Revisions to the General Conformity Regulations, 1402-1428 [E7-25241]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 5 (Tuesday, January 8, 2008)]
[Proposed Rules]
[Pages 1402-1428]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-25241]



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Part II





Environmental Protection Agency





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40 CFR Parts 51 and 93



Revisions to the General Conformity Regulations; Proposed Rule

Federal Register / Vol. 73, No. 5 / Tuesday, January 8, 2008 / 
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 93

[EPA-HQ-OAR-2004-0491; FRL-8511-6]
RIN 2060-AH93


Revisions to the General Conformity Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to revise its regulations relating to the 
Clean Air Act (CAA) requirement that Federal actions conform to the 
appropriate State, Tribal or Federal implementation plan for attaining 
clean air (``general conformity''). EPA has only revised the General 
Conformity Regulations once since they were promulgated in 1993 to 
include de minimis emission levels for fine particulate matter and its 
precursors (July 17, 2006). Over this period, EPA and other Federal 
agencies have gained experience with the implementation of the existing 
regulations and have identified several issues with their 
implementation. In addition, in 2004 EPA issued regulations to 
implement the revised ozone standard and in 2007 issued regulations to 
implement the new fine particulate matter standard. These regulations 
could affect the timing and process for general conformity 
determinations. State and other air quality agencies are in the process 
of developing revised plans to attain the new standards and the 
proposed revisions to the General Conformity Regulations will be 
helpful to the State, Tribe, and local agencies as well as the Federal 
agencies in developing and commenting on the proposed SIP revisions. 
This proposed rule revision provides for a streamline process for 
Federal agencies and States and Tribes to ensure Federal activities are 
incorporated in these State implementation plans (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 national ambient air quality standards (NAAQS) or 
interfere with the purpose of a State, Tribal or Federal implementation 
plan to attain or maintain the NAAQS.

DATES: Comments. Comments must be received on or before March 10, 2008.
    Public Hearing. If anyone contacts EPA requesting a public hearing 
by January 23, 2008, we will hold a public hearing. Additional 
information about the hearing would be published in a subsequent 
Federal Register notice.

ADDRESSES: Submit comments, identified by Docket ID No. EPA-HQ-OAR-
2004-0491, by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     E-Mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-9744.
     Mail: Air and Radiation Docket and Information Center, 
Environmental Protection Agency, Docket ID No. EPA-HQ-OAR-2004-0491, 
Mail Code: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 
Please include duplicate copies, if possible.
     Hand Delivery: General Conformity Revisions, Docket ID No. 
EPA-HQ-OAR-2004-0491, Environmental Protection Agency Docket Center, 
EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. 
Please include duplicate copies, if possible. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct comments to Docket ID No. EPA-HQ-OAR-2004-
0491. The EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://
www.regulations.gov or e-mail. The https://www.regulations.gov Web site 
is ``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through https://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at https://www.epa.gov/
epahome/dockets.htm. For additional instructions go to section I.B. of 
the SUPPLEMENTARY INFORMATION section of this docket.
    Docket: All documents in the docket are listed in the EDOCKET index 
at https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in https://
www.regulations.gov or in hard copy at the Docket, EPA/DC, EPA West, 
Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742.
    Public Hearing. If a public hearing is held at 9 a.m. in 
Washington, DC, or at an alternate site nearby. Details regarding the 
hearing (time, date, and location) will be posted on EPA's Web site at 
https://www.epa.gov/oar/genconform_not later than 15 days prior to the 
hearing date. People interested in presenting oral testimony or 
inquiring as to whether a hearing is to be held should contact Ms. Pam 
Long, Air Quality Planning Division, Office of Air Quality Planning and 
Standards (C504-03), U.S. Environmental Protection Agency, Research 
Triangle Park, NC 27711, telephone (919) 541-0641, fax number (919) 
541-5509, e-mail address long.pam@epa.gov, at least 2 days in advance 
of the public hearing (see DATES). People interested in attending the 
public hearing must also call Ms. Long to verify the time, date, and 
location of the hearing. The public hearing will provide interested 
parties the opportunity to present data, views, or arguments concerning 
the proposed action.

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

SUPPLEMENTARY INFORMATION: 

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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 ports.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
https://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information claimed as CBI; a copy of the comment that does 
not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 Code of 
Federal Regulations (CFR) part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions. The agency may ask you to respond to 
specific questions or organize comments by referencing a CFR part or 
section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used. If you estimate potential costs 
or burdens, explain how you arrived at your estimate in sufficient 
detail to allow for it to be reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. Where Can I Get a Copy of This Document and Other Related 
Information?

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

D. How Is This Preamble Organized?

    The information presented in this preamble is organized as follows:
I. General Information
    A. Does This Action Apply To Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
    C. Where Can I Obtain Additional Information?
    D. How Is This Preamble Organized?
II. Background
    A. What Is General Conformity and How Does It Affect Air 
Quality?
    B. Why Is EPA Proposing Revisions to These Regulations at This 
Time?
III. How Are the Existing Regulations Implemented?
    A. Applicability Analysis
    B. Conformity Determination
    C. Review Process
IV. Summary of the Proposed Revisions to the General Conformity 
Regulations
    A. Categories of Proposed Revisions to the General Conformity 
Regulations
    B. What Innovative and Flexible Approaches Are Being Proposed?
    C. What Streamlining and Burden Reduction Measures Are Being 
Proposed?
    D. What Revisions Provide Tools and Guidance for Transitioning 
to New or Revised NAAQS?
    E. What Revisions Are Being Proposed at the Request of Other 
Agencies?
    F. What Are Some of the Clarifications to the Existing 
Regulations That Are Being Proposed?
V. Detailed Discussion of the Proposed Revisions
    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--State Implementation Plan (SIP) Revision
    D. 40 CFR 93.152--Definitions
    E. 40 CFR 93.153--Applicability Analysis
    F. 40 CFR 93.154--Federal Agencies Responsibility for a 
Conformity Determination
    G. 40 CFR 93.155--Reporting Requirements
    H. 40 CFR 93.156--Public Participation
    I. 40 CFR 93.157--Re-evaluation of Conformity
    J. 40 CFR 93.158--Criteria for Determining Conformity for 
General Federal Actions
    K. 40 CFR 93.159--Procedures for Conformity Determinations for 
General Federal Actions
    L. 401 CFR 93.160--Mitigation of Air Quality Impacts
    M. 40 CFR 93.161--Conformity Evaluations for Installations With 
Facility-Wide Emission Budget
    N. 40 CFR 93.162--Emissions Beyond the Time Period Covered by 
the Applicable SIP or 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
VI. 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
VII. Statutory Authority

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 national ambient air quality standards (NAAQS) or 
interfering with the purpose of a State implementation plan (SIP), 
Tribal implementation plan (TIP) or Federal implementation plan (FIP).
    In the CAA, Congress recognized that actions taken by Federal 
agencies could affect State, Tribe, and local agencies' ability to 
attain and maintain the NAAQS. Congress added section 176(c) (42 U.S.C. 
7506) to the CAA to ensure Federal agencies proposed actions conform to 
the applicable SIP, TIP or FIP for attaining and maintaining the NAAQS. 
That section requires Federal entities to find that the emissions from 
the Federal action will conform with 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 approvals 
actions, EPA published two set of regulations to implement section 
176(c). The Transportation Conformity Regulations, first published on 
November 24, 1993 (58 FR 62188) and recently revised on July 1, 2004 at 
69 FR 40004, May 6, 2005 at 70 FR 24280 and March 10, 2006 at 71 FR 
12468, address Federal actions related to highway and mass transit 
funding and approval actions. The General Conformity Regulations,

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published on November 30, 1993 (58 FR 63214), cover all other Federal 
actions.

B. Why Is EPA Proposing Revisions to These Regulations at This Time?

    The EPA recently 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 (July 17, 2006 at 71 FR 40420). 
Otherwise, EPA has not revised the General Conformity Regulations since 
they were promulgated in 1993. Since that time, EPA and other Federal 
agencies have gained experience with the implementation of the existing 
regulations and have identified several issues with their 
implementation. Therefore, EPA initiated a process to review, revise 
and streamline the regulations. In addition, EPA has recently issued 
regulations to implement the revised ozone standard (69 FR 23951, April 
30, 2004 and 70 FR 71612, November 29, 2005) and regulations to 
implement the new particulate matter standard (72 FR 20586, April 25, 
2007). These regulations could affect the timing and process for 
general conformity determinations. State and local air quality agencies 
are in the process of developing revised SIPs to attain the new 
standards and knowledge of the proposed revisions to the General 
Conformity Regulations may be helpful to the State, Tribal, and local 
agencies as well as the Federal agencies in developing and commenting 
on the proposed SIP revisions.

III. How Are the Existing Regulations Implemented?

    The existing regulations do not specifically identify the roles of 
Indian Tribes nor the applicability of the regulations to TIPs.
    Federal agencies and other parties involved in the conformity 
process have found that in implementing the existing General Conformity 
Regulations their process falls in to three phases: (A) Applicability 
analysis, (B) Conformity determination, and (C) Review process. Besides 
ensuring that the Federal actions are in conformance with the SIP, the 
regulations encourage consultation between the Federal agency and the 
State or local air pollution control agencies before and during the 
environmental review process.

A. Applicability Analysis

    The National Highway System Designation Act of 1995, (Pub. L. 104-
59) added section 176(c)(5) to the CAA to limit applicability of the 
conformity programs to areas designated as nonattainment under section 
107 of the CAA and maintenance areas under section 175A of the CAA 
only. Therefore, only actions in designated nonattainment and 
maintenance areas are subject to the regulation. In addition, the 
regulations recognize that the vast majority of Federal actions do not 
result in significant increase in emissions and, therefore, include a 
number of exemptions such as de minimis emission levels based on the 
type and severity of the nonattainment problem.
    In the applicability analysis phase, the Federal agency determines:
    1. Whether the action will occur in a nonattainment or maintenance 
area;
    2. Whether one of the specific exemptions apply to the action;
    3. Whether the Federal agency has included the action on its list 
of ``presumed to conform'' actions; or
    4. Whether the total direct and indirect emissions are below or 
above the de minimis levels.
    Under the current regulations, the applicability analysis phase 
requires Federal agencies to determine if the action is considered 
``regionally significant,'' i.e., equal to or greater than ten percent 
of the area's emission inventory for the pollutant. If the action is 
regionally significant, Federal agencies must conduct a conformity 
determination for the action even though the emissions caused by the 
action are below the de minimis levels, the action is presumed to 
conform or the action is otherwise exempt.

B. Conformity Determination

    When the applicability analysis shows that the action must undergo 
a conformity determination, Federal agencies must first show that the 
action will meet all SIP control requirements such as reasonably 
available control measures, and the emissions from the action will not 
interfere with the timely attainment of the standard, the maintenance 
of the standard or the area's ability to achieve an interim emission 
reduction milestone. Federal agencies then must demonstrate conformity 
by meeting one or more of the methods specified in the regulation for 
determining conformity:
    1. Demonstrating that the total direct and indirect emissions are 
specifically identified and accounted for in the applicable SIP,
    2. Obtaining a written statement from the State or local agency 
responsible for the SIP documenting that the total direct and indirect 
emissions from the action along with all other emissions in the area 
will not exceed the SIP emission budget,
    3. Obtaining a written commitment from the State to revise the SIP 
to include the emissions from the action,
    4. Obtaining a statement from the metropolitan planning 
organization (MPO) for the area documenting that any on-road motor 
vehicle emissions are included in the current regional emission 
analysis for the area's transportation plan or transportation 
improvement program,
    5. Fully offset the total direct and indirect emissions by reducing 
emissions of the same pollutant or precursor in the same nonattainment 
or maintenance area, or
    6. Conducting air quality modeling that demonstrates that the 
emissions will not cause or contribute to new violations of the 
standards, or increase the frequency or severity of any existing 
violations of the standards. Air quality modeling cannot be used to 
demonstrate conformity for emissions of ozone precursors or nitrogen 
dioxide (NO2). As stated in EPA's proposal of the current 
regulations (58 FR 13845), due to the complex interaction of the ozone 
precursors, the regional nature of the ozone and NO2 
problems, and limitations of current air quality models, it is not 
generally appropriate to use an air quality model to determine the 
impact on ozone or NO2 concentrations from a single emission 
source or a single Federal action.

C. Review Process

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

IV. Summary of the Proposed Revisions to the General Conformity 
Regulations

A. Categories of Proposed Revisions to the General Conformity 
Regulations

    In accordance with the requirements of section 176(c)(4)(C) of the 
CAA, when EPA promulgated General Conformity Regulations in 1993 it 
also promulgated

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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 proposing to revise its regulations 
to make the adoption and submittal of the General Conformity SIP or TIP 
optional for the State or Tribe.
    Because 40 CFR 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 proposing to delete all of 
subpart W except for Sec.  51.851. In the proposed revision to Sec.  
51.851, EPA would require that if a State or Tribe submits a General 
Conformity SIP or TIP that it be consistent with the requirements of 40 
CFR part 93, subpart B. In addition, EPA is proposing to add a 
provision to 40 CFR 51.851 to allow the States and Tribes more 
flexibility to streamline the conformity process conducted under their 
SIP or TIP.
    In 40 CFR part 93, subpart B, EPA is proposing to make only 
specific revisions to the regulations which (1) clarify the process, 
(2) delete outdated or unnecessary requirements, (3) authorize 
innovative and flexible approaches, (4) streamline the process and 
reduce the paperwork burden, (5) provide transition tools for 
implementing new standards, (6) incorporate revisions requested by 
other agencies, and (7) provide a better explanation of regulations and 
policies.
    Several of the proposed revisions encourage both the Federal 
agencies and the States or Tribes to take actions in advance of the 
project environmental review. Such advance action should speed the 
review process for the individual projects and reduce the delays for 
the project without impairing the environmental review. The EPA invites 
comment on this approach.

B. What Innovative and Flexible Approaches Are Being Proposed?

    1. The EPA is proposing to add a new section (40 CFR 93.161) to 
allow for a facility-wide emission budget approach. Under this 
voluntary arrangement, Federal agencies, in anticipation of future 
major actions, could 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 would incorporate 
the facility-wide emission budget into the applicable SIP or TIP and 
submit it to EPA for approval. 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. Actions at the facility where 
the emissions from an action under the facility's control equaled or 
exceeded an applicable de minimis threshold could demonstrate that the 
emissions from the proposed action along with all other emissions at 
the facility are within the EPA approved facility-wide emission budget. 
By using the facility-wide emission test, the action would be presumed 
to conform 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.
    2. The EPA is proposing a new section (40 CFR 93.165) to explicitly 
incorporate the use of early emission reduction credits into the 
regulations. The proposal reflects the provisions of the Airport Early 
Emission Reduction (AERC) guidance developed in consultation with the 
Federal Aviation Administration (FAA) and provides a similar framework 
for other Federal agencies.
    3. The EPA is proposing a new section (40 CFR 93.164) to allow, 
with certain limitations, the emission of one precursor of a criteria 
pollutant to be mitigated or offset by the reduction in the emissions 
of another precursor of that pollutant.
    4. The EPA is proposing a new section (40 CFR 93.163) to allow 
alternate schedules for mitigating emissions increases. The mitigation 
timing approach could allow some flexibility for Federal agencies and 
States or Tribes to negotiate a program for some emissions mitigation 
to occur in future years. States or Tribes could consider this approach 
to accommodate short-term increases in emissions if there is a 
substantial long-term reduction in emissions.

C. What Streamlining and Burden Reduction Measures Are Being Proposed?

    1. The EPA is proposing to delete the provision in the existing 
regulation which required Federal agencies to conduct a conformity 
determination for regionally significant actions even though the total 
direct and indirect emissions from the action were below the de minimis 
emission levels.
    2. The EPA is proposing additional categories of actions that 
Federal agencies can include in their ``presume to conform'' lists and 
EPA is also proposing to permit States or Tribes to establish in their 
General Conformity SIPs or TIPs ``presume to conform'' lists for 
actions within their State or Tribal area.
    3. The EPA is proposing to exempt the emissions from stationary 
sources permitted under the minor source new source review (NSR) 
programs as EPA's existing General Conformity regulation already 
provides for exemptions for emissions from major NSR sources.

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

    1. The EPA is proposing to revise the language in the regulation 
concerning conformity evaluations for existing action during a 
transition to new nonattainment designations or to the revised 
regulations.
    2. The EPA is proposing requirements for the implementation of the 
grace period for newly designated nonattainment areas.
    3. The EPA is proposing alternate methods to demonstrate conformity 
for time periods beyond those covered by the SIP or TIP.
    4. The EPA is proposing to allow States or Tribes to include an 
enforceable commitment in the SIP or TIP to address future emissions 
from a Federal action.

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

    1. Based on EPA's Interim Air Quality Policy on Wildland and 
Prescribed Fires, which was developed in consultation with Federal land 
managers, EPA is taking comment on two possible approaches: (1) To 
include a presumption of conformity for prescribed fire use that are 
conducted in compliance with certified smoke management plans (SMPs), 
and (2) for prescribed fires conducted using State approved basic smoke 
management practices.
    2. The EPA is proposing to allow Federal agencies to obtain 
emission offsets for general conformity purposes from another nearby 
nonattainment or maintenance area of equal or higher nonattainment 
classification provided the emissions from that area contribute to 
violation of the NAAQS in the area where the Federal action is located 
or in the case of maintenance areas, the emissions from the 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 proposing to 
clarify the

[[Page 1406]]

language in the regulation that states that nothing in these 
regulations requires the release of materials and other information 
where disclosure is restricted by law. Also, EPA is proposing to 
include a similar clarification for CBI.
    4. Several Federal agencies and other parties involved in the 
process suggested that EPA should consider exempting construction 
activity emissions from the conformity regulations requirements. 
Although the existing General Conformity Regulations do not 
specifically mention construction emissions, they implicitly require 
Federal agencies to include emissions from construction activities in 
the conformity evaluation.
    The EPA understands the concerns of the other Federal agencies and 
in the discussion about the revision to the definition of ``caused 
by,'' has identified a number of ways that Federal agencies can work 
with the State, Tribe, and local agencies to ease the burden of 
reviewing construction emissions. In addition, EPA is seeking comment 
on the possibility of exempting short-term construction projects from 
the General Conformity Regulations. One option would be to define 
short-term emissions as lasting no more than 2 years. Another option 
would be to define short-term emissions consistent with how they are 
defined for Transportation Conformity. Currently under the 
Transportation Conformity regulations, construction emissions are not 
required to be included for construction that lasts no longer than 5 
years at individual sites.
    5. The FAA requested clarification of language in the General 
Conformity preamble (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 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 validates the EPA's initial preamble language for air traffic 
control activities and adopting approach, departure and enroute 
procedures for aircraft operations above 3,000 feet AGL are clearly de 
minimis. Therefore, the list of exemptions under 40 CFR 
93.153(c)(2)(xxii) has be updated in this proposal to reflect this 
conclusion.
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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 Transportations Systems Center and FAA Office of 
Environment & Energy, FAA-AEE-00-01-DTS-34, September 2000. https://
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 Proposed?

    1. The EPA is proposing to clarify that if the action would result 
in 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 proposing to establish procedures to follow in 
extending the 6-month conformity exemption for actions taken in 
response to an emergency.
    3. The EPA is proposing to revise the procedures that can be used 
to demonstrate conformity with the applicable SIP.
    4. The EPA is proposing to revise the review process to require 
Federal agencies to notify Tribal governments in the nonattainment or 
maintenance area.
    5. The EPA is proposing to clarify the definition of several terms 
used in the regulations.
    6. The EPA is proposing to include specific language to identify 
the role of Indian Tribes and TIPs.

VI. Detailed Discussion of the Proposed Revisions

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

    Section 176(c)(4) of the CAA specifies that EPA conformity 
regulations include a requirement for a State to adopt and submit to 
EPA for approval, a SIP to implement the provisions of section 176(c). 
Section 6011 of SAFETEA-LU revised the conformity requirements in 
section 176(c) of the CAA. Although most of the revisions affected the 
Transportation Conformity requirements, section 6011(f) and (g) also 
revised the General Conformity requirements. Specifically, section 
6011(f) revised section 176(c)(4)(A) of the CAA by including a 
requirement that the regulations must be periodically updated and by 
deleting the requirement for the States to adopt and submit a General 
Conformity SIP. Section 6011(g) requires EPA to revise its conformity 
regulations by August 2007 to meet the revised requirements. The EPA 
does not interpret this provision as prohibiting States or Tribes from 
voluntarily adopting and submitting General Conformity implementation 
plans. Therefore, EPA is proposing to revise 40 CFR 51.851 to make the 
adoption and submittal of the General Conformity SIP optional for the 
State and eligible federally-recognized Tribal governments.
    In promulgating the General Conformity Regulations in 1993, EPA 
published two sets of regulations: 40 CFR Part 51, subpart W 
(Sec. Sec.  93.850 through 93.869) 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 repeat the 
requirements found in 40 CFR part 93, subpart B. The EPA is proposing 
to delete 40 CFR 51.850, and 51.852 through 860 since those sections 
merely repeat the language in 40 CFR 93.150 and 93.152 through 160 and 
include a requirement in 40 CFR 51.851(a) that the General Conformity 
SIP or TIP must meet the requirements in 40 CFR part 93, subpart B.
    In addition, EPA is proposing several revisions to Sec.  51.851.
    1. The EPA is proposing to divide paragraph (b) of 40 CFR 51.851 
into four paragraphs--(b), (c), (d), and (e):
    a. Paragraph (b) stating that until EPA approves the SIP revision, 
Federal agencies must meet the requirements of 40 CFR part 93, subpart 
B.
    b. Paragraph (c) stating that after EPA approves a SIP or TIP 
meeting the requirement of 40 CFR part 93, subpart B, or portion 
thereof, the Federal agencies must meet the requirements of the SIP or 
TIP and portions of 40 CFR part 93, subpart B if not included in the 
approved SIP or TIP. In addition, the proposed paragraph (c) states 
that any conformity requirements in an existing implementation plan 
remain enforceable until the state submits a revision to its applicable 
implementation plan to specifically remove the conformity requirements 
and that revision is approved by EPA. Since there is no longer a 
requirement for State implementation plans 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

[[Page 1407]]

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 to non-Federal as well as Federal entities.
    2. The EPA is proposing to add a new provision in Sec.  51.851, 
which allows States or Tribes to include in their SIP or TIP a list of 
actions that are presumed to conform.
    Since 40 CFR 51.850, 852 through 860 merely repeats the language in 
40 CFR 93.150, 93.152 through 93.160, deleting Sec. Sec.  51.850, 852 
though 860 and requiring the SIP or TIP to meet the requirements in 
part 93 subpart B will not change the SIP or TIP requirements. However, 
deleting the sections will reduce the confusion on the requirements in 
the regulations by removing the duplicative language. In addition, EPA 
can revise the general conformity requirements by revising only one set 
of regulations. Although States or Tribes would have to revise any SIPs 
or TIPs which are in place when EPA revises part 93 subpart B 
regulations, this would not be an additional burden since they would 
have to revise their SIP or TIP if EPA revised the part 51, subpart W 
regulations.
    By dividing paragraph (b) into four smaller paragraphs, EPA is 
attempting to simplify the language to make the requirements more 
understandable. The EPA did not change the requirements in paragraph 
(b) of the existing regulations.
    The proposal to allow the States or Tribes the flexibility to adopt 
as part of the General Conformity SIP or TIP a list of actions that are 
presumed to conform resulted from the desire of some States to reduce 
the need to spend resources on reviewing actions which are known to 
conform. Although States and Tribes are not obligated to adopt a 
``presume to conform'' list as part of their General Conformity SIP, if 
they do adopt a list they must include a list in their SIP or TIP.

B. 40 CFR 93.150--Prohibition

    Section 93.150 establishes the general prohibition against Federal 
agencies taking actions that do not conform with the SIP and 
requirements for the Federal agencies to make the conformity 
determinations following the procedures of subpart B of part 93. The 
EPA is proposing to make two revisions to Sec.  93.150. First, EPA is 
proposing to delete the language in paragraph (c) of that section and 
reserves that paragraph. Second, EPA is proposing to add a new 
paragraph (e) to the section to state that if an action occurs in more 
that one nonattainment area that each area must be evaluated 
separately.
    In paragraph (c) of the existing regulations, EPA identified 
categories of actions that were not subject to the regulations based on 
environmental review for the action that was either completed or 
underway at the time the regulations were promulgated. The paragraph 
was based on the environmental reviews (either the conformity 
determination or the National Environmental Policy Act (NEPA) analysis) 
being completed in early 1994. Therefore, paragraph (c) is outdated and 
is not necessary at this time.
    In the new paragraph (e) in Sec.  93.150, EPA is specifically 
proposing that conformity determinations must be made for each 
nonattainment or maintenance area. The emissions from most Federal 
actions or projects occur within one nonattainment or maintenance area, 
however, some actions or projects could extend across area boundaries, 
causing emissions in more than one area. A facility (for example, a 
national park, military installation or an airport) could be located in 
multiple counties or even in multiple States. Emissions from an action 
at such facilities could extend across the nonattainment or maintenance 
area boundaries. Some Federal actions, such as rulemaking or rail 
merger approvals, could result in emissions in non-contiguous areas, or 
even nationwide, affecting multiple nonattainment or maintenance areas. 
The existing regulations do not specify how actions or projects 
affecting multiple areas should be addressed. Therefore, EPA is 
proposing that an action's emissions in each area would be treated as 
if they result from separate actions. This would result in the need for 
two or more separate applicability analysis and conformity 
determinations where general conformity is applicable. The number of 
conformity determinations would correlate to the number of 
nonattainment or maintenance areas where the action results in direct 
or indirect emissions originating in those areas. The analysis should 
provide a comprehensive emissions inventory that includes a clear and 
separate accounting or division of emissions by nonattainment or 
maintenance area. For example, an action may occur in two nonattainment 
areas, each with a 50 ton/year de minimis threshold. If the action 
would result in total direct and indirect emissions of 55 tons/year, 
but 30 tons/year are in one area and 25 tons/year the other area, the 
action would not require a conformity determination since it would be 
considered de minimis in both areas. If the action would result in 
total direct and indirect emissions of 85 tons/year, but 60 tons/year 
are in one area and 25 tons/year the other area, the action would 
require a conformity determination in the areas with emission of 60 
tons/year but the area with 25 tons/year would not need a conformity 
determination since that portion of the action would be considered de 
minimis in that areas. EPA is proposing 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 SIPs requirements may 
vary from one area to another.
    2. The General Conformity Regulations exemptions are also area-
specific. For example, the de minimis levels are based upon the type 
and classification of the nonattainment or maintenance area.
    3. Section 176(c)(5) of the CAA limits the applicability of the 
conformity regulations to actions in nonattainment and maintenance 
areas. Therefore, actions, which affect broad regions encompassing 
several nonattainment, maintenance or attainment areas, must be 
evaluated based only on the portions of the emissions in the 
nonattainment and maintenance areas.

C. 40 CFR 93.151--State Implementation Plan (SIP) Revision

    The main purpose of 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 is not proposing to change the purpose of the section, but is 
proposing to revise the section to clarify its wording. The existing 
regulations included statements about the stringency of the SIP 
compared to the requirements in subpart B of part 93. The EPA is 
proposing to delete those statements because they duplicate statements 
in 40 CFR 51.851 which specifies the requirements for the SIP and TIP.

D. 40 CFR 93.152--Definitions

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

[[Page 1408]]

    Applicable implementation plan or applicable SIP. The EPA is 
proposing two minor revisions to the definition. First, EPA is 
proposing to correct the citation for the SIP approval and second, EPA 
is proposing to clarify the definition by adding a parenthetical phrase 
to clarify that the term includes an approved Tribal implementation 
plan (TIP). The requirements for eligible Tribes are found in 40 CFR 
49.6.
    Applicability analysis. The EPA is proposing to add this new term 
to describe the process of determining if the Federal agency must 
conduct a conformity determination for its action.
    Areawide air quality modeling analysis. The EPA is proposing to 
clarify this definition by making a minor wording change and by 
including photochemical grid model in the definition. Also, EPA is 
proposing to add an example of the type of models that could be used 
for the areawide air quality modeling analysis.
    Caused by. The basic test established by the existing definition of 
``caused by'' is that the emissions would not have occurred in the 
absence of the Federal action (Title I, Section 176). Since the general 
conformity regulations were promulgated in 1993, EPA has interpreted 
the regulations to require a Federal agency to include construction 
emissions in its conformity analysis. The EPA believes that emissions 
from construction activities initiated by, approved or funded by a 
Federal agency meets this test and should be included in the conformity 
evaluation.
    Some Federal agencies have suggested that since construction 
emissions are generally excluded from consideration under the 
transportation conformity and EPA's NSR programs, they should not be 
included in the general conformity evaluation either. Furthermore, some 
agencies pointed out, the emissions from construction activities are 
not always explicitly included in some SIPs, so it is difficult to 
demonstrate conformity for the emissions and should not factor into the 
agencies' demonstrations of conformity to those SIPs. Finally, it has 
been suggested that construction emissions are temporary and not long-
term contributors to the NAAQS violations and, therefore, may not be 
truly reflective of a completed project's contribution to a 
nonattainment or maintenance area's emissions budget.
    In EPA's Transportation Conformity program (40 CFR 51.390 and part 
93), construction emissions are generally not included in the 
conformity evaluation. The Transportation Conformity Regulations (40 
CFR 93.122(e)) do require the consideration of PM10 from 
construction-related fugitive dust only in PM10 
nonattainment and maintenance areas where the SIP identifies those 
emissions as a contributor to the nonattainment problem. In such a 
case, the regional PM10 emissions analysis must consider the 
construction-related fugitive PM10 emissions and account for 
them in the determination. The Transportation Conformity Regulations 
(40 CFR 93.122(f)) do not require the consideration of such regional 
PM2.5 emissions unless the area's SIP identifies 
construction-related fugitive PM2.5 as a significant 
contributor to the area's PM2.5 problem. In addition, the 
Transportation Conformity Regulations (40 CFR 93.123(c)(5)) do not 
require construction-related carbon monoxide (CO), PM10, and 
PM2.5 emissions to be considered in project-level hot-spot 
analyses (i.e., estimations of future localized CO, PM10 , 
and PM2.5 concentrations) unless those emissions will last 
for more than 5 years at an individual site. In the NSR program, only 
operational emissions from the source are required to be evaluated for 
the permit and construction emissions are not generally included.
    Since the General Conformity Regulations cover a wide variety of 
actions and projects, the regulations were drafted to be general enough 
to cover the differing circumstances. While a majority of Federal 
actions and projects may not involve long-term construction activities, 
some do. For example, increasing the depth of the navigable channel in 
New York Harbor is expected to take 9 to 10 years to complete. In 
addition, the States and local agencies can reasonably anticipate and 
plan for construction emissions from highway and mass transit 
activities based upon regional transportation plans and historic 
activities. However, the States, Tribes and local agencies may not be 
aware of other Federal activities requiring construction or may not be 
easily able to estimate the emissions from the construction activities. 
Therefore, the SIPs or TIPs may not adequately account for the 
emissions from those activities.
    In drafting and adopting a SIP and TIP, States, Tribes and local 
agencies generally allow for some emissions from construction 
activities either in a construction emission category or as part of 
another category, such as off-road mobile or area sources. The emission 
estimates for these categories are usually based upon historic activity 
levels or on projected future activity levels. Therefore, if at the 
time the SIP or TIP is being developed, the State, Tribe or local 
agency knows about the future actions or projects at the facility, the 
construction emissions can be incorporated into the SIP or TIP.
    For the above reasons, EPA believes that emissions from 
construction activities could in some circumstances interfere with the 
SIP or TIP and is therefore not proposing to explicitly exclude all 
construction emissions from the definition of emissions ``caused by'' 
the Federal action. However, this proposal provides several options to 
allow Federal agencies and the States or Tribes to list construction 
emissions as ``presume to conform'' or to exempt the emissions.
    1. Once included in a SIP-approved facility-wide emission budget, 
the construction emissions could be identified as exempt from the 
general conformity requirements.
    2. Under the new provisions for developing a list of ``presume to 
conform'' actions, Federal agencies, States, or Tribes can demonstrate 
that emissions from certain types of construction activities at a 
facility would conform to the SIP.
    3. Some States issue permits for construction emissions. These 
permits are essentially minor source NSR permits and emissions covered 
by them would be exempt.
    Also, EPA is proposing to clarify 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.
    Currently under the Transportation Conformity regulations, project 
level construction emissions are not required to be included for 
construction that lasts no longer than 5 years at individual sites. EPA 
also recognizes that construction activities are only temporary and for 
some projects occur for short periods of time. Since these temporary 
construction activities may last between 1 to 5 years, the EPA solicits 
comments on whether to exempt emissions from short-term construction 
activities as well as the appropriate definition of a short-term 
project.
    Confidential business information (CBI). In Sec. Sec.  93.155 and 
93.156, EPA is also proposing to specify how CBI used in the conformity 
determination is to be handled. To support those revisions, EPA is also 
proposing to add a definition of CBI. The definition is based upon that 
used to define CBI under the Freedom of Information Act.
    Conformity determination. The EPA is proposing to add a new term to 
describe the decision that a Federal agency

[[Page 1409]]

official makes in determining that the action will conform with the SIP 
or TIP.
    Conformity evaluation. The EPA is proposing to add a new definition 
to describe the entire conformity process from the applicability 
analysis through the conformity determination, if necessary.
    Continuing program responsibility. In the existing regulations, EPA 
defined the term ``emissions that a Federal agency has a continuing 
program responsibility for.'' That term was awkward and confusing. The 
EPA is proposing to shorten the term to the ``continuing program 
responsibility'' and to reformat the definition to make it clearer.
    Continuous program to implement. This term was used in the existing 
regulations but was not defined. Therefore, EPA is proposing to add a 
definition for this term. The definition would require the Federal 
agency to have a program to implement the action. That program can 
include a number of steps such as preparation of final design plans and 
can also allow for seasonal shutdowns. The definition includes a 
requirement that the action does not stop for more than 18 months 
unless such a delay is included in the original plans for the action.
    Direct emissions. The EPA is proposing to revise the definition of 
direct emissions to include a requirement that the emissions must be 
reasonably foreseeable. This requirement was unintentionally left out 
of the definition when it was promulgated in 1993.
    Emission Inventory. This term is used but not defined in the 
existing regulations. Therefore, EPA is proposing to add this term to 
the list.
    EPA. Since some States have Environmental Protection Agencies, EPA 
is proposing to add ``U.S.'' in the definition to clarify that the 
regulations refer to the U.S. Environmental Protection Agency.
    Indirect emissions. Some questions have arisen concerning whether 
emissions generated outside a nonattainment area should be accounted 
for when making a General Conformity determination for a Federal 
action. EPA is proposing to revise 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. Previous guidance regarding emissions 
generated outside of nonattainment areas was issued by EPA in 1994, 
prior to the 1995 statutory amendments to the CAA's conformity 
provisions which made conformity applicable only with respect to 
nonattainment and maintenance areas (42 U.S.C. 7506(c)(5)) and which 
eliminated any need for EPA to issue attainment area conformity 
regulations. The new definition clarifies that EPA interprets this 
statutory amendment to mean that any indirect emissions originating in 
an attainment or unclassifiable area do not need to be analyzed for 
general conformity purposes.
    ``In addition to addressing emissions generated outside of 
nonattainment areas, EPA proposes to revise the definition of 
``indirect emissions'' to add the condition that emissions must be of 
the type that ``the agency can practically control'' and for which 
``the agency has continuing program responsibility.'' The addition of 
this condition clarifies 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 (Nov. 30, 1993). The Supreme Court noted this long-held position 
in ruling that the Department of Transportation was not required to 
undertake a conformity review for its so-called ``Mexican trucks'' 
rule. DOT v. Public Citizen, 541 U.S. 752 773 (2004). Specifically, the 
Supreme Court held that DOT's rule concerning safety regulations for 
Mexican motor carriers operating within the United States interior did 
not trigger conformity even though DOT approval was required for 
Mexican trucks to cross the border into the United States. The Court 
indicated, among other reasons, that DOT ``could not refuse to register 
Mexican motor carriers simply on the ground that their trucks would 
pollute excessively. (DOT) cannot determine whether registered carriers 
actually will bring trucks into the United States, cannot control the 
routes that carriers take, and cannot determine what the trucks will 
emit. Any reduction in emissions that would occur at the hands of (DOT) 
would be mere happenstance. It cannot be said that (DOT) `practicably 
control[s]' or `will maintain control' over the vehicle emissions from 
the Mexican trucks, and it follows that the emissions from the Mexican 
trucks are not `indirect emissions.' '' Id. At 772-73.
    Local air quality modeling analysis. The EPA is proposing to revise 
the definition to include an example of the type of models that are 
used in the local air quality modeling analysis.
    Maintenance area. The EPA is proposing to make a minor wording 
change to clarify the definition by citing the regulations and the 
section of the CAA used to identify maintenance areas.
    Metropolitan Planning Organization. The EPA is proposing to revise 
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 existing regulations used the term 
``mitigation measure'' and even had a section specifying the 
requirements for a mitigation measure, however the regulations did not 
define the term. The EPA is proposing to define a mitigation measure as 
a method of reducing emissions of the pollutant at the location of the 
action. This definition would distinguish a mitigation measure from an 
offset.
    National ambient air quality standards. In 1997, EPA promulgated 
new NAAQS for both ozone and for fine particles. The definition in the 
existing regulations is broad enough to cover the new ozone standard. 
But, the definition did not cover the fine particle standard known as 
PM2.5. Therefore, EPA is revising the definition of NAAQS to 
include PM2.5.
    Precursors of criteria pollutants. The existing regulations define 
precursors for both ozone and PM10. Since the 
PM2.5 standard was promulgated after the General Conformity 
Regulations, the original regulations did not include the precursors 
for PM2.5. Therefore, EPA recently amended the regulation 
(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).
    1. Sulfur dioxide is a regulated pollutant in all PM2.5 
nonattainment and maintenance areas.\2\
---------------------------------------------------------------------------

    \2\ 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 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 on the de minimis 
amount of on-road missions 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 are a regulated pollutant in all PM2.5 
nonattainment and maintenance areas unless both the State/Tribe and EPA 
determine that it is not.
    3. Volatile organic compounds (VOC) and ammonia are not regulated

[[Page 1410]]

pollutants in any PM2.5 nonattainment or maintenance area 
unless either the State/Tribe or EPA determines that they are.
    Reasonably foreseeable emissions. As discussed above, under 
``direct emissions,'' EPA is proposing to qualify the term direct 
emissions by stating that those emissions must be reasonably 
foreseeable. Therefore, EPA is proposing to revise the term 
``reasonably foreseeable'' to include ``direct emissions.''
    Regionally significant action. As discussed in the revisions to 
93.153(i) below, EPA is proposing to delete the regionally significant 
requirement. Therefore, if EPA's proposed revision is promulgated, 
there is no need to retain this definition.
    Restricted information. As discussed in Sec. Sec.  93.155 and 156 
on reporting and public participation, EPA, at the request of the 
several Federal agencies is proposing to specify how restricted 
information used in the conformity determination is to be handled. To 
support those revisions, EPA is also proposing to add 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.
    Take or start the Federal action. The EPA is proposing to add a new 
term to define the date when an action occurs or starts. This date is 
important in determining what, if any, conformity requirements apply 
when an area is designated or re-designated as nonattainment. The EPA 
is proposing to define this term as the date the decision-maker signs a 
document such as a grant, permit, license or approval. Otherwise, EPA 
is proposing to define the term as the date the Federal agency 
physically starts the action that requires the conformity evaluation.
    Tribal implementation plan (TIP). The EPA is proposing to add a 
definition for Tribal implementation plan to mean plans adopted and 
submitted by Federally recognized Indian Tribes. Under the Tribal 
Authority Rule (40 CFR part 49), certain Tribal bodies can adopt and 
submit implementation plans to attain and maintain the NAAQS set by 
EPA, but the Tribal bodies do not set their own ambient air standards. 
The CAA allows tribes to obtain the authority to run CAA programs for 
the regulation of ``air resources within the exterior boundaries of the 
reservation or other areas within the tribe's jurisdiction'' [CAA 
Section 301(d)(2)(B)]. Tribes have authority over all air resources 
within the exterior boundaries of their reservation (including non-
Indian owned fee lands). For off-reservation areas, tribes must 
demonstrate the basis for jurisdiction. In some cases there may be a 
SIP and a TIP covering different portions of the same nonattainment 
area. In such cases emissions from an action that originate in a 
nonattainment or maintenance area that has both Tribal lands with a TIP 
and State land requiring a SIP, the emissions would need to be 
accounted for separately and the applicability and conformity analysis 
would need to be done separately for the TIP and the SIP. Therefore, 
EPA is proposing to add this definition to the regulation.

E. 40 CFR 93.153--Applicability Analysis

    The EPA is seeking to clarify 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 established by law.
    1. The EPA is proposing to revise the title of the section to 
include the word ``analysis.'' The EPA believes that adding the word 
would make the title more descriptive of the section's content.
    2. The EPA is proposing to make a minor wording change to paragraph 
(a) and (b) of Sec.  93.153. Paragraph (a) is revised to clarify the 
proper citations under which the Transportation Conformity program is 
authorized. In paragraph (b) EP