federal register

7253

Thursday

February 12, 1998

Part III

Environmental

Protection Agency

40 CFR Parts 9, 35, 49, 50, and 81

Indian Tribes: Air Quality Planning and

Management; Final Rule
7254 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 9, 35, 49, 50, and 81

[OAR–FRL–5964–2]

RIN 2060–AF79

Indian Tribes: Air Quality Planning and

Management

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The Clean Air Act (CAA)

directs EPA to promulgate regulations

specifying those provisions of the Act

for which it is appropriate to treat

Indian tribes in the same manner as

states. For those provisions specified, a

tribe may develop and implement one

or more of its own air quality programs

under the Act. This final rule sets forth

the CAA provisions for which it is

appropriate to treat Indian tribes in the

same manner as states, establishes the

requirements that Indian tribes must

meet if they choose to seek such

treatment, and provides for awards of

federal financial assistance to tribes to

address air quality problems.

EFFECTIVE DATE: March 16, 1998.

FOR FURTHER INFORMATION CONTACT:

David R. LaRoche, Office of Air and

Radiation (OAR 6102), U.S.

Environmental Protection Agency, 401

M Street, S.W., Washington D.C. 20460

at (202) 260–7652.

SUPPLEMENTARY INFORMATION:

Supporting information used in

developing the final rule is contained in

Docket No. A–93–3087. The docket is

available for public inspection and

copying between 8:30 a.m. and 3:30

p.m. Monday through Friday, at EPA’s

Air Docket, Room M–1500, Waterside

Mall, 401 M Street SW, Washington,

D.C. 20460. A reasonable fee may be

charged for copying.

This preamble is organized according

to the following outline:

I. Background of the Final Rule

II. Analysis of Major Issues Raised by

Commenters

A. Jurisdiction

B. Sovereign Immunity and Citizen Suit

C. Air Program Implementation in Indian

Country

D. CAA Sections 110(c)(1) and 502(d)(3)

Authority

III. Significant Changes from the Proposed

Regulations

IV. Miscellaneous

A. Executive Order (EO) 12866

B. Regulatory Flexibility Act (RFA)

C. Executive Order (EO) 12875 and the

Unfunded Mandates Reform Act (UMRA)

D. Paperwork Reduction Act

E. Submission to Congress and the General

Accounting Office

I. Background of the Final Rule

Summary of Issues Raised by the

Proposal

EPA proposed rules on August 25,

1994 (59 FR 43956) to implement

section 301(d) of the Act. The proposal

elicited many comments from state and

tribal officials, private industry, and the

general public. A total of 69 comments

were received, of which 44 were from

tribes or tribal representatives; 13 from

state and local governments or

associations; 10 from industry

(primarily utilities and mining); and, 1

from Department of Energy (DOE) and 1

from an environmental interest group in

Southern California. The tribes and

several other commenters generally

express support for the proposed rule

and the delegation of CAA authority to

eligible tribes to manage reservation air

resources. Tribes especially urge EPA to

expedite the finalization of this rule to

enable tribes to begin to implement their

air quality management programs and

encourage EPA to recognize that the

development of tribal air programs will

be an evolving process requiring both

time and significant assistance from

EPA.

Most of the tribal commenters express

concern with the inclusion of the citizen

suit provisions which, they believed,

effected a waiver of their sovereign

immunity; they recommend that this

provision be deleted in the final rule.

This is a major issue for tribes. State and

local government and industry

commenters are primarily concerned

that the proposed rule would create an

unworkable scheme for implementing

tribal air quality programs, and many of

these commenters question the scope of

tribal regulatory jurisdiction.

Responses to many of the comments

related to issues of jurisdiction and

sovereign immunity are included in

sections II.A and II.B in the analysis of

comments below. Responses to

comments on the issues raised

concerning federal implementation in

Indian country are addressed in sections

II.C and II.D of this document. All other

comments are addressed in a document

entitled ‘‘response to comments’’ that

can be found in the docket for this rule

cited above.

II. Analysis of Major Issues Raised by

Commenters

A. Jurisdiction

1. Delegation of CAA Authority to

Tribes

It is a settled point of law that

Congress may, by statute, expressly

delegate federal authority to a tribe.

United States v. Mazurie, 419 U.S. 544,

554 (1975). See also South Dakota v.

Bourland, 113 S. Ct. 2309, 2319–20

(1993); Brendale v. Confederated Tribes

and Bands of the Yakima Indian

Nation, 492 U.S. 408, 426–28 (1989)

(White, J., for four Justice plurality).

Such a delegation or grant of authority

can provide a federal statutory source of

tribal authority over designated areas,

whether or not the tribe’s inherent

authority would extend to all such

areas. In the August 25, 1994 proposed

tribal authority rule, EPA set forth its

interpretation that the CAA is a

delegation of federal authority, to tribes

approved by EPA to administer CAA

programs in the same manner as states,

over all air resources within the exterior

boundaries of a reservation for such

programs. Today, EPA is finalizing this

approach. This grant of authority by

Congress enables eligible tribes to

address conduct relating to air quality

on all lands, including non-Indianowned fee lands, within the exterior

boundaries of a reservation.

EPA’s position that the CAA

constitutes a statutory grant of

jurisdictional authority to tribes is

consistent with the language of the Act,

which authorizes EPA to treat a tribe in

the same manner as a state 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).

EPA believes that this statutory

provision, viewed within the overall

framework of the CAA, establishes a

territorial view of tribal jurisdiction and

authorizes a tribal role for all air

resources within the exterior boundaries

of Indian reservations without

distinguishing among various categories

of on-reservation land. See also CAA

sections 110(o), 164(c).

In light of the statutory language and

the overall statutory scheme, EPA is

exercising the rulemaking authority

entrusted to it by Congress to implement

the CAA provisions granting approved

tribes authority over all air resources

within the exterior boundaries of a

reservation. See generally Chevron

U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–

45 (1984). This interpretation of the

CAA as generally delegating such

authority to approved tribes is also

supported by the legislative history,

which provides additional evidence of

Congressional intention regarding this

issue. See S. Rep. No. 228, 101st Cong.,

1st Sess. 79 (1989) (‘‘the Act constitutes

an express delegation of power to Indian

tribes to administer and enforce the

Clean Air Act in Indian lands’’ (citation

to Brendale omitted)) (hereinafter
Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations 7255

1Further, it is a well-established principle of

statutory construction that statutes should be

construed liberally in favor of Indians, with

ambiguous provisions interpreted in ways that

benefit tribes. County of Yakima v. Confederated

Tribes and Bands of the Yakima Indian Nation, 112

S.Ct. 683, 693 (1992). In addition, statutes should

be interpreted so as to comport with tribal

sovereignty and the federal policy of encouraging

tribal independence. Ramah Navajo School Board,

Inc. v. Bureau of Revenue of New Mexico, 458 U.S.

832, 846 (1982).

2Contrary to the commenter’s assertion, EPA does

not interpret the ‘‘or’’ in this section as an ‘‘and’’.

If the ‘‘or’’ were an ‘‘and’’, under section 301(d)(2)

EPA would be authorized to approve a tribal

program ‘‘only if’’ the functions to be exercised by

the tribe pertain to air resources that are both

within a reservation and within non-reservation

areas over which the tribe can demonstrate

jurisdiction. This interpretation is nonsensical.

Moreover, nothing in the Act or legislative history

suggests that Congress intended to limit so severely

the universe of tribes eligible for CAA programs.

referred to as ‘‘Senate Report’’).1 EPA

also believes this territorial approach to

air quality regulation best advances

rational, sound, air quality management.

(a) Support for the delegation

approach. Tribal commenters and

several industry commenters support

EPA’s interpretation that the CAA

constitutes a delegation of

Congressional authority to eligible tribes

to implement CAA programs over their

entire reservations. Numerous tribal

commenters assert that EPA’s territorial

delegation approach is consistent with

federal Indian law and the intent of

Congress as expressed in several

provisions of the CAA. Several tribal

commenters note that, while tribes have

inherent sovereign authority over all air

resources within the exterior boundaries

of their reservations, EPA should

finalize the delegation approach to

avoid case-by-case litigation concerning

inherent authority and to eliminate the

disruptive potential of a

‘‘checkerboarded’’ pattern of tribal and

state jurisdiction on reservations.

Several tribal commenters assert that the

delegation approach is compelled by the

language of the CAA and federal Indian

law principles. One tribal commenter

states that the delegation approach is

consistent with the federal government’s

trust responsibility to federallyrecognized Indian tribes.

(b) Statutory Interpretation. Several

state commenters assert that the CAA

does not constitute an ‘‘express

congressional delegation’’ of authority

to tribes as required by the Supreme

Court’s decisions in Montana v. United

States, 450 U.S. 544 (1981) and

Brendale, 492 U.S. 408. Several state

and industry commenters dispute EPA’s

interpretation of CAA section

301(d)(2)(B), which states that EPA may

treat a tribe in the same manner as a

state if, among other things, ‘‘the

functions to be exercised by the Indian

tribe pertain to the management and

protection of air resources within the

exterior boundaries of the reservation or

other areas within the tribe’s

jurisdiction.’’ One commenter asserts

that the ‘‘or’’ in ‘‘or other areas within

the tribe’s jurisdiction’’ means that

treatment of a state is authorized for a

tribe as to air resources over which the

tribe has jurisdiction, whether or not

those areas fall within its reservation

boundaries. In other words, tribes

would not necessarily have jurisdiction

over all sources within reservation

boundaries. The commenter states that

EPA has improperly read the ‘‘or’’ in

section 301(d)(2)(B) as an ‘‘and.’’

EPA believes the plain meaning of

section 301(d)(2)(B) is that a tribe can

implement a CAA program for air

resources if: (1) the air resources are

within a reservation; or (2) the air

resources are within a non-reservation

area over which the tribe can

demonstrate jurisdiction. The most

plausible reading of the phrase ‘‘within

* * * the reservation or other areas

within the tribe’s jurisdiction’’ is that

Congress intended to grant to an eligible

tribe jurisdiction over its reservation

without requiring the tribe to

demonstrate its own jurisdiction, but to

require a tribe to demonstrate

jurisdiction over any other areas, i.e.,

non-reservation areas, over which it

seeks to implement a CAA program.

Under section 301(d)(2)(B), eligible

tribes may be treated in the same

manner as states for protecting ‘‘air

resources’’ within ‘‘the reservation’’ or

in ‘‘other areas within the tribe’s

jurisdiction.’’ Both the term

‘‘reservation’’ and the phrase ‘‘other

areas within the tribe’s jurisdiction’’

modify the phrase ‘‘air resources.’’ In

addition, it is clear from the structure of

the provision and the CAA and

legislative history taken as a whole that

the phrase ‘‘within the tribe’s

jurisdiction’’ modifies the phrase ‘‘other

areas’’ and not the term ‘‘reservation’’ or

the phrase ‘‘air resources.’’ If Congress

intended to require tribes to

demonstrate jurisdiction over

reservations, Congress would have

simply stated that EPA may approve a

tribal program only for air resources

over which the tribe can demonstrate

jurisdiction.2

One commenter states that EPA’s

interpretation of CAA section

301(d)(2)(B) has made CAA section

301(d)(4), which allows EPA to

administer provisions of the Act directly

if treatment of a tribe as identical to a

state is found to be ‘‘inappropriate or

administratively infeasible,’’ extraneous.

The commenter asserts that if CAA

section 301(d)(2)(B) is a delegation of

authority to a tribe, EPA would never

have cause to find treatment of a tribe

as a state ‘‘inappropriate or

administratively infeasible.’’ EPA

disagrees that its interpretation has

made section 301(d)(2)(B) superfluous

because, even with the delegation of

federal authority to tribes for reservation

areas, it is not appropriate or

administratively feasible to treat tribes

as states for all purposes. In such cases,

section 301(d)(4) allows EPA, through

rulemaking, to ‘‘directly administer

such provisions [of the Act] so as to

achieve the appropriate purpose’’ either

by tailoring the provisions to tribes or

conducting a federal program.

An industry commenter states that

CAA section 110(o), which provides

that when a tribal implementation plan

(TIP) becomes effective under CAA

section 301(d) ‘‘the plan shall become

applicable to all areas (except as

expressly provided otherwise in the

plan) located within the exterior

boundaries of the reservation * * *,’’

does not support EPA’s interpretation of

the CAA as a delegation because section

110(o) is only applicable to plans EPA

approved pursuant to regulations under

section 301(d).

EPA believes that section 110(o)

recognizes that approved tribes are

authorized to exercise authority over all

areas within the exterior boundaries of

a reservation for the purposes of TIPs.

EPA notes that the commenter omitted

the following remaining language in the

quoted sentence from CAA section

110(o): ‘‘located within the exterior

boundaries of the reservation,

notwithstanding the issuance of any

patent and including rights-of-way

running through the reservation.’’ EPA

believes that this additional language

makes clear that TIPs may apply to all

areas within the exterior boundaries of

reservations. EPA believes that the

phrase ‘‘except as expressly provided

otherwise in the plan’’ refers to a

situation where a tribe seeks to have its

TIP apply only to specific areas within

a reservation.

An industry commenter states that the

CAA does not depart from other

Congressional provisions regarding

‘‘treatment as a state’’ in the Clean

Water Act (CWA) and the Safe Drinking

Water Act (SDWA) and EPA has already

determined that these other statutes do

not constitute a delegation of authority

to tribes. EPA notes that the CAA

‘‘treatment as a state’’ provision is

notably different from the SDWA

‘‘treatment as a state’’ provision.

Compare CAA § 301(d)(2) (‘‘the

functions to be exercised by the Indian
7256 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

3EPA also notes that a federal district court has

stated that CWA section 518(e) may be read as an

express delegation of authority to tribes over all

reservation water resources. Montana v. U.S. EPA,

941 F. Supp. 945, 951, 957 n.10 & n.12 (D. Mont.

1996) citing Brendale, 492 U.S. at 428 (White, J.).

In the preamble to its 1991 CWA regulation, EPA

found the statutory language and legislative history

of the CWA too inconclusive for the Agency to rely

on the delegation theory, but noted that ‘‘the

question of whether section 518(e) is an explicit

delegation of authority over non-Indians is not

resolved.’’ 56 FR 64876, 64880–881 (December 12,

1991).

4This commenter also asserts that the Chevron

doctrine does not support EPA’s interpretation that

the CAA settles all jurisdictional issues on lands

within reservations. While EPA believes that the

CAA represents a clear delegation of authority to

eligible tribes over reservation resources, EPA notes

that, to the extent the statute is ambiguous, EPA’s

interpretation would be entitled to deference. In

addition, the Agency has broad expertise in

reconciling federal environmental and Indian

policies. Washington Department of Ecology, 752

F.2d 1465, 1469 (9th Cir. 1985).

5Among other things, the commenter questions

whether pre-existing treaties or binding agreements

may limit the extent of regulatory jurisdiction. EPA

believes that the CAA generally would supersede

pre-existing treaties or binding agreements that may

limit the scope of tribal authority over reservations.

tribe [must] pertain to the management

and protection of air resources within

the exterior boundaries of the

reservation or other areas within the

tribe’s jurisdiction’’) with SDWA

§ 1451(b)(1)(B) (‘‘the functions to be

exercised by the Indian tribes [must be]

within the area of the Tribal

Government’s jurisdiction’’). In

addition, although CWA section 518(e)

and CAA section 301(d) both contain

language regarding tribal programs over

‘‘Indian reservations,’’ EPA believes that

the overall statutory scheme and

legislative history of the CAA represent

a clearer expression than that of the

CWA that Congress intended to

effectuate a delegation to tribes over

reservations.3 EPA notes that, except for

the provisions in CWA section 518(e)

and SDWA section 1451(b)(1)(B), the

Water Acts do not otherwise indicate

what areas are subject to tribal

regulatory authority. By contrast, several

provisions of the CAA expressly

recognize that tribes may exercise CAA

authority over all areas within the

exterior boundaries of the reservation.

See CAA sections 110(o) and 164(c).

One industry commenter states that

EPA should make clear that the CAA

does not supersede other laws that may

define or limit the extent of tribal

regulatory jurisdiction.4 The commenter

states that, given that the CAA does not

supersede all other laws regarding tribal

jurisdiction, EPA should follow a caseby-case approach for addressing

jurisdiction within reservation

boundaries. One state association notes

that some states have statutory

jurisdiction over non-Indian fee lands

located on reservations and EPA does

not address how conflicts between the

CAA and these statutes will be

addressed.

EPA believes that the CAA delegation

of authority to eligible tribes over

reservations represents a more recent

expression of Congressional intent and

will generally supersede other federal

statutes. See Adkins v. Arnold, 235 U.S.

417, 420 (1914) (noting that ‘‘later in

time’’ statutes should take precedence).

There may be, however, rare instances

where special circumstances may

preclude EPA from approving a tribal

program over a reservation area. For

example, in rare cases, there may be

another federal statute granting a state

exclusive jurisdiction over a reservation

area that may not be overridden by the

CAA. There may also be cases where a

current tribal constitution may limit

tribal exercise of authority.5

EPA will consider on a case-by-case

basis whether special circumstances

exist that would prevent a tribe from

implementing a CAA program over its

reservation. Appropriate governmental

entities will have an opportunity to

raise these unique issues on a case-bycase basis during EPA’s review of a

tribal application. Where tribes are

aware of such issues, they should bring

the issues to EPA’s attention by

including them in the tribe’s

‘‘descriptive statement of the Indian

tribe’s authority to regulate air quality’’

under 40 CFR 49.7(a)(3). If EPA

determines that there are special

circumstances that would preclude the

Agency from approving a tribal program

over a reservation area, the Regional

Administrator would limit the tribal

approval accordingly under 40 CFR

49.9(e) and (g).

(c) Legislative History. Several

industry and local government

commenters assert that the legislative

history does not support EPA’s

interpretation of the CAA as a

delegation. They state that Senate

Report No. 101–228, pp. 78–79, 1990

U.S. Code Cong. & Admin. News at

3464–65 (Senate Report) evidences

Congress’ intent that the CAA

authorizes tribal programs in the same

manner as had been authorized under

the CWA and SDWA, both of which

EPA has interpreted to authorize tribal

programs only in areas over which a

tribe can demonstrate inherent

jurisdiction. The commenter also states

that the Senate Report made clear that

treatment as a state is only authorized

for areas within a tribe’s jurisdiction. In

addition, one commenter states that

Congress in 1990 knew how similar

provisions of the CWA and SDWA had

been interpreted and ‘‘Congress can

normally be presumed to have had

knowledge of the interpretation given to

the incorporated law. * * *’’ citing St.

Regis Mohawk Tribe, New York v.

Brock, 769 F.2d 37, 50 (2nd Cir. 1985).

One commenter further argues that the

Senate Report refers to Brendale, which

requires a case-by-case approach to

tribal inherent jurisdiction.

EPA acknowledges that the summary

of the treatment as a state provisions in

the Senate Report contains a general

statement suggesting that tribes are to

demonstrate jurisdiction for all areas for

which they seek a program, including

reservation areas. However, the

summary is followed by a detailed

discussion that makes clear that

Congress intended to provide an express

delegation of power to Indian tribes for

all reservation areas and to require a

jurisdictional showing only for nonreservation areas. Senate Report at 79.

In addition, the Senate Report cited

Brendale for the proposition that

Congress may delegate federal authority

to tribes. Moreover, although Brendale

does support a case-by-case approach to

evaluating tribal inherent authority over

non-members of the tribe, EPA notes

that the Senate Report cites the section

of the Brendale opinion (pages 3006–07)

in which Justice White recognizes that

Congress may expressly delegate to a

tribe authority over non-members. See

Brendale, 109 S.Ct. 2994, 3006–07

(1989). EPA believes that this statement

in the Senate Report further supports

EPA’s view that the CAA was intended

to be a delegation. EPA also notes that

in 1989, when the Senate Report was

written, EPA had not yet finalized its

interpretation that Congress, in the

CWA, did not clearly intend a

delegation to tribes. See 56 FR 64876,

64880–881 (December 12, 1991); see

also Montana v. EPA, 941 F. Supp. 945,

951, 957 n.10 & n.12 (noting that the

CWA may be read as a delegation of

CWA authority to tribes over

reservations). Thus, read as a whole, the

Senate Report supports EPA’s

interpretation that the CAA is a

delegation.

(d) Limitations on Congressional

delegations of authority. Several state

and municipal commenters state that

Montana, Brendale, and Bourland

establish that tribes generally do not

have authority to regulate the activities

of nonmembers on nonmember-owned

fee lands. Several commenters also

assert that tribes generally will not have

inherent authority over sources of air

pollution on non-Indian owned fee

lands within a reservation. As discussed

in detail in the preamble to the
Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations 7257

6One industry commenter asserts that delegations

of federal authority from Congress must ‘‘clearly

delineate’’ policy and standards to be effective or

valid, citing American Power & Light Co. v.

Securities and Exchange Commission, 329 U.S. 90,

105 (1946). According to this commenter, EPA’s

proposed interpretation does not meet this

standard. EPA agrees that the non-delegation

doctrine does include a limitation on the

devolution of legislative power under terms so

vague as to be standardless, but that limitation has

become a very low threshold, see Mistretta v.

United States, 488 U.S. 361 (1989)(Scalia, J.,

dissenting); Industrial Union Dep’t v. American

Petroleum Inst., 448 U.S. 607 (1980) (Rehnquist, J.,

concurring in the judgment), and is easily met by

the CAA. The CAA provides detailed direction to

tribes on the parameters under which CAA

programs are to be implemented.

proposed rule (59 FR 43958 et seq.),

EPA believes that tribes generally will

have inherent authority over air

pollution sources on fee lands. 59 FR at

43958 n.5; see also Montana v. EPA, 941

F.Supp. 945 (D. Mont. 1996)(upholding

EPA’s determination that the

Confederated Salish and Kootenai

Tribes possess inherent authority over

nonmember activities on fee lands for

purposes of establishing water quality

standards under the CWA). Nonetheless,

because the Agency is interpreting the

CAA as an explicit delegation of federal

authority to eligible tribes, it is not

necessary for EPA to determine whether

tribes have inherent authority over all

sources of air pollution on their

reservations.

Several commenters state that only

delegations over lands and activities

subject to inherent tribal power are

permissible. One commenter states that

the proposed rule should be modified to

require tribes to establish preexisting

authority for on-reservation CAA

programs, at least with regard to fee

lands held by nonmembers within

reservations. Two commenters, one

citing the United States Constitution

and the other citing U.S. v. Morgan, 614

F.2d 166 (8th Cir. 1980), also assert that

a tribe cannot have delegated authority

over nonmembers on fee lands living in

a non-Indian community within a

reservation. A state commenter asserts

that these two factors, i.e., whether a

tribe possesses inherent authority and

whether the delegation is over

nonmembers living on fee lands within

a non-Indian community, were factors

considered by the Supreme Court in

Mazurie in evaluating whether Congress

had validly delegated federal authority

to tribes to regulate the introduction of

alcoholic beverages into Indian country.

EPA believes that Indian tribes have

sufficient independent authority to

assume a Congressional delegation of

authority to implement CAA programs.

The Supreme Court in Mazurie

acknowledged that Indian tribes have

sovereignty over ‘‘both their members

and their territory.’’ 419 U.S. at 557. As

discussed above, EPA believes that

tribes generally will have inherent

authority to regulate sources of air

pollution on nonmember-owned fee

lands within reservations as well.

However, EPA notes that the Court in

Mazurie held that it is not necessary for

a tribe to have independent authority

over all matters that would be subject to

the delegated authority; rather ‘‘[i]t is

necessary only to state that the

independent tribal authority is quite

sufficient to protect Congress’ decision

to vest in tribal councils this portion of

its own authority ‘to regulate Commerce

* * * with the Indian tribes.’ ’’ 419 U.S.

at 557 (citation omitted).

In addition, while the Court in

Mazurie noted that Constitutional limits

on the authority of Congress to delegate

its legislative power are ‘‘less stringent

in cases where the entity exercising the

delegated authority itself possesses

independent authority over the subject

matter,’’ the Court did not say that some

independent source of authority was an

absolute prerequisite for a Congressional

delegation. 419 U.S. at 556-57. 6 Even in

a case where a particular tribe’s inherent

authority is markedly limited, the

detailed parameters outlined in the CAA

and EPA’s oversight role over tribal

exercise of authority delegated by the

CAA are sufficient to ensure that

Constitutional limitations on the

delegated authority have not been

exceeded.

Furthermore, EPA disagrees with the

commenter’s assertion that the United

States Constitution and federal court

precedent prohibit Congress from

delegating authority to a tribe over

nonmembers on fee land living in a nonIndian community within a reservation.

See City of Timber Lake v. Cheyenne

River Sioux Tribe, 10 F.3d 554 (8th Cir.

1993), reh’g en banc denied, 1994 U.S.

App. Lexis 501 (1994), cert denied, 512

U.S. 1236 (1994); see also Rice v.

Rehner, 463 U.S. 713, 715 (1983) (noting

that Congress, in 18 U.S.C. 1161,

delegated to tribes authority to regulate

liquor throughout Indian country,

including in non-Indian communities).

The discussion in Morgan and Mazurie

about ‘‘non-Indian communities’’ was

centered around the specific language of

18 U.S.C. sections 1154 and 1156

regarding introduction of alcoholic

beverages into Indian country, and is

not relevant to an interpretation of the

CAA. In addition, EPA notes that the

Eighth Circuit Court of Appeals, in City

of Timber Lake, 10 F.3d 554, declined

to follow its prior decision in Morgan,

and concluded that 18 U.S.C. section

1161 delegated authority to tribes to

regulate liquor in all of Indian country,

including non-Indian communities.

One industry commenter asserts that,

if EPA finalizes its position that

Congress has delegated federal authority

to tribes, EPA should state explicitly in

its rule that the Bill of Rights and other

federal protections for regulated entities

apply to tribal air programs. EPA notes

that the Indian Civil Rights Act imposes

on tribal governments restrictions

similar to those contained in the Bill of

Rights and the Fourteenth Amendment,

including the prohibitions against the

denial of due process and equal

protection, and the taking of private

property without just compensation. 25

U.S.C. 1302; Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 57 (1978). These

protections extend to all persons subject

to tribal jurisdiction, whether Indians or

non-Indians. Iowa Mutual Insurance Co.

v. LaPlante, 480 U.S. 9, 19 (1987). EPA

believes that whether or not the Bill of

Rights applies to tribes implementing

the CAA on reservations is an issue for

the courts to decide when and if the

issue arises in a particular case. See

Mazurie, 419 U.S. at 558 n. 12.

(e) Use of the word ‘‘reservation.’’

Several tribal commenters supported

EPA’s proposal to construe the term

‘‘reservation’’ to include trust land that

has been validly set apart for use by a

tribe, even though that land has not

been formally designated as a

‘‘reservation.’’ See 59 FR at 43960; 56

FR at 64881; see also Oklahoma Tax

Comm’n v. Citizen Band Potawatomi

Indian Tribe of Oklahoma, 111 S.Ct.

905, 910 (1991). Some tribal

commenters suggested that the

definition of ‘‘reservation’’ in proposed

§ 49.2 be broadened specifically to

include ‘‘trust land that has been validly

set apart for use by a Tribe, even though

the land has not been formally

designated as a reservation.’’

A state commenter states that EPA has

not provided an analysis of relevant

provisions in the CAA to support its

proposition that the term ‘‘reservation’’

includes ‘‘trust land that has been

validly set apart for the use of a Tribe.’’

In addition, this commenter questions

EPA’s reliance on Oklahoma Tax

Comm’n because that case deals with

trust lands in Oklahoma and may not be

universally applicable. Several

commenters express concern that the

phrase ‘‘exterior boundaries of the

reservation’’ could encompass lands

held in fee by nonmembers outside of

areas formally designated as

‘‘reservations.’’ A state commenter

suggests that EPA should require a caseby-case demonstration in cases where

non-Indian-owned lands exist which

may be surrounded by the exterior
7258 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

boundaries of a Pueblo. The commenter

asserts that in these circumstances there

is no evidence that the non-Indian lands

were ‘‘validly set apart for the use of the

Indians as such, under the

superintendence of the Government.’’

The State of Oklahoma objects to EPA’s

use of the word ‘‘reservation’’ because,

by federal law, the term ‘‘reservation’’

can include former reservations in

Oklahoma, which include

approximately the entire State. See 25

U.S.C. 1425. The State suggests that EPA

should limit the term reservation to

include only tribal trust land in

Oklahoma; lands held in trust for

individual Indians, Oklahoma asserts,

should not be considered

‘‘reservations.’’

It is the Agency’s position that the

term ‘‘reservation’’ in CAA section

301(d)(2)(B) should be interpreted in

light of Supreme Court case law,

including Oklahoma Tax Comm’n, in

which the Supreme Court held that a

‘‘reservation,’’ in addition to the

common understanding of the term, also

includes trust lands that have been

validly set apart for the use of a tribe

even though the land has not been

formally designated as a reservation. In

applying this precedent to construe the

term ‘‘reservation’’ in the context of the

CWA, the Agency has only recognized

two categories of lands that, even

though they are not formally designated

as ‘‘reservations,’’ nonetheless qualify as

‘‘reservations’’: Pueblos and tribal trust

lands. EPA will consider lands held in

fee by nonmembers within a Pueblo to

be part of a ‘‘reservation’’ under 40 CFR

49.6(c) and 49.7(a)(3). EPA will consider

on a case-by-case basis whether other

types of lands other than Pueblos and

tribal trust lands may be considered

‘‘reservations’’ under federal Indian law

even though they are not formally

designated as such. Appropriate

governmental entities will have an

opportunity to comment on whether a

particular area is a ‘‘reservation’’ during

EPA’s review of a tribal application. The

Agency does not believe that additional,

more specific language should be added

to the regulatory definition of

‘‘reservation,’’ because the Agency’s

interpretation of the term ‘‘reservation’’

will depend on the particular status of

the land in question and on the

interpretation of relevant Supreme

Court precedent.

A tribal consortium states that the

proposed requirement in § 49.7(a)(3)

that tribes ‘‘must identify with clarity

and precision the exterior boundaries of

the reservation * * *’’ precludes

Alaska Native villages from applying for

EPA-approved CAA programs. The full

language of the proposed requirement in

§ 49.7(a)(3) is ‘‘[f]or applications

covering areas within the exterior

boundaries of the applicant’s

Reservation the statement must identify

with clarity and precision the exterior

boundaries of the reservation * * * .’’

If a tribe is seeking program approval for

non-reservation areas, the tribe need not

provide a reservation description. As

noted below, EPA is finalizing its

proposed position, under section

301(d)(2)(B), that an eligible tribe may

implement its air quality programs in

non-reservation areas provided the tribe

can adequately demonstrate authority to

regulate air quality in the nonreservation areas in question under

general principles of Indian law. Thus,

if an Alaska Native village can

demonstrate authority to regulate air

resources in non-reservation areas, the

areas will be considered ‘‘other areas

within the tribe’s jurisdiction’’ under

section 301(d)(2)(B) of the Act.

(f) Policy Rationales. Industry and

municipal commenters state that it is

improper for EPA to base its

interpretation of the CAA regarding

tribal jurisdiction on policy arguments

seeking to avoid ‘‘jurisdictional

entanglements’’ and checkerboarding. A

state comments that given the intense

controversy surrounding the issue of

authority over the activities of

nonmembers on fee lands, litigation is

likely. The commenter states that

litigation would cause long-term

jurisdictional uncertainties, which will

erode effective implementation of the

Act, and that EPA should address and

resolve jurisdictional issues in the

reservation program planning stage. One

industry commenter asserts that EPA’s

proposal to interpret the CAA as a

delegation is inconsistent with EPA

policy statements that EPA will

authorize tribal programs only where

tribes ‘‘can demonstrate adequate

jurisdiction over pollution sources

throughout the jurisdiction.’’ July 10,

1991 EPA/State/Tribal relations

memorandum, signed by Administrator

Reilly.

EPA’s interpretation of the CAA is

based on the language, structure, and

intent of the statute. The Agency

believes that Congress, in the CAA,

chose to adopt a territorial approach to

the protection of air resources within

reservations—an approach that will

have the effect of minimizing

jurisdictional entanglements and

checkerboarding within reservations.

EPA expects that the delegation

approach will minimize the number of

case-specific jurisdictional disputes that

will arise and enhance the effectiveness

of CAA implementation. EPA notes that

its interpretation of the CAA does not

conflict with the Agency’s general

Indian policy statements regarding tribal

jurisdiction. Under the CAA, EPA will

not approve a tribe unless it has the

authority to implement the program

either by virtue of delegated federal

authority over reservation areas, or a

demonstration of authority under

principles of federal Indian law over

other areas on a case-by-case basis.

(g) Current and historical application

of state laws on parts of reservations.

State and industry commenters assert

that states have historically regulated

non-member CAA-related activities on

fee lands within reservation boundaries

and the proposal ignores this historical

treatment and the transition issues it

raises. The commenters suggest that

EPA consider changing the proposed

regulations to ‘‘grandfather’’ existing

facilities subject to state authority, so

that states continue to regulate those

facilities until the affected parties all

agree cooperatively to a transition from

state to tribal jurisdiction. One

commenter states that both the affected

state and EPA would need to approve

any necessary state implementation

plan (SIP) revisions.

It is EPA’s position that, unless a state

has explicitly demonstrated its authority

and been expressly approved by EPA to

implement CAA programs in Indian

country, EPA is the appropriate entity to

be implementing CAA programs prior to

tribal primacy. See preamble section

II.C. and II.D. for a discussion of federal

implementation of CAA programs in

Indian country. EPA will not and cannot

‘‘grandfather’’ any state authority over

Indian country where no explicit

demonstration and approval of such

authority has been made. EPA, as

appropriate, will address any need for

SIP revisions on a case-by-case basis.

2. Authority in Non-Reservation Areas

Within a Tribe’s Jurisdiction

CAA section 301(d)(2)(B) provides

that a tribe may be treated in the same

manner as a state for functions regarding

air resources ‘‘within the exterior

boundaries of the reservation or other

areas within the tribe’s jurisdiction’’

(emphasis added). In the August 25,

1994 proposed tribal authority rule, EPA

set forth its interpretation that this

provision authorizes an eligible tribe to

develop and implement tribal air quality

programs in non-reservation areas that

are determined to be within the tribe’s

jurisdiction. Today, EPA is finalizing

this approach.

(a) Support for EPA’s approach.

Several tribal commenters support

EPA’s interpretation that ‘‘other areas

within the Tribe’s jurisdiction’’ in CAA

section 301(d)(2)(B) means that a tribe
Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations 7259

may implement its air quality programs

in non-reservation areas under its

jurisdiction, generally including all nonreservation areas of Indian country. One

tribal commenter asserts that the

‘‘Indian country’’ standard is the

standard consistently used by courts in

determining a tribe’s jurisdiction.

(b) Request for Clarification. Several

commenters request that EPA clarify

what is meant by the phrase ‘‘other

areas within a Tribe’s jurisdiction.’’

Some commenters state that this phrase

must be clarified to avoid conflicts

between states and tribes in interpreting

their own jurisdiction and uncertainty

for regulated sources. One commenter

urges EPA to develop published criteria

by which the Agency will decide

whether a tribe may develop and

implement a CAA program in areas

outside the exterior boundaries of a

reservation. Some commenters also

request that EPA clarify what is meant

by ‘‘Indian country.’’

EPA notes that the phrase ‘‘other areas

within the tribe’s jurisdiction’’

contained in CAA section 301(d)(2)(B)

and 40 CFR 49.6 is meant to include all

non-reservation areas over which a tribe

can demonstrate authority, generally

including all non-reservation areas of

Indian country. As noted above, it is

EPA’s interpretation that Congress has

not delegated authority to otherwise

eligible tribes to implement CAA

programs over non-reservation areas as

it has done for reservation areas. Rather,

a tribe seeking to implement a CAA

program over non-reservation areas may

do so only if it has authority over such

areas under general principles of federal

Indian law.

EPA notes that the definition of

‘‘Indian country’’ contained in 18 U.S.C.

section 1151, while it appears in a

criminal code, provides the general

parameters under federal Indian law of

the areas over which a tribe may have

jurisdiction, including civil judicial and

regulatory jurisdiction. See DeCoteau v.

District County Court, 420 U.S. 425, 427

n. 2 (1975). EPA acknowledges that

there may be controversy over whether

a particular non-reservation area is

within a tribe’s jurisdiction. However,

EPA believes that these questions

should be addressed on a case-by-case

basis in the context of particular tribal

applications. EPA has established a

process under section 49.9 for

appropriate governmental entities to

comment on assertions of authority in

individual tribal applications. More

discussion of the parameters of ‘‘Indian

country’’ is provided in the detailed

response to comment document.

Some tribal commenters object to

EPA’s description of the proposed

requirement in § 49.7(a)(3)(ii) that,

where a tribe seeks to have its program

cover areas outside the boundaries of a

reservation, the tribe must demonstrate

its ‘‘inherent authority’’ over those

areas. These commenters assert that the

term ‘‘inherent authority’’ must be

clarified because it may inappropriately

limit the potential sources of tribal

authority to regulate non-reservation air

resources. EPA agrees that there may be

cases where a tribe has authority to

regulate a non-reservation area that

derives from a federal statute or some

other source of federal Indian law that

is not based on ‘‘inherent authority.’’

Section 49.7(a)(3)(ii) only asks a tribe

seeking to implement a CAA program in

a non-reservation area to ‘‘describe the

basis for the tribe’s assertion of

authority * * *.’’ Under this provision,

a tribe may include any basis for its

assertion of authority.

Some tribal commenters ask EPA to

take the position that the phrase ‘‘other

areas within the tribe’s jurisdiction’’

means that tribes will have control over

sources in close proximity to a

reservation. One tribe comments that

EPA has a trust responsibility to ensure

that tribes have authority to control

sources of air pollution outside of

reservation boundaries that affect the

health and welfare of tribal members

living within reservation boundaries.

One tribe asks whether non-reservation

jurisdictional areas include ceded lands

where tribes retain the right to hunt and

fish.

As noted above, it is EPA’s position

that, while Congress delegated CAA

authority to eligible tribes for

reservation areas, the CAA authorizes a

tribe to implement a program in nonreservation areas only if it can

demonstrate authority over such areas

under federal Indian law. Thus, a tribe

may implement a CAA program over

sources in non-reservation areas,

including ceded territories, if the tribe

can demonstrate its authority over such

sources under federal Indian law. CAA

provisions regarding cross-boundary

impacts are the appropriate mechanisms

for addressing cases where sources

outside of tribal authority affect tribal

health and environments. See, e.g., CAA

sections 110(a)(2)(D), 126, and 164(e).

The issue of cross-boundary impacts is

discussed further in the response to

comments document.

(c) Comments challenging EPA’s

interpretation of the CAA. Some

commenters state that CAA section

110(o) limits the jurisdictional reach of

a TIP to areas located within the

boundaries of a reservation. One

commenter asserts that since a tribe can

only implement its TIP within a

reservation, to allow a tribe to

implement other parts of the CAA in

non-reservation areas would be

unmanageable and unreasonable.

EPA believes that the reference in

CAA section 110(o) to ‘‘reservation’’ is

simply a description of the type of area

over which a TIP may apply. EPA does

not believe the provision was intended

to limit the scope of TIPs to

reservations. CAA section 301(d)(1)

authorizes EPA to treat a tribe in the

same manner as a state for any provision

of the Act (except with regard to

appropriations under section 105) as

long as the requirements in section

301(d)(2) are met. EPA has decided to

include most of the provisions of

section 110 in the group of provisions

for which treatment of tribes in the same

manner as a state is appropriate. Section

301(d)(2) permits EPA to approve

eligible tribes to implement CAA

programs, including TIPs, over nonreservation areas that are within a tribe’s

jurisdiction.

An industry commenter asserts that

the Senate Report evidences that

Congress intended to provide tribes the

same opportunity to adopt programs as

provided under the CWA and SDWA.

This commenter asserts that tribal

jurisdiction under those statutes is

limited to reservations. EPA notes that

the SDWA does not limit tribal

programs to reservations. See 42 U.S.C.

300j–11(b)(1)(B) (authorizing a tribal

role ‘‘within the area of the Tribal

Government’s jurisdiction.’’). EPA also

notes that there is evidence in the

Senate Report that Congress intended to

authorize EPA to approve eligible tribes

for CAA programs in non-reservation

areas of Indian country that are within

a tribe’s jurisdiction. The report states

that section 301(d) is designed ‘‘to

improve the environmental quality of

the air wit[h]in Indian country in a

manner consistent with EPA Indian

Policy and ‘the overall Federal position

in support of Tribal self-government and

the government-to-government relations

between Federal and Tribal

Governments’ * * *.’’ Senate Report at

79 (emphasis added) (citing EPA’s 1984

Indian Policy); see also, id. at 80.

3. Other Jurisdictional Issues

Several local governments comment

that the final rule should ensure that

tribes with very small reservations do

not have authority under an air program

to adversely affect economic

development in adjacent areas, intrude

upon the jurisdiction of local

governments, or create checkerboarded

regulation. One commenter asserts that

the proposal would allow for EPA

approval of ‘‘islands’’ of Indian
7260 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

programs and ‘‘will create the same

problems for states and local

governments which EPA believes will

be eliminated by granting tribes full

regulatory power over all land within

reservation borders.’’ In addition, a state

commenter states that extending tribal

programs to non-reservation areas

within the parameters of 18 U.S.C.

section 1151 conflicts with EPA’s goal

under the CAA of increasing cohesive

air quality management. Several

commenters state that regulation by

tribes with very small reservations or

other very small areas of Indian country

would be administratively impractical.

Several local governments state that a

minimum size should be placed on

areas to be considered for tribal

jurisdiction. An industry commenter

suggests that the final rule limit nonreservation tribal programs to those

areas under tribal jurisdiction that are

contiguous with reservations. Some

local government commenters also state

that EPA, instead of a tribe, should

consider enforcing programs on small

areas of Indian country.

EPA acknowledges that there may be

cases where the Agency may approve a

tribe’s application to implement a CAA

program over a relatively small land

area. EPA also recognizes that approval

of a tribal program over a small area that

is surrounded by land covered by a state

CAA program could lead to less uniform

regulation. However, EPA believes it

would be inappropriate to place a

blanket limitation on the geographic

size of an approvable tribal program.

EPA notes that Congress, in the CAA,

authorized the Agency to approve tribal

CAA programs when a tribe meets the

criteria contained in CAA section

301(d)(2)(B) without regard to size of

area. In addition, it is long-standing

federal Indian policy to support tribal

self-government and a government-togovernment relationship with federally

recognized Indian tribes. See Senate

Report at 79; April 29, 1994 Presidential

Memorandum, ‘‘Government-toGovernment Relations with Native

American Tribal Governments,’’ 59 FR

22,951 (May 4, 1994). Furthermore, EPA

policy favors tribal over federal

implementation of environmental

programs in areas under tribal

jurisdiction. See 59 FR at 43962;

November 8, 1984 ‘‘EPA Policy for the

Administration of Environmental

Programs on Indian Reservations.’’ EPA

also recognizes that under the realities

of federal Indian law, there are some

small pockets of Indian country under

tribal and federal jurisdiction that lie

among lands under state jurisdiction.

While EPA recognizes that its approval

of tribal programs over small areas may

result in less uniform regulation in some

cases, the Agency believes that the

approach to tribal jurisdiction outlined

in this Tribal Authority Rule best

reconciles federal Indian and

environmental policies. See Washington

Department of Ecology, 752 F.2d at

1469. The Agency’s overall approach

minimizes the potential for

checkerboarded regulation within

Indian reservations (see preamble at

II.A.1.(a)), while promoting tribal

sovereignty and self-determination.

One tribal commenter states that

pollution from air sources outside a

tribe’s jurisdiction must be addressed.

This commenter states that section 126

of the CAA, while designed to address

this issue, is awkward and probably

difficult to administer. In addition, local

government commenters state that the

off-site effect of approving tribal

programs for Indian lands should be

considered. One local commenter states

that ‘‘mutual protection for air quality

goals, health values and customs should

be assured for all within any physical

air basin to the extent workable.’’

EPA notes that several provisions of

the CAA are designed to address crossboundary air impacts. EPA is finalizing

its proposed approach that the CAA

protections against interstate pollutant

transport apply with equal force to

states and tribes. Thus, EPA is taking

the position that the prohibitions and

authority contained in sections

110(a)(2)(D) and 126 of the CAA apply

to tribes in the same manner as states.

As EPA noted in the preamble to its

proposed rule, section 110(a)(2)(D),

among other things, requires states to

include provisions in their SIPs that

prohibit any emissions activity within

the state from significantly contributing

to nonattainment, interfering with

maintenance of the national ambient air

quality standards (NAAQS), or

interfering with measures under the

Prevention of Significant Deterioration

(PSD) or visibility protection programs

in another state or tribal area. In

addition, section 126 authorizes any

state or tribe to petition EPA to enforce

these prohibitions against a state

containing an allegedly offending source

or group of sources. The issue of crossboundary impacts is discussed further

in the response to comment document.

Several tribal commenters note that,

in the preamble to the proposed rule,

EPA misstated the dollar limitation

contained in the Indian Civil Rights Act

on criminal fines that may be imposed

by tribes. EPA agrees that the dollar

limitation in the Indian Civil Rights Act

on criminal fines is $5,000 as opposed

to $500.

B. Sovereign Immunity and Citizen Suit

1. Section 304

In its August 25, 1994 Notice of

Proposed Rulemaking (NPR) EPA

proposed, under the CAA’s section

301(d) rulemaking authority, that the

citizen suit provisions contained in

section 304 of the Act should apply to

tribes in the same manner in which they

apply to states. See 59 FR at 43978. In

today’s final action, EPA is declining to

announce a position, in the context of

the rulemaking required under section

301(d) of the Act, regarding whether

tribes are subject to the citizen suit

provisions contained in section 304, and

therefore is not finalizing the position

stated in the NPR. In order to facilitate

tribal adoption and implementation of

air quality programs in a manner similar

to state-implemented programs, section

301(d) requires EPA to specify through

rulemaking those provisions of the Act

which the Agency believes are

appropriate to apply to tribes. EPA’s

rulemaking approach has been to deem

all CAA provisions appropriate for

tribes, except for those provisions

specifically listed in the rule regarding

which EPA, for various reasons, believes

it may be inappropriate for the Agency,

solely in the context of its 301(d)

authority, to make such a determination.

Thus, the direct consequence for today’s

final action of EPA’s decision not to

adopt the position presented in the NPR

regarding the provisions of section 304

is that section 304 has been added to the

list of those CAA provisions which, for

section 301(d) purposes, EPA has

concluded it is not appropriate to

determine that tribes should be treated

as states. That list is contained in

section 49.4 of today’s rule. EPA is also

clarifying the relationship of this final

action regarding section 304 to the right

that tribes enjoy, as sovereign powers, to

be immune from suit. See Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 58

(1978).

The Agency received a number of

comments on the section 304 citizen

suit issue. One group of industry

commenters appears to be in favor of

tribes being subject to citizen suits, and

is particularly concerned that non-tribal

members be provided with similar

enforcement opportunities for TIPs as

are required for SIPs. The majority of

comments received on this issue came

from tribal governments, mainly

disputing EPA’s claim that section

301(d), as a legal matter, provided EPA

with the authority to apply the section

304 citizen suit provisions to tribes

since doing so would appear to have the

effect of administratively waiving tribal

sovereign immunity. These commenters
Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations 7261

7Two industry commenters stated that tribal

courts ‘‘lack many procedural, substantive law and

constitutional protection[s] for non-members.’’ EPA

is aware that tribal governments are not subject to

the requirements of the Bill of Rights and the

Fourteenth Amendment of the U.S. Constitution,

and that review of tribal court decisions in federal

court may be limited. However, EPA notes that the

Indian Civil Rights Act requires tribes to provide

several protections similar to those contained in the

Bill of Rights and the Fourteenth Amendment,

including due process of law, equal protection of

the laws, and the right not to have property taken

without just compensation. 25 U.S.C. § 1302; Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 57 (1978).

These protections extend to all persons subject to

tribal jurisdiction, whether Indians or non-Indians.

See Iowa Mutual Insurance Co. v. LaPlante, 480

U.S. 9, 19 (1987).

argue that only the tribes themselves or

Congress may waive tribal sovereign

immunity and, further, that

Congressional intent to waive tribal

sovereign immunity may not be implied

but must be express and unequivocal.

They do not believe that the CAA,

including section 301(d), contains such

an express waiver. Several of the

commenters also state that because

states are subject to section 304 only ‘‘to

the extent permitted by the Eleventh

Amendment to the Constitution,’’

applying it to tribes would likely make

the requirement more burdensome than

it would be for states. Several tribal

commenters also express the view that

citizen suit recourse is unnecessary

since EPA retains enforcement authority

under various other CAA provisions, for

example, sections 110(m), 179(a)(4), and

502(i). Finally, concern is expressed that

adopting a policy of subjecting tribes to

citizen suits could hinder development

of tribal air programs because it could

add significant resource constraints,

financial and otherwise, particularly

with respect to potential litigation.

Section 304 of the CAA reflects the

general principle underlying all

environmental citizen suit provisions,

namely that actors who accept

responsibility for regulating healthbased standards and who voluntarily

commit themselves to undertake control

programs in furtherance of such goals,

ought to be accountable to the citizens

those programs are designed to benefit.

However, EPA agrees, as several

commenters pointed out, that section

304 only applies to states to the extent

permitted by the Eleventh Amendment

to the Constitution. The Supreme Court

has interpreted the provisions of the

Eleventh Amendment as generally

serving to protect a state from liability

to suit where the state does not consent

to be sued. EPA believes that, just as

states implementing air quality

programs are not subject to citizen suits

except to the extent permitted by the

Eleventh Amendment of the

Constitution and the provisions of the

Clean Air Act, by analogy, in the context

of air program implementation in Indian

country, the issue of citizen suit liability

would be determined based on

established principles of tribal sovereign

immunity and the provisions of the

Clean Air Act. This is meant to

emphasize that no EPA action in this

final rule either enhances or limits the

immunity from suit traditionally

enjoyed by Indian tribes as sovereign

powers.

Because the Eleventh Amendment

does not apply to tribes (by its terms,

the Eleventh Amendment only

addresses suits brought ‘‘against one of

the United States’’), and because the

provisions of section 304 (and the

applicable definitions in section 302) do

not expressly refer to tribes, EPA has

been concerned that the action it

proposed to take may have subjected

tribes to citizen suit liability in

situations in which citizens could not

sue states. Because of this uncertainty,

EPA believes it is not appropriate to

attempt to resolve this significant issue

in the context of the limited scope of the

rulemaking required under section

301(d).

EPA also notes that courts have long

recognized that citizen plaintiffs may

bring actions for prospective injunctive

relief against state officials under the

CAA section 304 citizen suit provisions,

as well as under other environmental

statutes with similar citizen suit

provisions. See Council of Commuter

Organizations v. Metro. Transp., 683

F.2d 663, 672 (2nd Cir. 1982). See also

Seminole Tribe of Florida v. Florida,

116 S. Ct. 1114, 1133 n.17 (1996)

(acknowledging that lower courts have

entertained suits against state officials

pursuant to citizen suit provisions in

environmental statutes substantially

identical to CAA section 304(a)(1)).

While this raises the question of

whether such actions could be brought

against ‘‘tribal officials,’’ EPA believes

this issue is also outside the scope of

this rulemaking.

2. Judicial Review Provisions of Title V

In its proposed rulemaking, EPA

proposed to treat tribes in the exact

same manner as states for purposes of

the provisions of CAA sections 502(b)(6)

and 502(b)(7) addressing judicial review

under the Title V Operating Permits

Program. 59 FR at 43972. For the

reasons discussed below, in today’s

final action EPA is withdrawing its

proposal to treat tribes in the exact same

manner as states for purposes of these

judicial review provisions. As described

below, however, tribes that opt to

establish a Title V program will still

need to meet all requirements of

sections 502(b)(6) and 502(b)(7) except

those provisions that specify that review

of final action under the Title V

permitting program be ‘‘judicial’’ and

‘‘in State court.’’

As noted above in the discussion

regarding the applicability of CAA

section 304 to tribes, tribal commenters

express concern over waivers of tribal

sovereign immunity to judicial review.

Several tribal commenters also note that

requiring tribes to waive sovereign

immunity in order to run a Title V

program will be a strong disincentive for

tribes to assume these programs. Two

industry commenters state that

nonmembers that are regulated by tribes

must have access to tribal courts for

judicial review. Several commenters

express concern that some tribal

governments may lack a distinct judicial

system.7

EPA recognizes the importance of

providing citizens the ability to hold

accountable those responsible for

regulating air resources. Nonetheless,

EPA also acknowledges that applying

the judicial review provisions of Title V

to tribes through this rule would raise

unique issues regarding federal Indian

policy and law. EPA is mindful of the

vital importance of sovereign immunity

to tribes. In addition, EPA is aware that

in some instances tribes do not have

distinct judicial systems. Finally, EPA

has long recognized the importance of

encouraging tribal implementation of

environmental programs and avoiding

the establishment of unnecessary

barriers to the development of such

programs. E.g., EPA’s 1984 Indian

Policy; see also Senate Report at 8419

(noting that section 301(d) is generally

intended to be consistent with EPA’s

1984 Indian Policy). EPA seeks to strike

a balance among these various

considerations. See Washington

Department of Ecology v. EPA, 752 F.2d

1465, 1469 (9th Cir. 1985).

In order to ensure a meaningful

opportunity for public participation in

the permitting process, it is EPA’s

position that some form of citizen

recourse be available for applicants and

other persons affected by permits issued

under tribal Title V programs. One

option for review of final actions taken

under a tribal Title V program is for

tribes to consent to suit through

voluntary waiver of their sovereign

immunity in tribal court. EPA supports

the continued development and

strengthening of tribal courts and

encourages those tribes that will

implement Title V permitting programs

to consent to challenges by permit

applicants and other affected persons in

tribal court. For the reasons discussed
7262 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

above, however, requiring tribes to

provide for review in the exact same

manner as states pursuant to section

502(b)(6) is not appropriate.

In some cases, well-qualified tribes

seeking approval of Title V programs

may not have a distinct judiciary, but

rather may use non-judicial mechanisms

for citizen recourse. See Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 65–66

(1978) (‘‘Non-judicial tribal institutions

have * * * been recognized as

competent law-applying bodies.’’). In

addition, a requirement that tribes

waive their sovereign immunity to

judicial review, in some cases, may

discourage tribal assumption of Title V

programs. Thus, EPA is willing to

consider alternative options, developed

and proposed by a tribe in the context

of a tribal CAA Title V program

submittal, that would not require tribes

to waive their sovereign immunity to

judicial review but, at the same time,

would provide for an avenue for appeal

of tribal government action or inaction

to an independent review body and for

injunctive-type relief to which the Tribe

would agree to be bound.

EPA has consistently stressed the

importance of judicial review under

state Title V programs. E.g., Virginia v.

Browner, 80 F.3d 869, 875 (4th Cir.

1996) (‘‘EPA interprets the statute and

regulation to require, at a minimum,

that states provide judicial review of

permitting decisions to any person who

would have standing under Article III of

the United States Constitution. Notice of

Proposed Disapproval, 59 Fed. Reg.

31183, 31184 (June 17, 1994)’’), cert

denied 117 S.Ct. 764 (1997). However,

the statutory scheme regarding tribal

clean air programs is quite different

from that of states. Section 301(d)(2) of

the Act explicitly provides EPA with the

discretion to ‘‘specify * * * those

provisions for which it is appropriate to

treat Indian tribes as States.’’ 42 U.S.C.

7601(d)(1). In addition, section 301(d)(4)

of the Act states that where EPA

‘‘determines that treatment of tribes as

identical to states is inappropriate or

administratively infeasible, [EPA] may

provide, by regulation, other means by

which [EPA] will directly administer

such provisions so as to achieve the

appropriate purpose.’’ 42 U.S.C.

7610(d)(4). As EPA noted in the

preamble to the proposed rule, tribes

have a ‘‘unique legal status and

relationship to the Federal government

that is significantly different from that

of States. [C]ongress did not intend to

alter this when it authorized treatment

of Tribes ‘as States’ under the CAA.’’ 59

FR at 43962, n.11.

In addition, there is ample precedent

for treating tribes and states differently

under federal Indian law. E.g., U.S.

Const. amend. XIV; Indian Civil Rights

Act, 25 U.S.C. 1301 et. seq.; and Santa

Clara Pueblo v. Martinez, 436 U.S. 49

(1978). In Santa Clara, the Supreme

Court addressed the availability of

federal court review of tribal action

under the Indian Civil Rights Act

(ICRA), which requires tribal

governments to provide several

protections similar to those contained in

the Bill of Rights and the Fourteenth

Amendment. In finding that no

additional federal court remedies

beyond habeas corpus were provided by

Congress for review of tribal compliance

with the ICRA, the Court noted that

Congress had struck a balance between

the dual statutory objectives of

enhancing individual rights without

undue interference with tribal

sovereignty. Santa Clara, 436 U.S. at

65–66. EPA has concluded that in

enacting section 301(d) of the Act,

Congress provided EPA with the

discretion to balance the goals of

ensuring meaningful opportunities for

public participation under the CAA and

avoiding undue interference with tribal

sovereignty when determining those

provisions for which it is appropriate to

treat tribes in the same manner as states.

See Washington Department of Ecology

v. EPA, 752 F.2d 1465, 1469 (9th Cir.

1985) (‘‘it is appropriate for us to defer

to EPA’s expertise and experience in

reconciling [Indian policy and

environmental policy], gained through

administration of similar environmental

statutes on Indian lands.’’).

In addition to the requirement that

tribal Title V programs provide some

avenue for appeal of tribal government

action or inaction and for injunctivetype relief, EPA may use several

oversight mechanisms to ensure that

tribal Title V programs provide adequate

opportunities for citizen recourse. E.g.,

CAA sections 502(i)(requiring EPA

assumption of state or tribal Title V

programs that EPA finds are not being

adequately implemented or enforced),

505(b) (requiring EPA objection to state

or tribal Title V permits that EPA finds

do not meet applicable requirements).

Thus, under today’s final rulemaking,

EPA is not requiring tribes to provide

for judicial review in the same manner

as states under CAA section 502(b)(6).

EPA will develop guidance in the future

on acceptable alternatives to judicial

review. In reviewing the Title V

program submission of any tribe

proposing an alternative to judicial

review, EPA will apply such guidance

to determine, pursuant to its section

301(d) authority, whether the tribe has

provided for adequate citizen recourse

consistent with the requirement in CAA

section 502(b)(6) that there be review of

final permit actions and the guidance

and principles discussed above.

EPA emphasizes that tribes seeking to

implement the Title V program will still

need to meet all the requirements of

CAA section 502(b)(6), except the

requirements that review of final permit

actions be ‘‘judicial’’ and ‘‘in state

court.’’ Specifically, tribes seeking to

implement the Title V program, will

need to provide:

[a]dequate, streamlined, and reasonable

procedures for expeditiously determining

when applications are complete, for

processing such applications, for public

notice, including offering an opportunity for

public comment and a hearing, and for

expeditious review of permit actions,

including applications, renewals, or

revisions, and including an opportunity for

* * * review * * * of the final permit action

by the applicant, any person who

participated in the public comment process,

and any other person who could obtain

judicial review of that action under

applicable law.

CAA section 502(b)(6). In addition, all

provisions of CAA section 502(b)(7) will

apply to tribal programs except the

requirements that the review be

‘‘judicial’’ and in ‘‘State court.’’

C. Air Program Implementation in

Indian Country

The August 25, 1994, proposed tribal

authority rule set forth EPA’s view that,

based on the general purpose and scope

of the CAA, the requirements of which

apply nationally, and on the specific

language of sections 301(a) and

301(d)(4), Congress intended to give to

the Agency broad authority to protect

tribal air resources. The proposal went

on to state that EPA intended to use its

authority under the CAA ‘‘to protect air

quality throughout Indian country’’ by

directly implementing the Act’s

requirements in instances where tribes

choose not to develop a program, fail to

adopt an adequate program or fail to

adequately implement an air program.’’

Id. at 43960. Comments on this issue

were received from tribes, state and

local government representatives, and

industry.

The comments generally support the

discussion of EPA’s authority under the

CAA to protect air quality throughout

Indian country, but, overall, seek

specific clarification with respect to the

time frame and scope of federal

implementation. In addition, several

commenters, although focusing on

different aspects of the issue, express a

general concern that there be no

diminution or interruption in tribal air

resource protection while tribal

programs are being developed. EPA
Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations 7263

acknowledges the seriousness of the

concerns identified by the commenters

and agrees that a clearer presentation of

the Agency’s intentions is appropriate.

Most tribal commenters support

establishing federal air programs under

the circumstances outlined in the

proposal, but many are concerned with

the past lack of enforcement of

environmental programs on tribal lands.

Almost all commenters express concern

with the lack of a definite timetable for

federal initiation of air programs to

protect tribal air resources and prevent

gaps in protection. Tribal commenters

generally support the provision in the

proposal to develop an implementation

strategy and a plan for reservation air

program implementation; however, they

request that EPA develop time frames

and establish dates for developing the

implementation strategy. A state

commenter argues that the proposal did

not sufficiently allow for state comment

or input in the development of the

implementation strategy, asserting that

both state and tribal involvement will be

necessary to avoid regulatory conflicts.

A number of government and industry

commenters suggest that EPA elaborate

on the process for developing tribal air

programs in light of the

interrelationship between existing air

programs and new tribal programs.

Another commenter requests that EPA

resolve the process for transition from

existing programs to tribal programs as

part of this rulemaking. One state

comments that the transfer must be

accomplished without leaving sources

of air pollution and the states in air

quality ‘‘limbo’’ pending development

of either tribal or EPA programs to

regulate sources under the jurisdiction

of a tribe. Another state argues that if a

tribe has no approved program and EPA

has no reason for enforcement, section

116 preserves the state’s inherent

authority to regulate non-member

sources on a reservation. One tribe asks

that the process for transferring

administration of an EPA-issued permit

for a source on tribal lands to the tribe

be made more explicit. Many tribal

commenters request technical and

administrative support in the form of

guidance documents, training, sufficient

financial resources, and EPA staff

assigned to work with tribes on tribal

CAA programs who are knowledgeable

about tribal law and concerns. These

commenters also express concern that

limited resources might prevent EPA

from providing this critical support.

As indicated above, EPA recognizes

the seriousness of the concerns

expressed in these comments and has

undertaken an initiative to develop a

comprehensive strategy for

implementing the Clean Air Act in

Indian country. The strategy will

articulate specific steps the Agency will

take to ensure that air quality problems

in Indian country are addressed, either

by EPA or by the tribes themselves. This

strategy [a draft of which is available in

the docket referenced above] addresses

two major concerns: (1) Gaps in Federal

regulatory programs that need to be

filled in order for EPA to implement the

CAA effectively in Indian country

where tribes opt not to implement their

own CAA programs; (2) identifying and

providing resources, tools, and technical

support that tribes will need to develop

their own CAA programs.

EPA believes that the strategy being

developed addresses many of the

concerns expressed by the commenters.

Once tribal programs are approved by

EPA, tribes will have authority to

regulate all sources within the exterior

boundaries of the reservation under

such programs. One of the most

prevalent concerns is the status of

sources (current and future) in Indian

country not yet subject to the limits of

an implementation plan. Commenters

want assurance that EPA would step in

to fill this gap and ensure adequate

control. The Agency has consistently

recognized the primary role for tribes in

protecting air resources in Indian

country and has expressed its continued

commitment to work with tribes to

protect these resources in the absence of

approved tribal programs. The Agency

has issued permits and undertaken the

development of Federal Implementation

Plans (FIP) to control sources locating in

Indian country. For example, the

Agency is working with both the

Shoshone-Bannock and the Navajo

Tribes to address pollution control of

major sources on their Reservations. The

Agency has also issued PSD

preconstruction permits to new sources

proposing to locate in Indian country.

The Agency has started to explore

options for promulgating new measures

to ensure that EPA has a full range of

programs and Federal regulatory

mechanisms to implement the CAA in

Indian country.

Since the 1994 proposal, EPA has

tried specifically to identify the primary

sources of air pollution emissions in

Indian country, and evaluate the CAA

statutory authorities for EPA to regulate

those sources pending submission and

approval of a TIP. EPA has determined

that the CAA provides the Agency with

very broad statutory authority to

regulate sources of pollution in Indian

country, but there are instances in

which EPA has not yet promulgated

regulations to implement its statutory

authority.

One example is the absence of

complete air permitting programs in

Indian country. EPA has promulgated

regulations establishing permit

requirements for major sources in

attainment areas, and issued Prevention

of Significant Deterioration permits to

new or modifying major sources. See 40

CFR 52.21. However, EPA has not

promulgated regulations for a permitting

program in Indian country for either

minor or major sources of air pollution

emissions in nonattainment areas.

Therefore, EPA is currently drafting

nationally applicable regulations for

such minor and major source permitting

programs. The permitting programs are

expected to apply to construction or

modification of all minor sources and to

major sources in nonattainment areas. In

addition, the planned permitting

program would allow existing sources to

voluntarily participate in the permitting

program and accept enforceable permit

limits. EPA regional offices would be

the permitting authority for this

program. With respect to Title V

operating permits, EPA has proposed to

include Indian country within the scope

of 40 CFR Part 71. Therefore, the Part 71

regulations would apply to all major

stationary sources of air pollution

located in Indian country.

Many CAA requirements apply in

Indian country without any further

action by the EPA. For example, the

standards and requirements of the

Standards of Performance for New

Sources, 42 U.S.C. 7411 and 40 CFR Part

60, apply to all sources in Indian

country. Similarly, the National

Emissions Standards for Hazardous Air

Pollutants, 42 U.S.C. 7412 and 40 CFR

Part 63 apply in Indian country.

EPA has, however, identified

categories of sources of air pollution,

such as open burning and fugitive dust,

that are not covered by those

regulations. For these categorical

sources, EPA believes that it has the

authority to promulgate regulations on a

national basis that would apply until a

TIP has been submitted and approved.

EPA has also identified a number of

general air quality rules, such as the

prohibition against emitting greater than

20 percent opacity, which could be

promulgated nationally for application

in Indian country pending TIP approval.

EPA is optimistic that any additional

regulations can be promulgated and

implemented relatively quickly, since,

along with the protections they would

provide, such regulations can also serve

as models which tribes can use in

drafting TIPs.

EPA wishes to emphasize that the

national rules it intends to promulgate

will be analogous to, but not the same
7264 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

in all respects, as the types of rules

generally approved into State

Implementation Plans. For example,

EPA’s federal rules are likely to

represent an average program,

potentially more stringent than some

SIP rules and less stringent than others.

However, by promulgating such rules,

EPA would not be establishing, and

should not be interpreted by States as

setting, new minimal criteria or

standards that would govern its

approval of SIP rules. EPA encourages

and will work closely with all tribes

wishing to replace the future federal

regulations with TIPS. EPA intends that

its federal regulations will apply only in

those situations in which a tribe does

not have an approved TIP.

EPA will actively encourage tribes to

provide assistance in the development

of the proposed regulations referenced

above to ensure that tribal

considerations are addressed and

development of the regulations will be

subject to notice and comment

rulemaking procedures.

The case-by-case nature of program

implementation in Indian country

makes it difficult to address concerns

about plans and time lines. The

Agency’s strategy for implementing the

CAA in Indian country proposes a

multi-pronged approach, one prong of

which is federal implementation

described above. The other prongs

derive from a ‘‘grass-roots’’ approach in

which staff in the EPA regional offices

work with individual tribes to assess the

air quality problems and develop, in

consultation with the tribes, either tribal

or federal strategies for addressing the

problems.

1. Building Tribal Capacity. An

essential component of the Agency’s

CAA implementation strategy is to

assess the extent to which tribes have

developed an environmental protection

infrastructure and determine how best

to build tribal capacity to implement

their own CAA programs. The

assessment will be done in cooperation

with the tribes and may include any or

all of the following:

a. Needs Assessment. An initial step

for effectively implementing the CAA in

Indian country is to identify the air

quality concerns and determine how

well the tribes are able to address them.

EPA will work with the tribes to

develop emission inventories and air

monitoring studies (where appropriate)

to determine the nature of the problem

and identify a range of potential control

strategies. From this information, EPA

and the tribes will jointly develop, as

needed, tribal or federal implementation

plans (TIPs/FIPs) to address the

problem. These TIPs/FIPs may include,

for example, controls on minor sources,

categorical prohibitory rules, area

source controls (e.g., vapor recovery,

open burning ordinances).

b. Communication. A critical part of

the Agency’s strategy to build tribal

capacity is outreach and

communication. Outreach has already

begun as EPA regional staff worked with

tribes in their service area to draft the

Strategy for Implementing the CAA in

Indian Country. Outreach will continue

with the promulgation of this rule; staff

will meet with Tribes in regional

meetings held throughout the country to

talk about implementing the rule and

answer questions. In follow-up to these

initial meetings, EPA will adopt a multimedia approach to communicating with

the Tribes and other stakeholders

(conferences, conference calls,

newsletters, Internet, etc.) to ensure

timely access to information and

guidance developed in support of this

rule.

c. Training. The third component for

building tribal capacity is training,

providing in various forms and through

various media the skills and knowledge

needed to implement an air quality

protection program in Indian country.

EPA already supports a training

program at Northern Arizona University

(NAU) that offers basic introductory

workshops on air quality program

management and administration and a

more in-depth course in air pollution

control technology. This program,

offered at no cost to tribes, helps tribal

environmental professionals develop

competence in air quality management.

The program also prepares these

professionals for enrollment in more

advanced courses in EPA’s Air Pollution

Training Institute (APTI). In addition to

these formal training opportunities, EPA

offers internships to college students

interested in pursuing an environmental

career and supports an outreach

program in high schools in Indian

country to encourage these students’

interest in environmental protection

careers. EPA plans to encourage other

options for promoting tribal professional

development, including peer-to-peer

support, temporary assignments with

other government (state, tribal, or

federal) environmental programs, and

cooperative agreements to provide

technical assistance.

As these individual tribal assessments

are completed, the information will be

compiled in order to determine to what

extent commonalities exist among the

air quality problems that might be

amenable to common solutions (e.g.,

Title V, minor sources, etc.). The

Agency will work in concert to develop

other common solutions, as needed. At

the same time, EPA is developing

guidance documents, templates, and

model analyses to assist tribes in

developing Tribal Air Programs.

Finally, EPA recognizes that air

quality problems in Indian country do

not exist in isolation and that often they

are part of a broader spectrum of

environmental problems, the solutions

for which may be best developed

through an integrated approach to

environmental protection. EPA’s Office

of Air & Radiation will continue to work

with other media offices to develop

overall environmental assessments

(through the Tribal/EPA Environmental

Agreement process) for Indian country

and develop integrated approaches

where appropriate. One approach, for

example, might be to focus on ways to

simultaneously protect air quality, water

quality, and other public health and

environmental values through control

strategies that reduce atmospheric

deposition of air pollutants in Indian

country.

D. CAA Sections 110(c)(1) and 502(d)(3)

Authority

In the proposed tribal rule, EPA stated

that it was not proposing to treat tribes

in the same manner as states under its

section 301(d) authority with respect to

the specific provision in section

110(c)(1) that directs EPA to

promulgate, ‘‘within 2 years,’’ a Federal

Implementation Plan (FIP) after EPA

finds that a state has failed to submit a

required plan, or has submitted an

incomplete plan, or within 2 years after

EPA has disapproved all or a portion of

a plan. 59 FR at 43965. The proposed

exception applied only for that

provision of section 110(c)(1) that sets a

specified date by which EPA must issue

a FIP. The proposal went on to state that

‘‘EPA would continue to be subject to

the basic requirement to issue a FIP for

affected [tribal] areas within some

reasonable time.’’ In today’s action, EPA

is finalizing the general approach

discussed in the proposal, but has

altered the method for implementing

that approach. Therefore, although the

result that was intended by the proposal

remains unchanged, after further

review, EPA is modifying the regulatory

procedure by which it achieves that

result, and is also clarifying the

statutory basis it is relying upon for

doing so.

The proposed rule set forth EPA’s

view that one of the principal goals of

the rulemaking required under section

301(d) is to allow tribes the flexibility to

develop and administer their own CAA

programs to as full an extent as possible,

while at the same time ensuring that the

health and safety of the public is
Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations 7265

protected. However, since, among other

things, tribal authority for establishing

CAA programs was expressly addressed

for the first time in the 1990 CAA

Amendments, in comparison to states,

tribes in general are in the early stages

of developing air planning and

implementation expertise. Accordingly,

EPA determined that it would be

infeasible and inappropriate to subject

tribes to the mandatory submittal

deadlines imposed by the Act on states,

and to the related federal oversight

mechanisms in the Act which are

triggered when EPA makes a finding

that states have failed to meet required

deadlines or acts to disapprove a plan

submittal. As the proposal noted,

section 301(d)(2) provides for EPA to

promulgate regulations specifying those

provisions for which it is appropriate to

treat tribes as states, but does not

compel tribes to develop and seek

approval of air programs. In other

words, there is no date certain submittal

requirement imposed by the Act for

tribes as there is for states. Thus, since

the FIP obligation under section

110(c)(1) is keyed to plan submission

failures by states that are contemplated

with respect to ‘‘a required submission,’’

and to plan disapprovals that have not

been cured within a specified time

frame, the discussion in the proposal

regarding section 110(c)(1) was

consistent with the approach

summarized above. However, given that

the statutory basis underlying section

110(c)(1) is either expressly inapplicable

to tribal plans or is linked to submittal

deadlines that the Agency is today

determining are inappropriate or

infeasible to apply to tribal plan

submissions, that section as a whole—

not merely the provision setting a

specific date by which EPA must issue

a FIP—should have been included on

the list of proposed CAA provisions for

which EPA would not treat tribes in the

same manner as states.

Consequently, in this final action,

EPA has added section 110(c)(1) in its

entirety to the list of CAA provisions in

the rule portion of this action (§ 49.4) for

which EPA is not treating tribes in the

same manner as states. However, by

including the specific FIP obligation

under section 110(c)(1) on the list in

section 49.4 of this final rule, EPA is not

relieved of its general obligation under

the CAA to ensure the protection of air

quality throughout the nation, including

throughout Indian country. In the

absence of an express statutory

requirement, EPA may act to protect air

quality pursuant to its ‘‘gap-filling’’

authority under the Act as a whole. See,

e.g., CAA section 301(a). Moreover,

section 301(d)(4) provides EPA with

discretionary authority, in cases where

it has determined that treatment of

tribes as identical to states is

‘‘inappropriate or administratively

infeasible,’’ to provide for direct

administration through other regulatory

means. EPA is exercising this

discretionary authority and has created

a new section (§ 49.11) to this final rule

which provides that the Agency will

promulgate a FIP to protect tribal air

quality within a reasonable time if tribal

efforts do not result in adoption and

approval of tribal plans or programs.

Thus, EPA will continue to be subject to

the basic requirement to issue a FIP for

affected tribal areas within some

reasonable time.

The proposal notice made clear that

even while the Agency was proposing

not to treat tribes as states for purposes

of the specified date in section 110(c)(1),

it was always EPA’s intention to retain

the requirement to issue a FIP, as

necessary and appropriate, for affected

tribal areas. The bases and rationale for

that determination are thoroughly set

forth in 59 FR 43956 (especially at pages

43964 through 43966) and remain the

same. The only change between the

proposal and this final notice regards

the methodology used to achieve the

intended result, i.e., using the Agency’s

section 301(d)(4) discretionary authority

in conjunction with its general ‘‘gapfilling’’ CAA authority.

Similarly, EPA is taking final action

on its proposal not to treat tribes in a

manner similar to states for the

provision of section 502(d)(3) which

requires issuance by EPA, within two

years of the statutory submittal

deadline, of a federal operating permit

program if EPA has not approved a state

program. The Agency has proposed,

pursuant to its section 301(d)(4)

authority, to include in its final rule

addressing federal implementation of

operating permit programs in Indian

country a commitment to implement

such programs by a date certain in

instances where a tribe chooses not to

implement a program or does not

receive EPA approval of a submitted

program. 62 FR 13748. In light of this

commitment, EPA does not believe it is

necessary to retain the text in § 49.4(j)

acknowledging its federal authority.

III. Significant Changes to the Proposed

Regulations

A. Part 35—State and Local Assistance

Section 35.205 Maximum Federal

Share and Section 35.220 Eligible

Indian Tribe. In its proposed rule, EPA

sought comment on the appropriate

level of tribal cost share for a section

105 grant, from a minimum of five

percent to a maximum of 40 percent.

The proposal also asked for comments

on the establishment of a phase-in

period for tribes to meet whatever match

is ultimately required for section 105

grants. Tribes universally comment that

the level of matching funds should be

kept to a minimum, i.e., five percent, if

not waived altogether, especially during

the early stages of developing an air

quality program. One tribe asserts that

Title V cannot be viewed as the solution

to funding tribal air programs; other

financial resources must also be made

available. In addition, EPA notes that

only a small number of tribes have

applied for section 105 grants despite

being eligible to receive such grants as

air pollution control agencies under

section 302(b)(5) and section 301(d)(5).

EPA attributes much of the tribes’

reluctance to apply for these grants to

the match requirement of forty percent

that has been applicable to all section

105 grants.

EPA agrees with the commenters that

tribal resources generally are not

adequate to warrant the level of match

required of states and that equivalent

resources are unlikely to become

available in the foreseeable future. A

high match requirement would likely

discourage interested tribes from

developing and implementing air

programs. It is not appropriate to

compare the resources available for the

development of state programs to that of

tribes because tribes often lack the

resources or tax infrastructure available

to states for meeting cost share

requirements. Furthermore, a low match

requirement, with a hardship waiver, is

consistent with federal Indian policy

which encourages the removal of

obstacles to self-government and

impediments to tribes implementing

their own programs.

Accordingly, EPA has determined that

it is inappropriate to treat tribes

identically to states for the purpose of

the match requirement of section 105

grants. Therefore, pursuant to its

authority under section 301(d)(4), EPA

will provide a maximum federal

contribution of 95 percent for financial

assistance under section 105 to those

tribes eligible for treatment in the same

manner as states for two years from the

initial grant award. After the initial twoyear period of 5 percent match, EPA

will increase each tribe’s minimum cost

share to 10 percent, as long as EPA

determines that the tribe meets certain

objective and readily-available

economic indicators that would provide

an objective assessment of the tribe’s

ability to increase its share. Within

eighteen months of the promulgation of
7266 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

this rule, the Agency will, with public

input, develop guidance setting forth

the precise procedures for evaluating

tribal economic circumstances and will

identify those economic indicators (for

example, tribal per capita income, tribal

unemployment rates, etc.) that will be

used to support its determinations.

The tribal match will not be waived

unless the tribe can demonstrate in

writing to the satisfaction of the

Regional Administrator that fiscal

circumstances within the tribe are

constrained to such an extent that

fulfilling the match would impose

undue hardship. This waiver provision

is designed to be very rarely used. The

Agency does not foresee any

circumstances that would justify

eliminating this waiver provision for

those eligible tribes that are able to

demonstrate that meeting the match

requirement would result in undue

financial hardship. This waiver

provision is not available to tribes that

establish eligibility for a section 105

grant pursuant to § 35.220(b).

The EPA will examine the experience

of this program and other relevant

information to determine appropriate

long-term cost share rates within five

years of the date of publication of this

rule.

Finally, the definition of Indian Tribe

in § 35.105 has been changed to make it

consistent with the definition found in

the CAA at section 302(r) and the

definition in § 49.2.

B. Title V Operating Permits Program:

Operational Flexibility

The Agency received comments that

objected to the proposed rule’s position

that tribal part 70 programs would not

be required to include the same

operational flexibility provisions

required of state part 70 programs. The

proposal preamble suggested that the

three operational flexibility provisions

at 40 CFR 70.4(b)(12) would be optional

for tribes as would 40 CFR 70.6(a)(8), 40

CFR 70.6(a)(10), and 40 CFR 70.6(a)(9).

A brief description of each of these

provisions follows.

The three operational flexibility

provisions in § 70.4(b)(12) require

permitting authorities to: (1) allow

certain changes within a facility without

requiring a permit revision; (2) allow for

trading increases and decreases in

emissions in the facility where the

applicable implementation plan

provides for such trading; and (3) allow

trading of emissions increases and

decreases in the facility for the purposes

of complying with a federallyenforceable emissions cap that is

established in the permit. These

provisions implement section 502(b)(10)

of the Act. EPA has proposed to modify

these provisions, by deleting the first

provision and making some technical

clarifications to the third provision. See

60 FR 45529 (August 31, 1995).

Section 70.6(a)(8) requires as a

standard condition that permits contain

a provision stating that no permit

revision shall be required under any

approved economic incentives,

marketable permits, emissions trading

and other similar programs or processes

for changes that are provided for in the

permit.

Section 70.6(a)(10) requires a standard

condition (upon request of the

applicant) that allows for emissions

trading at a source if the applicable

requirement provides for trading

without a case-by-case approval of each

emission trade.

Section 70.6(a)(9) requires as a

standard condition (upon request of the

applicant and approval by the

permitting authority) terms that describe

reasonably anticipated operating

scenarios.

Initially, EPA believed that the

technical expertise required to

implement operational flexibility

provisions would make it too difficult

for tribal programs to obtain EPA

approval. Accordingly, the Agency

proposed that, for purposes of these

provisions, tribes would not be treated

in the same manner as states. However,

EPA now believes that a better approach

would be to treat tribes in the same

manner as states for purposes of these

provisions, while providing sufficient

technical assistance, if needed, to enable

tribes to issue permits that meet these

operational flexibility requirements.

Such an approach will assure that

sources will be provided maximum

flexibility regardless of whether the

permitting agency is a tribal or state

agency. In addition, it will afford

sources that are subject to tribal part 70

programs the benefit of streamlined

provisions that have been proposed for

part 70.

C. Section 49.4 Clean Air Act

Provisions for Which Tribes Will Not Be

Treated in the Same Manner as States

Based on the comments received

regarding tribal sovereign immunity and

citizen suits (see discussion at II.B), EPA

is withdrawing its proposal to treat

tribes as states for purposes of section

304 and the judicial review provisions

of sections 502(b)(6) and 502(b)(7) of the

Act and has revised § 49.4 accordingly.

D. Section 49.8 Provisions for Tribal

Criminal Enforcement Authority

EPA is modifying the language under

this provision to clarify the federal role

in criminal enforcement of tribal

programs. Where tribes are precluded by

law from asserting criminal enforcement

authority, the federal government will

exercise criminal enforcement

responsibility. To facilitate this process,

the Criminal Investigation Division

office located at the appropriate EPA

regional office and the tribe will

establish a procedure by which any duly

authorized agency of the tribe (tribal

environmental program, tribal police

force, tribal rangers, tribal fish and

wildlife agents, tribal natural resources

office, etc.) shall provide timely and

appropriate investigative leads to any

agency of the federal government (EPA,

U.S. Attorney, BIA, FBI, etc.) which has

authority to enforce the criminal

provisions of federal environmental

statutes. This procedure will be

incorporated into the Memorandum of

Agreement between the tribe and EPA.

Nothing in the agreement shall be

construed to limit the exercise of

criminal enforcement authority by the

tribe under any circumstances where

the tribe may possess such authority.

E. Section 49.9 EPA Review of Tribal

Clean Air Act Applications

New Process for Determining Eligibility

of Tribes for CAA Programs

Many state, local government and

industry commenters suggest that the

proposed 15-day review period

provided by EPA to identify potential

disputes regarding a tribal applicant’s

assertion of reservation boundaries and

jurisdiction over non-reservation areas

should be extended. Suggested changes

to the proposed 15-day review period

range from 30 to 120 days. Commenters

cite the potential complexity of

jurisdictional issues and the amount of

time required to respond adequately,

especially for non-reservation areas.

These commenters also express concern

that notice and an opportunity for

comment regarding reservation

boundaries and tribal jurisdiction over

non-reservation areas is being limited to

‘‘appropriate governmental entities.’’

Industry commenters suggest that notice

and opportunity for comment also be

provided to the regulated community, as

well as other interested parties (e.g.,

landowners whose property could

potentially fall under tribal

jurisdiction). In addition, one industry

commenter states that such

determinations should be viewed as

rulemakings under the Administrative

Procedures Act (APA) and, thus, subject

to public notice and comment.

Consistent with the TAS process

which EPA has historically

implemented under the Clean Water
Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations 7267

and Safe Drinking Water Acts, the

preamble to EPA’s proposed rule on

tribal CAA programs stated that the

CAA TAS process ‘‘will provide States

with an opportunity to notify EPA of

boundary disputes and enable EPA to

obtain relevant information as

needed[.]’’ 59 FR at 43963. The proposal

also indicated that a principal concern

in developing the eligibility process was

to streamline the process to eliminate

needless delay. Id. In proposing to limit

the notice and comment provision to

‘‘appropriate governmental entities’’ and

the period within which to respond to

15 days with the possibility of a onetime extension of another 15 days, EPA

was generally affirming prior ‘‘treatment

as state’’ (TAS) practice. EPA notes that

neither the Water statutes nor the CAA

mandates a specific process regarding

TAS determinations, including

jurisdiction. Under CAA section

301(d)(2)(B), EPA must evaluate

whether a tribe has demonstrated that

the air resource activities it seeks to

regulate are either within a reservation

area, or within a non-reservation area

over which the tribe has jurisdiction. In

doing so, the Agency has provided for

notice and a limited opportunity for

input respecting the existence of

competing claims over tribes’

reservation boundary assertions and

assertions of jurisdiction over nonreservation areas to ‘‘appropriate

governmental entities,’’ which the

Agency has defined as states, tribes and

other federal entities located contiguous

to the tribe applying for eligibility. See

generally, 56 FR 64876, 64884 (Dec. 12,

1991). This practice recognizes, in part,

that to the extent genuine reservation

boundary or non-reservation

jurisdictional disputes exist, the

assertion of such are an inherently

government-to-government process.

Nonetheless, EPA seeks to make its

notification sufficiently prominent to

inform local governmental entities,

industry and the general public, and

will consider relevant factual

information from these sources as well,

provided (for the reason given above)

they are submitted through the

identified ‘‘appropriate governmental

entities.’’ In making determinations

regarding eligibility in the context of the

Water Acts, EPA has explained that the

part of the process that involves

notifying ‘‘appropriate governmental

entities’’ and inviting them to review

the tribal applicant’s jurisdictional

assertion is designed to be a fact-finding

procedure to assist EPA in making these

statutorily-prescribed determinations

regarding the tribes’ jurisdiction; it is

not in any way to be understood as

creating or approving a state or nontribal oversight role for a statutory

decision entrusted to EPA. For these

reasons, EPA also disagrees with the

industry commenter about the status of

these decisions under the APA. Given

that there is no particular process

specified under EPA governing statutes

for TAS eligibility determinations, they

are in the nature of informal

adjudications for APA purposes. As

such, EPA does not believe there is a

legal requirement for any additional

process than what the Agency already

provides. By contrast, EPA decisions

regarding tribal authority to implement

CAA programs generally are rulemaking

actions involving public notice and

comment in the Federal Register. The

approach in the proposed CAA rule was

intended to follow the above process,

including its imposed limitations (such

as a 15-day review period), to ensure

that overall eligibility decisions should

not be delayed unduly.

In today’s rulemaking, EPA recognizes

that the potential complexities of

reservation boundary and nonreservation jurisdictional issues may

require additional review time and is

finalizing an initial notice and comment

period of 30 days with the option for a

one-time extension of 30 days for

disputes over non-reservation areas,

should the issues identified by the

commenters warrant such extension.

EPA agrees that in some cases issues

regarding tribal jurisdiction over nonreservation areas may be complex and

may require more extensive analysis.

However, EPA believes that many

jurisdictional claims will be noncontroversial and will not elicit adverse

comments. In these instances, a

comment period in excess of 30 days is

not warranted. If, however, the tribal

claims involve non-reservation areas

and require more extensive analysis, an

extension to the comment period may

be warranted. In all cases, comments

from appropriate governmental entities

must be offered in a timely manner, and

must be limited to the tribe’s

jurisdictional assertion.

State and industry commenters

question the appropriateness of the

language in § 49.9 of the regulatory

portion of the proposal which states that

eligibility decisions regarding a tribe’s

jurisdiction will be made by EPA

Regional Administrators, as it appears to

imply that jurisdictional disputes will

always be resolvable at the Agency

level. EPA continues to believe that the

Regional Administrators are the

appropriate decision makers for tribal

eligibility purposes, including

jurisdictional assertions. However, the

Agency does agree that the language, as

written, may have been confusing.

Consequently, EPA has modified the

first sentence of § 49.9(e). As explained

previously, EPA has been making

eligibility decisions pursuant to the TAS

process under other environmental

statutes for some time now. The TAS

process set forth in this rule, including

the process for making tribal

jurisdictional determinations, is

consistent with the approach followed

by EPA in related regulatory contexts.

EPA notes again that it believes that

many submissions regarding

jurisdiction by tribes requesting

eligibility determinations will be noncontroversial.

This final rule allows tribes to submit

simultaneously to EPA a request for an

eligibility determination and a request

for approval of a CAA program. In such

circumstances, EPA will likely

announce its decision with respect to

eligibility and program approval in the

same Federal Register notice, for

purposes of administrative convenience.

However, EPA does not intend this

simultaneous decision process of itself

to be interpreted as altering the

Agency’s view (described above)

regarding APA applicability with

respect to notice and review

opportunities provided to appropriate

governmental entities with respect to

tribal reservation boundary and nonreservation jurisdictional assertions.

F. Section 49.11 Actions Under

Section 301(d)(4) Authority

This section addresses the regulatory

provisions being added to this rule

pursuant to CAA section 301(d)(4). See

discussion at Part II.D above.

IV. Miscellaneous

A. Executive Order (EO) 12866

Section 3(f) of EO 12866 defines

‘‘significant regulatory action’’ to mean

any regulatory action 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

President’s priorities, or the principles

set forth in this Executive order.
7268 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

This rule was determined to be a

significant regulatory action. A draft of

this rule was reviewed by the Office of

Management and Budget (OMB) prior to

publication because of anticipated

public interest in this action including

potential interest by Indian tribes and

state/local governments.

EPA has placed the following

information related to OMB’s review of

this proposed rule in the public docket

referenced at the beginning of this

notice:

(1) Materials provided to OMB in

conjunction with OMB’s review of this

rule; and

(2) Materials that identify substantive

changes made between the submittal of

a draft rule to OMB and this notice, and

that identify those changes that were

made at the suggestion or

recommendation of OMB.

B. Regulatory Flexibility Act (RFA)

Under the RFA, 5 U.S.C. 601–612,

EPA must prepare, for rules subject to

notice-and-comment rulemaking, initial

and final Regulatory Flexibility

Analyses describing the impact on small

entities. The RFA defines small entities

as follows:

—Small businesses. Any business

which is independently owned and

operated and is not dominant in its

field as defined by Small Business

Administration regulations under

section 3 of the Small Business Act.

—Small governmental jurisdictions.

Governments of cities, counties,

towns, townships, villages, school

districts or special districts, with a

population of less than fifty thousand.

—Small organizations. Any not-forprofit enterprise which is

independently owned and operated

and is not dominant in its field.

However, the requirement of preparing

such analyses is inapplicable if the

Administrator certifies that the rule will

not, if promulgated, have a significant

economic impact on a substantial

number of small entities. 5 U.S.C.

605(b).

The rule will not have a significant

economic impact on a substantial

number of small entities. Many Indian

tribes may meet the definition of small

governmental jurisdiction provided

above. However, the rule does not place

any mandates on Indian tribes. Rather,

it authorizes Indian tribes at their own

initiative to demonstrate their eligibility

to be treated in the same manner as

states under the Clean Air Act, to

submit CAA programs for specified

provisions and to request federal

financial assistance as described

elsewhere in this preamble. Further, the

rule calls for the minimum information

necessary to effectively evaluate tribal

applications for eligibility, CAA

program approval and federal financial

assistance. Thus, EPA has attempted to

minimize the burden for any tribe that

chooses to participate in the programs

provided in this rule.

The regulation will not have a

significant impact on a substantial

number of small businesses. Any

additional economic impact on the

public resulting from implementation of

this regulation is expected to be

negligible, since tribal regulation of

these activities is limited to areas within

reservations and non-reservation areas

within tribal jurisdiction and, in any

event, EPA has regulated or may

regulate these activities in the absence

of tribal CAA programs.

The regulation will not have a

significant impact on a substantial

number of small organizations for the

same reasons that the regulation will not

have a significant impact on a

substantial number of small businesses.

Accordingly, I certify that this

regulation will not have a significant

economic impact on a number of small

entities.

C. Executive Order (EO) 12875 and the

Unfunded Mandates Reform Act

EO 12875 is intended to reduce the

imposition of unfunded mandates upon

state, local and tribal governments. To

that end, it calls for federal agencies to

refrain, to the extent feasible and

permitted by law, from promulgating

any regulation that is not required by

statute and that creates a mandate upon

a state, local, or tribal government,

unless funds for complying with the

mandate are provided by the federal

government or the Agency first consults

with affected state, local and tribal

governments.

The issuance of this rule is required

by statute. Section 301(d) of the CAA

directs the Administrator to promulgate

regulations specifying those provisions

of the Act for which it is appropriate to

treat Indian tribes as states. Moreover,

this rule will not place mandates on

Indian tribes. Rather, as discussed in

section IV.B above, this rule authorizes

or enables tribes to demonstrate their

eligibility to be treated in the same

manner as states under the Clean Air

Act and to submit CAA programs for the

provisions specified by the

Administrator. Further, the rule also

explains how tribes seeking to develop

and submit CAA programs to EPA for

approval may qualify for federal

financial assistance.

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–

4, signed into law on March 22, 1995,

establishes requirements for federal

agencies to assess the effects of their

regulatory actions on state, local, and

tribal governments and the private

sector. Under sections 202 and 205 of

the UMRA, EPA generally must prepare

a written statement of economic and

regulatory alternatives analyses for

proposed or final rules with federal

mandates, as defined by the UMRA, that

may result in expenditures to state,

local, or tribal governments, in the

aggregate, or to the private sector, of

$100 million or more in any one year.

The section 202 and 205 requirements

do not apply to today’s action because

it is not a ‘‘Federal Mandate’’ and

because it does not impose annual costs

of $100 million or more.

Today’s rule contains no federal

mandates for state, local or tribal

governments or the private sector for

two reasons. First, today’s action does

not impose any enforceable duties on

any state, local or tribal governments or

the private sector. Second, the Act also

generally excludes from the definition

of a ‘‘federal mandate’’ duties that arise

from participation in a voluntary federal

program. As discussed above and in

Section IV.B., the rule that is being

promulgated today merely authorizes

eligible tribes to seek, at their own

election, approval from EPA to

implement CAA programs for the

provisions specified by the

Administrator. Moreover, EPA has

regulated or may regulate these

activities in the absence of Tribal CAA

programs.

Even if today’s rule did contain a

federal mandate, this rule will not result

in annual expenditures of $100 million

or more for state, local, and tribal

governments, in the aggregate, or the

private sector. This rule only addresses

CAA authorizations that pertain to tribal

governments, not to state or local

governments, and calls for tribal

governments to submit the minimum

information necessary to effectively

evaluate applications for eligibility and

CAA program approval. The rule also

explains how tribes seeking to develop

and submit CAA programs for approval

may qualify for federal financial

assistance and, thus, minimize any

economic burden. Finally, any

economic impact on the public resulting

from implementation of this regulation

is expected to be negligible, since tribal

regulation of CAA activities is limited to

reservation areas and non-reservation

areas over which a tribe can

demonstrate jurisdiction.

Before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,
Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations 7269

including tribal governments, section

203 of the UMRA requires EPA to

develop a plan for informing and

advising any small government. EPA

consulted with tribal governments

periodically throughout the

development of the proposed rule, and

met directly with tribal representatives

at three major outreach meetings. Since

issuance of the proposed rule, EPA also

received extensive comments from, and

has been in communication with, tribal

governments regarding all aspects of

this rule. The Agency is also committed

to providing ongoing assistance to tribal

governments seeking to develop and

submit CAA programs for approval.

D. Paperwork Reduction Act

OMB has approved the information

collection requirements pertaining to

grants applications contained in this

rule under the provisions of the

Paperwork Reduction Act, 44 U.S.C.

3501, et seq. and has assigned OMB

control number 2030–0020.

This collection of information

pertaining to the grants application

process has an estimated reporting

burden averaging 29 hours per response

and an estimated annual record keeping

burden averaging 3 hours per

respondent. These estimates include

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information.

The Office of Management and Budget

has also approved the information

collection requirements pertaining to an

Indian tribe’s application for eligibility

to be treated in the same manner as a

state or ‘‘treatment as state’’ as provided

by this rule under the Paperwork

Reduction Act, 44 U.S.C. 3501, et seq.

and has assigned OMB control number

2060–0306. This rule provides that each

tribe voluntarily choosing to apply for

eligibility is to meet eligibility by

demonstrating it: (1) Is a federally

recognized tribe; (2) has a governing

body carrying out substantial

governmental duties and powers; and

(3) is reasonably expected to be capable

of carrying out the program for which it

is seeking approval in a manner

consistent with the CAA and applicable

regulations. If a tribe is asserting

jurisdiction over non-reservation areas,

it must demonstrate that the legal and

factual basis for its jurisdiction is

consistent with applicable principles of

federal Indian law.

This collection of information for

treatment in the same manner as states

to carry out the Clean Air Act has an

estimated reporting burden of 20 annual

responses, averaging 40 hours per

response and an estimated annual

record keeping burden averaging 800

hours. These estimates include time for

reviewing instructions, searching

existing data sources, gathering and

maintaining the data needed, and

completing and reviewing the collection

of information. 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, 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.

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 are listed

in 40 CFR Part 9 and 48 CFR Chapter

15. EPA is amending the table in 40 CFR

Part 9 of currently approved ICR control

numbers issued by OMB for various

regulations to list the information

requirements contained in this final

rule.

E. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

List of Subjects

40 CFR Part 9

Environmental protection, Reporting

and recordkeeping requirements.

40 CFR Part 35

Environmental protection, Air

pollution control, Coastal zone, Grant

programs—environmental protection,

Grant programs—Indians, Hazardous

waste, Indians, Intergovernmental

relations, Pesticides and pests,

Reporting and recordkeeping

requirements, Superfund, Waste

treatment and disposal, Water pollution

control, Water supply.

40 CFR Part 49

Environmental protection, Air

pollution control, Administrative

practice and procedure, Indians,

Intergovernmental relations, Reporting

and recordkeeping requirements.

40 CFR Part 50

Air pollution control, Carbon

monoxide, Lead, Nitrogen dioxide,

Ozone, Particulate matter, Sulfur oxides.

40 CFR Part 81

Environmental protection, Air

pollution control, National parks,

Wilderness areas.

Dated: February 3, 1998.

Carol M. Browner,

Administrator.

For the reasons set out in the

Preamble, title 40, chapter I of the Code

of Federal Regulations is amended as set

forth below:

PART 9—OMB APPROVALS UNDER

THE PAPERWORK REDUCTION ACT

1. The authority citation for part 9

continues to read as follows:

Authority: 7 U.S.C. 135 et seq., 136–136y;

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671;

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318,

1321, 1326, 1330, 1342, 1344, 1345 (d) and

(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,

1971–1975 Comp. p. 973; 42 U.S.C. 241,

242b, 243, 246, 300f, 300g, 300g–1, 300g–2,

300g–3, 300g–4, 300g–5, 300g–6, 300j–1,

300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq.,

6901–6992k, 7401–7671q, 7542, 9601–9657,

11023, 11048.

2. In § 9.1 the table is amended by

adding a heading and entries in

numerical order to read as follows:

§ 9.1 OMB approvals under the Paperwork

Reduction Act.

* * * * *

40 CFR citation OMB control No.

* * * * *

Indian Tribes:

Air Quality Planning and Management

49.6 ............................... 2060–0306

49.7 ............................... 2060–0306

* * * * *

PART 35—STATE AND LOCAL

ASSISTANCE

3. The authority cite for part 35,

subpart a, continues to read as follows:
7270 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

Authority: Secs. 105 and 301(a) of the

Clean Air Act, as amended (42 U.S.C. 7405

and 7601(a)); Secs. 106, 205(g), 205(j), 208,

319, 501(a), and 518 of the Clean Water Act,

as amended (33 U.S.C. 1256, 1285(g), 1285(j),

1288, 1361(a) and 1377); secs. 1443, 1450,

and 1451 of the Safe Drinking Water Act (42

U.S.C. 300j–2, 300j–9 and 300j–11); secs.

2002(a) and 3011 of the Solid Waste Disposal

Act, as amended by the Resource

Conservation and Recovery Act of 1976 (42

U.S.C. 6912(a), 6931, 6947, and 6949); and

secs. 4, 23, and 25(a) of the Federal

Insecticide, Fungicide and Rodenticide Act,

as amended (7 U.S.C. 136(b), 136(u) and

136w(a)).

4. Section 35.105 is amended by

revising the definitions for ‘‘Eligible

Indian Tribe,’’ ‘‘Federal Indian

Reservation,’’ and the first definition for

‘‘Indian Tribe,’’ and by removing the

second definition for ‘‘Indian Tribe’’ to

read as follows:

§ 35.105 Definitions.

Eligible Indian Tribe means:

(1) For purposes of the Clean Water

Act, any federally recognized Indian

Tribe that meets the requirements set

forth at 40 CFR 130.6(d); and

(2) For purposes of the Clean Air Act,

any federally recognized Indian Tribe

that meets the requirements set forth at

§ 35.220.

Federal Indian Reservation means for

purposes of the Clean Water Act or the

Clean Air Act, 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.

Indian Tribe means:

(1) Within the context of the Public

Water System Supervision and

Underground Water Source Protection

grants, any Indian Tribe having a

federally recognized governing body

carrying out substantial governmental

duties and powers over a defined area.

(2) For purposes of the Clean Water

Act, any Indian Tribe, band, group, or

community recognized by the Secretary

of the Interior and exercising

governmental authority over a federal

Indian reservation.

(3) For purposes of the Clean Air Act,

any Indian Tribe, band, nation, or other

organized group or community,

including any Alaskan Native Village,

which is federally recognized as eligible

for the special programs and services

provided by the United States to Indians

because of their status as Indians.

* * * * *

5. Section 35.205 is amended by

adding new paragraphs (c), (d), and (e)

to read as follows:

§ 35.205 Maximum Federal share.

* * * * *

(c) For Indian Tribes establishing

eligibility pursuant to § 35.220(a), the

Regional Administrator may provide

financial assistance in an amount up to

95 percent of the approved costs of

planning, developing, establishing, or

improving an air pollution control

program, and up to 95 percent of the

approved costs of maintaining that

program. After two years from the date

of each Tribe’s initial grant award, the

Regional Administrator will reduce the

maximum federal share to 90 percent, as

long as the Regional Administrator

determines that the Tribe meets certain

economic indicators that would provide

an objective assessment of the Tribe’s

ability to increase its share. The EPA

will examine the experience of this

program and other relevant information

to determine appropriate long-term cost

share rates within five years of February

12, 1998. For Indian Tribes establishing

eligibility pursuant to § 35.220(a), the

Regional Administrator may increase

the maximum federal share if the Tribe

can demonstrate in writing to the

satisfaction of the Regional

Administrator that fiscal circumstances

within the Tribe are constrained to such

an extent that fulfilling the match would

impose undue hardship. This waiver

provision is designed to be very rarely

used.

(d) The Regional Administrator may

provide financial assistance in an

amount up to 95 percent of the

approved costs of planning, developing,

establishing, or approving an air

pollution control program and up to 95

percent of the approved costs of

maintaining that program to an

intertribal agency of two or more Tribes

that have established eligibility

pursuant to § 35.220(a), which has

substantial responsibility for carrying

out an applicable implementation plan

under section 110 of the Clean Air Act,

when such intertribal agency is

authorized by the governing bodies of

those Tribes to apply for and receive

financial assistance. After two years

from the date of each intertribal

agency’s initial grant award, the

Regional Administrator will reduce the

maximum federal share to 90 percent, as

long as the Regional Administrator

determines that the tribal members of

the intertribal agency meet certain

economic indicators that would provide

an objective assessment of the Tribes’

ability to increase the non-federal share.

For intertribal agencies made up of

Indian Tribes establishing eligibility

pursuant to § 35.220(a), which have

substantial responsibility for carrying

out an applicable implementation plan

under section 110 of the Clean Air Act,

the Regional Administrator may

increase the maximum federal share if

the intertribal agency can demonstrate

in writing to the satisfaction of the

Regional Administrator that fiscal

circumstances within the member

Tribes are constrained to such an extent

that fulfilling the match would impose

undue hardship. This waiver provision

is designed to be very rarely used.

(e) The Regional Administrator may

provide financial assistance in an

amount up to 60 percent of the

approved costs of planning, developing,

establishing, or improving an air

pollution control program, and up to

sixty percent of the approved costs of

maintaining that program to Tribes that

have not made a demonstration that

they are eligible for treatment in the

same manner as a state under 40 CFR

49.6, but are eligible for financial

assistance under § 35.220(b).

6. Section 35.210 is amended by

adding paragraph (c) to read as follows:

§ 35.210 Maintenance of effort.

* * * * *

(c) The requirements of paragraphs (a)

and (b) of this section shall not apply to

Indian Tribes that have established

eligibility pursuant to § 35.220(a) and

intertribal agencies made up of such

Tribes.

7. Section 35.215 is revised to read as

follows:

§ 35.215 Limitations.

(a) The Regional Administrator will

not award section 105 funds to an

interstate, intertribal or intermunicipal

agency which does not provide

assurance that it can develop a

comprehensive plan for the air quality

control region which includes

representation of appropriate state,

interstate, tribal, local, and international

interests.

(b) The Regional Administrator will

not award section 105 funds to a local,

interstate, intermunicipal, or intertribal

agency without consulting with the

appropriate official designated by the

Governor or Governors of the state or

states affected or the appropriate official

of any affected Indian Tribe or Tribes.

(c) The Regional Administrator will

not disapprove an application for or

terminate or annul an award of section

105 funds without prior notice and

opportunity for a public hearing in the

affected state or area within tribal

jurisdiction or in one of the affected

states or areas within tribal jurisdiction

if several are affected.

8. Section 35.220 is added just before

the center heading ‘‘Water Pollution
Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations 7271

Control (section 106)’’ to read as

follows:

§ 35.220 Eligible Indian Tribes.

The Regional Administrator may

make Clean Air Act section 105 grants

to Indian Tribes establishing eligibility

under paragraph (a) of this section,

without requiring the same cost share

that would be required if such grants

were made to states. Instead grants to

eligible Tribes will include a tribal cost

share of five percent for two years from

the date of each Tribe’s initial grant

award. After two years, the Regional

Administrator will increase the tribal

cost share to ten percent, as long as the

Regional Administrator determines that

the Tribe meets certain economic

indicators that would provide an

objective assessment of the Tribe’s

ability to increase its cost share.

Notwithstanding the above, the Regional

Administrator may reduce the required

cost share of grants to Tribes that

establish eligibility under paragraph (a)

of this section if the Tribe can

demonstrate in writing to the

satisfaction of the Regional

Administrator that fiscal circumstances

within the Tribe are constrained to such

an extent that fulfilling the match would

impose undue hardship. This waiver

provision is designed to be very rarely

used.

(a) An Indian Tribe is eligible to

receive financial assistance if it has

demonstrated eligibility to be treated in

the same manner as a state under 40

CFR 49.6.

(b) An Indian Tribe that has not made

a demonstration under 40 CFR 49.6 is

eligible for financial assistance under 42

U.S.C. 7405 and 7602(b)(5).

(c) The Administrator shall process a

tribal application for financial

assistance under this section in a timely

manner.

9. Part 49 is added to read as follows:

PART 49—TRIBAL CLEAN AIR ACT

AUTHORITY

Sec.

49.1 Program overview.

49.2 Definitions.

49.3 General Tribal Clean Air Act authority.

49.4 Clean Air Act provisions for which it

is not appropriate to treat tribes in the

same manner as states.

49.5 Tribal requests for additional Clean Air

Act provisions for which it is not

appropriate to treat tribes in the same

manner as states.

49.6 Tribal eligibility requirements.

49.7 Request by an Indian tribe for

eligibility determination and Clean Air

Act program approval.

49.8 Provisions for tribal criminal

enforcement authority.

49.9 EPA review of tribal Clean Air Act

applications.

49.10 EPA review of state Clean Air Act

programs.

49.11 Actions under section 301(d)(4)

authority.

Authority: 42 U.S.C. 7401, et seq.

§ 49.1 Program overview.

(a) The regulations in this part

identify those provisions of the Clean

Air Act (Act) for which Indian tribes are

or may be treated in the same manner

as states. In general, these regulations

authorize eligible tribes to have the

same rights and responsibilities as states

under the Clean Air Act and authorize

EPA approval of tribal air quality

programs meeting the applicable

minimum requirements of the Act.

(b) Nothing in this part shall prevent

an Indian tribe from establishing

additional or more stringent air quality

protection requirements not

inconsistent with the Act.

§ 49.2 Definitions.

(a) Clean Air Act or Act means those

statutory provisions in the United States

Code at 42 U.S.C. 7401, et seq.

(b) Federal Indian Reservation, Indian

Reservation or Reservation means 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.

(c) Indian tribe or tribe means any

Indian tribe, band, nation, or other

organized group or community,

including any Alaska Native village,

which is federally recognized as eligible

for the special programs and services

provided by the United States to Indians

because of their status as Indians.

(d) Indian Tribe Consortium or Tribal

Consortium means a group of two or

more Indian tribes.

(e) State means a State, the District of

Columbia, the Commonwealth of Puerto

Rico, the Virgin Islands, Guam, and

American Samoa and includes the

Commonwealth of the Northern Mariana

Islands.

§ 49.3 General Tribal Clean Air Act

authority.

Tribes meeting the eligibility criteria

of § 49.6 shall be treated in the same

manner as states with respect to all

provisions of the Clean Air Act and

implementing regulations, except for

those provisions identified in § 49.4 and

the regulations that implement those

provisions.

§ 49.4 Clean Air Act provisions for which

it is not appropriate to treat tribes in the

same manner as states.

Tribes will not be treated as states

with respect to the following provisions

of the Clean Air Act and any

implementing regulations thereunder:

(a) Specific plan submittal and

implementation deadlines for NAAQSrelated requirements, including but not

limited to such deadlines in sections

110(a)(1), 172(a)(2), 182, 187, 189, and

191 of the Act.

(b) The specific deadlines associated

with the review and revision of

implementation plans related to major

fuel burning sources in section 124 of

the Act.

(c) The mandatory imposition of

sanctions under section 179 of the Act

because of a failure to submit an

implementation plan or required plan

element by a specific deadline, or the

submittal of an incomplete or

disapproved plan or element.

(d) The provisions of section 110(c)(1)

of the Act.

(e) Specific visibility implementation

plan submittal deadlines established

under section 169A of the Act.

(f) Specific implementation plan

submittal deadlines related to interstate

commissions under sections 169B(e)(2),

184(b)(1) & (c)(5) of the Act. For eligible

tribes participating as members of such

commissions, the Administrator shall

establish those submittal deadlines that

are determined to be practicable or, as

with other non-participating tribes in an

affected transport region, provide for

federal implementation of necessary

measures.

(g) Any provisions of the Act

requiring as a condition of program

approval the demonstration of criminal

enforcement authority or any provisions

of the Act providing for the delegation

of such criminal enforcement authority.

Tribes seeking approval of a Clean Air

Act program requiring such

demonstration may receive program

approval if they meet the requirements

of § 49.8.

(h) The specific deadline for the

submittal of operating permit programs

in section 502(d)(1) of the Act.

(i) The mandatory imposition of

sanctions under section 502(d)(2)(B)

because of failure to submit an operating

permit program or EPA disapproval of

an operating permit program submittal

in whole or part.

(j) The ‘‘2 years after the date required

for submission of such a program under

paragraph (1)’’ provision in section

502(d)(3) of the Act.

(k) Section 502(g) of the Act, which

authorizes a limited interim approval of

an operating permit program that
7272 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

substantially meets the requirements of

Title V, but is not fully approvable.

(l) The provisions of section 503(c) of

the Act that direct permitting authorities

to establish a phased schedule assuring

that at least one-third of the permit

applications submitted within the first

full year after the effective date of an

operating permit program (or a partial or

interim program) will be acted on by the

permitting authority over a period not to

exceed three years after the effective

date.

(m) The provisions of section 507(a)

of the Act that specify a deadline for the

submittal of plans for establishing a

small business stationary source

technical and environmental

compliance assistance program.

(n) The provisions of section 507(e) of

the Act that direct the establishment of

a Compliance Advisory Panel.

(o) The provisions of section 304 of

the Act that, read together with section

302(e) of the Act, authorize any person

who provides the minimum required

advance notice to bring certain civil

actions in the federal district courts

against states in their capacity as states.

(p) The provisions of section 502(b)(6)

of the Act that require that review of a

final permit action under the Title V

permitting program be ‘‘judicial’’ and

‘‘in State court,’’ and the provisions of

section 502(b)(7) of the Act that require

that review of a failure on the part of the

permitting authority to act on permit

applications or renewals by the time

periods specified in section 503 of the

Act be ‘‘judicial’’ and ‘‘in State court.’’

(q) The provision of section 105(a)(1)

that limits the maximum federal share

for grants to pollution control agencies

to three-fifths of the cost of

implementing programs for the

prevention and control of air pollution

or implementation of national primary

and secondary ambient air quality

standards.

§ 49.5 Tribal requests for additional Clean

Air Act provisions for which it is not

appropriate to treat tribes in the same

manner as states.

Any tribe may request that the

Administrator specify additional

provisions of the Clean Air Act for

which it would be inappropriate to treat

tribes in general in the same manner as

states. Such request should clearly

identify the provisions at issue and

should be accompanied with a

statement explaining why it is

inappropriate to treat tribes in the same

manner as states with respect to such

provisions.

§ 49.6 Tribal eligibility requirements.

Sections 301(d)(2) and 302(r), 42

U.S.C. 7601(d)(2) and 7602(r), authorize

the Administrator to treat an Indian

tribe in the same manner as a state for

the Clean Air Act provisions identified

in § 49.3 if the Indian tribe meets the

following criteria:

(a) The applicant is an Indian tribe

recognized by the Secretary of the

Interior;

(b) The Indian tribe has a governing

body carrying out substantial

governmental duties and functions;

(c) The functions to be exercised by

the Indian tribe pertain to the

management and protection of air

resources within the exterior boundaries

of the reservation or other areas within

the tribe’s jurisdiction; and

(d) The Indian tribe is reasonably

expected to be capable, in the EPA

Regional Administrator’s judgment, of

carrying out the functions to be

exercised in a manner consistent with

the terms and purposes of the Clean Air

Act and all applicable regulations.

§ 49.7 Request by an Indian tribe for

eligibility determination and Clean Air Act

program approval.

(a) An Indian tribe may apply to the

EPA Regional Administrator for a

determination that it meets the

eligibility requirements of § 49.6 for

Clean Air Act program approval. The

application shall concisely describe

how the Indian tribe will meet each of

the requirements of § 49.6 and should

include the following information:

(1) A statement that the applicant is

an Indian tribe recognized by the

Secretary of the Interior.

(2) A descriptive statement

demonstrating that the applicant is

currently carrying out substantial

governmental duties and powers over a

defined area. This statement should:

(i) Describe the form of the tribal

government;

(ii) Describe the types of government

functions currently performed by the

tribal governing body such as, but not

limited to, the exercise of police powers

affecting (or relating to) the health,

safety, and welfare of the affected

population; taxation; and the exercise of

the power of eminent domain; and

(iii) Identify the source of the tribal

government’s authority to carry out the

governmental functions currently being

performed.

(3) A descriptive statement of the

Indian tribe’s authority to regulate air

quality. For applications covering areas

within the exterior boundaries of the

applicant’s reservation the statement

must identify with clarity and precision

the exterior boundaries of the

reservation including, for example, a

map and a legal description of the area.

For tribal applications covering areas

outside the boundaries of a reservation

the statement should include:

(i) A map or legal description of the

area over which the application asserts

authority; and

(ii) A statement by the applicant’s

legal counsel (or equivalent official) that

describes the basis for the tribe’s

assertion of authority (including the

nature or subject matter of the asserted

regulatory authority) which may include

a copy of documents such as tribal

constitutions, by-laws, charters,

executive orders, codes, ordinances,

and/or resolutions that support the

tribe’s assertion of authority.

(4) A narrative statement describing

the capability of the applicant to

administer effectively any Clean Air Act

program for which the tribe is seeking

approval. The narrative statement must

demonstrate the applicant’s capability

consistent with the applicable

provisions of the Clean Air Act and

implementing regulations and, if

requested by the Regional

Administrator, may include:

(i) A description of the Indian tribe’s

previous management experience which

may include the administration of

programs and services authorized by the

Indian Self-Determination and

Education Assistance Act (25 U.S.C.

450, et seq.), the Indian Mineral

Development Act (25 U.S.C. 2101, et

seq.), or the Indian Sanitation Facility

Construction Activity Act (42 U.S.C.

2004a);

(ii) A list of existing environmental or

public health programs administered by

the tribal governing body and a copy of

related tribal laws, policies, and

regulations;

(iii) A description of the entity (or

entities) that exercise the executive,

legislative, and judicial functions of the

tribal government;

(iv) A description of the existing, or

proposed, agency of the Indian tribe that

will assume primary responsibility for

administering a Clean Air Act program

(including a description of the

relationship between the existing or

proposed agency and its regulated

entities);

(v) A description of the technical and

administrative capabilities of the staff to

administer and manage an effective air

quality program or a plan which

proposes how the tribe will acquire

administrative and technical expertise.

The plan should address how the tribe

will obtain the funds to acquire the

administrative and technical expertise.

(5) A tribe that is a member of a tribal

consortium may rely on the expertise

and resources of the consortium in

demonstrating under paragraph (a)(4) of

this section that the tribe is reasonably
Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations 7273

expected to be capable of carrying out

the functions to be exercised consistent

with § 49.6(d). A tribe relying on a

consortium in this manner must provide

reasonable assurances that the tribe has

responsibility for carrying out necessary

functions in the event the consortium

fails to.

(6) Where applicable Clean Air Act or

implementing regulatory requirements

mandate criminal enforcement

authority, an application submitted by

an Indian tribe may be approved if it

meets the requirements of § 49.8.

(7) Additional information required

by the EPA Regional Administrator

which, in the judgment of the EPA

Regional Administrator, is necessary to

support an application.

(8) Where the applicant has

previously received authorization for a

Clean Air Act program or for any other

EPA-administered program, the

applicant need only identify the prior

authorization and provide the required

information which has not been

submitted in the previous application.

(b) A tribe may simultaneously submit

a request for an eligibility determination

and a request for approval of a Clean Air

Act program.

(c) A request for Clean Air Act

program approval must meet any

applicable Clean Air Act statutory and

regulatory requirements. A program

approval request may be comprised of

only partial elements of a Clean Air Act

program, provided that any such

elements are reasonably severable, that

is, not integrally related to program

elements that are not included in the

plan submittal, and are consistent with

applicable statutory and regulatory

requirements.

§ 49.8 Provisions for tribal criminal

enforcement authority.

To the extent that an Indian tribe is

precluded from asserting criminal

enforcement authority, the federal

government will exercise primary

criminal enforcement responsibility.

The tribe, with the EPA Region, shall

develop a procedure by which the tribe

will provide potential investigative

leads to EPA and/or other appropriate

federal agencies, as agreed to by the

parties, in an appropriate and timely

manner. This procedure shall

encompass all circumstances in which

the tribe is incapable of exercising

applicable enforcement requirements as

provided in § 49.7(a)(6). This agreement

shall be incorporated into a

Memorandum of Agreement with the

EPA Region.

§ 49.9 EPA review of tribal Clean Air Act

applications.

(a) The EPA Regional Administrator

shall process a request of an Indian tribe

submitted under § 49.7 in a timely

manner. The EPA Regional

Administrator shall promptly notify the

Indian tribe of receipt of the application.

(b) Within 30 days of receipt of an

Indian tribe’s initial, complete

application, the EPA Regional

Administrator shall notify all

appropriate governmental entities.

(1) For tribal applications addressing

air resources within the exterior

boundaries of the reservation, EPA’s

notification of other governmental

entities shall specify the geographic

boundaries of the reservation.

(2) For tribal applications addressing

non-reservation areas, EPA’s

notification of other governmental

entities shall include the substance and

bases of the tribe’s jurisdictional

assertions.

(c) The governmental entities shall

have 30 days to provide written

comments to EPA’s Regional

Administrator regarding any dispute

concerning the boundary of the

reservation. Where a tribe has asserted

jurisdiction over non-reservation areas,

appropriate governmental entities may

request a single 30-day extension to the

general 30-day comment period.

(d) In all cases, comments must be

timely, limited to the scope of the tribe’s

jurisdictional assertion, and clearly

explain the substance, bases, and extent

of any objections. If a tribe’s assertion is

subject to a conflicting claim, the EPA

Regional Administrator may request

additional information from the tribe

and may consult with the Department of

the Interior.

(e) The EPA Regional Administrator

shall decide the jurisdictional scope of

the tribe’s program. If a conflicting

claim cannot be promptly resolved, the

EPA Regional Administrator may

approve that portion of an application

addressing all undisputed areas.

(f) A determination by the EPA

Regional Administrator concerning the

boundaries of a reservation or tribal

jurisdiction over non-reservation areas

shall apply to all future Clean Air Act

applications from that tribe or tribal

consortium and no further notice to

governmental entities, as described in

paragraph (b) of this section, shall be

provided, unless the application

presents different jurisdictional issues

or significant new factual or legal

information relevant to jurisdiction to

the EPA Regional Administrator.

(g) If the EPA Regional Administrator

determines that a tribe meets the

requirements of § 49.6 for purposes of a

Clean Air Act provision, the Indian tribe

is eligible to be treated in the same

manner as a state with respect to that

provision, to the extent that the

provision is identified in § 49.3. The

eligibility will extend to all areas within

the exterior boundaries of the tribe’s

reservation, as determined by the EPA

Regional Administrator, and any other

areas the EPA Regional Administrator

has determined to be within the tribe’s

jurisdiction.

(h) Consistent with the exceptions

listed in § 49.4, a tribal application

containing a Clean Air Act program

submittal will be reviewed by EPA in

accordance with applicable statutory

and regulatory criteria in a manner

similar to the way EPA would review a

similar state submittal.

(i) The EPA Regional Administrator

shall return an incomplete or

disapproved application to the tribe

with a summary of the deficiencies.

§ 49.10 EPA review of state Clean Air Act

programs.

A state Clean Air Act program

submittal shall not be disapproved

because of failure to address air

resources within the exterior boundaries

of an Indian Reservation or other areas

within the jurisdiction of an Indian

tribe.

§ 49.11 Actions under section 301(d)(4)

authority.

Notwithstanding any determination

made on the basis of authorities granted

the Administrator under any other

provision of this section, the

Administrator, pursuant to the

discretionary authority explicitly

granted to the Administrator under

sections 301(a) and 301(d)(4):

(a) Shall promulgate without

unreasonable delay such federal

implementation plan provisions as are

necessary or appropriate to protect air

quality, consistent with the provisions

of sections 304(a) and 301(d)(4), if a

tribe does not submit a tribal

implementation plan meeting the

completeness criteria of 40 CFR part 51,

Appendix V, or does not receive EPA

approval of a submitted tribal

implementation plan.

(b) May provide up to 95 percent of

the cost of implementing programs for

the prevention and control of air

pollution or implementation of national

primary and secondary ambient air

quality standards. After two years from

the date of each tribe’s initial grant

award, the maximum federal share will

be reduced to 90 percent, as long as the

Regional Administrator determines that

the tribe meets certain economic

indicators that would provide an
7274 Federal Register / Vol. 63, No. 29 /Thursday, February 12, 1998 /Rules and Regulations

objective assessment of the tribe’s

ability to increase its share. The

Regional Administrator may increase

the maximum federal share to 100

percent if the tribe can demonstrate in

writing to the satisfaction of the

Regional Administrator that fiscal

circumstances within the tribe are

constrained to such an extent that

fulfilling the match would impose

undue hardship.

PART 50—NATIONAL PRIMARY AND

SECONDARY AMBIENT AIR QUALITY

STANDARDS

10. The authority citation for part 50

is revised to read as follows:

Authority: 42 U.S.C. 7401, et seq.

11. Section 50.1 is amended by

adding paragraph (i) to read as follows:

§ 50.1 Definitions.

* * * * *

(i) Indian country is as defined in 18

U.S.C. 1151.

12. Section 50.2 is amended by

revising paragraphs (c) and (d) to read

as follows:

§ 50.2 Scope.

* * * * *

(c) The promulgation of national

primary and secondary ambient air

quality standards shall not be

considered in any manner to allow

significant deterioration of existing air

quality in any portion of any state or

Indian country.

(d) The proposal, promulgation, or

revision of national primary and

secondary ambient air quality standards

shall not prohibit any state or Indian

tribe from establishing ambient air

quality standards for that state or area

under a tribal CAA program or any

portion thereof which are more stringent

than the national standards.

* * * * *

PART 81—DESIGNATION OF AREAS

FOR AIR QUALITY PLANNING

PURPOSES

13. The authority citation for part 81

is revised to read as follows:

Authority: 42 U.S.C. 7401, et seq.

14. Section 81.1 is amended by

revising paragraph (a) and adding new

paragraphs (c), (d) and (e) to read as

follows:

§ 81.1 Definitions.

* * * * *

(a) Act means the Clean Air Act as

amended (42 U.S.C. 7401, et seq.).

* * * * *

(c) Federal Indian Reservation, Indian

Reservation or Reservation means 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.

(d) Indian tribe or tribe means any

Indian tribe, band, nation, or other

organized group or community,

including any Alaska Native village,

which is federally recognized as eligible

for the special programs and services

provided by the United States to Indians

because of their status as Indians.

(e) State means a state, the District of

Columbia, the Commonwealth of Puerto

Rico, the Virgin Islands, Guam, and

American Samoa and includes the

Commonwealth of the Northern Mariana

Islands.

Subpart C—Section 107 Attainment

Status Designations

15. The authority citation for subpart

C, part 81 is revised to read as follows:

Authority: 42 U.S.C. 7401, et seq.

§ 81.300 [Amended]

16. Section 81.300(a) is amended by

revising the third sentence to read ‘‘A

state, an Indian tribe determined eligible

for such functions under 40 CFR part

49, and EPA can initiate changes to

these designations, but any proposed

state or tribal redesignation must be

submitted to EPA for concurrence.’’

[FR Doc. 98–3451 Filed 2–11–98; 8:45 am]

BILLING CODE 6560–50–P