Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 25049 

years available for inspection by any 

sound recording copyright owner or 

featured artist, without charge, during 

normal office hours upon reasonable 

notice. The Collective shall predicate 

inspection of Reports of Use upon 

information relating to identity, location 

and status as a sound recording 

copyright owner or featured artist, and 

the copyright owner’s or featured artist’s 

written agreement not to utilize the 

information for purposes other than 

royalty collection and distribution, and 

determining compliance with statutory 

license requirements, without express 

consent of the Service providing the 

Report of Use. 

* * * * * 

(g) Authority to agree to special 

reporting arrangements. A Collective is 

authorized to agree with Services 

concerning reporting requirements to 

apply in lieu of the requirements set 

forth in this part. 

■ 7. Add new §§ 370.6 and 370.7 to read 

as follows: 

§ 370.6 Late reports of use. 

(a) Late fee. A Service shall pay a late 

fee for each instance in which any 

Report of Use is not received by the 

Collective in compliance with the 

regulations in this part by the due date. 

Such late fee shall be a monthly 

percentage of the payment associated 

with the late Report of Use, where such 

percentage is the percentage rate 

specified for late payments in the 

applicable regulations setting forth 

royalty rates and terms for Services of 

that type. The late fee shall accrue from 

the due date of the Report of Use until 

a fully compliant Report of Use is 

received by the Collective or the 

relevant royalties are distributed 

pursuant to paragraph (b) of this section, 

provided that, in the case of a timely 

provided but noncompliant Report of 

Use, the Collective has notified the 

Service within 90 days regarding any 

noncompliance that is reasonably 

evident to the Collective. 

(b) Proxy distribution. In any case in 

which a Service has not provided a 

compliant Report of Use required under 

this part for use of sound recordings 

under section 112(e) or section 114 of 

title 17 of the United States Code, or 

both, and the board of directors of the 

Collective determines that further efforts 

to seek missing Reports of Use from the 

Service would not be warranted, the 

Collective may determine that it will 

distribute the royalties associated with 

the Service’s missing Reports of Use on 

the basis of a proxy data set approved 

by the board of directors of the 

Collective. 

§ 370.7 Correction of reports of use and 

statements of account. 

If a Service discovers that it has 

submitted a Report of Use or statement 

of account for a particular reporting 

period that is in error, the Service 

should promptly deliver to the 

Collective a corrected Report of Use or 

statement of account, as applicable. 

However, more than 90 days after the 

Service’s first submission of a Report of 

Use or statement of account for a 

particular reporting period, as the case 

may be, the Service cannot claim credit 

for a reduction in royalties by 

submitting a corrected Report of Use or 

statement of account for the reporting 

period. Subject to the foregoing, when a 

Service submits a corrected Report of 

Use or statement of account for a prior 

reporting period, the Collective may 

allocate any upward or permitted 

downward adjustment in the Service’s 

royalty obligations to the usage reported 

on the Service’s next Report of Use 

provided in the ordinary course. 

Dated: February 20, 2014. 

Suzanne M. Barnett, 

Chief U.S. Copyright Royalty Judge. 

[FR Doc. 2014–09798 Filed 5–1–14; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–R10–OAR–2012–0557; FRL–9910–30– 

Region 10] 

Approval and Promulgation of 

Implementation Plans; Swinomish 

Indian Tribal Community; Tribal 

Implementation Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to 

approve a Tribal implementation plan 

(TIP) submitted by the Swinomish 

Indian Tribal Community (SITC or the 

Tribe). The TIP was submitted to the 

EPA on June 28, 2012, and 

supplementary submittals were received 

on September 24, 2013, November 18, 

2013, and January 28, 2014. The TIP 

establishes regulations for open burning 

that will apply to all persons within the 

exterior boundaries of the Swinomish 

Reservation (the Reservation). The EPA 

approved the SITC for treatment in the 

same manner as a State (TAS) to 

regulate open burning on the 

Swinomish Reservation under the Clean 

Air Act (CAA or the Act) on February 

16, 2010. This action proposes to 

federally approve the TIP. If the EPA 

finalizes this approval, the provisions of 

the TIP would become federally 

enforceable. Upon the effective date of 

a final action to approve the TIP, the 

SITC’s open burning TIP would replace 

the Federal Implementation Plan (FIP) 

provisions regulating open burning 

within the exterior boundaries of the 

Swinomish Reservation. 

DATES: Comments must be received on 

or before June 2, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R10– 

OAR–2012–0557, by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. EMail: vaupel.claudia@epa.gov. 

C. Mail: Claudia Vergnani Vaupel, 

U.S. EPA Region 10, Office of Air, 

Waste, and Toxics (AWT–107), 1200 

Sixth Avenue, Suite 900, Seattle, 

Washington 98101. 

D. Hand Delivery: U.S. EPA Region 10 

Mailroom, 9th Floor, 1200 Sixth 

Avenue, Seattle, Washington 98101. 

Attention: Claudia Vergnani Vaupel, 

Office of Air, Waste, and Toxics (AWT– 

107). Such deliveries are only accepted 

during normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R10–OAR–2012– 

0557. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information that 

you consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means the EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send an email 

comment directly to the EPA without 

going through www.regulations.gov, 

your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, the EPA recommends that 

you include your name and other 

contact information in the body of your 

comment and with any disk or CD–ROM 

you submit. If the EPA cannot read your 

comment due to technical difficulties 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
25050 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 

1The EPA is taking no action on the provisions 

identified in the TIP submission, Part I, ‘‘The 

following provisions are not part of the TIP being 

submitted to EPA for approval’’. 

and cannot contact you for clarification, 

the EPA may not be able to consider 

your comment. Electronic files should 

avoid the use of special characters, any 

form of encryption, and be free of any 

defects or viruses. For additional 

information about the EPA’s public 

docket visit the EPA Docket Center 

homepage at http://www.epa.gov/

epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information the disclosure of which is 

restricted by statute. Certain other 

material, such as copyrighted material is 

not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy during normal business 

hours at the Office of Air, Waste and 

Toxics, EPA Region 10, 1200 Sixth 

Avenue, Seattle, Washington 98101. 

FOR FURTHER INFORMATION CONTACT: 

Claudia Vergnani Vaupel at (206) 553– 

6121, vaupel.claudia@epa.gov, or the 

above EPA, Region 10 address. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it is 

intended to refer to the EPA. 

Information is organized as follows: 

Table of Contents 

I. Background for This Proposed Action 

II. CAA Requirements and the Role of Indian 

Tribes 

A. What is the Clean Air Act and its 

relationship to Indian Tribes? 

B. What is an implementation plan? 

C. How do Tribal implementation plans 

compare to State implementation plans? 

III. Tribal Implementation Plan Requirements 

IV. Evaluation of the SITC TIP 

A. What air quality goals does the SITC TIP 

address? 

B. Has the SITC obtained a determination 

from the EPA that it is eligible for TAS 

for purposes of the TIP? 

C. Has the SITC submitted to the EPA a TIP 

that is approvable as satisfying the 

requirements of the Act and relevant 

regulations? 

D. How would the SITC administer the 

TIP? 

E. What requirements does the SITC TIP 

contain? 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background for This Proposed Action 

The EPA is proposing to approve a 

TIP submitted by the SITC for approval 

under section 110 of the CAA. The TIP 

regulates open burning practices and 

establishes a Tribal regulatory program 

applicable to all persons within the 

exterior boundaries of the Reservation 

under the CAA to maintain or improve 

ambient air quality related to open 

burning. The Swinomish TIP for open 

burning was formally submitted to the 

EPA on June 28, 2012, and the EPA 

received supplementary submittals on 

September 24, 2013, November 18, 

2013, and January 28, 2014.1

If the EPA finalizes approval of the 

TIP, the SITC TIP for open burning 

would replace the currently effective 

open burning provisions in the FIP for 

the Swinomish Reservation (found in 40 

CFR 49.10960(g)). The EPA promulgated 

the FIP to protect air quality on 39 

Indian reservations in Idaho, Oregon, 

and Washington, including the 

Swinomish Reservation. The EPA 

intended that these rules would be 

implemented by the EPA, or a delegated 

Tribal authority, until replaced by TIPs 

(67 FR 51802, March 18, 2002). 

II. CAA Requirements and the Role of 

Indian Tribes 

A. What is the Clean Air Act and its 

relationship to Indian Tribes? 

The Clean Air Act (Act) was originally 

passed in 1970 and has been the subject 

of substantial amendments, most 

recently in 1990. Among other things, 

the Act: Requires the EPA to establish 

National Ambient Air Quality Standards 

(NAAQS) for certain pollutants; requires 

the EPA to develop programs to address 

specific air quality problems; establishes 

the EPA’s enforcement authority; and 

provides for air quality research. As part 

of the 1990 amendments, Congress 

added section 301(d) to the Act 

authorizing the EPA to treat eligible 

Indian Tribes in the same manner as 

States (TAS) and directing the EPA to 

promulgate regulations specifying those 

provisions of the Act for which TAS is 

appropriate. In February of 1998, the 

EPA implemented this requirement by 

promulgating the Tribal Authority Rule 

(TAR) (63 FR 7254, February 12, 1998, 

codified at 40 CFR part 49). The EPA 

included relevant provisions relating to 

implementation plans among the 

provisions for which TAS is appropriate 

(exceptions are identified in 40 CFR 

49.4). 

Under the provisions of the Act and 

the EPA’s regulations, Indian Tribes 

must demonstrate that they meet the 

eligibility criteria in section 301(d) of 

the Act and the TAR in order to be 

treated in the same manner as States. 

The eligibility criteria are: (1) The 

Indian Tribe is federally-recognized; (2) 

the Indian Tribe has a governing body 

carrying out substantial governmental 

duties and powers; (3) the functions the 

Indian Tribe is applying to carry out 

pertain to the management and 

protection of air resources within the 

exterior boundaries of the reservation 

(or other areas within the Indian Tribe’s 

jurisdiction); and, (4) the Indian Tribe is 

reasonably expected to be capable of 

performing the functions the Indian 

Tribe is applying to carry out in a 

manner consistent with the terms and 

purposes of the Act and all applicable 

regulations. 

B. What is an implementation plan? 

An implementation plan is a set of 

programs and regulations developed by 

the appropriate regulatory agency to 

assure healthy air quality through the 

attainment and maintenance of the 

NAAQS. These plans can be developed 

by States, eligible Indian Tribes, or the 

EPA, depending on the entity with 

jurisdiction and the EPA’s approval in 

a particular area. For States, such plans, 

once approved by the EPA, are referred 

to as State implementation plans or 

SIPs. Similarly, for eligible Indian 

Tribes these plans, once approved, are 

called Tribal implementation plans or 

TIPs. Occasionally, the EPA will 

develop an implementation plan for a 

specific area or source. This is referred 

to as a Federal implementation plan or 

a FIP. Once final approval becomes 

effective as published in the Federal 

Register, the provisions of an 

implementation plan become federally 

enforceable. An applicable 

implementation plan may be comprised 

of both TIPs and FIPs and/or SIPs and 

FIPs. 

The contents of a typical 

implementation plan may fall into three 

categories: (1) Agency-adopted control 

measures, which consist of rules, 

regulations or source-specific 

requirements (e.g., orders, consent 

decrees or permits); (2) agencysubmitted ‘‘non-regulatory’’ components 

(e.g., attainment plans, rate of progress 

plans, emission inventories, 

transportation control measures, statutes 

demonstrating legal authority, 

monitoring programs); and (3) 

additional requirements promulgated by 

the EPA (in the absence of a 

commensurate agency provision) to 

satisfy a mandatory Clean Air Act 

section 110 or part D requirement. The 

implementation plan is a living 

document which can be revised by the 

State or eligible Indian Tribe as 

necessary to address air pollution 

problems. Accordingly, the EPA from 

time to time must take action on 

implementation plan revisions which 


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Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 25051 

2See section 110(a)(2)(E) of the Act, which 

requires all implementation plans to contain the 

requirements described in section 128 of the Act. 

Tribal implementation plans must comply with 

section 128 as neither section 110(a)(2)(E) nor 

section 128 of the Act are listed in the TAR as 

provisions that are inapplicable to Indian Tribes 

seeking TIP approval under the Act. See 40 CFR 

49.4. The EPA explicitly contemplated the 

applicability of CAA section 128 in the preamble 

Continued 

may contain new and/or revised 

regulations that will become part of the 

implementation plan. 

Upon submittal to the EPA, the 

Agency reviews implementation plans 

for conformance with Federal policies 

and regulations. If the implementation 

plan conforms, the State’s or eligible 

Indian Tribe’s regulations become 

federally enforceable upon the EPA’s 

approval. The codification is usually 

accomplished by first announcing the 

EPA’s findings in the Federal Register 

through a proposed rulemaking action, 

with an appropriate public comment 

period. After evaluating comments 

received on the proposal, a final 

rulemaking action will be published by 

the EPA, which will incorporate the 

implementation plan, if approved, into 

the Code of Federal Regulations (CFR). 

C. How do Tribal implementation plans 

compare to State implementation plans? 

The Act requires each State to 

develop, adopt, and submit an 

implementation plan for the EPA’s 

approval into the SIP. Several sections 

of title I of the Act provide structured 

schedules and mandatory requirements 

for SIP preparation and contents. These 

are further developed in 40 CFR part 51. 

The SIP program reflects each State’s 

particular needs and air quality issues. 

At a minimum, SIPs must meet 

minimum Federal standards. If a State 

fails to submit an approvable SIP within 

the schedules provided in the Act, 

sanctions can be imposed on the State, 

and if the State still does not submit an 

approvable implementation plan, the 

EPA is required to develop and enforce 

a FIP to implement the applicable Act 

requirements for that State. 

Sections 110 and 301(d) of the Act 

and the EPA’s implementing regulation 

at 40 CFR part 49 provide for Tribal 

implementation of various Act programs 

including TIPs. Eligible Indian Tribes 

can choose to implement certain Act 

programs by developing and adopting a 

TIP and submitting the TIP to the EPA 

for approval. TIPs: (1) Are optional; (2) 

may be modular; (3) have flexible 

submission schedules; and (4) may 

allow for joint Tribal and EPA 

management as appropriate. 

1. Optional 

The Act requires each State to 

develop, adopt and submit a proposed 

SIP for the EPA’s approval. Unlike 

States, Indian Tribes are not required to 

adopt an implementation plan. In the 

TAR, the EPA recognized that not all 

Indian Tribes will have the need or the 

desire for an air pollution control 

program, and the EPA specifically 

determined that it was not appropriate 

to treat Indian Tribes in the same 

manner as States for purposes of 

mandatory plan submittal and 

implementation deadlines. See 40 CFR 

49.4. 

2. Modular 

The TAR offers eligible Indian Tribes 

the flexibility to include in a TIP only 

those implementation plan elements 

that address their specific air quality 

needs and that they have the capacity to 

manage. Under this modular approach, 

the TIP elements the eligible Indian 

Tribe adopts must be ‘‘reasonably 

severable’’ from the package of elements 

that can be included in a whole TIP. As 

provided in the TAR, ‘‘reasonably 

severable’’ means that the parts or 

elements selected for the TIP are not 

necessarily connected to or 

interdependent on parts not included in 

the TIP, and are consistent with 

applicable Act and regulatory 

requirements. TIPs are fundamentally 

different than SIPs because, while the 

Act requires States to prepare an 

implementation plan that meets all of 

the requirements of section 110 of the 

Act, an Indian Tribe may adopt TIP 

provisions that address only some 

elements of section 110. 

3. Have Flexible Submission Schedules 

Neither the Act nor the TAR requires 

Indian Tribes to develop TIPs. 

Therefore, unlike States, Indian Tribes 

are not required to meet the 

implementation plan submission 

deadlines or attainment dates specified 

in the Act. Indian Tribes can establish 

their own schedules and priorities for 

developing TIP elements (e.g., 

regulations to limit emissions of a 

specific air pollutant) and submitting 

the TIP to the EPA for approval. Indian 

Tribes will not face sanctions for failing 

to submit or for submitting incomplete 

or deficient implementation plans. See 

40 CFR 49.4. 

4. Allow for Joint Tribal and EPA 

Management 

Consistent with the Act and the TAR, 

eligible Indian Tribes can revise a TIP 

to include appropriate new programs or 

return programs to the EPA for Federal 

implementation as necessary or 

appropriate based on changes in Tribal 

need or capacity. The EPA may regulate 

emission sources that the Indian Tribe 

chooses not to include in a TIP if the 

EPA determines such regulation is 

necessary or appropriate to adequately 

protect air quality. This type of joint 

management is expected to result in a 

program fully protective of Tribal air 

resources. 

III. Tribal Implementation Plan 

Requirements 

For an Indian Tribe to receive the 

EPA’s approval of a TIP, the Indian 

Tribe must, among other things: (1) 

Obtain a determination from the EPA 

that the Indian Tribe is eligible for TAS 

for purposes of the TIP; and (2) submit 

to the EPA a TIP that satisfies the 

requirements of the Act and relevant 

regulations that apply to the plan 

elements and functions for which the 

Indian Tribe seeks approval. 

1. Determination of Eligibility for TAS 

for Purposes of the TIP 

To be found eligible for TAS for the 

purpose of carrying out an 

implementation plan under the Act, an 

Indian Tribe must meet the 

requirements of section 301(d) of the 

Act and 40 CFR 49.6: 

• The Indian Tribe must be federally 

recognized; 

• The Indian Tribe must have a governing 

body carrying out substantial governmental 

duties and powers over a defined area; 

• The functions to be exercised by the 

Indian Tribe must pertain to the management 

and protection of air resources within the 

exterior boundaries of the Indian Tribe’s 

reservation or other areas within the Indian 

Tribe’s jurisdiction; 

• The Indian Tribe must be 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 

Act and all applicable regulations. 

2. Submission of an Approvable TIP 

Implementation plans are governed by 

section 110 of the CAA. Under sections 

110(o) and 301(d) of the CAA and the 

TAR (40 CFR 49.9(h)), any TIP 

submitted to the EPA shall generally be 

reviewed in accordance with the 

provisions for review of State 

implementation plans set forth in CAA 

section 110. Thus, the TIP must include 

not only the substantive rules by which 

the Indian Tribe proposes to help 

achieve the air quality goals of the CAA, 

but also provide assurances that the 

Indian Tribe will have adequate 

personnel, funding, and authority to 

administer the plan, as required by CAA 

section 110(a)(2)(E), and requirements 

governing conflicts of interest as 

required by CAA section 128.2


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
25052 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 

to the proposed TAR. See 59 FR 43964, August 25, 

1994. 

3The SITC made four TIP submissions which 

included more than one version of certain 

components of the TIP. The EPA is taking action on 

the most recent versions of these components as 

detailed in the docket for this action. 

Under CAA section 128, 

implementation plans must contain 

requirements that (1) any ‘‘board or 

body’’ that approves permits or 

enforcement orders have at least a 

majority of members who represent the 

public interest and do not derive any 

significant portion of their income from 

persons subject to the permits or orders, 

and (2) conflicts of interest are 

disclosed. The EPA does not intend to 

read CAA section 128 to limit an Indian 

Tribe’s flexibility in creating a 

regulatory infrastructure that ensures an 

adequate separation between the 

regulator and the regulated entity (59 FR 

43964, August 25, 1994). 

The following technical elements may 

be included in a TIP: 

• A list of regulated pollutants affected by 

the plan; 

• Locations of affected sources and the air 

quality designation (i.e., attainment, 

unclassifiable, nonattainment) of the source 

location; 

• Projected estimates of changes in current 

actual emissions from affected sources; 

• Modeling information (i.e., input and 

output data, justification of models used, 

data and assumptions used); 

• Documentation that the plan contains 

emission limitations, work practice 

standards, and recordkeeping/reporting 

requirements; 

• Regulations. 

The TAR allows Indian Tribes to 

develop, adopt, and submit an 

implementation plan for approval as a 

TIP in a modular fashion, so it may not 

be necessary that a plan meet all of the 

requirements identified above to be 

approvable. 

IV. Evaluation of the SITC TIP 

A. What air quality goals does the SITC 

TIP address? 

The SITC TIP for open burning 

provides a regulatory structure to 

protect air quality from the impacts of 

open burning within the boundaries of 

the Swinomish Reservation. The SITC 

TIP is comprised of two parts. Part I is 

the ‘‘Swinomish Tribal Implementation 

Plan for Open Burning’’, describing the 

Tribe’s open burning program, 

including requirements on conflicts of 

interest (per CAA section 128), public 

notification and public hearings (per 40 

CFR 51.285 and 51.102) and 

demonstrating available resources (per 

40 CFR 51.280). Part II of the TIP is the 

‘‘Clean Air Act,’’ chapter 2 of title 19 of 

the Swinomish Tribal Code (STC). Part 

II includes regulations governing open 

burning practices within the boundaries 

of the Swinomish Reservation. 

In general, the TIP establishes: 

1. A tribally-operated permitting program 

to authorize open burning under specified 

parameters; 

2. standards for open burning; 

3. a list of prohibited materials that may 

not be burned; 

4. the circumstances under which the 

Tribe may call a burn ban during periods of 

impaired air quality or high fire danger; 

5. a permitting fee system; and 

6. a system of enforcement, including 

authority to perform inspections and issue 

enforcement orders, and a process for 

appeals. 

B. Has the SITC obtained a 

determination from the EPA that it is 

eligible for TAS for purposes of the TIP? 

On February 16, 2010, the EPA 

determined that the SITC had 

demonstrated that it was eligible for 

TAS for the purpose of implementing a 

TIP to regulate open burning on the 

Swinomish Reservation under section 

110 of the CAA. The SITC’s eligibility 

application submitted January 6, 2009, 

addressed the requirements of section 

301(d) of the Act and 40 CFR 49.6. The 

EPA found that the SITC satisfied those 

requirements and notified the SITC of 

its TAS eligibility determination to 

implement an open burning TIP. See 

letter dated February 16, 2010, from 

Michelle Pirzadeh, Acting Regional 

Administrator, EPA Region 10, to the 

Honorable M. Brian Cladoosby, Tribal 

Chairperson, Swinomish Indian Tribal 

Community, included in the docket for 

this action. 

C. Has the SITC submitted to the EPA 

a TIP that is approvable as satisfying the 

requirements of the Act and relevant 

regulations? 

In accordance with CAA section 

110(a), the SITC submittal includes 

documentation that the Tribe issued a 

public notice soliciting comments on its 

proposed TIP on December 21, 2012, 

and held a public hearing on January 26, 

2012, with no public comments 

received. The Swinomish Indian Senate 

adopted the TIP for open burning on 

March 6, 2012, and the ordinance that 

amended chapter 2 of title 19 of the STC 

was approved by the Superintendent of 

the Puget Sound Agency of the Bureau 

of Indian Affairs on March 9, 2012—the 

effective date of chapter 2 of title 19 of 

the STC. The SITC formally submitted 

the TIP to the EPA on June 28, 2012, 

and the EPA received supplementary 

submittals on September 24, 2013, 

November 18, 2013, and January 28, 

2014.3

D. How would the SITC administer the 

TIP? 

As noted above, CAA section 

110(a)(2)(E) requires an implementation 

plan to provide assurances that the 

Indian Tribe will have adequate 

personnel, funding, and authority to 

administer the plan. Under CAA section 

128, implementation plans must contain 

requirements governing conflicts of 

interest. 

The SITC TIP will be administered 

and enforced by the air program staff 

within the Swinomish Office of 

Planning and Community Development 

(the Planning Department or the 

Department). Under the SITC TIP, the 

air program staff is responsible for 

issuing open burning permits, declaring 

burn bans, conducting inspections, 

issuing enforcement orders, and 

publishing public notices and 

conducting hearings. 

The SITC TIP describes the resources 

necessary to implement the TIP for open 

burning. These include staff time, 

supplies for equipment maintenance, 

travel, training, and indirect costs. The 

TIP describes anticipating funding from 

the EPA as part of the SITC’s section 

105 air program grant and seeking 

funding from other sources as needed, 

including, but not limited to, additional 

support through the Tribal budget 

process. The TIP also establishes permit 

fees. 

In accordance with CAA section 128, 

the SITC TIP requires any board or 

individual exercising approval authority 

over permits or enforcement orders 

issued pursuant to the TIP to: (1) Have 

at least a majority of members who 

represent the public interest and do not 

derive any significant portion of their 

income from persons subject to permits 

or enforcement orders (provided, 

however, that elected officials or 

employees of the Tribe who receive 

income from the Tribe for the 

performance of their official duties may 

exercise approval authority over permits 

or enforcement orders issued to the 

Tribe); and (2) shall adequately disclose 

any potential conflicts of interest. Any 

such disclosures will be in writing to 

the Planning Commission (a Swinomish 

Tribal Senate committee that provides 

policy and guidance) and will become a 

part of the record of the permit or 

enforcement order. 

E. What requirements does the SITC TIP 

contain? 

The SITC TIP open burning 

regulations apply to open burns 

conducted within the Reservation, 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 25053 

except for burns conducted for triballyrecognized cultural or spiritual 

purposes. An open burn permit is 

required for any person who 

commences an open burn that is four or 

more feet in diameter or three or more 

feet in height. The regulations prohibit 

the burning of certain materials, 

including, but not limited to, structures, 

garbage, dead animals, junked motor 

vehicles, tires or rubber materials, 

plastics, tar, petroleum products, paints, 

paper products other than what is 

necessary to start a fire, lumber or 

timbers treated with preservatives, 

construction debris or demolition waste, 

pesticides, herbicides, fertilizers, or 

other chemicals, insulated wire, 

batteries, light bulbs, materials 

containing mercury, asbestos or 

asbestos-containing materials, 

pathogenic waste, hazardous waste, any 

material other than natural vegetation 

that normally emits dense smoke or 

noxious fumes when burned, any 

material from a site other than the 

parcel number upon which the open 

burn is conducted, or fireworks or 

associated packaging other than those 

permitted under STC title 15, chapter 2. 

The TIP also authorizes the Planning 

Department to call burn bans in the case 

of impaired air quality or the high risk 

of fire. The Department shall declare a 

burn ban based on impaired air quality 

when pollutant concentrations are 

measured or predicted within the 

Reservation to: (1) Exceed 75% of the 

currently effective NAAQS for PM2.5 or 

PM10; or (2) exceed any other of the 

currently effective NAAQS. 

Notice of burn bans will be issued 

with signs near access roads, and on the 

open burning hotline. Burn bans apply 

to all open burning on the Reservation 

with the exception of burns for cooking, 

recreational or heating purposes, or an 

open burn conducted for triballyrecognized cultural or spiritual 

purposes. If a burn begins prior to the 

ban being issued and its cessation 

would cause greater emissions than 

allowing it to continue, the Planning 

Department may authorize the open 

burn to continue. The Department may 

also use its discretion to ban all open 

burning on the Reservation based on the 

severity of air quality conditions or risk 

of fire danger. This includes fires for 

cooking, recreational or heating 

purposes, with the exception of fires in 

homes that use woodstoves as a primary 

source of heat. 

The TIP establishes requirements and 

procedures for obtaining an open burn 

permit on land within the exterior 

boundaries of the Swinomish 

Reservation. A complete permit 

application must be submitted and a 

permit obtained at least three working 

days prior to the date of the open burn. 

The Planning Department may issue an 

open burn permit if after review it is 

determined that the open burn will not 

cause adverse air quality or endanger 

the public. Issued permits will contain 

standard permit conditions and may 

contain additional permit conditions. 

These permit conditions establish 

parameters for open burning designed to 

protect air quality. There are also 

special permitting provisions for 

training fires and agricultural burning. 

The TIP establishes a fee system for 

open burning and special use permits. 

The TIP includes provisions to be 

followed by the Tribe in enforcing the 

open burning TIP. The Planning 

Department is authorized to conduct 

inspections to ensure compliance with 

the open burning conditions. If 

violations are found, a permit may be 

revoked and/or an enforcement order 

may be issued requiring the responsible 

party to cease and abate the violating 

activity, and/or pay a civil penalty and/ 

or damages. Notices of violations will 

cite specific details of the violation, 

including applicable permit conditions. 

The director of the Planning Department 

must disclose any conflicts of interest 

with regard to persons issued a permit 

or subject to an enforcement order. 

The TIP also identifies a system for 

appeals. Any person whose permit 

application is denied or to whom the 

Department issues an enforcement order 

may appeal the decision to the Planning 

Commission, Swinomish Tribal Senate, 

and Swinomish Tribal Court in 

accordance with the appeals process 

described in STC 19–04.560 through 

19–04.600. 

The EPA is proposing to approve the 

provisions of title 19, chapter 2 of the 

STC into the Swinomish TIP as part of 

today’s proposed action (with the 

exception of the operating permits, 

nuisance, and carbon emission fee 

provisions that were not included in the 

Tribe’s submittal). We note that 

approval of any Tribal enforcementrelated authorities (e.g., enforcement, 

penalties, damages, hearings, appeals) 

into the TIP would have no effect on the 

EPA’s independent authorities under 

sections 113 and 114 of the Act. Any 

enforcement of the TIP’s requirements 

brought by the EPA would proceed 

under the EPA’s independent 

authorities under the Clean Air Act 

provisions noted above. 

If the EPA issues a final approval of 

the TIP, the SITC TIP for open burning 

would replace the currently effective 

open burning provisions in the FIP for 

the Swinomish Reservation (found at 40 

CFR 49.10960(g)). All other provisions 

of the FIP for the Swinomish 

Reservation will be unaffected by this 

action. 

The EPA has the authority, under the 

Act, to enforce the requirements in an 

approved TIP. The EPA will work 

cooperatively with the Indian Tribe in 

exercising its enforcement authority. 

The EPA recognizes that, in certain 

circumstances, eligible Indian Tribes 

have limited criminal enforcement 

authority. The TAR specifically 

provides that such limitations on an 

Indian Tribe’s criminal enforcement 

authority do not prevent a TIP from 

being approved. Where implementation 

of the TIP requires criminal enforcement 

authority, and to the extent an Indian 

Tribe is precluded from asserting such 

authority, the Federal government has 

primary criminal enforcement 

responsibility. A memorandum of 

agreement between an Indian Tribe and 

the EPA is an appropriate way to 

address circumstances in which the 

Indian Tribe is incapable of exercising 

applicable enforcement requirements as 

described in 40 CFR 49.7(a)(6) and 40 

CFR 49.8. In 2010, the Tribe and the 

EPA entered into a memorandum of 

agreement that addresses the process by 

which the Tribe will provide potential 

investigative leads to the EPA and/or 

other appropriate Federal entities in an 

appropriate and timely manner. 

V. Proposed Action 

Under CAA sections 110(o), 110(k)(3) 

and 301(d), the EPA is proposing to 

approve the TIP that was submitted by 

the SITC on June 28, 2012, and the 

supplementary submittals received on 

September 24, 2013, November 18, 

2013, and January 28, 2014, for 

regulating open burning within the 

exterior boundaries of the Swinomish 

Reservation. The SITC TIP includes 

regulations governing prohibited 

materials, burn bans, open burning 

permit requirements and fees, and 

provisions related to enforcement of the 

TIP. Although the EPA is proposing to 

approve the regulations discussed 

above, the EPA is not proposing to 

incorporate by reference into the CFR 

the enforcement-related authorities for 

the reasons discussed in section IV. If 

the EPA takes final action to approve 

this TIP, the SITC TIP for open burning 

will apply to all persons within the 

exterior boundaries of the Reservation 

and will replace the existing open 

burning provisions in the FIP for the 

Swinomish Reservation (49.10956(g) 

and 49.10960(g)). 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS
25054 Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules 

VI. Statutory and Executive Order 

Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this proposed 

action is not a ‘‘significant regulatory 

action’’ and therefore is not subject to 

review by the Office of Management and 

Budget. For this reason, this action is 

also not subject to Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This proposed action merely 

proposes to approve laws of an eligible 

Indian Tribe as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

Tribal law. Accordingly, the 

Administrator certifies that this 

proposed rule will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601, 

et seq.). Because this rule proposes to 

approve pre-existing requirements 

under Tribal law and does not impose 

any additional enforceable duty beyond 

that required by Tribal law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). 

Executive Order 13175, entitled 

‘‘Consultation and Coordination With 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires the 

EPA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by Tribal officials in the development of 

regulatory policies that have Tribal 

implications.’’ The EPA has concluded 

that this proposed rule will have Tribal 

implications in that it will have 

substantial direct effects on the SITC. 

However, it will neither impose 

substantial direct compliance costs on 

Tribal governments, nor preempt Tribal 

law. The EPA is proposing to approve 

the SITC’s TIP at the request of the 

Tribe. Tribal law will not be preempted 

as the SITC incorporated the TIP into 

Tribal law on March 9, 2012. The Tribe 

has applied for, and fully supports, the 

proposed approval of the TIP. If it is 

finally approved, the TIP will become 

federally enforceable. 

The EPA worked with Tribal air 

program staff early in the process of 

developing the TIP to allow for 

meaningful and timely input into its 

development. To administer an 

approved TIP, Indian Tribes must be 

determined eligible (40 CFR part 49) for 

TAS for the purpose of administering a 

TIP. During the TAS eligibility process, 

the Tribe and the EPA worked together 

to ensure that the appropriate 

information was submitted to the EPA. 

The SITC and the EPA also worked 

together throughout the process of 

development and Tribal adoption of the 

TIP. 

This action also does not have 

Federalism implications because it does 

not have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

proposes to approve a TIP covering 

areas within the exterior boundaries of 

the SITC Reservation, and does not alter 

the relationship or the distribution of 

power and responsibilities between 

States and the Federal government 

established in the Clean Air Act. This 

proposed rule does not provide the EPA 

with the discretionary authority to 

address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898, ‘‘Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations’’ (59 FR 7629, 

February 16, 1994). This proposed rule 

also is not subject to Executive Order 

13045 ‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

The requirements of section 12(d) of 

the National Technology Transfer and 

Advancement Act (NTTAA) of 1995 (15 

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

proposed rule. In reviewing TIP 

submissions, the EPA’s role is to 

approve an eligible Indian Tribe’s 

submission, provided that it meets the 

criteria of the Clean Air Act. In this 

context, in the absence of a prior 

existing requirement for the Indian 

Tribe to use voluntary consensus 

standards (VCS), the EPA has no 

authority to disapprove a TIP 

submission for failure to use VCS. It 

would thus be inconsistent with 

applicable law for the EPA, when it 

reviews a TIP submission, to use VCS in 

place of a TIP submission that otherwise 

satisfies the provisions of the Clean Air 

Act. Thus, the requirements of section 

12(d) of the NTTAA do not apply. 

This proposed rule does not impose 

an information collection burden under 

the provisions of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501, 

et seq.). 

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

List of Subjects in 40 CFR Part 49 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Particulate matter, Reporting 

and recordkeeping requirements. 

Dated: April 21, 2014. 

Dennis J. McLerran, 

Regional Administrator, Region 10. 

[FR Doc. 2014–10106 Filed 5–1–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2014–0177; FRL–9910–23- 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Section 110(a)(2) 

Infrastructure Requirements for the 

2008 Ozone National Ambient Air 

Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the State of 

Maryland pursuant to the Clean Air Act 

(CAA). Whenever new or revised 

National Ambient Air Quality Standards 

(NAAQS) are promulgated, the CAA 

requires states to submit a plan for the 

implementation, maintenance, and 

enforcement of such NAAQS. The plan 

is required to address basic program 

elements, including, but not limited to 

regulatory structure, monitoring, 

modeling, legal authority, and adequate 

resources necessary to assure attainment 

and maintenance of the standards. 

These elements are referred to as 

infrastructure requirements. The State of 

Maryland has made a submittal 

addressing the infrastructure 

requirements for the 2008 8-hour ozone 

NAAQS. 

DATES: Written comments must be 

received on or before June 2, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2014–0177 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: fernandez.cristina@epa.gov. 

C. Mail: EPA–R03–OAR–2014–0177, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, Air 

Protection Division, Mailcode 3AP30, 

U.S. Environmental Protection Agency, 


TKELLEY on DSK3SPTVN1PROD with PROPOSALS