[Federal Register Volume 62, Number 55 (Friday, March 21, 1997)]
[Proposed Rules]
[Pages 13748-13753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7219]



[[Page 13747]]

_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 71



Federal Operating Permits Program; Proposed Rule

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

[[Page 13748]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 71

[FRL-5800-3]
RIN 2060-AG90


Federal Operating Permits Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of opportunity for public hearing.

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SUMMARY: The EPA is proposing a new approach for issuing Federal 
operating permits to covered stationary sources in Indian country, 
pursuant to title V of the Clean Air Act as amended in 1990 (Act). 
Consistent with EPA's Indian Policy, the Agency will protect air 
quality by administering a Federal operating permits program in areas 
lacking an EPA-approved or adequately administered Tribal operating 
permits program. Implementation of today's proposal would benefit the 
environment by assuring that the benefits of title V, such as increased 
compliance and resulting decreases in emissions, would extend to every 
part of Indian country.

DATES: Comments. Comments on the proposed regulations must be received 
by EPA's Air Docket on or before May 5, 1997.
    Public Hearing. A public hearing is scheduled for 10:00 a.m., on 
April 21, 1997, at the address listed under ADDRESSES. Requests to 
present oral testimony must be received by April 7, 1997, and the 
hearing may be canceled if no speakers have requested time to present 
their comments by that date. Written comments in lieu of, or in 
addition to, testimony are encouraged.

ADDRESSES: Comments. Comments should be mailed (in duplicate if 
possible) to: EPA Air Docket (Mail Code 6102), Attention: Docket Number 
A-93-51, Room M-1500, Waterside Mall, 401 M Street, SW, Washington, DC 
20460.
    Public Hearing. The public hearing will be held in the Waterside 
Mall auditorium at the U.S. Environmental Protection Agency, 401 M 
Street, SW, Washington, DC 20460.
    Persons interested in attending the hearing or wishing to present 
oral testimony should contact Ms. Pat Finch in writing at the U.S. 
Environmental Protection Agency, Office of Air Quality Planning and 
Standards, Information Transfer and Program Integration Division, Mail 
Drop 12, Research Triangle Park, North Carolina 27711.
    Docket. Supporting information used in developing the proposed rule 
is contained in Docket Number A-93-51. The docket is available for 
public inspection and copying between 8:30 a.m. and 3:30 p.m. Monday 
through Friday, at EPA's Air Docket, Room M-1500, Waterside Mall, 401 M 
Street, SW, Washington, DC 20460. A reasonable fee may be charged for 
copying.

FOR FURTHER INFORMATION CONTACT: Candace Carraway (telephone 919-541-
3189), U.S. Environmental Protection Agency, Office of Air Quality 
Planning and Standards, Information Transfer and Program Integration 
Division, Mail Drop 12, Research Triangle Park, North Carolina 27711.

SUPPLEMENTARY INFORMATION:

    Comments. The EPA is unlikely to be able to extend the public 
comment period. Two paper copies of each set of comments are requested. 
If possible, comments should be sent in both paper and computerized 
form. Comments generated on computer should be sent on an IBM-
compatible diskette and clearly labeled. Computer files created with 
the WordPerfect 5.1 software package should be sent as is. Files 
created on other software packages should be saved in an 
``unformatted'' mode for easy retrieval into WordPerfect. Comments 
should refer to specific page numbers of today's proposal whenever 
possible.
    Regulated entities. Entities potentially regulated by this proposed 
action are sources (1) That are located in Indian country; and (2) that 
are major sources, affected sources under title IV of the Act (acid 
rain sources), solid waste incineration units required to obtain a 
permit under section 129 of the Act, and those area sources subject to 
a standard under section 111 or 112 of the Act which have not been 
exempted or deferred from title V permitting requirements. Regulated 
categories and entities include:

------------------------------------------------------------------------
             Category                  Examples of regulated entities   
------------------------------------------------------------------------
Industry located in Indian country  Major sources under title I or      
                                     section 112 of the Act; affected   
                                     sources under title IV of the Act  
                                     (acid rain sources); solid waste   
                                     incineration units required to     
                                     obtain a permit under section 129  
                                     of the Act; area sources subject to
                                     standards under section 111 or 112 
                                     of the Act that are not exempted or
                                     deferred from permitting           
                                     requirements under title V.        
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
proposed action. This table lists the types of entities that EPA is now 
aware could potentially be regulated by this action. Other types of 
entities not listed in the table could also be regulated. To determine 
whether your facility is regulated by this action, you should carefully 
examine the applicability criteria in Sec. 71.3(a) of the rule, the 
definition of ``Indian country'' in Sec. 71.2 of the rule, and 
Sec. 71.4 of the rule. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section or the 
EPA Regional Office that is administering the part 71 permit program 
for the State or area in which the relevant source or facility is 
located.
    Outline. The contents of today's preamble are listed in the 
following outline:

I. Background and Purpose
II. Proposal Summary
III. Federal Authority to Implement Title V in Indian Country
IV. Proposed Changes to Regulatory Language
V. Administrative Requirements
    A. Docket
    B. Executive Order 12866
    C. Regulatory Flexibility Act Compliance
    D. Paperwork Reduction Act
    E. Unfunded Mandates Reform Act

I. Background and Purpose

    Title V of the Act as amended in 1990 (42 U.S.C. 7661 et seq.) 
requires that EPA develop regulations that set minimum standards for 
State operating permits programs. Those regulations, codified in part 
70 of chapter I of title 40 of the Code of Federal Regulations, were 
originally promulgated on July 21, 1992 (57 FR 32250). Title V also 
requires that EPA promulgate, administer, and enforce a Federal 
operating permits program when a State has defaulted on its obligation 
to submit an approvable program within the timeframe set by title V or 
on its obligation to adequately administer and enforce an EPA-approved 
program. On April 27, 1995, EPA proposed regulations (60 FR 20804) 
(hereinafter ``1995 proposal'') setting forth the procedures and terms 
under which the Agency will administer a Federal

[[Page 13749]]

operating permit program in a State or in areas over which States do 
not have jurisdiction. The final rule was published on July 1, 1996 (61 
FR 34202) and will be codified at 40 CFR part 71. The regulations 
authorize EPA to issue permits when a State, local, or Tribal agency 
has not developed, administered, or enforced an acceptable permits 
program or has not issued permits that comply with the applicable 
requirements of the Act.
    Indian Tribes are not required to develop operating permits 
programs, though EPA encourages Tribes to do so. The EPA expects that 
most Tribes will not develop title V operating permit programs, in part 
due to the resources required to develop a program and in part because 
for some Tribes it will not be practicable to develop a permits program 
for relatively few sources. Within Indian country, EPA believes it is 
appropriate that EPA promulgate, administer, and enforce a part 71 
Federal operating permits program for stationary sources until Tribes 
receive approval to administer their own operating permits programs.
    In the 1995 proposal, EPA stated its intention to implement part 71 
programs to ensure coverage of Tribal areas which EPA proposed to 
define as ``those lands over which an Indian Tribe has authority under 
the Clean Air Act to regulate air quality.'' The final part 71 rule did 
not include provisions relating to the boundaries of part 71 programs 
in Tribal areas, pending resolution of jurisdictional issues involving 
Tribes and States that were raised in a proposed rule that specified 
provisions of the Act for which EPA believes it is appropriate to treat 
Indian Tribes in the same manner as States, pursuant to section 
301(d)(2). See 59 FR 43956 (August 25, 1994) (``Indian Tribes: Air 
Quality Planning and Management,'' hereinafter ``proposed Tribal 
authority rule'').
    The EPA now believes that the 1995 proposal's definition of 
``Tribal area,'' that is to say, the Indian lands where EPA would 
exercise authority to implement a Federal permit program, was 
inappropriate. The proposal was based on the interpretation of Tribal 
jurisdiction under the Act in the proposed Tribal authority rule. The 
approach of the 1995 proposal would have required Tribes to establish 
their jurisdiction over an area before EPA could implement a Federal 
program for the area. While in many cases this would not present a 
problem, EPA believes it is more consistent with the Act that EPA 
administer part 71 programs for all areas of Indian country without 
requiring any jurisdictional showing on the part of the Tribe. 
Furthermore, in proposing that EPA implement part 71 throughout Indian 
country, today's notice is consistent with the Agency's Indian Policy, 
which provides that EPA generally will administer environmental 
programs on reservation lands until a Tribe assumes regulatory 
responsibility. See, e.g., EPA's 1984 Policy for the Administration of 
Environmental Programs on Indian Reservations, reaffirmed by EPA 
Administrator Browner in 1994.

II. Proposal Summary

    The EPA's approach for issuing operating permits in Tribal areas 
outlined in the April 1995 proposal was modeled on the jurisdictional 
provisions of the proposed Tribal authority rule. In the proposed 
Tribal authority rule, EPA proposed to interpret the Act as granting to 
Tribes, that are approved by EPA to administer programs under the Act 
in the same manner as States, authority over all air resources within 
the exterior boundaries of an Indian reservation. This would enable 
Tribal-approved programs under the Act to address conduct on all lands, 
including non-Indian owned fee lands, within the exterior boundaries of 
a reservation. The proposed Tribal authority rule would also authorize 
an eligible Tribe to develop and implement programs under the Act for 
off-reservation lands that are determined to be within a Tribe's own 
authority to regulate under relevant principles of Federal Indian law, 
generally up to the limits of Indian country, as defined at 18 U.S.C. 
1151. The rationale for this proposed interpretation of Tribal 
jurisdiction to administer programs under the Act is set out in detail 
in the proposed Tribal authority rule. See 59 FR 43956, 43958-43961 
(August 25, 1994).
    In the 1995 proposal, EPA noted that when EPA is acting in the 
place of a Tribe under the Act, pursuant to Federal implementation 
authority, the responsibilities that would otherwise fall to the Tribe 
would accrue instead to EPA. Thus, under the 1995 proposal, EPA would 
have authority to implement a part 71 program for any lands within the 
exterior boundaries of a reservation and for any off-reservation land 
over which a Tribe has demonstrated its own authority under Federal 
Indian law. Today's notice makes it clear that EPA's implementation of 
part 71 programs in Indian country is based on EPA's overarching 
authority to protect air quality within Indian country, not solely on 
its authority to act in the stead of an Indian Tribe.
    The 1995 proposal used the term ``Tribal area'' to refer to the 
areas over which Tribes and EPA had jurisdiction. One of the commenters 
on the 1995 proposal recommended that the definition of ``Tribal area'' 
encompass Indian country, as defined in 18 U.S.C. 1151, noting that 
this term is used in the context of several other EPA environmental 
programs. As provided in 18 U.S.C. 1151:

    [T]he term ``Indian country,'' as used in this chapter, means 
(a) all land within the limits of any Indian reservation under the 
jurisdiction of the United States government, notwithstanding the 
issuance of any patent, and including rights-of-way running through 
the reservation, (b) all dependent Indian communities within the 
borders of the United States whether within the original or 
subsequently acquired territory thereof, and whether within or 
without the limits of a State, and (c) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-
of-way running through the same.

    Although a detailed analysis of the cases that have interpreted 
this definition is beyond the scope of this notice, it should be noted 
that the definition of Indian country would encompass the land referred 
to in the 1995 proposal as ``Tribal area,'' but would not require a 
jurisdictional showing on the part of the Tribe. Indian country 
includes all of the territory within an Indian reservation (even land 
owned by non-Indians) and incorporates ``dependent Indian communities'' 
and allotments held in trust regardless of whether they are located 
within a recognized reservation.
    Based on recent Supreme Court case law, EPA has construed the term 
``reservation'' to incorporate trust land that has been validly set 
apart for use by a Tribe, even though that land has not been formally 
designated as a ``reservation.'' See 56 FR at 64881 (December 12, 
1991); see also Oklahoma Tax Commission v. Citizen Band Potawatomi 
Indian Tribe of Oklahoma, 111 S.Ct. 905, 910 (1991). The EPA will be 
guided by relevant case law in interpreting the scope of 
``reservation'' under the Act.
    The 1995 proposal was designed to authorize EPA to directly 
implement an operating permits program where there was a void in 
program coverage, thus assuring program coverage coast to coast. 
However, the proposal inadvertently created a potential void in 
coverage, in that it would authorize EPA to administer an operating 
permits program only where the Tribe had made a jurisdictional showing. 
This raised the possibility that neither EPA, the Tribe, nor the State 
would be implementing an

[[Page 13750]]

operating permits program in a given geographic area. The EPA believes 
that to avoid this result, EPA should exercise its authority throughout 
Indian country. Thus, consistent with the Agency's Indian Policy, EPA 
will administer title V programs within Indian country unless a part 70 
program has been given full or interim approval. In addition, EPA 
believes there is no reason to impose on Tribes the burden of making a 
jurisdictional showing prior to EPA administering a Federal program. 
The EPA solicits comment on this approach to describing its exercise of 
authority to issue operating permits under the Federal operating 
permits program.

III. Federal Authority to Implement Title V in Indian Country

    Today, EPA is proposing to implement the Federal title V operating 
permit program throughout Indian country. As discussed in the proposed 
Tribal authority rule, EPA is authorized to protect air quality by 
directly implementing provisions of the Act throughout Indian country 
(59 FR 43956, 43958-43960 (August 25, 1994)). The EPA's authority is 
based in part on the general purpose of the Act, which is national in 
scope. As stated in section 101(b)(1) of the Act, Congress intended to 
``protect and enhance the quality of the Nation's air resources so as 
to promote the public health and welfare and the productive capacity of 
its population'' (emphasis added). It is clear that Congress intended 
for the Act to be a ``general statute applying to all persons to 
include Indians and their property interests.'' See Phillips Petroleum 
Co. v. United States EPA, 803 F.2d 545, 553-558 (10th Cir. 1986) 
(holding that the Safe Drinking Water Act applied to Indian Tribes and 
lands by virtue of being a nationally applicable statute).
    Section 301(a) of the Act delegates to EPA broad authority to issue 
such regulations as are necessary to carry out the functions of the 
Act. Further, several provisions of the Act call for Federal issuance 
of a program where, for example, a State fails to adopt a program, 
adopts an inadequate program, or fails to adequately implement a 
required program. See, e.g., sections 110(c) and 502 (d), (e), (i) of 
the Act. It follows that Congress intended that EPA would similarly 
have broad legal authority in instances when Tribes choose not to 
develop a program, fail to adopt an adequate program, or fail to 
adequately implement an air program authorized under section 301(d). In 
addition, section 301(d)(4) of the Act empowers the Administrator to 
directly administer Act requirements so as to achieve the appropriate 
purpose, where Tribal implementation of those requirements is 
inappropriate or administratively infeasible. These provisions of the 
Act evince Congressional intent to authorize EPA to directly implement 
programs under the Act in Indian country until Tribes submit approvable 
programs. 1
---------------------------------------------------------------------------

    \1\ The EPA's interpretation of section 301(d) is also supported 
by the legislative history--S. Rep.101-228 (December 20, 1989), page 
80 (noting that section 301(d) of the Act authorizes EPA to 
implement Act provisions throughout ``Indian country'' where there 
is no tribal program).
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    The EPA believes that under the Act, Congress intended to allow 
eligible Tribes to implement programs under the Act generally up to the 
limits of Indian country and to authorize EPA to implement the Act in 
Indian country where a Tribe does not have an approved program. The Act 
authorizes EPA to treat a Tribe in the same manner as a State for the 
regulation of ``air resources within the exterior boundaries of the 
reservation or other areas within the tribe's jurisdiction'' (section 
301(d)(2)(B) (emphasis added)). The EPA believes that this statutory 
provision, viewed within the overall framework of the Act, reflects a 
territorial view of Tribal jurisdiction and authorizes a Tribal role 
for all air resources within the exterior boundaries of Indian 
reservations without distinguishing among various categories of on-
reservation land. In the proposed Tribal authority rule, EPA stated its 
proposed interpretation that the Act grants to Tribes approved by EPA 
to administer programs under the Act in the same manner as States 
authority over all air resources within the exterior boundaries of a 
reservation for such programs (59 FR at 43958). In addition, based on 
section 301(d)(2)(B) of the Act, EPA proposed that a Tribe may also be 
able to implement its air quality programs on off-reservation lands 
which are within its jurisdiction under Federal Indian law, generally 
up to the limits of ``Indian country,'' as defined in 18 U.S.C. 1151; 
id. at 43960.
    The EPA is proposing to interpret the Act as generally authorizing 
EPA to implement the title V program even in areas of Indian country 
where a State previously may have been able to demonstrate 
jurisdiction. However, the EPA will not administer and enforce a part 
71 program in Indian country when an operating permits program for the 
area which meets the requirements of part 70 of this chapter has been 
granted full or interim approval unless such approval is later 
withdrawn. The EPA believes that the provisions of the Act discussed 
above evince a Congressional preference that implementation of the Act 
in Indian country be carried out by either EPA or the Tribes. Even 
where a State has asserted jurisdiction over an area located in Indian 
country under color of a statement of general authorization in another 
Federal statute, the Act would nonetheless generally authorize EPA to 
implement a title V program in such areas. See Adkins v. Arnold, 235 
U.S. 417, 420; 59 L. Ed. 294, 295; 35 S. Ct. 118 (1914) (noting that 
``later in time'' statutes should take precedence).
    Today's notice is consistent with long-standing EPA policy that the 
Agency will administer environmental programs in Indian country until a 
Tribe assumes regulatory responsibility. See, e.g., EPA's 1984 Policy 
for the Administration of Environmental Programs on Indian 
Reservations, reaffirmed by EPA Administrator Browner in 1994.
    Where there is a dispute as to whether a particular area is Indian 
country, EPA will run the title V program in that area until the 
dispute is satisfactorily resolved. A Tribal or State government that 
wishes to dispute whether an area is or is not within Indian country 
should submit to the appropriate Regional Administrator sufficient 
information that demonstrates to EPA's satisfaction that there is a 
dispute. The EPA solicits comment on this approach.

IV. Proposed Changes to Regulatory Language

    The EPA today proposes to add a definition of the term ``Indian 
country'' based on the term as defined in 18 U.S.C. 1151. The EPA notes 
that although the definition of Indian country appears in a criminal 
code, it has been extended to civil judicial and regulatory 
jurisdiction (DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2 
(1975); 40 CFR 144.3).
    In addition, EPA proposes to delete the definition of ``Tribal 
area'' because EPA believes it is more consistent with other 
environmental regulations to define EPA's jurisdiction in terms of 
``Indian country.'' The use of both terms may create confusion as well. 
Accordingly, EPA proposes to revise several regulatory provisions that 
include the term ``Tribal area,'' including the definition of 
``affected State'' in Sec. 71.1, Sec. 71.4(a), Sec. 71.4(b), 
Sec. 71.4(b)(2) through (b)(4), Sec. 71.4(f), Sec. 71.4(h)-(j), 
Sec. 71.8(a), and Sec. 71.8(d).
    In addition, EPA proposes several regulatory changes that result 
from the new approach that are different than the 1995 proposal. 
Briefly summarized, these changes include the following. First, 
proposed Sec. 71.4(b)(1) that referred to Tribal assertion of 
jurisdiction would

[[Page 13751]]

not be finalized and would be deleted in its entirety since a Tribe's 
assertion of jurisdiction is not a relevant consideration under today's 
proposal. Instead, proposed Sec. 71.4(b) would establish EPA's 
authority to administer the part 71 program within Indian country 
irrespective of whether the Tribe established its jurisdiction over the 
area. Second, consistent with the Agency's policy with respect to 
administering environmental programs in Indian country, EPA would not 
solicit comment on the boundaries of the program through a rulemaking. 
See, e.g., 40 CFR 144.3, 147.60(a) (EPA administers Underground 
Injection Control program on ``Indian lands,'' defined equivalent to 
``Indian country.'' Rather, disputes over whether a specific source was 
subject to the part 71 program would be resolved in the context of 
permitting the source. Therefore, provisions from the April 1995 
proposal that would have required EPA to notify appropriate 
governmental entities of the proposed geographic boundaries of the 
program are inappropriate and will be withdrawn. The EPA solicits 
comments on this approach.
    The EPA believes that most sources in Indian country are located 
within reservation boundaries and that these sources should not find it 
difficult to determine that they are subject to the part 71 program. 
The Agency will rely on boundaries as determined by the Bureau of 
Indian Affairs which will provide maps of reservations upon request. 
The EPA recognizes that some sources may be uncertain as to whether 
they are located within Indian country. Sources that are unsure of 
whether they are located in Indian country should consult the 
appropriate EPA Regional office. Prior to the effective date of the 
part 71 program in Indian country, the EPA will undertake outreach 
efforts to notify sources that they are subject to the program, in much 
the same way as States have notified sources that they believed were 
subject to the part 70 program. However, EPA may fail to identify some 
sources within Indian country. Even as to those sources, EPA reiterates 
that it is the source's responsibility to ascertain whether or not it 
is subject to the part 71 program.
    The Agency will publish in the Federal Register a notice of the 
effective date of the part 71 program in Indian country as required by 
Sec. 71.4(g), even where the default effective date of November 15, 
1997 has not been changed for a given area within Indian country. The 
Agency solicits comments on what additional information this notice 
should contain that would be helpful to sources.
    The EPA solicits comments on whether EPA should take additional 
steps to provide notice to sources that they are located in Indian 
country and, if so, what those steps would be. At this time, the Agency 
does not believe there is value in publishing maps and boundaries of 
reservations because the Agency will rely on the boundaries recognized 
by the Bureau of Indian Affairs which are available upon request from 
that Agency.
    In addition, EPA is adding language to clarify Sec. 71.4(b). The 
EPA intended that this section would not only authorize early 
implementation of the part 71 program (in advance of the November 15, 
1997 default effective date for the program), but would also clarify 
that EPA will administer the program unless a part 70 program has been 
given full or interim approval. Given that the 1995 proposed language 
is less than clear on this point, the current proposal at section 71.4 
explains that EPA will administer the program in Indian country.

V. Administrative Requirements

A. Docket

    The docket for this regulatory action is A-93-51. All the documents 
referenced in this preamble fall into one of two categories. They are 
either reference materials that are considered to be generally 
available to the public, or they are memoranda and reports prepared 
specifically for this rulemaking. Both types of documents can be found 
in Docket Number A-93-51.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant'' regulatory action as 
one that is likely to lead to a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or Tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan program or the rights and obligation of recipients 
thereof;
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.''
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this proposed rule is not a ``significant'' regulatory 
action because it does not raise any of the issues associated with 
``significant'' regulatory actions. The proposal would have a 
negligible effect on the economy and would not create any 
inconsistencies with other actions by other agencies, alter any 
budgetary impacts, or raise any novel legal or policy issues. This 
proposal would affect EPA's approach to permitting sources in Indian 
country, assuring that all title V sources located in Indian country 
will be subject to title V permitting requirements. For these reasons, 
this action was not submitted to OMB for review.

C. Regulatory Flexibility Act Compliance

    The Regulatory Flexibility Act (5 U.S.C. 601) requires EPA to 
consider potential impacts of proposed regulations on small entities. 
If a preliminary analysis indicates that a proposed regulation would 
have a significant adverse economic impact on a substantial number of 
small entities, then a regulatory flexibility analysis must be 
prepared.
    The original part 70 rule and the recently proposed revisions to 
part 70 were determined to not have a significant adverse impact on a 
substantial number of small entities. See 57 FR 32250, 32294 (July 21, 
1992), and 60 FR 45530, 45563 (August 31, 1995). Similarly, a 
regulatory flexibility screening analysis of the part 71 rule revealed 
that the rule would not have a significant adverse impact on a 
substantial number of small entities, since few small entities would be 
subject to part 71 permitting requirements as a result of the rule's 
deferral of the requirement to obtain a permit for nonmajor sources. 
See 61 FR 34202, 34227 (July 1, 1996).
    The prior screening analyses for the part 70 and part 71 rule was 
done on a nationwide basis without regard to whether sources were 
located within Indian country and are, therefore, applicable to sources 
in Indian country. Accordingly, EPA believes that the screening 
analyses are valid for purposes of today's proposal. And since the 
screening analyses for the prior rules found that the part 70 and 71 
rules as a whole would not have a significant impact on a substantial 
number of small entities, today's rule, which may affect a much smaller 
number of entities than

[[Page 13752]]

affected by the earlier rules, also will not have a significant impact 
on a substantial number of small entities. The reasons for this 
conclusion are discussed in more detail below.
    At this time, no nonmajor sources are required by part 71 to obtain 
an operating permit. The Agency has also issued several policy 
memoranda explaining or providing mechanisms for sources to become 
``synthetic minors'' whereby the source is recognized for not emitting 
pollutants in major quantities. The sources thereby avoid the 
requirement to obtain a part 71 permit.
    Because of the deferral of permitting requirements for nonmajor 
sources, today's proposal would affect only a small number of sources. 
Although firm figures on the number of title V sources in Indian 
country are not available, preliminary estimates suggest that there may 
be only approximately 100 major sources, and 450 nonmajor sources (for 
which permitting requirements would be deferred).
    Consequently, I hereby certify that today's proposed rule would not 
have a significant impact on a substantial number of small entities.

D. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements currently contained in the part 71 
requirements published July 1, 1996 (61 FR 34202) under the provisions 
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned 
OMB control number 2060-0336. The additional information collection 
requirements in this proposed rule have been submitted for approval to 
the OMB. An Information Collection Request (ICR) document has been 
prepared by EPA (ICR No. 1713.03) and a copy may be obtained from Sandy 
Farmer, Regulatory Information Division; U.S. Environmental Protection 
Agency (2137); 401 M St., SW., Washington, DC 20460 or by calling (202) 
260-2740.
    The information is planned to be collected to enable EPA to carry 
out its obligations under the Act to determine which sources in Indian 
country are subject to the Federal Operating Permits Program and what 
requirements should be included in permits for sources subject to the 
program. Responses to the collection of information will be mandatory 
under Sec. 71.5(a) which requires owners or operators of sources 
subject to the program to submit a timely and complete permit 
application and under Secs. 71.6 (a) and (c) which require that permits 
include requirements related to recordkeeping and reporting. As 
provided in 42 U.S.C. 7661(e), sources may assert a business 
confidentiality claim for the information collected under section 
114(c) of the Act.
    Today's proposal would impose information collection request 
requirements on approximately 100 sources in Indian country. On a per 
source basis, the burden would be identical to the burden for sources 
currently subject to part 71 requirements. In the current Information 
Collection Request (ICR) document for the part 71 rule, EPA estimates 
that the annual burden per source is 329 hours, and the annual burden 
to the Federal government is 243 hours per source. Therefore, the 
impact of today's proposal would be that sources will incur an 
additional 32,900 burden hours per year, and EPA will incur an 
additional 24,300 burden hours per year. The total annualized cost 
would be $18,425 per source or $1,842,500.
    Today's rule imposes no burden on State and local agencies. Burden 
means the total time, effort, or financial resources expended by 
persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information; processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information. An Agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. The OMB control numbers for EPA's regulations are 
listed in 40 CFR part 9 and 48 CFR Chapter 15.

E. Unfunded Mandates Reform Act

    Today's action imposes no costs on State, local, and Tribal 
governments. It changes the Agency's approach to issuing permits to 
sources in Indian country and eliminates the requirement that Indian 
Tribes establish their jurisdiction prior to EPA administering the 
Federal operating permits program in Indian country.
    The EPA has estimated in the ICR document that the Federal 
operating permits program rule promulgated in July 1996 would cost the 
private sector $37.9 million per year. See 61 FR 34202, 34228 (July 1, 
1996). In the ICR, EPA estimates costs based on sources that would be 
subject to part 71 permitting requirements in eight States, but 
overestimates the number of these sources for purposes of simplifying 
the analysis. See 61 FR 34202, 34227 (July 1, 1996). The overestimate 
of the number of sources is nearly as large as the number of new 
sources covered in today's proposal. Consequently, EPA believes today's 
proposal would increase the direct cost of the part 71 rule for 
industry to $38.3 million. This estimate is based on the average cost 
of compliance per source and the number of sources in Indian country 
that were not accounted for in the original estimate. The EPA has 
determined that today's action does not contain a Federal mandate that 
may result in expenditures of $100 million or more for State, local, 
and Tribal governments, in the aggregate, or the private sector, in any 
1 year. Therefore, the Agency concludes that it is not required by 
section 202 of the Unfunded Mandates Reform Act of 1995 to provide a 
written statement to accompany this regulatory action.

List of Subjects 40 CFR Part 71

    Environmental protection, Operating permits, Indian Tribes.

    Dated: March 17, 1997.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as set forth 
below.

PART 71--[AMENDED]

    1. The authority citation for part 71 continues to read as follows:

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

Subpart A--[Amended]

    2. Section 71.2 is proposed to be amended by revising paragraphs 
(1) and (2) of the definition of ``Affected State'' and by adding the 
definition of ``Indian country'' as follows:


Sec. 71.2  Definitions.

* * * * *
    Affected States are:
    (1) All States and areas within Indian country subject to a part 70 
or part 71 program and that are contiguous to the State or the area 
within Indian country in which the permit, permit modification, or 
permit renewal is being proposed; or that are within 50 miles of the 
permitted source. A Tribe shall be treated in the same manner as a 
State under this paragraph (1) only if EPA has

[[Page 13753]]

determined that the Tribe is an eligible Tribe.
    (2) The State or area within Indian country subject to a part 70 or 
part 71 program in which a part 71 permit, permit modification, or 
permit renewal is being proposed. A Tribe shall be treated in the same 
manner as a State under this paragraph (2) only if EPA has determined 
that the Tribe is an eligible Tribe.
* * * * *
    Indian country means:
    (1) All land within the limits of any Indian reservation under the 
jurisdiction of the United States government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation;
    (2) All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a State; 
and
    (3) All Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same.
* * * * *
    2. Section 71.4 is proposed to be amended by revising paragraph (a) 
introductory text, revising paragraph (b), revising paragraph (f), 
revising paragraph (h), revising paragraph (i) introductory text, and 
revising the first sentence of paragraph (j), to read as follows:


Sec. 71.4  Program implementation.

    (a) Part 71 programs for States. The Administrator will administer 
and enforce a full or partial operating permits program for a State 
(excluding Indian country) in the following situations:
* * * * *
    (b) Part 71 programs for Indian country. By November 15, 1997, the 
Administrator will administer and enforce an operating permits program 
in Indian country, as defined in Sec. 71.2, when an operating permits 
program for the area which meets the requirements of part 70 of this 
chapter has not been granted full or interim approval by the 
Administrator. The Administrator may administer an operating permits 
program in Indian country in advance of that date.
    (1) [Reserved].
    (2) The effective date of a part 71 program in Indian country shall 
be November 15, 1997.
    (3) Notwithstanding paragraph (b)(2) of this section, the 
Administrator, in consultation with the governing body of the affected 
Indian Tribe, may adopt an earlier effective date.
    (4) Notwithstanding paragraph (i)(2) of this section, within 2 
years of the effective date of the part 71 program in Indian country, 
the Administrator shall take final action on permit applications from 
part 71 sources that are submitted within the first full year after the 
effective date of the part 71 program.
* * * * *
    (f) Use of selected provisions of this part. The Administrator may 
utilize any or all of the provisions of this part to administer the 
permitting process for individual sources or take action on individual 
permits, or may adopt, through rulemaking, portions of a State or 
Tribal program in combination with provisions of this part to 
administer a Federal program for the State or in Indian country in 
substitution of or addition to the Federal program otherwise required 
by this part.
* * * * *
    (h) Effect of limited deficiency in the State or Tribal program. 
The Administrator may administer and enforce a part 71 program in a 
State or within Indian country even if only limited deficiencies exist 
either in the initial program submittal for a State or eligible Tribe 
under part 70 of this chapter or in an existing State or Tribal program 
that has been approved under part 70 of this chapter.
    (i) Transition plan for initial permits issuance. If a full or 
partial part 71 program becomes effective in a State or within Indian 
country prior to the issuance of part 70 permits to all part 70 sources 
under an existing program that has been approved under part 70 of this 
chapter, the Administrator shall take final action on initial permit 
applications for all part 71 sources in accordance with the following 
transition plan.
* * * * *
    (j) Delegation of part 71 program. The Administrator may promulgate 
a part 71 program in a State or Indian country and delegate part of the 
responsibility for administering the part 71 program to the State or 
eligible Tribe in accordance with the provisions of Sec. 71.10; 
however, delegation of a part of a program will not constitute any type 
of approval of a State or Tribal operating permits program under part 
70 of this chapter. * * *
* * * * *
    3. Section 71.8 is proposed to be amended by revising the first 
sentence of paragraph (a) and revising paragraph (d) as follows:


Sec. 71.8  Affected State review.

    (a) Notice of draft permits. When a part 71 operating permits 
program becomes effective in a State or within Indian country, the 
permitting authority shall provide notice of each draft permit to any 
affected State, as defined in Sec. 71.2 on or before the time that the 
permitting authority provides this notice to the public pursuant to 
Sec. 71.7 or 71.11(d) except to the extent Sec. 71.7(e) (1) or (2) 
requires the timing of the notice to be different. * * *
* * * * *
    (d) Notice provided to Indian Tribes. The permitting authority 
shall provide notice of each draft permit to any federally recognized 
Indian Tribe in an area contiguous to the jurisdiction in which the 
part 71 permit is proposed or is within 50 miles of the permitted 
source and whose air quality may be affected by the permitting action.

[FR Doc. 97-7219 Filed 3-20-97; 8:45 am]
BILLING CODE 6560-50-P