Federal Register / Vol. 78, No. 1 / Wednesday, January 2, 2013 / Proposed Rules 51 

.02(9)(b)—Emissions Standards for 

Hazardous Air Pollutants. EPA has 

made the preliminary determination 

that this SIP revision, with regard to the 

aforementioned proposed actions, is 

approvable because it is consistent with 

section 110 of the CAA and EPA 

regulations regarding NSR permitting. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• 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); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 F43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide 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 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Greenhouse gases, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

oxides, Particulate matter, Reporting 

and recordkeeping requirements. 

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

Dated: December 18, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–31538 Filed 12–31–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–R09–OAR–2012–0936; FRL–9767–4] 

Designation of Areas for Air Quality 

Planning Purposes; California; 

Morongo Band of Mission Indians 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to correct an 

error in a previous rulemaking that 

revised the boundaries between 

nonattainment areas in Southern 

California established under the Clean 

Air Act for the purposes of addressing 

the revoked national ambient air quality 

standard for one-hour ozone. EPA is 

also proposing to revise the boundaries 

of certain Southern California air quality 

planning areas to designate the Indian 

country of the Morongo Band of Mission 

Indians, California (Morongo 

Reservation) as a separate air quality 

planning area for the one-hour and 1997 

eight-hour ozone standards. 

DATES: Written comments must be 

received on or before February 1, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2012–0936, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. Email: israels.ken@epa.gov. 

3. Fax: 415–947–3579. 

4. Mail or deliver: Ken Israels 

(Mailcode AIR–8), U.S. Environmental 

Protection Agency, Region IX, 75 

Hawthorne Street, San Francisco, CA 

94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through the 

http://www.regulations.gov or email; 

http://www.regulations.gov is an 

anonymous access system, and EPA will 

not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send 

email directly to EPA, your email 

address will be automatically captured 

and included as part of the public 

comment. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed directly 

below. 

FOR FURTHER INFORMATION CONTACT: Ken 

Israels, Grants and Program Integration 

Office (AIR–8), U.S. Environmental 

Protection Agency, Region IX, (415) 

947–4102, israels.ken@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ ‘‘our,’’ and ‘‘Agency’’ refer 

to EPA. 

Table of Contents 

I. Background 

A. Banning Pass and the Morongo Band of 

Mission Indians 

B. National Ambient Air Quality Standards 

C. Area Designations and Classifications 

II. Proposed Action 

A. Legal Authority 

B. Proposed Correction to 2003 Action 

C. Proposed Boundary Redesignation of the 

Morongo Reservation as a Separate 

Nonattainment Area for the One-Hour 

Ozone and Eight-Hour Ozone Standards 

III. Summary of Proposed Action and Request 

for Public Comment 


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1 ‘‘Indian country’’ as defined at 18 U.S.C. 1151 

refers to: ‘‘(a) All land within the limits of any 

Indian reservation under the jurisdiction of the 

United States Government, notwithstanding the 

issuance of any patent, and, including rights-of-way 

running through the reservation, (b) all dependent 

Indian communities within the borders of the 

United States whether within the original or 

subsequently acquired territory thereof, and 

whether within or without the limits of a state, and 

(c) all Indian allotments, the Indian titles to which 

have not been extinguished, including rights-of-way 

running through the same.’’ The Morongo Tribe is 

the only Tribe that has Indian country in the 

portion of the Banning Pass at issue in this 

rulemaking. 

2See EPA’s 2008 eight-hour ozone standard 

designations Technical Support Document (TSD) 

found at http://www.epa.gov/groundlevelozone/ 

designations/2008standards/documents/ 

R9_CA_TSD_FINAL.pdf. 

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

reaction of volatile organic compounds (VOC) and 

oxides of nitrogen (NOX) in the atmosphere in the 

presence of sunlight. These precursor emissions are 

emitted by many types of pollution sources, 

including power plants and industrial emissions 

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

engines, and smaller sources, collectively referred 

to as area sources. 

4The South Coast includes Orange County, the 

southwestern two-thirds of Los Angeles County, 

southwestern San Bernardino County, and western 

Riverside County (see 40 CFR 81.305). 

5California also requested two other specific 

boundary changes: (1) To move the eastern 

boundary of the Coachella Valley portion of the 

Southeast Desert ozone nonattainment area further 

east to match the boundaries of the Coachella 

Valley PM–10 nonattainment area, and (2) to correct 

an error in the eastern boundary of the San 

Bernardino County portion of the South Coast Air 

Basin with respect to carbon monoxide. Unlike the 

boundary change to enlarge the South Coast to 

include the entire Banning Pass area, the change in 

the eastern boundary of the Coachella Valley 

portion of the Southeast Desert ozone 

nonattainment area did not affect Indian country 

and would not be affected by today’s proposed 

action. The approval of the State’s request to correct 

the carbon monoxide boundary simply fixed a 

typographical error and thereby removed from the 

South Coast carbon monoxide nonattainment area 

a portion of San Bernardino County that neither 

EPA nor California intended to be included. See 68 

FR 48848, at 48850 (August 15, 2003). EPA’s 

correction of the carbon monoxide boundary in San 

Bernardino County would also be unaffected by 

today’s proposed action. 

IV. Statutory and Executive Order Reviews 

I. Background 

A. Banning Pass and the Morongo Band 

of Mission Indians 

Connecting the South Coast Air Basin 

to the Coachella Valley, the Banning 

Pass (also known as the San Gorgonio 

Pass) is one of the three major routes by 

which air pollutants are transported out 

of the Los Angeles metropolitan area 

(which lies within the South Coast Air 

Basin). Banning Pass runs in an eastwest direction for about 15 miles and is 

about 5 miles wide. The pass starts west 

of Beaumont, California at an elevation 

of about 2,200 feet and reaches a 

maximum elevation of around 2,600 feet 

in the city of Beaumont, then drops to 

an elevation of near 1,400 feet between 

Cabazon and White Water. The San 

Bernardino Mountains are on the north 

side of the pass and the San Jacinto 

Mountains are on the south side. The 

San Bernardino Mountains reach a 

maximum elevation of approximately 

11,500 feet at the top of San Gorgonio 

Mountain and the San Jacinto 

Mountains reach a maximum elevation 

of approximately 10,800 feet at Mt. San 

Jacinto. 

The Morongo Band of Mission 

Indians, California (‘‘Morongo Tribe’’ or 

‘‘Tribe’’) is a federally-recognized Indian 

tribe whose Indian country 1 (‘‘Morongo 

Reservation’’ or ‘‘Reservation’’) lies 

within the Banning Pass. The Morongo 

Reservation covers approximately 

35,000 acres and is home to 

approximately 1,500 full-time 

residents.2 The Morongo Reservation is 

rural, and most of the current land use 

is residential or agricultural. The 

Morongo Reservation also hosts a hotel 

and casino, among other enterprises. 

The eastern edge of the Morongo 

Reservation abuts the current boundary 

between the South Coast Air Basin and 

Southeast Desert/Coachella Valley air 

planning areas. Most of the Morongo 

Reservation is located north of Interstate 

10, just east of the City of Banning, but 

some of the Reservation is located south 

of Interstate 10 as well. 

B. National Ambient Air Quality 

Standards 

The Clean Air Act (CAA or ‘‘Act’’) 

requires EPA to establish a National 

Ambient Air Quality Standard (NAAQS 

or ‘‘standard’’) for pollutants that ‘‘may 

reasonably be anticipated to endanger 

public health and welfare’’ and to 

develop a primary and secondary 

standard for each NAAQS. The primary 

standard is designed to protect human 

health with an adequate margin of safety 

and the secondary standard is designed 

to protect public welfare and the 

environment. EPA has set NAAQS for 

six common air pollutants, referred to as 

criteria pollutants: Ozone, carbon 

monoxide, nitrogen dioxide, sulfur 

dioxide, particulate matter, and lead. 

In 1979, EPA promulgated the first 

ozone 3 standard of 0.12 parts per 

million (ppm), averaged over a one-hour 

period (‘‘one-hour ozone standard’’), to 

replace an earlier photochemical 

oxidant standard. In 1997, EPA revised 

the ozone standard to 0.08 ppm, eighthour average (‘‘1997 eight-hour ozone 

standard’’), and then, in 2008, lowered 

the eight-hour ozone standard to 0.075 

ppm (‘‘2008 ozone standard’’). Today’s 

proposed action relates only to the 

designations and classifications for the 

one-hour ozone and 1997 eight-hour 

ozone standards, discussed below, but 

relies on EPA’s analysis and rationale 

for the Agency’s recent designations for 

the 2008 ozone standard. 

C. Area Designations and Classifications 

Areas of the country were originally 

designated as attainment, 

nonattainment, or unclassifiable 

following enactment of the 1977 

Amendments to the CAA. See 43 FR 

8962 (March 3, 1978). These 

designations were generally based on 

monitored air quality values compared 

to the applicable standard. Under the 

1990 Amendments to the CAA, ozone 

nonattainment areas were further 

classified as ‘‘Marginal,’’ ‘‘Moderate,’’ 

‘‘Serious,’’ ‘‘Severe’’ or ‘‘Extreme’’ 

depending upon the severity of the 

ozone problem. Area designations and 

classifications are codified in 40 CFR 

part 81; area designations and 

classifications for California are codified 

at 40 CFR 81.305. 

EPA has historically designated areas 

in Southern California by referencing air 

basins, including the South Coast Air 

Basin 4 and the Southeast Desert Air 

Basin. More recently, the EPA has 

recognized California’s division of the 

former Southeast Desert Air Basin into 

the Mojave Desert Air Basin and the 

Salton Sea Air Basin. The relevant 

portion of the Southeast Desert Air 

Basin (and Salton Sea Air Basin) for the 

purposes of this proposed action is 

Coachella Valley, which covers roughly 

the middle third of Riverside County, 

i.e., east of the South Coast Air Basin 

and west of the Little San Bernardino 

Mountains. 

Historically, the Morongo Reservation 

was included in the Coachella Valley 

portion of the Southeast Desert Air 

Basin and was designated accordingly 

for the various standards. In 2002, the 

State of California requested that EPA 

revise the boundaries of the South Coast 

Air Basin and the Southeast Desert Air 

Basin to remove the Banning Pass area 

from the Coachella Valley portion of the 

Southeast Desert Air Basin and include 

it in the South Coast Air Basin. See 68 

FR 57820 (October 7, 2003).5

Specifically, California sought to 

establish a new boundary approximately 

18 miles east of the then-established 

boundary between the South Coast Air 

Basin and the Coachella Valley portion 

of the Southeast Desert Air Basin. The 

boundary between the two basins was to 

be moved from the range line common 

to Range 2 West and Range 1 West to the 

range line common to Range 2 East and 

Range 3 East (San Bernardino Base and 


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6For a detailed map of the area, please see the 

technical support document (TSD) for this proposed 

rulemaking available in the docket for this action, 

EPA–R09–OAR–2012–0936. 

7For carbon monoxide, EPA’s action had the 

effect of changing the designation of the Banning 

Pass area from ‘‘unclassifiable/attainment’’ to 

‘‘Serious’’ nonattainment. With respect to 

particulate matter with an aerodynamic diameter 

less than or equal to a nominal 10 micrometers 

(‘‘PM10’’), the action did not change the designation 

or classification of the Banning Pass because both 

the South Coast Air Basin and Coachella Valley are 

‘‘Serious’’ nonattainment areas for that pollutant. 

Both the South Coast and Coachella Valley are 

designated as unclassifiable or attainment for the 

nitrogen dioxide and sulfur dioxide standards, but, 

for nitrogen dioxide, the South Coast Air Basin is 

a former nonattainment area for which a 

maintenance plan has been approved. See 63 FR 

39747 (July 24, 1998). Today’s proposed action 

relates only to the designations and classifications 

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

standards. 

8 If we finalize our proposed action to revise the 

boundaries of the South Coast to designate the 

Morongo Reservation as a separate nonattainment 

area for the 1997 eight-hour ozone standard, EPA 

will withdraw our proposed rule to reclassify 

Indian country in the South Coast to ‘‘Extreme’’ for 

the 1997 eight-hour ozone standard (74 FR 43654, 

August 27, 2009) to the extent that the 2009 

proposed rule relates to the Morongo Reservation. 

9Revisions of designations are referred to as 

‘‘redesignations.’’ Boundary changes revise an 

area’s designation and, as such, represent one type 

of redesignation. As a general matter, EPA is no 

longer acting to redesignate areas with respect to 

the revoked one-hour ozone standard. However, in 

this instance, EPA is proposing to revise the 

designation of an air quality planning area in 

concert with a proposal to correct a clear error that 

occurred with respect to Indian country prior to 

revocation of the one-hour ozone standard. As 

indicated in this document, EPA believes that 

correction of this error is justified by the specific 

jurisdictional context and the on-going regulatory 

impacts on the Morongo Tribe arising from the 

error. 

Meridian).6 On October 7, 2003, EPA 

approved California’s boundary change 

request (68 FR 57820). 

With respect to the one-hour ozone 

standard, EPA’s 2003 action had the 

effect of moving the Morongo 

Reservation from the Coachella Valley 

portion of the ‘‘Southeast Desert 

Modified AQMA Area’’ (‘‘Southeast 

Desert’’) to the South Coast Air Basin 

and changing the designations and 

classifications accordingly. Specifically, 

EPA’s 2003 action had the effect of 

changing the ozone nonattainment area 

classification for the Banning Pass area, 

including the Morongo Reservation, 

from ‘‘Severe-17’’ to ‘‘Extreme’’.7

In 2004, EPA promulgated area 

designations and classifications for the 

1997 eight-hour ozone standard. Among 

the California areas, EPA designated the 

‘‘Los Angeles-South Coast Air Basin, 

CA,’’ the boundary of which coincided 

with the boundary for the one-hour 

ozone standard, as amended in 2003 to 

include the entire Banning Pass, 

including the Morongo Reservation, as a 

‘‘Severe-17’’ nonattainment area. See 69 

FR 23858 (April 30, 2004). In EPA’s 

2004 final rule, the Agency designated 

‘‘Riverside Co. (Coachella Valley), CA’’ 

(‘‘Coachella Valley’’) as a ‘‘Serious’’ 

nonattainment area. In 2007, the State of 

California requested that EPA reclassify 

the South Coast nonattainment area 

from ‘‘Severe-17’’ to ‘‘Extreme’’ and the 

Coachella Valley nonattainment area 

from ‘‘Serious’’ to ‘‘Severe-15’’ for the 

1997 eight-hour ozone standard. 

In response to EPA’s 2003 boundary 

change action and California’s 2007 

reclassification request, the Morongo 

Tribe requested that EPA create a 

separate nonattainment area for the 

Morongo Reservation or, alternatively, 

move the western boundary of the 

Coachella Valley area westward to 

include the Morongo Reservation. See 

letter from Robert Martin, Chairman, 

Morongo Band of Mission Indians, to 

Deborah Jordan, Director, Air Division, 

EPA Region IX, dated May 29, 2009. 

In 2009, in response to California’s 

2007 reclassification request, EPA 

proposed that all Indian country in the 

South Coast be reclassified in keeping 

with the classification of non-Indian 

country State lands to ‘‘Extreme’’ for the 

1997 eight-hour ozone standard. See 43 

FR 43654 (August 27, 2009). In 2010, 

EPA took final action granting the 

request by California to reclassify the 

South Coast Air Basin from ‘‘Severe-17’’ 

to ‘‘Extreme’’ for the 1997 eight-hour 

ozone standard, and to reclassify all 

Indian country, except that pertaining to 

the Morongo Tribe and the Pechanga 

Tribe, in keeping with the 

reclassification of non-Indian country 

State lands to ‘‘Extreme.’’ With respect 

to the Morongo Tribe and the Pechanga 

Tribe, EPA deferred reclassification 

pending EPA’s final decisions on their 

previously-submitted boundary change 

requests. See 75 FR 24409 (May 5, 

2010). In EPA’s 2010 final rule, the 

Agency also granted the request to 

reclassify the Coachella Valley 

nonattainment area to ‘‘Severe-15.’’ 

Today’s proposed action would 

correct EPA’s 2003 action to the extent 

that the action relates to the 

designations and classifications of the 

Morongo Reservation for the one-hour 

ozone standard and would establish a 

separate one-hour ozone nonattainment 

area for the Reservation. Today’s 

proposed action would also grant the 

Tribe’s request to revise the boundary 

designation and to designate the 

Morongo Reservation as a separate 

nonattainment area for the 1997 eighthour ozone standard.8

Today’s proposed action would not 

affect the current designations and 

classifications of the Morongo 

Reservation for any of the other 

standards. Today’s proposed action 

would also not affect the designations 

and classifications for any pollutant 

with respect to State lands. 

II. Proposed Action 

A. Legal Authority 

The relevant statutory provisions for 

this proposed action are CAA section 

110(k)(6), which is EPA’s error 

correction authority, and CAA sections 

107(d)(3), 301(a) and 301(d), which are 

EPA’s authority to redesignate Indian 

country areas under these 

circumstances. 

Section 110(k)(6) of the CAA 

provides: ‘‘Whenever the Administrator 

determines that the Administrator’s 

action approving, disapproving, or 

promulgating any plan or plan revision 

(or part thereof), area designation, 

redesignation, classification, or 

reclassification was in error, the 

Administrator may in the same manner 

as the approval, disapproval, or 

promulgation revise such action as 

appropriate without requiring any 

further submission from the State. Such 

determination and the basis thereof 

shall be provided to the State and 

public.’’ We interpret this provision to 

authorize the Agency to make 

corrections to a promulgated regulation 

when it is shown to our satisfaction that 

(1) we clearly erred in failing to 

consider or inappropriately considering 

information made available to EPA at 

the time of the promulgation, or the 

information made available at the time 

of promulgation is subsequently 

demonstrated to have been clearly 

inadequate, and (2) other information 

persuasively supports a change in the 

regulation. See 57 FR 56762, at 56763 

(November 30, 1992). 

Sections 107(d)(3)(A)–(C) provide that 

EPA may initiate the redesignation 

process ‘‘on the basis of air quality data, 

planning and control considerations, or 

any other air quality-related 

considerations the Administrator deems 

appropriate,’’ and ‘‘promulgate the 

redesignation, if any, of the area or 

portion thereof.’’ CAA section 107(d)(3) 

does not refer to Indian country, but 

consistent with EPA’s discretionary 

authority in CAA sections 301(a) and 

301(d)(4) to directly administer CAA 

programs, and protect air quality in 

Indian country through federal 

implementation, EPA is authorized to 

directly administer sections 

107(d)(3)(A)–(C) and redesignate Indian 

country areas.9


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10 In addition, the CAA does not require Indian 

tribes to develop and seek approval of air programs, 

and pursuant to our authority in CAA section 

301(d), EPA has interpreted relevant CAA 

requirements for submission of air programs as not 

applying to tribes. See 40 CFR 49.4. 

11EPA is not excluding the possibility that Tribes 

can agree with State requests in certain 

circumstances, nor are we suggesting that we would 

undo actions we took just because we did not 

explicitly identify Indian country land that was 

included with the State land. 

B. Proposed Correction to 2003 Action 

We have reviewed the materials 

submitted by the State of California in 

connection with the State’s 2002 request 

to enlarge the South Coast Air Basin to 

include the Banning Pass area, thereby 

removing the area from the Southeast 

Desert. We have also reviewed EPA’s 

rationale for approving the State’s 

request. On the basis of that review, and 

for reasons given below, EPA has 

concluded that while EPA’s action to 

approve California’s request was not 

erroneous with respect to state lands, it 

was erroneous with respect to the 

Morongo Reservation and that we have 

sufficient justification to correct the 

error at this time. 

First, a review of the items listed in 

EPA’s administrative record for EPA’s 

proposed (68 FR 48848, August 15, 

2003) and final (68 FR 57820, October 

7, 2003) rules approving California’s 

boundary change request reveals no 

reference to, or map illustrating the 

location of, the Morongo Reservation. 

Second, from review of the record, it 

is clear that EPA understood its action 

as one in which the Agency was taking 

action on a State request under CAA 

section 107(d)(3)(D). See, e.g., the 

proposed rule at 48850 (‘‘* * * we are 

proposing to fully approve [the requests] 

under CAA section 107(d)(3)(D).’’). 

Section 107(d)(3)(D) provides: ‘‘The 

Governor of any State may, on the 

Governor’s own motion, submit to the 

Administrator a revised designation of 

any area or portion thereof within the 

State.’’ Typically, however, states are 

not approved to administer programs 

under the CAA in Indian country, and 

California has not been approved by 

EPA to administer any CAA programs in 

Indian country. CAA actions in Indian 

country would thus generally be taken 

either by EPA, or by an eligible Indian 

tribe itself under an EPA-approved 

program. In this case, the Morongo Tribe 

has not applied under CAA section 

301(d) for treatment-in-a-similarmanner-as-a-state (TAS) for purposes of 

designations and redesignations under 

section 107(d) and does not implement 

any relevant EPA-approved CAA 

regulatory program, nor has the tribe 

developed a tribal implementation plan 

(TIP).10 In these circumstances, EPA is 

the appropriate entity to administer 

relevant CAA programs in Indian 

country. 

Thus, with respect to the Indian 

country located within an area subject 

to a State boundary change request, EPA 

is the appropriate entity to initiate and 

promulgate the redesignation, and EPA 

could do so under CAA sections 

107(d)(3)(A)–(C) and sections 301(a) and 

301(d)(4), as discussed above in 

subsection II.A (‘‘Legal Authority’’). 

While EPA thus had authority to change 

the boundary of the South Coast Air 

Basin with respect to Indian country, it 

is apparent from the proposed and final 

rules in 2003 that EPA did not recognize 

that it was acting under that authority 

or appropriately consider the effect of 

the action on Indian country lands. EPA 

recognized only that the Agency was 

acting on a State request under section 

107(d)(3)(D) and reviewed the request 

accordingly. As noted previously, states 

are not approved to administer CAA 

programs in Indian country.11

If EPA’s actions had more explicitly 

addressed the fact that the State’s 

request affected tribal lands, and also 

had expressly considered the Tribe’s 

position with respect to the State’s 

request to revise the boundary in 

relation to Indian country, EPA might 

well have relied upon the same criteria 

cited in the proposed rule. The criteria, 

set forth in section 107(d)(3)(A) include 

‘‘air quality data, planning and control 

considerations, or any other air qualityrelated considerations the Administrator 

deems appropriate’’. The evaluation of 

‘‘planning and control considerations’’ 

for Indian country, however, differs 

from that for State lands. In this 

instance, with respect to State lands, the 

South Coast Air Quality Management 

District (SCAQMD) has planning and 

permitting responsibility over the entire 

Banning Pass area, as well as the South 

Coast, and Coachella Valley, and 

administers an EPA-approved 

(nonattainment) New Source Review 

(NSR) program under which permits 

may be issued to new or modified 

stationary sources. 

In contrast, EPA currently administers 

relevant CAA programs on the Morongo 

Reservation. Until recently, EPA had not 

established a NSR program applicable to 

the Reservation. This means that a 

higher ozone classification, and 

simultaneous lowering (i.e., more 

stringent) of NSR major source 

thresholds, would have presented a 

greater challenge for new and modified 

stationary sources at the Morongo 

Reservation than for similar sources on 

State lands in the Banning Pass subject 

to SCAQMD’s EPA-approved NSR 

program. (EPA’s NSR rule for Indian 

country, including the Morongo 

Reservation, was published on July 1, 

2011 at 76 FR 38748 and took effect on 

August 30, 2011.) 

Moreover, state law and SCAQMD 

rules restrict the use of emission 

reduction credits generated under 

SCAQMD rules by major new or 

modified sources located within the 

South Coast Air Basin, but outside the 

scope of the SCAQMD program. See 

SCAQMD Rule 1309 (‘‘Emission 

Reduction Credits’’), subsection (h)(3); 

and California Health & Safety Code 

section 40709.6 (‘‘Offset by reductions 

credited to stationary sources located in 

another district’’). Given the few 

emissions sources on the Morongo 

Reservation, reliance upon emissions 

reductions by sources off the 

Reservation to offset emissions from any 

major new or modified sources on the 

Reservation is inevitable and because of 

the limitations in state law and 

SCAQMD rules, the availability of such 

emissions reductions is uncertain. 

Therefore, as described above, in the 

specific circumstances presented here, 

and based on our review of the record 

from the 2003 rulemaking, we conclude 

that EPA erred in including the 

Morongo Reservation in the 2003 

boundary change approval. Because 

Indian country was subsumed into a 

larger area for which the State requested 

a boundary revision, EPA should not 

have acted solely with respect to the 

State’s request under section 

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

its responsibilities pursuant to section 

107(d)(3)(A)–(C), and sections 301(a) 

and 301(d) and considered the relevant 

criteria from the perspective of Indian 

country. 

Furthermore, we recognize that the 

boundary change has had adverse 

regulatory impacts on the Morongo 

Tribe, particularly by lowering the onehour ozone NSR major source threshold 

from 25 tons per year to 10 tons per 

year. This adverse regulatory impact 

continues to affect the Tribe, even 

though the one-hour ozone standard 

was revoked, effective on June 15, 2005 

[i.e., one year from the designations for 

the eight-hour ozone standard—see 40 

CFR 50.9(b)]. 

With respect to the one-hour ozone 

standard and the related NSR major 

source thresholds, the Tribe continues 

to be affected because, in the wake of a 

decision by the U.S. Court of Appeals 

for the DC Circuit challenging EPA’s 

Phase I Implementation Rule for the 


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12South Coast Air Quality Management District v. 

EPA, 472 F.3d 882 (DC Cir. 2006) reh’g denied 489 

F.3d 1245 (clarifying that the vacatur was limited 

to the issues on which the court granted the 

petitions for review). 

13See memorandum from Stephen D. Page, 

Director, EPA Office of Air Quality Planning and 

Standards, to EPA Regional Air Directors, Regions 

I–X, dated December 20, 2011, titled ‘‘Policy for 

Establishing Separate Air Quality Designations for 

Areas of Indian Country.’’ 

14The Tribal Designation Policy also states that, 

in addition to information related to the identified 

factors, tribes may submit any other information 

that they believe is important for EPA to consider. 

15 In addition, EPA has consulted with the tribe 

several times about this matter. 

16EPA also notes that in using many of the same 

factors found in the 2008 ozone designations 

process, we are using factors that represent the most 

current information regarding meteorology, air 

quality, etc. in the area and therefore we believe 

serve the purposes of being representative for the 

previously established ozone standards. 

eight-hour ozone standard,12 the NSR 

requirements that had applied by virtue 

of the area’s classification as of June 15, 

2004 continue to apply under antibacksliding requirements established by 

EPA for the transition from the one-hour 

ozone standard to the eight-hour ozone 

standard. See 77 FR 28424 (May 14, 

2012) for information concerning the 

NSR requirement and the antibacksliding provisions for the former 

one-hour ozone standard. Thus, 

notwithstanding the revocation of the 

one-hour ozone standard, the applicable 

major source NSR thresholds for the 

Morongo Reservation continue to be 10 

tons per year, based on the inclusion of 

the Reservation in the South Coast 

because the South Coast was classified 

as ‘‘Extreme’’ for the one-hour ozone 

standard on June 15, 2004. 

In sum, given the on-going effects that 

flow from our 2003 error, we are 

persuaded to propose action now to 

correct the error in our 2003 boundary 

change action as it relates to the 

Morongo Reservation. 

In considering how to correct the 

error in our 2003 boundary change 

action, we have concluded from our 

review of the administrative record for 

that rulemaking that EPA did not 

commit an error with respect to State 

lands. Our proposed action addresses 

only the specific regulatory impact on 

the Morongo Reservation, and otherwise 

leaves the 2003 action unchanged. Thus, 

we propose to rescind the 2003 

boundary change rule only with respect 

to the Morongo Reservation for the 

revoked one-hour ozone standard. 

Revocation of the 2003 boundary 

change rule with respect to the Morongo 

Reservation would return it to its status 

before the 2003 boundary change, when 

the Reservation was included in the 

Southeast Desert one-hour ozone 

nonattainment area. (see section I.C. 

herein). In this action, however, EPA is 

taking the additional step of proposing 

to revise the boundaries of the Southeast 

Desert to designate the Morongo 

Reservation as a separate one-hour 

ozone nonattainment area. If both 

proposed actions are finalized, the 

Morongo Reservation would resume the 

one-hour ozone nonattainment 

classification it previously shared with 

the Southeast Desert (i.e., ‘‘Severe-17’’). 

We are not proposing to rescind the 

2003 action with respect to area 

designations for any of the other 

standards, because the Tribe has not 

faced any significant adverse regulatory 

impacts from the boundary change with 

respect to those pollutants. Our 

proposed action would not affect any 

area designations or classifications with 

respect to State lands. 

C. Proposed Boundary Redesignation of 

the Morongo Reservation as a Separate 

Nonattainment Area for the One-Hour 

Ozone and 1997 Eight-Hour Ozone 

Standards 

As noted previously, on May 29, 

2009, the Morongo Tribe submitted a 

request to EPA for a boundary change to 

create a separate ozone nonattainment 

area, or in the alternative, to move the 

western boundary of the Coachella 

Valley nonattainment area westward to 

include the Morongo Reservation. As 

noted above, we are authorized to 

redesignate Indian country areas under 

these circumstances under CAA 

sections 107(d)(3)(A)–(C), 301(a) and 

301(d). 

Recently, EPA issued a policy 

(referred to herein as the ‘‘Tribal 

Designation Policy’’) for establishing 

separate air quality designations for 

areas of Indian country.13 Where EPA 

receives a request for a boundary change 

from a tribe seeking to have its Indian 

country designated as a separate area, 

the policy indicates that EPA will make 

decisions regarding these requests on a 

case-by-case basis after consultation 

with the tribe. As a matter of policy, 

EPA believes that it is important for 

tribes to submit the following 

information when requesting a 

boundary change: A formal request from 

an authorized tribal official; 

documentation of Indian country 

boundaries to which the air quality 

designation request applies; 

concurrence with EPA’s intent to 

include the identified tribal lands in the 

40 CFR part 81 table should EPA 

separately designate the area; and a 

multi-factor analysis to support the 

request. See Tribal Designation Policy, 

pages 3 and 4. 

The Tribal Designation Policy states 

that EPA intends to make decisions 

regarding a tribe’s request for a separate 

air quality designation after all 

necessary consultation with the tribe 

and, as appropriate, with the 

involvement of other affected entities, 

and after evaluating whether there is 

sufficient information to support such a 

designation. Boundary change requests 

for a separate air quality designation 

should include an analysis of a number 

of factors (referred to as a ‘‘multi-factor 

analysis,’’) including air quality data, 

emissions-related data (including source 

emissions data, traffic and commuting 

patterns, population density and degree 

of urbanization), meteorology, 

geography/topography, and 

jurisdictional boundaries.14 EPA 

believes these factors are appropriate to 

consider in acting under CAA sections 

107(d)(3)(A)–(C), 301(a) and 301(d). 

On May 29, 2009, the Chairman of the 

Morongo Tribe submitted the Tribe’s 

request for a separate ozone 

nonattainment area that included a 

multi-factor analysis addressing air 

quality data, emissions data, 

meteorology, geography/topography, 

and jurisdictional boundaries. As such, 

although submitted prior to release of 

the Tribal Designation Policy, the 

Morongo Tribe’s request for a boundary 

change to create a separate ozone 

nonattainment area, in conjunction with 

EPA’s additional analysis found in the 

technical support document for this 

proposed action, represents the type of 

formal, official request and supporting 

information called for in the policy.15

EPA recently reviewed the Morongo 

Tribe’s multi-factor analysis in 

connection with designating areas of the 

country for the 2008 ozone standard. 

Upon review of the Tribe’s analysis and 

EPA’s own supplemental analysis in 

light of the Tribal Designation Policy, 

EPA designated the Morongo 

Reservation as a separate nonattainment 

area for the 2008 ozone standard. See 77 

FR 30088 (May 21, 2012). We believe 

that EPA’s analysis and recent decision 

to designate the Morongo Reservation as 

a separate nonattainment area for the 

2008 ozone standard is directly relevant 

to our consideration of whether to revise 

the boundaries of existing air quality 

planning areas to designate the Morongo 

Reservation as a separate nonattainment 

area for the one-hour and 1997 eighthour ozone standards. We recognize that 

the three standards address the same 

pollutant, and thus share multi-factor 

analyses and considerations.16

EPA is therefore adopting the analysis 

and rationale previously relied upon by 

EPA in establishing the Morongo 

nonattainment area for the 2008 ozone 


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17See the TSD associated with this proposal for 

our detailed analysis of each of the factors. Our TSD 

also shows that violations continue for the one-hour 

standard and that the transitional characteristic 

observed for the eight-hour ozone data also applies 

to the one-hour ozone data. 

18 In performing our analysis, EPA relied on data 

from the following monitoring stations in our air 

quality system (AQS): Redlands (AQS #06–071– 

4003), Banning (AQS #06–065–0012), and Palm 

Springs (AQS #06–065–5001). EPA believes that the 

Banning monitor, given its proximity, is 

representative of the Morongo Indian Country’s air 

quality. EPA also notes that, while the Morongo 

Tribe operates its own monitor, we did not use that 

data for this action. 

19See page 5 of the Morongo portion of the 2008 

eight-hour ozone standard TSD found at http:// 

www.epa.gov/groundlevelozone/designations/ 

2008standards/documents/R9_CA_TSD_FINAL.pdf 

20See page 6 of the Morongo portion of the 2008 

eight-hour ozone standard TSD found at http:// 

www.epa.gov/groundlevelozone/designations/ 

2008standards/documents/R9_CA_TSD_FINAL.pdf 

21Meteorological information for the Morongo 

Reservation is from 2005–2009 Weather and Air 

Quality Summary, prepared by the Morongo Band 

of Mission Indians, Environmental Protection 

Department, Tribal Air Program, August 2010. 22See 77 FR 30088, dated May 21, 2012. 

standard. Key findings from the 2008 

ozone designations decision that we are 

adopting for this proposed action 

include: 17

• Air quality data: The SCAQMD-run 

monitor in Banning is located within 

two miles of the Morongo monitor, and 

data from SCAQMD’s Banning monitor 

is appropriate for use as a regulatory 

monitor and is representative of air 

quality within the Morongo Reservation. 

Eight-hour ozone concentrations 

measured at the SCAQMD-run Banning 

ozone monitor shows continued 

violations of the 1997 eight-hour ozone 

standard and, reflecting the transitional 

nature of the Banning Pass area, contrast 

with the higher design values of the 

South Coast Air Basin to the west and 

lower design values in Southeast Desert 

to the east; 18

• Emissions data: Sources of air 

pollutants located on or associated with 

the Morongo Reservation consist of 

stationary sources that generate less 

than 20 tons per year (tpy) of NOX and 

less than 20 tpy of VOC, and motor 

vehicles for travel associated with the 

1,500 residents and visitors to the 

Morongo Casino Resort. In contrast, 

ozone precursor emissions from the 

adjacent Los Angeles-South Coast Air 

Basin nonattainment area exceed 

400,000 tpy of NOX and over 200,000 

tpy of VOC, with a total population of 

approximately 17 million people.19 To 

the east, ozone precursor emissions 

from the adjacent Riverside County 

(Coachella Valley, which was originally 

part of the Southeast Desert Air Basin) 

nonattainment area exceed 50,000 tpy of 

NOX and 28,000 tpy of VOC, with a 

population of over 2 million people; 20

• Meteorology: Under most 

meteorological conditions, air from the 

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

west is funneled through Banning Pass 

to the desert area to the east. As a 

mountain pass area, the meteorology is 

dissimilar from that of either the coastal 

plain to the west or the desert area to 

the east. The winds are more frequent 

and stronger, with a more westerly 

component, than those in most of the 

coastal plain, and the temperatures vary 

more than in most of the coastal plain 

but not as much as in the desert area to 

the east.21 Thus, in some ways, the 

Banning Pass is transitional between the 

coastal and desert areas; in other ways, 

as a mountain pass, the Banning Pass is 

simply unlike either area to the west or 

east; 

• Geography/topography: The 

topographical characteristics of the 

Banning Pass create very different 

climatic conditions than found in the 

coastal plain to the west or the desert 

area to the east, such as persistently 

strong westerly air flow that is 

compressed and channeled by the 

elevated land mass of the Pass itself and 

the steep mountain peaks to the north 

and south; and 

• Jurisdictional boundaries: Although 

the Morongo Reservation contains 

stationary and mobile sources of ozone 

precursors, the magnitude of ozone 

precursor emissions is very small 

compared to emissions from the 

adjacent Los Angeles-South Coast Air 

Basin and Coachella Valley 

nonattainment areas. Because the 

analysis of factors does not conclusively 

indicate that the sources located on the 

Morongo Reservation contribute to 

nonattainment in the surrounding area, 

EPA believes that consistent with the 

principles set forth in the Tribal 

Designation Policy, the jurisdictional 

boundaries factor is especially 

important in the decision-making 

process for designating the Morongo 

Reservation. 

Air quality data, meteorology and 

topography indicate that the Morongo 

Reservation experiences transitional 

conditions characteristic of a mountain 

pass area through which pollutants are 

channeled from a highly urbanized 

metropolitan nonattainment area to the 

west to the relatively less developed 

nonattainment area to the east. 

Considering the three factors of air 

quality data, meteorology, and 

topography, EPA could reasonably 

include the Morongo Reservation in 

either the South Coast nonattainment 

area to the west, or the Southeast Desert 

nonattainment area to the east, as EPA 

has done in the past for the one-hour 

ozone standard and the 1997 eight-hour 

ozone standard. Alternatively, the 

Agency could establish a separate 

nonattainment area for the Morongo 

Reservation as it did for the 2008 eighthour ozone standard.22

However, taking into account the 

minimal amount of emissions associated 

with activities on the Morongo 

Reservation and corresponding minimal 

contribution to regional ozone 

violations, we believe that in these 

circumstances it is appropriate to assign 

particular weight to the jurisdictional 

boundaries factor, and it is consistent 

with the principles for designations of 

Indian country set forth in the Tribal 

Designation Policy. Moreover, the Tribe 

has invested in the development of its 

own air program, including operation of 

weather stations and an air monitoring 

station, and has expressed interest in 

development of its own permitting 

program. Under the jurisdictional 

boundaries factor, we find that 

redesignation of the Morongo 

Reservation as a separate ozone 

nonattainment area for the one-hour 

ozone and 1997 eight-hour ozone 

standards would be appropriate. 

Therefore, consistent with the 

designation of the Morongo Reservation 

for the 2008 ozone standard, we propose 

to revise the boundaries of the Southeast 

Desert one-hour ozone nonattainment 

area and the boundaries of the South 

Coast 1997 eight-hour ozone 

nonattainment area to designate the 

Morongo Reservation as a separate 

nonattainment area for the one-hour and 

1997 eight-hour ozone standards. 

III. Summary of Proposed Action and 

Request for Public Comment 

Under section 110(k)(6) of the CAA, 

EPA is proposing to correct an error in 

a 2003 final action that revised the 

boundaries between areas in Southern 

California established under the CAA 

for the purposes of addressing the 

standard for one-hour ozone. EPA has 

determined that the Agency erred in the 

2003 final action to change the 

boundary of the South Coast Air Basin, 

which enlarged the basin to include all 

of the Banning Pass area. In taking that 

action, EPA failed to consider the 

presence of Indian country (i.e., the 

Morongo Reservation) located therein. 

EPA thus failed to consider the status of 

the Indian country under the 

appropriate statutory and regulatory 

provisions when it evaluated and acted 

upon the State’s boundary change 

request. EPA believes that its error 

resulted in regulatory consequences for 

the Morongo Tribe that justify making a 

correction. 


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Specifically, EPA is proposing to 

rescind the 2003 final action, as it 

pertains to the Morongo Reservation for 

the one-hour ozone standard. This 

proposed action would not affect the 

designations and classifications of State 

lands. 

Second, under CAA section 107(d)(3), 

301(a) and 301(d), we propose to revise 

the boundaries of the Southeast Desert 

to designate the Morongo Reservation as 

a separate nonattainment area for the 

one-hour ozone standard and to classify 

the Morongo Reservation as ‘‘Severe17,’’ i.e., consistent with its prior 

classification when it was included in 

the Southeast Desert. Third, also under 

CAA section 107(d)(3), 301(a) and 

301(d), we are proposing to revise the 

boundaries of the South Coast to 

designate the Morongo Reservation as a 

separate nonattainment area for the 

1997 eight-hour ozone standard and to 

classify the Morongo Reservation as 

‘‘Severe-17,’’ i.e., consistent with its 

original classification when it was 

included in the South Coast. 

We are proposing to redesignate the 

Morongo Reservation as a separate air 

quality planning area for the one-hour 

ozone and 1997 eight-hour ozone 

standards based on our conclusion that 

factors such as air quality data, 

meteorology, and topography do not 

definitively support inclusion of the 

Reservation in either the South Coast or 

the Southeast Desert air quality 

planning areas, that Morongo 

Reservation emissions sources 

contribute minimally to regional ozone 

concentrations, and that the 

jurisdictional boundaries factor should 

be given particular weight under these 

circumstances. 

If finalized as proposed, the Morongo 

air quality planning area for the onehour and 1997 eight-hour ozone 

standards would have the same 

boundaries as the Morongo 

nonattainment area for the 2008 eighthour ozone standard. Moreover, if 

finalized as proposed, new or modified 

stationary sources proposed for 

construction on the Morongo 

Reservation would be subject to the NSR 

major source thresholds for ‘‘Severe-17’’ 

ozone nonattainment areas, rather than 

the more stringent thresholds for 

‘‘Extreme’’ ozone nonattainment areas. 

EPA is soliciting public comments on 

the issues discussed in this document 

and will accept comments for the next 

30 days. These comments will be 

considered before taking final action. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 [58 FR 

51735 (October 4, 1993)], the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Under Executive Order 12866 (58 

FR 51735, October 4, 1993), this 

proposed action is not a ‘‘significant 

regulatory action’’ and therefore is not 

subject to review by the Office of 

Management and Budget. For this 

reason, this proposed action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

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

22, 2001). This proposed action would 

merely correct an error in a previous 

rulemaking and redesignate certain air 

quality planning area boundaries, and 

thereby reinstate certain CAA 

designations and corresponding 

requirements to which the affected area 

had previously been subject. 

B. Paperwork Reduction Act 

This proposed action does not impose 

an information collection burden under 

the provisions of the Paperwork 

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

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. This proposed 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). An agency may 

not conduct or sponsor, and a person is 

not required to respond to a collection 

of information unless it displays a 

currently valid OMB control number. 

The OMB control numbers for EPA’s 

regulations in 40 CFR are listed in 40 

CFR part 9. 

C. Regulatory Flexibility Act (RFA) 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. After considering 

the economic impacts of today’s rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This proposed rule will not 

impose any direct requirements on 

small entities. EPA is proposing to 

correct an error in a previous 

rulemaking and redesignate certain air 

quality planning area boundaries, and 

thereby reinstate certain CAA 

designations and corresponding 

requirements to which the affected area 

had previously been subject. This 

proposed action is intended to, among 

other purposes, facilitate and support 

the Morongo Tribe’s efforts to develop a 

tribal air permit program by reestablishing, within the Morongo 

Reservation, the less-stringent New 

Source Review major source thresholds 

that had applied under the area’s 


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previous ‘‘Severe-17’’ classification for 

the one-hour ozone standard. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. Today’s 

proposed rule contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) for 

State, local, or tribal governments or the 

private sector. The proposed rule 

imposes no enforceable duty on any 

State, local or tribal governments or the 

private sector. In any event, EPA has 

determined that this proposed rule does 

not contain a Federal mandate that may 

result in expenditures of $100 million or 

more for State, local, and tribal 

governments, in the aggregate, or the 

private sector in any one year. Thus, 

today’s proposed rule is not subject to 

the requirements of sections 202 and 

205 of the UMRA. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ This 

proposed action also does not have 

Federalism implications because it does 

not have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This proposed action 

would merely correct an error in a 

previous rulemaking and redesignate 

certain air quality planning area 

boundaries, and thereby reinstate 

certain CAA designations and 

corresponding requirements to which 

the affected area had previously been 

subject, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ are defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’ Under 

section 5(b) of Executive Order 13175, 

EPA may not issue a regulation that has 

tribal implications, that imposes 

substantial direct compliance costs, and 

that is not required by statute, unless 

the Federal government provides the 

funds necessary to pay the direct 

compliance costs incurred by tribal 

governments, or EPA consults with 

tribal officials early in the process of 

developing the proposed regulation. 

Under section 5(c) of Executive Order 

13175, EPA may not issue a regulation 

that has tribal implications and that 

preempts tribal law, unless the Agency 

consults with tribal officials early in the 

process of developing the proposed 

regulation. 

EPA has concluded that this action 

would have tribal implications. In 2009, 

the Morongo Tribe requested that EPA 

create a separate area for the Morongo 

Reservation in part due to the adverse 

regulatory impacts resulting from the 

Agency’s 2003 boundary change action. 

EPA consulted with representatives of 

the Morongo Tribe prior to, and 

following, the Tribe’s 2009 boundary 

change request, concerning the issues 

covered herein. In today’s proposed 

action, EPA is responding to the Tribe’s 

2009 boundary change request and has 

proposed an action that would eliminate 

the adverse regulatory impacts arising 

from EPA’s 2003 boundary change 

action. As described herein, we agree 

with the Tribe that the boundary should 

be corrected to reflect their concerns. As 

proposed, this action will neither 

impose substantial direct compliance 

costs on tribal governments, nor 

preempt tribal law. Rather, the proposed 

action would relieve the Tribe of the 

additional requirements that flowed 

from the boundary change and 

corresponding change in CAA 

designations and classifications. Thus, 

the requirements of sections 5(b) and 

5(c) of the Executive Order do not apply 

to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. This 

proposed rule is not subject to Executive 

Order 13045 ‘‘Protection of Children 

from Environmental Health Risks and 

Safety Risks’’ (62 FR 19885, April 23, 

1997), because it is not economically 


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Federal Register / Vol. 78, No. 1 / Wednesday, January 2, 2013 / Proposed Rules 59 

significant as defined in Executive 

Order 12866, and because the Agency 

does not have reason to believe the 

environmental health or safety risks 

addressed by this rule present a 

disproportionate risk to children. 

H. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

proposed rule does not involve 

establishment of technical standards, 

and thus, the requirements of section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

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

action. 

I. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(February 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed action will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not directly affect the 

level of protection provided to human 

health or the environment. In this 

action, EPA is proposing to correct an 

error in a previous rulemaking and 

redesignate certain air quality planning 

area boundaries, and thereby reinstate 

certain CAA designations and 

corresponding requirements to which 

the affected area had previously been 

subject. 

List of Subjects in 40 CFR Part 81 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, National parks, Ozone, 

Wilderness areas. 

Dated: December 20, 2012. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2012–31537 Filed 12–31–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R9–ES–2009–0094; 450 

003 0115] 

RIN 1018–AY64 

Endangered and Threatened Wildlife 

and Plants; Listing the Honduran 

Emerald Hummingbird 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; 12-month 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list as endangered the Honduran 

emerald hummingbird (Amazilia luciae) 

under the Endangered Species Act of 

1973, as amended (Act). This species is 

endemic to a small area in Honduras, 

and the population is estimated to be 

less than 1,000 and decreasing. Its 

suitable habitat has decreased in the 

past 100 years and continues to 

diminish. This document also serves as 

the completion of the status review (also 

known as the 12-month finding). We 

seek information from the public on the 

proposed listing for this species. 

DATES: We will consider comments and 

information received or postmarked on 

or before March 4, 2013. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on Docket No. FWS–R9–ES–2009–0094. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R9– 

ES–2009–0094, Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

MS 2042–PDM; Arlington, VA 22203. 

We will not accept comments by 

email or fax. We will post all comments 

on http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Information Requested section 

below for more information). 

FOR FURTHER INFORMATION CONTACT: 

Janine Van Norman, Chief, Branch of 

Foreign Species, Endangered Species 

Program, U.S. Fish and Wildlife Service, 

4401 North Fairfax Drive, Room 420, 

Arlington, VA 22203; telephone 703– 

358–2171. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

Background 

Section 4(b)(3)(B) of the Endangered 

Species Act (ESA) (16 U.S.C. 1531 et 

seq.) requires that, for any petition to 

revise the Federal Lists of Endangered 

and Threatened Wildlife and Plants that 

contains substantial scientific or 

commercial information that listing the 

species may be warranted, we make a 

finding within 12 months of the date of 

receipt of the petition (‘‘12-month 

finding’’). In this finding, we determine 

whether the petitioned action is: (a) Not 

warranted, (b) warranted, or (c) 

warranted, but immediate proposal of a 

regulation implementing the petitioned 

action is precluded by other pending 

proposals to determine whether species 

are endangered or threatened, and 

expeditious progress is being made to 

add or remove qualified species from 

the Federal Lists of Endangered and 

Threatened Wildlife and Plants. Section 

4(b)(3)(C) of the ESA requires that we 

treat a petition for which the requested 

action is found to be warranted but 

precluded as though resubmitted on the 

date of such finding, that is, requiring a 

subsequent finding to be made within 

12 months. We must publish these 12- 

month findings in the Federal Register. 

In this document, we announce that 

listing this species as endangered is 

warranted, and we are issuing a 

proposed rule to add this species as 

endangered to the Federal List of 

Endangered and Threatened Wildlife. 

Prior to issuing a final rule on this 

proposed action, we will take into 

consideration all comments and any 

additional information we receive. Such 

information may lead to a final rule that 

differs from this proposal. All comments 

and recommendations, including names 

and addresses of commenters, will 

become part of the administrative 

record. 

Petition History 

On October 28, 2008, the Service 

received a petition dated October 28, 

2008, from Mr. David Anderson of 

Louisiana State University on behalf of 

The Hummingbird Society of Sedona, 


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