can be established that the cumulative emissions from such
sources are truly de minimis with respect to the statutory conformity
tests. The commenter suggests that EPA substitute a SIP-based program
for establishing a budget for minor sources in place of the regionally
significant threshold. Several commenters suggested that only NSR
permits which require offsets or are offset on a programmatic basis
should be exempt from conformity. A few commenters thought that, if EPA
exempts minor sources for the conformity evaluation, it must first
clearly demonstrate that such exemptions will not impede States'
ability to attain any standard.
    Response: The EPA agrees that requiring a conformity analysis for
emission covered by a minor source NSR permit would be redundant and
provide little environmental benefit. EPA believes that the permitting
authority has the responsibility to ensure that the source will not
interfere with the SIP or otherwise interfere with the State's ability
to attain the

standards. Minor source NSR permits are issued under a SIP-approved
program, so there has already been a determination that the permitting
program will not contribute to a violation of the NAAQS or delay the
attainment or maintenance of the standards. Thus, by issuing a specific
permit under that program, the authority is stating that the emissions
are accounted for in the SIP, effectively providing the same assurances
as a conformity determination since Federal agencies can demonstrate
conformity for an action by showing that the actions will not cause a
violation or interfere with the SIP.
    6. The EPA is deleting ``or natural disasters such as hurricanes,
earthquakes, etc.,'' and ``or disaster'' from paragraph (d)(2) of Sec.
93.153 because they are unnecessary words. In Sec.  93.152 EPA defines
an emergency; therefore the words in Sec.  93.153 describing an
``emergency'' are not necessary and may be confusing since they do not
include all types of emergencies.
    7. The EPA is amending paragraph (e)(2) of Sec.  93.153 to provide
procedures for reviewing an extension of the exemption from making a
conformity determination for actions related to responding to an
emergency. A Federal agency, in responding to an emergency event such
as a natural disaster, terrorist attack, military mobilization, or
other situations (such as wildfire responses) that an agency determines
fit within the definition of emergency found in Sec.  93.152, may find
it impractical to conduct a conformity evaluation on the action before
it must take the action. To address this situation, 40 CFR 93.153(d)(2)
of the 1993 regulations provides Federal agencies with a 6-month
exemption from the requirement to undertake a conformity analysis for
actions taken in response to an emergency. The EPA recognizes that in
rare situations it may be impractical, even after 6 months, to conduct
a conformity evaluation and is amending Sec.  93.153(e) to allow the
agencies to extend the exemption for another 6 months. This section
requires Federal agencies to make a written determination that it is
impractical to conduct an evaluation for the action. The 1993
regulations were not clear about the number of additional extensions
permitted under Sec.  93.153(e) nor do those regulations provide any
procedures for agencies to follow in deciding on the extension.
    The EPA is not revising requirements for the initial exemption for
actions in response to emergencies. The initial governmental actions
that are typically commenced within hours or days in response to
emergencies or disasters would still be exempt from the General
Conformity requirements for 6 months after the commencement of the
response to the emergency or disaster. However, EPA is adding
requirements for Federal agencies that want to extend the exemption
beyond the initial 6-month period. First, EPA is requiring the Federal
agencies to allow EPA and the State 15 days to review and provide
comments on the draft written determination to extend the exemption at
the beginning of the extension period. Next, EPA is requiring Federal
agencies to publish a notice within 30 days of making the extension
decision. The notice must be published in a daily general circulation
newspaper for the affected area. Finally, EPA is limiting the maximum
number of 6-month extensions an agency may declare without additional
documentation on their own to three. Thereafter, the revisions require
that the agency must provide additional information concerning the
emergency conditions to EPA and the State or Tribe.
    8. The EPA is revising paragraphs (f), (g), and (h) of Sec.  93.153
to provide Federal agencies clear guidance in developing their list of
actions that are ``presumed to conform'' and provide requirements for
the materials that must be included in the documentation and draft
list. Specifically, EPA is adding wording to paragraph (f) to specify
when and how more than one ``presumed to conform'' exception may be
taken for a Federal action; adding a new paragraph (g)(3) to specify
that Federal agencies can list actions that are for individual areas or
SIPs or TIPs; adding a sentence to paragraph (h)(1) to specify the
information that must be included in the documentation; and adding a
sentence to paragraph (h)(2) to allow the Federal agencies to notify
EPA headquarters when the ``presumed to conform'' actions would have
multi-regional or national impacts. In addition, EPA is revising
paragraphs (f) and (h) to include a reference to the new paragraph
(g)(3).
    In promulgating the existing regulations, EPA allowed a number of
actions that were ``presumed to conform.'' The regulations also allow
Federal agencies to establish their own lists of actions that are
``presumed to conform'' with applicable SIPs and TIPs. Under the 1993
regulations, Federal agencies must justify the inclusion of the actions
on their ``presumed to conform'' list by either demonstrating: (1) That
the actions will not cause or contribute to an air quality problem or
otherwise interfere with the SIP, TIP, or FIP, or (2) that the actions
will have emissions below the de minimis levels. The Federal agencies
must provide copies of the proposed list to EPA, affected State and
local air quality agencies and MPOs. In addition, the agencies must
provide at least a 30-day public comment period and document its
response to all comments. The notice of the proposed and final list
must be published in the Federal Register.
    The EPA is adding sub-paragraph (g)(3) to clarify that a
presumption could apply to one facility or for facilities in a
specified area and does not have to be nationally applicable. For
example, if the nonattainment area's SIP includes a sector emission
budget for construction activities, a facility in that area may be able
to demonstrate that construction activities of a certain size or type
fits within the SIP's emission budget. With the concurrence of the
State or Tribe, the Federal agencies could publish a ``presumed to
conform'' list that includes the construction activity emissions that
are specific to a facility.
    9. The EPA is deleting the regionally significant test included in
paragraph (i) of Sec.  93.153. The existing regulations in Sec.  93.152
define ``regionally significant'' as ``a federal action for which the
direct and indirect emissions of any pollutant represent 10 percent or
more of a nonattainment or maintenance area's emissions inventory.'' 40
CFR 93.153(i) and (j) require conformity determinations for all
regionally significant actions, regardless of any exemptions or
presumptions of conformity based on other provisions in the
regulations.
    Comment: Some commenters supported deletion of the regionally
significant provision noting that it is unnecessary, not helpful in
determining whether a Federal action will conform to the SIP, and is an
administrative burden. Other commenters believed that the provision
should be retained or strengthened or a more appropriate percentage of
the area's inventory be used for the test. Some commenters also pointed
out that in light of the new PM2.5 and 8-hour ozone
standards, certain Federal projects might become ``regionally
significant'' in the near future.
    Response: EPA agrees that the determination of whether actions with
emissions below the de minimis emission levels are regionally
significant has been a burden to some Federal agencies with little or
no environmental benefit. Analysis discussed in the proposal showed
that the emission inventory for most nonattainment and maintenance
areas well exceeded the ten times the de

minimis emission levels for the area, such that no emissions could
actually be regionally significant. Although several commenters
question whether the regionally significant test might be important for
the new PM2.5 and 8-hour ozone standards, they presented no
information to show that the de minimis emission levels would exceed 10
percent of the inventory for potential nonattainment areas for those
standards.
    10. In a revised paragraph (i) of Sec.  93.153, EPA allows
installations with a facility-wide emission budget to presume that an
action at the installation will conform provided that the emissions
from that action along with all other emissions from the facility will
not exceed the budget. A more detailed discussion of the facility-wide
emission budget concept is found in Sec.  93.161.
    11. Also in Sec.  93.153(i), EPA identified emissions from a
prescribed fire conducted under an approved smoke management program as
``presumed to conform.'' In the January 2008 proposal, EPA asked for
comments on two options for allowing a presumption of conformity for
prescription fires. Option 1 would have allowed Federal agencies to
presume that the emissions from prescribed burns will conform provided
the burning is conducted under a State certified approved SMP or an
equivalent replacement EPA policy. Option 2 would have also allowed
Federal agencies, in the absence of a certified SMP, to presume that
emissions from prescribed burns will conform provided they obtain
written permission from the State and use BSMP.
    Comment: The EPA received many comments in support of the second
option, which allows Federal agencies to determine, in absence of a
certified SMP, that prescription fires conducted using BSMP are
considered ``presumed to conform'' to the SIP. Some commenters noted
that to be consistent with the ``Treatment of Data Influenced by
Exceptional Events'' rule (72 FR 13559, March 22, 2007), if the State
does not certify a SMP, the exemption should be for burns using State
approved BSMP. Many commenters also supported the first option, noting
that it was reasonable to assume that any action conducted in
compliance with the certified SMP would be in compliance with the SIP.
One commenter thought that the presumption of conformity for burns
conducted under BSMP is not acceptable because BSMP are in no way
connected to air quality and will not ensure that resulting emissions
from a prescribed burn would conform to the SIP. This commenter also
noted that the use of SMP may be acceptable, but EPA has not yet issued
its final wildland fire policy. Another commenter suggested that if
prescribed burns under certified SMP or a BSMP are ``presumed to
conform,'' there needs to be a simple way to flag the data from
affected monitors. Numerous commenters recommended that the definition
of emergency include wildfires.
    Response: After considering the various practices and the comments
received, the EPA believes option 1 presented in the proposed rule is
more protective of the air quality than option 2. However, we also
recognize that prescribed fires employing BSMPs may be able to meet a
presumption of conformity if such a presumption is established by an
agency following the requirements of 93.153(g) or by a State following
the requirements of 51.851(f). Under option 1, prescribed fires
conducted in compliance with a SMP are ``presumed to conform.'' The
purpose of an SMP is to mitigate nuisance smoke and public safety
hazards, prevent NAAQS violations, protect public health, and address
visibility impacts in Class I areas. EPA also notes that SMPs establish
procedures and requirements for minimizing emissions. EPA recognizes
that prescribed burns employing BSMPs may be as protective of air
quality in areas where no SMP exists. BSMPs can be connected to air
quality and may protect air quality as outlined in the ``Treatment of
Data Influenced by Exceptional Events'' rule. In order to assure the
adequacy of the BSMPs to meet the legal requirements of the General
Conformity program as outlined in section 176, Federal agency developed
BSMPs must be publicly and State reviewed as part of a presumed to
conform action under section 93.153(g) or 51.851(f) of these
regulations to establish such a presumption. Because the EPA chose not
to require the certification of the SMP under the final ``Treatment of
Data Influenced by Exceptional Events'' rule, EPA is also removing the
term ``certified'' from this final General Conformity Rule. Finally,
EPA has identified wildfire response as an example of an emergency
event that may be exempt from General Conformity requirements under
93.153 (d)(2) and (e) if that agency determines it fits within the
definition of emergency found in Sec.  93.152.
    12. As discussed above, EPA also added a provision in Sec.
93.153(i) to allow a State or Tribe to adopt in their SIP or TIP a list
of actions it ``presumes to conform.''
    13. The EPA is revising paragraph (j) of Sec.  93.153 by deleting
the reference to regionally significant emissions, by adding a
reference to paragraph (i) and by describing the criteria for requiring
a conformity determination for an action that otherwise would be
``presumed to conform.'' The 1993 regulations state that an action
cannot be ``presumed to conform'' if it was regionally significant or
did not in fact meet the requirements of sub-paragraph (g)(1). As
discussed above, EPA has deleted the regionally significant test,
therefore reference to it is has been deleted from this paragraph. For
clarity, instead of referring to sub-paragraph (g)(1), EPA is repeating
the requirements in this paragraph.
    14. The EPA is revising paragraph (k) of Sec.  93.153 to
incorporate the provisions of section 176(c)(6) of the CAA. (42 U.S.C.
7506(c)(6)). In November 2000, Congress added section 176(c)(6) to the
CAA to allow for a conformity grace period for newly designated
nonattainment areas (Pub. L. 106-377). That section establishes a 1-
year grace period following the effective date of the final
nonattainment designation for each new or revised NAAQS before the
conformity requirements must be met in the area. If an agency takes or
starts the Federal action before the end of the grace period, it must
comply with the applicable pre-designation conformity requirements. If
an agency takes or starts the Federal action after the end of the grace
period, it must comply with the post-designation conformity
requirements. As discussed above in describing the new term ``take or
start the federal action,'' EPA is defining the term to mean that a
Federal agency takes an action when it signs a permit, license, grant
or contract or otherwise physically starts the Federal action. From the
time that an area is designated as nonattainment, agencies will have a
year to take or start the Federal action. If the agency fails to take
or start the Federal action during the grace period, then it must re-
evaluate conformity for the project based on the requirements for the
new designation and classification.

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

    1. The EPA is revising the title of this section to clarify the
purpose of the section. In the 1993 regulations this section is
entitled broadly ``Conformity Analysis.'' Since the short section only
discusses the requirement for each Federal agency to make its own
determination, EPA is revising the title of the section to more closely
describe the section's content.
    2. The EPA is adding language to this section to specifically state
that the

conformity determination must meet the requirements of this subpart.

G. 40 CFR 93.155--Reporting Requirements

    1. Since EPA is adding additional sections to subpart B, it is
revising the references to those sections in Sec.  93.155.
    2. Consistent with EPA's Tribal Authority Rule (63 FR 7253), EPA is
providing federally-recognized Indian tribal governments the same
opportunity to comment on draft conformity determinations as given to
States. Therefore, EPA is requiring the Federal agencies to notify all
the federally-recognized Indian tribal governments in the nonattainment
or maintenance area.
    3. The EPA is adding an alternative procedure for notifying EPA
when the action would result in emissions originating in nonattainment
or maintenance areas in three or more EPA regions. Specifically, EPA is
allowing agencies to notify the EPA Office of Air Quality Planning and
Standards rather than each individual regional office. A single contact
point for EPA should be more efficient for the other Federal agencies
than notifying up to 10 regional Offices. This final notification
provision also corrects an inconsistency between the proposed rule
preamble and the proposed regulation, which stated that the EPA Office
of Air Quality Planning and Standards could be contacted when the
action would result in emissions originating in nonattainment or
maintenance areas in two or more EPA regions.
    4. The EPA is adding a new paragraph to Sec.  93.155 to describe
how restricted information used to support conformity determinations
should be handled when provided to EPA, States and Tribal governments.
The 1993 General Conformity Regulations do not contain an explicit
statement about protecting restricted information from public release.
The interagency review and public participation provisions in the 1993
regulations require Federal agencies to make available for review the
draft conformity determination with supporting materials that describe
the analytical methods and conclusions relied upon in making the
determination. Disclosure of classified information by a Federal
employee is a criminal offense (18 U.S.C. 1905). In addition, certain
unclassified information is privileged or otherwise protected from
disclosure. Therefore, several Federal agencies wanted to ensure that
the General Conformity Regulations clearly state that no agency or
individual was required to release restricted information including,
but not limited to, classified materials. Therefore, EPA is revising
the regulation to add explicit language concerning the protection of
restricted information. In addition, conformity determinations could,
in part, be based upon restricted information. The EPA is adding
specific language to the regulation to protect restricted information
in accordance with each Federal agency's policy and regulations for the
handling of restricted information. The regulations would allow State
or EPA personnel with the appropriate clearances to be able to view the
restricted information.

H. 40 CFR 93.156--Public Participation

    1. The EPA is correcting the section referenced in Sec.  93.156.
The 1993 regulations refer to Sec.  93.158. The correct reference
should be Sec.  93.154. Section 93.158 prescribes the criteria for
conducting a conformity analysis, while Sec.  93.154 requires Federal
agencies to make the determination and references the requirements in
the other sections of subpart B.
    2. The EPA is providing an alternative public notification
procedure for actions that cause emissions above the de minimis levels
in three or more EPA regions. This corrects a mistake made in the
proposed rule preamble that stated, ``EPA is proposing to provide an
alternative public notification procedure for actions that cause
emissions above the de minimis levels in more than three nonattainment
or maintenance areas.'' In addition, this corrects an inconsistency
with the proposed regulation, which stated that the alternative public
notification procedure is for actions that have multi-regional or
national impacts in two or more regions. The 1993 regulations require
that the Federal agency publish a notice in a daily newspaper of
general circulation in the nonattainment or maintenance area. Some
Federal actions affect a large number of nonattainment and maintenance
areas. The notification procedure for such an action could be
burdensome and inefficient. Therefore, EPA is amending the rules to
allow the Federal agencies to publish a notice in the Federal Register
if the action would cause emissions above the de minimis levels in
three or more nonattainment or maintenance areas.
    3. The EPA is adding a new paragraph to Sec.  93.156 to describe
how restricted information and CBI used to support conformity
determinations should be handled in providing the information to the
public.

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

    1. The EPA is revising the title of this section to more
appropriately describe the section's content. The 1993 regulations
section is entitled, ``Frequency of Conformity Determinations.'' That
title implies that the General Conformity requirements for Federal
actions must be reevaluated on a regular basis. However, the section
states that conformity must be reevaluated only if the determination
lapses or the action is modified, resulting in an increase in
emissions.
    2. If an action's emissions are below the de minimis levels or the
action is not located in a nonattainment or maintenance area, a
conformity determination is not required. Therefore, the Federal agency
would not have a date for the conformity determination to use in
determining if reevaluation is required. The EPA is making minor
wording changes in paragraphs (a) and (b) to clarify that the date of a
completed NEPA analysis, as evidenced by a signed finding of no
significant impact (FONSI) for an environmental assessment, a record of
decision (ROD) for an environmental impact statement, or a record of a
categorical exclusion, can be used when a conformity determination is
not required.
    3. The EPA is adding a new paragraph (d) to Sec.  93.157 to clarify
the requirements for needing to conduct a conformity determination when
the action is modified. Paragraph (d) deals with modifying an action
for which the Federal agency made a conformity determination. In order
to make the original determination, the Federal agency had to
demonstrate that all the emissions caused by the initial action
conformed to the SIP. Since conformity determinations are only needed
for emissions that exceed the de minimis levels, EPA has clarified in
the rule that the Federal agency does not have to revise its conformity
determination unless the modification would result in an increase that
equals or exceeded the de minimis emission levels for the area.
Paragraph (d) also deals with modifying an action that the Federal
agency determined had emissions below the de minimis level. Since the
emissions from the unmodified action were determined to be de minimis
and not fully evaluated to determine conformity, EPA is requiring
Federal agencies to conduct a conformity determination for the modified
action if the total emissions (the emissions from the unmodified action
plus the increased emissions resulting from the modification) equal

or exceed the de minimis levels for the area. Thus, in both situations,
all emissions that exceed de minimis levels are evaluated for
conformity impacts, either initially or after modification.

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

    1. In Sec.  93.158(a)(1), EPA is adding ``or precursor'' after
``any criteria pollutant'' to clarify that Federal agencies must
demonstrate conformity for the precursors of the criteria pollutants if
the precursor emissions are specifically identified and accounted for
in the applicable SIP, TIP or FIP.
    2. In Sec.  93.158(a)(2) and (a)(5)(iii), EPA is allowing Federal
agencies to obtain emission offsets for the General Conformity
requirements from a nearby nonattainment or maintenance area of equal
or higher classification, provided that the emissions from the nearby
area contribute to the violations of the NAAQS in the area where the
Federal action is located or, in the case of a maintenance area, the
emissions from the nearby area have contributed in the past to the
violations in the area where the Federal action is located. The
regulation requires such emissions offsets to be obtained through
either an approved SIP revision or an equally enforceable commitment.
    Comment: Commenters representing Federal agencies, industry groups
and some State air quality agencies supported the provision to allow
offsets from nearby nonattainment or maintenance areas. Some of these
commenters suggested that additional limits could be imposed on the use
of the out-of-area offsets. Several commenters representing State air
quality agencies opposed the allowing of offsets from other areas. The
commenters noted that EPA regulations and Federal court rulings limit
the area from which emissions reductions can be creditable for
attainment demonstrations. They also opposed allowing offsets because
conformity generally applies to mobile source emissions that are
different from stationary source emissions covered by NSR.
    Response: The EPA agrees that offsets should be allowed in nearby
nonattainment areas in the same manner as they are allowed under the
NSR program. We agree with the commenter that EPA regulations and
judicial rulings place limits on the area from which emissions
reductions can be creditable for attainment demonstrations. The intent
of those limits is to ensure that the emissions from the nearby
nonattainment area contribute to the violations, or have contributed to
violations in the past, in the area in which the Federal action takes
place. This is consistent with the overall revisions to this
regulation. Therefore, we are also recommending that Federal agencies
show that they have met the requirements of Sec.  93.158(a)(2)--that
the emission offsets originate from an area that contributes to the
violations, or have contributed to violations in the past, in the areas
with the Federal action--by using the same techniques EPA has approved
by rule or guidance for demonstrating contributing emissions in other
SIP-related determinations, such as Reasonable Further Progress, Rate
of Progress, or Attainment Demonstrations for a particular pollutant or
pollutant precursor. By limiting the offsets to areas that contribute
or have contributed to the nonattainment, EPA is narrowing the
potential offsets to areas that will result in a benefit to the
nonattainment or maintenance area in which the Federal action will take
place.
    3. In Sec.  93.158(a)(2), (a)(3) and (a)(4), EPA is revising the
regulations to address the precursors of PM2.5. The EPA does
not believe that the current models are adequate to reasonably predict
the project level impact of individual precursor sources of ozone or
PM2.5. Therefore, EPA is allowing Federal agencies to use
modeling to demonstrate conformity only for directly emitted
pollutants. Precursors of PM2.5 will be treated the same as
precursors of ozone and direct emissions of PM2.5 will be
treated the same as CO and PM-10 for purposes of identifying available
tests to demonstrate conformity.
    4. In Sec.  93.158(a)(3) and (5), EPA is correcting two
typographical errors. In sub-paragraph (3), EPA is correcting ``meet''
to ``meets'' and in sub-paragraph (5), EPA is changing ``paragraph
(a)(30)(11)'' to ``paragraph (a)(3)(ii).''
    5. In Sec.  93.158(a)(5)(iv)(A)(1), EPA is deleting the reference
to the year 1990 and replacing it with a generic reference to the most
current calendar year with a complete emission inventory available
before an area is designated unless EPA sets another year. In addition
to requiring the conformity regulations, the CAA Amendments of 1990
required the designation of areas as nonattainment based on the
existing air quality data. Therefore, when EPA promulgated the 1993
regulations, all the designations were based on a 1990 date. Since EPA
promulgated the conformity regulations, it has promulgated new 8-hour
ozone and PM2.5 standards and designated a number of areas
as nonattainment. By changing the regulations to reference the date
when the area was designated as nonattainment, EPA is allowing for the
General Conformity regulations to address these new designations and
any future designations through identification of appropriate inventory
levels. In addition, including the option to allow EPA to set another
year for the baseline allows EPA and other Federal agencies to work
together to determine if another baseline may be appropriate for
determining conformity of a particular action, such as determining that
an agency can rely on one specific baseline year for an action subject
to both the general and transportation conformity regulations when
those regulations otherwise indicate application of two different
baseline years.
    6. Also in Sec.  93.158(a)(5)(i), EPA is revising the paragraph to
allow Federal agencies to make conformity determinations based upon a
State's or Tribe's determination that the emissions from the action
along with all other emissions in the area would not exceed the
emission budget in the applicable SIP or TIP. Under the 1993
regulations, States could only make such a determination if they had an
approved attainment demonstration or maintenance SIP. This revision
would allow the State or Tribe to make its determination based upon a
post-designation applicable SIP or TIP even though the plan does not
include an attainment demonstration. For example, the State or Tribe
could base their determination on an emission budget in an EPA-approved
``Reasonable Further Progress'' plan. By adopting the budget and
submitting it as part of the SIP or TIP, the State or Tribe is treating
the Federal action like any other source in the area. When the State or
tribal agency adopts the attainment or maintenance SIP or TIP, it will
have to consider the emissions from the Federal action, and if
necessary require additional controls on the sources as necessary to
meet air quality needs.
    7. The EPA is revising Sec.  93.158(a)(5)(i)(C) to allow the State
or Tribe to commit to including the emissions from the Federal action
in future SIPs. Under the 1993 regulations, Federal agencies can
demonstrate conformity by having the State commit to revising the
applicable SIP to include the emissions. If a State or Tribe agrees to
such a commitment, the State or Tribe must submit a SIP revision within
18 months to include the emissions from the action and to make other
necessary adjustments in the SIP to accommodate those emissions.
However, the existing SIP or TIP (or a SIP or TIP required to be
submitted in

18 months) may not cover the same timeframe covered by the conformity
determination. For example, a SIP for a nonattainment area that
demonstrates attainment may only cover the period until the attainment
date while the conformity determination may cover emissions for many
years beyond that date. The State or Tribe may be submitting future
SIPs or TIPs to address either maintenance of the standard or to
address a continuing nonattainment problem that would cover the time
period of the emissions. The revision to Sec.  93.158(a)(5)(i)(C) would
continue to require States to revise the SIP within 18 months of the
conformity determination based upon a State's or Tribe's commitment.
However, if the existing SIP or TIP (or a SIP or TIP due within 18
months) does not cover the time period of the emissions, then the State
or Tribe will submit a SIP revision that includes an enforceable
commitment to account for the emissions in future SIP revisions. This
approach will allow States and Tribes flexibility in committing to
include the emissions from the Federal action in the SIP covering the
relevant time period.
    8. The EPA is revising Sec.  93.158(a)(5)(iv) to delete the use of
1990 as the baseline year. As discussed above, when EPA promulgated the
existing General Conformity Regulations in 1993, the designations and
classifications were based upon the 1990 air quality and emissions.
Since 1993, EPA has promulgated new standards and designated additional
areas as nonattainment. Therefore, in many cases the 1990 date for the
baseline emission inventory is inappropriate. The EPA is setting the
baseline year as the most current calendar year with a complete
emission inventory available before an area is designated unless EPA
sets another year. As noted above, including the option to allow EPA to
set another year for the baseline allows EPA and other Federal agencies
to work together to determine if another baseline may be appropriate
for determining conformity of a particular action.
    Finally, EPA is deleting another alternate baseline year that no
longer is applicable in PM-10 areas. Specifically, EPA is deleting in
Sec.  93.158(a)(5)(iv)(A)(3) the use of the ``year of the baseline
inventory in the PM-10 applicable SIP.'' EPA believes that the deletion
of this outdated baseline year should not affect current General
Conformity determinations in PM-10 nonattainment and maintenance areas.

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

    1. EPA is changing Sec.  93.159(b)(1)(ii) to address when new motor
vehicle emissions factors models are used in General Conformity
determinations. EPA is clarifying that the grace period before such new
models are used will be 3 months from EPA's model release, unless a
longer grace period is announced in the Federal Register. This is more
consistent with 40 CFR 93.111 of the transportation conformity rule
that allows grace periods for new motor vehicle emissions factor models
to be between 3-24 months.
    2. The EPA is revising Sec.  93.159(b)(2) and (c) to update the
reference to the Compilation of Air Pollutant Emission Factors and the
Guideline on Air Quality Modeling. EPA has released updated versions of
these documents since it promulgated the existing regulations in 1993.
    3. The EPA is revising paragraph (d)(1) to clarify that analysis is
first required for the attainment year specified in the SIP. In some
cases, such as SIPs for marginal ozone areas, an attainment
demonstration date was not required in the SIP. Therefore, EPA is
requiring that if the SIP or TIP does not specify an attainment
demonstration year then the analysis is conducted for the latest
attainment year possible under the CAA. Since the CAA requires the SIP
demonstrate attainment as expeditiously as possible but no later than
the CAA mandated attainment date, it is possible that a SIP or TIP
could have an earlier attainment date. That earlier date if specified
in the SIP would be the appropriate year for the conformity analysis.
    4. The EPA is making a minor wording revision to paragraph (d)(2)
to clarify the paragraph. The EPA is replacing the word ``farthest''
with ``last.'' The maintenance plans are developed for a 10-year period
and revised as necessary for the next 10-year period. The purpose is
for conformity to be evaluated for the last year of the maintenance
plan. The word ``last'' conveys that meaning.

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

    The EPA is revising paragraph Sec.  93.160(f) to clarify its
meaning. The regulations were meant to require that the mitigation
measures include a written commitment from the person or organization
reducing the emissions and that those commitments must be fulfilled.
EPA is adding text to state that those commitments must be fulfilled to
clearly provide for enforcement of those commitments under the Federal
regulations.

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

    The EPA is adding a new section to the regulations to facilitate
the use of a facility-wide emission budget in evaluating conformity.
Although the existing regulations do not preclude States and Federal
agencies from using this approach, the regulations do not specifically
authorize its use. This section for developing such a budget would be
in conjunction with a new Sec.  93.153(i)(1), which provides a
mechanism for demonstrating that the emissions are in conformance with
the SIP or TIP. This approach allows States or Tribes and Federal
agencies to identify acceptable levels of emissions from the facility
for inclusion in the SIP before starting the environmental review for
the actions and thereby expedite the review of the Federal actions at
the facilities that do not exceed the emission levels.
    The EPA believes that this provision would encourage the State,
Tribe or local air quality agency and the Federal facilities to develop
an upfront emission budget for the facility, and the action or project
environmental review would be streamlined as long as the facility
remains within an established budget.
    The development and use of a facility-wide emission budget would be
voluntary on the part of the Federal agency, State, Tribe and local air
quality agency. No party would be required to participate. If the
parties agreed to participate, an emission budget would be established
based upon specific guidance and documented growth projections for the
facility, and adoption of that budget into a SIP or TIP would
demonstrate that the area could meet its air quality obligations with
the identified emission budget.
    Comment: The majority of commenters supported the concept of the
facility-wide emission budget approach with the appropriate
consultation and input from the States. Many noted that it will not
interfere with attainment of the NAAQS. However, some commenters
disapproved of the budget approach and expressed concern about a
Federal agency/airport being allowed to establish their own budget
without having to do additional analysis.
    While generally agreeing with the approach, many commenters asked
EPA for clarifications. Several commenters asked for clarification in
the final rule that this is voluntary for both the

Federal agency and the States and the States can opt to use the
existing General Conformity approach. In addition, some commenters
asked EPA to include provisions requiring such measures as periodic
reporting of emissions, anti-backsliding, and a requirement to obtain
offsets if the budget is exceeded. Another commenter requested that on-
site pollution prevention projects be required to occur
contemporaneously with any proposed emission changes at the facility.
Many commenters requested that EPA clarify the applicability of this
provision to non-Federal facilities (e.g., airports).
    Response: The EPA agrees with most of the commenters that the
facility-wide emissions budget approach will not interfere with
attainment of the NAAQS and will provide flexibility to the facilities
in meeting the General Conformity requirements. EPA believes that this
approach benefits both the air regulatory agencies and the regulated
facilities. State air quality agencies would benefit by having better
emission estimates, including growth estimates from the installation
and Federal agencies would benefit by having the General Conformity
process streamlined, reducing the amount of time it takes to
demonstrate conformity. EPA is clarifying in the final rule that this
approach is completely voluntary by both the State and the Federal
agency. If the State or Tribe agrees to allow the facility to use the
emission budget approach, it must ensure that the budget that it
approves meets all applicable air quality requirements such as
attainment deadlines and reasonable further progress milestones. Thus,
in developing and approving such budgets, we encourage the facilities
and the State or Tribe to consult with other agencies or authorities as
may be appropriate. For example, we encourage consultation with the
local MPO if a facility-wide emissions budget includes on-road mobile
emissions that might also be included in an MPO's regional emissions
analysis.
    While the State or Tribe must approve a facility-wide budget into
the SIP or TIP, once they have done so they cannot compel an agency to
demonstrate conformity with another approach if the Federal agency
chooses to show conformity with the approved facility-wide emission
budget. Federal agencies may use any approach to demonstrate conformity
provided for in the rule. Facilities that are not federally controlled
or operated, but are subject to Federal approvals, permits or funding
(such as airports and seaports) may work with the State to establish
facility-wide emissions budget that can be used by a Federal agency to
satisfy its General Conformity responsibilities. The approval by the
State of a facility-wide emissions budget into the SIP does not relieve
the State of any obligation to meet any SIP or CAA requirements,
milestones or deadlines.

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

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

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

    Mitigation measures and offsets are used to reduce the impact of
emission increases from a project or action. To alleviate the impact of
the project's emissions, the emissions reductions from offsets or
mitigation measures should occur at the same time as the emission
increases from the project. In general, EPA has interpreted the
existing regulations to mean that the reductions must occur in the same
calendar year as the emission increases caused by the action because
the total direct and indirect emissions from an action are collated on
an annual basis. Therefore, EPA has decided to include this
interpretation in the regulations.
    The EPA is adding a new section to address the timing of offset and
mitigation measures. First, the section generally requires that the
emission reductions for the offset and mitigation measures must occur
in the same calendar year as the emission increases caused by the
Federal action and that the reductions are equal to the emissions
increases. As an alternative, the new section would allow, under
special conditions and consistent with CAA requirements, the State or
Tribe to approve other schedules for offsets or mitigation measures.
EPA is requiring that emissions reductions used over an alternate
schedule must be consistent with statutory requirements that new
violations are not created, the frequency or severity of existing
violations are not increased, and timely attainment or interim
milestones are not delayed. Therefore, when a State or Tribe approves
an alternative schedule for emissions reductions, it is assuring that
the increased emissions that occur during the period of the Federal
action do not violate any of the three Clean Air Act requirements
described above.
    To ensure that these non-contemporaneous emission reductions
provide greater environmental benefits in the long term, EPA is
requiring that the offset or mitigation ratios for alternative
schedules be greater than one-for-one. Therefore, EPA is requiring a
ratio that is no less than the applicable NSR offset ratios for the
area. These ratios are readily available and already understood to be
based on the severity of the nonattainment problem for the area.
    Also, EPA believes that the mitigation or offset compensation
period should not last indefinitely and is requiring that the period
should not exceed two times the period of the under-mitigated
emissions. For example, a Federal agency may be supporting a
construction project lasting 3 years in a serious nonattainment area
and that project will cause 150 tons per year of increased emissions;
the State or Tribe can approve mitigation measures or offsets which
reduce emissions by less than 150 tons per year provided the total
reduction over a 6-year period is equal to or more than 540 tons (150
tons per year times 3 years equals 450 tons times the offset/mitigation
ratio of 1.2 to 1 for serious nonattainment areas equals 540 tons).
    Agreeing to allow the use of offsets or mitigation measures in
later years does not exempt the State or Tribe from timely meeting any
of its SIP or TIP obligations, such as reasonable further progress
milestones or attainment deadlines. Emissions reductions which accrue
beyond the compensation period should be properly reflected in the SIP
or TIP, e.g., through a SIP revision.

    Comment: Several commenters representing Federal agencies, industry
and airports supported the flexibility in the timing of offsets and
mitigation measures. The commenters believe that EPA needs to clarify
what entity would determine whether the alternative time period for
mitigation would trigger the three statutory factors for conformity and
how such entity would do so. One commenter recommended that the State
or tribal agency responsible for the SIP be the appropriate entity.
Another commenter requested that EPA clarify the use of emission
reduction credits in such cases. In addition, a commenter urges EPA to
reduce the offset ratios to no more than 1.2:1 in extreme nonattainment
areas and to provide a fixed period of time for completing the
emissions reductions recommending a 5-year compensation period to be
included in the rule.
    Some commenters representing State and local air quality agencies
objected to the alternate schedule provision for offsets. The
commenters believe that mitigation measures and offsets must be
contemporaneous and occur in the same calendar year as the emission
increases. If EPA adopts the provision, the commenters suggested
additional limitation on the use of the alternative schedule, such as a
3-year maximum time limit for the schedule and requiring more than a
one-for-one offset.
    Response: The EPA believes the rule should be finalized as
proposed. This will allow Federal agencies to work with States or
Tribes to develop an alternative schedule for the emission reductions
in cases where a greater environmental benefit can be obtained. The
requirement for the additional reductions to meet the ratios in the
regulations ensures that the area is receiving at least a minimum
environmental benefit consistent with other CAA programs. Since State
or tribal approval is required for the alternative schedule, those
agencies have the ability to ensure that the alternative schedule not
cause or contribute to a violation of the SIP or TIP. In addition, EPA
has added additional wording to clarify that the State or Tribe is not
compelled to approve a proposed alternate schedule for mitigation
measures.

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

    The EPA is adding a new section to the regulations to allow the use
of inter-precursor offset and mitigation measures where they are
allowed by the SIP. For example, some States and local air districts
have SIP-approved NSR regulations that allow new or modified stationary
sources to offset the increase in emissions of one criteria pollutant
precursor by reducing the emissions of another precursor of the same
criteria pollutant, provided there is an environmental benefit to such
an exchange and an appropriate ratio of precursor reductions has been
established. The 1993 General Conformity regulations do not
specifically allow or prohibit inter-precursor offsets and mitigation
measures. Therefore, EPA is revising the regulations to allow such
offsets or mitigation measures if they are allowed by a State or tribal
NSR or trading program approved in the SIP, provided they:
    1. Are technically justified; and
    2. Have a demonstrated environmental benefit.
    The ratio for the offsets must be consistent with SIP or TIP
requirements and EPA guidance.
    Comments: Commenters from a wide range of affiliations supported
the provision for inter-precursor offsets with some conditions. The
commenters suggested that offsets should be allowed only with adequate
technical support and appropriate ratios for inter-pollutant
mitigation. Others thought EPA should provide a guidance document on
what States may consider as reasonable tradeoffs and procedures for
evaluating such tradeoffs at the same time as the final rule
publication. Many believed the provisions should only be implemented
with the full involvement and approval of the State, local or tribal
air quality agency. Some commenters representing State air quality
agencies objected to the provision for inter-precursor offsets but gave
no reason for the objection.
    Response: The EPA believes that allowing inter-precursor offsets
will allow facilities flexibility in meeting the General Conformity
requirements and agrees to change the regulations to allow for the
trading of inter-precursor emissions only if two conditions are met.
First, such trades must be allowed by the State or Tribe in a SIP or
TIP. The State must already allow for inter-precursor offsets or
trading through a SIP-approved NSR program, transportation conformity
program, or in the attainment or reasonable further progress (RFP)
demonstration to ensure conformance with a SIP or a TIP. Second, the
trade must be technically justified and have demonstrated environmental
benefits. This technical justification and demonstration should be
accomplished by showing that the precursors are area specific and
appropriate ratios are identified in the SIP. As needed, EPA will
provide guidance on tradeoffs and procedures for evaluating such
tradeoffs.

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

    The EPA is adding a new section to the regulations to establish an
early emission reduction credit program for facilities subject to the
General Conformity Regulations. The existing regulations require that
the offsets and mitigation measures be in place before the emissions
increases caused by the Federal action occur. However, emission
reduction programs undertaken before the conformity determination is
made could be considered as part of the baseline emissions and not
available as offsets or mitigation measures for future actions subject
to the General Conformity requirements. To expedite the project level
conformity process, EPA believes Federal agencies and project sponsors
could benefit from the ability to reduce emissions in advance of the
time that the reductions are needed for a conformity evaluation, while
at the same time meeting the goals of the SIP and TIP.
    The EPA is adding a new section, Sec.  93.165, to the General
Conformity Regulations to define the requirements of this program.
Under the program, Federal agencies or project proponents (such as
airport authorities) could identify emission control measures and
present the proposed reduction to the State, Tribe or local air quality
agency. If the measure met the criteria for an offset (quantifiable;
consistent with the applicable SIP attainment and RFP demonstrations;
surplus to the reductions required by and credited to other applicable
SIP provisions; enforceable at both the State and Federal levels; and
permanent within the timeframe specified by the program) as well as all
State, Tribe or local requirements, the State, Tribe or local agency
can approve the measure as eligible to produce emission reduction
credits. If credits are issued, then a Federal agency will be allowed
to use the credits to reduce the total of direct and indirect emissions
from a future proposed action. At the time the credits are used, the
State, Tribe or local agency must certify that the reductions still
meet the criteria listed above. The credits must be used in the same
calendar year in which they are generated under this program.
    In paragraph (a), EPA establishes the ability for the State or
Tribe and Federal agency to create and use the emission reduction
credits.
    In paragraph (b), EPA identifies the criteria for creating the
credits. The

criteria are similar to the requirements that apply to any offset or
mitigation measure used to compensate for the increased emissions
caused by the action. First, the Federal agency must be able to
quantify the reductions using reliable techniques. In some cases,
however, it may not be possible to precisely quantify the reductions
until after the measure has been implemented. For example, a facility
may adopt a strategy calling for the purchase and use of alternate-
fueled vehicles. Although the agency could calculate the difference in
the emissions between the alternate-fueled vehicle and the standard
vehicle, it may not know the amount the vehicles will be used. In this
case, the State or Tribe and Federal agency could agree on an emission
factor and determine the use at a later time. However, the reductions
must be quantified before the credit is used to support a conformity
determination.
    In paragraph (c), EPA establishes the requirements for the use of
the credits. If the emission reduction credits are created at the same
facility and in the same nonattainment or maintenance area as the
Federal action, the credits can be used to reduce the total emissions
from the action. This may allow the Federal agency to determine the
action conforms because the total emissions are below the de minimis
levels for the area. If the strategy is not implemented at the same
facility but is in the same nonattainment or maintenance areas as the
action, then the credits can be used as offsets or mitigation measures
for the emissions caused by the action, but not to determine if the
action emissions fall below de minimis thresholds. In this context,
``same facility'' means a contiguous area that a Federal agency manages
or exercises control over. Generally, all actions and operations within
a fence line of a facility such as an airport would be considered to be
at the ``same facility.'' However, military operations at a civilian
airport would not be considered to be at the ``same facility.''
Therefore, an airport could install equipment to supply power and
conditioned air to airplanes parked at a gate to reduce the use of
diesel generators and auxiliary power units at an airport terminal.
Those reductions could be considered to be implemented as part of an
airport expansion project to improve the terminal and thus would be at
the ``same facility.''
    Since the General Conformity program is based on annual emissions,
EPA is requiring that the credits be used in the same year as they are
generated under the program. Such a restriction would ensure
consistency with the other parts of the General Conformity program.
This does not mean that an emission reduction strategy cannot produce
an annual stream of credits, but does mean that the reduction credits
cannot be carried over to another year. Although the emission reduction
credits must meet the criteria for use of offsets or other mitigation
measures, EPA is not allowing the credits to be combined with other
program areas such as the alternate schedules for mitigation measures
under Sec.  93.163 or the inter-precursor mitigation offset program
under Sec.  93.164. At this time, EPA believes that, because of the
newness of the emission reduction credit program and the lack of
available implementation data, it is better to take a conservative
approach on implementing the program to ensure that it can be
effectively implemented and evaluated.
    Comment: Most commenters supported EPA's proposal to allow the use
of emission reduction credits (ERCs). One commenter thought that EPA
should clarify when the ERCs can be used. Several commenters disagreed
with the proposal, citing concerns such as violations of conformity,
while another was concerned about the additional resources required to
certify the ERC and track them over time, and avoidance of formal
conformity determinations. Still another commenter thought that under
Sec.  93.165(b)(4) there is no ability for States and the public to
enforce the measures relied upon to generate emission reduction
credits.
    Response: The EPA believes that by allowing early ERCs, Federal
agencies will be encouraged to develop emission reduction programs
before they are needed as offsets for conformity determinations. Since
the emissions are accounted for on an annual basis, the unused credits
would benefit the environment. The emission reduction programs could be
implemented in conjunction with the action requiring the conformity
determination. Therefore, the use of ERC would not encourage an agency
to violate conformity. In any event, under this provision all Federal
actions would need applicable offsetting reductions by the time the
conformity determination was made. EPA does not believe States will be
required to use more resources since States and Tribes are only
required to verify the credits when they are used in a conformity
evaluation, while the agency relying upon the credits is required to
document that usage.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This action does not directly impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., on non-Federal entities. The General Conformity
Regulations require Federal agencies to determine that their actions
conform to the SIPs or TIPs. However, depending upon how Federal
agencies implement the regulations, non-Federal entities seeking
funding or approval from those Federal agencies may be required to
submit information to that agency.
    Although the present revisions to the regulations do not establish
any specific new information collection burden, it would establish
alternative voluntary approaches that may result in a different burden.
For example, the proposed facility-wide emission budget would allow
Federal agencies or operators of facilities subject to the General
Conformity requirements such as commercial service airports to work
with the State, Tribe or local air quality agency to develop an
emission budget for the facility. The State, Tribe or local agencies
and Federal agencies or third party facility operators would incur the
burden of developing the budget. However, those entities are not
required to implement such a program and would be relieved of the