2011-10321. Clarifications to Indian Tribes' Clean Air Act Regulatory Requirements; Direct Final Amendments

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The EPA is taking direct final action to amend certain Clean Air Act regulations pertaining to Indian tribes. This action changes the title of the regulations titled, “Tribal Clean Air Act Authority” to the more accurate “Indian Country: Air Quality Planning and Management.” The action also reorganizes existing sections for better placement within the regulations.

DATES:

The direct final rule is effective on July 28, 2011 without further notice, unless EPA receives relevant adverse comments by May 31, 2011. If EPA receives relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the amendments in this rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2010-0293, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: Indian Country: Air Quality Planning and Management Docket, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies.
• Hand Delivery: EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2010-0293. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Do not submit information you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Indian Country: Air Quality Planning and Management Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the Air Docket is [phone].

FOR FURTHER INFORMATION CONTACT:

Darrel Harmon, Office of Air and Radiation (OAR/IO 6101A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: [phone], facsimile number [phone]; electronic mail (e-mail) address: [e-mail].

SUPPLEMENTARY INFORMATION:

The information presented in this preamble is organized as follows:

I. Why is EPA using a direct final rule?

II. What is the purpose of this action?

III. Why is this action needed?

IV. Where can I get a copy of this document?

V. What should I consider as I prepare my comments for EPA?

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

K. Congressional Review Act

I. Why is EPA using a direct final rule?

The EPA is publishing this direct final rule without a prior proposed rule because we view this as a non-controversial action and anticipate no adverse comments. This action does not make changes to any requirements; the action simply renames the existing 40 CFR Part 49 to more accurately reflect its purpose and relocates existing sections for better organization within the part. Any parties interested in commenting must do so at this time. Because this is an amendment of regulatory language through rulemaking, a redline version of the regulatory language has been created and has been placed in the docket. (http://www.regulations.gov,, see docket number EPA-HQ-OAR-2010-0293) to aid the public's ability to comment. For further information about commenting on the rule, see the ADDRESSES section of this document. If EPA receives adverse comments, we will publish a timely withdrawal in the Federal Register informing the public the amendments in this direct final rule will not take effect. We will address any comments received in a subsequent final rule based on the proposed rule.

II. What is the purpose of this action?

The purpose of this action is to (1) retitle 40 CFR Part 49 “Tribal Clean Air Act Authority” to the more accurate “Indian Country: Air Quality Planning and Management,” and (2) relocate three existing sections from Subpart A, which is intended to include only general tribal authority-related provisions, to Subpart L, which includes provisions specific to implementation plans for tribes located in EPA Region IX. The three sections that will be moved from 40 CFR part 49 subpart A to Subpart L are § 49.22 Federal Implementation Plan for Tri-cities Landfill, Salt River Pima-Maricopa Indian Community (will become § 49.5511), § 49.23 Federal Implementation Plan Provisions for Four Corners Power Plant, Navajo Nation (will become § 49.5512), and § 49.24 Federal Implementation Plan Provisions for Navajo Generating Station, Navajo Nation (will become § 49.5513). Sections 49.22, 49.23, and 49.24 will be reserved in the event new general tribal authority-related provisions are promulgated in the future.

III. Why is this action needed?

This rule is needed to provide regulatory clarity to Indian tribes. The change in the title of the part from “Tribal Clean Air Act Authority” to the more accurate “Indian Country: Air Quality Planning and Management” is needed because the current title suggests the part only includes requirements applicable to the granting of authority to tribes under the Clean Air Act. While the title was appropriate when Part 49 was originally promulgated, since then other regulations not relating to tribal authority have been added to the part such that the title is no longer broad enough to encompass the entire scope of these regulations. “Indian Country: Air Quality Planning and Management” is a broader, more accurate title which identifies the Part 49 regulations as relating more generally to the planning and management of air quality in Indian country. It has been long recognized by EPA Headquarters (HQ) and Regions the title did not fully illustrate the context of the rule and could be misread. For this reason, EPA HQ and Regions have an interest in changing the title to reduce any confusion. This change will also enable tribes to more easily recognize the Clean Air Act regulation that affects them.

The rule also moves sections 49.22, 49.23 and 49.24 out of Subpart A, which is intended to include provisions relating generally to tribal authority regardless of the EPA Region in which a tribe is located, to Subpart L, Implementation Plans for Tribes in Region IX, such that all implementation plan provisions that apply specifically to Region IX tribes are located together.

IV. Where can I get a copy of this document?

In addition to being available in the docket, an electronic copy of this final action will also be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following signature, a copy of this final action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: http://www.epa.gov/​ttn/​oarpg/​. The TTN provides information and technology exchange in various areas of air pollution control.

V. What should I consider as I prepare my comments for EPA?

Do not submit information containing CBI to EPA through http://www.regulations.gov or e-mail. Send or deliver information identified as CBI only to the following address: Roberto Morales, OAQPS Document Control Officer (C404-02), Office of Air Quality Planning and Standards, Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2010-0293. Clearly mark the part or all of the information you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under the Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

This action does not impose any new information collection burden. These amendments do not result in changes to the information collection requirements of the existing regulations and will have no impact on the information collection estimate of projected cost and hour burden made and approved by the Office of Management and Budget (OMB) during the development of the existing regulations. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (40 CFR Part 49) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control numbers (2060-0306 and 2060-0558). The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9. Therefore, the information collection requests have not been amended.

C. Regulatory Flexibility Act

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 the rule would 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 the purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's 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 this final rule on small entities, I certify this action will not have a significant economic impact on a substantial number of small entities. This rule will not impact small entities due to the fact these amendments simply rename the title and reorganize existing sections for better placement within the regulation. There are no substantive changes to the regulation. Small entities will not incur any adverse impacts as a result of this rule because this action does not create any new requirements or burdens. No costs are associated with these amendments.

D. Unfunded Mandates Reform Act

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 to the private sector in any one year. This direct final rule is not expected to impact state, local, or tribal governments. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act (UMRA).

This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. These amendments simply rename the title and move subparts to fit more appropriately in later subparts. There are no substantive changes to the regulation.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will 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. This direct final rule does not impose any requirements on state and local governments. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 6, 2000). These amendments do not impose requirements on tribal governments. This direct final action will not have tribal implications and we received no adverse comments when the proposed changes were presented to the National Tribal Air Association (NTAA) in March 2010. Tribes at the meeting supported these proposed changes; thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not have a substantive impact on existing regulations, and does not create any new requirements.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA), Public Law 104-113 (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. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

J. 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.

The EPA has determined this direct final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. These amendments simply rename the title and move subparts to fit more appropriately in later subparts. There are no substantive changes to the regulation.

K. 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 Congress and to the Comptroller General of the United States. The EPA will submit a report containing these amendments and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the amendments 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). This direct final rule will be effective on July 28, 2011.

List of Subjects in 40 CFR Part 49

• Environmental protection
• Air pollution
• Indians—lands
• Indians—tribal government

Dated: April 22, 2011.

Lisa P. Jackson,

Administrator.

For the reasons stated in the preamble, Title 40, Chapter I, Part 49 of the Code of Federal Regulations is amended as follows:

PART 49—[AMENDED]

1. The authority citation for Part 49 continues to read as follows:

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

PART 49—INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT

2. Revise the part heading for part 49 as set forth above. §§ 49.22-49.24 [Redesignated]

3. Redesignate § 49.22 in subpart A as § 49.5511 in subpart L.

4. Redesignate § 49.23 in subpart A as § 49.5512 in subpart L.

5. Redesignate § 49.24 in subpart A as § 49.5513 in subpart L.

6. Add and reserve new §§ 49.22-49.24 in subpart A.