The EPA Regional Administrator, Jared Blumenfeld signed the following final 

rule on December 20, 2012 and EPA is submitting it for publication in the 

Federal Register (FR). While we have taken steps to ensure the accuracy of 

this Internet version of the final rule, it is not the official version of 

the final rule. Please refer to the official version in a forthcoming FR 

publication appearing on the Government Printing Office’s FDsys website, 

http://fdsys.gpo.gov/fdsys/search/home.action and on Regulation.gov in Docket 

Number EPA-R09-OAR-2012-0936, http://www.regulations.gov.

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 81 

[EPA-R09-OAR-2012-0936; FRL- ] 

Designation of Areas for Air Quality Planning Purposes; 

California; Morongo Band of Mission Indians

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to correct an error in a previous 

rulemaking that revised the boundaries between nonattainment 

areas in Southern California established under the Clean Air Act 

for the purposes of addressing the revoked national ambient air 

quality standard for one-hour ozone. EPA is also proposing to 

revise the boundaries of certain Southern California air quality 

planning areas to designate the Indian country of the Morongo 

Band of Mission Indians, California (Morongo Reservation) as a 

separate air quality planning area for the one-hour and 1997 

eight-hour ozone standards. 

EFFECTIVE DATE: Written comments must be received on or before 

[Insert date 30 days from the date of publication in the Federal 

Register]. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

2 

ADDRESSES: Submit your comments, identified by Docket ID No. 

EPA-R09-OAR-2012-0936, by one of the following methods: 

 1. http://www.regulations.gov: Follow the on-line 

instructions for submitting comments. 

 2. E-mail: israels.ken@epa.gov. 

 3. Fax: 415-947-3579. 

 4. Mail or deliver: Ken Israels (Mailcode AIR-8), U.S. 

Environmental Protection Agency, Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105-3901. 

Instructions: All comments will be included in the public 

docket without change and may be made available online at 

http://www.regulations.gov, including any personal information 

provided, unless the comment includes Confidential Business 

Information (CBI) or other information whose disclosure is 

restricted by statute. Information that you consider CBI or 

otherwise protected should be clearly identified as such and 

should not be submitted through the http://www.regulations.gov

or e-mail. http://www.regulations.gov is an anonymous access 

system, and EPA will not know your identity or contact 

information unless you provide it in the body of your comment. 

If you send e-mail directly to EPA, your e-mail address will be 

automatically captured and included as part of the public 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

3 

comment. 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. 

Docket: The index to the docket for this action is 

available electronically at http://www.regulations.gov and in 

hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, 

California. While all documents in the docket are listed in the 

index, some information may be publicly available only at the 

hard copy location (e.g., copyrighted material), and some may 

not be publicly available in either location (e.g., CBI). To 

inspect the hard copy materials, please schedule an appointment 

during normal business hours with the contact listed directly 

below. 

FOR FURTHER INFORMATION CONTACT: Ken Israels, Grants and Program 

Integration Office (AIR-8), U.S. Environmental Protection 

Agency, Region IX, (415) 947-4102, israels.ken@epa.gov. 

SUPPLEMENTARY INFORMATION: Throughout this document, the terms 

“we,” “us,” “our,” and “Agency” refer to EPA. 

Table of Contents 

I. Background 

A. Banning Pass and the Morongo Band of Mission Indians 

B. National Ambient Air Quality Standards 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

4 

C. Area Designations and Classifications 

II. Proposed Action 

A. Legal Authority 

B. Proposed Correction to 2003 Action 

C. Proposed Boundary Redesignation of the Morongo Reservation 

as a Separate Nonattainment Area for the One-Hour Ozone and 

Eight-Hour Ozone Standards 

III. Summary of Proposed Action and Request for Public Comment 

IV. Statutory and Executive Order Reviews 

I. Background 

A. Banning Pass and the Morongo Band of Mission Indians 

Connecting the South Coast Air Basin to the Coachella 

Valley, the Banning Pass (also known as the San Gorgonio Pass) 

is one of the three major routes by which air pollutants are 

transported out of the Los Angeles metropolitan area (which lies 

within the South Coast Air Basin). Banning Pass runs in an eastwest direction for about 15 miles and is about 5 miles wide. The 

pass starts west of Beaumont, California at an elevation of 

about 2,200 feet and reaches a maximum elevation of around 2,600 

feet in the city of Beaumont, then drops to an elevation of near 

1,400 feet between Cabazon and White Water. The San Bernardino 

Mountains are on the north side of the pass and the San Jacinto 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

5 

Mountains are on the south side. The San Bernardino Mountains 

reach a maximum elevation of approximately 11,500 feet at the 

top of San Gorgonio Mountain and the San Jacinto Mountains reach 

a maximum elevation of approximately 10,800 feet at Mt. San 

Jacinto. 

The Morongo Band of Mission Indians, California (“Morongo 

Tribe” or “Tribe”) is a federally-recognized Indian tribe whose 

Indian country1 (“Morongo Reservation” or “Reservation”) lies 

within the Banning Pass. The Morongo Reservation covers 

approximately 35,000 acres and is home to approximately 1,500 

full-time residents.2 The Morongo Reservation is rural, and most 

of the current land use is residential or agricultural. The 

Morongo Reservation also hosts a hotel and casino, among other 

enterprises. 

The eastern edge of the Morongo Reservation abuts the 

 

1 “Indian country” as defined at 18 U.S.C. 1151 refers to: “(a) all land 

within the limits of any Indian reservation under the jurisdiction of the 

United States Government, notwithstanding the issuance of any patent, and, 

including rights-of-way running through the reservation, (b) all dependent 

Indian communities within the borders of the United States whether within the 

original or subsequently acquired territory thereof, and whether within or 

without the limits of a state, and (c) all Indian allotments, the Indian 

titles to which have not been extinguished, including rights-of-way running 

through the same.” The Morongo Tribe is the only Tribe that has Indian 

country in the portion of the Banning Pass at issue in this rulemaking. 

2 See EPA’s 2008 eight-hour ozone standard designations Technical Support 

Document (TSD) found at 

http://www.epa.gov/groundlevelozone/designations/2008standards/documents/R9_C

A_TSD_FINAL.pdf
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

6 

current boundary between the South Coast Air Basin and Southeast 

Desert/Coachella Valley air planning areas. Most of the Morongo 

Reservation is located north of Interstate 10, just east of the 

City of Banning, but some of the Reservation is located south of 

Interstate 10 as well. 

B. National Ambient Air Quality Standards 

The Clean Air Act (CAA or “Act”) requires EPA to establish 

a National Ambient Air Quality Standard (NAAQS or “standard”) 

for pollutants that “may reasonably be anticipated to endanger 

public health and welfare” and to develop a primary and 

secondary standard for each NAAQS. The primary standard is 

designed to protect human health with an adequate margin of 

safety and the secondary standard is designed to protect public 

welfare and the environment. EPA has set NAAQS for six common 

air pollutants, referred to as criteria pollutants: ozone, 

carbon monoxide, nitrogen dioxide, sulfur dioxide, particulate 

matter, and lead. 

In 1979, EPA promulgated the first ozone3 standard of 0.12 

parts per million (ppm), averaged over a one-hour period (“one-

 

3 Ground-level ozone is a gas that is formed by the reaction of volatile 

organic compounds (VOC) and oxides of nitrogen (NOx) in the atmosphere in the 

presence of sunlight. These precursor emissions are emitted by many types of 

pollution sources, including power plants and industrial emissions sources, 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

7 

hour ozone standard”), to replace an earlier photochemical 

oxidant standard. In 1997, EPA revised the ozone standard to 

0.08 ppm, eight-hour average (“1997 eight-hour ozone standard”), 

and then, in 2008, lowered the eight-hour ozone standard to 

0.075 ppm (“2008 ozone standard”). Today’s proposed action 

relates only to the designations and classifications for the 

one-hour ozone and 1997 eight-hour ozone standards, discussed 

below, but relies on EPA's analysis and rationale for the 

Agency's recent designations for the 2008 ozone standard. 

C. Area Designations and Classifications 

Areas of the country were originally designated as 

attainment, nonattainment, or unclassifiable following enactment 

of the 1977 Amendments to the CAA. See 43 FR 8962 (March 3, 

1978). These designations were generally based on monitored air 

quality values compared to the applicable standard. Under the 

1990 Amendments to the CAA, ozone nonattainment areas were 

further classified as “Marginal,” “Moderate,” “Serious,” 

“Severe” or “Extreme” depending upon the severity of the ozone 

problem. Area designations and classifications are codified in 

 

on-road and off-road motor vehicles and engines, and smaller sources, 

collectively referred to as area sources. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

8 

40 CFR part 81; area designations and classifications for 

California are codified at 40 CFR 81.305. 

EPA has historically designated areas in Southern 

California by referencing air basins, including the South Coast 

Air Basin4 and the Southeast Desert Air Basin. More recently, the 

EPA has recognized California’s division of the former Southeast 

Desert Air Basin into the Mojave Desert Air Basin and the Salton 

Sea Air Basin. The relevant portion of the Southeast Desert Air 

Basin (and Salton Sea Air Basin) for the purposes of this 

proposed action is Coachella Valley, which covers roughly the 

middle third of Riverside County, i.e., east of the South Coast 

Air Basin and west of the Little San Bernardino Mountains. 

Historically, the Morongo Reservation was included in the 

Coachella Valley portion of the Southeast Desert Air Basin and 

was designated accordingly for the various standards. In 2002, 

the State of California requested that EPA revise the boundaries 

of the South Coast Air Basin and the Southeast Desert Air Basin 

to remove the Banning Pass area from the Coachella Valley 

portion of the Southeast Desert Air Basin and include it in the 

 

4 The South Coast includes Orange County, the southwestern two-thirds of Los 

Angeles County, southwestern San Bernardino County, and western Riverside 

County (see 40 CFR 81.305).
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

9 

South Coast Air Basin. See 68 FR 57820 (October 7, 2003).5

Specifically, California sought to establish a new boundary 

approximately 18 miles east of the then-established boundary 

between the South Coast Air Basin and the Coachella Valley 

portion of the Southeast Desert Air Basin. The boundary between 

the two basins was to be moved from the range line common to 

Range 2 West and Range 1 West to the range line common to Range 

2 East and Range 3 East (San Bernardino Base and Meridian).6 On 

October 7, 2003, EPA approved California’s boundary change 

request (68 FR 57820). 

With respect to the one-hour ozone standard, EPA’s 2003 

action had the effect of moving the Morongo Reservation from the 

Coachella Valley portion of the “Southeast Desert Modified AQMA 

 

5 California also requested two other specific boundary changes: (1) to move 

the eastern boundary of the Coachella Valley portion of the Southeast Desert 

ozone nonattainment area further east to match the boundaries of the 

Coachella Valley PM-10 nonattainment area, and (2) to correct an error in the 

eastern boundary of the San Bernardino County portion of the South Coast Air 

Basin with respect to carbon monoxide. Unlike the boundary change to enlarge 

the South Coast to include the entire Banning Pass area, the change in the 

eastern boundary of the Coachella Valley portion of the Southeast Desert 

ozone nonattainment area did not affect Indian country and would not be 

affected by today’s proposed action. The approval of the State’s request to 

correct the carbon monoxide boundary simply fixed a typographical error and 

thereby removed from the South Coast carbon monoxide nonattainment area a 

portion of San Bernardino County that neither EPA nor California intended to 

be included. See 68 FR 48848, at 48850 (August 15, 2003). EPA’s correction of 

the carbon monoxide boundary in San Bernardino County would also be 

unaffected by today’s proposed action. 

6 For a detailed map of the area, please see the technical support document 

(TSD) for this proposed rulemaking available in the docket for this action, 

EPA-R09-OAR-2012-0936. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

10 

Area” (“Southeast Desert”) to the South Coast Air Basin and 

changing the designations and classifications accordingly. 

Specifically, EPA’s 2003 action had the effect of changing the 

ozone nonattainment area classification for the Banning Pass 

area, including the Morongo Reservation, from “Severe-17” to 

“Extreme”.7 

In 2004, EPA promulgated area designations and 

classifications for the 1997 eight-hour ozone standard. Among 

the California areas, EPA designated the “Los Angeles-South 

Coast Air Basin, CA,” the boundary of which coincided with the 

boundary for the one-hour ozone standard, as amended in 2003 to 

include the entire Banning Pass, including the Morongo 

Reservation, as a “Severe-17” nonattainment area. See 69 FR 

23858 (April 30, 2004). In EPA’s 2004 final rule, the Agency 

designated “Riverside Co. (Coachella Valley), CA” (“Coachella 

Valley”) as a “Serious” nonattainment area. In 2007, the State 

 

7 For carbon monoxide, EPA’s action had the effect of changing the 

designation of the Banning Pass area from “unclassifiable/attainment” to 

“Serious” nonattainment. With respect to particulate matter with an 

aerodynamic diameter less than or equal to a nominal 10 micrometers (“PM10”), 

the action did not change the designation or classification of the Banning 

Pass because both the South Coast Air Basin and Coachella Valley are 

“Serious” nonattainment areas for that pollutant. Both the South Coast and 

Coachella Valley are designated as unclassifiable or attainment for the 

nitrogen dioxide and sulfur dioxide standards, but, for nitrogen dioxide, the 

South Coast Air Basin is a former nonattainment area for which a maintenance 

plan has been approved. See 63 FR 39747 (July 24, 1998). Today's proposed 

action relates only to the designations and classifications for the one-hour 

ozone and 1997 eight-hour ozone standards. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

11 

of California requested that EPA reclassify the South Coast 

nonattainment area from “Severe-17” to “Extreme” and the 

Coachella Valley nonattainment area from “Serious” to “Severe15” for the 1997 eight-hour ozone standard. 

In response to EPA’s 2003 boundary change action and 

California's 2007 reclassification request, the Morongo Tribe 

requested that EPA create a separate nonattainment area for the 

Morongo Reservation or, alternatively, move the western boundary 

of the Coachella Valley area westward to include the Morongo 

Reservation. See letter from Robert Martin, Chairman, Morongo 

Band of Mission Indians, to Deborah Jordan, Director, Air 

Division, EPA Region IX, dated May 29, 2009. 

In 2009, in response to California’s 2007 reclassification 

request, EPA proposed that all Indian country in the South Coast 

be reclassified in keeping with the classification of non-Indian 

country State lands to “Extreme” for the 1997 eight-hour ozone 

standard. See 43 FR 43654 (August 27, 2009). In 2010, EPA took 

final action granting the request by California to reclassify 

the South Coast Air Basin from “Severe-17” to “Extreme” for the 

1997 eight-hour ozone standard, and to reclassify all Indian 

country, except that pertaining to the Morongo Tribe and the 

Pechanga Tribe, in keeping with the reclassification of non-
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

12 

Indian country State lands to “Extreme.” With respect to the 

Morongo Tribe and the Pechanga Tribe, EPA deferred 

reclassification pending EPA’s final decisions on their 

previously-submitted boundary change requests. See 75 FR 24409 

(May 5, 2010). In EPA's 2010 final rule, the Agency also granted 

the request to reclassify the Coachella Valley nonattainment 

area to “Severe-15.” 

Today’s proposed action would correct EPA’s 2003 action to 

the extent that the action relates to the designations and 

classifications of the Morongo Reservation for the one-hour 

ozone standard and would establish a separate one-hour ozone 

nonattainment area for the Reservation. Today's proposed action 

would also grant the Tribe’s request to revise the boundary 

designation and to designate the Morongo Reservation as a 

separate nonattainment area for the 1997 eight-hour ozone 

standard.8 

Today’s proposed action would not affect the current 

designations and classifications of the Morongo Reservation for 

any of the other standards. Today’s proposed action would also 

 

8 If we finalize our proposed action to revise the boundaries of the South 

Coast to designate the Morongo Reservation as a separate nonattainment area 

for the 1997 eight-hour ozone standard, EPA will withdraw our proposed rule 

to reclassify Indian country in the South Coast to “Extreme” for the 1997 

eight-hour ozone standard (74 FR 43654, August 27, 2009) to the extent that 

the 2009 proposed rule relates to the Morongo Reservation. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

13 

not affect the designations and classifications for any 

pollutant with respect to State lands. 

II. Proposed Action 

A. Legal Authority 

The relevant statutory provisions for this proposed action 

are CAA section 110(k)(6), which is EPA’s error correction 

authority, and CAA sections 107(d)(3), 301(a) and 301(d), which 

are EPA’s authority to redesignate Indian country areas under 

these circumstances. 

Section 110(k)(6) of the CAA provides: “Whenever the 

Administrator determines that the Administrator’s action 

approving, disapproving, or promulgating any plan or plan 

revision (or part thereof), area designation, redesignation, 

classification, or reclassification was in error, the 

Administrator may in the same manner as the approval, 

disapproval, or promulgation revise such action as appropriate 

without requiring any further submission from the State. Such 

determination and the basis thereof shall be provided to the 

State and public.” We interpret this provision to authorize the 

Agency to make corrections to a promulgated regulation when it 

is shown to our satisfaction that (1) we clearly erred in 

failing to consider or inappropriately considering information 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

14 

made available to EPA at the time of the promulgation, or the 

information made available at the time of promulgation is 

subsequently demonstrated to have been clearly inadequate, and 

(2) other information persuasively supports a change in the 

regulation. See 57 FR 56762, at 56763 (November 30, 1992). 

Sections 107(d)(3)(A)-(C) provide that EPA may initiate the 

redesignation process “on the basis of air quality data, 

planning and control considerations, or any other air qualityrelated considerations the Administrator deems appropriate,” and 

“promulgate the redesignation, if any, of the area or portion 

thereof.” CAA section 107(d)(3) does not refer to Indian 

country, but consistent with EPA’s discretionary authority in 

CAA sections 301(a) and 301(d)(4) to directly administer CAA 

programs, and protect air quality in Indian country through 

federal implementation, EPA is authorized to directly administer 

sections 107(d)(3)(A)-(C) and redesignate Indian country areas.9 

B. Proposed Correction to 2003 Action 

 

9 Revisions of designations are referred to as “redesignations.” Boundary 

changes revise an area’s designation and, as such, represent one type of 

redesignation. As a general matter, EPA is no longer acting to redesignate 

areas with respect to the revoked one-hour ozone standard. However, in this 

instance, EPA is proposing to revise the designation of an air quality 

planning area in concert with a proposal to correct a clear error that 

occurred with respect to Indian country prior to revocation of the one-hour 

ozone standard. As indicated in this document, EPA believes that correction 

of this error is justified by the specific jurisdictional context and the ongoing regulatory impacts on the Morongo Tribe arising from the error. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

15 

We have reviewed the materials submitted by the State of 

California in connection with the State’s 2002 request to 

enlarge the South Coast Air Basin to include the Banning Pass 

area, thereby removing the area from the Southeast Desert. We 

have also reviewed EPA’s rationale for approving the State’s 

request. On the basis of that review, and for reasons given 

below, EPA has concluded that while EPA’s action to approve 

California’s request was not erroneous with respect to state 

lands, it was erroneous with respect to the Morongo Reservation 

and that we have sufficient justification to correct the error 

at this time. 

First, a review of the items listed in EPA’s administrative 

record for EPA’s proposed (68 FR 48848, August 15, 2003) and 

final (68 FR 57820, October 7, 2003) rules approving 

California’s boundary change request reveals no reference to, or 

map illustrating the location of, the Morongo Reservation. 

Second, from review of the record, it is clear that EPA 

understood its action as one in which the Agency was taking 

action on a State request under CAA section 107(d)(3)(D). See, 

e.g., the proposed rule at 48850 (“... we are proposing to fully 

approve [the requests] under CAA section 107(d)(3)(D).”). 

Section 107(d)(3)(D) provides: “The Governor of any State may, 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

16 

on the Governor’s own motion, submit to the Administrator a 

revised designation of any area or portion thereof within the 

State.” Typically, however, states are not approved to 

administer programs under the CAA in Indian country, and 

California has not been approved by EPA to administer any CAA 

programs in Indian country. CAA actions in Indian country would 

thus generally be taken either by EPA, or by an eligible Indian 

tribe itself under an EPA-approved program. In this case, the 

Morongo Tribe has not applied under CAA section 301(d) for 

treatment-in-a-similar-manner-as-a-state (TAS) for purposes of 

designations and redesignations under section 107(d) and does 

not implement any relevant EPA-approved CAA regulatory program, 

nor has the tribe developed a tribal implementation plan (TIP).10

In these circumstances, EPA is the appropriate entity to 

administer relevant CAA programs in Indian country. 

Thus, with respect to the Indian country located within an 

area subject to a State boundary change request, EPA is the 

appropriate entity to initiate and promulgate the redesignation, 

and EPA could do so under CAA sections 107(d)(3)(A)-(C) and 

 

10 In addition, the CAA does not require Indian tribes to develop and seek 

approval of air programs, and pursuant to our authority in CAA section 

301(d), EPA has interpreted relevant CAA requirements for submission of air 

programs as not applying to tribes. See 40 CFR 49.4. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

17 

sections 301(a) and 301(d)(4), as discussed above in subsection 

II.A (“Legal Authority”). While EPA thus had authority to change 

the boundary of the South Coast Air Basin with respect to Indian 

country, it is apparent from the proposed and final rules in 

2003 that EPA did not recognize that it was acting under that 

authority or appropriately consider the effect of the action on 

Indian country lands. EPA recognized only that the Agency was 

acting on a State request under section 107(d)(3)(D) and 

reviewed the request accordingly. As noted previously, states 

are not approved to administer CAA programs in Indian country.11 

If EPA’s actions had more explicitly addressed the fact 

that the State’s request affected tribal lands, and also had 

expressly considered the Tribe’s position with respect to the 

State’s request to revise the boundary in relation to Indian 

country, EPA might well have relied upon the same criteria cited 

in the proposed rule. The criteria, set forth in section 

107(d)(3)(A) include “air quality data, planning and control 

considerations, or any other air quality-related considerations 

the Administrator deems appropriate”. The evaluation of 

 

11 EPA is not excluding the possibility that Tribes can agree with State 

requests in certain circumstances, nor are we suggesting that we would undo 

actions we took just because we did not explicitly identify Indian country 

land that was included with the State land. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

18 

“planning and control considerations” for Indian country, 

however, differs from that for State lands. In this instance, 

with respect to State lands, the South Coast Air Quality 

Management District (SCAQMD) has planning and permitting 

responsibility over the entire Banning Pass area, as well as the 

South Coast, and Coachella Valley, and administers an EPAapproved (nonattainment) New Source Review (NSR) program under 

which permits may be issued to new or modified stationary 

sources. 

In contrast, EPA currently administers relevant CAA 

programs on the Morongo Reservation. Until recently, EPA had not 

established a NSR program applicable to the Reservation. This 

means that a higher ozone classification, and simultaneous 

lowering (i.e., more stringent) of NSR major source thresholds, 

would have presented a greater challenge for new and modified 

stationary sources at the Morongo Reservation than for similar 

sources on State lands in the Banning Pass subject to SCAQMD’s 

EPA-approved NSR program. (EPA’s NSR rule for Indian country, 

including the Morongo Reservation, was published on July 1, 2011 

at 76 FR 38748 and took effect on August 30, 2011.) 

Moreover, state law and SCAQMD rules restrict the use of 

emission reduction credits generated under SCAQMD rules by major 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

19 

new or modified sources located within the South Coast Air 

Basin, but outside the scope of the SCAQMD program. See SCAQMD 

Rule 1309 (“Emission Reduction Credits”), subsection (h)(3); and 

California Health & Safety Code section 40709.6 (“Offset by 

reductions credited to stationary sources located in another 

district”). Given the few emissions sources on the Morongo 

Reservation, reliance upon emissions reductions by sources off 

the Reservation to offset emissions from any major new or 

modified sources on the Reservation is inevitable and because of 

the limitations in state law and SCAQMD rules, the availability 

of such emissions reductions is uncertain. 

Therefore, as described above, in the specific 

circumstances presented here, and based on our review of the 

record from the 2003 rulemaking, we conclude that EPA erred in 

including the Morongo Reservation in the 2003 boundary change 

approval. Because Indian country was subsumed into a larger area 

for which the State requested a boundary revision, EPA should 

not have acted solely with respect to the State’s request under 

107(d)(3)(D), but should have fulfilled its responsibilities 

pursuant to section 107(d)(3)(A)-(C), and sections 301(a) and 

301(d) and considered the relevant criteria from the perspective 

of Indian country. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

20 

Furthermore, we recognize that the boundary change has had 

adverse regulatory impacts on the Morongo Tribe, particularly by 

lowering the one-hour ozone NSR major source threshold from 25 

tons per year to 10 tons per year. This adverse regulatory 

impact continues to affect the Tribe, even though the one-hour 

ozone standard was revoked, effective on June 15, 2005 [i.e., 

one year from the designations for the eight-hour ozone standard 

- see 40 CFR 50.9(b)]. 

With respect to the one-hour ozone standard and the related 

NSR major source thresholds, the Tribe continues to be affected 

because, in the wake of a decision by the U.S. Court of Appeals 

for the D.C. Circuit challenging EPA’s Phase I Implementation 

Rule for the eight-hour ozone standard,12 the NSR requirements 

that had applied by virtue of the area’s classification as of 

June 15, 2004 continue to apply under anti-backsliding 

requirements established by EPA for the transition from the onehour ozone standard to the eight-hour ozone standard. See 77 FR 

28424 (May 14, 2012) for information concerning the NSR 

requirement and the anti-backsliding provisions for the former 

one-hour ozone standard. Thus, notwithstanding the revocation of 

 

12 South Coast Air Quality Management District v. EPA, 472 F.3d 882 (D.C. 

Cir. 2006) reh’g denied 489 F.3d 1245 (clarifying that the vacatur was 

limited to the issues on which the court granted the petitions for review). 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

21 

the one-hour ozone standard, the applicable major source NSR 

thresholds for the Morongo Reservation continue to be 10 tons 

per year, based on the inclusion of the Reservation in the South 

Coast because the South Coast was classified as “Extreme” for 

the one-hour ozone standard on June 15, 2004. 

In sum, given the on-going effects that flow from our 2003 

error, we are persuaded to propose action now to correct the 

error in our 2003 boundary change action as it relates to the 

Morongo Reservation. 

In considering how to correct the error in our 2003 

boundary change action, we have concluded from our review of the 

administrative record for that rulemaking that EPA did not 

commit an error with respect to State lands. Our proposed action 

addresses only the specific regulatory impact on the Morongo 

Reservation, and otherwise leaves the 2003 action unchanged. 

Thus, we propose to rescind the 2003 boundary change rule only 

with respect to the Morongo Reservation for the revoked one-hour 

ozone standard. 

Revocation of the 2003 boundary change rule with respect to 

the Morongo Reservation would return it to its status before the 

2003 boundary change, when the Reservation was included in the 

Southeast Desert one-hour ozone nonattainment area. (see section 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

22 

I.C. herein). In this action, however, EPA is taking the 

additional step of proposing to revise the boundaries of the 

Southeast Desert to designate the Morongo Reservation as a 

separate one-hour ozone nonattainment area. If both proposed 

actions are finalized, the Morongo Reservation would resume the 

one-hour ozone nonattainment classification it previously shared 

with the Southeast Desert (i.e., “Severe-17”). 

We are not proposing to rescind the 2003 action with 

respect to area designations for any of the other standards, 

because the Tribe has not faced any significant adverse 

regulatory impacts from the boundary change with respect to 

those pollutants. Our proposed action would not affect any area 

designations or classifications with respect to State lands. 

C. Proposed Boundary Redesignation of the Morongo Reservation as 

a Separate Nonattainment Area for the One-Hour Ozone and 1997 

Eight-Hour Ozone Standards 

As noted previously, on May 29, 2009, the Morongo Tribe 

submitted a request to EPA for a boundary change to create a 

separate ozone nonattainment area, or in the alternative, to 

move the western boundary of the Coachella Valley nonattainment 

area westward to include the Morongo Reservation. As noted 

above, we are authorized to redesignate Indian country areas 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

23 

under these circumstances under CAA sections 107(d)(3)(A)-(C), 

301(a) and 301(d). 

Recently, EPA issued a policy (referred to herein as the 

“Tribal Designation Policy”) for establishing separate air 

quality designations for areas of Indian country.13 Where EPA 

receives a request for a boundary change from a tribe seeking to 

have its Indian country designated as a separate area, the 

policy indicates that EPA will make decisions regarding these 

requests on a case-by-case basis after consultation with the 

tribe. As a matter of policy, EPA believes that it is important 

for tribes to submit the following information when requesting a 

boundary change: a formal request from an authorized tribal 

official; documentation of Indian country boundaries to which 

the air quality designation request applies; concurrence with 

EPA’s intent to include the identified tribal lands in the 40 

CFR part 81 table should EPA separately designate the area; and 

a multi-factor analysis to support the request. See Tribal 

Designation Policy, pages 3 and 4. 

 

13 See memorandum from Stephen D. Page, Director, EPA Office of Air Quality 

Planning and Standards, to EPA Regional Air Directors, Regions I-X, dated 

December 20, 2011, titled “Policy for Establishing Separate Air Quality 

Designations for Areas of Indian Country.” 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

24 

The Tribal Designation Policy states that EPA intends to 

make decisions regarding a tribe’s request for a separate air 

quality designation after all necessary consultation with the 

tribe and, as appropriate, with the involvement of other 

affected entities, and after evaluating whether there is 

sufficient information to support such a designation. Boundary 

change requests for a separate air quality designation should 

include an analysis of a number of factors (referred to as a 

“multi-factor analysis,”) including air quality data, emissionsrelated data (including source emissions data, traffic and 

commuting patterns, population density and degree of 

urbanization), meteorology, geography/topography, and 

jurisdictional boundaries.14 EPA believes these factors are 

appropriate to consider in acting under CAA sections 

107(d)(3)(A)-(C), 301(a) and 301(d). 

On May 29, 2009, the Chairman of the Morongo Tribe 

submitted the Tribe’s request for a separate ozone nonattainment 

area that included a multi-factor analysis addressing air 

quality data, emissions data, meteorology, geography/topography, 

and jurisdictional boundaries. As such, although submitted prior 

 

14 The Tribal Designation Policy also states that, in addition to information 

related to the identified factors, tribes may submit any other information 

that they believe is important for EPA to consider. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

25 

to release of the Tribal Designation Policy, the Morongo Tribe’s 

request for a boundary change to create a separate ozone 

nonattainment area, in conjunction with EPA’s additional 

analysis found in the technical support document for this 

proposed action, represents the type of formal, official request 

and supporting information called for in the policy.15

EPA recently reviewed the Morongo Tribe’s multi-factor 

analysis in connection with designating areas of the country for 

the 2008 ozone standard. Upon review of the Tribe's analysis and 

EPA's own supplemental analysis in light of the Tribal 

Designation Policy, EPA designated the Morongo Reservation as a 

separate nonattainment area for the 2008 ozone standard. See 77 

FR 30088 (May 21, 2012). We believe that EPA’s analysis and 

recent decision to designate the Morongo Reservation as a 

separate nonattainment area for the 2008 ozone standard is 

directly relevant to our consideration of whether to revise the 

boundaries of existing air quality planning areas to designate 

the Morongo Reservation as a separate nonattainment area for the 

one-hour and 1997 eight-hour ozone standards. We recognize that 

 

15 In addition, EPA has consulted with the tribe several times about this 

matter. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

26 

the three standards address the same pollutant, and thus share 

multi-factor analyses and considerations.16

EPA is therefore adopting the analysis and rationale 

previously relied upon by EPA in establishing the Morongo 

nonattainment area for the 2008 ozone standard. Key findings 

from the 2008 ozone designations decision that we are adopting 

for this proposed action include:17

· Air quality data: The SCAQMD-run monitor in Banning 

is located within two miles of the Morongo monitor, 

and data from SCAQMD’s Banning monitor is appropriate 

for use as a regulatory monitor and is representative 

of air quality within the Morongo Reservation. Eighthour ozone concentrations measured at the SCAQMD-run 

Banning ozone monitor shows continued violations of 

the 1997 eight-hour ozone standard and, reflecting the 

transitional nature of the Banning Pass area, contrast 

with the higher design values of the South Coast Air 

 

16 EPA also notes that in using many of the same factors found in the 2008 

ozone designations process, we are using factors that represent the most 

current information regarding meteorology, air quality, etc. in the area and 

therefore we believe serve the purposes of being representative for the 

previously established ozone standards. 

17 See the TSD associated with this proposal for our detailed analysis of 

each of the factors. Our TSD also shows that violations continue for the onehour standard and that the transitional characteristic observed for the 

eight-hour ozone data also applies to the one-hour ozone data. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

27 

Basin to the west and lower design values in Southeast 

Desert to the east;18

· Emissions data: Sources of air pollutants located on 

or associated with the Morongo Reservation consist of 

stationary sources that generate less than 20 tons per 

year (tpy) of NOx and less than 20 tpy of VOC, and 

motor vehicles for travel associated with the 1,500 

residents and visitors to the Morongo Casino Resort. 

In contrast, ozone precursor emissions from the 

adjacent Los Angeles-South Coast Air Basin 

nonattainment area exceed 400,000 tpy of NOx and over 

200,000 tpy of VOC, with a total population of 

approximately 17 million people.19 To the east, ozone 

precursor emissions from the adjacent Riverside County 

(Coachella Valley, which was originally part of the 

Southeast Desert Air Basin) nonattainment area exceed 

 

18 In performing our analysis, EPA relied on data from the following 

monitoring stations in our air quality system (AQS): Redlands (AQS #06-071-

4003), Banning (AQS #06-065-0012), and Palm Springs (AQS #06-065-5001). EPA 

believes that the Banning monitor, given its proximity, is representative of 

the Morongo Indian Country’s air quality. EPA also notes that, while the 

Morongo Tribe operates its own monitor, we did not use that data for this 

action. 

19 See page 5 of the Morongo portion of the 2008 eight-hour ozone standard 

TSD found at 

http://www.epa.gov/groundlevelozone/designations/2008standards/documents/R9_C

A_TSD_FINAL.pdf
This document is a prepublication version signed by EPA Regional 

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ensure the accuracy of this version, but it is not the official version. 

28 

50,000 tpy of NOx and 28,000 tpy of VOC, with a 

population of over 2 million people;20 

· Meteorology: Under most meteorological conditions, 

air from the coastal plain (i.e., South Coast) to the 

west is funneled through Banning Pass to the desert 

area to the east. As a mountain pass area, the 

meteorology is dissimilar from that of either the 

coastal plain to the west or the desert area to the 

east. The winds are more frequent and stronger, with a 

more westerly component, than those in most of the 

coastal plain, and the temperatures vary more than in 

most of the coastal plain but not as much as in the 

desert area to the east.21 Thus, in some ways, the 

Banning Pass is transitional between the coastal and 

desert areas; in other ways, as a mountain pass, the 

Banning Pass is simply unlike either area to the west 

or east; 

 

20 See page 6 of the Morongo portion of the 2008 eight-hour ozone standard 

TSD found at 

http://www.epa.gov/groundlevelozone/designations/2008standards/documents/R9_C

A_TSD_FINAL.pdf

21 Meteorological information for the Morongo Reservation is from 2005-2009 

Weather and Air Quality Summary, prepared by the Morongo Band of Mission 

Indians, Environmental Protection Department, Tribal Air Program, August 

2010. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

29 

· Geography/topography: The topographical 

characteristics of the Banning Pass create very 

different climatic conditions than found in the 

coastal plain to the west or the desert area to the 

east, such as persistently strong westerly air flow 

that is compressed and channeled by the elevated land 

mass of the Pass itself and the steep mountain peaks 

to the north and south; and 

· Jurisdictional boundaries: Although the Morongo 

Reservation contains stationary and mobile sources of 

ozone precursors, the magnitude of ozone precursor 

emissions is very small compared to emissions from the 

adjacent Los Angeles-South Coast Air Basin and 

Coachella Valley nonattainment areas. Because the 

analysis of factors does not conclusively indicate 

that the sources located on the Morongo Reservation 

contribute to nonattainment in the surrounding area, 

EPA believes that consistent with the principles set 

forth in the Tribal Designation Policy, the 

jurisdictional boundaries factor is especially 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

30 

important in the decision-making process for 

designating the Morongo Reservation. 

 Air quality data, meteorology and topography indicate that 

the Morongo Reservation experiences transitional conditions 

characteristic of a mountain pass area through which pollutants 

are channeled from a highly urbanized metropolitan nonattainment 

area to the west to the relatively less developed nonattainment 

area to the east. Considering the three factors of air quality 

data, meteorology, and topography, EPA could reasonably include 

the Morongo Reservation in either the South Coast nonattainment 

area to the west, or the Southeast Desert nonattainment area to 

the east, as EPA has done in the past for the one-hour ozone 

standard and the 1997 eight-hour ozone standard. Alternatively, 

the Agency could establish a separate nonattainment area for the 

Morongo Reservation as it did for the 2008 eight-hour ozone 

standard.22 

However, taking into account the minimal amount of 

emissions associated with activities on the Morongo Reservation 

and corresponding minimal contribution to regional ozone 

violations, we believe that in these circumstances it is 

appropriate to assign particular weight to the jurisdictional 

 

22 See 77 FR 30088, dated May 21, 2012. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

31 

boundaries factor, and it is consistent with the principles for 

designations of Indian country set forth in the Tribal 

Designation Policy. Moreover, the Tribe has invested in the 

development of its own air program, including operation of 

weather stations and an air monitoring station, and has 

expressed interest in development of its own permitting program. 

Under the jurisdictional boundaries factor, we find that 

redesignation of the Morongo Reservation as a separate ozone 

nonattainment area for the one-hour ozone and 1997 eight-hour 

ozone standards would be appropriate. Therefore, consistent with 

the designation of the Morongo Reservation for the 2008 ozone 

standard, we propose to revise the boundaries of the Southeast 

Desert one-hour ozone nonattainment area and the boundaries of 

the South Coast 1997 eight-hour ozone nonattainment area to 

designate the Morongo Reservation as a separate nonattainment 

area for the one-hour and 1997 eight-hour ozone standards. 

III. Summary of Proposed Action and Request for Public Comment 

Under section 110(k)(6) of the CAA, EPA is proposing to 

correct an error in a 2003 final action that revised the 

boundaries between areas in Southern California established 

under the CAA for the purposes of addressing the standard for 

one-hour ozone. EPA has determined that the Agency erred in the 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

32 

2003 final action to change the boundary of the South Coast Air 

Basin, which enlarged the basin to include all of the Banning 

Pass area. In taking that action, EPA failed to consider the 

presence of Indian country (i.e., the Morongo Reservation) 

located therein. EPA thus failed to consider the status of the 

Indian country under the appropriate statutory and regulatory 

provisions when it evaluated and acted upon the State’s boundary 

change request. EPA believes that its error resulted in 

regulatory consequences for the Morongo Tribe that justify 

making a correction. 

Specifically, EPA is proposing to rescind the 2003 final 

action, as it pertains to the Morongo Reservation for the onehour ozone standard. This proposed action would not affect the 

designations and classifications of State lands. 

Second, under CAA section 107(d)(3), 301(a) and 301(d), we 

propose to revise the boundaries of the Southeast Desert to 

designate the Morongo Reservation as a separate nonattainment 

area for the one-hour ozone standard and to classify the Morongo 

Reservation as “Severe-17,” i.e., consistent with its prior 

classification when it was included in the Southeast Desert. 

Third, also under CAA section 107(d)(3), 301(a) and 301(d), we 

are proposing to revise the boundaries of the South Coast to 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

33 

designate the Morongo Reservation as a separate nonattainment 

area for the 1997 eight-hour ozone standard and to classify the 

Morongo Reservation as “Severe-17,” i.e., consistent with its 

original classification when it was included in the South Coast. 

We are proposing to redesignate the Morongo Reservation as 

a separate air quality planning area for the one-hour ozone and 

1997 eight-hour ozone standards based on our conclusion that 

factors such as air quality data, meteorology, and topography do 

not definitively support inclusion of the Reservation in either 

the South Coast or the Southeast Desert air quality planning 

areas, that Morongo Reservation emissions sources contribute 

minimally to regional ozone concentrations, and that the 

jurisdictional boundaries factor should be given particular 

weight under these circumstances. 

If finalized as proposed, the Morongo air quality planning 

area for the one-hour and 1997 eight-hour ozone standards would 

have the same boundaries as the Morongo nonattainment area for 

the 2008 eight-hour ozone standard. Moreover, if finalized as 

proposed, new or modified stationary sources proposed for 

construction on the Morongo Reservation would be subject to the 

NSR major source thresholds for “Severe-17” ozone nonattainment 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

34 

areas, rather than the more stringent thresholds for “Extreme” 

ozone nonattainment areas. 

EPA is soliciting public comments on the issues discussed 

in this document and will accept comments for the next 30 days. 

These comments will be considered before taking final action. 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review 

Under Executive Order 12866, [58 FR 51735 (October 4, 

1993)] the Agency must determine whether the regulatory action 

is “significant” and therefore subject to OMB review and the 

requirements of the Executive Order. The Order defines 

“significant regulatory action” as one that is likely to result 

in a rule that may: (1) Have an annual effect on the economy of 

$100 million or more or adversely affect in a material way the 

economy, a sector of the economy, productivity, competition, 

jobs, the environment, public health or safety, or State, local, 

or tribal governments or communities; (2) create a serious 

inconsistency or otherwise interfere with an action taken or 

planned by another agency; (3) materially alter the budgetary 

impact of entitlements, grants, user fees, or loan programs or 

the rights and obligations of recipients thereof; or (4) raise 

novel legal or policy issues arising out of legal mandates, the 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

35 

President’s priorities, or the principles set forth in the 

Executive Order. Under Executive Order 12866 (58 FR 51735, 

October 4, 1993), this proposed action is not a “significant 

regulatory action” and therefore is not subject to review by the 

Office of Management and Budget. For this reason, this proposed 

action is also not subject to Executive Order 13211, “Actions 

Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed 

action would merely correct an error in a previous rulemaking 

and redesignate certain air quality planning area boundaries, 

and thereby reinstate certain CAA designations and corresponding 

requirements to which the affected area had previously been 

subject. 

B. Paperwork Reduction Act 

This proposed action does not impose an information 

collection burden under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. Burden means the total 

time, effort, or financial resources expended by persons to 

generate, maintain, retain, or disclose or provide information 

to or for a Federal agency. This includes the time needed to 

review instructions; develop, acquire, install, and utilize 

technology and systems for the purposes of collecting, 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

36 

validating, and verifying information, processing and 

maintaining information, and disclosing and providing 

information; adjust the existing ways to comply with any 

previously applicable instructions and requirements; train 

personnel to be able to respond to a collection of information; 

search data sources; complete and review the collection of 

information; and transmit or otherwise disclose the information. 

This proposed rule does not impose an information collection 

burden under the provisions of the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501 et seq.). An agency may not conduct or 

sponsor, and a person is not required to respond to a collection 

of information unless it displays a currently valid OMB control 

number. The OMB control numbers for EPA’s regulations in 40 CFR 

are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act (RFA) 

The Regulatory Flexibility Act (RFA) generally requires an 

agency to prepare a regulatory flexibility analysis of any rule 

subject to notice and comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless the 

agency certifies that this rule will not have a significant 

economic impact on a substantial number of small entities. Small 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

37 

entities include small businesses, small organizations, and 

small governmental jurisdictions. 

For purposes of assessing the impacts of today’s rule on 

small entities, small entity is defined as: (1) A small business 

as defined by the Small Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a city, county, town, 

school district or special district with a population of less 

than 50,000; and (3) a small organization that is any not-forprofit enterprise which is independently owned and operated and 

is not dominant in its field. After considering the economic 

impacts of today’s rule on small entities, I certify that this 

action will not have a significant economic impact on a 

substantial number of small entities. This proposed rule will 

not impose any direct requirements on small entities. EPA is 

proposing to correct an error in a previous rulemaking and 

redesignate certain air quality planning area boundaries, and 

thereby reinstate certain CAA designations and corresponding 

requirements to which the affected area had previously been 

subject. This proposed action is intended to, among other 

purposes, facilitate and support the Morongo Tribe’s efforts to 

develop a tribal air permit program by re-establishing, within 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

38 

the Morongo Reservation, the less-stringent New Source Review 

major source thresholds that had applied under the area’s 

previous “Severe-17” classification for the one-hour ozone 

standard. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates Reform Act of 1995 

(UMRA), P.L. 104–4, establishes requirements for Federal 

agencies to assess the effects of their regulatory actions on 

State, local, and tribal governments and the private sector. 

Under section 202 of the UMRA, EPA generally must prepare a 

written statement, including a cost-benefit analysis, for 

proposed and final rules with “Federal mandates” that may result 

in expenditures to State, local, and tribal governments, in the 

aggregate, or to the private sector, of $100 million or more in 

any one year. Before promulgating an EPA rule for which a 

written statement is needed, section 205 of the UMRA generally 

requires EPA to identify and consider a reasonable number of 

regulatory alternatives and adopt the least costly, most costeffective or least burdensome alternative that achieves the 

objectives of the rule. The provisions of section 205 do not 

apply when they are inconsistent with applicable law. Moreover, 

section 205 allows EPA to adopt an alternative other than the 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

39 

least costly, most cost-effective or least burdensome 

alternative if the Administrator publishes with the final rule 

an explanation why that alternative was not adopted. Before EPA 

establishes any regulatory requirements that may significantly 

or uniquely affect small governments, including tribal 

governments, it must have developed under section 203 of the 

UMRA a small government agency plan. The plan must provide for 

notifying potentially affected small governments, enabling 

officials of affected small governments to have meaningful and 

timely input in the development of EPA regulatory proposals with 

significant Federal intergovernmental mandates, and informing, 

educating, and advising small governments on compliance with the 

regulatory requirements. Today’s proposed rule contains no 

Federal mandates (under the regulatory provisions of Title II of 

the UMRA) for State, local, or tribal governments or the private 

sector. The proposed rule imposes no enforceable duty on any 

State, local or tribal governments or the private sector. In any 

event, EPA has determined that this proposed rule does not 

contain a Federal mandate that may result in expenditures of 

$100 million or more for State, local, and tribal governments, 

in the aggregate, or the private sector in any one year. Thus, 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

40 

today’s proposed rule is not subject to the requirements of 

sections 202 and 205 of the UMRA. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled “Federalism” (64 FR 43255, 

August 10, 1999), requires EPA to develop an accountable process 

to ensure “meaningful and timely input by State and local 

officials in the development of regulatory policies that have 

federalism implications.” “Policies that have federalism 

implications” is defined in the Executive Order to include 

regulations that have “substantial direct effects on the States, 

on the relationship between the national government and the 

States, or on the distribution of power and responsibilities 

among the various levels of government.” This proposed action 

also does not have Federalism implications because it does not 

have substantial direct effects on the States, on the 

relationship between the national government and the States, or 

on the distribution of power and responsibilities among the 

various levels of government, as specified in Executive Order 

13132 (64 FR 43255, August 10, 1999). This proposed action would 

merely correct an error in a previous rulemaking and redesignate 

certain air quality planning area boundaries, and thereby 

reinstate certain CAA designations and corresponding 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

41 

requirements to which the affected area had previously been 

subject, and does not alter the relationship or the distribution 

of power and responsibilities established in the Clean Air Act. 

F. Executive Order 13175: Consultation and Coordination With 

Indian Tribal Governments 

Executive Order 13175, entitled “Consultation and 

Coordination with Indian Tribal Governments” (65 FR 67249, 

November 9, 2000), requires EPA to develop an accountable 

process to ensure “meaningful and timely input by tribal 

officials in the development of regulatory policies that have 

tribal implications.” “Policies that have tribal implications” 

are defined in the Executive Order to include regulations that 

have “substantial direct effects on one or more Indian tribes, 

on the relationship between the Federal government and the 

Indian tribes, or on the distribution of power and 

responsibilities between the Federal government and Indian 

tribes.” Under section 5(b) of Executive Order 13175, EPA may 

not issue a regulation that has tribal implications, that 

imposes substantial direct compliance costs, and that is not 

required by statute, unless the Federal government provides the 

funds necessary to pay the direct compliance costs incurred by 

tribal governments, or EPA consults with tribal officials early 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

42 

in the process of developing the proposed regulation. Under 

section 5(c) of Executive Order 13175, EPA may not issue a 

regulation that has tribal implications and that preempts tribal 

law, unless the Agency consults with tribal officials early in 

the process of developing the proposed regulation. 

EPA has concluded that this action would have tribal 

implications. In 2009, the Morongo Tribe requested that EPA 

create a separate area for the Morongo Reservation in part due 

to the adverse regulatory impacts resulting from the Agency’s 

2003 boundary change action. EPA consulted with representatives 

of the Morongo Tribe prior to, and following, the Tribe’s 2009 

boundary change request, concerning the issues covered herein. 

In today’s proposed action, EPA is responding to the Tribe’s 

2009 boundary change request and has proposed an action that 

would eliminate the adverse regulatory impacts arising from 

EPA’s 2003 boundary change action. As described herein, we agree 

with the Tribe that the boundary should be corrected to reflect 

their concerns. As proposed, this action will neither impose 

substantial direct compliance costs on tribal governments, nor 

preempt tribal law. Rather, the proposed action would relieve 

the Tribe of the additional requirements that flowed from the 

boundary change and corresponding change in CAA designations and 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

43 

classifications. Thus, the requirements of sections 5(b) and 

5(c) of the Executive Order do not apply to this rule. 

G. Executive Order 13045: Protection of Children From 

Environmental Health and Safety Risks 

Executive Order 13045: “Protection of Children from 

Environmental Health Risks and Safety Risks” (62 FR 19885, April 

23, 1997) applies to any rule that: (1) is determined to be 

“economically significant” as defined under Executive Order 

12866, and (2) concerns an environmental health or safety risk 

that EPA has reason to believe may have a disproportionate 

effect on children. If the regulatory action meets both 

criteria, the Agency must evaluate the environmental health or 

safety effects of the planned rule on children, and explain why 

the planned regulation is preferable to other potentially 

effective and reasonably feasible alternatives considered by the 

Agency. This proposed rule is not subject to Executive Order 

13045 “Protection of Children from Environmental Health Risks 

and Safety Risks” (62 FR 19885, April 23, 1997), because it is 

not economically significant as defined in Executive Order 

12866, and because the Agency does not have reason to believe 

the environmental health or safety risks addressed by this rule 

present a disproportionate risk to children. 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version. 

44 

H. National Technology Transfer Advancement Act 

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (“NTTAA”), Public Law No. 104–113, 12(d) 

(15 U.S.C. 272 note) directs EPA to use voluntary consensus 

standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. 

Voluntary consensus standards are technical standards (e.g., 

materials specifications, test methods, sampling procedures, and 

business practices) that are developed or adopted by voluntary 

consensus standards bodies. The NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not 

to use available and applicable voluntary consensus standards. 

This proposed rule does not involve establishment of technical 

standards, and thus, the requirements of section 12(d) of the 

National Technology Transfer and Advancement Act of 1995 (15 

U.S.C. 272 note) do not apply to this action.

I. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations

Executive Order 12898 (59 FR 7629 (February 16, 1994))

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

45

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in 

the United States. 

EPA has determined that this proposed action will not have 

disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 

because it does not directly affect the level of protection 

provided to human health or the environment. In this action, EPA 

is proposing to correct an error in a previous rulemaking and 

redesignate certain air quality planning area boundaries, and 

thereby reinstate certain CAA designations and corresponding 

requirements to which the affected area had previously been 

subject.
This document is a prepublication version signed by EPA Regional 

Administrator Jared Blumenfeld on December 20, 2012. We have taken steps to 

ensure the accuracy of this version, but it is not the official version.

46

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, 

Intergovernmental relations, National parks, Ozone, Wilderness 

areas. 

____________________ _________________________

Dated: Jared Blumenfeld, 

Regional Administrator, 

Region IX.