13748 Federal Register / Vol. 62, No. 55 / Friday, March 21, 1997 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 71

[FRL–5800–3]

RIN 2060–AG90

Federal Operating Permits Program

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule; notice of

opportunity for public hearing.

SUMMARY: The EPA is proposing a new

approach for issuing Federal operating

permits to covered stationary sources in

Indian country, pursuant to title V of the

Clean Air Act as amended in 1990 (Act).

Consistent with EPA’s Indian Policy, the

Agency will protect air quality by

administering a Federal operating

permits program in areas lacking an

EPA-approved or adequately

administered Tribal operating permits

program. Implementation of today’s

proposal would benefit the environment

by assuring that the benefits of title V,

such as increased compliance and

resulting decreases in emissions, would

extend to every part of Indian country.

DATES: Comments. Comments on the

proposed regulations must be received

by EPA’s Air Docket on or before May

5, 1997.

Public Hearing. A public hearing is

scheduled for 10:00 a.m., on April 21,

1997, at the address listed under

ADDRESSES. Requests to present oral

testimony must be received by April 7,

1997, and the hearing may be canceled

if no speakers have requested time to

present their comments by that date.

Written comments in lieu of, or in

addition to, testimony are encouraged.

ADDRESSES: Comments. Comments

should be mailed (in duplicate if

possible) to: EPA Air Docket (Mail Code

6102), Attention: Docket Number A–93–

51, Room M–1500, Waterside Mall, 401

M Street, SW, Washington, DC 20460.

Public Hearing. The public hearing

will be held in the Waterside Mall

auditorium at the U.S. Environmental

Protection Agency, 401 M Street, SW,

Washington, DC 20460.

Persons interested in attending the

hearing or wishing to present oral

testimony should contact Ms. Pat Finch

in writing at the U.S. Environmental

Protection Agency, Office of Air Quality

Planning and Standards, Information

Transfer and Program Integration

Division, Mail Drop 12, Research

Triangle Park, North Carolina 27711.

Docket. Supporting information used

in developing the proposed rule is

contained in Docket Number A–93–51.

The docket is available for public

inspection and copying between 8:30

a.m. and 3:30 p.m. Monday through

Friday, at EPA’s Air Docket, Room M–

1500, Waterside Mall, 401 M Street, SW,

Washington, DC 20460. A reasonable fee

may be charged for copying.

FOR FURTHER INFORMATION CONTACT:

Candace Carraway (telephone 919–541–

3189), U.S. Environmental Protection

Agency, Office of Air Quality Planning

and Standards, Information Transfer

and Program Integration Division, Mail

Drop 12, Research Triangle Park, North

Carolina 27711.

SUPPLEMENTARY INFORMATION:

Comments. The EPA is unlikely to be

able to extend the public comment

period. Two paper copies of each set of

comments are requested. If possible,

comments should be sent in both paper

and computerized form. Comments

generated on computer should be sent

on an IBM-compatible diskette and

clearly labeled. Computer files created

with the WordPerfect 5.1 software

package should be sent as is. Files

created on other software packages

should be saved in an ‘‘unformatted’’

mode for easy retrieval into

WordPerfect. Comments should refer to

specific page numbers of today’s

proposal whenever possible.

Regulated entities. Entities potentially

regulated by this proposed action are

sources (1) That are located in Indian

country; and (2) that are major sources,

affected sources under title IV of the Act

(acid rain sources), solid waste

incineration units required to obtain a

permit under section 129 of the Act, and

those area sources subject to a standard

under section 111 or 112 of the Act

which have not been exempted or

deferred from title V permitting

requirements. Regulated categories and

entities include:

Category Examples of regulated entities

Industry located in Indian country ...................... Major sources under title I or section 112 of the Act; affected sources under title IV of the Act

(acid rain sources); solid waste incineration units required to obtain a permit under section

129 of the Act; area sources subject to standards under section 111 or 112 of the Act that

are not exempted or deferred from permitting requirements under title V.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this proposed action. This

table lists the types of entities that EPA

is now aware could potentially be

regulated by this action. Other types of

entities not listed in the table could also

be regulated. To determine whether

your facility is regulated by this action,

you should carefully examine the

applicability criteria in § 71.3(a) of the

rule, the definition of ‘‘Indian country’’

in § 71.2 of the rule, and § 71.4 of the

rule. If you have questions regarding the

applicability of this action to a

particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section or the EPA

Regional Office that is administering the

part 71 permit program for the State or

area in which the relevant source or

facility is located.

Outline. The contents of today’s

preamble are listed in the following

outline:

I. Background and Purpose

II. Proposal Summary

III. Federal Authority to Implement Title V in

Indian Country

IV. Proposed Changes to Regulatory Language

V. Administrative Requirements

A. Docket

B. Executive Order 12866

C. Regulatory Flexibility Act Compliance

D. Paperwork Reduction Act

E. Unfunded Mandates Reform Act

I. Background and Purpose

Title V of the Act as amended in 1990

(42 U.S.C. 7661 et seq.) requires that

EPA develop regulations that set

minimum standards for State operating

permits programs. Those regulations,

codified in part 70 of chapter I of title

40 of the Code of Federal Regulations,

were originally promulgated on July 21,

1992 (57 FR 32250). Title V also

requires that EPA promulgate,

administer, and enforce a Federal

operating permits program when a State

has defaulted on its obligation to submit

an approvable program within the

timeframe set by title V or on its

obligation to adequately administer and

enforce an EPA-approved program. On

April 27, 1995, EPA proposed

regulations (60 FR 20804) (hereinafter

‘‘1995 proposal’’) setting forth the

procedures and terms under which the

Agency will administer a Federal
Federal Register / Vol. 62, No. 55 / Friday, March 21, 1997 / Proposed Rules 13749

operating permit program in a State or

in areas over which States do not have

jurisdiction. The final rule was

published on July 1, 1996 (61 FR 34202)

and will be codified at 40 CFR part 71.

The regulations authorize EPA to issue

permits when a State, local, or Tribal

agency has not developed,

administered, or enforced an acceptable

permits program or has not issued

permits that comply with the applicable

requirements of the Act.

Indian Tribes are not required to

develop operating permits programs,

though EPA encourages Tribes to do so.

The EPA expects that most Tribes will

not develop title V operating permit

programs, in part due to the resources

required to develop a program and in

part because for some Tribes it will not

be practicable to develop a permits

program for relatively few sources.

Within Indian country, EPA believes it

is appropriate that EPA promulgate,

administer, and enforce a part 71

Federal operating permits program for

stationary sources until Tribes receive

approval to administer their own

operating permits programs.

In the 1995 proposal, EPA stated its

intention to implement part 71

programs to ensure coverage of Tribal

areas which EPA proposed to define as

‘‘those lands over which an Indian Tribe

has authority under the Clean Air Act to

regulate air quality.’’ The final part 71

rule did not include provisions relating

to the boundaries of part 71 programs in

Tribal areas, pending resolution of

jurisdictional issues involving Tribes

and States that were raised in a

proposed rule that specified provisions

of the Act for which EPA believes it is

appropriate to treat Indian Tribes in the

same manner as States, pursuant to

section 301(d)(2). See 59 FR 43956

(August 25, 1994) (‘‘Indian Tribes: Air

Quality Planning and Management,’’

hereinafter ‘‘proposed Tribal authority

rule’’).

The EPA now believes that the 1995

proposal’s definition of ‘‘Tribal area,’’

that is to say, the Indian lands where

EPA would exercise authority to

implement a Federal permit program,

was inappropriate. The proposal was

based on the interpretation of Tribal

jurisdiction under the Act in the

proposed Tribal authority rule. The

approach of the 1995 proposal would

have required Tribes to establish their

jurisdiction over an area before EPA

could implement a Federal program for

the area. While in many cases this

would not present a problem, EPA

believes it is more consistent with the

Act that EPA administer part 71

programs for all areas of Indian country

without requiring any jurisdictional

showing on the part of the Tribe.

Furthermore, in proposing that EPA

implement part 71 throughout Indian

country, today’s notice is consistent

with the Agency’s Indian Policy, which

provides that EPA generally will

administer environmental programs on

reservation lands until a Tribe assumes

regulatory responsibility. See, e.g.,

EPA’s 1984 Policy for the

Administration of Environmental

Programs on Indian Reservations,

reaffirmed by EPA Administrator

Browner in 1994.

II. Proposal Summary

The EPA’s approach for issuing

operating permits in Tribal areas

outlined in the April 1995 proposal was

modeled on the jurisdictional

provisions of the proposed Tribal

authority rule. In the proposed Tribal

authority rule, EPA proposed to

interpret the Act as granting to Tribes,

that are approved by EPA to administer

programs under the Act in the same

manner as States, authority over all air

resources within the exterior boundaries

of an Indian reservation. This would

enable Tribal-approved programs under

the Act to address conduct on all lands,

including non-Indian owned fee lands,

within the exterior boundaries of a

reservation. The proposed Tribal

authority rule would also authorize an

eligible Tribe to develop and implement

programs under the Act for offreservation lands that are determined to

be within a Tribe’s own authority to

regulate under relevant principles of

Federal Indian law, generally up to the

limits of Indian country, as defined at

18 U.S.C. 1151. The rationale for this

proposed interpretation of Tribal

jurisdiction to administer programs

under the Act is set out in detail in the

proposed Tribal authority rule. See 59

FR 43956, 43958–43961 (August 25,

1994).

In the 1995 proposal, EPA noted that

when EPA is acting in the place of a

Tribe under the Act, pursuant to Federal

implementation authority, the

responsibilities that would otherwise

fall to the Tribe would accrue instead to

EPA. Thus, under the 1995 proposal,

EPA would have authority to implement

a part 71 program for any lands within

the exterior boundaries of a reservation

and for any off-reservation land over

which a Tribe has demonstrated its own

authority under Federal Indian law.

Today’s notice makes it clear that EPA’s

implementation of part 71 programs in

Indian country is based on EPA’s

overarching authority to protect air

quality within Indian country, not

solely on its authority to act in the stead

of an Indian Tribe.

The 1995 proposal used the term

‘‘Tribal area’’ to refer to the areas over

which Tribes and EPA had jurisdiction.

One of the commenters on the 1995

proposal recommended that the

definition of ‘‘Tribal area’’ encompass

Indian country, as defined in 18 U.S.C.

1151, noting that this term is used in the

context of several other EPA

environmental programs. As provided

in 18 U.S.C. 1151:

[T]he term ‘‘Indian country,’’ as used in

this chapter, means (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.

Although a detailed analysis of the

cases that have interpreted this

definition is beyond the scope of this

notice, it should be noted that the

definition of Indian country would

encompass the land referred to in the

1995 proposal as ‘‘Tribal area,’’ but

would not require a jurisdictional

showing on the part of the Tribe. Indian

country includes all of the territory

within an Indian reservation (even land

owned by non-Indians) and incorporates

‘‘dependent Indian communities’’ and

allotments held in trust regardless of

whether they are located within a

recognized reservation.

Based on recent Supreme Court case

law, EPA has construed the term

‘‘reservation’’ to incorporate trust land

that has been validly set apart for use by

a Tribe, even though that land has not

been formally designated as a

‘‘reservation.’’ See 56 FR at 64881

(December 12, 1991); see also Oklahoma

Tax Commission v. Citizen Band

Potawatomi Indian Tribe of Oklahoma,

111 S.Ct. 905, 910 (1991). The EPA will

be guided by relevant case law in

interpreting the scope of ‘‘reservation’’

under the Act.

The 1995 proposal was designed to

authorize EPA to directly implement an

operating permits program where there

was a void in program coverage, thus

assuring program coverage coast to

coast. However, the proposal

inadvertently created a potential void in

coverage, in that it would authorize EPA

to administer an operating permits

program only where the Tribe had made

a jurisdictional showing. This raised the

possibility that neither EPA, the Tribe,

nor the State would be implementing an
13750 Federal Register / Vol. 62, No. 55 / Friday, March 21, 1997 / Proposed Rules

1The EPA’s interpretation of section 301(d) is

also supported by the legislative history—S.

Rep.101–228 (December 20, 1989), page 80 (noting

that section 301(d) of the Act authorizes EPA to

implement Act provisions throughout ‘‘Indian

country’’ where there is no tribal program).

operating permits program in a given

geographic area. The EPA believes that

to avoid this result, EPA should exercise

its authority throughout Indian country.

Thus, consistent with the Agency’s

Indian Policy, EPA will administer title

V programs within Indian country

unless a part 70 program has been given

full or interim approval. In addition,

EPA believes there is no reason to

impose on Tribes the burden of making

a jurisdictional showing prior to EPA

administering a Federal program. The

EPA solicits comment on this approach

to describing its exercise of authority to

issue operating permits under the

Federal operating permits program.

III. Federal Authority to Implement

Title V in Indian Country

Today, EPA is proposing to

implement the Federal title V operating

permit program throughout Indian

country. As discussed in the proposed

Tribal authority rule, EPA is authorized

to protect air quality by directly

implementing provisions of the Act

throughout Indian country (59 FR

43956, 43958–43960 (August 25, 1994)).

The EPA’s authority is based in part on

the general purpose of the Act, which is

national in scope. As stated in section

101(b)(1) of the Act, Congress intended

to ‘‘protect and enhance the quality of

the Nation’s air resources so as to

promote the public health and welfare

and the productive capacity of its

population’’ (emphasis added). It is

clear that Congress intended for the Act

to be a ‘‘general statute applying to all

persons to include Indians and their

property interests.’’ See Phillips

Petroleum Co. v. United States EPA, 803

F.2d 545, 553–558 (10th Cir. 1986)

(holding that the Safe Drinking Water

Act applied to Indian Tribes and lands

by virtue of being a nationally

applicable statute).

Section 301(a) of the Act delegates to

EPA broad authority to issue such

regulations as are necessary to carry out

the functions of the Act. Further, several

provisions of the Act call for Federal

issuance of a program where, for

example, a State fails to adopt a

program, adopts an inadequate program,

or fails to adequately implement a

required program. See, e.g., sections

110(c) and 502 (d), (e), (i) of the Act. It

follows that Congress intended that EPA

would similarly have broad legal

authority in instances when Tribes

choose not to develop a program, fail to

adopt an adequate program, or fail to

adequately implement an air program

authorized under section 301(d). In

addition, section 301(d)(4) of the Act

empowers the Administrator to directly

administer Act requirements so as to

achieve the appropriate purpose, where

Tribal implementation of those

requirements is inappropriate or

administratively infeasible. These

provisions of the Act evince

Congressional intent to authorize EPA to

directly implement programs under the

Act in Indian country until Tribes

submit approvable programs. 1

The EPA believes that under the Act,

Congress intended to allow eligible

Tribes to implement programs under the

Act generally up to the limits of Indian

country and to authorize EPA to

implement the Act in Indian country

where a Tribe does not have an

approved program. The Act authorizes

EPA to treat a Tribe in the same manner

as a State for the regulation of ‘‘air

resources within the exterior boundaries

of the reservation or other areas within

the tribe’s jurisdiction’’ (section

301(d)(2)(B) (emphasis added)). The

EPA believes that this statutory

provision, viewed within the overall

framework of the Act, reflects a

territorial view of Tribal jurisdiction

and authorizes a Tribal role for all air

resources within the exterior boundaries

of Indian reservations without

distinguishing among various categories

of on-reservation land. In the proposed

Tribal authority rule, EPA stated its

proposed interpretation that the Act

grants to Tribes approved by EPA to

administer programs under the Act in

the same manner as States authority

over all air resources within the exterior

boundaries of a reservation for such

programs (59 FR at 43958). In addition,

based on section 301(d)(2)(B) of the Act,

EPA proposed that a Tribe may also be

able to implement its air quality

programs on off-reservation lands which

are within its jurisdiction under Federal

Indian law, generally up to the limits of

‘‘Indian country,’’ as defined in 18

U.S.C. 1151; id. at 43960.

The EPA is proposing to interpret the

Act as generally authorizing EPA to

implement the title V program even in

areas of Indian country where a State

previously may have been able to

demonstrate jurisdiction. However, the

EPA will not administer and enforce a

part 71 program in Indian country when

an operating permits program for the

area which meets the requirements of

part 70 of this chapter has been granted

full or interim approval unless such

approval is later withdrawn. The EPA

believes that the provisions of the Act

discussed above evince a Congressional

preference that implementation of the

Act in Indian country be carried out by

either EPA or the Tribes. Even where a

State has asserted jurisdiction over an

area located in Indian country under

color of a statement of general

authorization in another Federal statute,

the Act would nonetheless generally

authorize EPA to implement a title V

program in such areas. See Adkins v.

Arnold, 235 U.S. 417, 420; 59 L. Ed. 294,

295; 35 S. Ct. 118 (1914) (noting that

‘‘later in time’’ statutes should take

precedence).

Today’s notice is consistent with

long-standing EPA policy that the

Agency will administer environmental

programs in Indian country until a Tribe

assumes regulatory responsibility. See,

e.g., EPA’s 1984 Policy for the

Administration of Environmental

Programs on Indian Reservations,

reaffirmed by EPA Administrator

Browner in 1994.

Where there is a dispute as to whether

a particular area is Indian country, EPA

will run the title V program in that area

until the dispute is satisfactorily

resolved. A Tribal or State government

that wishes to dispute whether an area

is or is not within Indian country

should submit to the appropriate

Regional Administrator sufficient

information that demonstrates to EPA’s

satisfaction that there is a dispute. The

EPA solicits comment on this approach.

IV. Proposed Changes to Regulatory

Language

The EPA today proposes to add a

definition of the term ‘‘Indian country’’

based on the term as defined in 18

U.S.C. 1151. The EPA notes that

although the definition of Indian

country appears in a criminal code, it

has been extended to civil judicial and

regulatory jurisdiction (DeCoteau v.

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

n. 2 (1975); 40 CFR 144.3).

In addition, EPA proposes to delete

the definition of ‘‘Tribal area’’ because

EPA believes it is more consistent with

other environmental regulations to

define EPA’s jurisdiction in terms of

‘‘Indian country.’’ The use of both terms

may create confusion as well.

Accordingly, EPA proposes to revise

several regulatory provisions that

include the term ‘‘Tribal area,’’

including the definition of ‘‘affected

State’’ in § 71.1, § 71.4(a), § 71.4(b),

§ 71.4(b)(2) through (b)(4), § 71.4(f),

§ 71.4(h)–(j), § 71.8(a), and § 71.8(d).

In addition, EPA proposes several

regulatory changes that result from the

new approach that are different than the

1995 proposal. Briefly summarized,

these changes include the following.

First, proposed § 71.4(b)(1) that referred

to Tribal assertion of jurisdiction would
Federal Register / Vol. 62, No. 55 / Friday, March 21, 1997 / Proposed Rules 13751

not be finalized and would be deleted

in its entirety since a Tribe’s assertion

of jurisdiction is not a relevant

consideration under today’s proposal.

Instead, proposed § 71.4(b) would

establish EPA’s authority to administer

the part 71 program within Indian

country irrespective of whether the

Tribe established its jurisdiction over

the area. Second, consistent with the

Agency’s policy with respect to

administering environmental programs

in Indian country, EPA would not

solicit comment on the boundaries of

the program through a rulemaking. See,

e.g., 40 CFR 144.3, 147.60(a) (EPA

administers Underground Injection

Control program on ‘‘Indian lands,’’

defined equivalent to ‘‘Indian country.’’

Rather, disputes over whether a specific

source was subject to the part 71

program would be resolved in the

context of permitting the source.

Therefore, provisions from the April

1995 proposal that would have required

EPA to notify appropriate governmental

entities of the proposed geographic

boundaries of the program are

inappropriate and will be withdrawn.

The EPA solicits comments on this

approach.

The EPA believes that most sources in

Indian country are located within

reservation boundaries and that these

sources should not find it difficult to

determine that they are subject to the

part 71 program. The Agency will rely

on boundaries as determined by the

Bureau of Indian Affairs which will

provide maps of reservations upon

request. The EPA recognizes that some

sources may be uncertain as to whether

they are located within Indian country.

Sources that are unsure of whether they

are located in Indian country should

consult the appropriate EPA Regional

office. Prior to the effective date of the

part 71 program in Indian country, the

EPA will undertake outreach efforts to

notify sources that they are subject to

the program, in much the same way as

States have notified sources that they

believed were subject to the part 70

program. However, EPA may fail to

identify some sources within Indian

country. Even as to those sources, EPA

reiterates that it is the source’s

responsibility to ascertain whether or

not it is subject to the part 71 program.

The Agency will publish in the

Federal Register a notice of the effective

date of the part 71 program in Indian

country as required by § 71.4(g), even

where the default effective date of

November 15, 1997 has not been

changed for a given area within Indian

country. The Agency solicits comments

on what additional information this

notice should contain that would be

helpful to sources.

The EPA solicits comments on

whether EPA should take additional

steps to provide notice to sources that

they are located in Indian country and,

if so, what those steps would be. At this

time, the Agency does not believe there

is value in publishing maps and

boundaries of reservations because the

Agency will rely on the boundaries

recognized by the Bureau of Indian

Affairs which are available upon request

from that Agency.

In addition, EPA is adding language to

clarify § 71.4(b). The EPA intended that

this section would not only authorize

early implementation of the part 71

program (in advance of the November

15, 1997 default effective date for the

program), but would also clarify that

EPA will administer the program unless

a part 70 program has been given full or

interim approval. Given that the 1995

proposed language is less than clear on

this point, the current proposal at

section 71.4 explains that EPA will

administer the program in Indian

country.

V. Administrative Requirements

A. Docket

The docket for this regulatory action

is A–93–51. All the documents

referenced in this preamble fall into one

of two categories. They are either

reference materials that are considered

to be generally available to the public,

or they are memoranda and reports

prepared specifically for this

rulemaking. Both types of documents

can be found in Docket Number A–93–

51.

B. Executive Order 12866

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

lead to a rule that may:

(1) Have an annual effect on the

economy of $100 million or more,

adversely and materially affecting 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 program or the rights and

obligation of recipients thereof;

(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.’’

Pursuant to the terms of Executive

Order 12866, it has been determined

that this proposed rule is not a

‘‘significant’’ regulatory action because

it does not raise any of the issues

associated with ‘‘significant’’ regulatory

actions. The proposal would have a

negligible effect on the economy and

would not create any inconsistencies

with other actions by other agencies,

alter any budgetary impacts, or raise any

novel legal or policy issues. This

proposal would affect EPA’s approach

to permitting sources in Indian country,

assuring that all title V sources located

in Indian country will be subject to title

V permitting requirements. For these

reasons, this action was not submitted

to OMB for review.

C. Regulatory Flexibility Act

Compliance

The Regulatory Flexibility Act (5

U.S.C. 601) requires EPA to consider

potential impacts of proposed

regulations on small entities. If a

preliminary analysis indicates that a

proposed regulation would have a

significant adverse economic impact on

a substantial number of small entities,

then a regulatory flexibility analysis

must be prepared.

The original part 70 rule and the

recently proposed revisions to part 70

were determined to not have a

significant adverse impact on a

substantial number of small entities. See

57 FR 32250, 32294 (July 21, 1992), and

60 FR 45530, 45563 (August 31, 1995).

Similarly, a regulatory flexibility

screening analysis of the part 71 rule

revealed that the rule would not have a

significant adverse impact on a

substantial number of small entities,

since few small entities would be

subject to part 71 permitting

requirements as a result of the rule’s

deferral of the requirement to obtain a

permit for nonmajor sources. See 61 FR

34202, 34227 (July 1, 1996).

The prior screening analyses for the

part 70 and part 71 rule was done on a

nationwide basis without regard to

whether sources were located within

Indian country and are, therefore,

applicable to sources in Indian country.

Accordingly, EPA believes that the

screening analyses are valid for

purposes of today’s proposal. And since

the screening analyses for the prior rules

found that the part 70 and 71 rules as

a whole would not have a significant

impact on a substantial number of small

entities, today’s rule, which may affect

a much smaller number of entities than
13752 Federal Register / Vol. 62, No. 55 / Friday, March 21, 1997 / Proposed Rules

affected by the earlier rules, also will

not have a significant impact on a

substantial number of small entities.

The reasons for this conclusion are

discussed in more detail below.

At this time, no nonmajor sources are

required by part 71 to obtain an

operating permit. The Agency has also

issued several policy memoranda

explaining or providing mechanisms for

sources to become ‘‘synthetic minors’’

whereby the source is recognized for not

emitting pollutants in major quantities.

The sources thereby avoid the

requirement to obtain a part 71 permit.

Because of the deferral of permitting

requirements for nonmajor sources,

today’s proposal would affect only a

small number of sources. Although firm

figures on the number of title V sources

in Indian country are not available,

preliminary estimates suggest that there

may be only approximately 100 major

sources, and 450 nonmajor sources (for

which permitting requirements would

be deferred).

Consequently, I hereby certify that

today’s proposed rule would not have a

significant impact on a substantial

number of small entities.

D. Paperwork Reduction Act

The Office of Management and Budget

(OMB) has approved the information

collection requirements currently

contained in the part 71 requirements

published July 1, 1996 (61 FR 34202)

under the provisions of the Paperwork

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

and has assigned OMB control number

2060–0336. The additional information

collection requirements in this proposed

rule have been submitted for approval to

the OMB. An Information Collection

Request (ICR) document has been

prepared by EPA (ICR No. 1713.03) and

a copy may be obtained from Sandy

Farmer, Regulatory Information

Division; U.S. Environmental Protection

Agency (2137); 401 M St., SW.,

Washington, DC 20460 or by calling

(202) 260–2740.

The information is planned to be

collected to enable EPA to carry out its

obligations under the Act to determine

which sources in Indian country are

subject to the Federal Operating Permits

Program and what requirements should

be included in permits for sources

subject to the program. Responses to the

collection of information will be

mandatory under § 71.5(a) which

requires owners or operators of sources

subject to the program to submit a

timely and complete permit application

and under §§ 71.6 (a) and (c) which

require that permits include

requirements related to recordkeeping

and reporting. As provided in 42 U.S.C.

7661(e), sources may assert a business

confidentiality claim for the information

collected under section 114(c) of the

Act.

Today’s proposal would impose

information collection request

requirements on approximately 100

sources in Indian country. On a per

source basis, the burden would be

identical to the burden for sources

currently subject to part 71

requirements. In the current Information

Collection Request (ICR) document for

the part 71 rule, EPA estimates that the

annual burden per source is 329 hours,

and the annual burden to the Federal

government is 243 hours per source.

Therefore, the impact of today’s

proposal would be that sources will

incur an additional 32,900 burden hours

per year, and EPA will incur an

additional 24,300 burden hours per

year. The total annualized cost would be

$18,425 per source or $1,842,500.

Today’s rule imposes no burden on

State and local agencies. Burden means

the total time, effort, or financial

resources expended by persons to

generate, maintain, retain, or disclose or

provide information to or for a Federal

agency. This includes the time needed

to review instructions; develop, acquire,

install, and utilize technology and

systems for the purposes of collecting,

validating, and verifying information;

processing and maintaining

information, and disclosing and

providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information. An Agency

may not conduct or sponsor, and a

person is not required to respond to, a

collection of information unless it

displays a currently valid OMB control

number. The OMB control numbers for

EPA’s regulations are listed in 40 CFR

part 9 and 48 CFR Chapter 15.

E. Unfunded Mandates Reform Act

Today’s action imposes no costs on

State, local, and Tribal governments. It

changes the Agency’s approach to

issuing permits to sources in Indian

country and eliminates the requirement

that Indian Tribes establish their

jurisdiction prior to EPA administering

the Federal operating permits program

in Indian country.

The EPA has estimated in the ICR

document that the Federal operating

permits program rule promulgated in

July 1996 would cost the private sector

$37.9 million per year. See 61 FR 34202,

34228 (July 1, 1996). In the ICR, EPA

estimates costs based on sources that

would be subject to part 71 permitting

requirements in eight States, but

overestimates the number of these

sources for purposes of simplifying the

analysis. See 61 FR 34202, 34227 (July

1, 1996). The overestimate of the

number of sources is nearly as large as

the number of new sources covered in

today’s proposal. Consequently, EPA

believes today’s proposal would

increase the direct cost of the part 71

rule for industry to $38.3 million. This

estimate is based on the average cost of

compliance per source and the number

of sources in Indian country that were

not accounted for in the original

estimate. The EPA has determined that

today’s action 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 1 year. Therefore, the Agency

concludes that it is not required by

section 202 of the Unfunded Mandates

Reform Act of 1995 to provide a written

statement to accompany this regulatory

action.

List of Subjects 40 CFR Part 71

Environmental protection, Operating

permits, Indian Tribes.

Dated: March 17, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is proposed to be

amended as set forth below.

PART 71—[AMENDED]

1. The authority citation for part 71

continues to read as follows:

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

Subpart A—[Amended]

2. Section 71.2 is proposed to be

amended by revising paragraphs (1) and

(2) of the definition of ‘‘Affected State’’

and by adding the definition of ‘‘Indian

country’’ as follows:

§ 71.2 Definitions.

* * * * *

Affected States are:

(1) All States and areas within Indian

country subject to a part 70 or part 71

program and that are contiguous to the

State or the area within Indian country

in which the permit, permit

modification, or permit renewal is being

proposed; or that are within 50 miles of

the permitted source. A Tribe shall be

treated in the same manner as a State

under this paragraph (1) only if EPA has
Federal Register / Vol. 62, No. 55 / Friday, March 21, 1997 / Proposed Rules 13753

determined that the Tribe is an eligible

Tribe.

(2) The State or area within Indian

country subject to a part 70 or part 71

program in which a part 71 permit,

permit modification, or permit renewal

is being proposed. A Tribe shall be

treated in the same manner as a State

under this paragraph (2) only if EPA has

determined that the Tribe is an eligible

Tribe.

* * * * *

Indian country means:

(1) 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;

(2) 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

(3) All Indian allotments, the Indian

titles to which have not been

extinguished, including rights-of-way

running through the same.

* * * * *

2. Section 71.4 is proposed to be

amended by revising paragraph (a)

introductory text, revising paragraph (b),

revising paragraph (f), revising

paragraph (h), revising paragraph (i)

introductory text, and revising the first

sentence of paragraph (j), to read as

follows:

§ 71.4 Program implementation.

(a) Part 71 programs for States. The

Administrator will administer and

enforce a full or partial operating

permits program for a State (excluding

Indian country) in the following

situations:

* * * * *

(b) Part 71 programs for Indian

country. By November 15, 1997, the

Administrator will administer and

enforce an operating permits program in

Indian country, as defined in § 71.2,

when an operating permits program for

the area which meets the requirements

of part 70 of this chapter has not been

granted full or interim approval by the

Administrator. The Administrator may

administer an operating permits

program in Indian country in advance of

that date.

(1) [Reserved].

(2) The effective date of a part 71

program in Indian country shall be

November 15, 1997.

(3) Notwithstanding paragraph (b)(2)

of this section, the Administrator, in

consultation with the governing body of

the affected Indian Tribe, may adopt an

earlier effective date.

(4) Notwithstanding paragraph (i)(2)

of this section, within 2 years of the

effective date of the part 71 program in

Indian country, the Administrator shall

take final action on permit applications

from part 71 sources that are submitted

within the first full year after the

effective date of the part 71 program.

* * * * *

(f) Use of selected provisions of this

part. The Administrator may utilize any

or all of the provisions of this part to

administer the permitting process for

individual sources or take action on

individual permits, or may adopt,

through rulemaking, portions of a State

or Tribal program in combination with

provisions of this part to administer a

Federal program for the State or in

Indian country in substitution of or

addition to the Federal program

otherwise required by this part.

* * * * *

(h) Effect of limited deficiency in the

State or Tribal program. The

Administrator may administer and

enforce a part 71 program in a State or

within Indian country even if only

limited deficiencies exist either in the

initial program submittal for a State or

eligible Tribe under part 70 of this

chapter or in an existing State or Tribal

program that has been approved under

part 70 of this chapter.

(i) Transition plan for initial permits

issuance. If a full or partial part 71

program becomes effective in a State or

within Indian country prior to the

issuance of part 70 permits to all part 70

sources under an existing program that

has been approved under part 70 of this

chapter, the Administrator shall take

final action on initial permit

applications for all part 71 sources in

accordance with the following transition

plan.

* * * * *

(j) Delegation of part 71 program. The

Administrator may promulgate a part 71

program in a State or Indian country

and delegate part of the responsibility

for administering the part 71 program to

the State or eligible Tribe in accordance

with the provisions of § 71.10; however,

delegation of a part of a program will

not constitute any type of approval of a

State or Tribal operating permits

program under part 70 of this chapter.

* * *

* * * * *

3. Section 71.8 is proposed to be

amended by revising the first sentence

of paragraph (a) and revising paragraph

(d) as follows:

§ 71.8 Affected State review.

(a) Notice of draft permits. When a

part 71 operating permits program

becomes effective in a State or within

Indian country, the permitting authority

shall provide notice of each draft permit

to any affected State, as defined in

§ 71.2 on or before the time that the

permitting authority provides this

notice to the public pursuant to § 71.7

or 71.11(d) except to the extent § 71.7(e)

(1) or (2) requires the timing of the

notice to be different. * * *

* * * * *

(d) Notice provided to Indian Tribes.

The permitting authority shall provide

notice of each draft permit to any

federally recognized Indian Tribe in an

area contiguous to the jurisdiction in

which the part 71 permit is proposed or

is within 50 miles of the permitted

source and whose air quality may be

affected by the permitting action.

[FR Doc. 97–7219 Filed 3–20–97; 8:45 am]

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