[Federal Register Volume 59, Number 164 (Thursday, August 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20811]


[[Page Unknown]]

[Federal Register: August 25, 1994]


_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 35, 49, 50 and 81




Indian Tribes: Air Quality Planning and Management; Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 35, 49, 50, and 81

[OAR-FRL-5024-1]
RIN 2060-AE95

 
Indian Tribes: Air Quality Planning and Management

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Clean Air Act directs EPA to promulgate regulations 
specifying those provisions of the Act for which it is appropriate to 
treat Indian Tribes in the same manner as States. For those provisions 
specified, a Tribe may develop and implement one or more of its own air 
quality programs under the Act. This proposed rule sets forth the CAA 
provisions for which it is appropriate to treat Indian Tribes in the 
same manner as States, establishes the requirements that Indian Tribes 
must meet if they choose to seek such treatment, and provides for 
awards of Federal financial assistance to Tribes. EPA requests public 
comments on all aspects of today's proposal.

DATES: Comments on this proposed rule must be received on or before 
November 23, 1994.

ADDRESSES: Comments must be mailed (in duplicate, if possible) to the 
EPA Air Docket Office (6102), Attn: Air Docket No. A-93-3087, room 
M1500, 401 M St., SW., Washington, DC 20460. Copies of the comments and 
supporting documents, contained in Docket No. A-93-3087, are available 
for public inspection and review Monday through Friday from 8 a.m.--4 
p.m., except legal holidays. Starting October 1, 1994, dockets will be 
available for inspection from 8 a.m.--5:30 p.m., except legal holidays. 
A reasonable charge may be assessed for photocopying of materials.
    Comments and data may also be submitted electronically by any of 
three different mechanisms: by sending electronic mail (e-mail) to: 
[email protected]; by sending a ``Subscribe'' message to 
[email protected] and once subcribed, send your 
comments to RIN-2060-AE95; or through the EPA Electronic Bulletin Board 
by dialing 202-488-3671, enter selection ``DMAIL,'' user name ``BB-
USER'' or 919-541-4642, enter selection ``MAIL,'' user name ``BB-
USER.'' Comments and data will also be accepted on disks in WordPerfect 
in 5.1 file format or ASCII file format. All comments and data in 
electronic form should be identified by the docket number A-93-3087. 
Electronic comments on this proposed rule, but not the record, may be 
viewed or new comments filed online at any Federal Depository Library. 
Additional information on electronic submissions can be found in Part 
VII of this document.

FOR FURTHER INFORMATION CONTACT: Christina Parker, Office of Air and 
Radiation (6102), U.S. Environmental Protection Agency, 401 M Street, 
SW., Washington, DC 20460 at (202) 260-6584.

SUPPLEMENTARY INFORMATION: This preamble is organized according to the 
following outline:

I. Background of the Proposed Rule

A. Development of the Proposed Rule
    1. Federal/EPA Indian Policy
    2. Consultation with Tribal Representatives
B. General Structure of the CAA
C. Description of Section 301(d) of the CAA

II. Jurisdictional Issues

A. Delegation or Grant of CAA Authority to Tribes
B. Federal Authority and Protection of Tribal Air Resources
C. Objective of Tribal Primacy and Self-Determination

III. Tribal CAA Programs

A. New Process for Determining Eligibility for CAA Programs
    1. Federally Recognized Tribe
    2. Substantial Governmental Duties and Powers
    3. Jurisdiction Requirement
    4. Capability Requirement
    5. Tribal Consortia
B. Provisions for which Tribal Implementation is Appropriate
    1. Tribal Implementation is Generally Appropriate
    2. Exceptions to Tribal Implementation
    a. National Ambient Air Quality Standards Applicable 
Implementation Plan Submittal Deadlines and Related Sanctions
    b. Visibility Implementation Plan Submittal Deadlines
    c. Interstate Air Pollution and Visibility Transport Commission 
Plan Submittal Deadlines
    d. Criminal Enforcement
    e. Title V Operating Permit Program Submittal Deadlines, 
Implementation Deadlines and Other Requirements
    f. Small Business Assistance Program Submittal Deadline and 
Compliance Advisory Panel Requirement
    3. Stringency of Tribal Regulations
    4. Provisions for which No Separate Tribal Program Required
C. Procedures for Review of Tribal Air Programs
    1. Modular Approach to Tribal Air Programs
    2. Procedures for Reviewing and Approving Tribal Implementation 
Plans (``TIPs'')
    3. Procedures for Reviewing Other Tribal Air Programs (``TAPs'')
D. Revisions to CAA Implementing Regulations
    1. 40 CFR Part 35--State[, Tribal] and Local Assistance
    2. 40 CFR Part 49--Tribal Clean Air Act Authority
    3. 40 CFR Part 50--National Primary and Secondary Ambient Air 
Quality Standards
    4. 40 CFR Part 51--Requirements for Preparation, Adoption, and 
Submittal of Implementation Plans
    5. 40 CFR Part 52--Approval and Promulgation of Implementation 
Plans
    6. 40 CFR Part 70--State [and Tribal] Operating Permit Programs
    7. 40 CFR Part 81--Designation of Areas for Air Quality Planning 
Purposes

IV. Federal Financial Assistance

A. Sources of Funding Assistance
B. Tribal Eligibility for Air Grant Assistance
    1. Section 103 Air Assessment Grants
    2. Section 105 Air Program Grants
    3. Tribal Agencies and Consortia
C. Use of EPA General Assistance Grants
D. Additional Administrative Requirements

V. Miscellaneous

A. Executive Order (EO) 12866
B. Regulatory Flexibility Act (RFA)
C. Executive Order (EO) 12875
D. Paperwork Reduction Act

VI. Request for Public Comments

VII. Electronic Filing of Comments

Addendum A: General Description of Clean Air Act Programs

Addendum B: List of EPA Regional Offices

I. Background of the Proposed Rule

A. Development of the Proposed Rule

    This notice describes proposed regulatory changes to implement 
section 301(d) of the Clean Air Act, as amended, 42 U.S.C. 7401, et 
seq. (the ``Act'' or ``CAA''). Section 301(d) requires EPA to 
promulgate regulations that provide for Indian Tribes, if they so 
choose, to assume responsibility for the development and implementation 
of CAA programs on lands within the exterior boundaries of their 
reservations or other areas within their jurisdiction. This Tribal 
authority will apply to all CAA programs which the EPA Administrator 
determines to be appropriate in taking final action on this proposal. 
An Indian Tribe that takes responsibility for a CAA program under this 
rule would essentially be treated in the same way as a State would be 
treated for that program, with any exceptions noted in this rule and 
discussed below in this preamble.
1. Federal/EPA Indian Policy
    In developing this proposed rule, EPA has acted on the principles 
expressed in existing Federal policy statements regarding Indian 
Tribes. On January 24, 1983, the President issued a Federal Indian 
Policy stressing two related themes: (1) that the Federal government 
will pursue the principle of Indian ``self-government'' and (2) that it 
will work directly with Tribal governments on a ``government-to-
government'' basis. Presidential support was reaffirmed in an April 1, 
1993 statement.
    On November 8, 1984, in response to the 1983 Federal statement, EPA 
adopted a policy statement and implementing guidance addressing the 
administration of EPA environmental programs on Indian reservations. 
EPA's policy is ``to give special consideration to Tribal interests in 
making Agency policy, and to ensure the close involvement of Tribal 
Governments in making decisions and managing environmental programs 
affecting reservation lands.'' EPA committed to pursue certain 
principles to meet this objective, including the following:

    EPA recognizes Tribal Governments as sovereign entities with 
primary authority and responsibility for the reservation populace. 
Accordingly, EPA will work directly with Tribal Governments as the 
independent authority for reservation affairs, and not as political 
subdivisions of States or other governmental units.
* * * * *
    In keeping with the principle of Indian self-government, the 
Agency will view Tribal Governments as the appropriate non-Federal 
parties for making decisions and carrying out program 
responsibilities affecting Indian reservations, their environments, 
and the health and welfare of the reservation populace. Just as 
EPA's deliberations and activities have traditionally involved the 
interests and/or participation of State Governments, EPA will look 
directly to Tribal Governments to play this lead role for matters 
affecting reservation environments.

See November 8, 1984 ``EPA Policy for the Administration of 
Environmental Programs on Indian Reservations'' at p. 2. EPA 
Administrator Carol M. Browner reaffirmed the 1984 policy in a 
Memorandum issued on March 14, 1994.
2. Consultation With Tribal Representatives
    In addition, EPA has consulted with Tribal representatives in 
developing this proposed rule. EPA discussed preliminary issues 
associated with the proposed rule at the ``First National Tribal 
Conference on Environmental Management'' held in Cherokee, North 
Carolina in May 1992 and the ``Second National Tribal Conference on 
Environmental Management'' in Cherokee held in May 1994.
    In the Fall of 1992, EPA met with Tribal representatives at three 
outreach meetings in Chicago, Denver and San Francisco. These meetings 
included a discussion of issues raised by this proposed rule as well as 
EPA's efforts to assist Tribes in obtaining training in air quality 
management. Overall, representatives of approximately 70 different 
Tribes attended. In September 1993, EPA discussed a draft of this 
proposed rule with representatives of approximately 40 Tribes at a 
seminar sponsored by EPA and the Office of Native American Programs at 
Northern Arizona University and a subsequent meeting with 
representatives of State and local governments sponsored by the State 
and Territorial Air Pollution Program Administrators/Association of 
Local Air Pollution Control Officials. EPA has also consulted with 
Tribal and State representatives periodically throughout the 
development of the proposed rule.
    EPA received comments both during and following the Tribal and 
State outreach meetings. EPA has considered these comments in 
developing today's proposed rule. To the extent any such commenters 
have concerns that have not been adequately addressed by today's 
proposal, they should submit formal written comments to EPA in response 
to today's action. Any such comments must be received by the deadline 
indicated at the outset of today's notice and submitted to the EPA 
address specified above.

B. General Structure of the CAA

    In order to fully understand this proposal, a basic understanding 
of the structure of the CAA and its division of responsibilities 
between EPA and the States is necessary. Such a description is set 
forth below. In addition, a brief description of some of the many 
programs contained in the CAA is set forth in Addendum A, as an 
introduction and guidance to Tribes wishing to develop their own CAA 
programs. Reading Addendum A in conjunction with today's proposed 
action will also facilitate the reader's understanding of the 
discussion that follows.
    The CAA is implemented in two basic ways. The principal method is 
through a cooperative partnership between the States and EPA. While 
this partnership can take several shapes, generally EPA issues national 
standards or Federal requirements and the States assume primary 
responsibility for implementing these requirements. However, as a 
prerequisite to assuming implementation responsibility, States must 
submit their programs to EPA and must demonstrate that their programs 
meet minimum Federal CAA requirements. Among these requirements is the 
mandate that States demonstrate that they have adequate legal authority 
and resources to implement the programs.
    If a State program is approved or if the authority to implement a 
Federal program is delegated to a State, EPA maintains an ongoing 
oversight role to ensure that the program is adequately enforced and 
implemented and to provide technical and policy assistance. An 
important aspect of EPA's oversight role is that EPA retains legal 
authority to bring an enforcement action against a source violating a 
CAA program implemented by the States. Thus, if a State fails to 
adequately enforce CAA requirements, EPA can step in and ensure that 
they are followed.
    An example of this cooperative Federal/State arrangement is 
provided by Title V of the Act, 42 U.S.C. 7661-7661e, which contains 
requirements for an operating permit program. Generally, the program 
requires that certain sources of air pollution obtain permits which 
contain all of the requirements under the Act applicable to such 
sources. EPA has issued rules specifying the minimum requirements for 
State permit programs. 57 FR 32250 (July 21, 1992). States are required 
to develop programs consistent with minimum Federal requirements and to 
submit those programs to EPA for approval. In those instances when 
State programs are approved by EPA, the approved States will be 
primarily responsible for implementing these provisions of the CAA. EPA 
will maintain an active oversight role to provide necessary assistance 
and to ensure that the EPA-approved State programs continue to be 
implemented consistent with minimum Federal requirements.
    In the second, less common form of CAA implementation, EPA is 
primarily responsible both for setting standards or interpreting the 
requirements of the Act and for implementing the Federal requirements 
that are established. Under this approach, the Act provides little 
formal role for States.1 In general, this approach is reserved for 
programs requiring a high degree of uniformity in their implementation.
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    \1\ States nevertheless often actively participate in federal 
rulemakings and policy development even if the CAA does not call for 
primary implementation by the States. EPA similarly encourages 
Tribes to participate actively in EPA's rulemakings and policy 
development.
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    Title VI of the Act, which provides for the phase-out of certain 
substances that deplete stratospheric ozone, is one such program, since 
it affects products sold throughout interstate commerce. 42 U.S.C. 
7671-7671q. Title VI is both a Federally established and Federally 
managed program. EPA is charged with issuing the rules to implement the 
phase-out. Through, for example, reporting requirements and 
enforcement, EPA also ensures that the restrictions in production and 
consumption of ozone-depleting substances that are called for by the 
Act are, in fact, met.
    Section 301(d)(2) of the Act authorizes EPA to issue regulations 
specifying those provisions of the Act ``for which it is appropriate to 
treat Indian tribes as States.'' 42 U.S.C. section 7601(d)(2). Thus, 
the CAA programs where States have a formal implementation role will be 
the programs that are directly affected by today's proposed action. 
Conversely, those programs that are established and implemented 
primarily by EPA will largely be unaffected by today's proposal.

C. Description of Section 301(d) of the CAA

    Section 301(d)(1) of the CAA authorizes EPA to ``treat Indian 
tribes as States'' under the Act, so that Tribes may develop and 
implement CAA programs in the same manner as States within Tribal 
reservations or in other areas subject to Tribal jurisdiction.2 
For a Tribe to be eligible for such treatment it must be Federally 
recognized (see section 302(r)) and must meet the three criteria set 
forth in section 301(d)(2)(A)-(C). Briefly, these criteria consist of: 
(1) a showing of an adequate governing body; (2) that is capable of 
implementing the particular requirements of the CAA and applicable 
regulations for which the Tribe is seeking program approval; and (3) 
within the exterior boundaries of the reservation or other areas within 
the Tribe's jurisdiction. The precise criteria are set forth in today's 
proposed rule and are described in detail in Part III.A. below, 
together with EPA's proposal as to how this eligibility determination 
should be made.
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    \2\ For convenience of expression, portions of this rule refer 
only to Tribal programs within reservations. However, these 
references should not be interpreted to limit Tribal programs solely 
to lands within reservation boundaries since the CAA acknowledges 
that tribes may possess authority over off-reservation lands.'' See 
Part II.A, below.
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    At the same time, the Act recognizes that it may not be appropriate 
or feasible in all instances to treat Tribes and States identically. 
Accordingly, EPA is required under section 301(d)(2) of the Act to 
promulgate regulations ``specifying those provisions of [the CAA] for 
which it is appropriate to treat Indian tribes as States.'' Tribes that 
satisfy the criteria discussed above are eligible to implement those 
provisions specified by EPA if the minimum Federal requirements set out 
in the provisions have been met. In general, EPA is proposing that 
Tribes be eligible to implement the same provisions as States, with 
some exceptions, as set forth in today's proposed rule and discussed in 
Part III.B. below.
    In addition, section 301(d)(3) of the Act gives EPA the discretion 
to promulgate regulations establishing the elements of Tribal 
implementation plans (``TIPs'') and procedures for approval or 
disapproval of those plans or portions thereof. See Addendum A, ``Title 
I'' discussion. These regulations would be implemented in conjunction 
with section 110(o) of the Act, which provides that any TIP that is 
submitted to EPA under section 301(d) shall be reviewed in accordance 
with the provisions for review of State implementation plans (``SIPs'') 
set out in section 110, except as otherwise provided by this 
regulation. Once effective, the TIP would be applicable to all areas 
located within the exterior boundaries of the reservation. See section 
110(o). In today's action, EPA is proposing TIP regulations and 
procedures, as well as procedures for the review of other Tribal air 
programs (``TAPs''). These procedures are discussed further in Part 
III.C. below.
    Finally, section 301(d) of the Act makes provision for EPA to 
furnish grant and contract assistance to Tribes. See section 301(d)(1), 
(5) of the CAA. The grant provisions proposed today are described in 
Part IV of this preamble.

II. Jurisdictional Issues

A. Delegation or Grant of CAA Authority to Tribes

    It is a settled point of law that Congress may, by statute, 
expressly delegate Federal authority to a Tribe. United States v. 
Mazurie, 419 U.S. 544, 554 (1975). See also South Dakota v. Bourland, 
113 S. Ct. 2309, 2319-20 (1993); Brendale v. Confederated Tribes and 
Bands of the Yakima Indian Nation, 492 U.S. 408, 426-28 (1989) (White, 
J., for four Justice plurality). Such a delegation or grant of 
authority can provide a Federal statutory source of Tribal authority 
over designated areas, whether or not the Tribe's inherent authority 
would extend to all such areas. It is EPA's proposed interpretation of 
the CAA that the Act grants, to Tribes approved by EPA to administer 
CAA programs in the same manner as States, authority over all air 
resources within the exterior boundaries of a reservation for such 
programs. This grant of authority by Congress would enable such Tribes 
to address conduct on all lands, including non-Indian owned fee lands, 
within the exterior boundaries of a reservation. Thus, this proposed 
interpretation relates to the potential scope of regulatory 
jurisdiction that may be exercised by eligible Tribes under EPA-
approved Tribal Clean Air Act programs (hereafter ``approved'' 
Tribes).3
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    \3\ As indicated in Part III.B.4, in some instances qualifying 
Tribes may have a role in CAA implementation without having to make 
an entire program submittal.
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    The Agency recognizes that a Tribe will generally have inherent 
sovereign authority over air resources within the exterior boundaries 
of its reservation. As stated in Mazurie, the sovereign authority of 
Indian Tribes extends ``over both their members and their territory.'' 
419 U.S. at 557. Thus, Tribes generally have extensive authority to 
regulate activities on lands that are held by the United States in 
trust for the Tribe. See Montana v. United States, 450 U.S. 544, 557 
(1981). Furthermore, a Tribe ``may * * * retain inherent power to 
exercise civil authority over the conduct of non-Indians on fee lands 
within its reservation when that conduct threatens or has some direct 
effect on the * * * health or welfare of the tribe.'' Montana, 450 U.S. 
at 566. However, a Tribe's inherent authority must be determined on a 
case-by-case basis, considering whether the conduct being regulated has 
a direct effect on the health or welfare of the Tribe substantial 
enough to support the Tribe's jurisdiction over non-Indians. See 
Brendale, 492 U.S. 408; see also 56 FR 64876 at 64877-64879 (Dec. 12, 
1991).4 Such a determination is not necessary with a direct grant 
of statutory authority.5
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    \4\ In proposing to interpret the CAA as granting approved 
Tribes authority over all air resources within the exterior 
boundaries of a reservation, EPA recognizes that its approach under 
some of the other statutes it administers relies on a Tribe's 
inherent authority.
    \5\ Even without this proposed direct grant of authority, Indian 
Tribes would very likely have inherent authority over all activities 
within reservation boundaries that are subject to CAA regulation. 
The high mobility of air pollutants, resulting area-wide effects, 
and the seriousness of such impacts, would all tend to support 
Tribal inherent authority; as noted below, these factors also 
underscore the desirability of cohesive air quality management of 
all air pollution sources within reservation boundaries including 
those air pollution-related activities on fee lands within 
reservation boundaries. See, e.g., Bourland, 113 S. Ct. at 2320 
(reaffirming the Montana ``exceptions to `the general proposition 
that the inherent sovereign powers of an Indian tribe do not extend 
to the activities of nonmembers of the tribe''') (citation omitted) 
(1993); see also, e.g., CAA section 101(a)(2), 42 U.S.C. section 
7401(a)(2); H.R. Rep. No. 490, 101st Cong., 2d Sess. (1990); S. Rep. 
No. 228, 101st Cong., 1st Sess. (1989).
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    EPA's proposed position that the CAA constitutes a statutory grant 
of jurisdictional authority to Tribes is consistent with the language 
of the Act, which authorizes EPA to treat a Tribe as a State for the 
regulation of ``air resources within the exterior boundaries of the 
reservation or other areas within the tribe's jurisdiction.''6 
Section 301(d)(2)(B) (emphasis added). EPA believes that this statutory 
provision, viewed within the overall framework of the CAA, 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. EPA believes a territorial approach to air quality 
regulation best advances rational, sound air quality management. Air 
pollutants disperse over areas several and sometimes even hundreds of 
miles from their source of origin, as dictated by the physical and 
chemical properties of the pollutants at issue and the prevailing winds 
and other meteorological conditions. The high mobility of air 
pollutants, resulting areawide effects and the seriousness of such 
impacts, underscores the undesirability of fragmented air quality 
management within reservations.
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    \6\ As indicated above, EPA interprets the second clause of this 
provision as meaning that Tribes may also assert jurisdiction over 
air resources that are not within the boundaries of their 
reservations. However, EPA has not interpreted this clause as a 
direct grant of jurisdictional authority to Tribes with respect to 
such off-reservation air resources. Rather, where a Tribe submits a 
program asserting jurisdiction over air resources outside the 
boundaries of a reservation, EPA will require a demonstration of the 
factual and legal basis for the Tribe's inherent authority over such 
resources, consistent with relevant principles of Federal Indian 
law.
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    Moreover, language contained in two other provisions of the CAA, 
which expressly recognizes Tribal authority over all areas within the 
exterior boundaries of the reservation provides particularly compelling 
evidence that Congress intended to adopt this territorial approach. One 
such provision is in the CAA program governing the amount of 
incremental air quality deterioration allowed in ``clean air'' areas. 
Section 164(c) of the CAA provides that ``[l]ands within the exterior 
boundaries of reservations of federally recognized Indian Tribes may be 
redesignated [with regard to the prevention of significant 
deterioration of air quality] only by the appropriate Indian governing 
body.''
    In addition, section 110(o) of the CAA provides that upon approval 
by EPA, Tribal Implementation Plans (TIPs) ``shall become applicable to 
all areas * * * located within the exterior boundaries of the 
reservation, notwithstanding the issuance of any patent and including 
rights-of-way running through the reservation.'' Section 110(o) of the 
Act recognizes that approved Tribes will exercise authority over all 
areas within the exterior boundaries of a reservation for purposes of 
TIPs. TIPs, in turn, are the administrative tools for implementing the 
requirements under Title I of the CAA necessary to assure attainment 
and maintenance of the national ambient air quality standards (NAAQS), 
one of the central CAA programs. Significant regulatory entanglement 
and inefficiencies could result if Tribes have jurisdiction over such 
plans pursuant to section 110(o) of the Act, but are not found to have 
jurisdiction within reservation boundaries over non-TIP CAA programs. 
For example, a stationary source located on an area of a reservation 
over which the Tribe was found to lack inherent authority would be 
subject to the Tribal Implementation Plan provisions imposing NAAQS-
related requirements, but might be determined to be subject to State 
regulation for some other CAA program. This entanglement could 
potentially subject a source to differing local regulatory authorities, 
possibly with conflicting goals and approaches, and potentially 
duplicative or inconsistent reporting, monitoring and other regulatory 
requirements. There is no evidence that Congress intended to create 
such complex jurisdictional entanglements. These entanglements are 
reasonably avoided by interpreting the CAA as granting to approved 
Tribes regulatory authority over all air resources within a 
reservation.
     Further, a grant of authority to Tribes for NAAQS-related purposes 
alone would conflict with the implementation of the operating permit 
program called for by Title V of the Act. Title V explicitly prohibits 
partial State permit programs unless, at a minimum, such a program 
``ensures compliance with * * * [a]ll requirements of [Title] I * * * 
applicable to sources required to have a permit.'' Section 502(f) 
(emphasis added); see also section 502(b)(5)(A) (requires permitting 
authorities ``to have adequate authority to * * * assure compliance by 
sources required to have a permit under this title with each applicable 
standard, regulation, or requirement under this Act'') (emphasis added) 
and section 504(a) (each permit issued under Title V ``shall include * 
* * conditions as are necessary to assure compliance with the 
applicable requirements of this [Act], including the requirements of 
the applicable implementation plan''). Since States could not 
unilaterally ``ensure compliance with * * * [a]ll requirements of 
[Title] I'' within Indian reservations because Tribes are granted 
authority over implementation plans under section 110(o), it appears 
that States could not, in fact, submit Title V permit programs for 
Indian reservations that would conform with section 502(f) or other 
provisions of Title V.
    A basic rule of statutory construction is to avoid interpreting a 
statute in a manner that would nullify or render meaningless a 
statutory provision.7 Because section 110(o) confers on approved 
Tribes the authority to administer Title I programs on Indian 
reservations, the provision of Title V requiring that a permit program 
must at a minimum ensure compliance with the applicable requirements of 
Title I cannot be met by States seeking authority to implement a Title 
V program within the boundaries of a reservation. These provisions can 
reasonably be harmonized by construing the Act as generally granting 
approved Tribes CAA regulatory authority over all air resources within 
the exterior boundaries of their reservations. Thus, this statutory 
structure further supports EPA's proposed interpretation of the CAA as 
granting approved Tribes authority within reservation boundaries.
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    \7\See U.S. v. Nordic Village, Inc., 112 S.Ct. 1011, 1015 (1992) 
(rejecting an interpretation that ``violates the settled rule that a 
statute must, if possible, be construed in a fashion that every word 
has some operative effect'') (citation omitted); Boise Cascade Corp. 
v. U.S. EPA, 942 F.2d 1427, 1432 (9th Cir. 1992) (``[u]nder accepted 
canons of statutory interpretation, we must interpret statutes as a 
whole, giving effect to each word and making every effort not to 
interpret a provision in a manner that renders other provisions of 
the same statute inconsistent, meaningless or superfluous'') 
(citations omitted).
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    Accordingly, in light of the statutory language and the overall 
statutory scheme8, EPA proposes to exercise the rulemaking 
authority entrusted to it by Congress to conclude that the CAA grants 
approved Tribes authority over all air resources within the exterior 
boundaries of a reservation. See generally Chevron U.S.A., Inc. v. 
NRDC, 467 U.S. 837, 842-45 (1984).9
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    \8\This proposed interpretation of the CAA as generally 
delegating jurisdictional authority to approved Tribes is also 
supported by the legislative history, which provides some additional 
evidence of Congressional attention to this issue: ``the Act 
constitutes an express delegation of power to Indian tribes to 
administer and enforce the Clean Air Act in Indian lands'' (citation 
to Brendale omitted). S. Rep. No. 228, 101st Cong., 1st Sess. 79 
(1989).
    \9\Further, it is a well-established principle of statutory 
construction that statutes should be construed liberally in favor of 
Indians, with ambiguous provisions interpreted in ways that benefit 
tribes. See County of Yakima v. Confederated Tribes and Bands of the 
Yakima Indian Nation, 112 S.Ct. 683, 693 (1992). In addition, 
statutes should be interpreted so as to comport with tribal 
sovereignty and the federal policy of encouraging tribal 
independence. See Ramah Navajo School Board, Inc. v. Bureau of 
Revenue of New Mexico, 458 U.S. 832, 846 (1982).
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    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 64,881 (Dec. 12, 1991); 
see also Oklahoma Tax Commission v. Citizen Band Potawatomi Indian 
Tribe of Oklahoma, 111 S.Ct. 905, 910 (1991). EPA will be guided by 
relevant case law in interpreting the scope of ``reservation'' under 
the CAA.
    Section 301(d)(2)(B) of the CAA also provides that a Tribe may be 
treated in the same manner as a State for functions regarding air 
resources ``within the exterior boundaries of the reservation or other 
areas within the tribe's jurisdiction'' (emphasis added). The 
emphasized language envisions potential Tribal jurisdiction under the 
CAA over areas that lie outside the exterior boundaries of a 
reservation, upon a fact-based showing of a Tribe's inherent authority 
over sources located on such lands. Thus, this provision authorizes an 
eligible Tribe to develop and implement Tribal air quality programs on 
off-reservation lands that are determined to be within the Tribe's 
inherent jurisdiction. Accordingly, for purposes of this rule, EPA 
proposes to conclude that an eligible Tribe may be able to implement 
its air quality programs on off-reservation lands up to the limits of 
``Indian country,'' as defined in 18 U.S.C. section 1151, provided the 
Tribe can adequately demonstrate authority to regulate air quality on 
the off-reservation lands in question under general principles of 
Indian law.
    In sum, EPA is proposing to interpret the CAA as granting approved 
Tribes regulatory authority over all air resources within the exterior 
boundaries of their reservations. Thus, no independent fact-based 
showing of inherent Tribal jurisdiction will be required for air 
resources located within such reservation boundaries. EPA recognizes 
that ``other'' off-reservation areas may fall within Tribal 
jurisdiction. EPA is proposing to interpret the CAA as providing no 
blanket grant of Federal authority for such areas. Thus, for off-
reservation areas, a Tribe must demonstrate that it has inherent 
authority over sources it seeks to regulate under general principles of 
Indian law.

B. Federal Authority and Protection of Tribal Air Resources

    The CAA authorizes EPA to protect air quality throughout Indian 
country. EPA intends to use this authority to remedy and prevent gaps 
in CAA protection for Tribal air resources. EPA's authority to provide 
this CAA protection 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 seems 
clear that Congress intended for the CAA to be a ``general statute 
applying to all persons to include Indians and their property 
interests.'' Phillips Petroleum Co. v. United States E.P.A., 803 F.2d 
545, 556 (10th Cir. 1986) (holding that the Safe Drinking Water Act 
applied to Indian Tribes and lands by virtue of being a nationally 
applicable statute; see generally id. at 553-58).
    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. 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 CAA empowers the Administrator to directly 
administer CAA requirements so as to achieve the appropriate purpose, 
where Tribal implementation of CAA requirements is inappropriate or 
administratively infeasible. These provisions evince Congressional 
intent to authorize EPA to directly implement CAA programs where Tribes 
fail to submit approvable programs or lack authority to do so.
    In fact, EPA is currently providing Federal support for CAA 
protection within reservations. For example, EPA administers the permit 
program governing review of proposed new and modified major stationary 
sources of air pollution (``new source review'' or ``NSR'') on 
Reservations and other areas in Indian country (hereafter ``Tribal 
lands''). There are several reasons for this emphasis in the exercise 
of EPA's authority.
    Many Tribal lands have air quality that presently meets the 
national ambient air quality standards (``NAAQS''), and the central 
concern is to prevent the relatively clean air from significantly 
deteriorating. Thus, EPA has ensured that major sources seeking to 
locate on Tribal lands obtain the Prevention of Significant 
Deterioration (``PSD'') permit required under the CAA's NSR program. In 
broad overview, this program imposes limitations on the ambient air 
quality impact of new or modified major stationary sources and requires 
the application of best available control technology on such sources. 
See section 165 of the Act. Similarly, in those circumstances where the 
air quality on Tribal lands currently is worse than the NAAQS, EPA's 
administration of the nonattainment NSR program prevents the air 
quality from further deteriorating by ensuring that a proposed major 
source implements the most stringent control technology (the ``lowest 
achievable emission rate'' as defined in section 171(3)) and offsets 
its emissions by obtaining emissions reductions from nearby sources. 
Section 173 of the Act.
    Owners and operators that construct air pollution sources on Tribal 
lands without first obtaining the proper permit from EPA expose 
themselves to Federal enforcement action and citizen suits. For 
example, section 165 of the Act, 42 U.S.C. 7475, prohibits the 
construction of a major emitting facility that does not have a PSD 
permit. Section 173, 42 U.S.C. 7503, contains a similar requirement for 
new and modified major stationary sources in nonattainment areas. 
Sections 113 and 167, 42 U.S.C. 7413 & 7467, authorize EPA to take 
enforcement action (including, in certain instances, criminal action) 
against an owner or operator that is in violation of the requirement to 
obtain a preconstruction permit that meets the requirements of the Act. 
Furthermore, section 304 of the Act, 42 U.S.C. 7604, authorizes any 
person to bring a ``citizen suit'' in U.S. district court against an 
owner or operator who constructs any new or modified major stationary 
source without a PSD permit or nonattainment NSR permit that meets the 
Act's requirements.
    EPA also currently provides technical and financial support to 
Tribes that have initiated the process of developing Tribal air 
programs. For example, some EPA Regional Offices are currently 
providing such assistance to Tribes that have air quality that is worse 
than the NAAQS. The objective is to assist the Tribes in developing a 
strategy for controlling emissions from existing sources that will 
bring the area back into attainment with the NAAQS. Because EPA has not 
finalized today's rule authorizing Tribes to submit Federal CAA 
programs to EPA for approval, some EPA Regions are now working with 
Tribes to develop programs that will be promulgated and administered by 
EPA until this rule is finalized and a Tribal program is 
approved.10 Where air quality problems have already been 
identified, it is EPA's policy to proceed expeditiously, in conjunction 
with Tribes, to address such problems.
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    \1\0Such an interim EPA-administered program would be displaced 
upon EPA's approval of a Tribal program addressing the same CAA 
requirements.
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    In addition, as described in Part I.B, there are some programs that 
are solely Federal programs (e.g. Phase I of the Acid Rain Program and 
Title VI of the Act, which provides for the phase-out of certain 
substances that deplete stratospheric ozone). Such programs apply to 
sources located on Tribal lands in the same manner as sources on lands 
subject to State jurisdiction.
    EPA views these efforts as an important and substantial first step 
in providing CAA protection of reservation air resources.
    EPA also intends to develop an implementation strategy for 
achieving Federal CAA protection of air resources within Indian 
reservations. The strategy will be designed to prioritize EPA resources 
in support of this rule. It is EPA's policy to assist Tribes in 
developing comprehensive and effective air quality management programs 
to insure that Tribal air quality management programs will be 
implemented to the extent necessary on Indian reservations. EPA will do 
this by, among other things, providing technical advice and assistance 
to Indian Tribes on air quality issues. EPA intends to consult with 
Tribes to identify their particular needs for air program development 
assistance and to provide on-going assistance as necessary.
    However, as it required many years to develop State and Federal 
programs to cover lands subject to State jurisdiction, so it will 
require time to develop Tribal and Federal programs to cover 
reservations and other lands subject to Tribal jurisdiction. As a first 
step in this process, EPA intends to draft a Plan for Reservation Air 
Program Implementation that will provide a strategy for developing 
reservation programs in accordance with this policy. The Plan will 
identify priority needs and include a strategy to address them by 
providing technical and grant assistance for the development of air 
quality management programs. EPA will seek appropriate input from 
Tribal governments in developing the Plan.

C. Objective of Tribal Primacy and Self-Determination

    Ultimately, of course, EPA would prefer to work with Tribes to have 
the Tribes develop and administer their own air quality management 
programs under the CAA, just as EPA works with States. This is the 
principal objective of the Federal financial assistance described in 
Part IV below.
    While some Tribes may entirely develop their own CAA programs, 
other Tribes may consider forming Tribal consortia. Smaller Tribes in 
particular may wish to form consortia or create inter-Tribal agencies 
as ways to develop the necessary expertise to administer CAA programs 
in a cost-effective way. One of the advantages of forming a consortium 
of Tribes is that a Tribe may rely on the expertise and resources of 
the consortium in demonstrating that the Tribe is reasonably expected 
to be capable of carrying out the functions to be exercised, as 
described below.
    Today's action also does not require Tribes to develop CAA programs 
wholly from scratch. For example, a Tribe may adopt or incorporate 
standards from an adjacent or similarly situated State, with 
appropriate revisions that would adapt the State standards to 
reservation conditions and Tribal policies. The use of such adaptations 
would enable Tribes to build on State experience and expertise, and 
might represent quicker and less costly ways to establish Tribal 
programs than developing Tribal programs independently. This technique 
of utilizing small-scaled adaptations of State programs would allow 
Tribes to build experience and expertise that could later be used to 
revise existing programs, if appropriate.
    Tribes could also choose to negotiate a cooperative agreement with 
an adjoining State to jointly plan and administer CAA programs that are 
appropriately tailored to individual reservation conditions and Tribal 
policies. Such an agreement would be subject to the review and approval 
of the Administrator or her delegatee, if it is to be made part of an 
approvable Tribal air program under the CAA.
    Aside from any formal arrangements between Tribes and States, EPA 
notes that the objective of this rule, and EPA's responsibility in 
overseeing the administration of the CAA, is to provide air quality 
protection. Therefore, EPA encourages all affected sovereigns to work 
cooperatively in informal capacities to protect the public health and 
welfare from the serious health and welfare effects associated with air 
pollution.

III. Tribal CAA Programs

    The discussion which follows addresses streamlined procedures that 
EPA is proposing to satisfy the eligibility requirements set out in 
section 301(d)(2) of the Act. These are proposed requirements that 
Tribes must meet in order to obtain approval to implement CAA programs. 
The discussion also identifies those provisions of the Act for which 
EPA is proposing to treat Indian Tribes in the same manner as States 
and those provisions for which EPA believes such treatment is 
infeasible or otherwise inappropriate.
    One of EPA's central concerns is to encourage Tribes to develop and 
administer Clean Air Act programs on Tribal lands in the same way that 
States currently do on State lands. This concern is grounded in the 
objective of Tribal self-government as enunciated in both the Federal 
and the EPA Indian Policies. In order to facilitate this process, EPA 
is proposing to eliminate duplicative review and unnecessary delay 
during EPA's processing of Tribal program submittals. The eligibility 
determination process proposed in today's action is consistent with an 
EPA policy pronouncement that followed from EPA's review of the Tribal 
programs it administers under other environmental statutes. Further, 
EPA is proposing to accept ``reasonably severable'' Tribal air program 
submittals that meet the applicable requirements of the CAA. This will 
allow Tribes to identify and then immediately target their most 
important air quality issues without the corresponding burden of 
developing entire CAA programs. Further, it allows Tribes to develop 
incremental expertise that will facilitate development and expansion of 
further programs over time.

A. New Process for Determining Eligibility for CAA Programs

    To be eligible to be treated in the same manner as a State for CAA 
programs, including financial assistance, an applicant must meet the 
definition of ``tribe'' in section 302(r) of the Act (i.e. it must be 
Federally recognized) and must satisfy the three criteria set forth in 
section 301(d)(2)(A)-(C) of the Act. These criteria are set out in 
today's proposed rule and concern the Tribe's governing body, its 
jurisdiction, and its capability to carry out the necessary functions 
under the Act.
    In general these same criteria are set forth under the Clean Water 
Act and the Safe Drinking Water Act. EPA has previously issued 
regulations implementing the criteria under those Acts. These 
regulations have come to be known as the ``treatment as a state'' 
(``TAS'') process.11 Approval under this process was required 
every time a Tribe sought to obtain an EPA grant or implement an EPA 
program on its reservation.
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    \1\1EPA recognizes that Tribes are sovereign nations with a 
unique legal status and a relationship to the Federal government 
that is significantly different from that of States. EPA believes 
that Congress did not intend to alter this when it authorized 
treatment of Tribes ``as States'' under the CAA. Rather, Congress 
intends to ensure that, to the extent appropriate and feasible, 
Tribes may assume a role in implementing the CAA on Tribal lands 
that is comparable to the role States have in implementing the CAA 
on State lands.
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    Because the ``TAS'' process proved to be quite burdensome to 
Tribes, EPA formed a working group to focus on ways of improving and 
simplifying the process. After considering the workgroup's 
recommendations, EPA announced a policy that is intended to streamline 
and simplify the process. Memorandum from F. Henry Habicht, the Deputy 
Administrator of EPA, to the Agency, dated November 10, 1992. EPA is 
proposing to implement this new policy in this rulemaking, and is 
calling the resulting new process the ``eligibility'' process. See also 
56 FR 1380 (March 23, 1994) (proposing similar revision to Tribal 
approval process in Clean Water Act and Safe Drinking Water Act 
regulations).
    Under the new eligibility process proposed in today's action, a 
Tribe does not need to go through a separate eligibility review every 
time it seeks approval for grant funding or to implement a specific 
program. Instead, a Tribe's eligibility may be determined at the same 
time that it seeks approval for a particular program. By making the 
eligibility determination a part of the program approval process, much 
of the delay and duplication inherent in the old sequential TAS process 
should be reduced, if not eliminated. In addition, EPA is proposing to 
simplify some of the demonstrations of eligibility that will be 
required under the Clean Air Act, as discussed below. Finally, after 
promulgation of this rule, EPA intends to facilitate development of 
Tribal applications by providing Tribes with a narrative checklist of 
the eligibility requirements described below.
1. Federally Recognized Tribe
    A Tribe is defined in section 302(r) of the Act as follows:

[A]ny Indian tribe, band, nation, or other organized group or 
community, including any Alaska Native village, which is Federally 
recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.

The requirement of Federal recognition is common to all statutes 
authorizing EPA to treat Tribes in a manner similar to that in which it 
treats States. Any Tribe that has been approved for ``TAS'' under any 
of the existing Water Act regulations or any other EPA program is 
Federally recognized. Moreover, once a Tribe has been found to be 
Federally recognized in the course of approval under any EPA-
administered statute, or any provision of the CAA, it need only so 
state in the future. To facilitate review of Tribal applications, EPA 
therefore requests that Tribal applications inform EPA whether the 
Tribe has been approved for ``TAS'' under the old process or deemed 
eligible to receive funding or authorization for any EPA-administered 
environmental program under the revised process governing treatment of 
Tribes in the same manner as States.
    Any other Tribe need only state that it appears on the list of 
Federally recognized Tribes that the Secretary of the Interior 
periodically publishes in the Federal Register. See 58 FR 54364 (Oct. 
21, 1993). If the Tribe notifies EPA that it has been recognized but is 
not included on this list because the list has not been updated, EPA 
will verify the fact of recognition with the Department of the Interior 
(``DOI'').
2. Substantial Governmental Duties and Powers
    A Tribe also must show that it ``has a governing body carrying out 
substantial governmental duties and powers.'' This requirement is also 
found in the Federal Water Pollution Control Act (``Clean Water Act'') 
and the Public Health Service Act (``Safe Drinking Water Act''). See 33 
U.S.C. 1377(e) & 42 U.S.C. section 300j-11(b). Accordingly, as 
discussed above, a Tribe that has had a submittal approved by EPA under 
either of these provisions has already established that it meets the 
governmental requirement and need not make this showing again. 
Similarly, a Tribe that has made this showing in the course of 
obtaining approval for a Clean Air Act program need not do so again. In 
either case, a Tribe may simply state that it has already been 
approved.
    A Tribe that has not yet made its initial showing of ``substantial 
governmental duties and powers'' can do so by demonstrating that it has 
a governing body that is presently carrying out substantial 
governmental functions. A Tribe will be able to make the required 
demonstration if it is currently performing governmental functions to 
promote the public health, safety, and welfare of its population within 
a defined area. Many Indian Tribal governments perform these functions. 
Examples of such functions include, but are not limited to, levying 
taxes, acquiring land by exercising the power of eminent domain, and 
police power. Such examples should be included in a narrative statement 
supporting the certification, which describes: (1) The form of the 
Tribal government, (2) the types of essential governmental functions 
currently performed, such as those listed above; and (3) the legal 
authorities for performing these functions (e.g. Tribal constitutions 
or codes). It should be relatively easy for Tribes to meet this 
requirement without submitting copies of specific documents unless 
requested to do so by EPA.
3. Jurisdiction Requirement
    As discussed in section II.A above, EPA is proposing to interpret 
the CAA as granting or delegating certain Federal authority to approved 
Tribes over all air resources within the exterior boundaries of their 
reservations. Generally, therefore, the significant issue that remains 
in determining the extent of Tribal jurisdiction is the precise 
boundary of the reservation in question. Accordingly, a Tribal 
jurisdictional showing must identify, with clarity and precision, the 
exterior boundaries of the reservation. Consistent with the simplified 
review process, EPA is not proposing to specify particular supporting 
materials that the Tribe must provide. However, a Tribal submission 
will need to contain information adequate to demonstrate to EPA the 
location and limits of the reservation, which will usually include a 
map and a legal description of the area. EPA will determine the meaning 
of the term ``reservation'' as indicated previously.
    Note that there may be less frequent instances when more complex 
legal and factual demonstrations must be made to establish 
jurisdiction. As indicated above, section 301(d)(2)(B) of the Act 
addresses jurisdiction over ``air resources within the exterior 
boundaries of the reservation or other areas within the tribe's 
jurisdiction'' (emphasis added). While EPA is proposing to construe the 
Act as delegating to Tribes authority over all air resources within the 
exterior boundaries of their reservations, the Agency will require a 
Tribe to demonstrate its inherent authority over any areas outside of 
the exterior boundaries of the reservation before EPA will approve a 
Tribal program covering such areas. Where a Tribe seeks to develop and 
administer an air program on off-reservation lands, the Tribal 
submittal must be accompanied by appropriate legal and factual 
information which supports its inherent authority to regulate emission 
sources located on such lands.
    Under the TAS process which EPA has implemented in the past, EPA 
would not determine that a Tribe had the requisite jurisdiction without 
first notifying appropriate ``governmental entities,'' such as States, 
other Tribes and Federal land management agencies, of the Tribe's 
jurisdictional assertions. Those entities were then given an 
opportunity to comment on the Tribe's jurisdictional statement, and 
whenever a comment raised a ``competing or conflicting claim,'' EPA 
could not approve the Tribal application without first consulting with 
DOI. Consistent with the revised eligibility policy, EPA is proposing 
to implement a more streamlined approach under the CAA.
    The first time a Tribe submits an application to EPA under the CAA, 
EPA will, upon receipt of the application, notify all appropriate 
``governmental entities''\12\ regarding the Tribe's assertion of 
jurisdiction. The precise content of EPA's notification of other 
governmental entities will depend on the geographic extent of the 
Tribe's jurisdictional assertion. Specifically, if a Tribe seeks only 
to implement a CAA program within the exterior boundaries of its 
reservation, EPA's notification of other governments will only specify 
the geographic boundaries of the reservation, as set forth in the 
Tribe's application. However, where a Tribe seeks to administer a CAA 
program on lands outside the exterior boundaries of a reservation, EPA 
will notify the appropriate governmental entities of the substance of 
and bases for the Tribe's assertion of inherent jurisdiction with 
respect to such off-reservation lands.
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    \12\For purposes of the CAA rule, EPA is proposing to adopt the 
same definition of ``governmental entities'' as the Agency did in 
its December 1991 Water Quality Standards regulation. See 56 FR 
64876 at 64884 (Dec. 12, 1991).
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    The appropriate governmental entities will have fifteen days 
following their receipt of EPA's notification to provide formal 
comments to EPA regarding any dispute they might have with the Tribe 
concerning the boundary of the reservation. Where a Tribe has asserted 
jurisdiction over off-reservation lands, and has included a more 
detailed jurisdictional statement in its application, appropriate 
governmental entities may request a one-time fifteen day extension to 
the general fifteen day comment period. In all cases, comments from 
appropriate governmental entities must be offered in a timely manner, 
and must be limited to the Tribe's jurisdictional assertion. Where no 
timely comments are presented, EPA will conclude that there is no 
objection to the Tribal applicant's identified reservation boundaries 
(or, if relevant, its assertion of jurisdiction outside the 
reservation). Further, to raise a competing or conflicting claim, a 
commenter must clearly explain the substance, basis, and extent of its 
objections. Finally, where EPA receives timely notification of a 
dispute, it may obtain such additional information and documentation as 
it believes appropriate and may, at its option, consult with DOI.
    Where EPA identifies a dispute and cannot confidently resolve it 
promptly, it will retain the option of limiting approval of a Tribal 
program to those areas that a Tribe has clearly shown are part of the 
reservation (or are otherwise within the Tribe's jurisdiction). This 
will allow EPA to approve the portion of a Tribal application that 
covers all undisputed areas, while withholding action on the portion of 
the application that addresses areas where a jurisdictional issue has 
not been satisfactorily resolved. However, this approach will be 
subject to any applicable statutory restrictions. See, e.g., section 
110(k) of the Act (calls upon EPA to complete action on a SIP submittal 
within certain specified timeframes).
    Once EPA has made a determination under the CAA or other EPA-
administered environmental programs concerning the boundaries of a 
reservation, it will rely on that determination in evaluating all 
future applications from that Tribe under the CAA unless the 
application presents different legal issues. For example, once the 
Agency has arrived at a position concerning a reservation boundary 
dispute, it will not alter that position in the absence of significant 
new factual or legal information. Thus, as with the recognition and 
governmental requirements, there will generally be no need to provide 
EPA with additional demonstrations of jurisdiction, unless the Tribe is 
making a more expansive jurisdictional assertion in a subsequent 
submittal.
    EPA believes that this new process for resolving questions of 
jurisdiction constitutes a significant improvement over the old TAS 
jurisdiction process. It will provide States with an opportunity to 
notify EPA of boundary disputes and enable EPA to obtain relevant 
information as needed while minimizing delays in the process and 
focusing its inquiry on what is likely to be the principal relevant 
issue, namely, the geographic boundaries of the reservation.
4. Capability Requirement
    Section 301(d)(2)(C) of the CAA provides that in determining Tribal 
eligibility the Administrator also must determine that the Tribe ``is 
reasonably expected to be capable * * * of carrying out the functions 
to be exercised in a manner consistent with the terms and purposes of 
[the CAA] and all applicable regulations.'' A program-by-program 
inquiry into the question of capability is necessary since a Tribe may 
have capability to carry out certain activities but not others. 
Therefore, EPA may request that to establish capability a Tribe submit 
a narrative statement or other documents showing it is capable of 
administering the program for which it is seeking approval. The 
specific capabilities which must be described are set forth in today's 
proposed rule.
    In evaluating a Tribe's demonstration of capability, EPA may 
consider the following factors:
    (1) The Tribe's previous management experience;
    (2) Existing environmental or public health programs administered 
by the Tribe;
    (3) The mechanism(s) in place for carrying out the executive, 
legislative, and judicial functions of the Tribal government;
    (4) The relationship between regulated entities and the 
administrative agency of the Tribal government that will be the 
regulator; and
    (5) The technical and administrative capabilities of the staff to 
administer and manage the program.
    EPA recognizes that certain Tribes may not have substantial 
experience administering environmental programs. A lack of experience 
will not preclude a Tribe from demonstrating the required capability. 
Otherwise Tribes would be placed in the dilemma of being denied the 
opportunity to develop the requisite capability because they lack such 
capability. For this reason, today's proposed rule requires Tribes 
either to show that they have the necessary management and technical 
skills or to submit a plan detailing steps for acquiring those skills.
    However, this flexibility does not change the requirement that to 
obtain approval for a particular program under the CAA the Tribe must 
submit a fully effective program that meets all the applicable 
statutory and regulatory requirements associated with the program in 
question. Because a Tribe may not want to go through the expense of 
developing such a program without first being assured of meeting the 
eligibility requirements, today's proposed rule provide that a Tribe 
may, at its option, ask for a preliminary finding on any or all of 
these requirements.
    EPA's evaluation of capability will also consider the relationship 
between the existing or proposed Tribal agency that will implement the 
program in question and any potential regulated Tribal entities. It is 
not uncommon for a Tribe to be both the regulator and regulated entity, 
and such a situation could result in a conflict of interest since the 
Tribe would then be regulating itself. Independence of the regulator 
and regulated entity best assures effective and fair administration of 
a program.
    A Tribe will generally not be required to divest itself of 
ownership of any regulated entities to address this problem. Instead, 
for example, the Tribe could create an independent organization to 
regulate Tribal entities subject to CAA regulatory requirements.13 
Similar arrangements could be established using existing Tribal 
organizations.
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    \1\3While States also are both the regulator and regulated 
entity, state government organization is typically one in which the 
State agency operating the regulated entity is not the same State 
agency that has primary regulatory authority. Thus, this separation 
of functions helps avoid potential conflicts of interest.
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    This discussion is intended to alert Tribes at an early date about 
a potential bar to regulatory program assumption that must be resolved. 
For example, section 110 of the CAA sets out some of the basic 
requirements that SIPs must meet to assure attainment and maintenance 
of the NAAQS. Section 110(a)(2)(E)(ii) of the Act directs that SIPs 
must provide requirements that the State comply with the requirements 
applicable to State boards under section 128. Section 128, in turn, 
provides that each SIP shall contain requirements that:

    (1) Any board or body which approves permits or enforcement 
orders under [the CAA] shall have at least a majority of members who 
represent the public interest and do not derive any significant 
portion of their income from persons subject to permits or 
enforcement orders under [the CAA], and
    (2) Any potential conflicts of interest by members of such board 
or body or the head of an executive agency with similar powers be 
adequately disclosed.

    EPA does not intend to limit Tribal flexibility in creating 
structures which will ensure adequate separation of the regulator and 
regulated entity. Instead, EPA will evaluate whether the Tribal 
submittal will ensure adequate separation of the regulator and 
regulated entity on a case-by-case basis in the context of the 
statutory and regulatory requirements applicable to the CAA program for 
which a Tribe is seeking approval.
5. Tribal consortia
    Each member of a Tribal consortium must meet the eligibility 
qualifications described above. However, members of a consortium may 
rely on the expertise and resources of the consortium in demonstrating 
that the Tribe meets the capability requirement described above.
    For example, some members of a consortium may have more technical 
expertise and environmental management experience than other members. A 
Tribe with less resources and expertise may rely on the combined 
resources of the consortium in demonstrating that the Tribe is 
``reasonably expected'' to be capable of carrying out the functions to 
be exercised. However, a Tribe relying on a consortium in this manner 
must provide reasonable assurances that the Tribe has responsibility 
for carrying out necessary functions in the event the consortium fails 
to.

B. Provisions for Which Tribal Implementation is Appropriate

1. Tribal Implementation is Generally Appropriate
    Part III.A discussed the eligibility requirements that a Tribe must 
meet in order to be treated as a State under the Clean Air Act. There 
is a separate question of whether it is appropriate to treat eligible 
Tribes in the same manner as States for all provisions under the Act, 
or whether only certain provisions lend themselves to such an approach. 
The Act provides that the Administrator shall promulgate regulations:

specifying those provisions of [the CAA] for which it is appropriate 
to treat Indian tribes as States.

    Section 301(d)(2). The Act further provides,

    [i]n any case in which the Administrator determines that the 
treatment of Indian tribes as identical to States is inappropriate 
or administratively infeasible, the Administrator may provide, by 
regulation, other means by which the Administrator will directly 
administer such provisions so as to achieve the appropriate purpose.

    Section 301(d)(4). Thus, read together, the Act delegates to the 
Administrator broad discretion in determining those provisions of the 
Clean Air Act for which Tribes should be treated in the same manner as 
States and those provisions for which such treatment would be 
inappropriate or infeasible.
    It is EPA's basic position, proposed here, that treatment of Tribes 
in the same manner as States is appropriate for all programs under the 
Act with the exception of only a few provisions (those for which EPA 
has determined that it is infeasible or otherwise inappropriate to 
treat States and Tribes in the same manner). EPA proposes to be 
inclusive in identifying the provisions of the Act for which it is 
appropriate to treat Tribes in the same manner as States so as to 
maximize the opportunities for Tribal participation in CAA programs.
    In light of this basic approach, today's proposed rule provides 
that Tribes will generally be treated in the same manner as States for 
all the provisions of the Clean Air Act, and specifies the limited 
exceptions to this approach. EPA is proposing to treat Tribes in the 
same manner as States for all of the remaining provisions of the 
statute not identified as exceptions in the discussion below. Today's 
action also addresses alternative means to achieve the intended purpose 
of the Act, where EPA believes such provisions are necessary in light 
of a proposed exception. Section 301(d)(4).
    A common concern raised by both Tribes and States during the 
development of this proposed rule was the potential for sources located 
on State or Tribal lands to adversely impact air quality on downwind 
State or Tribal lands. EPA is proposing in this rule that the CAA 
protections against interstate pollutant transport apply with equal 
force to States and Tribes.
    Thus, for example, EPA is proposing that the prohibitions and 
authority contained in sections 110(a)(2)(D) and 126 of the CAA apply 
to Tribes in the same manner as States. Section 110(a)(2)(D), among 
other things, requires States to include provisions in their SIPs that 
prohibit emissions activity within the State from significantly 
contributing to nonattainment, interfering with maintenance of the 
NAAQS, or interfering with measures under the PSD or visibility 
protection programs in another State. Section 126 authorizes any State 
to petition EPA to enforce these prohibitions against a State 
containing an allegedly offending source or group of sources.
2. Exceptions to Tribal Implementation
    EPA notes at the outset that recurring provisions for which EPA is 
proposing not to treat Tribes in the same manner as States involve 
certain Clean Air Act submittal deadlines. The Act contains many 
deadlines that mandate the submittal of a State plan, program or other 
requirement by certain dates. However, Tribes are not similarly 
compelled to develop and seek approval of air programs. Section 
301(d)(2) provides for EPA to promulgate regulations specifying ``those 
provisions of this [Act] for which it is appropriate to treat Indian 
tribes as States'' but does not require Indian Tribes to develop CAA 
programs.
    Further, the State program submittal deadlines in the statute are 
based upon a relatively long history of Clean Air Act planning and 
implementation by States.14 States have assumed an active role in 
Clean Air Act implementation since the 1970 Amendments to the Act. By 
comparison, in substantial part, Tribal authority for Clean Air Act 
programs was expressly addressed in the Act for the first time in the 
1990 Amendments. Tribes, therefore, are at best in the early stages of 
developing air program expertise and planning efforts. Accordingly, EPA 
believes it would be both infeasible and inappropriate to subject 
Tribes to the State program submittal and related deadlines in the 
statute as explained in more detail below.
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    \1\4Note also that many of the submittal deadlines run from the 
enactment of the 1990 Amendments to the Clean Air Act on November 
15, 1990. Therefore, Tribes submitting programs in response to the 
final rule authorizing the treatment of Tribes as States for those 
provisions would already be substantially behind in meeting the 
deadlines.
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    A related set of provisions are the sanctions and other Federal 
oversight mechanisms in the Act which are triggered when States fail to 
meet the air program submittal deadlines called for in the Act or when 
EPA disapproves a program submittal. In several instances, the Act 
mandates the imposition of sanctions, such as Federal transportation 
funding restrictions and two-to-one new source review offsets, by a 
specific deadline if a State fails to timely submit a required program 
or submits a program that is not fully approvable. E.g., CAA sections 
179 and 502(d)(2)(B). Similarly, the Act often imposes specific 
deadlines upon EPA for issuing a Federal program within a certain 
period after a State fails to submit a program or after EPA disapproves 
an inadequate State program. E.g., CAA sections 110(c)(1) and 
502(d)(3). For the reasons stated above, EPA is proposing not to treat 
Tribes in the same manner as States for certain provisions contained in 
these sections.
    However, EPA is proposing to treat Tribes in the same manner as 
States for those provisions that mandate the imposition of Federal 
sanctions for failure to adequately implement or enforce an approved 
Clean Air Act program. E.g., CAA sections 179(a)(4) and 502(i)(2). This 
includes EPA's authority to withhold all or part of air pollution 
control grants awarded under section 105. EPA is proposing to treat 
Tribes in the same fashion as States for the purposes of mandatory 
sanctions for nonimplementation of an approved Tribal program because 
once a Tribe has sufficient legal authority and capability to have a 
program approved, it should be treated as a similarly situated State. 
Thus, EPA expects a Tribe to follow through on its implementation of an 
approved program in the same manner as a State. This will provide an 
incentive for Tribes to maintain the primary role in implementing a 
previously approved air program and to administer effective programs. 
In addition, EPA will also treat Tribes in the same fashion as States 
with respect to EPA's discretionary authority to impose sanctions. 
E.g., sections 110(m), 502(d)(2), and 502(i)(1).
    The approach EPA is proposing today regarding Clean Air Act 
deadlines and Federal sanctions is consistent with the approach 
outlined under Parts II.B. and II.C. of this notice. EPA's principal 
goal is to have Tribes develop and administer their own CAA programs. 
As indicated, EPA intends to issue guidance subsequent to this rule 
that sets out in some detail the Federal efforts and timetables for 
providing broader air quality protection for reservation air resources 
in those instances when Tribes choose not to develop their own 
programs. EPA intends to provide direct Federal Clean Air Act 
protection on reservations if, after some reasonable time, its efforts 
to assist Tribes in developing Tribal programs under the Act do not in 
fact lead to Tribal program adoption and approval.
    a. National Ambient Air Quality Standards applicable implementation 
plan submittal deadlines and related sanctions. Consistent with the 
general discussion above, EPA is not proposing to treat Tribes in the 
same manner as States for the general implementation plan submittal 
deadlines specified in section 110(a)(1) of the Act. Further, Tribes 
will not be subject to the plan submittal deadlines for nonattainment 
areas set out in sections 172(a)(2), 182, 187, 189, and 191. EPA also 
is not proposing to treat Tribes in the same manner as States for the 
deadlines set out in section 124, associated with the review and 
revision of implementation plans related to major fuel burning sources.
    However, EPA is proposing to treat Tribes in the same manner as 
States with respect to the statutory requirements that will apply in 
evaluating a Tribal program once a Tribe has decided to make a 
submittal. Further, as indicated previously, EPA intends to issue 
guidance specifying timeframes by which it will provide Federal 
protection for Tribes that have air quality worse than the NAAQS but 
are unable to develop their own CAA programs. The timing of Federal 
protection will be informed by the applicable Clean Air Act NAAQS 
attainment deadlines.
    Also consistent with the general discussion above, EPA is not 
proposing to treat Tribes in the same manner as States for the 
imposition of certain mandatory sanctions by EPA under section 179 
because a Tribe has failed to submit a Tribal Implementation Plan (TIP) 
or other requirement, has made an incomplete submittal, or has made a 
submittal that is in part or in whole not approvable. See CAA section 
179(a)(1)-(3); see also discussion under Part III.C.1. of this 
preamble, concerning EPA's ``modular'' approach to Tribal Air Programs 
(TAPs). However, EPA is proposing to treat Tribes in the same manner as 
States for those provisions of section 179 mandating the imposition of 
sanctions when EPA determines that a requirement of an approved plan is 
not being implemented. See CAA section 179(a)(4). In addition, EPA is 
proposing to treat Tribes in the same manner as States with respect to 
EPA's discretionary authority to impose sanctions. See CAA section 
110(m).
    EPA is not proposing to treat Tribes in the same manner as States 
for the provisions of section 110(c)(1) that direct EPA to issue a 
Federal Implementation Plan (FIP) within two years after EPA finds that 
a State has failed to submit a required plan or has submitted an 
incomplete plan or within two years after EPA has disapproved a plan in 
whole or in part. This exception would apply only for that provision of 
section 110(c)(1) that sets a specified date by which EPA must issue a 
FIP. Treating Tribes in a similar manner as States under that provision 
would be inappropriate since Tribes are not in the first instance, like 
States, required to make submittals by a date certain, and in light of 
the very recent initiation of Tribal air quality planning efforts. EPA 
is proposing to treat Tribes in the same manner as States for all other 
provisions of section 110(c)(1). Thus, EPA would continue to be subject 
to the basic requirement to issue a FIP for affected areas within some 
reasonable time. EPA would give substantial weight to Tribal air 
quality needs in determining what is reasonable in particular 
instances. Further, as discussed in Part II.B., EPA intends to spell 
out in subsequent guidance the specific programs that EPA will 
implement to provide CAA protection within reservations and on other 
lands subject to Tribal jurisdiction.
    However, EPA is proposing to treat Tribes in the same manner as it 
treats States for the State Implementation Plan/Tribal Implementation 
Plan (SIP/TIP) call provisions under sections 110 (a)(2)(H)(ii) and 
(k)(5) of the Act. These provisions authorize EPA to require a State to 
revise a plan that is inadequate to assure attainment and maintenance 
of the relevant NAAQS or is otherwise inadequate to ensure compliance 
with applicable Clean Air Act requirements. Thus, once a Tribal 
Implementation Plan has been approved in whole or in part as meeting an 
applicable CAA requirement, Tribes will be similarly subject to these 
SIP/TIP call provisions.
    b. Visibility implementation plan submittal deadlines. EPA is not 
proposing to treat Tribes in the same manner as States for the 
provisions of section 169A or implementing regulations requiring the 
submittal of visibility implementation plans by specific deadlines. 
Under today's proposal, Tribes would be treated in the same manner as 
States for all other purposes under section 169A and its implementing 
regulations.
    c. Interstate air pollution and visibility transport. Commission 
plan submittal deadlines. EPA is not proposing to treat Tribes in the 
same manner as States for those interstate commission CAA provisions 
requiring the submittal of an applicable implementation plan by a 
specific date. See CAA sections 169B(e)(2), 184 (b)(1) & (c)(5). 
However, EPA is proposing to treat Tribes in the same manner as States 
for all other interstate commission-related provisions under sections 
169B, 176A and 184 of the CAA.
    Therefore, for example, Tribes meeting eligibility requirements for 
these provisions of the CAA would be treated in the same manner as 
States in identifying what areas should be included in ``interstate'' 
air pollution and visibility transport regions and in establishing 
commission membership. For eligible Tribes participating as members of 
such Commissions, the Administrator would establish those submittal 
deadlines that are determined to be practicable or, as with other non-
participating Tribes in an affected transport region, provide for 
Federal implementation of necessary measures.
    d. Criminal enforcement. In general, EPA is proposing that the 
enforcement provisions of sections 113 and 114 of the Act apply to 
Tribes in the same way that they apply to States. This would include 
the ability of a Tribe to establish its own administrative enforcement 
program, so that the Tribe could enforce administrative as well as 
civil penalties. In both cases, EPA would have the authority to take 
necessary enforcement action if the Tribe did not take such action or 
did not enforce adequately (e.g. did not impose a sufficient penalty); 
however, it would be most prudent for Tribes to attempt enforcement in 
the first instance. It should also be noted that EPA has a general 
policy of consulting with Tribal leaders and managers prior to taking 
an enforcement action against Tribal owned or managed facilities. 
November 8, 1984 ``EPA Indian Policy Implementation Guidance'' at p. 6.
    Section 113(c) of the CAA provides for the imposition of criminal 
penalties. However, in certain circumstances Indian Tribes have limited 
criminal enforcement authority. Federal law prohibits Indian Tribes 
from holding criminal trials of or imposing criminal penalties on non-
Indians, in the absence of a treaty or other agreement to the contrary. 
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). In addition, 
the Federal Indian Civil Rights Act prohibits any Indian Tribe from 
imposing for conviction of any one offense any criminal fine greater 
than $500. 25 U.S.C. section 1302(7). To provide for the possible 
imposition of criminal penalties with respect to facilities located on 
Tribal lands, each Tribe seeking approval of a CAA program that 
requires such authority must enter into a formal Memorandum of 
Agreement with EPA, through which it would agree to provide for the 
timely and appropriate referral of criminal enforcement matters to the 
EPA Regional Administrator.
    e. Title V operating permit program submittal deadlines, 
implementation deadlines and other requirements. For the reasons stated 
in the introduction to this section of the preamble, EPA is not 
proposing to treat Tribes in the same manner as States for the 
operating permit program submittal deadline set out in section 
502(d)(1). Similarly, EPA is not proposing to treat Tribes in the same 
manner as States under the provisions of section 502(d)(2)(B) that 
mandate the imposition of sanctions under section 179 when a State 
fails to timely submit a required permit program or EPA disapproves a 
permit program. EPA also is not proposing to treat Tribes as States for 
the provisions of section 502(d)(3) that direct EPA to promulgate and 
administer a Federal permit program if, within two years after the 
required submittal date, EPA has not approved a State permit program. 
Similar to the companion provision in Title I described above (i.e., 
section 110(c)(1)), EPA is proposing to exclude only those limited 
provisions of section 502(d)(3) that direct EPA action by a date 
certain (EPA would continue to be subject to the basic requirement to 
implement a Federal permit program within a reasonable period; EPA 
would give substantial weight to Tribal air quality needs in 
determining what is reasonable in particular instances). These 
provisions are inappropriate because Tribes are not in the first 
instance directed by the statute to submit their own programs and in 
light of the fact that the Tribal CAA program development efforts are 
at a very preliminary stage.
    However, Tribes will be subject to the sanctions provisions of 
section 502(i) (1)-(4) in the same manner as States. Section 502(i) 
provides for the discretionary and mandatory imposition of section 179 
sanctions when EPA determines that a permitting authority is not 
adequately administering and enforcing an operating permit program, or 
a portion thereof. Thus, once a Tribe submits an operating permit 
program and EPA approves that program, Tribes will be subject to the 
sanction provisions of section 502(i)(1)-(4) in the same way that 
States are. In addition, Tribes will be treated in the same manner as 
States with respect to EPA's discretionary authority to impose 
sanctions under section 502(d)(2)(A).
    EPA is also not proposing to treat Tribes in the same manner as 
States for the interim approval provisions in section 502(g) of the 
Act. Those provisions authorize EPA to temporarily grant approval to a 
program that in substantial part meets the requirements of the Act, but 
that is not fully approvable. An interim approval under these 
provisions expires on a date established by EPA but not later than two 
years after the approval. Section 502(g) provides that the Title V 
sanctions provisions and obligations of the Administrator to promulgate 
a Federal operating permit program are suspended during this interim 
period.
    The interim approval provisions allow EPA to grant States 
submitting a substantially satisfactory permit program up to two 
additional years to submit a fully approvable program without risk of 
sanctions and Federal implementation. These provisions are an adjunct 
of the statutory deadline requiring the submittal of State Title V 
operating permit programs by November 15, 1993. If States were not in 
the first instance required to submit operating permit programs by that 
date certain, the relief of additional time to submit an approvable 
program without the risk of Federal penalties would be unnecessary. As 
stated previously, EPA is not proposing to treat Tribes in the same 
manner as States for Title V program submittal deadlines. Accordingly, 
EPA is also not proposing to treat Tribes in the same manner as States 
for this related interim approval authority.
    Consistent with the general modular approach proposed with respect 
to Tribal programs (discussed below), EPA intends to allow Tribes some 
additional flexibility in implementing Title V programs. For example, 
EPA may allow Tribes to extend the period for permitting affected Title 
V sources over as long as five years from program approval. 
Accordingly, EPA is not proposing to treat Tribes in the same manner as 
States for those provisions of section 503(c) of the Act that direct 
permitting authorities to establish a phased schedule for acting on 
permit applications submitted within the first full year after the 
effective date of a permit program (or a partial or interim program). 
Section 503(c) provides that the phased schedule shall assure that at 
least one-third of such permit applications will be acted on by the 
permitting authority over a period of not to exceed three years after 
the effective date. EPA is not proposing to subject Tribes to these 
provisions. While it is possible that EPA may require some Tribes to 
permit affected sources within three years, EPA nevertheless wants to 
retain the discretion to allow Tribes up to five years to permit 
affected Title V sources after the date of program approval.
    Further discussion of Title V requirements is set out below under 
the portion of this notice titled ``Revisions to CAA Implementing 
Regulations.''
    f. Small business assistance program submittal deadline and 
compliance advisory panel requirement. EPA is not proposing to treat 
Tribes in the same manner as States for the provisions of section 
507(a) specifying a deadline for the submittal of plans for 
establishing a small business stationary source technical and 
environmental compliance assistance program. EPA also is not proposing 
to treat Tribes in the same manner as States under section 507(e) which 
directs States to establish a Compliance Advisory Panel. Both of these 
provisions are inconsistent with section 301(d), which authorizes but 
does not require Tribes to develop and submit Clean Air Act programs to 
EPA for approval. However, if a Tribe elects to establish a Compliance 
Advisory Panel under section 507(e), the membership specified in 
section 507(e)(2) shall be selected by the Tribal leader, legislative 
bodies and Tribal agencies that correspond with those identified for 
States.
    Generally, the preceding discussion identifies those provisions of 
the CAA for which EPA is not proposing to treat Tribes in the same 
manner as States. EPA is proposing that Tribes be treated in the same 
manner as States for all other provisions of the statute.
3. Stringency of Tribal Regulations
    Under the Clean Air Act, States generally retain legal authority to 
impose requirements that are more stringent that Federal standards. 
Section 116 of the Act, 42 U.S.C. 7416, expressly reserves States' 
authority to impose air pollution control requirements that are more 
stringent than those specified under the Act. This State discretion is 
retained except where the Act explicitly preempts or precludes the 
establishment of stricter State standards.
    In certain instances under the Act uniformity is necessary to avoid 
an undue burden on the interstate sale of goods. In such instances, 
Congress has expressly prevented States from imposing stricter State 
standards and, therefore, the Federal requirements under the Act 
represent both the nationwide floor and ceiling. For example, section 
209 of the Act, 42 U.S.C. section 7543, limits States' authority to 
adopt and enforce emission standards for new motor vehicles.
    EPA is proposing to treat Tribes in the same manner as States for 
the purposes of both section 116 of the Act and for all of the CAA 
preemption provisions, including provisions such as section 177 that 
authorize exclusions from preemption provisions. This will clarify 
EPA's position that Tribes like States generally have authority to 
exceed minimum Federal requirements. It will also clarify the fact that 
Tribes, like States, are preempted from imposing stricter standards 
where Congress has so specified. This will advance the overarching 
purpose of the preemption provisions to avoid undue barriers on the 
trade of goods in commerce.
4. Provisions for Which no Separate Tribal Program Required.
    Under some provisions of the CAA, Tribes would have a specific role 
by virtue of having met the minimum eligibility requirements discussed 
in Part III.A, irrespective of whether a specific program is approved.
    For example, under section 107(d)(3), the Administrator would 
notify an eligible Tribe of information indicating that an area within 
the Tribe's jurisdiction should be redesignated, and the Tribe would 
have an opportunity to provide input on that redesignation in the same 
fashion as a State. Under section 107(d)(3) a Tribe could also submit a 
revised designation of any area within its jurisdiction on its own 
motion. Similarly, under section 112(r)(7)(B)(iii), risk management 
plans would be submitted to Tribal Emergency Response Commissions.
    Under sections 169B, 176A and 184 Tribes meeting eligibility 
requirements for such provisions shall be treated in the same manner as 
States in identifying what areas should be included in interstate air 
pollution and visibility transport regions and in establishing 
commission membership.15
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    \1\5EPA always retains any general discretionary authority to 
make Federal Indian Reservations part of a transport Region and to 
include representatives of Indian Tribes as interstate transport 
Commission members.
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    Also, treating Tribes in the same manner as States for purposes of 
section 505(a)(2) would require permitting authorities under Title V to 
notify an eligible Tribe that is contiguous to a State in which an 
emission originates and whose air quality may be affected by that 
emission, or that is within 50 miles of the emission source, of any 
Title V permit applications that are forwarded to EPA.16 
Permitting authorities would also be required to provide such Tribes an 
opportunity to submit written recommendations and to notify such Tribes 
in writing of any recommendations not accepted and the reasons why. See 
40 CFR 70.8(b)(2). Thus, special procedural provisions would apply to 
Tribes treated in the same manner as States for the purpose of Title V 
notification. This Title V notification and permitting authority 
obligation to explain any recommendations not accepted would apply 
regardless of whether an eligible Tribe has an approved Title V 
program.
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    \1\6The geographic scope of Tribal lands for Title V 
notification purposes would include any lands over which an eligible 
Tribe has been determined to have jurisdiction, including any off-
reservation lands.
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    As elaborated below, EPA expects that most recognized Tribes will 
be able to readily meet the eligibility requirements for such 
provisions as Title V permit application notification. To promote 
intergovernmental coordination, EPA encourages States and local 
governments to take steps now to provide Title V notification to 
Tribes, instead of waiting for a formal eligibility determination by 
EPA. EPA also encourages Tribes to exercise the notification rights 
that extend to any citizen under the Title V program in the interim 
period preceding a Tribal eligibility determination, if necessary to 
ensure notification. The regulations implementing the Title V operating 
permit program generally require that permitting authorities must 
provide adequate procedures for public notice including offering an 
opportunity for public comment and a hearing on the draft permit. See 
40 CFR 70.7(h). These procedures include providing notice of draft 
permit proceedings to persons on a mailing list developed by the 
permitting authority, including those who request in writing to be on 
the list. See 40 CFR 70.7(h)(1). Thus, a Tribe not determined eligible 
to be treated in the same manner as a State for notification could 
nevertheless ensure that it receives notification of draft permits by 
submitting a written request for such notification to appropriate 
permitting authorities.
    EPA intends to revise existing CAA regulations to reflect this 
Tribal authority as part of its on-going regulatory development 
efforts. EPA also requests public comment identifying any other 
provisions of the CAA which similarly do not require a Tribal program 
submittal in order for a Tribe to have a role in CAA implementation.
    In all instances, including those provisions of the Act for which 
no separate Tribal program submittal is required, it is a statutory 
requirement that a Tribe meet the section 301(d)(2) eligibility 
requirements, discussed in Part III.A above, before it may be treated 
in the same manner as a State. However, as a practical matter, this 
should not be burdensome. Often the provisions not requiring 
accompanying program submittals are intended to promote 
intergovernmental coordination and involve receipt or transmittal of 
information or active participation on a multigovernmental entity. 
Therefore, a minimal demonstration would be necessary to establish 
Tribal capability to carry out these functions consistent with the 
terms and purposes of statutory and regulatory requirements. Further, 
under today's proposed streamlined procedures for determining 
eligibility, EPA has generally simplified the demonstration that must 
be made for eligibility approval. Taken together with the minimum 
capability needed to carry out these particular requirements, most 
Federally recognized Tribes are expected to be able to readily 
demonstrate eligibility to be treated in the same manner as States for 
CAA provisions not requiring a program submittal.

C. Procedures for Review of Tribal Air Programs

    In general, Tribes will be required to comply with the same 
statutory and regulatory requirements as States for the CAA programs 
that are submitted to EPA for approval. The main difference is that 
section 301(d) does not require Tribes to develop CAA programs. Thus, a 
Tribe may decide to implement only those programs, or even portions of 
programs, that are most relevant to the air quality situation on its 
reservation or other lands subject to its jurisdiction. This ``modular 
approach'' to Tribal CAA program development is discussed further in 
Part III.C.1 below.
    In addition, section 301(d)(3) of the Act provides that:

    [t]he Administrator may promulgate regulations which establish 
the elements of tribal implementation plans and procedures for 
approval of tribal implementation plans and portions thereof.

    Section 301(d)(4) provides that:

    [i]n any case in which the Administrator determines that the 
treatment of Indian tribes as identical to States is inappropriate 
or administratively infeasible, the Administrator may provide, by 
regulation, other means by which the Administrator will directly 
administer such provisions so as to achieve the appropriate purpose.

    Further, as discussed previously, section 301(d)(2) delegates to 
the Administrator broad discretion in determining those provisions of 
the Act for which it is appropriate to treat Tribes as States.
    EPA interprets these provisions to mean that, both in the case of 
TIPs and in the case of other Tribal air programs (``TAPs''), where EPA 
finds that it is not appropriate for the same requirements to apply to 
Tribes as to States, EPA may modify those requirements by rulemaking. 
Accordingly, in this rulemaking EPA is proposing to make some changes 
to the State requirements for Tribal CAA programs. In addition, EPA is 
proposing to allow a Tribe to demonstrate to EPA that a specific CAA 
requirement may be inappropriate for that Tribe in light of the 
circumstances presented in a particular case. These issues are 
discussed further in Parts III.C.2 and C.3 below.
1. Modular Approach to Tribal Air Programs
    Because Tribal governments have limited resources, and because 
Federal funding to support Tribal efforts is also limited, Tribes may 
decide to implement only certain of the CAA provisions for which EPA 
has determined it is appropriate to treat Tribes in the same manner as 
States. In order to provide flexibility and incentive for Tribal 
governments to assume responsibility for CAA programs, Tribes may 
submit reasonably severable elements of programs to EPA for approval 
instead of entire complex programs. However, in order to be approved, 
any such submittal must meet all applicable minimum Federal 
requirements.
    As one of the first steps in identifying Tribal priorities, EPA 
encourages Tribes to thoroughly assess their current air quality 
through emission inventories. Tribes should develop an accurate, 
comprehensive and current inventory of emissions from all sources of 
air pollution within the reservation and should project potential 
future emissions based on likely growth. This will help Tribes estimate 
the nature and location of air quality problems and, in turn, help 
prioritize Tribal CAA program development.17 Note that EPA has 
issued detailed guidance on how to conduct emission inventories.18
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    \1\7As discussed in Part II.B. above, EPA intends to provide 
Tribal air quality protection when Tribes do not develop such 
programs. EPA's efforts will take place in a prioritized, phased-in 
fashion due to limitations on Federal resources.
    \1\8See Volumes I-V of the Procedures for Emission Inventory 
Preparation--Volume I: Emission Inventory Fundamentals, EPA-450/4-
81-026a, Sept. 1981; Volume II: Point Sources, EPA-450/4-81-026b, 
Sept. 1981; Volume III: Area Sources, EPA-450/4-81-026c, Sept. 1981; 
Volume IV: Mobile Sources, EPA-450/4-81-026d, 1992; Volume V: 
Bibliography, EPA-450/4-81-026e, Sept. 1981. The Clearinghouse for 
Inventories and Emission Factors, (919) 541-5285, has information on 
obtaining copies of these and other emission inventory guidance 
documents.
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    The results of Tribal emissions inventory assessments and 
projections regarding future growth will help Tribes to determine 
whether relatively few or many activities will need to be implemented 
immediately. Some minor problems may be addressed through public 
education and basic strategies to control the sources of pollution. 
Other problems may require some combination of monitoring, modelling 
and the development of Tribal plans and regulations. If future growth 
in emissions is projected, Tribes should also consider developing 
programs for the Prevention of Significant Deterioration of Air Quality 
(``PSD''). See Addendum A, ``Title I'' discussion (overview of the PSD 
program) and Part III.D.
    Where the emissions inventory reveals a potential air quality 
problem, air quality monitoring can help further characterize the 
potential problem. EPA has issued regulations and guidance on air 
quality monitoring. EPA's air quality monitoring regulations are set 
out at 40 CFR part 58. Among other things, Appendices A through G to 40 
CFR part 58 describe air quality network design, criteria for citing 
air quality monitors and quality assurance criteria.
    In prioritizing Tribal efforts, Tribes should also evaluate the 
expertise and resource requirements needed to implement desired 
programs. As stated above, Tribes will be given the flexibility of 
implementing programs in a modular fashion. Thus, Tribes can develop 
reasonably severable CAA programs to address particular air quality 
problems and submit them to EPA for approval.
    For example, a Tribe having a PM-10 air quality problem may develop 
a partial PM-10 nonattainment implementation plan that addresses 
pollution from existing sources but does not, for example, contain a 
program governing the review of new sources that propose to locate in 
the area. EPA would not decline to approve the submittal until the 
Tribe developed a nonattainment new source review program for PM-10 or 
developed a plan for addressing an ozone pollution problem.
    Similarly, a Tribe having relatively good air quality and 
anticipating likely new source growth in the area may choose to focus 
resources on developing a PSD program. The CAA's PSD permit program 
provides for preconstruction review of the air quality impacts 
associated with proposed new or modified major stationary sources in 
areas meeting air quality standards. The permitting process is to 
ensure that the proposed source employs state-of-the-art control 
technology, does not cause or contribute to an exceedance of air 
quality standards, and does not adversely impact National Parks and 
Wilderness areas.
    A Tribe may develop and submit to EPA for approval a PSD permit 
program alone. A Tribe expecting certain categories of new source 
growth may develop and submit to EPA for approval a PSD permit program 
addressing those sources or source categories.19 Under the rule 
proposed today, if the implementation plan elements or other partial 
CAA program submitted by the Tribe is reasonably severable and meets 
the applicable minimum requirements under Federal law, EPA will approve 
the submittal.
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    \1\9As described elsewhere in this notice, EPA will issue PSD 
permits for any sources not covered by an approved PSD program.
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2. Procedures for Reviewing and Approving Tribal Implementation Plans 
(``TIPs'')
    The CAA contains provisions which specifically govern EPA's review 
and processing of the State implementation plans (SIPs) developed under 
Title I of the Act to provide for attainment and maintenance of the 
national ambient air quality standards (NAAQS). See Addendum A, ``Title 
I'' discussion. These provisions are set forth in section 110(k) of the 
Act. The CAA authorizes EPA to amend, by regulation, the procedures 
governing the review and processing of analogous Tribal implementation 
plans (TIPs). See sections 110(o) and 301(d)(3).
    In broad terms, section 110(k)(1) provides the criteria EPA is to 
apply in determining whether a submittal is complete and therefore 
warrants further review and action. See also 57 FR 13,498, 13,565 
(April 16, 1992). The EPA's completeness criteria for SIP submittals 
are set out at 40 CFR Part 51, Appendix V. EPA is required to make 
completeness determinations within 60 days of receiving a SIP 
submittal. However, a submittal is deemed complete by operation of law 
if a completeness determination has not been made by EPA within 6 
months of EPA's receipt of the submittal. Section 110(k)(1) & 57 FR at 
13,565.
    Section 110(k)(3)-(4) address EPA's review of submittals that have 
been deemed complete. For example, section 110(k)(3) provides that EPA 
shall fully approve submittals that meet all of the applicable 
requirements of the Act, and partially approve and disapprove 
submittals that meet only a portion of the applicable requirements. 
Section 110(k)(4) further authorizes EPA to conditionally approve 
commitments by a State to adopt specific enforceable measures by a date 
certain that is no later than one year after the approval. The 
conditional approval is automatically converted to a disapproval if the 
State fails to fulfill the commitment. Section 110(k)(2) directs EPA to 
act on a submittal within 12 months of determining it to be complete. 
The Act calls for the imposition of sanctions and the issuance of a 
Federal implementation plan when a State fails to submit a required 
plan or such plan is disapproved. See sections 110(c)(1), 110(m) and 
179 of the Act. Guidance on EPA's implementation of these and related 
provisions is set out in a July 9, 1992 memorandum from John Calcagni, 
``Processing of State Implementation Plan (SIP) Submittals.''
    As indicated previously, the Act does not require Tribes to submit 
TIPs. For that reason and other reasons specified above, EPA is not 
proposing to treat Tribes in the same manner as States for the 
implementation plan submittal deadlines specified in the Act. See Part 
III.B above. Further, EPA is proposing to accept any reasonably 
severable portion of an applicable Tribal implementation plan.
    EPA is proposing to apply the completeness criteria to TIPs in the 
manner described below. If a Tribe submits a reasonably severable 
portion of a TIP that meets applicable completeness criteria, EPA will 
continue to process the submittal. If the submittal is incomplete EPA 
will return it to the Tribe, identifying the deficiencies. EPA will 
exercise one of two options with respect to a complete TIP submittal. 
EPA will fully approve any portion of a TIP if it is reasonably 
severable and meets the applicable Federal requirements. For any 
portion that is not approvable, EPA will disapprove the submittal and 
work closely with the Tribe to correct the identified deficiencies. 
However, as noted earlier in Part III.B, EPA's disapproval of a TIP 
will not have the mandatory sanctions consequences that apply to States 
under section 179 of the Act or the consequences under section 
110(c)(1) of requiring a FIP within two years of the disapproval.
    As with SIPs, TIPs should be submitted to the EPA Regional Office 
for the region in which the Tribe is located. Addendum B to this notice 
contains a list and the addresses of EPA's Regional Offices and a map 
indicating the regions that they encompass. Any Tribes that have not 
yet been determined to be eligible by EPA for CAA program purposes must 
submit the materials described in Part III.A above, in conjunction with 
any TIP submittal.
3. Procedures for Reviewing Other Tribal Air Programs (``TAPs'')
    EPA will review all other Tribal air program submittals in light of 
the applicable statutory and regulatory requirements as well as EPA 
policy, including the modular concept described above. EPA is proposing 
in today's rule to treat Tribes in the same manner as States for all of 
the provisions of the CAA, with the limited exceptions identified in 
Part III.B & C above. However, EPA recognizes that in proposing this 
rule and obtaining comments, EPA may not have anticipated and 
identified all of those requirements applicable to States that would be 
infeasible or inappropriate to apply to Tribes. Therefore, EPA is 
proposing to add a regulatory provision that will generally allow 
Tribes to demonstrate to EPA, in conjunction with the submittal of a 
TAP, that treatment of a Tribe in the same manner as a State for a 
particular provision is inappropriate or administratively infeasible. 
EPA will review the Tribal demonstration and take appropriate action.
    TAPs should be submitted to the Regional Office for the region in 
which the Tribe is located. See Addendum B. EPA will internally review 
TAPs in the same manner as it reviews State submittals for the specific 
CAA programs presented, consulting with and obtaining the concurrence 
of the appropriate EPA offices. A determination that a TAP is not 
approvable or that a Tribe has not met the general eligibility 
requirements described in Part III.A above does not preclude the Tribe 
from making subsequent submittals at a future date. If EPA determines 
that a Tribal submittal is deficient or incomplete, EPA will work 
closely with the Tribe to identify and correct the deficiencies.

D. Revisions to CAA Implementing Regulations

    The regulations implementing the CAA span many pages of the Code of 
Federal Regulations. In today's action, EPA is proposing to add new 40 
CFR part 49, which will address the Tribal CAA authority described in 
this notice. To implement this authority EPA is also proposing to add a 
general requirement in part 49 that eligible Tribes will be treated in 
the same manner as States under all of EPA's existing, currently 
effective regulations implementing the Clean Air Act, except those 
regulations implementing provisions of the CAA for which EPA has 
concluded that it would be inappropriate to treat Tribes as States. 
Such exceptions are described in detail in Part III.B of this notice.
    EPA will undertake a major effort, in conjunction with forthcoming 
rulemaking initiatives and its periodic review and revision of existing 
regulations, to make conforming changes to all CAA implementing 
regulations. As examples, today's proposed rule contains conforming 
modifications to 40 CFR Parts 50 and 81. The discussion below also 
explains in detail how the existing regulations implementing new source 
review permitting requirements and Title V permit program requirements 
would be affected by the action proposed today. The general regulatory 
provision applying existing, currently effective regulations to Tribes, 
as described in the previous paragraph, will address the application of 
existing regulations during the interim period in which conforming 
changes are made to CAA regulations.
    Further, in Part IV below, EPA outlines potential ways in which 
EPA's administration of Federal financial assistance for Tribes may 
differ from States. Thus, EPA is proposing to make corresponding 
changes to regulations implementing Federal financial assistance 
requirements.
1. 40 CFR Part 35--State [Tribal] and Local Assistance
    EPA is proposing to make changes to its regulations at 40 CFR Parts 
35 related to Federal financial assistance. The proposed changes are 
described in detail in Part IV of today's preamble.
2. 40 CFR Part 49--Tribal Clean Air Act Authority
    The general Tribal authority provisions proposed in today's action 
will be codified at 40 CFR part 49. This includes the following: EPA's 
proposed interpretation of relevant jurisdictional issues, discussed in 
Part II; the proposed simplified eligibility criteria, discussed in 
Part III.A; the proposed finding that Tribes should generally be 
treated in the same manner as States under the CAA, the specific 
exceptions to this general finding, and the proposed provision 
authorizing Tribes to identify and request additional exceptions on an 
ad hoc basis, discussed in Part III.B, and; the general procedures for 
reviewing Tribal air programs, discussed in Part III.C.
3. 40 CFR Part 50--National Primary and Secondary Ambient Air Quality 
Standards
    EPA is proposing conforming changes to 40 CFR part 50. These 
modifications clarify that references to the term ``State'' in 40 CFR 
Part 50 include, as appropriate, ``Indian Tribe'' and ``Indian 
country.'' The revisions proposed clarify, for example, that under 40 
CFR 50.2(c), the promulgation of NAAQS shall not be considered in any 
manner to allow significant deterioration of existing air quality in 
any portion of Indian country (as defined in 18 U.S.C. 1151). They also 
clarify that in the same way that section 50.2(d) provides that States 
retain discretion to establish ambient air quality standards more 
stringent than the NAAQS, the establishment of NAAQS in no way 
prohibits Indian Tribes from establishing ambient air quality standards 
that are more stringent than the NAAQS.
4. 40 CFR Part 51--Requirements for Preparation, Adoption, and 
Submittal of Implementation Plans.
    The regulations in Part 51 contain the basic requirements for state 
implementation plans (SIP). However, EPA has not systematically updated 
40 CFR Part 51 since the passage of the 1990 Amendments to the Clean 
Air Act. In many instances these regulatory requirements are 
inconsistent with the revised law and are therefore inoperative as a 
matter of law. See CAA section 193 (``regulation * * * in effect before 
the date of enactment of the Clean Air Act Amendments of 1990 shall 
remain in effect according to its terms, except to the extent * * * 
inconsistent with any provision of this Act.'')
    To facilitate SIP development under the amended law, EPA has issued 
guidance documents. These documents reflected EPA's preliminary 
interpretations of the relevant Act requirements at that time. See, 
e.g., ``General Preamble for the Implementation of Title I of the Clean 
Air Act Amendments of 1990'' (57 FR 13498, April 16, 1992; 57 FR 18070, 
April 28, 1992); ``New Source Review (NSR) Program Supplemental 
Transitional Guidance on Applicability of New Part D NSR Permit 
Requirements'' (Issued by Office of Air Quality Planning and Standards 
Director on September 3, 1992); NOX Supplement to the General 
Preamble (57 FR 55620, November 25, 1992).
    EPA intends to update both the existing and new source regulatory 
requirements in Part 51 to make clear which regulatory provisions were 
rendered nugatory by the 1990 Amendments and which continue to have 
legal force.
    Interim implementation of applicable Title I requirements for 
Tribal lands should be guided by EPA's preliminary interpretations of 
the revised Title I requirements and the interpretive statements in 
this notice.
5. 40 CFR Part 52--Approval and Promulgation of Implementation Plans
    Federal PSD Permitting. EPA has issued rules that provide for 
Federal implementation of the PSD permit program (preconstruction 
permit requirements applicable to major stationary sources or major 
modifications20 in areas that currently meet the NAAQS). 40 CFR 
52.21. In the same manner as States, Federal implementation of a PSD 
program on Tribal lands applies in any case where the Tribe does not 
have an approved PSD program.
---------------------------------------------------------------------------

    \2\0Note that a proposed source in certain listed source 
categories is ``major'' for PSD purposes if it has the potential to 
emit 100 tons per year of any pollutant regulated under the Act. 
Other sources are ``major'' for PSD if their emissions may exceed 
250 tons per year. The regulatory definitions of ``major stationary 
source'' and ``major modification'' for the PSD program are set out 
at 40 CFR 52.21(b) (1), (2).
---------------------------------------------------------------------------

    EPA is undertaking a comprehensive regulatory effort to revise its 
PSD rules (and its nonattainment NSR program, see below) consistent 
with some of the changes made to the substantive PSD program under the 
revised Act (and as a part of a broader reform initiative). Since these 
revised rules have not yet been promulgated, EPA has issued detailed 
guidance addressing transitional and interim implementation issues 
associated with the changes made by the 1990 Amendments. See 57 FR 
18070 at 18074-77 (April 28, 1992) (Appendix D--``New Source Review 
(NSR) Program Transitional Guidance,'' March 11, 1991). At least until 
any further guidance is provided in EPA's NSR rulemaking, EPA's review 
and issuance of PSD permits for applicable sources proposing to locate 
on Tribal lands will be in accordance with the previously-issued PSD 
transitional permitting guidance, today's guidance, and 40 CFR 52.21, 
to the extent that the existing provisions of 40 CFR 52.21 are 
consistent with the amended Act.21 See section 193 of the Act.
---------------------------------------------------------------------------

    \2\1The 1977 Amendments to the CAA authorized Indian tribes to 
redesignate the classification of lands within the exterior 
boundaries of a reservation for PSD planning purposes. Section 
164(a), 42 U.S.C. 7474(c); Nance v. EPA, 645 F.2d 701 (9th Cir. 
1981), cert. den'd, 451 U.S. 1081 (1981). Area classifications for 
PSD determine the maximum increment of degradation that is 
permissible in a clean air area. Tribal authority to redesignate 
areas for this purpose is set forth in 40 CFR 52.21. Tribes continue 
to have this authority under the Act as amended in 1990.
---------------------------------------------------------------------------

    Federal NSR Permitting. 40 CFR 52.24(c) provides that 40 CFR part 
51, Appendix S (``Offset Ruling'') governs the issuance of NSR permits 
(required for the construction and operation of new and modified major 
stationary sources in nonattainment areas) where approved State rules 
are not in place. The Offset Ruling sets out EPA's interpretation 
regarding the conditions that are designed to ensure that sources and 
source modifications subject to the NSR requirements will be controlled 
to the greatest degree possible and that more than equivalent 
offsetting emission reductions will be obtained from existing sources, 
thus ensuring progress toward achievement of the NAAQS.
    The 1990 Amendments to the CAA added new provisions to the Act 
addressing the substantive NSR permitting requirements. See, e.g., 
sections 173, 182 and 189(b)(3) of the Act, 42 U.S.C. 7503, 7511a and 
7513a(b)(3). As with the new changes to the PSD program, EPA has issued 
guidance addressing the implementation of the revised nonattainment NSR 
requirements in the period before EPA's comprehensive regulations are 
adopted. See 57 FR 13498 (April 16, 1992); 57 FR 18070, 18075-77 (April 
28, 1992) (Appendix D--``New Source Review (NSR) Program Transitional 
Guidance,'' March 11, 1991); ``New Source Review (NSR) Program 
Supplemental Transitional Guidance on Applicability of New Part D NSR 
Permit Requirements'' (Sept. 3, 1992). In the interim period before EPA 
issues further guidance through its Federal nonattainment NSR 
rulemaking to implement the amended Act, EPA intends to conduct 
nonattainment NSR permitting on Tribal lands consistent with the Offset 
Ruling and the transitional EPA guidance addressing the revisions to 
the Act.
6. 40 CFR Part 70--State [and Tribal] Operating Permit Programs
    This discussion explains how the regulations at 40 CFR Part 70 
implementing the Title V operating permit program would be affected by 
today's proposed action. EPA is currently developing Federal rules to 
be codified in 40 CFR Part 71 that will authorize direct Federal 
implementation of Title V permit program requirements for States and 
Tribes that lack adequate program coverage.
    Program Submittal Deadlines and Processing. Program submittal 
deadlines are set out at 40 CFR 70.4(a). Tribes will not be compelled 
to develop and submit Title V permit programs to EPA for approval. 40 
CFR 70.4(e) addresses the processing of Title V program submittals. Any 
Tribal submittal that is incomplete or disapproved will be returned to 
the Tribe following such determination. To the extent possible, EPA 
will work with the Tribe to remedy deficiencies in the Tribal program. 
However, the timeframes governing EPA's processing of Tribal submittals 
will be the same as those applicable to State submittals.
    Program Coverage. The regulations call for States to issue permits 
that assure compliance with ``each applicable requirement * * * by all 
part 70 sources''. 40 CFR 70.4(b)(3)(i); see also 40 CFR 70.6(a)(1) 
(``[e]ach permit issued under this part shall include * * * [e]mission 
limitations and standards * * * that assure compliance with all 
applicable requirements at the time of permit issuance''). Approvable 
Tribal programs must address all affected Part 70 sources within a 
Tribe's jurisdiction.
    Deadlines for Permit Applications and Processing of Applications. 
40 CFR 70.5(a) requires the owner or operator of Part 70 sources to 
submit applications within 12 months of becoming subject to the 
program. 40 CFR 70.7(a)(2) requires the permitting authority to act on 
an application within 18 months of receipt. To ensure that permits are 
expeditiously submitted and reviewed, these deadlines will apply with 
equal force to Tribal programs, to the extent that Tribes elect to 
develop and implement such programs.
    40 CFR 70.4(b)(11) requires States to have a transition plan for 
acting on applications received within the first 12 months after 
approval, such that the State will act on one-third of the applications 
in each of the first three years of its program. This requirement 
overrides the 18-month requirement for acting on applications during 
the first 3 years. As discussed in Part III.B.2.e above, the 3-year 
implementation requirement in section 503(c) is among the provisions of 
the CAA for which EPA is not proposing to treat Tribes in the same 
manner as States. For Tribal programs, this initial program phase-in 
will be based on a schedule developed by the Regional Office in 
conjunction with each Tribe. This case-by-case approach will ensure 
that any transition adequately accounts for the scope of Tribal program 
coverage, the universe of Part 70 sources and the extent of Tribal 
expertise and resources. However, EPA is also proposing to provide that 
in no case shall such a transitional schedule exceed 5 years from the 
date of EPA's approval of the Tribal program.
    Enforcement. Required enforcement authority is set out in 40 CFR 
70.11. As stated above, Federal law prohibits Indian Tribes from 
holding criminal trials of or imposing criminal penalties on non-
Indians, in the absence of a treaty or other agreement to the contrary. 
Oliphant, at 435 U.S. 191. In addition, Federal law prohibits Indian 
Tribes from imposing for conviction of any one offense a criminal fine 
greater than $500. 25 U.S.C. section 1302(7). Tribes requesting Title V 
program approval will be required to enter into formal Memorandum of 
Agreement with EPA, through which it would agree to provide for the 
timely referral of criminal enforcement matters to the appropriate EPA 
Regional Administrator.
    Operational Flexibility. The three operational flexibility 
provisions at 40 CFR 70.4(b)(12) will be optional for Tribes as will 40 
CFR 70.6(a)(8), (10) (emissions trading in the permit) and 40 CFR 
70.6(a)(9) which requires States to include alternative operating 
scenarios, if requested, in their permits.
    Permit Issuance, Revisions Procedures. Generally, for the 
procedures governing permit issuance and revision, EPA will treat 
Tribes in the same manner as it treats States. While Tribes will have 
some flexibility regarding the form and manner of public notice 
requirements under 40 CFR 70.7(h), the minimum period for public notice 
will be 30 days for Tribes as with States.
    Tribes, like States, must have authority to reopen permits for 
cause, as required by 40 CFR 70.7(f).
    Application content requirements. These requirements are set out in 
40 CFR 70.5. These requirements will apply with equal force to sources 
within Tribal jurisdiction, since EPA believes that the information 
specified in this provision constitutes the minimum information that is 
essential to the issuance of an effective permit.
    Permit content requirements. These are found in 40 CFR 70.6(a), 
(c). The permit content requirements will generally apply to Tribes in 
the same manner in which they apply to States. These remaining 
requirements are necessary to an effective permit. These requirements 
include 40 CFR 70.6(a)(3), which requires the State and, under today's 
proposal, the Tribal permitting authority to insert monitoring 
requirements into the permit where the underlying monitoring 
requirement is deficient.
    Judicial Review. 40 CFR 70.4(b)(3)(x)-(xii) requires States to 
provide an opportunity for judicial review of a final permit action and 
for the State's failure to take such final action. Tribes will have to 
meet the same requirements.
    EPA Veto and Citizen Petition Process. 40 CFR 70.8 requires States 
to provide EPA with a 45-day review period and opportunity for veto. 
The provision further specifies that no permit may issue prior to the 
expiration of that period or at all over an EPA veto. It also provides 
citizens the right to petition EPA to veto a State-issued permit. These 
provisions will apply with equal force to Tribal programs.
    40 CFR 70.8(b) also requires that State programs provide that the 
permitting authority notify any affected States of each draft permit. 
This requirement to provide notice will apply with equal force to 
Tribal programs. Further, any State or Tribal permitting authority will 
provide notice to any affected Tribe in the same manner as the 
regulations require notification to affected States. See Part III.B.4 
above.
    General Revisions. References to States and State officials will 
include Tribes and corresponding Tribal officials.
7. 40 CFR Part 81--Designation of Areas for Air Quality Planning 
Purposes.
    EPA is proposing conforming regulatory changes to part 81, in light 
of today's proposal to treat Indian Tribes in the same manner in which 
it treats States under the air quality designation provisions set out 
at section 107 of the Act.
    Pursuant to section 107(d)(3) of the CAA EPA would notify eligible 
Indian Tribes that EPA has information indicating that an air quality 
designation for an Indian Reservation should be revised. Then, as with 
the Governor of an affected State, the relevant Tribal leader would 
have 120 days to reply to EPA. In addition, eligible Indian Tribes 
would on their own initiative have authority to submit a redesignation 
request to EPA for approval in the same way that States and the 
relevant Governors are authorized to under section 107(d)(3)(D) of the 
Act.
    EPA is proposing to add explicit definitions of Indian Reservation, 
Indian Tribe and State to 40 CFR Part 81. EPA is also proposing 
revisions to subpart C of Part 81 to reflect the authority that 
eligible Indian Tribes may have to initiate revisions to designations.
    Future air quality designations for eligible Tribes will be 
codified under an entry for the affected Indian Tribe in subpart C, 
Part 81 that is the same as State air quality designations under Part 
81.

IV. Federal Financial Assistance

A. Sources of Funding Assistance

    Financial assistance for Indian Tribes under the Clean Air Act is 
available via two principal authorities: grants for the support of air 
pollution planning and control programs under section 105 (42 U.S.C. 
7405); and grants for investigations, demonstrations and studies into 
the causes, effects, extent, prevention and control of air pollution 
under section 103 (42 U.S.C. 7403).
    In addition to these potential sources of funds under the Clean Air 
Act, EPA can provide Tribes funding assistance for air quality work 
under the Agency's Indian Environmental General Assistance Grants 
Program (40 CFR part 35, subpart Q). These grants provide funds to 
Tribes for planning, developing and establishing the capacity to 
implement environmental programs on Indian lands, regardless of the 
program's environmental media.
    Each of these assistance and fee programs carries various statutory 
and/or administrative requirements which are discussed and explained in 
this portion of the preamble. Proposed regulatory revisions are set out 
at the end of this notice.

B. Tribal Eligibility for Air Grant Assistance

    In today's action, EPA is proposing to modify certain regulatory 
and administrative limitations on the manner in which Indian Tribes 
qualify for and obtain financial assistance under the Act. EPA also 
seeks comment from interested parties on options in meeting the non-
Federal matching requirements for grants obtained under section 105 
authority. The financial assistance options are described below.
1. Section 103 Air Assessment Grants
    Tribes may apply for grant assistance to assess reservation air 
quality conditions under authority of section 103(b)(3) of the Act. 
Section 103(b)(3) allows EPA to fund investigations, research, surveys, 
and studies concerning any specific problem of air pollution in 
cooperation with any air pollution control agency. Tribes may undertake 
specific projects to assess Tribal air quality conditions at any time. 
Typically, Tribes will undertake such projects as an initial step, 
prior to initiating development and adoption of Tribal regulations to 
control air resources. Section 103(b)(3) grant funds are not available 
for developing Tribal capacity.
    Funds provided under section 103 are available to Tribes at up to a 
95% Federal share. Thus each recipient must contribute at least five 
percent of the total allowable project costs. The Agency believes that 
the five percent cost sharing requirement should be retained.
    EPA rules limit award of section 103 grants to a maximum of five 
years for any one project period. 40 CFR 40.125-1. This should allow a 
reasonable amount of time for Tribal recipients of assistance to assess 
the nature of their air quality and determine the extent of any air 
quality problems. However, the Agency will carefully consider requests 
for deviations under 40 CFR 31.6 for extensions of grant project 
periods. Further, section 103 is available for multiple project 
periods. Finally, Tribes that have received previous section 103 grants 
will remain eligible for future grants to fund appropriate projects at 
any time. The determination of each Tribal applicant's continued 
eligibility and the appropriate authority of award will be the 
responsibility of the appropriate Regional Administrator. As this 
suggests, Tribes not establishing eligibility to be treated in the same 
manner as States under section 301(d) will remain eligible, as they are 
currently, for assistance under section 103(b)(3).
2. Section 105 Air Program Grants
    The Agency encourages eligible Tribes to apply for continuing 
environmental assistance under authority of section 105 and 301(d) of 
the Act, particularly after a comprehensive assessment of reservation 
air quality conditions. Section 105 allows EPA to make grants for 
implementing programs for the prevention and control of air pollution 
or implementation of air quality standards.
    Currently, in order to be eligible to receive a grant under section 
105, a recipient must meet the definition of an air pollution control 
agency specified in section 302(b) of the Act. This definition includes 
``[a]n agency of an Indian tribe.'' See section 302(b)(5). Thus, 
section 302(b)(5) authorizes 105 grants to Tribes that have not 
established their eligibility to be treated in the same manner as 
States.
    The Act expressly provides that until the promulgation of these 
regulations, EPA may continue to provide section 105 grants to eligible 
Tribes on this basis. See section 301(d)(5). EPA believes that section 
301(d)(5) was intended to ensure that Tribes would be able to receive 
financial assistance while this regulation was being developed. The 
Agency does not believe that this provision, which on its face is 
designed to ensure Tribal access to funds, must be read to require that 
EPA cease awarding section 105 grants to Tribes not meeting the 
eligibility requirements after this regulation is issued.
    Consistent with this legal interpretation, this regulation provides 
two avenues for Tribes to obtain section 105 assistance. A Tribe that 
does not establish eligibility for treatment in the same manner as a 
state under section 301 but that is ``an agency of an Indian tribe,'' 
and therefore meets the definition of an ``air pollution control 
agency'' under section 302(b)(5), can obtain 105 funds, subject to the 
same limitations that apply to other 105 grant recipients. These 
limitations include the statutory requirement that the grant recipient 
contribute matching funds for 40% of the allowable project costs.
    Alternatively, Tribes that establish their eligibility to be 
treated in the same manner as States under section 301(d) may, like 
States, receive section 105 financial assistance. However, assistance 
to Tribes pursuant to 301(d) can be provided without being subject to 
every limitation that applies to such grants when made to States. 
Section 301(d)(4) expressly provides that, in cases where it is not 
appropriate to treat Tribes as identical to States, EPA ``may provide, 
by regulation, other means by which the [Agency] will directly 
administer such provisions so as to achieve the appropriate purpose.'' 
EPA believes that requiring the 40% match as a prerequisite for 
assistance under section 105 could impose an undue financial burden on 
Tribes; the Agency further believes it can best administer section 105 
to achieve the purpose of maximizing tribal access to this assistance 
by providing relief from the cost share requirement. However, based on 
statutory language, this special relief will, as noted above, only be 
available for Tribes that have established their eligibility to be 
treated in the same manner as states and therefore are eligible for 
financial assistance pursuant to section 301(d).
    This proposal seeks comments on the appropriate level of Tribal 
cost share for a section 105 grant match, from a minimum of 5% to a 
maximum of 40%. This proposal also seeks comments on the establishment 
of a phase-in period for Tribes to meet whatever match is ultimately 
required for section 105 grants.
    A 40% match of air grant funds under section 105 is currently 
required from States. However, when these air grants were originally 
awarded some 25 years ago, a 25% State match was required. Given the 
lack of Tribal financial resources, there is concern that even this 
lower level of Tribal match may not be appropriate in many instances. 
In addition, the Agency believes it may be appropriate to allow a Tribe 
establishing eligibility to be treated in the same manner as a state to 
begin receiving 105 assistance with a lower match, which would 
gradually be phased upward until it reaches some appropriate level.
    During the development of the regulation, EPA discussed the option 
of developing a sliding scale, with differing levels of match based on 
tribal demonstrations of ability to pay. This option is not being 
proposed in this regulation, due to the Agency's concern that requiring 
some tribes to pay a higher match than others could create barriers to 
participation by those tribes, and that all tribes experience resource 
constraints.
    The Agency also recognizes that its approach should be consistent 
with President Clinton's April 29 Presidential Memorandum on 
``Government-to-Government Relations with Native American Tribal 
Governments.'' 59 FR 22,951 (May 4, 1994). That Memorandum directs 
agencies to ``take appropriate steps to remove any procedural 
impediments to working directly and effectively with tribal governments 
on activities that affect the * * * governmental rights of the 
tribes.'' The Agency believes minimizing the burdens to participation 
by all tribes may be the approach most consistent with this directive.
    Although the Agency is not proposing a sliding scale, it requests 
comments on whether such an approach might be feasible and the criteria 
that could be used to determine the matching requirement for each grant 
recipient. The Agency solicits comments on: An appropriate initial 
match level equal to or exceeding five percent; the length appropriate 
for a phase-in period (if any) of the match; the rate at which the 
match would be phased upward; and an appropriate level for a permanent 
match requirement.
    The Clean Air Act also establishes one purpose for which Tribes may 
not be treated in the same manner as states. Under section 301(d)(1)(A) 
Tribes may not be treated in the same manner as States for purposes of 
section 105(b)(2) which ensures that each State applying for assistance 
have made available to it for application (but not necessarily for 
award) a minimum of one half of one percent of the total section 105 
amount annually appropriated under the Act.
3. Tribal Agencies and Consortia
    Section 103 and 105 assistance is currently available to an 
individual Tribe because it constitutes an air pollution control agency 
under section 302(b)(5). The Agency also believes it may be appropriate 
to provide assistance to groups of tribes, typically tribes with air 
resources that are either contiguous or similar in their 
characteristics, when those tribes join into consortia for the purpose 
of applying for and managing the air quality financial assistance 
described above. A consortium is a partnership between two or more 
Indian tribal governments authorized by their governing bodies. Tribes 
can join into consortia in circumstances they find appropriate. The 
``economies of scale'' made possible through Tribal consortia 
arrangements may allow for the assumption of air resource management 
responsibilities that may not otherwise be possible with small, single-
Tribe environmental agencies.
    Consortia will have discretion in demonstrating how they will meet 
the matching funds requirement. Therefore, when a consortium reaches 
the point that it must provide matching funds to obtain grant funds, 
the consortium may combine its resources to meet the requirement in any 
manner it deems appropriate.

C. Use of EPA General Assistance Grants

    EPA has recently issued regulations governing the use of Indian 
Environmental General Assistance Grants as required under 42 U.S.C. 
4368b. Indian Environmental General Assistance Program Act of 1992; 42 
U.S.C. 4368b, (58 FR 63876, December 2, 1993) codified at 40 CFR part 
35, subpart Q. The regulations establish requirements for applying for 
and utilizing general assistance funds. The Indian Environmental 
General Assistance Grants may be used by Tribes to fund program 
development activities in various environmental media, including air, 
and are thus considered to be an important means of establishing 
overall Tribal environmental program capability. Moreover, the award of 
these grants in no way precludes a Tribe from applying for, and being 
awarded, air grant assistance under section 103 or section 105 of the 
Act.

D. Additional Administrative Requirements

    Each Tribal application for assistance must still meet the Agency's 
general administrative requirements for grants which are set forth in 
more detail in 40 CFR Parts 31, 32 and 34 and which are not modified by 
this regulation. Additional requirements specific to section 105 air 
grants are detailed in 40 CFR 35 and, for section 103, in 40 CFR Part 
40.

V. Miscellaneous

A. Executive Order (EO) 12866

    Section 3(f) of EO 12866 defines ``significant regulatory action'' 
to mean any regulatory action that is likely to result in a rule that 
may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive order.
    This proposed rule was determined not to be a significant 
regulatory action. A draft of this proposed rule was nevertheless 
reviewed by the Office of Management and Budget (OMB) prior to 
publication because of anticipated public interest in this action 
including potential interest by Indian Tribes and State/local 
governments.
    EPA has placed the following information related to OMB's review of 
this proposed rule in the public docket referenced at the beginning of 
this notice:
    (1) Materials provided to OMB in conjunction with OMB's review of 
this proposed rule; and
    (2) Materials that identify substantive changes made between the 
submittal of a draft proposed rule to OMB and this notice, and that 
identify those changes that were made at the suggestion or 
recommendation of OMB.

B. Regulatory Flexibility Act (RFA)

    Under the RFA, 5 U.S.C. sections 601-612, EPA must prepare, for 
rules subject to notice-and-comment rulemaking, initial and final 
Regulatory Flexibility Analyses describing the impact on small 
entities. The RFA defines small entities as follows:

--Small businesses. Any business which is independently owned and 
operated and is not dominant in its field as defined by Small Business 
Administration regulations under section 3 of the Small Business Act.
--Small governmental jurisdictions. Governments of cities, counties, 
towns, townships, villages, school districts or special districts, with 
a population of less than fifty thousand.
--Small organizations. Any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.

    However, the requirement of preparing such analyses is inapplicable 
if the Administrator certifies that the rule will not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities. 5 U.S.C. 605(b).
    The proposed rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. Many Indian 
Tribes may meet the definition of small governmental jurisdiction 
provided above. However, the proposed rule does not place any mandates 
on Indian Tribes. Rather, it authorizes Indian Tribes to demonstrate 
their eligibility to be treated in the same manner as States under the 
Clean Air Act, to submit CAA programs for specified provisions and to 
request Federal financial assistance as described elsewhere in this 
preamble. Further, the proposed rule calls for the minimum information 
necessary to effectively evaluate Tribal applications for eligibility, 
CAA program approval and Federal financial assistance. Thus, EPA has 
attempted to minimize the burden for any Tribe that chooses to 
participate in the programs provided in this proposed rule.
    The proposed regulation will not have a significant impact on a 
substantial number of small businesses. Any additional economic impact 
on the public resulting from implementation of this proposed regulation 
is expected to be negligible, since Tribal regulation of these 
activities is limited to areas within Tribal jurisdiction and, in any 
event, EPA has regulated or may regulate these activities in the 
absence of Tribal CAA programs.
    The proposed regulation will not have a significant impact on a 
substantial number of small organizations for the same reasons that the 
proposed regulation will not have a significant impact on a substantial 
number of small businesses.
    Accordingly, I certify that this proposed regulation, if 
promulgated, will not have a significant economic impact on a number of 
small entities.

C. Executive Order (EO) 12875

    EO 12875 is intended to reduce the imposition of unfunded mandates 
upon State, local and Tribal governments. To that end, it calls for 
Federal agencies to refrain, to the extent feasible and permitted by 
law, from promulgating any regulation that is not required by statute 
and that creates a mandate upon a State, local, or Tribal government, 
unless funds for complying with the mandate are provided by the Federal 
government or the Agency first consults with affected State, local and 
Tribal governments.
    The issuance of this proposed rule is required by statute. Section 
301(d) of the CAA directs the Administrator to promulgate regulations 
specifying those provisions of the Act for which it is appropriate to 
treat Indian Tribes as States. Moreover, this proposed rule would not 
place mandates on Indian Tribes. Rather, as discussed in section V.B 
above, this rule authorizes or enables Tribes to demonstrate their 
eligibility to be treated in the same manner as States under the Clean 
Air Act and to submit CAA programs for the provisions specified by the 
Administrator. Further, the proposed rule also explains how Tribes 
seeking to develop and submit CAA programs to EPA for approval may 
qualify for Federal financial assistance.

D. Paperwork Reduction Act

    OMB has approved the information collection requirements pertaining 
to grants applications contained in this rule under the provisions of 
the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. and has assigned 
OMB control number 2030-0020.
    This collection of information pertaining to the grants application 
process has an estimated reporting burden averaging 29 hours per 
response and an estimated annual recordkeeping burden averaging 3 hours 
per respondent. These estimates include time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    The information collection requirements in this proposed rule 
pertaining to an Indian Tribe's application for eligibility to be 
treated in the same manner as a State or ``treatment as a State'' have 
been submitted for approval to OMB under the Paperwork Reduction Act, 
44 U.S.C. 3501, et seq. An Information Collection Request document has 
been prepared by EPA (ICR No. 1676.01) and a copy may be obtained from 
Sandy Farmer, Information Policy Branch; EPA; 401 M St., SW. (Mail Code 
2136); Washington, DC 20460 or by calling (202) 260-2740.
    This collection of information for Treatment in the Same Manner as 
States (TISMAS) to carry out the Clean Air Amendments has an estimated 
reporting burden of 20 annual responses, averaging 40 hours per 
response and an estimated annual recordkeeping burden averaging 800 
hours. These estimates include time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information.
    Send comments regarding these burden estimates or any other aspect 
of these collections of information, including suggestions for reducing 
this burden to Chief, Information Policy Branch; EPA; 401 M St., SW. 
(Mail Code 2136); Washington, DC 20460; and to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.'' The 
final rule will be accompanied with responses to OMB or public comments 
on the information collection requirements contained in this proposal.

VI. Request for Public Comments

    EPA requests public comments on all aspects of today's proposal, 
including the following: EPA's proposed interpretation of the Clean Air 
Act as delegating to Tribes jurisdiction over all air resources within 
the exterior boundaries of the reservation; EPA's proposed 
interpretation of the term ``reservation''; EPA's proposed 
interpretation that in enacting the CAA, Congress found that the 
activities regulated under the Act constitute a class of activities 
that, if left unregulated, could have serious and substantial adverse 
effects on public health and welfare, and accordingly, that these 
activities would generally be within the inherent civil regulatory 
authority of Tribes; EPA's position regarding Federally-administered 
Clean Air Act programs to provide protection for Tribal air resources; 
EPA's proposed implementation of its policy for streamlining 
eligibility determinations; the CAA provisions for which EPA is 
proposing to treat Indian Tribes as States, and the proposed exceptions 
that EPA has identified in this rule; EPA's general approach to 
encourage Tribal participation by allowing Tribes to submit reasonably 
severable portions of CAA programs; EPA's proposed procedures for 
reviewing Tribal air programs, including Tribal implementation plans 
developed under Title I of the CAA; EPA's proposed revisions to its 
implementing regulations, and; EPA's proposed administration of Federal 
financial assistance to Tribes.

VII. Electronic Filing of Comments

    A public docket has been established for this proposed rule under 
docket number ``A-93-3087'' (including comments and data submitted 
electronically as described below). The public docket is located in 
M1500, 401 M Street, Washington, DC 20460. The information contained in 
this public docket, including printed, paper versions of electronic 
comments is available for inspection from 8 a.m. to 4 p.m., Monday thru 
Friday, excluding legal holidays. Starting October 1, 1994, the docket 
will be open 8 a.m. to 5:30 p.m., excluding legal holidays.
     As part of an interagency ``streamlining'' initiative, EPA is 
experimenting with submission of public comments on selected rulemaking 
actions electronically through the Internet in addition to accepting 
comments in traditional written form. This proposed rule is one of the 
rulemaking actions selected by EPA for this experiment. From the 
experiment, EPA will learn how electronic commenting works, and any 
problems that arise can be addressed before EPA adopts electronic 
commenting more broadly in its rulemaking activities. Electronic 
commenting through posting to the EPA Bulletin Board or through the 
Internet using the ListServe function raise some novel issues that are 
discussed below in this Section.
    To submit electronic comments, persons can either ``subscribe'' to 
the Internet ListServe application or ``post'' comments to the EPA 
Bulletin Board. To ``Subscribe'' to the Internet ListServe application 
for this proposed rule, send an e-mail message to: 
[email protected] that says `` Subscribe RIN-2060-AE95 
 .'' Once you are subscribed to the ListServe, 
comments should be sent to: RIN-2060-AE[email protected].
    For online viewing of submissions and posting of comments, the 
public access EPA Bulletin Board is also available by dialing 202-488-
3671, enter selection ``DMAIL,'' user name ``BB____USER'' or 919-541-
4642, enter selection ``MAIL,'' user name ``BB____USER.'' When dialing 
the EPA Bulletin Board type  at the opening message. When the 
``Notescaret]'' prompt appears, type ``open RIN-2060-AE95'' to 
access the posted messages for this document. To get a listing of all 
files, type ``dir/all'' at the prompt line. Electronic comments can 
also be sent directly to EPA at: [email protected].
    To obtain further information on the electronic comment process, or 
on submitting comments on this proposed rule electronically through the 
EPA Bulletin Board or the Internet ListServe, please contact John A. 
Richards (Telephone: 202-260-2253; FAX: 202-260-3884; Internet: 
[email protected]).
    Persons who comment on this proposed rule, and those who view 
comments electronically, should be aware that this experimental 
electronic commenting is administered on a completely public system. 
Therefore, any personal information included in comments and the 
electronic mail addresses of those who make comments electronically are 
automatically available to anyone else who views the comments.
    Commenters and others outside EPA may chose to comment on the 
comments submitted by others using the RIN-2060-AE95 ListServe or the 
EPA Bulletin Board. If they do so, those comments as well will become 
part of EPA's record and included in the public docket for this 
rulemaking. Persons outside EPA wishing to discuss comments with 
commenters or otherwise communicate with commenters but not have those 
discussions or communications sent to EPA and included in the EPA 
rulemaking record and public docket should conduct those discussions 
and communications outside the RIN-2060-AE95 ListServe or the EPA 
Bulletin Board.
    EPA will transfer all comments received electronically in the RIN-
2060-AE95 ListServe or the EPA Bulletin Board, in accordance with the 
instructions for electronic submission, into printed, paper form as 
they are received and will place the paper copies in the official 
rulemaking docket which will also include all comments submitted 
directly in writing. All the electronic comments will be available to 
everyone who obtains access to the RIN-2060-AE95 ListServe or the EPA 
Bulletin Board; however, the official rulemaking docket is the paper 
docket maintained at the address in ADDRESSES at the beginning of this 
document. (Comments submitted only in written form will not be 
transferred into electronic form and thus may be accessed only by 
reviewing them in the EPA Docket as described above.)
    Because the electronic comment process is still experimental, EPA 
cannot guarantee that all electronic comments will be accurately 
converted to printed, paper form. If EPA becomes aware, in transferring 
an electronic comment to printed, paper form, of a problem or error 
that results in an obviously garbled comment, EPA will attempt to 
contact the comment submitter and advise the submitter to resubmit the 
comment either in electronic or written form. Some commenters may 
choose to submit identical comments in both electronic and written form 
to ensure accuracy. In that case, EPA requests that commenters clearly 
note in both the electronic and written submissions that the comments 
are duplicated in the other medium. This will assist EPA in processing 
and filing the comments in the rulemaking docket.
    As with ordinary written comments, EPA will not attempt to verify 
the identities of electronic commenters nor to review the accuracy of 
electronic comments. EPA will take such commenters and comments at face 
value. Electronic and written comments will be placed in the rulemaking 
docket without any editing or change by EPA except to the extent 
changes occur in the process of converting electronic comments to 
printed, paper form.
    EPA will address significant electronic comments either in a notice 
in the Federal Register or in a response to comments document placed in 
the rulemaking docket for this proposed rule. EPA will not respond to 
commenters electronically other than to seek clarification of 
electronic comments that may be garbled in transmission or conversion 
to printed, paper form as discussed above. Any communications from EPA 
employees to electronic commenters, other than those described in this 
paragraph, either through Internet or otherwise are not official 
responses from EPA.

List of Subjects

40 CFR Part 35

    Environmental protection, Grant programs--environmental protection, 
Grant programs--Indians, Indians, Reporting and recordkeeping 
requirements.

40 CFR Part 49

    Air pollution control, Environmental protection, Air pollution 
control--Tribal authority, Air pollution control--Tribal eligibility 
criteria, Indian tribes.

40 CFR Part 50

    Air pollution control, Carbon monoxide, Environmental protection, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, and Sulfur oxides.

40 CFR Part 81

    Air pollution control, Environmental protection, National parks, 
Wilderness areas.

    Dated: August 18, 1994.
Carol M. Browner,
Administrator.

Addendum A to Preamble--General Description of Clean Air Act 
Programs

    The Clean Air Act is codified in the United States Code (U.S.C.) at 
42 U.S.C. 7401-7671q. There are six different Titles that comprise the 
Act as codified.1 The following discussion contains a broad 
overview of each Title with the objective of providing a general road 
map to the Clean Air Act. The discussion is not, and is not intended to 
be, a comprehensive and detailed discussion of Clean Air Act 
requirements.
---------------------------------------------------------------------------

    \1\The Clean Air Act is Chapter 85, Title 42 of the U.S. Code. 
The Titles of the Act are actually subchapters of the Code. To avoid 
confusion, these subchapters will be referred to herein as Titles of 
the Act.
---------------------------------------------------------------------------

    To help illustrate the potential effect of today's proposal, the 
discussion at times refers to Tribes as if the authority proposed today 
was in effect. However, this authority will not be in place until EPA 
takes final action on today's proposed rule. The process preceding 
final action includes the consideration of public comments on today's 
proposal that may alter the final rule.

Title I--National Ambient Air Quality Standards and Stationary Source 
Requirements.

    EPA has established national ambient air quality standards (NAAQS) 
for certain air pollutants for the protection of the public health 
(``primary'' standards) and welfare (``secondary'' standards). CAA 
section 109, 42 U.S.C. 7409. EPA establishes these standards after a 
thorough review of the latest scientific studies and literature 
indicating the kind and extent of identifiable effects on public health 
or welfare which may be expected from the presence of such pollutants 
in the ambient air in varying quantities. CAA section 108, 42 U.S.C. 
7408. EPA has established health and welfare NAAQS for six different 
pollutants: ozone, carbon monoxide, particulate matter, sulfur dioxide, 
nitrogen dioxide, and lead. These standards are codified in 40 CFR Part 
50.
    Areas nationwide are ``designated'' based on whether they meet the 
NAAQS. Areas that do not meet the NAAQS are designated 
``nonattainment.'' CAA section 107, 42 U.S.C. 7407. States containing 
such areas are required to develop State implementation plans (SIPs) 
which must bring the areas into attainment as expeditiously as 
practicable. If EPA finalizes today's rule as proposed, Tribes may 
submit such implementation plans (``TIPs''). Title I contains general 
requirements that SIPs and, as appropriate, TIPs must meet (CAA section 
110(a)(2), 42 U.S.C. 7410(a)(2)) as well as planning provisions (e.g., 
inventorying of emissions) and control requirements applicable to 
existing stationary sources in nonattainment areas. CAA sections 171-
192, 42 U.S.C. 7501-7514a.
    EPA has issued detailed guidance that sets out its preliminary 
views on the implementation of the air quality planning requirements 
applicable to areas that are not in attainment with the NAAQS. This 
guidance is titled the ``General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990'' (or ``General 
Preamble''). See 57 FR 13,498 (April 16, 1992) and 57 FR 18,070 (April 
28, 1992). The General Preamble has been supplemented with further 
guidance on Title I requirements. See 57 FR 31,477 (July 16, 1992) 
(announcing the availability of draft guidance for lead nonattainment 
areas and serious PM-10 nonattainment areas); 57 FR 55,621 (Nov. 25, 
1992) (guidance on NOx RACT requirements in ozone nonattainment 
areas). EPA will likely issue further supplements to the General 
Preamble.
    Title I also contains control requirements applicable to new (or 
modified) major stationary sources. ``Major'' sources are those 
emitting more than a certain amount of pollutant per year. Sources 
subject to the New Source Review (``NSR'') or Prevention of Significant 
Deterioration (``PSD'') requirements may not initiate construction, as 
it is defined under the law, without obtaining an NSR or PSD permit 
from the State or Tribe (or from EPA, if the State or Tribe has not 
been authorized by EPA to administer the program).
    The nonattainment NSR permit program applies only in nonattainment 
areas. The Act directs EPA to require States and authorizes EPA to 
permit Tribes to develop NSR permit programs as part of their SIPs or 
TIPs. The NSR permit program requires strict control technology and 
emissions reductions from nearby sources to ``offset'' emissions 
released for proposed new (or modified) major stationary sources in 
nonattainment areas. E.g., CAA section 173, 42 U.S.C. 7503.
    The PSD program applies to certain new or modified major stationary 
sources in areas that currently have air quality meeting the NAAQS. To 
prevent the air quality in these areas from significantly 
deteriorating, the Clean Air Act requires States in such clean air 
areas to develop permit programs that impose control requirements on 
new or modified major stationary sources. The permit program must also 
require an assessment of the air quality impacts of proposed sources to 
ensure that new sources will not cause or contribute to an exceedance 
of the NAAQS or certain allowed ``increments'' of air quality 
degradation. CAA sections 160-169, 42 U.S.C. 7470-7479. Since all areas 
of the country meet at least one of the NAAQS, all States are required 
to have a PSD program for areas within their jurisdiction. EPA 
administers PSD programs for States that have failed to submit 
approvable programs. In today's action, EPA is proposing to authorize 
Tribes to submit PSD programs for EPA approval.
    There is also a minor source permit program, under CAA section 
110(a)(2)(C), 42 U.S.C. 7410(a)(2)(C), and 40 CFR 51.160-164 which 
requires SIPs to include a program regulating the modification and 
construction of any stationary source, regardless of size or attainment 
status, as necessary to assure that the NAAQS are achieved. In today's 
action, EPA is proposing to authorize Tribes to include minor source 
permit programs as part of their TIPs in the same manner as States.
    Finally, EPA also issues new source performance standards 
(``NSPS'') that affected new or modified stationary sources must meet 
in both attainment and nonattainment areas. States are required to 
submit, and EPA is proposing that Tribes be authorized to submit, plans 
similar to SIPs or TIPs that provide for the implementation and 
enforcement of certain requirements for certain pollutants regulated by 
NSPS. CAA sections 111(d), 129, 42 U.S.C. 7411(d), 7429.
    Conformity. Section 176 of the Act, 42 U.S.C. 7506, prohibits 
Federal agencies from supporting or providing financial assistance for 
activities that do not conform to an approved SIP or TIP. The 
restriction extends to State, Tribal and local transportation plans or 
projects that are approved or funded by a Federal agency.
    Visibility. Title I also requires States in which certain mandatory 
``class I'' Federal areas (certain national parks, wildernesses and 
international parks as specified in section 162(a), 42 U.S.C. 7472(a)) 
are located, or States whose emissions may affect such areas, to 
include provisions in their SIPs to remedy and prevent visibility 
impairment in those areas. CAA sections 169A & 169B, 42 U.S.C. 7491 & 
7492. In today's action, EPA is proposing to authorize Tribes to submit 
visibility TIPs.
    Interstate Pollution Provisions. Section 126 of the Act, 42 U.S.C. 
7426, authorizes States to petition the Administrator to find that a 
major source or group of stationary sources in one State emits air 
pollutants that contribute significantly to nonattainment, interfere 
with maintenance of the NAAQS, or interfere with measures under the PSD 
or visibility protection programs in another State. See also section 
110(a)(2)(D) of the Act. EPA is proposing that these provisions apply 
to Tribes in the same fashion that they apply to States so that a Tribe 
or State may take such action to remedy pollution from an upwind Tribe 
or State.
    In addition, sections 169B, 176A and 184, 42 U.S.C. 7492, 7506a & 
7511c, were added to the Act in the 1990 Amendments and contain 
provisions for cooperatively addressing interstate pollution problems. 
These provisions authorize (and, in some instances, direct) the 
establishment of interstate transport commissions to address regionwide 
visibility impairment, ozone pollution and other NAAQS pollution 
issues. The Governors of the affected States (or their designees) 
represent the State members of the commissions. Generally, the 
commissions develop and transmit recommendations to EPA on the specific 
issues the commissions are charged with addressing. Thus, the 
commissions provide a vehicle for facilitating interstate cooperation 
and input in addressing air pollution problems that require a regional 
solution due to pollutant transport across political boundaries. In 
today's action, EPA is proposing to extend this authority to Tribes. 
Among other things, Tribes would be authorized to petition the 
Administrator for establishment of commissions and Tribal leaders 
included in commission membership in the same fashion as State leaders.
    Hazardous Air Pollutants. The provisions governing the emissions of 
hazardous air pollutants are also contained in Title I. EPA is directed 
to issue control technology standards (``maximum achievable control 
technology'' or ``MACT'') covering 189 hazardous air pollutants. CAA 
section 112, 42 U.S.C. 7412. Section 112 also contains provisions to 
prevent and minimize the consequences of accidental releases of, among 
other things, extremely hazardous substances. States or, as proposed 
today, Tribes may develop and submit to EPA for approval, programs 
implementing both the hazardous air pollutant emission standards and 
accidental release requirements.
    Enforcement and Information Collection. The Clean Air Act general 
Federal enforcement provisions are contained in Title I. Section 113 of 
the CAA, 42 U.S.C. 7413, authorizes the imposition of both civil and 
criminal penalties for violation of Clean Air Act requirements. It also 
contains provisions authorizing EPA to pay cash awards to persons 
furnishing information leading to a criminal conviction or certain 
civil penalties.
    Section 114 of the Act, 42 U.S.C. 7414, contains provisions 
granting EPA broad authority to require, among other things, 
recordkeeping, monitoring and right of entry and inspection. It also 
contains provisions authorizing EPA to delegate this authority to 
States and, as proposed in today's rule, Tribes.
    Federal Facilities. Section 118 of the CAA, 42 U.S.C. 7418, 
provides that Federal facilities must comply with all Federal, State 
and local air pollution requirements to the same extent as 
nongovernmental agencies unless expressly exempted by the President. 
EPA is proposing to extend this authority to Tribal air pollution 
requirements.
    Financial Assistance. The provisions governing the issuance of 
Federal financial assistance to air pollution control agencies are set 
out in Title I. CAA sections 103 & 105, 42 U.S.C. 7403 & 7405. The 
phrase ``air pollution control agency'' for this purpose is, in turn, 
defined in CAA section 302(b), 42 U.S.C. 7602(b), and expressly 
includes ``[a]n agency of an Indian tribe.'' An ``Indian tribe'' is 
defined in CAA section 302(r). See discussion below under Title III/
Definitions. Issues associated with the award of Federal financial 
assistance to Tribes are addressed in more detail in the SUPPLEMENTARY 
INFORMATION section of this notice.

Title II--Mobile Sources

    This Title contains the provisions of the Clean Air Act addressing 
mobile sources (e.g., automobiles, trucks, off-road vehicles). It 
contains provisions addressing motor vehicle emission standards as well 
as standards for aircraft and non-road vehicles and engines. See, e.g., 
CAA sections 202, 213 & 231, 42 U.S.C. 7521, 7547 & 7571. It also 
provides for the regulation of motor vehicle and other fuels, including 
registration requirements, requirements for new fuels and fuel 
additives as well as provisions for reformulated gasoline and low 
sulfur diesel fuel. CAA section 211, 42 U.S.C. 7545.
    Significant provisions of this Title preempt in whole or in part 
the issuance of State standards. For example, section 209 of the CAA, 
42 U.S.C. 7543, precludes any State or political subdivision from 
controlling emissions from new motor vehicles. EPA may waive this 
prohibition for California, and other States may adopt California 
standards. CAA sections 209(b) & 177, 42 U.S.C. 7543 & 7507. Similarly, 
except in limited circumstances, States are precluded from enforcing 
controls on motor vehicle fuels that are different from those required 
by EPA. CAA section 211(c)(4), 42 U.S.C. 7545(c)(4). Therefore, the 
motor vehicle and fuel requirements in Title II generally are issued 
and administered by EPA unless the statute contemplates and a State 
qualifies for special treatment or waiver of the preemption provisions.
    However, some Title II provisions are administered by the States 
through the SIP system established under Title I. For example, States 
containing certain carbon monoxide and ozone nonattainment areas are 
required to develop and submit to EPA for approval a SIP revision 
establishing a clean-fuel vehicle program for motor vehicle fleets. CAA 
section 246, 42 U.S.C. 7586. States containing certain carbon monoxide 
nonattainment areas are required to develop and submit to EPA for 
approval a SIP revision establishing an oxygenated gasoline program. 
CAA section 211(m), 42 U.S.C. 7545(m). In today's action, EPA is 
proposing to extend this State-implemented authority to Tribes.

Title III--Citizen Suits

    Section 304 of the Act, 42 U.S.C. 7604, authorizes any person who 
provides the minimum required advance notice to bring a civil action 
against: any person, including any governmental entity or agency, who 
is in violation of an emission limit; the Administrator of EPA where he 
or she fails to carry out a non-discretionary duty under the Clean Air 
Act or has unreasonably delayed agency action; any person who proposes 
to construct or constructs any new or modified major stationary source 
without a NSR or PSD permit that meets the requirements of the Act 
(described previously); and any person who is alleged to be in 
violation of such permit. The term ``person'' ``includes an individual, 
corporation, partnership, association, State, municipality, political 
subdivision of a State, and any agency, department, or instrumentality 
of the United States and any officer, agent, or employee thereof.'' 
Section 302(e), 42 U.S.C. 7602(e). The Federal district courts are 
granted jurisdiction over such legal action. In today's action, EPA is 
proposing that Tribes be subject to these provisions in the same manner 
that States are.
    Judicial Review of Final Agency Action. Section 307(b), 42 U.S.C. 
7607(b), contains the provisions governing judicial review of final 
agency action issuing or approving regulations. Section 307(b) 
specifies in which U.S. Court of Appeals an action is to be brought and 
by what date a petition for review must be filed with the appropriate 
Court of Appeals.
    Definitions. Section 302, 42 U.S.C. 7602, contains definitions for 
many of the terms used in the Clean Air Act. The term ``Indian tribe'' 
is among the terms defined in this section and is defined as ``any 
Indian tribe, band, nation, or other organized group or community, 
including any Alaska Native village, which is Federally recognized as 
eligible for the special programs and services provided by the United 
States to Indians because of their status as Indians.'' CAA section 
302(r). Not all of the CAA definitions are set out in section 302. 
Terms often are defined in the specific Titles in which they appear.
    Outer Continental Shelf. Section 328, 42 U.S.C. 7627, provides for 
regulation of sources located on the Outer Continental Shelf (OCS) 
offshore all the States except Texas, Louisiana, Mississippi and 
Alabama. These sources must comply with EPA's rule on OCS requirements, 
which generally set forth requirements that are the same as the 
applicable requirements in the corresponding onshore area that pertain 
to the attainment and maintenance of ambient air quality standards and 
to PSD. If States develop and submit to EPA an adequate program, EPA 
can delegate implementation and enforcement of these provisions to 
States. EPA is proposing to extend such authority to Tribes in today's 
action.

Title IV--Acid Deposition.

    This program calls for phased nationwide emission reductions in 
sulfur dioxide (SO2) of approximately 10 million tons from 1980 
levels from fossil fuel-fired electric utility units. These reductions 
are achieved through the purchase and sale of a fixed number of 
SO2 ``allowances.'' Each allowance entitles the holder to emit one 
ton of SO2. Through this emissions trading program, owners of 
``affected'' units that can reduce emissions efficiently can sell 
excess allowances to owners of units where it is more costly to obtain 
the required reductions, thereby achieving emissions reductions in a 
cost-effective manner.
    The acid rain program also calls for reductions in nitrogen oxides 
of approximately 2 million tons from 1980 levels from coal-fired 
electric utility units. These reductions are obtained by requiring 
affected sources to comply with certain emission limitations. In many 
situations, compliance may be demonstrated by averaging the emissions 
among different utility units.
    The Title IV program is a Federal program during Phase I, from 
1995--1999. However, during Phase II, which begins in the year 2000, 
States will issue the acid precipitation portion of the operating 
permits addressed below under Title V. 42 U.S.C. 7651-7651o. In today's 
rule, EPA is proposing to extend this Phase II permitting authority to 
Tribes.

Title V--Operating Permits Program.

    Title V of the Act requires States to develop and submit to EPA an 
operating permit program.2 Title V calls for the permitting of 
certain sources by certain deadlines. Operating permits are to contain 
all of the Clean Air Act requirements applicable to such sources. The 
program is intended to promote regulatory certainty and enforceability. 
Title V also provides for the collection of fees by the permitting 
agency that reflect the reasonable costs of the permit program. 42 
U.S.C. 7661-7661e. EPA has issued rules specifying the minimum 
requirements for State permit programs. 57 FR 32,250 (July 21, 1992). 
EPA is proposing to extend Title V operating permit program authority 
to Tribes in today's rule.
---------------------------------------------------------------------------

    \2\ Note that this operating permit program is not the same as 
the NSR and PSD permit programs described previously that, by 
contrast, require construction permits.
---------------------------------------------------------------------------

    Small Business Assistance Program. Title V also contains provisions 
requiring States to adopt a small business stationary source technical 
and environmental compliance assistance program, which is to be 
incorporated into the SIP described under Title I. 42 U.S.C. 7661f. EPA 
is proposing to authorize Tribes to submit such assistance programs.

Title VI--Phaseout of Ozone-Depleting Chemicals.

    This Title provides for the phase-out of the production of certain 
substances that deplete stratospheric ozone as well as providing other 
restrictions on the use of such substances. It is a Federally 
established and federally managed program. 42 U.S.C. 7671-7671q. Among 
other things, it implements the Montreal Protocol, a multinational 
agreement addressing damage to stratospheric ozone.

Addendum B--List of EPA Regional Offices

Region 1
    Environmental Protection Agency, John F. Kennedy Federal Building, 
One Congress Street, Boston, MA 02203, (617) 565-3420
    Air, Pesticides and Toxics Management Division, (617) 565-3800
Region 2
    Environmental Protection Agency, Jacob K. Javits Federal Building, 
26 Federal Plaza, New York, NY 10278, (212) 264-2657
    Air and Waste Management Division, (212) 264-2301
Region 3
    Environmental Protection Agency, 841 Chestnut Building, 
Philadelphia, PA 19107, (215) 597-9800
    Air, Radiation and Toxics Division, (215) 597-9390
Region 4
    Environmental Protection Agency, 345 Courtland Street, NE, Atlanta, 
GA 30365, (404) 347-4727
    Air, Pesticides and Toxics Management Division, (404) 347-3043
Region 5
    Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, IL 60604-3507, (312) 353-2000
    Air and Radiation Division, (312) 393-1661
Region 6
    Environmental Protection Agency, First Interstate Bank Tower at 
Fountain Place, 1445 Ross Avenue 12th Floor Suite 1200, Dallas, TX 
75202-2733, (214) 655-6444
    Air Pesticides and Toxics Division, (214) 655-7200
Region 7
    Environmental Protection Agency, 726 Minnesota Avenue, Kansas City, 
KS 66101, (913) 551-7000
    Air and Toxics Division, (913) 551-7020
Region 8
    Environmental Protection Agency, 999 18th Street Suite 500, Denver, 
CO 80202-2405, (303) 293-1603
    Air and Toxics Division (303) 293-0946
Region 9
    Environmental Protection Agency, 75 Hawthorne Street, San 
Francisco, CA 94105, (415) 744-1305
    Air and Toxics Division, (415) 744-1219
Region 10
    Environmental Protection Agency, 1200 Sixth Avenue, Seattle, WA 
98101, (206) 553-4973
    Air and Toxics Division, (206) 553-1152

    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 35--STATE AND LOCAL ASSISTANCE

    1. The authority cite for part 35, subpart A, continues to read as 
follows:

    Authority: Secs. 105 and 301(a) of the Clean Air Act, as amended 
(42 U.S.C. 7405 and 7601(a)); Secs. 106, 205(g), 205(j), 208, 319, 
501(a), and 518 of the Clean Water Act, as amended (33 U.S.C. 1256, 
1285(g), 1285(j), 1288, 1361(a) and 1377); secs. 1443, 1450, and 
1451 of the Safe Drinking Water Act (42 U.S.C. 300j-2, 300j-9 and 
300j-11); secs. 2002(a) and 3011 of the Solid Waste Disposal Act, as 
amended by the Resource Conservation and Recovery Act of 1976 (42 
U.S.C. 6912(a), 6931, 6947, and 6949); and secs. 4, 23, and 25(a) of 
the Federal Insecticide, Fungicide and Rodenticide Act, as amended 
(7 U.S.C. 136(b), 136(u) and 136w(a)).

    2. Section 35.105 is amended by revising the definitions for 
``Eligible Indian Tribe'', ``Federal Indian reservation'', and the 
first definition for ``Indian Tribe'', and by removing the second 
definition for ``Indian Tribe'' to read as follows:


Sec. 35.105  Definitions.

* * * * *
    Eligible Indian Tribe means:
    (1) For purposes of the Clean Water Act, any federally recognized 
Indian Tribe that meets the requirements set forth at 40 CFR 130.6(d); 
and
    (2) For purposes of the Clean Air Act, any federally recognized 
Indian Tribe that meets the requirements set forth at Sec. 35.220.
    Federal Indian reservation means for purposes of Clean Water Act or 
the Clean Air Act, 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.
    Indian Tribe means:
    (1) Within the context of the Public Water System Supervision and 
Underground Water Source Protection grants, any Indian Tribe having a 
Federally recognized governing body carrying out substantial 
governmental duties and powers over a defined area.
    (2) For purposes of the Clean Water Act, any Indian Tribe, band, 
group, or community recognized by the Secretary of the Interior and 
exercising governmental authority over a Federal Indian reservation.
     (3) For purposes of the Clean Air Act, any Indian Tribe, band, 
nation, or other organized group or community, including any Alaskan 
Native Village, which is recognized by the Secretary of the Interior 
and which exercises governmental authority over a Federal Indian 
reservation or other defined area.
* * * * *
    3. Section 35.205 is amended by adding a sentence to the end of 
paragraphs (a) and (b) to read as follows:


Sec. 35.205  Maximum Federal share.

    (a) * * * For Indian tribes establishing eligibility pursuant to 
Sec. 35.220, the Regional Administrator may provide financial 
assistance to in an amount up to ______ (amount to be determined) of 
the approved costs of planning, developing, establishing, or improving 
an air pollution control, and up to ______ (amount to be determined) of 
the approved costs of maintaining that program.''
    (b) * * * The Regional Administrator may provide agencies of one or 
more tribes that have established eligibility pursuant to Sec. 35.220 
which have substantial responsibility for carrying out an applicable 
implementation plan under section 110 of the Clean Air Act up to ______ 
(amount to be determined) of the approved costs of planning, 
developing, establishing, or approving an air pollution control program 
and up to ______ (amount to be determined) of the approved costs of 
maintaining that program.
    4. Section 35.210 is amended by adding a paragraph (c) to read as 
follows:


Sec. 35.210  Maintenance of effort.

* * * * *
    (c) The requirements of paragraphs (a) and (b) of this section 
shall not apply to Indian tribes that have established eligibility 
pursuant to Sec. 35.220.
    5. Section 35.215 is revised to read as follows:


Sec. 35.215  Limitations.

    (a) The Regional Administrator will not award section 105 funds to 
an interstate, intertribal or intermunicipal agency which does not 
provide assurance that it can develop a comprehensive plan for the air 
quality control region which includes representation of appropriate 
State, interstate, local, and international interests.
    (b) The Regional Administrator will not award section 105 funds to 
a local, interstate, or intermunicipal agency without consulting with 
the appropriate official designated by the Governor or Governors of the 
State or States affected or the appropriate official of any affected 
Indian tribe or tribes.
    (c) The Regional Administrator will not disapprove an application 
for or terminate or annul an award of section 105 funds without prior 
notice and opportunity for a public hearing in the affected State or 
area within Tribal jurisdiction or in one of the affected States or 
areas within Tribal jurisdiction if several are affected.
    6. Section 35.220 is added just before the center heading ``Water 
Pollution Control (Section 106)'' to read as follows:


Sec. 35.220  Eligible Indian Tribes.

    The Administrator may make Clean Air Act section 105 grants to 
eligible Indian tribes without requiring the same cost share that would 
be required if such grants were made to states. Instead grants to 
eligible tribes will include a cost share of ______ (amount to be 
determined).
    (a) An Indian tribe is eligible to receive such assistance if it 
has demonstrated eligibility to be treated in the same manner as a 
State under 40 CFR 49.6.
    (b) A tribe that has not made a demonstration under 40 CFR 49.6 is 
eligible for financial assistance under 42 U.S.C. 7405 and 7602(b)(1) 
if:
    (1) The Indian tribe has a governing body carrying out substantial 
duties and powers.
    (2) The functions to be exercised by the Indian tribe pertain to 
the management and protection of air resources within the boundaries of 
an Indian reservation or other areas within the tribe's jurisdiction.
    (3) The Indian tribe is reasonably expected to be capable, in the 
judgment of the Regional Administrator, of carrying out the functions 
to be exercised in a manner consistent with the terms and purposes of 
the Clean Air Act and applicable regulations.
    (c) The Administrator shall process a tribal application for 
financial assistance under this section in a timely manner.
    7. Part 49 is added to read as follows:

PART 49--TRIBAL CLEAN AIR ACT AUTHORITY

Sec.
49.1  Program overview.
49.2  Definitions.
49.3  General Tribal Clean Air Act authority.
49.4  Clean Air Act provisions inapplicable to Tribes.
49.5  Tribal requests for inapplicability of additional Clean Air 
Act provisions.
49.6  Tribal eligibility requirements.
49.7  Request by an Indian Tribe for eligibility determination and 
Clean Air Act program approval.
49.8  Provisions for Tribal criminal enforcement authority.
49.9  EPA review of Tribal Clean Air Act applications.
49.10  EPA review of State Clean Air Act programs.

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


Sec. 49.1  Program overview.

    (a) The regulations in this part identify those provisions of the 
Clean Air Act (Act) for which Indian Tribes are treated in the same 
manner as States. In general, these regulations authorize eligible 
Tribes to have the same rights as States under the Clean Air Act and 
authorize EPA approval of Tribal air quality programs meeting the 
applicable minimum requirements of the Act.
    (b) Nothing in this part shall prevent an Indian Tribe from 
establishing additional or more stringent air quality protection 
requirements not inconsistent with the Act.


Sec. 49.2  Definitions.

    Clean Air Act or Act means those statutory provisions in the United 
States Code at 42 U.S.C. 7401, et seq.
    Federal Indian Reservation, Indian Reservation or Reservation means 
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.
    Indian Tribe or Tribe means any Indian Tribe, band, nation, or 
other organized group or community, including any Alaska Native 
village, which is Federally recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians.
    Indian Tribe Consortium or Tribal Consortium means a group of two 
or more Indian Tribes.
    State means a State, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes 
the Commonwealth of the Northern Mariana Islands.


Sec. 49.3  General Tribal Clean Air Act authority.

    Tribes meeting the eligibility criteria of Sec. 49.6 shall be 
treated in the same manner as States with respect to all provisions of 
the Clean Air Act and implementing regulations, except for those 
provisions identified in Sec. 49.4 and the regulations that implement 
those provisions.


Sec. 49.4  Clean Air Act provisions inapplicable to Tribes.

    The following provisions of the Clean Air Act and any implementing 
regulations are not applicable to Tribes:
    (a) Specific plan submittal and implementation deadlines for NAAQS-
related requirements, including but not limited to such deadlines in 
sections 110(a)(1), 172(a)(2), 182, 187, 189, 191 of the Act.
    (b) The specific deadlines associated with the review and revision 
of implementation plans related to major fuel burning sources in 
section 124 of the Act.
    (c) The mandatory imposition of sanctions under section 179 of the 
Act because of a failure to submit an implementation plan or required 
plan element by a specific deadline, or the submittal of an incomplete 
or disapproved plan or element.
    (d) The ``within 2 years'' clause in section 110(c)(1) of the Act. 
The inapplicability of this specific clause does not in any way curtail 
the general authority delegated to the Administrator under section 
110(c)(1) to issue a Federal implementation plan upon the failure of a 
Tribe to make a required submission, upon a finding that the plan or 
plan revision submitted by a Tribe is incomplete or in response to 
EPA's disapproval of a Tribal implementation plan in whole or in part.
    (e) Specific visibility implementation plan submittal deadlines 
established under section 169A of the Act.
    (f) Specific implementation plan submittal deadlines related to 
interstate commissions under sections 169B(e)(2), 184(b)(1) & (c)(5) of 
the Act. For eligible Tribes participating as members of such 
Commissions, the Administrator shall establish those submittal 
deadlines that are determined to be practicable or, as with other non-
participating Tribes in an affected transport region, provide for 
Federal implementation of necessary measures.
    (g) Any provisions of the Act requiring as a condition of program 
approval the demonstration of criminal enforcement authority or any 
provisions of the Act providing for the delegation of such criminal 
enforcement authority. Tribes seeking approval of a Clean Air Act 
program requiring such demonstration may receive program approval if 
they meet the requirements for enforcement authority established under 
Sec. 49.8.
    (h) The specific deadline for the submittal of operating permit 
programs in section 502(d)(1) of the Act.
    (i) The mandatory imposition of sanctions under section 
502(d)(2)(B) because of failure to submit an operating permit program 
or EPA disapproval of an operating permit program submittal in whole or 
part.
    (j) The ``2 years after the date required for submission of such a 
program under paragraph (1)'' clause in section 502(d)(3) of the Act. 
The inapplicability of this specific clause does not in any way curtail 
the general authority delegated to the Administrator under section 
502(d)(3) to promulgate, administer and enforce a Federal operating 
permit program for a Tribe not having a program that has been approved 
in whole.
    (k) Section 502(g), which authorizes a limited interim approval of 
an operating permit program that substantially meets the requirements 
of Title V, but is not fully approvable.
    (l) The provisions of section 503(c) that direct permitting 
authorities to establish a phased schedule assuring that at least one-
third of the permit applications submitted within the first full year 
after the effective date of an operating permit program (or a partial 
or interim program) will be acted on by the permitting authority over a 
period of not to exceed three years after the effective date.
    (m) The provisions of section 507(a) that specify a deadline for 
the submittal of plans for establishing a small business stationary 
source technical and environmental compliance assistance program.
    (n) The provisions of section 507(e) that direct the establishment 
of a Compliance Advisory Panel.


Sec. 49.5  Tribal requests for inapplicability of additional Clean Air 
Act provisions.

    Any Tribe may request that the Administrator specify additional 
provisions of the Clean Air Act for which it would be inappropriate to 
treat Tribes in the same manner as States. Such request should clearly 
identify the provisions at issue and should be accompanied with an 
explanation why it is inappropriate to treat Tribes in the same manner 
as States with respect to such provisions.


Sec. 49.6  Tribal eligibility requirements.

    Sections 301(d)(2) and 302(r), 42 U.S.C. 7601(d)(2) and 7602(r), 
authorize the Administrator to treat an Indian Tribe in the same manner 
as a State for the Clean Air Act provisions identified in Sec. 49.3 if 
the Indian Tribe meets the following criteria:
    (a) The applicant is an Indian Tribe recognized by the Secretary of 
the Interior,
    (b) The Indian Tribe has a governing body carrying out substantial 
governmental duties and functions,
    (c) The functions to be exercised by the Indian Tribe pertain to 
the management and protection of air resources within the exterior 
boundaries of the reservation or other areas within the Tribe's 
jurisdiction, and
    (d) The Indian Tribe is reasonably expected to be capable, in the 
EPA Regional Administrator's judgment, of carrying out the functions to 
be exercised in a manner consistent with the terms and purposes of the 
Clean Air Act and all applicable regulations.


Sec. 49.7  Request by an Indian Tribe for eligibility determination and 
Clean Air Act program approval.

    (a) An Indian Tribe may apply to the EPA Regional Administrator for 
a determination that it meets the eligibility requirements of Sec. 49.6 
for Clean Air Act program authorization. The application shall 
concisely describe how the Indian Tribe will meet each of the 
requirements of Sec. 49.6 and should include the following information:
    (1) A statement that the applicant is an Indian Tribe recognized by 
the Secretary of the Interior.
    (2) A descriptive statement demonstrating that the applicant is 
currently carrying out substantial governmental duties and powers over 
a defined area. This statement should:
    (i) Describe the form of the Tribal government;
    (ii) Describe the types of government functions currently performed 
by the Tribal governing body such as, but not limited to, the exercise 
of police powers affecting (or relating to) the health, safety, and 
welfare of the affected population; taxation; and the exercise of the 
power of eminent domain; and
    (iii) Identify the source of the Tribal government's authority to 
carry out the governmental functions currently being performed.
    (3) A descriptive statement of the Indian Tribe's authority to 
regulate air quality. For applications covering areas within the 
exterior boundaries of the applicant's Reservation the statement must 
identify with clarity and precision the exterior boundaries of the 
reservation including, for example, a map and a legal description of 
the area. For Tribal applications covering areas outside the boundaries 
of the applicant's Reservation the statement should include:
    (i) A map or legal description of the area over which the 
application asserts authority.
    (ii) A statement by the applicant's legal counsel (or equivalent 
official) which describes the basis for the Tribe's assertion of 
authority (including the nature or subject matter of the asserted 
regulatory authority) which may include a copy of documents such as 
Tribal constitutions, by-laws, charters, executive orders, codes, 
ordinances, and/or resolutions which support the Tribe's assertion of 
authority.
    (4) A narrative statement describing the capability of the 
applicant to effectively administer any Clean Air Act program for which 
the Tribe is seeking approval. The narrative statement must demonstrate 
the applicant's capability consistent with the applicable provisions of 
the Clean Air Act and implementing regulations and, if requested, may 
include:
    (i) A description of the Indian Tribe's previous management 
experience which may include the administration of programs and 
services authorized by the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450, et seq.), the Indian Mineral Development 
Act (25 U.S.C. 2101, et seq.), or the Indian Sanitation Facility 
Construction Activity Act (42 U.S.C. 2004a);
    (ii) A list of existing environmental or public health programs 
administered by the Tribal governing body and a copy of related Tribal 
laws, policies, and regulations;
    (iii) A description of the entity (or entities) which exercise the 
executive, legislative, and judicial functions of the Tribal 
government;
    (iv) A description of the existing, or proposed, agency of the 
Indian Tribe which will assume primary responsibility for administering 
a Clean Air Act program (including a description of the relationship 
between the existing or proposed agency and its regulated entities);
    (v) A description of the technical and administrative capabilities 
of the staff to administer and manage an effective air quality program 
or a plan which proposes how the Tribe will acquire administrative and 
technical expertise. The plan should address how the Tribe will obtain 
the funds to acquire the administrative and technical expertise.
    (5) A Tribe that is a member of a Tribal consortium may rely on the 
expertise and resources of the consortium in demonstrating under 
paragraph (a)(4) of this section that the Tribe is reasonably expected 
to be capable of carrying out the functions to be exercised consistent 
with Sec. 49.6(a)(4). A Tribe relying on a consortium in this manner 
must provide reasonable assurances that the Tribe has responsibility 
for carrying out necessary functions in the event the consortium fails 
to.
    (6) Where applicable Clean Air Act or implementing regulatory 
requirements mandate criminal enforcement authority, an application 
submitted by an Indian Tribe may be approved if it meets the 
requirements of Sec. 49.8.
    (7) Additional information required by the EPA Regional 
Administrator which, in the judgment of the EPA Regional Administrator, 
is necessary to support an application.
    (8) Where the applicant has previously received authorization for a 
Clean Air Act program or for any other EPA-administered program, the 
applicant need only identify the prior authorization and provide the 
required information which has not been submitted in the previous 
application.
    (b) A Tribe may simultaneously submit a request for an eligibility 
determination and a request for approval of a Clean Air Act program.
    (c) A request for Clean Air Act program approval must meet any 
applicable Clean Air Act statutory and regulatory requirements and may 
contain any reasonable portion of a Clean Air Act program to the extent 
not inconsistent with applicable statutory and regulatory requirements.


Sec. 49.8  Provisions for Tribal criminal enforcement authority.

    To the extent that an Indian Tribe is precluded from asserting 
criminal enforcement authority, the Federal government will exercise 
primary criminal enforcement responsibility. The Tribe, with the EPA 
Region, shall develop a procedure by which the Tribal agency will refer 
potential criminal violations to the EPA Regional Administrator, as 
agreed to by the parties, in an appropriate and timely manner. This 
procedure shall encompass all circumstances in which the Tribe is 
incapable of exercising applicable enforcement requirements as provided 
in Sec. 49.7(a)(6). This agreement shall be incorporated into a 
Memorandum of Agreement with the EPA Region.


Sec. 49.9  EPA review of Tribal Clean Air Act applications.

    (a) The EPA Regional Administrator shall process a request of an 
Indian Tribe submitted under Sec. 49.7 in a timely manner. The EPA 
Regional Administrator shall promptly notify the Indian Tribe of 
receipt of the application.
    (b) Within 30 days of receipt of an Indian Tribe's initial, 
complete application, the EPA Regional Administrator shall notify all 
appropriate governmental entities.
    (1) For Tribal applications addressing air resources within the 
exterior boundaries of the Reservation, EPA's notification of other 
governmental entities shall specify the geographic boundaries of the 
Reservation.
    (2) For Tribal applications addressing off-reservation areas, EPA's 
notification of other governmental entities shall include the substance 
and bases of the Tribe's assertions that it meets the requirements of 
Sec. 49.6(a)(3).
    (c) The governmental entities shall have 15 days to provide written 
comments to EPA's Regional Administrator regarding any dispute 
concerning the boundary of the Reservation. Where a Tribe has asserted 
jurisdiction over off-reservation lands, appropriate governmental 
entities may request a single 15-day extension to the general 15-day 
comment period.
    (d) In all cases, comments must be timely, limited to the scope of 
the Tribe's jurisdictional assertion, and clearly explain the 
substance, bases and extent of any objections. If a Tribe's assertion 
is subject to a conflicting claim, the EPA Regional Administrator may 
request additional information and may consult with the Department of 
the Interior.
    (e) The EPA Regional Administrator shall decide the scope of the 
Tribe's jurisdiction. If a conflicting claim cannot be promptly 
resolved, the EPA Regional Administrator may approve that portion of an 
application addressing all undisputed areas.
    (f) A determination by the EPA Regional Administrator concerning 
the boundaries of a Reservation or Tribal jurisdiction over other off-
reservation areas shall apply to all future Clean Air Act applications 
from that Tribe or Tribal consortia and no further notice of 
governmental entities as provided in paragraph (b) of this section 
shall be provided, unless the application presents different 
jurisdictional issues or significant new factual or legal information 
relevant to jurisdiction is presented to the EPA Regional 
Administrator.
    (g) If the EPA Regional Administrator determines that a Tribe meets 
the requirements of Sec. 49.6, the Indian Tribe is eligible to be 
treated in the same manner as a State for those Clean Air Act 
provisions identified in Sec. 49.3. The eligibility will extend to all 
areas within the exterior boundaries of the Tribe's reservation, as 
determined by the EPA Regional Administrator, and any other areas the 
EPA Regional Administrator has determined to be within the Tribe's 
jurisdiction.
    (h) A Tribal application containing a Clean Air Act program 
submittal will be reviewed by EPA in the same procedural and 
substantive manner as EPA would review a similar State submittal.
    (i) The EPA Regional Administrator shall return an incomplete or 
disapproved application for eligibility or program approval to the 
Tribe with a summary of the deficiencies.


Sec. 49.10  EPA review of State Clean Air Act programs.

    A State Clean Air Act program submittal shall not be disapproved 
because of failure to address air resources within the exterior 
boundaries of an Indian Reservation or other areas within the 
jurisdiction of an Indian Tribe.

PART 50--NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY 
STANDARDS

    8. The authority citation for part 50 is revised to read as 
follows:

    Authority: Clean Air Act, 42 U.S.C. 7401, et seq.

    9. Section 50.1 is amended by adding paragraph (i) to read as 
follows:


Sec. 50.1  Definitions.

* * * * *
    (i) Indian country is as defined in 18 U.S.C. 1151.
    10. Section 50.2 is amended by revising paragraphs (c) and (d) to 
read as follows:


Sec. 50.2  Scope.

* * * * *
    (c) The promulgation of national primary and secondary ambient air 
quality standards shall not be considered in any manner to allow 
significant deterioration of existing air quality in any portion of any 
State or Indian country.
    (d) The proposal, promulgation, or revision of national primary and 
secondary ambient air quality standards shall not prohibit any State or 
Indian Tribe from establishing ambient air quality standards for that 
State or Indian Tribe or any portion thereof which are more stringent 
than the national standards.

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

    11. The authority citation for part 81 is revised to read as 
follows:

    Authority: Clean Air Act, 42 U.S.C. 7401, et seq.

    12. Section 81.1 is amended by revising paragraph (a) and adding 
new paragraphs (c), (d) and (e) as follows:


Sec. 81.1  Definitions.

* * * * *
    (a) Act means the Clean Air Act as amended (42 U.S.C. 7401, et 
seq.).
* * * * *
    (c) Federal Indian Reservation, Indian Reservation or Reservation 
means 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.
    (d) Indian Tribe or Tribe means any Indian Tribe, band, nation, or 
other organized group or community, including any Alaska Native 
village, which is Federally recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians.
    (e) State means a State, the District of Columbia, the Commonwealth 
of Puerto Rico, the Virgin Islands, Guam, and American Samoa and 
includes the Commonwealth of the Northern Mariana Islands.

Subpart C--Section 107 Attainment Status Designations

    13. The authority citation for subpart C, part 81 is revised to 
read as follows:

    Authority: Clean Air Act, 42 U.S.C. 7401, et seq.


Sec. 81.300  [Amended]

    14. Section 81.300(a) is amended by revising the words ``Both the 
State and EPA can initiate changes to these designations, but any 
State'' to read ``A State, an Indian Tribe determined eligible for such 
functions under 40 CFR part 49, and EPA can initiate changes to these 
designations, but any State or Tribal redesignation must be submitted 
to EPA for concurrence.''

[FR Doc. 94-20811 Filed 8-24-94; 8:45 am]
BILLING CODE 6560-50-P