Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 58189 

1 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. 

2 ‘‘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.’’ 

3While the one-hour ozone standard itself has 

been revoked, the NSR requirements that had 

applied to a nonattainment area for the 1997 eighthour ozone standard based on that area’s 

designation and classification for the one-hour 

ozone standard, at the time of designation for the 

1997 eight-hour ozone standard, continue to apply 

to the area consistent with the requirements of 

EPA’s phase I implementation rule governing the 

transition from the one-hour ozone standard to the 

1997 eight-hour ozone standard and a related court 

decision. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 81 

[EPA–R09–OAR–2012–0936; FRL–9901–13– 

Region 9] 

Designation of Areas for Air Quality 

Planning Purposes; California; 

Morongo Band of Mission Indians 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

correct an error in a previous 

rulemaking that revised the boundaries 

between nonattainment areas in 

Southern California designated under 

the Clean Air Act for the national 

ambient air quality standard for onehour ozone. EPA is also taking final 

action 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 as a separate air 

quality planning area for the one-hour 

and 1997 eight-hour ozone standards. 

DATES: This rule is effective on October 

23, 2013. 

ADDRESSES: EPA has established docket 

number EPA–R09–OAR–2012–0936 for 

this action. The index to the docket is 

available electronically at 

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., Confidential 

Business Information). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

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. Summary of Proposed Action 

II. Comments and Responses 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Summary of Proposed Action 

On January 2, 2013 (78 FR 51), EPA 

proposed to correct an error in a 

previous rulemaking that revised the 

boundaries between nonattainment 

areas in Southern California designated 

under the Clean Air Act (CAA or ‘‘Act’’) 

for the national ambient air quality 

standard (NAAQS or ‘‘standard’’) for 

one-hour ozone.1 EPA also proposed to 

revise the boundaries of certain 

Southern California air quality planning 

areas to designate the Indian country 2

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. References 

herein to our ‘‘proposed rule’’ refer to 

our January 2, 2013 proposed rule. 

Specifically, we proposed to correct 

an error in our October 7, 2003 (68 FR 

57820) final action approving a request 

by the State of California (‘‘California’’ 

or ‘‘State’’) to shift the boundary 

between the South Coast Air Basin and 

the Southeast Desert Air Basin (which 

includes Coachella Valley) eastward, 

and thereby relocate the Banning Pass 

area to the South Coast Air Basin from 

the Southeast Desert Air Basin. As 

explained in our proposed rule, the 

‘‘error’’ pertained only to the Morongo 

Reservation, which is located within the 

Banning Pass, and which is the only 

Indian country affected by the relevant 

portion of our 2003 final action. 

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 ‘‘Los Angeles-South 

Coast Air Basin Area’’ (‘‘South Coast’’) 

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’’.3

In connection with the 2003 final 

action, we erred by failing to recognize 

that, while EPA had authority to change 

the boundary of the South Coast with 

respect to Indian country under CAA 

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

301(d), it is apparent from the proposed 

and final rules in 2003 that EPA did not 

recognize that it was acting under that 

authority or that EPA appropriately 

considered 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. 

However, tribes are sovereign entities, 

and not political subdivisions of states. 

Typically, 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. 

With respect to the Morongo 

Reservation, EPA or the Morongo Tribe 

is the appropriate entity to initiate 

boundary changes, and in this instance, 

the Morongo Tribe initiated the change 

through a rulemaking request to EPA. 

If EPA had considered such a 

boundary change with respect to the 

Morongo Reservation under the 

appropriate statutory authority (i.e., 

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

and 301(d)), the Agency might well have 

declined to change the boundary with 

respect to the Morongo Reservation 

based on ‘‘planning and control 

considerations’’ given that emissions 

sources within the Morongo Reservation 

are subject to EPA jurisdiction whereas 

the emissions sources outside of the 

Reservation are subject to the 

jurisdiction of the South Coast Air 

Quality Management District 

(SCAQMD). In addition to the difference 

in jurisdiction, we might have declined 

to change the boundary given the 

associated decrease in the major source 

threshold and absence of a federal 

Indian country new source review 

(NSR) program for new or modified 

stationary sources at the time. 

Therefore, under CAA section 

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58190 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

4CAA section 110(k)(6) provides that: ‘‘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 considered 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). 

5Sections 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. 

6See 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.’’ 

7See Tribal Designation Policy, pages 3 and 4. 

The Tribal Designation Policy also states that, in 

addition to information related to the identified 

factors, tribes may submit any other information 

that they believe is important for EPA to consider. 

8See letter from Robert Martin, Chairman, 

Morongo Band of Mission Indians, to Deborah 

Jordan, Director, Air Division, EPA Region IX, dated 

May 29, 2009. 

9EPA also noted 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. 

10See 77 FR 30088, dated May 21, 2012. 

110(k)(6),4 we proposed to correct the 

error by rescinding our 2003 final action 

as it pertains to the Morongo 

Reservation and only as it pertains to 

the revoked one-hour ozone standard. 

Second, in our proposed rule, under 

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

and 301(d), we proposed to revise the 

boundaries of the Southeast Desert to 

designate the Morongo Reservation as a 

separate nonattainment area for the onehour ozone standard and to classify the 

Morongo Reservation as ‘‘Severe-17,’’ 

i.e., consistent with its prior 

classification when it was included in 

the Southeast Desert.5 Third, also under 

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

and 301(d), we proposed 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. 

In proposing the second and third 

actions described above, we applied the 

principles set forth in EPA’s policy 

(referred to herein as the ‘‘Tribal 

Designation Policy’’) for establishing 

separate air quality designations for 

areas of Indian country.6 Under the 

Tribal Designation Policy, 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 

certain information, including, among 

other items, a formal request from an 

authorized tribal official; documentation 

of Indian country boundaries to which 

the air quality designation request 

applies; and 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.7

In May 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.8 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 our 

technical support document (TSD) for 

the proposed rule, represents the type of 

formal, official request and supporting 

information called for in the policy. 

For the proposed rule, EPA noted that 

the Agency had recently reviewed the 

Morongo Tribe’s multi-factor analysis in 

connection with designating the 

Morongo Reservation as a separate 

nonattainment area for the 2008 ozone 

standard, and concluded that EPA’s 

analysis and recent decision to 

designate the Morongo Reservation as a 

separate nonattainment area for the 

2008 ozone standard was directly 

relevant to our consideration of whether 

to revise the boundaries of existing air 

quality planning areas to designate the 

Morongo Reservation as a separate 

nonattainment area for the one-hour and 

1997 eight-hour ozone standards, and 

adopted the analysis and rationale 

previously relied upon by EPA in 

establishing the Morongo nonattainment 

area for the 2008 ozone standard. In 

doing so, we recognized that the three 

standards address the same pollutant, 

and thus share multi-factor analyses and 

considerations.9

Based on our review of air quality 

data, meteorology and topography, we 

observed 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 concluded that the 

Agency 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, EPA could establish a 

separate nonattainment area for the 

Morongo Reservation as it did for the 

2008 eight-hour ozone standard.10

Taking into account the relative 

amount of emissions associated with 

activities on the Morongo Reservation 

and corresponding minimal 

contribution to regional ozone 

violations, we believed that under the 

circumstances present here, it would be 

appropriate to assign particular weight 

to the jurisdictional boundaries factor, 

consistent with the principles for 

designations of Indian country set forth 

in the Tribal Designation Policy. 

Moreover, we noted that 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 found 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 

proposed to revise the boundaries of the 

Southeast Desert one-hour ozone 

nonattainment area and the boundaries 

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Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 58191 

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. 

Please see our proposed rule and TSD 

for additional background information 

about the Morongo Reservation and the 

regulatory context, as well as a more 

detailed explanation of our rationale for 

the proposed actions. 

II. Comments and Responses 

Our proposed rule provided for a 30- 

day comment period. During this 

period, we received comments from the 

South Coast Air Quality Management 

District (SCAQMD or ‘‘District’’), the 

Coachella Valley Association of 

Governments (CVAG), and from a 

private citizen. All three comment 

letters oppose EPA’s proposed actions. 

We have summarized the comments and 

provide responses in the paragraphs that 

follow. 

SCAQMD Comment #1: EPA’s 

primary reason for wanting to reclassify 

Morongo as ‘‘severe-17’’ appears to be 

based on the fact that in ‘‘extreme’’ 

ozone areas, the major source threshold 

for VOC and NOX is 10 tons per year, 

whereas in ‘‘severe-17’’ areas it is 25 

tons per year, thereby increasing the 

number of new or modified sources 

subject to the emissions offset 

requirement. EPA’s sole concern 

appears to be the availability of 

emission reduction credits (ERCs) for 

use as offsets. We are not sure that 

EPA’s rationale, which appears to be 

based on economic considerations, is a 

proper basis for reclassification under 

CAA section 107(d)(3). Also, EPA has 

misinterpreted the law relative to 

availability of offsets for sources to be 

located on Morongo lands. Because 

Morongo is included within the South 

Coast District, the special provisions in 

state law and District rules regarding the 

transfer and use of inter-district and 

inter-basin offsets are inapplicable. 

EPA Response to SCAQMD Comment 

#1: Our proposed rule proposed two 

separate actions—(1) an error correction 

(of a 2003 final action) and (2) boundary 

revisions (for one-hour and 1997 eighthour ozone NAAQS). EPA considered 

the issue of availability of ERCs for use 

as offsets for new or modified sources 

on the Morongo Reservation in the 

context of the proposed error correction 

action, not the boundary revisions 

action, and the statutory basis for 

consideration of this issue was CAA 

section 110(k)(6), not section 107(d)(3). 

The District is correct that, in our 

proposed rule, we identified restrictions 

in state law and District rules regarding 

the availability of ERCs for use to 

comply with the emissions offset 

requirement for new or modified major 

sources on Morongo lands as one of the 

adverse regulatory consequences for the 

Tribe of our 2003 final action that 

persuaded us to propose the error 

correction. However, the availability of 

ERCs was not the only adverse 

regulatory effect of our 2003 action. We 

recognized that the primary adverse 

regulatory effect was the lowering of the 

applicable VOC and NOX major source 

threshold from 25 tons per year to 10 

tons per year that resulted from the 2003 

transfer of the Banning Pass (including 

the Morongo Reservation) from the 

Southeast Desert ‘‘severe’’ ozone 

nonattainment area to the South Coast 

‘‘extreme’’ ozone nonattainment area. 

See 78 FR 51, at 54–55. The lower 

threshold meant that more new or 

modified sources proposed on Morongo 

lands would be considered ‘‘major’’ and 

thus subject to the emissions offset 

requirement in the first instance. Based 

on our understanding of the state and 

District restrictions on the use of 

emission reduction credits, we believed 

at the time of the proposed rule that the 

adverse regulatory effect of lowering the 

threshold was exacerbated by the 

uncertainty associated with the 

availability of ERCs generated outside of 

the Morongo Reservation to offset 

emissions of new or modified sources 

on the Morongo Reservation. 

We appreciate the District’s 

clarification of state law and District 

rules regarding inter-district and interbasin transfer of ERCs. Based on the 

District’s clarification, we now 

understand that under state law and 

District rules governing inter-district or 

inter-basin transfer of ERCs, the 

meaning of ‘‘District’’ is geographic in 

nature and not jurisdictional, and thus, 

sources on Morongo lands are 

considered within the ‘‘District’’ for the 

purposes of using ERCs to meet the 

emissions offset requirement although 

such sources are not subject to District 

jurisdiction and thus may purchase and 

use ERCs generated anywhere in the 

South Coast without prior approval 

from the State or District. 

In light of SCAQMD’s interpretation 

of state and District law, we no longer 

find that such law presents an obstacle 

to permitting of new or modified 

stationary sources on the Morongo 

Reservation. While ERCs may be 

available for such sources in the same 

manner as they are for sources in the 

South Coast outside of the Morongo 

Reservation, the more fundamental, 

adverse consequence of lowering the 

major source threshold from 25 tons per 

year to 10 tons per year remains a 

sufficient adverse consequence in and of 

itself to persuade us to take final action 

to correct our 2003 final action as it 

pertains to the one-hour ozone standard 

and as it pertains to the Morongo 

Reservation. 

SCAQMD Comment #2: EPA’s current 

proposal is to separate the Morongo 

Reservation, which is currently within 

the South Coast Air Basin, as its own air 

quality planning area and to classify the 

area as ‘‘severe-17’’ for the one-hour and 

1997 eight-hour ozone NAAQS. EPA 

should retain the Morongo Reservation 

in the South Coast Air Basin in 

accordance with EPA’s rationale for 

approving California’s request to revise 

the basin so that the Banning Pass— 

including Morongo—was included in 

the South Coast Air Basin. Now, as then, 

the Banning Pass—including Morongo— 

belongs in the South Coast Air Basin 

from an air quality perspective. 

EPA Response to SCAQMD Comment 

#2: Our proposed rule includes two 

types of actions: an error correction and 

boundary revisions. The first action, 

under CAA section 110(k)(6), would 

correct the error by rescinding our 2003 

boundary change action with respect to 

the Morongo Reservation and would 

thereby separate the Morongo 

Reservation from the South Coast and 

return the reservation back to the 

Southeast Desert ozone nonattainment 

area within which the reservation was 

located prior to EPA’s 2003 action, but 

would not establish a separate Morongo 

ozone nonattainment area. The second 

type of action, under CAA section 

107(d)(3) and CAA sections 

107(d)(3)(A)–(C), 301(a) and 301(d), 

would establish a separate Morongo 

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

NAAQS. Because we are finalizing both 

actions at the same time, the Morongo 

Reservation will not move back to the 

Southeast Desert nonattainment area but 

will instead become its own 

nonattainment area for the one-hour and 

1997 eight-hour ozone standards. 

With respect to our error correction 

action, the District accurately cites 

EPA’s rationale for approving 

California’s request to revise the 

boundaries to transfer the Banning Pass 

from the Southeast Desert to the South 

Coast in 2003: ‘‘We believe that Banning 

is more similar to the South Coast than 

the Coachella area, and that it would 

support efficient planning and control 

to move the federal boundary of the 

South Coast Air Basin eastward to 

encompass the Banning Pass area.’’ 68 

FR 48848, at 48850 (August 15, 2003). 

In our proposed rule, we explain that 

we do not find that we erred in 2003 in 

reviewing the State’s request for a 

boundary revision, but we failed to 

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58192 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

11As noted above, Tribes are sovereign entities, 

and not political subdivisions of States. Typically, 

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. With respect to 

the Morongo Reservation, EPA or the Tribe is the 

appropriate entity to initiate boundary changes, and 

in this instance, the Tribe initiated the boundary 

change through a request to EPA. 

recognize that, to the extent that our 

2003 action affected Indian country, our 

action involved more than a response to 

a State request under CAA section 

107(d)(3)(D).11 It also involved an EPAinitiated boundary change action under 

sections 107(d)(3)(A)–(C), section 

301(a), and 301(d)(4) because the State 

is not approved to administer CAA 

programs in Indian country. 78 FR 51, 

at 54. Our proposed rule also explains 

how evaluation of the same criteria used 

to approve the State’s request would 

have differed for Indian country. Id. For 

instance, ‘‘planning and control 

considerations’’ while seamless from the 

standpoint of District jurisdiction over 

sources on state lands, would have 

differed for the Morongo Reservation 

because, at that time, EPA had not 

established a nonattainment NSR 

program for Morongo under which to 

review the greater number of new or 

modified sources deemed ‘‘major’’ by 

virtue of the boundary change. 

In effect, through its 2003 boundary 

change request, the State of California 

was voluntarily seeking to expand the 

geographic boundary of the area (the 

South Coast) subject to the most 

stringent requirements under the CAA. 

While EPA would have little reason to 

disapprove such a state request, there is 

also little reason for EPA to force Indian 

country located in that geographic area 

to be consistent with the State’s 

voluntary request. 

With respect to our proposed action to 

establish a separate Morongo ozone 

nonattainment area, we are not applying 

the same criteria that we used to 

evaluate the State’s boundary change 

request, but rather are applying the 

criteria set forth in our Tribal 

Designations Policy. See pages 55 and 

56 of our proposed rule. As described in 

greater detail in our proposed rule, we 

observe that the Morongo Reservation 

experiences transitional conditions 

characteristic of a mountain pass area 

and that we could reasonably have 

included the Morongo Reservation in 

either the South Coast or the Southeast 

Desert or established a separate 

Morongo nonattainment area. Given that 

emissions associated with the Morongo 

Reservation are minimal, we believe 

that it is appropriate to assign particular 

weight to the jurisdictional boundaries 

factor and thus are taking final action 

today, consistent with our proposed 

action, to revise the boundaries of the 

South Coast and Southeast Desert 

nonattainment areas to designate the 

Morongo Reservation as a separate 

Morongo nonattainment area for the 

one-hour and 1997 eight-hour ozone 

standards. (The Morongo Reservation is 

already a separate nonattainment area 

for the 2008 ozone standard.) 

SCAQMD Comment #3: SCAQMD 

staff is concerned about the possible 

effects of separating and reclassifying 

the Morongo Reservation. EPA’s action 

can only be intended to facilitate the 

construction and operation of new or 

expanded major sources on Morongo 

lands. As the Banning Pass is directly 

upwind of the Coachella Valley, any 

significant new emissions on Morongo 

lands could adversely affect the 

Coachella Valley and its ability to 

maintain attainment of the ozone 

standard. EPA should analyze the air 

quality impacts of the proposed action 

on the Coachella Valley. 

Response to SCAQMD Comment #3: 

With respect to nonattainment New 

Source Review (NSR), the effect of our 

actions today will be an increase in the 

major source threshold for ozone 

precursors, i.e., VOC and NOX, from 10 

and 25 tons per year, for new or 

modified stationary sources proposed 

for construction and operation on the 

Morongo Reservation. As such, new or 

modified stationary sources to be 

located at the Morongo Reservation with 

potentials to emit (PTE) from 10 to 25 

tons per year of VOC or NOX will not 

be subject to the major source 

requirements to meet the lowest 

achievable emission rate (LAER) and to 

offset emissions increases. Conversely, 

with or without our actions today, such 

sources with PTE 25 tons per year or 

more of VOC or NOX will continue to 

be subject to major source NSR, i.e., 

subject to both the LAER and offset 

requirements. Likewise, the regulatory 

requirements for sources with PTE less 

than 10 tons per year of VOC or NOX

will also remain the same. 

Thus, SCAQMD is correct that the 

proposed actions will facilitate 

construction and operation of new or 

modified stationary sources on the 

Morongo Reservation with PTE from 10 

to 25 tons per year of VOC or NOX to 

the extent that such sources will not be 

subject to the LAER and emissions offset 

requirements that otherwise would have 

applied to such sources if EPA were not 

to finalize today’s actions. Such sources 

could be constructed and operated at 

the Morongo Reservation with or 

without today’s actions, but the costs 

associated with construction and 

operation would be less if the source is 

not required to meet the LAER and 

emissions offset requirements. 

To gain perspective on the potential 

downwind effects of one or more new 

or modified stationary sources with PTE 

from 10 to 25 tons per year of VOC or 

NOX on the Morongo Reservation, it is 

useful to compare the emissions 

generated within the South Coast and 

Coachella Valley with those generated 

by sources associated with the Morongo 

Reservation under existing conditions, 

as shown in the following table. 

COMPARISON OF EMISSIONS ASSOCIATED WITH SOUTH COAST, COACHELLA VALLEY, AND MORONGO RESERVATION

UNDER EXISTING CONDITIONS

Emissions (tons per day) 

South Coast a Coachella Valley b Morongo reservation c

Pollutant 

Stationary 

sources Total Stationary sources Total Stationary sources Total 

VOC ............................................................................................. 257 593 2.0 17.7 0.058 0.54 

NOX .............................................................................................. 92 758 0.7 45.2 0.066 3.05 

aEmissions estimates are for year 2008 as presented in table 3–1A (page 3–15) of the SCAQMD’s Final 2012 Air Quality Management Plan, 

December 2012. bEmissions estimates are for year 2008 as presented for the Salton Sea Air Basin portion of Riverside County in CARB’s Almanac, Emission 

Projections Data, as published on CARB’s Web site. 

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Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 58193 

cThe source for emissions estimates from sources associated with the Morongo Reservation is table 1 (page 13) of the attachment to a letter 

from Robert Martin, Chairman, Morongo Band of Mission Indians, to Deborah Jordan, Director, Air Division, EPA Region IX, dated May 29, 2009. 

These data reflect 2006 emissions, the most current year of emissions inventoried by the Morongo. We have no reason to expect that 2008 

emissions associated with the Morongo Reservation would be significantly different than those estimated for 2006, and thus, we believe that the 

emissions estimates for the Morongo Reservation provide a reasonable basis for comparison with the regional emissions estimates prepared for 

2008. Based on the Morongo emissions inventory, on-road mobile sources account for approximately 85% to 90% of total Morongo-related emissions of VOC and NOX. Stationary sources associated with the reservation account for approximately 2% to 11% of the total with the balance 

emitted by area sources. 

As shown in the above table, total 

emissions associated with the Morongo 

Reservation comprise 0.09% and 0.4% 

of the VOC and NOX emissions, 

respectively, associated with all sources 

within the South Coast. The effect of 

today’s actions relate to the stationary 

source fraction of Morongo’s emissions, 

which amount to 0.058 and 0.066 tons 

per day of VOC and NOX, respectively 

(or 21 and 24 tons per year of VOC and 

NOX, respectively), and which comprise 

only 0.01% and 0.009% of the VOC and 

NOX emissions, respectively, within the 

South Coast. Clearly, one or even 

several new or modified stationary 

sources within the 10 to 25 tons per year 

range would have minimal or no effect 

on Coachella Valley when compared to 

the overall pollutant burden passing 

through the Banning Pass from the 

South Coast to Coachella Valley. Any 

new or modified stationary source on 

the Morongo Reservation with a PTE 

large enough to impact Coachella Valley 

would almost certainly be subject to 

major source NSR and thereby subject to 

the LAER and emission offset 

requirements that would avoid such an 

impact. 

SCAQMD Comment #4: We are 

concerned that EPA’s actions would 

create an uneven playing field between 

sources located within the Morongo 

boundaries and similar nearby sources 

in the South Coast Air Basin, including 

the remainder of the Banning Pass. 

Indeed, sources locating on Morongo 

lands would also have an unfair 

advantage over sources in the adjacent 

Coachella Valley, because under 

SCAQMD rules even minor sources of 

most pollutants must obtain offsets, and 

these rules apply within the Coachella 

Valley. Moreover, major sources in both 

areas are subject to SCAQMD’s BACT 

requirement, which is at least as 

stringent as federal LAER. While minor 

sources are subject to potentially less 

stringent BACT, and the minor source 

threshold in Coachella Valley is 25 tons 

per year, SCAQMD’s BACT Guidelines 

for minor sources are generally the most 

stringent in the nation and are 

distinguished from the BACT for major 

sources only in that economic and 

technical feasibility may be considered. 

In short, new and modified stationary 

sources on either side of the Banning 

Pass, as well as in the remainder of the 

Banning Pass, will be subject to more 

stringent standards than sources seeking 

to locate on Morongo lands. We are 

concerned that EPA’s proposed action 

will create a ‘‘pollution island’’ within 

the Morongo area. Our concern is based 

on real and substantial experiences in 

which facilities located on Tribal lands 

have created problems in the adjacent 

communities. For example, EPA and 

SCAQMD have taken enforcement 

action against facilities located on 

Cabazon Tribal land near the city of 

Mecca in southeastern Riverside 

County. 

Response to SCAQMD Comment #4: 

EPA notes that, with or without today’s 

action, new or modified sources on the 

Morongo Reservation are subject to the 

requirements of EPA’s Indian country 

NSR rule codified in CFR, Title 40, part 

49 (76 FR 38748, July 1, 2011), which 

are in some respects less stringent than 

the corresponding requirements under 

SCAQMD’s NSR rules that apply 

outside Indian country in both the 

South Coast and Coachella Valley. 

Specifically, under EPA’s Indian 

country NSR rule, emissions offsets are 

not required for new or modified minor 

sources. However, with respect to 

control technology requirements, while 

the Indian country NSR rule does not 

require new or modified minor sources 

to meet BACT or LAER level of control, 

the rule does require EPA (or the Indian 

Tribe in cases where a Tribal agency is 

assisting EPA with administration of the 

program through a delegation) to 

conduct a case-by-case control 

technology review to determine the 

appropriate level of control, if any, 

necessary to assure that the NAAQS are 

achieved, as well as the corresponding 

emission limitations for the affected 

emission units at the new or modified 

source. See 40 CFR 49.154(c). In 

carrying out this determination, among 

other considerations, EPA takes into 

account ‘‘[t]ypical control technology or 

other emission reduction measures used 

by similar sources in surrounding 

areas.’’ 40 CFR 49.154(c)(1)(ii). Thus, 

the corresponding control technology 

requirements (i.e., minor source 

‘‘BACT’’) that SCAQMD applies to 

minor sources subject to its authority 

would inform EPA’s determination 

regarding control technology 

requirements and associated emission 

limitations for new or modified minor 

stationary sources on the Morongo 

Reservation. 

Nonetheless, we recognize that our 

actions today will broaden the 

differences in NSR requirements in that 

new or modified sources on the 

Morongo Reservation with PTE between 

10 and 25 tons per year of VOC or NOX

will no longer be subject to LAER and 

emissions offset requirement that 

otherwise would have applied. We do 

not, however, foresee our actions as 

resulting in the ‘‘pollution island’’ effect 

about which SCAQMD is concerned. 

First, our actions today simply restore 

the major source threshold that had 

applied within the Morongo Reservation 

before our 2003 approval of California’s 

boundary change. The only difference 

between the regulatory context during 

the pre-2003 period and the context that 

will exist upon the effective date of 

today’s action is that new or modified 

stationary sources in the Banning Pass 

subject to SCAQMD jurisdiction with 

PTE between 10 and 25 are now subject 

to major source ‘‘BACT,’’ which differs 

from minor source ‘‘BACT’’ under 

SCAQMD’s NSR rules, as explained by 

SCAQMD above, whereas such sources 

were subject to minor source ‘‘BACT’’ 

prior to our approval of California’s 

boundary change request in 2003. We 

have no evidence that the Morongo 

Reservation was a ‘‘pollution island’’ 

during the pre-2003 period when the 

higher threshold applied, and the subtle 

differences between then and now 

described above with respect to minor 

source BACT and major source BACT 

under SCAQMD rules argues against the 

possibility that the Morongo Reservation 

will become a ‘‘pollution island’’ as a 

result of our actions today. It is 

important to note that, even with our 

actions today, the applicable NSR 

requirements within the Morongo 

Reservation (at a 25 tons per year major 

source threshold) would continue to be 

among the most stringent in the nation 

in keeping with today’s classification of 

the Morongo Reservation as a separate 

‘‘severe’’ nonattainment area for the 

one-hour and 1997 ozone standards. 

SCAQMD Comment #5: EPA may not 

have adequate enforcement resources to 

ensure ongoing compliance on Tribal 

lands, even if the rules are equally 

stringent. For example, examination of 

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58194 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

12To the extent that SCAQMD cites infrequent 

inspections at the Colmac Energy facility as an 

example of inadequate EPA enforcement resources, 

EPA notes that since 1989, under a monitoring and 

enforcement agreement to which SCAQMD, EPA, 

and the Cabazon Band of Mission Indians are 

signatories, SCAQMD has been allowed entry onto 

the Cabazon Reservation to monitor and inspect the 

Colmac Energy facility, and thus the frequency of 

EPA inspections cited by SCAQMD bears little 

relation to the extent of compliance oversight for 

the Colmac facility. 

the available information indicates that 

the Colmac Energy facility, which is 

identified as a major source under 

RCRA, was last inspected nearly 10 

years ago. Tribes themselves also may 

not have adequate resources to ensure 

compliance. For example, in the mid2000’s, the Torrez-Martinez reservation 

was identified as home to at least 20 

illegal dumps. Health hazards were 

created as a result of some of the dump 

material catching fire. EPA, the federal 

courts, the SCAQMD, the Tribe, and 

other organizations were all involved in 

attempting to resolve these issues. 

Response to SCAQMD Comment #5: 

EPA’s compliance and enforcement 

program extends to sources subject to 

EPA permitting jurisdiction, and to 

oversight of sources subject to the 

permitting jurisdiction of states, air 

districts, and tribes (where tribes have 

authority to issue such permits). The 

hypothetical prospect of new or 

modified stationary sources at the 

Morongo Reservation, whether 

permitted by EPA or by the Morongo 

Tribe (if and when the Tribe is 

authorized to issue such permits), will 

have essentially no effect on the scope 

of EPA’s nationwide compliance and 

enforcement program and thus 

essentially no effect on the resources 

needed to adequately meet the demands 

of that program. Moreover, facility 

inspections, while important, represent 

just one method for acquiring 

information in connection with 

compliance and enforcement.12

Information requests under CAA section 

114, for example, represent another 

method. Lastly, EPA does not believe 

that compliance issues that have arisen 

in the past with one tribe in any way 

portend compliance issues that may 

arise in the future with another tribe any 

more than one state’s past actions 

portend future actions taken by other 

states. 

SCAQMD Comment #6: We are 

concerned about the potential 

precedential effect of this decision. 

Response to SCAQMD Comment #6: 

In this action, we are determining that 

our 2003 approval of California’s 

request to shift the boundary between 

the South Coast and Southeast Desert 

eastward and thereby include the 

Banning Pass in the South Coast was in 

error as it pertains to Indian country in 

the Banning Pass, and because the 

Morongo Tribe is the only Tribe with 

Indian country that was affected by the 

eastward shift of the boundary, the 

direct precedential effect of today’s 

actions is quite limited. More generally, 

though, our 2003 action approved a 

State’s request, in effect, to expand the 

area subject to more stringent CAA 

requirements and conversely to shrink 

the area subject to less stringent CAA 

requirements. We should have 

recognized at the time, but did not, that 

EPA, not the State, was changing the 

boundary with respect to Indian country 

located within the expansion area and 

thereby imposing the more stringent 

CAA requirements on Indian country as 

well. States rarely voluntarily request 

boundary changes that increase the 

stringency of requirements for their 

sources in the affected area, and thus, 

we have no reason to expect that similar 

circumstances culminating in our 2003 

action and setting the stage for today’s 

actions exist elsewhere with respect to 

California or other states and other 

tribes. Lastly, we note that we have 

previously established a number of 

separate tribal air quality planning 

areas, see, e.g., the separate listings for 

several tribes located within Arizona 

and California in 40 CFR 81.303 and 40 

CFR 81.305, respectively, (i.e., 

particularly for the 1997 and 2008 eighthour ozone standards), and thus, today’s 

action does not establish a new 

precedent but rather is consistent with 

previous actions. 

CVAG Comment #1: The creation of a 

separate air basin for the Tribe will 

result in a less stringent definition of a 

major source threshold for New Source 

Review and may result in a lesser level 

of air pollution controls as currently 

established through its designation in 

the South Coast Air Basin. This could 

potentially result in the creation of a 

‘‘magnet’’ for, and give an unfair 

advantage to, facilities locating at the 

Morongo Reservation relative to 

facilities in the adjacent areas under 

State jurisdiction. 

EPA Response to CVAG Comment #1: 

CVAG is correct that the effect of today’s 

actions will raise the applicable major 

source threshold for VOC and NOX from 

10 tons per year to 25 tons per year for 

new or modified stationary sources to be 

located on the Morongo Reservation. 

This means that a new or modified 

stationary source proposed on the 

Morongo Reservation after the effective 

date of today’s final actions with a PTE 

between 10 and 25 tons per year of VOC 

or NOX will not be subject to the same 

control technology (i.e., lowest 

achievable control technology) and 

emission offset requirements that would 

have applied if we did not finalize our 

actions. As such, the applicable 

requirements for new or modified 

stationary sources on the Morongo 

Reservation will return to those that 

applied before EPA’s 2003 approval of 

California’s boundary change request. 

The applicable minimum requirements 

for new or modified sources on the 

Morongo Reservation will also mirror 

those that apply in Coachella Valley 

with respect to LAER and offsets, which 

adjoins the new Morongo air quality 

planning area to the east, although we 

recognize that California has chosen to 

go beyond statutory and regulatory 

minimum requirements with respect to 

other NSR requirements in both the 

South Coast and Coachella Valley. We 

have no evidence to suggest that the 

Morongo Reservation was a ‘‘magnet’’ 

for new emissions sources prior to our 

2003 action to approve California 

boundary change request, when the less 

stringent major source threshold 

applied, nor do we have any reason to 

believe that the Reservation will become 

such a ‘‘magnet’’ as a result of EPA’s 

actions today that simply return the 

Morongo Reservation to the statutory 

and regulatory context that applied 

prior to EPA’s 2003 action. 

CVAG Comment #2: Back in January 

2011, CVAG sent a letter to EPA 

expressing concern regarding the 

Morongo Tribe’s request for a separate 

ozone nonattainment area. EPA staff 

agreed to keep CVAG and SCAQMD 

apprised of EPA’s actions on the Tribe’s 

request but did not follow-through. 

Instead, CVAG was informed of EPA’s 

January 2, 2013 proposed rule through 

another party. In May 2012, EPA 

designated the Morongo Reservation as 

a separate nonattainment area for the 

2008 ozone standard. EPA is using key 

findings from that decision as the basis 

for their current proposed action. This 

designation action was again done 

without notification to or consultation 

with CVAG or the SCAQMD, although 

the proposed rule at 78 FR 55 stated that 

this decision will be made ‘‘after all 

necessary consultation with the Tribe 

and, as appropriate, with the 

involvement of other affected entities.’’ 

In addition, in footnote 15 of the 

proposed rule, it states ‘‘EPA has 

consulted with the Tribe several times 

about this matter.’’ This dangerously 

‘‘paves the way’’ for the proposed action 

relative to the one hour and 1997 eight 

hour ozone standards. 

EPA Response to CVAG Comment #2: 

CVAG is correct that EPA has adopted 

the analysis and rationale relied upon 

by EPA in establishing the Morongo 

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13See page 8–10 of the 2003 South Coast Air 

Quality Management Plan, August 2003. EPA 

approved the 2003 Coachella Valley PM10 SIP on 

November 14, 2005 (70 FR 69081.) 

nonattainment area for the 2008 ozone 

standard in support of EPA’s proposal to 

revise the boundaries of the Southeast 

Desert (which includes Coachella 

Valley) and the South Coast to designate 

the Morongo Reservation as a separate 

nonattainment area for the one-hour and 

1997 eight-hour ozone standards. See 

pages 55 and 56 of the proposed rule. 

CVAG objects to EPA’s failure to 

notify or consult with CVAG about 

either the designations for the 2008 

ozone standard or the actions proposed 

by EPA on January 2, 2013. As to the 

designations for the 2008 ozone 

standard, the process is set forth in CAA 

section 107 and involves (1) notification 

by EPA to states of the requirement to 

submit recommendations of areas to be 

listed as nonattainment, attainment, or 

unclassifiable; (2) submittal to EPA of 

state recommendations; (3) review by 

EPA of the recommendations; and (4) 

notification by EPA to states of EPA’s 

intention to modify any state 

recommendation and provision of an 

opportunity to such state to demonstrate 

why such modification is inappropriate. 

EPA also provided a similar process for 

tribes to submit, and for EPA to review 

and modify, recommendations for their 

areas of Indian country. There is no 

requirement that EPA notify states 

concerning tribal recommendations 

related to Indian country or that EPA 

notify tribes of state recommendations 

related to lands under state jurisdiction. 

As to the proposed action to revise the 

boundaries of the Southeast Desert and 

South Coast to designate the Morongo 

Reservation as a separate nonattainment 

area for the one-hour and 1997 eighthour ozone standard, EPA 

acknowledges that it agreed to keep 

CVAG apprised of our action and failed 

to follow-through prior to proposing this 

action on January 2, 2013. While EPA 

regrets the oversight, we note that such 

notification, other than through 

publication of the proposed and final 

rule in the Federal Register, is not 

required for the type of action that we 

proposed. 

In its January 7, 2011 letter to EPA, 

CVAG raised two specific substantive 

concerns in connection with Morongo’s 

May 29, 2009 boundary change request: 

(1) inclusion of the Morongo 

Reservation in Coachella Valley, and 

resultant use of Morongo ozone 

monitoring data, could jeopardize 

Coachella Valley’s ability to meet the 

1997 eight-hour ozone standard by the 

applicable 2019 attainment date; and (2) 

inclusion of the Morongo Reservation in 

Coachella Valley would impact 

Coachella Valley’s ability to meet PM10

objectives and to continue to attain 

PM2.5 standards. EPA’s decision to 

designate the Morongo Tribe as a 

separate nonattainment area rather than 

move the Reservation back into 

Southeast Desert (which includes 

Coachella Valley) alleviates both 

specific substantive concerns raised by 

CVAG in its January 7, 2011 letter to 

EPA. Please see our Response to 

SCAQMD Comment #3, above, for 

additional analysis concerning potential 

impacts on Coachella Valley of today’s 

final actions. 

Lastly, with respect to CVAG’s 

cautionary note concerning EPA’s 

consultation with the Tribe in 

connection with this action, we simply 

note that our proposed action, in part, 

derives from a request by the Morongo 

Tribe to create a separate nonattainment 

ozone area for the Tribe, and thus, it is 

perfectly natural and appropriate that 

EPA consult with the Tribe about such 

a matter prior to proposing action. EPA 

would do no less for the State if 

responding to a state request. EPA notes 

that consultation with the Tribe is also 

consistent with the government-togovernment relationship between 

federally-recognized tribes and the 

federal government. 

CVAG Comment #3: The Coachella 

Valley is exposed to frequent gusty 

winds with the strongest and most 

persistent winds typically occurring 

immediately to the east of Banning Pass, 

which is noted as a wind power 

generation resource area. Given the 

geographic location of the reservation, 

to the Banning Pass and the Coachella 

Valley, the designation will most 

negatively impact the Coachella Valley’s 

air quality. Located in the Southeast 

Desert AQMA area, the Coachella Valley 

will still be required to meet the 

NAAQS whether we generate pollutants 

or they are transported to our area. 

EPA Response to CVAG Comment #3: 

As explained in detail in EPA Response 

to SCAQMD Comment #3, EPA does not 

foresee any impact to air quality in 

Coachella Valley as a result of EPA’s 

actions to rescind our 2003 final action, 

as it pertains to the Morongo 

Reservation, and to revise the 

boundaries of the Southeast Desert (in 

which Coachella Valley is located) and 

South Coast to designate the Morongo 

Reservation as a separate nonattainment 

area for the one-hour and 1997 eighthour ozone standards. Please see EPA 

Response to SCAQMD Comment #3, 

above. 

CVAG Comment #4: The Coachella 

Valley has spent decades and millions 

of dollars striving to achieve attainment 

for the PM10 NAAQS and we have been 

patiently awaiting redesignation of the 

valley for the federal PM10 standard. A 

separate air quality planning area may 

adversely impact our efforts. 

EPA Response to CVAG Comment #4: 

EPA’s actions affect designations and 

classifications for the one-hour and 

1997 eight-hour ozone standards. Our 

actions do not affect designations or 

classifications associated with any other 

NAAQS. Moreover, elevated PM10 levels 

in Coachella Valley, unlike the South 

Coast where PM10 exceedances are due 

primarily to PM10 precursor pollutants 

(derived from direct emissions of VOC, 

NOX and other precursors), are 

‘‘strongly tied to local fugitive dust 

problems.’’ 13 Thus, we have no reason 

to anticipate new or more frequent 

exceedances of the PM10 standard in the 

Coachella Valley due to the hypothetical 

increases in precursor VOC and NOX

emissions from construction and 

operation of new or modified stationary 

sources on Morongo lands with PTEs 

between 10 and 25 tons per year. 

CVAG Comment #5: In addition to the 

EPA’s proposed action, CVAG also does 

not want EPA to consider any reversal 

of its previous decision which moved 

the Morongo Reservation from the 

Southeast Desert AQMA to the South 

Coast Air Basin. Such a reversal would 

again adversely impact our efforts to 

attain our federal air quality standards. 

Since the Morongo Reservation 

experiences more severe ozone air 

quality than the Coachella Valley, it 

needs to stay in the South Coast Air 

Basin. Designations should not be made 

based on adverse regulatory 

consequences on the affected 

constituent. Rather, designations should 

be based on ambient air quality. 

EPA Response to CVAG Comment #5: 

In our proposed rule, we proposed to 

rescind the 2003 final action, as it 

pertains to the Morongo Reservation for 

the one-hour ozone standard, and to 

revise the boundaries of the Southeast 

Desert (Coachella Valley) and South 

Coast to designate the Morongo 

Reservation as a separate nonattainment 

area for the one-hour and 1997 eighthour ozone standards. Our actions 

would not affect the designations or 

classifications of state lands, nor would 

they relocate the Morongo Reservation 

back to the Southeast Desert where it 

had been located prior to our 2003 final 

action. Thus, the ambient ozone 

conditions experienced on the Morongo 

Reservation would not be relevant in 

determining whether the Coachella 

Valley attained, or failed to attain, the 

ozone standards because only data from 

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58196 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

14 In our proposed rule (footnote #8 at 78 FR 53), 

we indicated that 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 would withdraw our proposed action 

to reclassify the Morongo Reservation to ‘‘extreme’’ 

for the 1997 eight-hour ozone standard (74 FR 

43654, August 27, 2009). (In 2010, we deferred final 

reclassification with respect to the Morongo 

Reservation (and the Pechanga Reservation) when 

we took final action to reclassify the South Coast 

for the 1997 eight-hour ozone standard (75 FR 

24409, May 5, 2010).) Given today’s final action and 

consistent with our statement from the proposed 

rule, EPA is withdrawing our 2009 proposed 

reclassification action to the extent it relates to the 

Morongo Reservation in the Proposed Rules section 

of this Federal Register. 

monitors located within Coachella 

Valley would be used for that purpose. 

In terms of the Coachella Valley’s 

potential emissions impacts on Morongo 

lands, the predominantly westerly wind 

patterns place Coachella Valley 

downwind of Morongo lands and thus 

Coachella Valley sources do not 

significantly impact Morongo ozone air 

quality. For additional details, please 

see page 6 of the technical support 

document. With respect to the basis for 

our proposed error correction and 

proposed revision to the boundaries, 

please see EPA Response to SCAQMD 

Comment #1, above. 

CVAG Comment #6: EPA does not 

have sufficient resources to ensure 

ongoing compliance on Indian lands or 

adequate field enforcement staff to 

monitor any new air quality planning 

area. 

EPA Response to CVAG Comment #6: 

EPA’s compliance and enforcement 

program extends to sources subject to 

EPA permitting jurisdiction, and to 

oversight of sources subject to the 

permitting jurisdiction of states, air 

districts, and tribes (where tribes have 

authority to issue such permits). The 

hypothetical prospect of new or 

modified stationary sources at the 

Morongo Reservation, whether 

permitted by EPA or by the Morongo 

Tribe (if and when approved for such 

permits), will have essentially no effect 

on the scope of EPA’s nationwide 

compliance and enforcement program 

and thus essentially no effect on the 

resources needed to adequately meet the 

demands of that program. Moreover, 

CVAG provides no evidence that EPA 

resources are inadequate at the present 

time to address compliance or 

enforcement issues associated with 

emissions sources on the Morongo 

Reservation nor does CVAG explain 

how our proposed actions will result in 

an increase in compliance or 

enforcement costs to EPA. 

Private Citizen Comment #1: The 

private citizen expresses support for 

SCAQMD’s and CVAG’s comments on 

the proposed rule, and adds that the 

proposed air quality planning area 

would be small, would be dominated by 

a single entity that controls its own 

development process, and has major air 

quality impacts in all directions 

affecting large populations. Further, the 

private citizen speculates that, in 

contrast to the current proposal, an air 

quality planning area dominated by a 

single corporation, rather than a single 

Tribe, would never be proposed. 

EPA Response to Private Citizen 

Comment #1: Please see responses 

above to comments from SCAQMD and 

CVAG. With respect to the size of the 

proposed area and impacts to 

surrounding areas, the proposed rule 

takes into account the minimal amount 

of emissions associated with activities 

on the Morongo Reservation and 

corresponding minimal contribution to 

regional ozone violations and 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. 

See page 56 of the January 2, 2013 

proposed rule. Lastly, we find the 

analogy to a corporation to be 

inapposite due to the fact that Tribes, 

unlike corporations, are sovereign 

entities and therefore have inherent 

authority to control their own 

development process, much like states 

do. 

III. Final Action 

Under CAA section 110(k)(6), EPA is 

taking final action to correct an error in 

a 2003 final action that revised the 

boundaries between nonattainment 

areas in Southern California designated 

under the CAA for the one-hour ozone 

NAAQS. 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. Thus, EPA is rescinding the 

2003 final action, as it pertains to the 

Morongo Reservation for the one-hour 

ozone standard. This action does not 

affect the designations and 

classifications of state lands. 

Second, under CAA sections 

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

is taking final action to revise the 

boundaries of the Southeast Desert to 

designate the Morongo Reservation as a 

separate nonattainment area for the onehour ozone standard and to classify the 

Morongo Reservation as ‘‘Severe-17,’’ 

i.e., consistent with its prior 

classification when it was included in 

the Southeast Desert. 

Third, also under CAA sections 

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

is taking final 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 and to 

classify the Morongo Reservation as 

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

original classification when it was 

included in the South Coast.14

EPA is redesignating 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. 

As a result of these final actions, the 

boundaries of the Morongo 

nonattainment areas for the one-hour 

and 1997 eight-hour ozone standards 

will be the same as those for the 

Morongo nonattainment area for the 

2008 ozone standard. Lastly, as of the 

effective date of this action, new or 

modified stationary sources proposed 

for construction on the Morongo 

Reservation will 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. 

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 

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Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 58197 

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 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 action merely corrects an 

error in a previous rulemaking and 

redesignates certain air quality planning 

area boundaries, and thereby reinstates 

certain CAA designations and 

corresponding requirements to which 

the affected area had previously been 

subject. 

B. Paperwork Reduction Act 

This 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 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 rule will not impose any 

direct requirements on small entities. 

EPA is correcting an error in a previous 

rulemaking and redesignating certain air 

quality planning area boundaries, and 

thereby reinstating certain CAA 

designations and corresponding 

requirements to which the affected area 

had previously been subject. This action 

is intended to, among other purposes, 

facilitate and support the Morongo 

Tribe’s efforts to develop a tribal air 

permit program by re-instating, within 

the Morongo Reservation, the lessstringent New Source Review major 

source thresholds that had applied 

under the area’s previous ‘‘Severe-17’’ 

classification for the one-hour ozone 

standard and by aligning the boundaries 

for the Morongo nonattainment area for 

all three ozone NAAQS (i.e., the onehour, the 1997 eight-hour and the 2008 

ozone standards). 

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 

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 

rule imposes no enforceable duty on any 

state, local or tribal governments or the 

private sector. In any event, EPA has 

determined that this 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 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 

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58198 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ This 

action 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 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 action, EPA is 

responding to the Tribe’s 2009 boundary 

change request and is taking final 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. 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 rule is 

not subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

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

because it is not economically 

significant as defined in Executive 

Order 12866, and because the Agency 

does not have reason to believe the 

environmental health or safety risks 

addressed by this rule present a 

disproportionate risk to children. 

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 

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 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 

taking final action 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. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

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Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 58199 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

K. Petitions for Review of this Action 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by November 22, 

2013. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 81 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, National parks, Ozone, 

Wilderness areas. 

Dated: September 4, 2013. 

Jared Blumenfeld, 

Regional Administrator, 

Region IX. 

40 CFR part 81 is amended as follows: 

PART 81—DESIGNATION OF AREAS 

FOR AIR QUALITY PLANNING 

PURPOSES 

■ 1. The authority citation for part 81 

continues to read as follows: 

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

Subpart C—[AMENDED] 

■ 2. Section 81.305 is amended as 

follows: 

■ a. In the table for ‘‘California-Ozone 

(1-Hour Standard)’’ by revising the entry 

for ‘‘Los Angeles-South Coast Air Basin 

Area’’, by adding a new entry for 

‘‘Morongo Band of Mission Indians’’ 

before the ‘‘Monterey Bay Area’’ entry, 

and by adding footnotes 5 and 6; 

■ b. In the table for ‘‘California—1997 8- 

Hour Ozone NAAQS (Primary and 

Secondary)’’ by revising the entries for 

‘‘Los Angeles-South Coast Air Basin, 

CA’’, by adding a new entry for 

‘‘Morongo Band of Mission Indians’’ 

before the ‘‘Los Angeles and San 

Bernardino Counties (Western Mojave 

Desert), CA’’ entry, and by adding 

footnotes (d) and (e). 

The revisions and additions read as 

follows: 

§ 81.305 California. 

* * * * * 

CALIFORNIA—OZONE (1-HOUR STANDARD) 4

Designated area 

Designation Classification 

Date 1 Type Date 1 Type 

*******

Los Angeles-South Coast Air Basin Area 5 ............................................... 11/15/90 Nonattainment .. 11/15/90 Extreme. 

Los Angeles County (part) ................................................................. 11/15/90 Nonattainment .. 11/15/90 Extreme. 

That portion of Los Angeles County which lies south and west 

of a line described as follows: 

1. Beginning at the Los Angeles-San Bernardino County 

boundary and running west along the Township line common to Township 3 North and Township 2 North, San 

Bernardino Base and Meridian; 

2. then north along the range line common to Range 8 West 

and Range 9 West; 

3. then west along the Township line common to Township 4 

North and Township 3 North; 

4. then north along the range line common to Range 12 West 

and Range 13 West to the southeast corner of Section 12, 

Township 5 North and Range 13 West; 

5. then west along the south boundaries of Sections 12, 11, 

10, 9, 8, and 7, Township 5 North and Range 13 West to 

the boundary of the Angeles National Forest which is collinear with the range line common to Range 13 West and 

Range 14 West; 

6. then north and west along the Angeles National Forest 

boundary to the point of intersection with the Township line 

common to Township 7 North and Township 6 North (point 

is at the northwest corner of Section 4 in Township 6 North 

and Range 14 West); 

7. then west along the Township line common to Township 7 

North and Township 6 North; 

8. then north along the range line common to Range 15 West 

and Range 16 West to the southeast corner of Section 13, 

Township 7 North and Range 16 West; 

9. then along the south boundaries of Sections 13, 14, 15, 16, 

17, and 18, Township 7 North and Range 16 West; 

10. then north along the range line common to Range 16 West 

and Range 17 West to the north boundary of the Angeles 

National Forest (collinear with the Township line common to 

Township 8 North and Township 7 North); 

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58200 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

CALIFORNIA—OZONE (1-HOUR STANDARD) 4—Continued 

Designated area 

Designation Classification 

Date 1 Type Date 1 Type 

11. then west and north along the Angeles National Forest 

boundary to the point of intersection with the south boundary 

of the Rancho La Liebre Land Grant; 

12. then west and north along this land grant boundary to the 

Los Angeles-Kern County boundary. 

Orange County ................................................................................... 11/15/90 Nonattainment .. 11/15/90 Extreme. 

Riverside County (part) ...................................................................... 11/15/90 Nonattainment .. 11/15/90 Extreme. 

That portion of Riverside County which lies to the west of a 

line described as follows: 

1. Beginning at the Riverside-San Diego County boundary and 

running north along the range line common to Range 4 East 

and Range 3 East, San Bernardino Base and Meridian; 

2. then east along the Township line common to Township 8 

South and Township 7 South; 

3. then north along the range line common to Range 5 East 

and Range 4 East; 

4. then west along the Township line common to Township 6 

South and Township 7 South to the southwest corner of 

Section 34, Township 6 South, Range 4 East; 

5. then north along the west boundaries of Sections 34, 27, 

22, 15, 10, and 3, Township 6 South, Range 4 East; 

6. then west along the Township line common to Township 5 

South and Township 6 South; 

7. then north along the range line common to Range 4 East 

and Range 3 East; 

8. then west along the south boundaries of Sections 13, 14, 

15, 16, 17, and 18, Township 5 South, Range 3 East; 

9. then north along the range line common to Range 2 East 

and Range 3 East to the Riverside-San Bernardino County 

line. 

San Bernardino County (part) ............................................................ 11/15/90 Nonattainment .. 11/15/90 Extreme. 

That portion of San Bernardino County which lies south and 

west of a line described as follows: 

1. Beginning at the San Bernardino-Riverside County boundary 

and running north along the range line common to Range 3 

East and Range 2 East, San Bernardino Base and Meridian; 

2. then west along the Township line common to Township 3 

North and Township 2 North to the San Bernardino-Los Angeles County boundary. 

Morongo Band of Mission Indians 6 .......................................................... 11/15/90 Nonattainment .. 11/15/90 Severe-17. 

* * * * * * * 

1This date is October 18, 2000 unless otherwise noted. 

* * * * * * * 4The 1-hour ozone standard is revoked effective June 15, 2005 for all areas in California. The Monterey Bay, San Diego, and Santa BarbaraSanta Maria-Lompoc areas are maintenance areas for the 1-hour NAAQS for purposes of 40 CFR part 51, subpart X. 5Excludes Morongo Band of Mission Indians’ Indian country in Riverside County. 

6 Includes Indian country of the tribe listed in this table. Information pertaining to areas of Indian country in this table is intended for CAA planning purposes only and is not an EPA determination of Indian country status or any Indian country boundary. EPA lacks the authority to establish 

Indian country land status, and is making no determination of Indian country boundaries, in this table. 

* * * * * 

CALIFORNIA—1997 8-HOUR OZONE NAAQS (PRIMARY AND SECONDARY) 

Designated area 

Designation a Classification 

Date 1 Type Date 1 Type 

*******

Los Angeles—South Coast Air Basin, CA: d ..................................................................... .................... Nonattainment ...... (2) Subpart 2/Extreme. 

Los Angeles County (part) ......................................................................................... .................... Nonattainment ...... (2) Subpart 2/Extreme. 

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Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 58201 

CALIFORNIA—1997 8-HOUR OZONE NAAQS (PRIMARY AND SECONDARY)—Continued 

Designated area 

Designation a Classification 

Date 1 Type Date 1 Type 

That portion of Los Angeles County which lies south and west of a line described as follows: Beginning at the Los Angeles-San Bernardino County 

boundary and running west along the Township line common to Township 3 

North and Township 2 North, San Bernardino Base and Meridian; then 

north along the range line common to Range 8 West and Range 9 West; 

then west along the Township line common to Township 4 North and Township 3 North; then north along the range line common to Range 12 West 

and Range 13 West to the southeast corner of Section 12, Township 5 

North and Range 13 West; then west along the south boundaries of Sections 12, 11, 10, 9, 8, and 7, Township 5 North and Range 13 West to the 

boundary of the Angeles National Forest which is collinear with the range 

line common to Range 13 West and Range 14 West; then north and west 

along the Angeles National Forest boundary to the point of intersection with 

the Township line common to Township 7 North and Township 6 North 

(point is at the northwest corner of Section 4 in Township 6 North and 

Range 14 West); then west along the Township line common to Township 7 

North and Township 6 North; then north along the range line common to 

Range 15 West and Range 16 West to the southeast corner of Section 13, 

Township 7 North and Range 16 West; then along the south boundaries of 

Sections 13, 14, 15, 16, 17, and 18, Township 7 North and Range 16 West; 

then north along the range line common to Range 16 West and Range 17 

West to the north boundary of the Angeles National Forest (collinear with 

the Township line common to Township 8 North and Township 7 North); 

then west and north along the Angeles National Forest boundary to the 

point of intersection with the south boundary of the Rancho La Liebre Land 

Grant; then west and north along this land grant boundary to the Los Angeles-Kern County boundary. 

Orange County ........................................................................................................... .................... Nonattainment ...... (2) Subpart 2/Extreme. 

Riverside County (part) .............................................................................................. .................... Nonattainment ...... (2) Subpart 2/Extreme. 

That portion of Riverside County which lies to the west of a line described as 

follows: Beginning at the Riverside-San Diego County boundary and running north along the range line common to Range 4 East and Range 3 

East, San Bernardino Base and Meridian; then east along the Township 

line common to Township 8 South and Township 7 South; then north along 

the range line common to Range 5 East and Range 4 East; then west 

along the Township line common to Township 6 South and Township 7 

South to the southwest corner of Section 34, Township 6 South, Range 4 

East; then north along the west boundaries of Sections 34, 27, 22, 15, 10, 

and 3, Township 6 South, Range 4 East; then west along the Township line 

common to Township 5 South and Township 6 South; then north along the 

range line common to Range 4 East and Range 3 East; then west along 

the south boundaries of Sections 13, 14, 15, 16, 17, and 18, Township 5 

South, Range 3 East; then north along the range line common to Range 2 

East and Range 3 East; to the Riverside-San Bernardino County line. 

Pechanga Reservation c ...................................................................................... .................... Nonattainment ...... (2) Subpart 2/Severe-17. 

San Bernardino County (part) .................................................................................... .................... Nonattainment ...... (2) Subpart 2/Extreme. 

That portion of San Bernardino County which lies south and west of a line described as follows: Beginning at the San Bernardino-Riverside County 

boundary and running north along the range line common to Range 3 East 

and Range 2 East, San Bernardino Base and Meridian; then west along the 

Township line common to Township 3 North and Township 2 North to the 

San Bernardino-Los Angeles County boundary. 

Morongo Band of Mission Indians e ................................................................................... .................... Nonattainment ...... .................... Subpart 2/Severe-17. 

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

* * * * * * * cThe use of reservation boundaries for this designation is for purposes of CAA planning only and is not intended to be a federal determination of the exact boundaries of the reservations. Nor does the specific listing of the Tribes in this table confer, deny, or withdraw Federal recognition of any of the Tribes listed or not listed. dExcludes Morongo Band of Mission Indians’ Indian country in Riverside County. 

e Includes Indian country of the tribe listed in this table. Information pertaining to areas of Indian country in this table is intended for CAA planning purposes only 

and is not an EPA determination of Indian country status or any Indian country boundary. EPA lacks the authority to establish Indian country land status, and is making no determination of Indian country boundaries, in this table. 1This date is June 15, 2004, unless otherwise noted. 

2This date is June 4, 2010. 

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58202 Federal Register / Vol. 78, No. 184 / Monday, September 23, 2013 / Rules and Regulations 

* * * * * 

[FR Doc. 2013–22873 Filed 9–20–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

42 CFR Part 6 

RIN 0906–AA77 

Federal Tort Claims Act (FTCA) 

Medical Malpractice Program 

Regulations: Clarification of FTCA 

Coverage for Services Provided to 

Non-Health Center Patients 

AGENCY: Health Resources and Services 

Administration (HRSA), HHS. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

current regulatory text of the regulations 

for FTCA Coverage of Certain Grantees 

and Individuals with the key text and 

examples of activities that have been 

determined, consistent with provisions 

of the existing regulation, to be covered 

by the FTCA, as previously published in 

the September 25, 1995 Federal Register 

Notice (September 1995 Notice). 

Additionally, HRSA has added 

examples of services covered under the 

FTCA involving individual emergency 

care provided to a non-health center 

patient and updated the September 1995 

Notice immunization example to 

include events to immunize individuals 

against infectious illnesses. The 

amended regulation will supersede the 

September 1995 Notice. 

DATES: Effective Date: The amendments 

in this final rule are effective December 

23, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Suma Nair, Director, Office of Quality 

and Data, Bureau of Primary Health 

Care, Health Resources and Services 

Administration, U.S. Department of 

Health and Human Services, 5600 

Fishers Lane, Room 6A–55, Rockville, 

Maryland 20857; Phone: (301) 594– 

0818. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 224(a) of the Public Health 

Service (PHS) Act (42 U.S.C. 233(a)) 

provides that the remedy against the 

United States under the Federal Tort 

Claims Act (FTCA) for damage for 

personal injury, including death, 

resulting from the performance of 

medical, surgical, dental, or related 

functions by any commissioned officer 

or employee of the PHS while acting 

within the scope of his office or 

employment, shall be exclusive of any 

other related civil action or proceeding. 

The Federally Supported Health Centers 

Assistance Act of 1992 (Public Law 

102–501), as amended in 1995 

(FSHCAA) (42 U.S.C. 233(g)–(n)), 

provides that, subject to its provisions, 

certain entities receiving funds under 

section 330 of the PHS Act, as well as 

any officers, governing board members, 

employees, and certain contractors of 

these entities, may be deemed by the 

Secretary to be employees of the PHS for 

the purposes of this medical malpractice 

liability protection. 

A final rule implementing Public Law 

102–501 was published in the Federal 

Register (60 FR 22530) on May 8, 1995, 

and added a new part 6 to 42 CFR 

Chapter I, Subchapter A. This rule 

describes the eligible entities and the 

covered individuals who are or may be 

determined by the Secretary to be 

within the scope of the FTCA protection 

afforded by the Act. 

Section 6.6, also published in the May 

8, 1995 rule, describes acts and 

omissions that are covered by FSHCAA 

(covered activities or covered services). 

The language of subsection 6.6(d) 

matches the statutory criteria that may 

support a determination of coverage for 

services provided to individuals who 

are not patients of the covered entity. 

Subsection 6.6(e) provides examples 

of situations within the scope of 

subsection 6.6(d). Questions were 

raised, however, about the specific 

situations encompassed by 6.6(d) and 

6.6(e) and about the process for the 

Secretary to make the determinations 

provided by those subsections. In 

response, HRSA decided that it would 

be impractical and burdensome to 

require a separate application and 

determination of coverage for certain 

situations described in the examples set 

forth in 6.6(e), as further discussed in 

the September 1995 Notice (60 FR 

49417). For those situations, it was 

determined that the activities described 

in the September 1995 Notice are 

covered under 42 CFR 6.6(d) without 

the need for a separate application, so 

long as other requirements for coverage 

are met, such as a determination that the 

entity is a covered entity, a 

determination that the individual is a 

covered individual, and a determination 

that the acts or omissions by those 

individuals occur within the scope of 

employment. 

B. Notice of Proposed Rulemaking 

HRSA published a Notice of Proposed 

Rulemaking (NPRM) on February 28, 

2011. The NPRM proposed: 

(1) To replace the current regulatory 

text at 42 CFR 6.6(e) of the regulations 

at 42 CFR part 6 (‘‘FTCA Coverage of 

Certain Grantees and Individuals’’) with 

key text and examples of activities that 

have been determined, consistent with 

provisions of the existing regulation, to 

be covered by FTCA, as previously 

published in the September 1995 

Notice, in 42 CFR 6.6(e); 

(2) To update the ‘‘Immunization 

Campaign’’ example to clarify that this 

covered situation includes events to 

immunize individuals against infectious 

illnesses and does not limit coverage to 

childhood vaccinations; and 

(3) To add the following new example 

as subsection 6.6(e)(4) to set forth its 

determination of FTCA coverage for 

services rendered to non-health center 

patients in certain individual emergency 

situations. This addition is expected to 

provide assurance of FTCA coverage in 

these situations and encourage 

reciprocal assistance by non-health 

center clinicians for health center 

patients in similar emergencies. 

C. Comments in Response to the NPRM 

HRSA received comments from 12 

organizations and individuals in 

response to the NPRM. All of the 

comments submitted were in favor of 

the proposed rule. The major comments 

are summarized as follows: 

(1) Clarify whether health centers that 

participate in health fairs are covered: 

Several commentators requested that 

HRSA modify Paragraph 6.6(e)(1)(iii) to 

clarify that health centers that conduct 

or participate in health fairs are 

covered. 

(2) Clarify whether health centers that 

participate in immunization campaigns 

are covered: 

Several commentators requested that 

HRSA modify paragraph 6.6(e)(1)(iv), 

Immunization Campaigns, to clarify that 

health centers that conduct or 

participate in immunization campaigns 

are covered. 

(3) Amend the proposed new 

paragraph 6.6(e)(4), addressing 

individual emergency situations, by 

adding the term ‘‘urgent situations,’’ and 

the phrase, ‘‘as determined by the health 

center provider at the scene of the 

incident:’’ 

Several commentators requested that 

HRSA modify proposed paragraph 

6.6(e)(4) to include urgent situations 

and to more clearly define what would 

constitute an emergency or urgent 

situation. Additionally, commentators 

requested that the phrase, ‘‘as 

determined by the health center 

provider at the scene of the incident,’’ 

also be added to 6.6 (e)(4). 

(4) Clarify, define, and/or delete the 

term ‘‘after hours’’ in paragraph 

6.6(e)(3): 

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