### Federal Register 

### I Vol. 59, No. 239 

### I Wednesday December 14, 1994 

## I Rules and Regulations 64339 Intergovernmental relations, Nitrogen -Dioxide,Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Note: Incorporation by reference ofthe State Implementation Plan for the State of California was approved by the Director ofthe Federal Register on July 1, 1982.

Dated: November 28, 1994. John Wise, ActingRegional Administrator Part 52, chapter I, title 40 ofthe Code ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

1.The authority citation for part 52 continues to read as follows:

Authority-42 U.S.C. 7401-7671q.
Subpart F-California

2. Section 52.220 is amended by adding paragraphs (c) (186)(i)(D)(2) and (194)(i)(A)(2),to read as follows:
§52.220 Identification ofplan.



### (c) (186) 

### (i) (D) (2)-Rule 103, adopted on June 4, 1991.

(194) 

### (i) (A) (2) Rule 59, adopted on September 15, 1992.

[FR Dot. 94-30742 Filed 12-13-94; 8:45 amj
BILLING CODE 6560-60-P

40 CFR Parts 123, 124, 131,142, 144, 145, 233, and 501 (FRL-6119-e]
RIN 2020-AA20

Indian Tribes; EligibilityforProgram Authorization AGENCY, Environmental Protection Agency (EPA). ACTION: Final rule.

SUMMARY* This action amends regulations addressing the role ofIndian tribes so as to make it easier for tribes
to obtain EPA approval to assume the role Congress envisioned for them under certain environmental statutes. Three EPA regulatory statutes address the tribal role specifically by authorizing EPAto treat tribes in amanner similar
to that in which ittreats states: The Clean Water Act (CWA), the Safe Drinking Water Act (SDWA), and the Clean Air Act (CAA). All three statutes specify that, in order to receive such treatment, a tribe must be federally recognized and possess a governing body carrying out substantial duties and powers.In addition, each requires that

atribe possess civilregulatory jurisdiction to carry out the functions it seeks to exercise. Finally, all three require that atribe be reasonably expected to be capable of carrying out those functions.

The Agency initially chose to implement provisions of theClean Water and Safe Drinking Water Acts regarding Indian tribes by establishing a formal prequalification process under which tribes can seek eligibility under these statutes. This prequalification process has in the pastbeen referred to

as approval for "treatment as a state" ("TAS").Tribes that obtain such approval then become eligible to apply for certain grants and program approvals available to states.

The Agency's "TAS" prequalification process has proven to beburdensome, time-consuming and offensive to tribes. Accordingly EPA has adopted a new ,policy to improve and simplify the process and this regulation implements thenew policy. To the extent possible, theAgency plans to use the same process in future regulations regarding determinations oftribal eligibility.

As ofthe effective date ofthis regulation, it is the intent ofEPA to follow the newprocess in making determinations on tribal eligibility for program authorization. With respect to pending "TAS" applications for program authorization, the Agency will utilize the information contained in such applications to determine tribes' eligibility and tribes will be requested to supplement such applications only to the extent necessary to determine program eligibility EFFECTIVE DATE: December 14, 1994. FOR FURTHER INFORMATION CONTACT: C. Marshall Cain, Office ofFederal Activities (2251), Environmental Protection Agency, 401 M Street SW., Washington, DC 20460, (202)260-8792.
SUPPLEMENTARY INFORMATION: Background

In orderto simplify and streamline the process ofassessing tribal eligibility for program authorization while still ensuring full compliance with all applicable statutes, on March 23, 1994, EPApublished in the Federal Register (59 FR 13819) anotice ofproposed rulemaking to amend regulations governing the process whereby Indian tribes become eligible to assume a role 

### in implementing the environmental statutes ontribal land comparable to the role statesplay on state land.

EPArecognizes that tribes are sovereign nations with a unique legal status and a relationship to the federal government that is significantly different than that of states. EPA believes that Congress did notintend to alterthis when it authorized treatment oftribes "as States;" rather, the purpose
was to reflect an intent that, insofar as possible, tribes should assume a role in implementing the environmental statutes on tribal land comparable to the role states play on state land.

The proposals set forth in the proposed rule involved the following: 1.Elimination of"TAS" review asa separate stepin the process. No statute compels the use of a formal "TAS" or other prequalification process separate from approval ofthe underlying request forprogram approval. The only requirements imposed by statute are that, tobe eligible for program authorization, a tribe mustbe federally recognized, have agoverning body carrying out substantial duties and powers, andhave adequate jurisdiction and capability to carry outthe proposed activities. Thus, EPA may authorize a tribal program without formally designating the tribe as "eligible for TAS," solongas the Agency establishes that the tribemeets the applicable statutory requirements. In other words, the Agency can ensure compliance with statutory mandates without requiring tribes to undergo a discrete, formal process ofseeking "TAS" approval.

Accordingly, EPA is amending its regulations to eliminate "TAS" review

as a separate step in theprocessing of

a tribal application for program approval. Under the new, simplified process, the Agency will ensure compliance with statutory requirements

as an integral part ofthe process of reviewing program approval applications. To the extent that this rule

orpreamble conflicts with the language ofprevious rules and preambles, the language herein shall be controlling.

2.Discontinuance ofuse ofthe term "treatment as a state." To the extent possible, the rule amends existing regulations so as to discontinue use of the term "treatment as a state" however, since the phrase is included in several statutes, its continued use may sometimesbe necessary.

3. Simplified determination as to "recognition" and "government." A tribe typically establishes recognition by showing its inclusion onthe listof federally recognized Tribes published by the Secretary oftheInterior in the Federal Register. A tribe establishes that Federal Register / Vol. 59, No. 239 / Wednesday December 14, 1994 / Rules and Regulations 64339

### 64340 Federal Register / Vol. 59, No. 239 / Wednesday December 14, 1994 / Rules and Regulations

it meets the governmental duties and powers requirement with anarrative statement describing the form ofthe tribal government and the types of functions itperforms, and identifying the sources ofthe tribe's governmental authority.

As a general rule, the "recognition and "governmental" requirements are essentially the same under the Clean Water,,Safe Drinking Water and Clean Air Acts. The newprocess will reflect this by establishing identical requirements for making this showing under each statute. Moreover, the fact that a tribe has met the recognition or governmental functions requirement under either ofthe WaterActs orthe Clean AirAct will establish that it meets thoserequirements under both statutes. To facilitate review oftribal applications, EPA will request that tribal applications inform EPA whether

a tribe has been approved for "TAS" (underthe oldprocess) or deemed eligible to receive authorization (under the revised process) for any other program.

A tribe that has not done so may establish that ithas been federally recognized by simply stating inits program authorization application that itappears on the list offederally recognized tribes that the Secretary of the Interior publishes periodically in the Federal Register. Ifthe tribe notifies EPA that ithas been recognized but does not appear on this listbecause the list has notbeen updated, EPA will seek toverify the fact ofrecognition withthe Department ofthe Interior.

Atribe that has not yet made its initial "governmental" showing can do

so by certifying that it has a government carrying out substantial functions. A tribe willbe able to make the required certification ifitis currently performing governmental functions to promote the publichealth, safety, and welfare ofits population. Examples of such functions include, but are not limited to,levying taxes, acquiring land by exercise ofthe power ofeminent domain, and exercising police power. Such examples should be included m a narrative statement supporting the certification, (1)describing the form oftribal government and the types ofessential governmental functions currently performed, and (2) 

### identifying the legal authorities for performing those functions (e.g., tribal constitutions or codes). It shouldbe relatively easy for tribes to meetthis requirement without submitting copies ofspecific documents unless requested to do so bythe Agency.

4. Simplifiedjurisdictional analysis. A tribe may have jurisdiction over, and capability to carry out, certain activities (e.g., protection of the quality ofa particular lake for the Clean Lakes
program under the Clean Water Act), but not others (e.g., waste management

on a portion ofthe reservation far removed from any lakes). For this
reason, EPAbelieves that the Agency
must make a specific determination that

atribe has adequate jurisdictional authority and administrative and programmatic capability before it
approves each tribal program. This will

ensure that tribesmeet the statutory requirements Congress has established

asprerequisites to tibal eligibility for each particular program.

The portion ofthejurisdictional determination under which governments comment on tribal jurisdiction will be substantially altered under this Rule. These changes are outlined below.

For approvals ofall Drinking Water regulatory programs and most Clean Water programs under existing regulations, EPA will not authorize a state to operate a program without determining thatthe state has adequate authority to carry out those actions required to run the program. See e.g. 40 CFR 142.10 (PWS), 145.24 (UIC). This applies also to a tribe seeking program approval, and ensures that a close analysis of the legal basis ofa tribe's jurisdiction will occur before program authorization.

Accordingly a separate "TAS" jurisdictional review is notneeded to verify that a tribe meets the statutory jurisdictional requirement and, therefore, will be eliminated for all programs under the Safe Drinking Water Act, and for the Clean Water Act's 404 and NPDES programs. This change will have the effect only ofeliminating duplicative requirements. In no case can
atribe receive program approval until the Agency has received full and adequate input concerning the scope and extent ofthe tribe's jurisdiction. Moreover, EPA will expect each tribe seeking program approval to provide a precise description ofthe physical
extent and boundaries of the area for which it seeks regulatory authority. Tius description should ordinarily include a rfap and should identify the sources or systems to be regulated by the tribe.

However, for the Water Quality Standards program, there is no review of tribal civil regulatory authority as part of-the standards approval process under section 303(c) ofthe Clean Water Act., Accordingly, for that program, a comment process will be retained. However, the Agency wishes to clarify the operation ofthat process by reiterating that comments must be offered in a timely manner, and, further, by specifying that where no timely comments are offered, the Agency will conclude that there is no objection to the tribal applicant's jurisdictional assertion. Moreover, to raise a competing or conflicting claim a comment must clearly explain the substance, basis, and extent ofits objections. Finally when questions are raised concerning a tribe's jurisdiction, EPA may in its discretion, seek additional information from the tribe or the commenting party and may consult

as it sees fit with other federal agencies prior to making a determination asto tribal jurisdictional authority but is not required to do so. Henceforth, EPAwill

no longer be required, by regulation, to consult with the Department ofthe Interior.

Finally the Agency notes that certain disputes concerning tribal jurisdiction may be relevant to a tribe's authority to conduct activities and obtain program approval under several environmental
statutes. For.example, ifa tribe and a state or another tribe disagree as to the boundary ofa particular tribe s reservation, each time the tribe seeks to assert authority over the disputed area, the dispute will recur. The Agency recognizes that its determinations regarding tribal jurisdiction apply only
to activities within the scope ofEPA programs. However, it also believes that,

once it makes a jurisdictional determination in response to a tribal application regarding any EPA program. it will ordinarily make the same determination for other programs unless

a subsequent application raises different legal issues. Thus, forexample, once the Agency has arrived at a position concerning aboundary dispute, it will
not alter that position in the absence of significant new factual orlegal information. By contrast, however, a determination that a tribe has inherent jurisdiction to regulate activities in one medium might not conclusively establish itsjurisdiction over activities in another medium. See generally Discussion ofinherent tribal authority in Water Quality Standards Regulation, 56 FR64877-64879.

Under the new approval process, as under the old, the Agency will continue
to retain authority to limitits approval ofa tribal application to those land

areas where the tribe has demonstrated jurisdiction. This would allow EPA to approve the pori9n.of a,tribal application covering certain areas, while withholding approval ofthe portion of

an application addressing those land

areas where tribal'atihority has not. been satisfactorily established. See, e.g. 53 FR 37395, 37402 (September 26, 1988) (SDWA); 54 FR 14353, 14355

### Federal Register / Vol. 59, No. 239 /Wednesday December 14, 1994 / Rules and Regulations 64341

(April 11, 1989) (Clean Water Act Grants); 54 FR 39097 39102 (September 12, 1989) (Clean Water Act Water Quality Standards); 58 FR 8171,8176 (February 11, 1993) (Clean Water Act section 404); 58 FR 67966, 67972 (Clean Water Act NPDES) (December 22, 1993).

5. More flexible requirements to establish capability. EPA must continue
to make a separate determination of tribal capability for each program for which it approves a tribe. However, the Safe Drinking Water Act, Water Quality Standards, Section 404, and NPDES regulations will be amended to conform
to the CWA grant regulations, which do
not specifically prescribe the material a tribe must submit to establish capability. Ordinarily, the inquiry EPA will make into the capability ofany applicant, tribal or state, for a grant or program approval will be sufficient to enable the Agency to determine whether

atribe meets the statutory capability requirement. See, e.g., 40 CFR part 31 (grantregulations applicable to states and tribes); 40 CFR 142.3 (PublicWater System primary enforcement responsibility requirements at parts 141, 142 apply to tribes); § 145.1(h) (Underground Injection Control requirements ofparts 124, 144, 145, and 146 that apply to states generally apply
to tribes).

Nevertheless, EPA may request that the tribe provide anarrative statement

or other documents showing that the tribe is capable ofadministering the program for which it is seeking approval. In evaluating tribal capability EPA will consider:

(1) The tribe's previous management experience; (2) Existing environmental or public health,programs administered by the tribe; (3) The mechanisms in place for carrying out the executive, legislative and judicial functions ofthe tribal government; (4) The relationship between regulated entities and the administrative agency ofthe tribal government which will be the regulator; and

(5) The technical and administrative capabilities ofthe staffto administer and manage the program.

EPA recognizes that certain tribes may not have substantial experience administering environmental programs;

a lack ofsuch experience will not preclude a tribe from demonstrating capability so long asit shows that it has the necessary management and technical and related skillsor submits a plan describing how it will acquire those skills.

The notice ofproposed rulemaking invited public comments on the proposed amendments, which would be considered before adoption ofa final rule. The public comment period closed

on May 23; 1994. Analysis ofComments

A total of seven commenters responded to the solicitation of
comments during the public comment period. Ofthese, four expressed support for the proposed changes in varying degrees, one ofwhom expressed strong support and others supported the changes generally but disagreed with certain aspects or had specific recommendations for other changes. One commenter did not express support

or opposition but urged EPA to continue
to stress that tribes should enact water quality programs similar to current state water quality programs. Another commenter, while not explicitly supporting the proposed amendments, urged thatthey be extended to include two other programs under the Safe DrinkingWater Act. A final commenter opposed one aspect ofthe simplification process as it related to state review of tribal applications. These comments, suggested changes, and the EPA responses thereto, are set forth below.

Comment:Consistent with the EPA Indian Policy and sound administrative practice, EPA shouldrecognize tribal authority over all environmental matters within reservation boundaries, without requiring tribes to demonstrate their inherent authority.

Response:EPA recognizes the importance ofcomprehensive management ofreservation environments. However, EPA does not have the legal authority to expand the scope of tribaljurisdiction. Consequently EPAmust continue to analyze each tribal claim ofjurisdiction in light ofappropriate statutory and

common law principles to ensure that the tribe in fact has adequate authority
to carry out the functions it proposes to undertake.

Comment:EPA is-to be commended for eliminating the state opportunity to comment on tribaljurisdictional assertions for all SDWA programs and for the Clean Water Act Section 404 and NPDES programs. However, since tribes
cannot comment on state jurisdictional assertions in any programs; in fairness EPA should also eliminate state opportunity to comment on tribal jurisdictional assertions regarding Water Quality Standards.

Response:EPA continues to believe that it has the legal authority to approve
a tribal Water Quality Standards program only upon a determination that the tribe has adequate authority to operate that program, and that state comments may be useful to the Agency in making that determination.

Comment:EPA could further simplify the TAS process by providing that, when EPA reviews a new TAS application fora tribe that has already obtained TAS approval forone program, EPA will rely on the jurisdictional assertions in the prior approval to establish jurisdiction fora subsequent program. Where the earlier jurisdictional assertions do not establish jurisdiction adequately for the subsequent application, EPA would notify the tribe ofany deficiencies and the tribe could then supplement or amend the original jurisdictional
statement.

Response:EPA agrees with the commenter that this would simplify the process. However, EPA believes that it should look inthe first instance to each tribal applicant's views as to its own jurisdiction. Thus a tribe that believes it is appropriate to provide more information regarding jurisdiction on a subsequent application than it provided'

on aprevious one should be able to do

so directly, without waiting for EPAto determine, after it begins processing an application, that more inform2tion is needed. EPA believes that under the current proposal, a tribe that wishes to

use the process described by the
commenter could do so by expressly incorporating the earlierjurisdictional assertion into a subsequent application.

In addition, thejurisdictional approach the Agency has determined the Clean Air Act allows it to follow differs substantially from the approach it follows under the Water Acts. For this
reason, EPA does not believe it would be appropriate to establish a process underwhich a tribe would assume that, unless advised to the contrary, a jurisdictional assertion that was adequate under the Clean Air Act would also be adequate under one ofthe Water Acts.

Comment:States should be able to comment on thejurisdictional assertions contained in tribal gralt applications. Also, states should not be totallybypassed-in decisions to approve tribal regulatory programs.

Response:As stated in.the.Federal Register notice amending the EPA financial assistance regulations for tribes, EPA has extensive experience awarding grants to tribes, and has concluded that it is fully capable of evaluating grant applications to ensure adequate tribaljurisdiction without seeking comments from states. EPA agrees that it should obtain information from states concerning tribal applications forprogram approval, and

### 64342 Federal Register / Vol. 59, No. 239 / Wednesday December 14, 1994 / Rules and Regulations

the proposed regulatory changes would

ensure that this occurs.

Comment:One commenter, while supporting the intent ofthe proposed revisions, urged that (1)EPA regulations relating to Section 401 Certification (40 CFR part T21) be amended toexpressly include Indian tribes so as tofacilitate tribal involvement m the section 401 process, toresolve disagreements between tribes and statesand to resolve disputes between tribes as well; (2) an apparent inconsistency in thedefinition of "State" in § 122.2 (which references Indian tribesthat have obtained approval oftheir NPDES program but not their WQS program)be changed so that waterquality standards setby approved tribes willbe protected in 

### NPDES permits under §§ 122.44, 124.53 and similar provisions; and (3)the regulations forthe dispute resolution mechanism, 40 CFR 131.7 be revised to 

### expressly authorize the use ofthis process for resolving disputes between two ormore tribes that have differing standards forcommon bodies ofwater.

Response:(1)EPA believes itis unnecessary to amend the 401 regulations inPart 121 through the present TAS revisions rulein order to clarify thattribes have the authority to provide 401 certifications once they have approved water quality standards (WQS). Itis EPA's position that tribes clearly have 401 authority once they receive approval oftheirWQS as specified in40 CFR 131.4(c).

(2)EPAalso does notbelieve that changes arenecessary to the definition of"State" in§ 122.2. The intent of EPA's regulations was torequire the permitting authority (whetherEPA oran authorized NPDES State) to issue permits which comply with all applicable waterquality standards (including WQS approved by EPAfor an Indian tribe). EPA interprets its regulations torequire that all NPDES permits comply with applicable and EPA approved tribal WQS regardless of whether the tribe has been authorized as
a permitting authority forthe NPDES program. EPA's newregulatory provision in40 CFR 124.51(c) supports the tribes' 401 certification authority and reads as follows: "As stated in 40 CFR 131.4, an Indian Tribe thatis 

### qualified forTreatment as a Statefor purposes ofthe WQS programis likewise qualified fortreatment as a. State forpurposes ofState certification ofWQS pursuant to section 401(a)(1) of tle Act [Clean Water Act] and Subpart D ofthispart. The preamble ofthe final NPDES rule at58 FR67967 (December 10,1993) discusses this new provision inmore depth. In addition, the recent EPA guidance concerning EPA's implementation ofthe NPDES and sludge management programs with respect to Federal Indian Reservations (FIRs) specifies that "In situations where a State is the upstream 

### NPDES permitting authority and downstream FIR Tribal WQS havebeen approved by EPA, the State willprovide notice ofthe pr9paration ofa draft permit to the affected Tribe pursuant to CWA sections401 and 402. UnderCWA sections 402(b)(3) and 40 CFR 124.12(a), theupstream NPDESstate must provide

an opportunity for public hearing onthe issuance ofthe draftpermit where there is significant public interest in so doing. Under CWA section 402(b)(5), the affected Tribe may submit written recommendations tothe permitting State and EPA, and the failure to accept the recommendations and the reasons for doing so. EPA can object to the upstream State permit where EPA believes that the reasons forrejecting the recommendations are inadequate." Therefore, this guidance reflects EPA s general view that applicable tribalWQS are.tobe reflected inall water qualitybased NPDES permit limits. When the Part 122-124regulations refer toWQS ofa "State, this also refers to Indian tribes withEPA approved WQS.

(3) EPA previously responded to comments regarding the scope ofthe dispute resolution mechanism on the rule allowing tribes toestablish WQS (56 FR 64876, December 12, 1991). At that time, OW commented thatthe rule

was written inthis mannerbecause Section 518 ofthe CleanWater Act specified that a disputeresolution mechanism be developed to resolve disputes arising between a tribe and a state. OW further commented that EPA believes the requirements thatthe State standards provide for protection of downstream standards in § 131.10(b) of the WQS Regulation, supported by a 25 yearhistory ofinformal negotiation of issuesbetween states, provides sufficient basis forresolving disputes between two states or two tribes. 56 FR 64888-64889. Further comments onthis issue arebeyond the scope ofthis rule and, therefore, EPAdeclines torevisitit at thistime.

Comment:Although the proposed regulation would simplify the TAS process for anumber ofprograms, it would not apply expressly towellhead protection programs or sole source aquifer demonstration programs under the Safe Drinking Water Act. The Agency shouldconsider seriously the inclusion ofthese important programs underthe new regulation as well.

Response:EPA doesnot believe that itwould be appropriate to expand the scope ofthe regulation atthis stage of itsdevelopment. However, as pointed out previously in the Summary ofthis regulation, to the extent possible, the Agency plans touse the newprocess in future regulations regarding determinations oftribal eligibility.
Conclusion

Accordingly based onthe comments received and the analysis ofthose comments as setforth above, EPA believes that the proposed regulatory amendments as published inthe Federal Register on March 23,1994 (59 FR 13819) shouldbe adopted as a final rule as discussed above and setforth below.
Executive Order 12866

Under Executive Order 12866- [58 FR 51735 (October 4, 1993)] the Agency must determine whether theregulatory action is "significant" and therefore subject to OMBreview and the requirements ofthe Executive Order. The Order defines "significant regulatory action" as onethat is likely toresult ina rule that may: (1)Have an annual effect onthe economy of$100 million ormore or adversely affect in a material way the economy a sector ofthe economy productivity, competition, jobs, the environment, public health or safety or State, local or tribalgovernments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken

orplanned by another agency-

(3) Materially alter thebudgetary impact ofentitlements, grants, user fees,

orloan programs or the rights and obligations ofrecipients thereof; or

(4)Raise novel legal orpolicy issues arising out oflegal mandates, the President'spriorities, or the principles setforth in the Executive Order.

Ithas been determined that thisrule is nota "significant regulatory action under the terms ofExecutive Order 12866 and is therefore not subject to OMBreview. Regulatory Flexibility Act

Pursuant to section 605(b) ofthe RFA, 5 U.S.C. 605(b), EPAcertifies that this rule will not have a significant economic impact on a substantial number ofsmall entitiesbecause it merely revises existing procedural requirements for Indian tribes by making them simpler and less burdensome; Indian tribes-are not considered small entities under this rulemaking for RFA purposes.

### Federal Register / Vol. 59, No. 239 / Wednesday December 14, 1994 / Rules and Regulations 64343

PaperworkReduction Act

The proposed regulations contain no

new or additional information collection activities and, therefore, no information collection request will be submitted to the Office ofManagement and Budget for review in compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. List ofSubjects

40 CFR Part 123

Administrative practice and procedure, Confidential business information, Environmental protection, Hazardous substances, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control, Water supply.

40 CFRPart124

Administrative practice and procedure, Air pollution control, Environmental protection, Hazardous substances, Indian lands, Reporting and recordkeeping requirements, Sewage disposal, Waste treatment and disposal, Water pollution control, Water supply

40 CFRPart131

Environmental protection, Reporting and recordkeeping requirements, Water pollution control.

40 CFRPart142.

Environmental protection, Administrative practice and procedure, Chemicals, Indians-lands, Radiation protection, Reporting and recordkeeping requirements, Water supply

40 CFR Part144

Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Indians-lands, Reporting and recordkeeping requirements, Surety bonds, Water supply.

40 CFRPart145

Environmental protection, Indianslands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Water supply

40 CFR Part 233

Environmental protection, Administrative practice and procedure, Intergovernmental relations,Penalties, Reporting and recordkeeping requirements, Water pollution control.

40 CFRPart501

Administrative practice and procedure, Intergovernmental relations, 

### Penalties, Reporting and recordkeepmg requiremnents, Sewage disposal.

Dated: November 18, 1994. FredHansen, ActingAdmmnistrator



### For the reasons set forth in the preamble, 40 CFR parts 123, 124, 131, 142, 144, 145, 233, and 501 are amended as follows:

PART 123-STATE PROGRAM REQUIREMENTS

1.The authority citation forpart 123 continues to read asfollows:

Authority: Clean WaterAct, 33 U.S.C. 1251
etseq. 

### §123.1 [Amended]



### 2. Section 123.1(h) is amended by removing the phrase "treated as a State. 

### §123.21 (Amended]

3.In § 123.21 paragraph (a)(1) is amended byrevising the phrase "eligible fortreatment as a state in accordance with §123.33(e)" toread "in accordance with §123.33[b)"

4. In § 123.21 paragraph (b)(2) is amended byremoving the phrase "for treatment as a State" both times they appear andby revising the text "§ 123.33(e)" to read "§ 123.33(b)" 

### §123.22 [Amended]

5.In §123.22 paragraph (g) is amended by removing the phrase "for treatment as a State" andby revising the
text "§ 123.33(e)" to read "§ 123.33(b)" 

### §123.31 [Amended]



### 6. The heading of §123.31 is amended by revising the phrase "for treatment of Indian Tribes as States" to read "for eligibility ofIndian Tribes."

7 In §123.31 paragraph (a) is amended byremoving the phrase "a State.for purposes ofmaking the Tribe.

8. In §123.31 paragraph (a)(4) is amended byremoving all language following "in a manner consistent with theterms and purposes ofthe Act and applicable regulations, ofan effective NPDES permit program. § 123.32 [Amended]



### 9. The heading of §123.32 is amended by removing "for treatment asa State." 10. In §123.32 the introductory text is amended byremoving the phrase "for treatment as a State.

11. In §123.32 paragraph (b) introductory text is'amended byrevising the words "This statement shall" to read "This statement should."

12. In §123.32 paragraph (c) is amended by revising the phrase "a copy ofall documents" to read "copies of those documents" and by revising the phrase "support the Tribe's assertion"
'tOread "the Tribebelieves are relevant 

### to its assertion."

13. In § 123.32 paragraph (d) introductory text is amended byrevising the phrase "The statement shall include" to read "The statement should include."

14. In § 123.32 paragraph (d)(1) is amended byrevising the words "including, but not limited to," toread "which may include."

15. In § 123.32 paragraph (e) is amended by revising the phrase "a Tribal request for treatment as a State" to read "a Tribe's eligibility

16. In § 123.32 paragraph (f) isrevised to read as follows:
§-123.32 Request by an Indian Tribe for a determination ofeligibility.



### (f)

Ifthe Admimstratoror his orher delegatee has previously determined that a Tribe has metthe prerequisites that make it eligible to assume a role similarto that ofa state as provided by statute under the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act, then that Tribe need provide only that information unique to the NPDES program which isrequested by the Regional Administrator.
§ 123.33 [Amended] 

### 17 The heading of§123.33 is amended byremoving the phrase "for treatment as a State."

18. In §123.33 paragraph (a) is amended byremoving the phrase "for treatment as a State.

19. In §123.33 paragraphs (b),(c), (d), and (e) areremoved and paragraph (f)is redesignated as paragraph (b).

PART 124-PROCEDURES FOR DECISIONMAKING

1.The authority citation forpart 124 continues to read asfollows:



### Authority: Resource Conservation and Recovery Act, 42U.S.C. 6901 etseq., Safe 

### DrinkingWater Act, 42 U.S.C. 300(0 etseq., Clean Water Act, 33 U.S.C. 1251 etseq., Clean Air Act, 42 U.S.C. 7401 etseq. §124.2 (Amended]

2. In § 124.2 the definition of "State" 

### is amended by revising the phrase "an Indian'Tribe treated as a State" to read "an Indian Tribe that meets the statutory criteria which authorize EPA to treat theTribe in a manner similar to that inwhich it treats a State"
§124.51 [Amended]

3. In § 124.51 paragraph (c) is 

### amended byrevising the phrase "is qualified for treatment as aState" to

### 64344 Federal Register / Vol. 59, No. 239 / Wednesday December 14, 1994-/ Rules and Regulations

read "meets the statutory criteria which authorize EPA to treat the Tribe in a
manner similarto that in which it treats

a State" andby revising the phrase "likewise qualified for treatment as a State" to read "likewise qualified for such treatment."

PART 131-WATER QUALITY
STANDARDS

1.The authority citation forpart 131 continues to read as follows:

Authority: 33 U.S.C. 1251 et seq. 

### §131.3 [Amended]



### 2. In § 131.3 paragraph 

### (j)is amended by revising the phrase "qualify for treatment as States for purposes ofwater quality standards" toread "to beeligible forpurposes ofawater quality standards program"
§131.4 [Amended]



### 3.In § 131.4 paragraph (c)is amended by revising the phrase "qualifies for treatment as a State" inboth places that it appears to read "is eligible to the

same extent as a State" §131.7 [Amended]



### 4. In §131.7 paragraph (b)(2) is amended by revising the phrase "qualifies tobe treated asa State" to read "is eligible to the same extent as a State" §131.8 [Amended]

5. The heading of § 131.8 is amended 

### byrevising the phrase "to be treated as States forpurposes ofwater quality standards" to read "to administer a water quality standards program"

6. In §131.8 paragraph (a) introductory text isamended byrevising the phrase "treat an Indian Tribe as a State for purposes ofthe water quality standards program" to read "accept and approve a tribal application for purposes ofadministering a water quality standards program"

7 In § 131.8paragraph Nb) introductory text is amended byrevising the phrase "for treatment as states for purposes ofwaterquality standards" to read "for admimstration ofa water quality standards program"

8. In § 131.8 paragraph (b)(2) introductory text is amended byrevising the word "shall" toread "should"

9. In § 131.8 paragraph (b)(3) introductory text is amendedby revising the word "shall" toread "should"

10. In § 131.8paragraph (b)(3)(ii) is amended byremoving the semi-colon and adding to the end ofthe paragraph the phrase "and which may include a copy ofdocuments such asTribal constitutions, by-laws, charters, executive orders, codes, ordinances,. and/or resolutions which support the Tribe s assertion ofauthority' and" 11. Section 131.8(b)(3)(iii) is removed. 12. In §131.8 paragraph (b)(3}{iv) is redesignated as (b)(3)(iii).

13. In § 131.8 paragraph (b)(4) introductory text is amended byrevising the word "shall" to read "should"

14. In § 131.8paragraph (b)(4}(i) is amended byrevising the phrase "including, but not limited to to read "which may include"

15. In § 131.8 paragraph (b)(5) is amended by revising the phrase "request fortreatment asa State, to read "application"

16. In § 131.8 paragraph (b)(6) is amended by revising the phrase "qualified for treatment as a State" to read qualified for eligibility or 'treatment as a state' and byremoving the second occurrence ofthe phrase "treatment.as a State"

17 In §131.8 paragraphs (c) introductory text, (c)(1) and (c)(2) introductory text are amended by removing thewords "for treatment as a State"

18. In §131.8 paragraph (c)(4) is amended byrevising the phrase "after consultation with the Secretary ofthe Interior, or his designee" to read "after due consideration"

19. 

### In §131.8 paragraph (c)(5) is amended by revising the words "has qualified tobe treated as a State for purposes ofwater quality standards and that the Tribe may initiate the formulation and adoption ofwater quality standards approvable under this part" to read "is authorized to administer the Water Quality Standards program"
PART 142-NATIONAL PRIMARY DRINKING WATER REGULATIONS IMPLEMENTATION

1.The authority citation forpart 142 continues to read asfollows:

Authority: 42 U.S.C. 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-4, and 300j-9. 

### §142.2 [Amended]



### 2.In § 142.2 the definition of"State is amended byrevising the phrase "or

an Indian Tribe treated as a State," to read "or an eligible Indian tribe §142.3 [Amended]



### 3.In § 142.3 paragraph (c) is amended byrevising the phrase "be designated by the Administrator fortreatment as a State" to read "meet the statutory criteria at42 U.S.C. 300j-11(b)(1)" Subpart H-Indian Tribes

4. The heading forsubpart H ofpart 142 is revised to read as set forth above. §142.72 Requirements forTribal eligibility. 5. The heading of§ 142.72 is revised
to read as set forth above.

6-7 Section 142.72 is amended by revising the introductory text and paragraph (d) to read as follows. 

### §142.72 Requirements forTribaleligibility

The Administrator is authorized to treat an Indian Tribe as eligible to apply for primary enforcement responsibility for the Public Water System Program if it meets the following criteria:

(d) The Indian Tribe is reasonably expected to be capable, in the Administrator's judgment, of administering (in a manner consistent with the terms and purposes of theAct and all applicable regulations) an effective Public Water System program

§142.76 [Amended]

8. The heading of§ 142.76 is amended by revising the phrase "oftreatment as

a State" to read "of eligibility"

9. Section 142.76 is amended by revising in the introductory textthe phrase "qualifies for treatment as a State pursuant to" to read "meets the criteria of.

10. In § 142.76 paragraph (b) introductory text is amended by revising the word "shall" to read "should" 11. In § 142.76 paragraph (c) is amended by revising the word "all" to read "those" and by revising the phrase "support the Tribe s asserted jurisdiction" to read "the Tribe believes

are relevant to its assertions regarding jurisdiction" 12. In § 142.76 paragraph (d) introductory text is amended by revising the word "shall" to read "should"

13. In § 142.76 paragraph (d)(1) is amended by revising the words "including, but not limited to to read "which may include"

14. In § 142.76 paragraph (e) is amended by revising the phrase "a Tribal request for treatment as a State
to read "a Tribe's eligibility"

15. In § 142.76 paragraph (f) is revised to read as follows: §142.76 Request by an Indian tribefor a determination ofeligibility.

(f) If the Administrator has previously determined that a Tribe has met the prerequisites that make iteligible to

assume a role similar to that ofa state

as provided by statute under the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act,then that Tribe need provide only that information unique to the Public Water System program (paragraph (c). (d)(5) and (6) ofthis section).

### Federal Register I Vol. 59, No. 239 / Wednesday, December 14, 1994 / Rules and Regulations 64345

§142.78 [Amendedl

16. The heading of§ 142.78 is amended by removing the phrase "for
treatment as a State"

17 In §142.78 paragraph (a) is amended by removing the words "for
treatment as a State submitted pursuant to § 142.76"

18. In § 142.78 paragraphs (b), (ci and (d) are removed and paragraph (e) is redesignated as (b) and amended by revising the language "Ifthe Administrator deterriines that a Tribe
meets the requirements of § 142.72, the Indian Tribe is then eligible to apply for" to read A tribe that meets the requirements of § 142.72 is eligible to apply for"

PART 144--UNDERGROUND INJECTION CONTROL PROGRAM

1.The authority citation for part 144 continues to read as follows:

Authority: Safe Drinking Waler Act. 42 U.S.C. 300f etseq; Resource Conservation and Recovery Act, 42 U.S.C. 6902 etseq.

2. Section 144.3 is amended by adding the definition of"eligible Indian tribe" in alphabetical order toread as follows: 

### §144.3 Definitions.

EligibleIndianTribeis a Tribe that
meets the statutory requirements established at 42 U.S.C. 300j-11(bl(l).

PART 145-STATE UIC PROGRAM REQUIREMENTS

1 The authority citation for part 145 continues to read as follows:

Authority:42 U.S.C. 300fetseq. §145.1 [Amendedj

2. In § 145.1 paragraph (h) is amended by adding the word "eligible" between "to" and "Indian Tribes" in the first sentence; and by removing the second
sentence. Subpart E-Indian Tribes

3. The heading of subpart E ofpart 145 is revised toread as set forth above. 

### § 145.52 Requirements forTribal eligibility.

4. The heading of § 145.52 isrevised
toread as set forth above.

5-6. Section 145.52 is amended by revising theintroductory text and. paragraph (d) toread as follows: 

### §145.52 Requirements forTribal eligibility.

The Administrator is authorized to treat an Indian Tribe aseligible to apply for primary enforcement responsibility for the Underground Injection Control Program if itmeets the following criteria:

(d) The Indian Tribe isreasonably expected to becapable, in the Administrator's judgment, of administering (in a manner consistent with the terms and purposes ofthe Act and all applicable regulations) an effective Underground Injection Control Program.

§145.56 (Amended]

7 The heading of § 145.56 is amended by revising the phrase "oftreatment as

a State" to read "ofeligibility"

8. In § 145.56 the introductory text is amended by revising the phrase "qualifies for treatment as a State pursuant to" to read "meets the criteria of."

9. In § 145.56 paragraph (b) introductory text is amended by revising the word "shall" to read "should"

10. In § 145.56 paragraph (c) is amended by revising theword "all" to read "those, and by revising the phrase "support -theTribe's asserted jurisdiction to read "the Tribebelieves

are relevant to its assertions regarding jurisdiction" 11.In § 145.56 paragraph (d) introductory text is amended byrevising the word "shall" to read "should"

12. In..§ 145.56 paragraph (d)(1) is amended byrevising the words "including, but not limited to" to read "which may include.

13. In § 145.56 paragraph Ce) is amended by revising the phrase "a Tribal request for treatment asa State"
to read "a Tribe's eligibility"

14. In § 145.56 paragraph (f] is revised to read as follows: 

### §145.56 Request byan ladian Tribe fora determination of eligibility.

(f)

Ifthe Administrator has previously determined that a Tribe has met the prerequisites that make it eligible to

assume arole similar to that ofa State

as provided by statute under the Safe Drinking WaterAct, the Clean Water Act, orthe Clean AirActthen that Tribe need provide on 7 ,hat information unique to the Underground Injection Control program (§ 145.76(c) and (d)(6)).
§145.58 [Amended]

15. The heading of§ 145.58 is amended by removing the phrase "for treatment asa State"

16. In § 145.58 paragraph (a) is amended by removing the phrase "for treatment asa State submitted pursuant to § 145.56" 17 In § 145.58 paragraphs (b), 

### (c), and (d) are removed and paragraph (e) is redesignated as paragraph (b) and amended by revising the language "If the Administrator determines that a Tribe meetsthe requirements of § 145.52, the Indian Tribe isthen eligible to apply for" to read A tribe that meets the requirements of§ 145.52 is eligible to apply for"

PART 233-404 STATE PROGRAM REGULATIONS

1.The authority citation for part 233 continues to read as follows:

Authority: 33 U.S C. 1251 etseq. Subpart G-Eligible Indian Tribes

2. The heading ofsuibart G ofpart 233 is revised to read as set forth above. 

### §233.60 Requirements foreligibility.

3. The heading of§ 233.60 is revised
to read as set forth above.

4. Section 233.60 introductory text is amended by removing the words "a State for purposes ofmaking the Tribe"
§233.61 Determination ofTribaleligibility.

5. Theheading of §233.61 is revised to read as set forth above.

6. In § 233.61 the introductory text is amendedby revising the phrase "that it qualifiesfor treatment asa State pursuant to Section 518 ofthe Act" to read "that it meets the statutory criteria which authorize EPA to treat the Tribe in a manner similar to that in which it
treats a State" by revising the'word "shall" in the last sentence to read "should."

7 In §233.61 paragraph (b) introductory text is amended byrevising the word "shall" to read "should"

8. In §233.61 paragraph (c](2) is amended by adding at the end ofthe paragraph before the semicolon "wich may include a copy ofdocuments such

as Tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions which support the Tribe's assertion of authority"

9. Section 233.61 (c)(3) is removed. 10. In §233.61 paragraph (d) introductory text is amended by revising the word "shall" to read "may"

11. In § 233.61 paragraph (d)(1) is amended by revisingthe words "including, but not limited to" toread "which may include"

12. In §233.61 paragraph (e)is amended by revising thewords "request fortreatment as a State" to read "application"

13. In § 233.61 paragraph (f) is amended by adding the words "for eligibility or" between "has met the

### 64346 Federal Register / Vol. 59, No. 239 / Wednesday December 14,

requirements" and "for 'treatment as a State. §233.62 (Amended]

14. The heading of

### §233.62 is amended by removing the phrase "for treatment as a State

15. In §233.62 paragraph (a)is amended by removing the phrase "for treatment as a State"

16. In 

### §233.62 paragraphs (b), (c), (d), and (e) are removed.

17 In 

### §233.62 paragraph (f)is redesignated as paragraph (b).

PART 501-STATE SLUDGE MANAGEMENT PROGRAM REGULATIONS

1.The authority citation forpart 501 continues to read as follows:

Authority: 33 U.S.C. 1251 et seq. 

### "§501.11 [Amended] 2.In 

### §501.11 (a)(1) remove the phrase "eligible for treatment as a state" and revise the text "§501.24(e)" toread "§ 501.24(b)"



### 3.In 

### § 501.11(b)(2) remove thephrase "for treatment as a State" bothtimes it appears and revise the text "§501.24(e)" toread "§501.24(b)" §501.12 [Amended]

4. In §501.12(g) remove the phrase "for treatment as a State" and revise the
text "§ 501.24(e)" to read "§ 501.24(b)" 

### §501.22 [Amended]

5.The heading of§501.22 is amended byrevising the phrase "for treatment of Indian Tribes as States" to read "for eligibility ofIndian Tribes."

6. In §501.22 paragraph (a) 

### introductory text is amended by removing the phrase "a State for purposes ofmaking the Tribe."

7 In §501.22 paragraph (a)(4).is amended byremoving the last two sentences. §501.23 [Amended]

8. The heading of

### §501.23 is amended by removing the phrase "for treatment
as a State"

9. In §501.23 the introductory text is amended byremoving the phrase "for treatment as a State.

10. In 

### §501.23 paragraph.(b) introductory text is amended byrevising the word "shall" toread "should."

11. In 

### § 501.23 paragraph (c) is amended by revising the phrase."a copy ofall documents" toread "copies of those documents" and by revising the phrase "support theTribe s assertion" to read "the Tribe believes are relevant to its assertion.

12. In 

### §501.23 paragraph (d) introductory text is amended by revising the word "shall" toread "should." 13. In § 501.23 paragraph (d)(1) is amended by revising the words "including, butnot limited to" to read "which may include.

14. In 

### §501.23 paragraph (e) is amended.by revising the phrase "a Tribal request for treatment as a State" to read "a Tribe's eligibility

15. In 

### §501.23 paragraph (f) is revised
to read as follows: §501.23 Request by an Indian Tribe for a determination of eligibility.

(f) Ifthe Administrator orher delegatee has previously determined that a Tribe has met the prerequisites that make it eligible to assume a role similar to that ofa state asprovided by
statute under the Safe Drinking Water Act, the Clean Water Act, orthe Clean Air Act, then that Tribe need provide only that information unique to the sludge management program which is requested by the Regional Administrator. 

### §501.24 [Amended]

16. The heading of §501.24 is amended by removing the phrase "for
treatment as a State. 17 In 

### §501.24 paragraph (a) is amended by removing the words "for
treatment as a State." 18. In §501.24 paragraphs (b), (c), (d), and (e) are removed and paragraph (f) is redesignated as paragraph (b).
[FRDoc. 94-30401 Filed 12-13-94: 8:45 arnl
BILLING CODE 8560-60-P

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration

50 CFR Parts 611, 675, and 676 [Docket No. 941241-4341; I.D. 112394B]
Foreign Fishing; Groundfish Fishery of the Bering Sea and Aleutian Islands; Limited AccessManagement of Federal Fisheries In and Off ofAlaska
AGENCY' National Marine Fisheries Service (NMFSNational Oceanic and Atmosphenc Ainistration (NOAA). Commerce. ACTION: Interim 1995 specifications of groundfish, associated management
measures, and closures.

SUMMARY- NMFS 

### issues interim 1995 initial total allowable catches (ITACs) for each category ofgroundfish and specifications for prohibited species bycatch allowances for the groundfish fishery of the Bering Sea and Aleutian Islands management area (BSAI). NMFS 

### is also closing specified fisheries consistent with the interim 1995 groundfish specifications. The intended effect is to conserve and manage the groundfish resources in the BSAI. EFFECTIVE DATE: January 1, 1995, 

### until the effective date ofthe final 1995 initial specifications. ADDRESSES: The preliminary 1995 Stock Assessment and Fishery Evaluation (SAFE) Report may be requested from the North Pacific Fishery Management Council, P.O. Box 103136, Anchorage, AK 99510, 907-271-2809
FOR FURTHER INFORMATION CONTACT' 

### Ellen R. Varosi, NMFS, 907-586-7228 SUPPLEMENTARY INFORMATIeN: 

### Groundfish fisheries in theBSAI are governed by Federal regulations (50 CFR 611.93 and parts 675 and 676) that implement the Fishery Management Plan forthe Groundfish Fishery ofthe Bering Sea and Aleutian Islands Area (FMP). The FIMP was prepared by the North Pacific Fishery Management Council (Council) and approved by NMFS under the Magnuson Fishery Conservation and Management Act.

The FMP and implementing regulations require NMFS, after consultation with the Council, to specify foreach calendar year the total allowable catch (TAC) for each target species and the "other species" category 

### (§

675.20(a)(2)). Regulations under 

### §675.20(a)(7)(i) furtherrequire NMFS to publish and solicit public comment on amounts ofproposed annual TACs and ITACs foreach target species, apportionments ofeach TAC, prohibited species catch (PSC) allowances under 

### §675.21(b), and seasonal allowances of pollockTAC. The Council, at its September 1994 meeting, based on the recommendations ofits Scientific and Statistical Committee (SSC) and other information, approved preliminary initial specifications for 1995, as detailed below NMFS is publishing these specifications in today's proposed rule section ofthe Federal Register Preliminary TAC Specifications

The Council developed its TAC recommendations (Table 1)based on the preliminary acceptable biological catches (ABCs) as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC in the required optimum yield range of 1.4-2.0 million metric tons (mt). Each ofthe Council's recommended TACs for 1995 is equal to

orless than the final 1995 ABCfor each species category Therefore, NMFS finds that the recommended TACs are consistent with the biological condition ofgroundfish stocks. The preliminary. 1994 / Rules and Regulations