[Federal Register Volume 63, Number 29 (Thursday, February 12, 1998)]
[Rules and Regulations]
[Pages 7254-7274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3451]



[[Page 7253]]

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Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 9, 35, 49, 50, and 81



Indian Tribes: Air Quality Planning and Management; Final Rule

  Federal Register / Vol. 63, No. 29 / Thursday, February 12, 1998 / 
Rules and Regulations  

[[Page 7254]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 35, 49, 50, and 81

[OAR-FRL-5964-2]
RIN 2060-AF79


Indian Tribes: Air Quality Planning and Management

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Clean Air Act (CAA) 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 final 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 to address air quality 
problems.

EFFECTIVE DATE: March 16, 1998.

FOR FURTHER INFORMATION CONTACT: David R. LaRoche, Office of Air and 
Radiation (OAR 6102), U.S. Environmental Protection Agency, 401 M 
Street, S.W., Washington D.C. 20460 at (202) 260-7652.

SUPPLEMENTARY INFORMATION: Supporting information used in developing 
the final rule is contained in Docket No. A-93-3087. 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, D.C. 20460. A reasonable fee may be 
charged for copying.
    This preamble is organized according to the following outline:

I. Background of the Final Rule
II. Analysis of Major Issues Raised by Commenters
    A. Jurisdiction
    B. Sovereign Immunity and Citizen Suit
    C. Air Program Implementation in Indian Country
    D. CAA Sections 110(c)(1) and 502(d)(3) Authority
III. Significant Changes from the Proposed Regulations
IV. Miscellaneous
    A. Executive Order (EO) 12866
    B. Regulatory Flexibility Act (RFA)
    C. Executive Order (EO) 12875 and the Unfunded Mandates Reform 
Act (UMRA)
    D. Paperwork Reduction Act
    E. Submission to Congress and the General Accounting Office

I. Background of the Final Rule

Summary of Issues Raised by the Proposal

    EPA proposed rules on August 25, 1994 (59 FR 43956) to implement 
section 301(d) of the Act. The proposal elicited many comments from 
state and tribal officials, private industry, and the general public. A 
total of 69 comments were received, of which 44 were from tribes or 
tribal representatives; 13 from state and local governments or 
associations; 10 from industry (primarily utilities and mining); and, 1 
from Department of Energy (DOE) and 1 from an environmental interest 
group in Southern California. The tribes and several other commenters 
generally express support for the proposed rule and the delegation of 
CAA authority to eligible tribes to manage reservation air resources. 
Tribes especially urge EPA to expedite the finalization of this rule to 
enable tribes to begin to implement their air quality management 
programs and encourage EPA to recognize that the development of tribal 
air programs will be an evolving process requiring both time and 
significant assistance from EPA.
    Most of the tribal commenters express concern with the inclusion of 
the citizen suit provisions which, they believed, effected a waiver of 
their sovereign immunity; they recommend that this provision be deleted 
in the final rule. This is a major issue for tribes. State and local 
government and industry commenters are primarily concerned that the 
proposed rule would create an unworkable scheme for implementing tribal 
air quality programs, and many of these commenters question the scope 
of tribal regulatory jurisdiction.
    Responses to many of the comments related to issues of jurisdiction 
and sovereign immunity are included in sections II.A and II.B in the 
analysis of comments below. Responses to comments on the issues raised 
concerning federal implementation in Indian country are addressed in 
sections II.C and II.D of this document. All other comments are 
addressed in a document entitled ``response to comments'' that can be 
found in the docket for this rule cited above.

II. Analysis of Major Issues Raised by Commenters

A. Jurisdiction

1. Delegation 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. In the August 25, 1994 proposed tribal 
authority rule, EPA set forth its interpretation that the CAA is a 
delegation of federal authority, to tribes approved by EPA to 
administer CAA programs in the same manner as states, over all air 
resources within the exterior boundaries of a reservation for such 
programs. Today, EPA is finalizing this approach. This grant of 
authority by Congress enables eligible tribes to address conduct 
relating to air quality on all lands, including non-Indian-owned fee 
lands, within the exterior boundaries of a reservation.
    EPA's 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 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.'' CAA section 301(d)(2)(B). EPA believes that this 
statutory provision, viewed within the overall framework of the CAA, 
establishes 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. See also CAA sections 110(o), 164(c).
    In light of the statutory language and the overall statutory 
scheme, EPA is exercising the rulemaking authority entrusted to it by 
Congress to implement the CAA provisions granting 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). This interpretation of the CAA as generally delegating 
such authority to approved tribes is also supported by the legislative 
history, which provides additional evidence of Congressional intention 
regarding this issue. See S. Rep. No. 228, 101st Cong., 1st Sess. 79 
(1989) (``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)) (hereinafter

[[Page 7255]]

referred to as ``Senate Report'').1 EPA also believes this 
territorial approach to air quality regulation best advances rational, 
sound, air quality management.
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    \1\ 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. 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. Ramah Navajo School Board, Inc. v. Bureau of Revenue 
of New Mexico, 458 U.S. 832, 846 (1982).
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    (a) Support for the delegation approach. Tribal commenters and 
several industry commenters support EPA's interpretation that the CAA 
constitutes a delegation of Congressional authority to eligible tribes 
to implement CAA programs over their entire reservations. Numerous 
tribal commenters assert that EPA's territorial delegation approach is 
consistent with federal Indian law and the intent of Congress as 
expressed in several provisions of the CAA. Several tribal commenters 
note that, while tribes have inherent sovereign authority over all air 
resources within the exterior boundaries of their reservations, EPA 
should finalize the delegation approach to avoid case-by-case 
litigation concerning inherent authority and to eliminate the 
disruptive potential of a ``checkerboarded'' pattern of tribal and 
state jurisdiction on reservations. Several tribal commenters assert 
that the delegation approach is compelled by the language of the CAA 
and federal Indian law principles. One tribal commenter states that the 
delegation approach is consistent with the federal government's trust 
responsibility to federally-recognized Indian tribes.
    (b) Statutory Interpretation. Several state commenters assert that 
the CAA does not constitute an ``express congressional delegation'' of 
authority to tribes as required by the Supreme Court's decisions in 
Montana v. United States, 450 U.S. 544 (1981) and Brendale, 492 U.S. 
408. Several state and industry commenters dispute EPA's interpretation 
of CAA section 301(d)(2)(B), which states that EPA may treat a tribe in 
the same manner as a state if, among other things, ``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.'' One 
commenter asserts that the ``or'' in ``or other areas within the 
tribe's jurisdiction'' means that treatment of a state is authorized 
for a tribe as to air resources over which the tribe has jurisdiction, 
whether or not those areas fall within its reservation boundaries. In 
other words, tribes would not necessarily have jurisdiction over all 
sources within reservation boundaries. The commenter states that EPA 
has improperly read the ``or'' in section 301(d)(2)(B) as an ``and.''
    EPA believes the plain meaning of section 301(d)(2)(B) is that a 
tribe can implement a CAA program for air resources if: (1) the air 
resources are within a reservation; or (2) the air resources are within 
a non-reservation area over which the tribe can demonstrate 
jurisdiction. The most plausible reading of the phrase ``within * * * 
the reservation or other areas within the tribe's jurisdiction'' is 
that Congress intended to grant to an eligible tribe jurisdiction over 
its reservation without requiring the tribe to demonstrate its own 
jurisdiction, but to require a tribe to demonstrate jurisdiction over 
any other areas, i.e., non-reservation areas, over which it seeks to 
implement a CAA program. Under section 301(d)(2)(B), eligible tribes 
may be treated in the same manner as states for protecting ``air 
resources'' within ``the reservation'' or in ``other areas within the 
tribe's jurisdiction.'' Both the term ``reservation'' and the phrase 
``other areas within the tribe's jurisdiction'' modify the phrase ``air 
resources.'' In addition, it is clear from the structure of the 
provision and the CAA and legislative history taken as a whole that the 
phrase ``within the tribe's jurisdiction'' modifies the phrase ``other 
areas'' and not the term ``reservation'' or the phrase ``air 
resources.'' If Congress intended to require tribes to demonstrate 
jurisdiction over reservations, Congress would have simply stated that 
EPA may approve a tribal program only for air resources over which the 
tribe can demonstrate jurisdiction.2
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    \2\ Contrary to the commenter's assertion, EPA does not 
interpret the ``or'' in this section as an ``and''. If the ``or'' 
were an ``and'', under section 301(d)(2) EPA would be authorized to 
approve a tribal program ``only if'' the functions to be exercised 
by the tribe pertain to air resources that are both within a 
reservation and within non-reservation areas over which the tribe 
can demonstrate jurisdiction. This interpretation is nonsensical. 
Moreover, nothing in the Act or legislative history suggests that 
Congress intended to limit so severely the universe of tribes 
eligible for CAA programs.
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    One commenter states that EPA's interpretation of CAA section 
301(d)(2)(B) has made CAA section 301(d)(4), which allows EPA to 
administer provisions of the Act directly if treatment of a tribe as 
identical to a state is found to be ``inappropriate or administratively 
infeasible,'' extraneous. The commenter asserts that if CAA section 
301(d)(2)(B) is a delegation of authority to a tribe, EPA would never 
have cause to find treatment of a tribe as a state ``inappropriate or 
administratively infeasible.'' EPA disagrees that its interpretation 
has made section 301(d)(2)(B) superfluous because, even with the 
delegation of federal authority to tribes for reservation areas, it is 
not appropriate or administratively feasible to treat tribes as states 
for all purposes. In such cases, section 301(d)(4) allows EPA, through 
rulemaking, to ``directly administer such provisions [of the Act] so as 
to achieve the appropriate purpose'' either by tailoring the provisions 
to tribes or conducting a federal program.
    An industry commenter states that CAA section 110(o), which 
provides that when a tribal implementation plan (TIP) becomes effective 
under CAA section 301(d) ``the plan shall become applicable to all 
areas (except as expressly provided otherwise in the plan) located 
within the exterior boundaries of the reservation * * *,'' does not 
support EPA's interpretation of the CAA as a delegation because section 
110(o) is only applicable to plans EPA approved pursuant to regulations 
under section 301(d).
    EPA believes that section 110(o) recognizes that approved tribes 
are authorized to exercise authority over all areas within the exterior 
boundaries of a reservation for the purposes of TIPs. EPA notes that 
the commenter omitted the following remaining language in the quoted 
sentence from CAA section 110(o): ``located within the exterior 
boundaries of the reservation, notwithstanding the issuance of any 
patent and including rights-of-way running through the reservation.'' 
EPA believes that this additional language makes clear that TIPs may 
apply to all areas within the exterior boundaries of reservations. EPA 
believes that the phrase ``except as expressly provided otherwise in 
the plan'' refers to a situation where a tribe seeks to have its TIP 
apply only to specific areas within a reservation.
    An industry commenter states that the CAA does not depart from 
other Congressional provisions regarding ``treatment as a state'' in 
the Clean Water Act (CWA) and the Safe Drinking Water Act (SDWA) and 
EPA has already determined that these other statutes do not constitute 
a delegation of authority to tribes. EPA notes that the CAA ``treatment 
as a state'' provision is notably different from the SDWA ``treatment 
as a state'' provision. Compare CAA Sec. 301(d)(2) (``the functions to 
be exercised by the Indian

[[Page 7256]]

tribe [must] pertain to the management and protection of air resources 
within the exterior boundaries of the reservation or other areas within 
the tribe's jurisdiction'') with SDWA Sec. 1451(b)(1)(B) (``the 
functions to be exercised by the Indian tribes [must be] within the 
area of the Tribal Government's jurisdiction''). In addition, although 
CWA section 518(e) and CAA section 301(d) both contain language 
regarding tribal programs over ``Indian reservations,'' EPA believes 
that the overall statutory scheme and legislative history of the CAA 
represent a clearer expression than that of the CWA that Congress 
intended to effectuate a delegation to tribes over 
reservations.3 EPA notes that, except for the provisions in 
CWA section 518(e) and SDWA section 1451(b)(1)(B), the Water Acts do 
not otherwise indicate what areas are subject to tribal regulatory 
authority. By contrast, several provisions of the CAA expressly 
recognize that tribes may exercise CAA authority over all areas within 
the exterior boundaries of the reservation. See CAA sections 110(o) and 
164(c).
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    \3\ EPA also notes that a federal district court has stated that 
CWA section 518(e) may be read as an express delegation of authority 
to tribes over all reservation water resources. Montana v. U.S. EPA, 
941 F. Supp. 945, 951, 957 n.10 & n.12 (D. Mont. 1996) citing 
Brendale, 492 U.S. at 428 (White, J.). In the preamble to its 1991 
CWA regulation, EPA found the statutory language and legislative 
history of the CWA too inconclusive for the Agency to rely on the 
delegation theory, but noted that ``the question of whether section 
518(e) is an explicit delegation of authority over non-Indians is 
not resolved.'' 56 FR 64876, 64880-881 (December 12, 1991).
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    One industry commenter states that EPA should make clear that the 
CAA does not supersede other laws that may define or limit the extent 
of tribal regulatory jurisdiction.4 The commenter states 
that, given that the CAA does not supersede all other laws regarding 
tribal jurisdiction, EPA should follow a case-by-case approach for 
addressing jurisdiction within reservation boundaries. One state 
association notes that some states have statutory jurisdiction over 
non-Indian fee lands located on reservations and EPA does not address 
how conflicts between the CAA and these statutes will be addressed.
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    \4\ This commenter also asserts that the Chevron doctrine does 
not support EPA's interpretation that the CAA settles all 
jurisdictional issues on lands within reservations. While EPA 
believes that the CAA represents a clear delegation of authority to 
eligible tribes over reservation resources, EPA notes that, to the 
extent the statute is ambiguous, EPA's interpretation would be 
entitled to deference. In addition, the Agency has broad expertise 
in reconciling federal environmental and Indian policies. Washington 
Department of Ecology, 752 F.2d 1465, 1469 (9th Cir. 1985).
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    EPA believes that the CAA delegation of authority to eligible 
tribes over reservations represents a more recent expression of 
Congressional intent and will generally supersede other federal 
statutes. See Adkins v. Arnold, 235 U.S. 417, 420 (1914) (noting that 
``later in time'' statutes should take precedence). There may be, 
however, rare instances where special circumstances may preclude EPA 
from approving a tribal program over a reservation area. For example, 
in rare cases, there may be another federal statute granting a state 
exclusive jurisdiction over a reservation area that may not be 
overridden by the CAA. There may also be cases where a current tribal 
constitution may limit tribal exercise of authority.5
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    \5\ Among other things, the commenter questions whether pre-
existing treaties or binding agreements may limit the extent of 
regulatory jurisdiction. EPA believes that the CAA generally would 
supersede pre-existing treaties or binding agreements that may limit 
the scope of tribal authority over reservations.
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    EPA will consider on a case-by-case basis whether special 
circumstances exist that would prevent a tribe from implementing a CAA 
program over its reservation. Appropriate governmental entities will 
have an opportunity to raise these unique issues on a case-by-case 
basis during EPA's review of a tribal application. Where tribes are 
aware of such issues, they should bring the issues to EPA's attention 
by including them in the tribe's ``descriptive statement of the Indian 
tribe's authority to regulate air quality'' under 40 CFR 49.7(a)(3). If 
EPA determines that there are special circumstances that would preclude 
the Agency from approving a tribal program over a reservation area, the 
Regional Administrator would limit the tribal approval accordingly 
under 40 CFR 49.9(e) and (g).
    (c) Legislative History. Several industry and local government 
commenters assert that the legislative history does not support EPA's 
interpretation of the CAA as a delegation. They state that Senate 
Report No. 101-228, pp. 78-79, 1990 U.S. Code Cong. & Admin. News at 
3464-65 (Senate Report) evidences Congress' intent that the CAA 
authorizes tribal programs in the same manner as had been authorized 
under the CWA and SDWA, both of which EPA has interpreted to authorize 
tribal programs only in areas over which a tribe can demonstrate 
inherent jurisdiction. The commenter also states that the Senate Report 
made clear that treatment as a state is only authorized for areas 
within a tribe's jurisdiction. In addition, one commenter states that 
Congress in 1990 knew how similar provisions of the CWA and SDWA had 
been interpreted and ``Congress can normally be presumed to have had 
knowledge of the interpretation given to the incorporated law. * * *'' 
citing St. Regis Mohawk Tribe, New York v. Brock, 769 F.2d 37, 50 (2nd 
Cir. 1985). One commenter further argues that the Senate Report refers 
to Brendale, which requires a case-by-case approach to tribal inherent 
jurisdiction.
    EPA acknowledges that the summary of the treatment as a state 
provisions in the Senate Report contains a general statement suggesting 
that tribes are to demonstrate jurisdiction for all areas for which 
they seek a program, including reservation areas. However, the summary 
is followed by a detailed discussion that makes clear that Congress 
intended to provide an express delegation of power to Indian tribes for 
all reservation areas and to require a jurisdictional showing only for 
non-reservation areas. Senate Report at 79.
    In addition, the Senate Report cited Brendale for the proposition 
that Congress may delegate federal authority to tribes. Moreover, 
although Brendale does support a case-by-case approach to evaluating 
tribal inherent authority over non-members of the tribe, EPA notes that 
the Senate Report cites the section of the Brendale opinion (pages 
3006-07) in which Justice White recognizes that Congress may expressly 
delegate to a tribe authority over non-members. See Brendale, 109 S.Ct. 
2994, 3006-07 (1989). EPA believes that this statement in the Senate 
Report further supports EPA's view that the CAA was intended to be a 
delegation. EPA also notes that in 1989, when the Senate Report was 
written, EPA had not yet finalized its interpretation that Congress, in 
the CWA, did not clearly intend a delegation to tribes. See 56 FR 
64876, 64880-881 (December 12, 1991); see also Montana v. EPA, 941 F. 
Supp. 945, 951, 957 n.10 & n.12 (noting that the CWA may be read as a 
delegation of CWA authority to tribes over reservations). Thus, read as 
a whole, the Senate Report supports EPA's interpretation that the CAA 
is a delegation.
    (d) Limitations on Congressional delegations of authority. Several 
state and municipal commenters state that Montana, Brendale, and 
Bourland establish that tribes generally do not have authority to 
regulate the activities of nonmembers on nonmember-owned fee lands. 
Several commenters also assert that tribes generally will not have 
inherent authority over sources of air pollution on non-Indian owned 
fee lands within a reservation. As discussed in detail in the preamble 
to the

[[Page 7257]]

proposed rule (59 FR 43958 et seq.), EPA believes that tribes generally 
will have inherent authority over air pollution sources on fee lands. 
59 FR at 43958 n.5; see also Montana v. EPA, 941 F.Supp. 945 (D. Mont. 
1996)(upholding EPA's determination that the Confederated Salish and 
Kootenai Tribes possess inherent authority over nonmember activities on 
fee lands for purposes of establishing water quality standards under 
the CWA). Nonetheless, because the Agency is interpreting the CAA as an 
explicit delegation of federal authority to eligible tribes, it is not 
necessary for EPA to determine whether tribes have inherent authority 
over all sources of air pollution on their reservations.
    Several commenters state that only delegations over lands and 
activities subject to inherent tribal power are permissible. One 
commenter states that the proposed rule should be modified to require 
tribes to establish preexisting authority for on-reservation CAA 
programs, at least with regard to fee lands held by nonmembers within 
reservations. Two commenters, one citing the United States Constitution 
and the other citing U.S. v. Morgan, 614 F.2d 166 (8th Cir. 1980), also 
assert that a tribe cannot have delegated authority over nonmembers on 
fee lands living in a non-Indian community within a reservation. A 
state commenter asserts that these two factors, i.e., whether a tribe 
possesses inherent authority and whether the delegation is over 
nonmembers living on fee lands within a non-Indian community, were 
factors considered by the Supreme Court in Mazurie in evaluating 
whether Congress had validly delegated federal authority to tribes to 
regulate the introduction of alcoholic beverages into Indian country.
    EPA believes that Indian tribes have sufficient independent 
authority to assume a Congressional delegation of authority to 
implement CAA programs. The Supreme Court in Mazurie acknowledged that 
Indian tribes have sovereignty over ``both their members and their 
territory.'' 419 U.S. at 557. As discussed above, EPA believes that 
tribes generally will have inherent authority to regulate sources of 
air pollution on nonmember-owned fee lands within reservations as well. 
However, EPA notes that the Court in Mazurie held that it is not 
necessary for a tribe to have independent authority over all matters 
that would be subject to the delegated authority; rather ``[i]t is 
necessary only to state that the independent tribal authority is quite 
sufficient to protect Congress' decision to vest in tribal councils 
this portion of its own authority `to regulate Commerce * * * with the 
Indian tribes.' '' 419 U.S. at 557 (citation omitted).
    In addition, while the Court in Mazurie noted that Constitutional 
limits on the authority of Congress to delegate its legislative power 
are ``less stringent in cases where the entity exercising the delegated 
authority itself possesses independent authority over the subject 
matter,'' the Court did not say that some independent source of 
authority was an absolute prerequisite for a Congressional delegation. 
419 U.S. at 556-57. 6 Even in a case where a particular 
tribe's inherent authority is markedly limited, the detailed parameters 
outlined in the CAA and EPA's oversight role over tribal exercise of 
authority delegated by the CAA are sufficient to ensure that 
Constitutional limitations on the delegated authority have not been 
exceeded.
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    \6\ One industry commenter asserts that delegations of federal 
authority from Congress must ``clearly delineate'' policy and 
standards to be effective or valid, citing American Power & Light 
Co. v. Securities and Exchange Commission, 329 U.S. 90, 105 (1946). 
According to this commenter, EPA's proposed interpretation does not 
meet this standard. EPA agrees that the non-delegation doctrine does 
include a limitation on the devolution of legislative power under 
terms so vague as to be standardless, but that limitation has become 
a very low threshold, see Mistretta v. United States, 488 U.S. 361 
(1989)(Scalia, J., dissenting); Industrial Union Dep't v. American 
Petroleum Inst., 448 U.S. 607 (1980) (Rehnquist, J., concurring in 
the judgment), and is easily met by the CAA. The CAA provides 
detailed direction to tribes on the parameters under which CAA 
programs are to be implemented.
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    Furthermore, EPA disagrees with the commenter's assertion that the 
United States Constitution and federal court precedent prohibit 
Congress from delegating authority to a tribe over nonmembers on fee 
land living in a non-Indian community within a reservation. See City of 
Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554 (8th Cir. 1993), 
reh'g en banc denied, 1994 U.S. App. Lexis 501 (1994), cert denied, 512 
U.S. 1236 (1994); see also Rice v. Rehner, 463 U.S. 713, 715 (1983) 
(noting that Congress, in 18 U.S.C. 1161, delegated to tribes authority 
to regulate liquor throughout Indian country, including in non-Indian 
communities). The discussion in Morgan and Mazurie about ``non-Indian 
communities'' was centered around the specific language of 18 U.S.C. 
sections 1154 and 1156 regarding introduction of alcoholic beverages 
into Indian country, and is not relevant to an interpretation of the 
CAA. In addition, EPA notes that the Eighth Circuit Court of Appeals, 
in City of Timber Lake, 10 F.3d 554, declined to follow its prior 
decision in Morgan, and concluded that 18 U.S.C. section 1161 delegated 
authority to tribes to regulate liquor in all of Indian country, 
including non-Indian communities.
    One industry commenter asserts that, if EPA finalizes its position 
that Congress has delegated federal authority to tribes, EPA should 
state explicitly in its rule that the Bill of Rights and other federal 
protections for regulated entities apply to tribal air programs. EPA 
notes that the Indian Civil Rights Act imposes on tribal governments 
restrictions similar to those contained in the Bill of Rights and the 
Fourteenth Amendment, including the prohibitions against the denial of 
due process and equal protection, and the taking of private property 
without just compensation. 25 U.S.C. 1302; Santa Clara Pueblo v. 
Martinez, 436 U.S. 49, 57 (1978). These protections extend to all 
persons subject to tribal jurisdiction, whether Indians or non-Indians. 
Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 19 (1987). EPA 
believes that whether or not the Bill of Rights applies to tribes 
implementing the CAA on reservations is an issue for the courts to 
decide when and if the issue arises in a particular case. See Mazurie, 
419 U.S. at 558 n. 12.
    (e) Use of the word ``reservation.'' Several tribal commenters 
supported EPA's proposal to construe the term ``reservation'' to 
include 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 59 FR at 43960; 56 FR at 64881; see also Oklahoma 
Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 111 
S.Ct. 905, 910 (1991). Some tribal commenters suggested that the 
definition of ``reservation'' in proposed Sec. 49.2 be broadened 
specifically to include ``trust land that has been validly set apart 
for use by a Tribe, even though the land has not been formally 
designated as a reservation.''
    A state commenter states that EPA has not provided an analysis of 
relevant provisions in the CAA to support its proposition that the term 
``reservation'' includes ``trust land that has been validly set apart 
for the use of a Tribe.'' In addition, this commenter questions EPA's 
reliance on Oklahoma Tax Comm'n because that case deals with trust 
lands in Oklahoma and may not be universally applicable. Several 
commenters express concern that the phrase ``exterior boundaries of the 
reservation'' could encompass lands held in fee by nonmembers outside 
of areas formally designated as ``reservations.'' A state commenter 
suggests that EPA should require a case-by-case demonstration in cases 
where non-Indian-owned lands exist which may be surrounded by the 
exterior

[[Page 7258]]

boundaries of a Pueblo. The commenter asserts that in these 
circumstances there is no evidence that the non-Indian lands were 
``validly set apart for the use of the Indians as such, under the 
superintendence of the Government.'' The State of Oklahoma objects to 
EPA's use of the word ``reservation'' because, by federal law, the term 
``reservation'' can include former reservations in Oklahoma, which 
include approximately the entire State. See 25 U.S.C. 1425. The State 
suggests that EPA should limit the term reservation to include only 
tribal trust land in Oklahoma; lands held in trust for individual 
Indians, Oklahoma asserts, should not be considered ``reservations.''
    It is the Agency's position that the term ``reservation'' in CAA 
section 301(d)(2)(B) should be interpreted in light of Supreme Court 
case law, including Oklahoma Tax Comm'n, in which the Supreme Court 
held that a ``reservation,'' in addition to the common understanding of 
the term, also includes trust lands that have been validly set apart 
for the use of a tribe even though the land has not been formally 
designated as a reservation. In applying this precedent to construe the 
term ``reservation'' in the context of the CWA, the Agency has only 
recognized two categories of lands that, even though they are not 
formally designated as ``reservations,'' nonetheless qualify as 
``reservations'': Pueblos and tribal trust lands. EPA will consider 
lands held in fee by nonmembers within a Pueblo to be part of a 
``reservation'' under 40 CFR 49.6(c) and 49.7(a)(3). EPA will consider 
on a case-by-case basis whether other types of lands other than Pueblos 
and tribal trust lands may be considered ``reservations'' under federal 
Indian law even though they are not formally designated as such. 
Appropriate governmental entities will have an opportunity to comment 
on whether a particular area is a ``reservation'' during EPA's review 
of a tribal application. The Agency does not believe that additional, 
more specific language should be added to the regulatory definition of 
``reservation,'' because the Agency's interpretation of the term 
``reservation'' will depend on the particular status of the land in 
question and on the interpretation of relevant Supreme Court precedent.
    A tribal consortium states that the proposed requirement in 
Sec. 49.7(a)(3) that tribes ``must identify with clarity and precision 
the exterior boundaries of the reservation * * *'' precludes Alaska 
Native villages from applying for EPA-approved CAA programs. The full 
language of the proposed requirement in Sec. 49.7(a)(3) is ``[f]or 
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 * * * .'' If a 
tribe is seeking program approval for non-reservation areas, the tribe 
need not provide a reservation description. As noted below, EPA is 
finalizing its proposed position, under section 301(d)(2)(B), that an 
eligible tribe may implement its air quality programs in non-
reservation areas provided the tribe can adequately demonstrate 
authority to regulate air quality in the non-reservation areas in 
question under general principles of Indian law. Thus, if an Alaska 
Native village can demonstrate authority to regulate air resources in 
non-reservation areas, the areas will be considered ``other areas 
within the tribe's jurisdiction'' under section 301(d)(2)(B) of the 
Act.
    (f) Policy Rationales. Industry and municipal commenters state that 
it is improper for EPA to base its interpretation of the CAA regarding 
tribal jurisdiction on policy arguments seeking to avoid 
``jurisdictional entanglements'' and checkerboarding. A state comments 
that given the intense controversy surrounding the issue of authority 
over the activities of nonmembers on fee lands, litigation is likely. 
The commenter states that litigation would cause long-term 
jurisdictional uncertainties, which will erode effective implementation 
of the Act, and that EPA should address and resolve jurisdictional 
issues in the reservation program planning stage. One industry 
commenter asserts that EPA's proposal to interpret the CAA as a 
delegation is inconsistent with EPA policy statements that EPA will 
authorize tribal programs only where tribes ``can demonstrate adequate 
jurisdiction over pollution sources throughout the jurisdiction.'' July 
10, 1991 EPA/State/Tribal relations memorandum, signed by Administrator 
Reilly.
    EPA's interpretation of the CAA is based on the language, 
structure, and intent of the statute. The Agency believes that 
Congress, in the CAA, chose to adopt a territorial approach to the 
protection of air resources within reservations--an approach that will 
have the effect of minimizing jurisdictional entanglements and 
checkerboarding within reservations. EPA expects that the delegation 
approach will minimize the number of case-specific jurisdictional 
disputes that will arise and enhance the effectiveness of CAA 
implementation. EPA notes that its interpretation of the CAA does not 
conflict with the Agency's general Indian policy statements regarding 
tribal jurisdiction. Under the CAA, EPA will not approve a tribe unless 
it has the authority to implement the program either by virtue of 
delegated federal authority over reservation areas, or a demonstration 
of authority under principles of federal Indian law over other areas on 
a case-by-case basis.
    (g) Current and historical application of state laws on parts of 
reservations. State and industry commenters assert that states have 
historically regulated non-member CAA-related activities on fee lands 
within reservation boundaries and the proposal ignores this historical 
treatment and the transition issues it raises. The commenters suggest 
that EPA consider changing the proposed regulations to ``grandfather'' 
existing facilities subject to state authority, so that states continue 
to regulate those facilities until the affected parties all agree 
cooperatively to a transition from state to tribal jurisdiction. One 
commenter states that both the affected state and EPA would need to 
approve any necessary state implementation plan (SIP) revisions.
    It is EPA's position that, unless a state has explicitly 
demonstrated its authority and been expressly approved by EPA to 
implement CAA programs in Indian country, EPA is the appropriate entity 
to be implementing CAA programs prior to tribal primacy. See preamble 
section II.C. and II.D. for a discussion of federal implementation of 
CAA programs in Indian country. EPA will not and cannot ``grandfather'' 
any state authority over Indian country where no explicit demonstration 
and approval of such authority has been made. EPA, as appropriate, will 
address any need for SIP revisions on a case-by-case basis.
2. Authority in Non-Reservation Areas Within a Tribe's Jurisdiction
    CAA section 301(d)(2)(B) 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). In the August 25, 
1994 proposed tribal authority rule, EPA set forth its interpretation 
that this provision authorizes an eligible tribe to develop and 
implement tribal air quality programs in non-reservation areas that are 
determined to be within the tribe's jurisdiction. Today, EPA is 
finalizing this approach.
    (a) Support for EPA's approach. Several tribal commenters support 
EPA's interpretation that ``other areas within the Tribe's 
jurisdiction'' in CAA section 301(d)(2)(B) means that a tribe

[[Page 7259]]

may implement its air quality programs in non-reservation areas under 
its jurisdiction, generally including all non-reservation areas of 
Indian country. One tribal commenter asserts that the ``Indian 
country'' standard is the standard consistently used by courts in 
determining a tribe's jurisdiction.
    (b) Request for Clarification. Several commenters request that EPA 
clarify what is meant by the phrase ``other areas within a Tribe's 
jurisdiction.'' Some commenters state that this phrase must be 
clarified to avoid conflicts between states and tribes in interpreting 
their own jurisdiction and uncertainty for regulated sources. One 
commenter urges EPA to develop published criteria by which the Agency 
will decide whether a tribe may develop and implement a CAA program in 
areas outside the exterior boundaries of a reservation. Some commenters 
also request that EPA clarify what is meant by ``Indian country.''
    EPA notes that the phrase ``other areas within the tribe's 
jurisdiction'' contained in CAA section 301(d)(2)(B) and 40 CFR 49.6 is 
meant to include all non-reservation areas over which a tribe can 
demonstrate authority, generally including all non-reservation areas of 
Indian country. As noted above, it is EPA's interpretation that 
Congress has not delegated authority to otherwise eligible tribes to 
implement CAA programs over non-reservation areas as it has done for 
reservation areas. Rather, a tribe seeking to implement a CAA program 
over non-reservation areas may do so only if it has authority over such 
areas under general principles of federal Indian law.
    EPA notes that the definition of ``Indian country'' contained in 18 
U.S.C. section 1151, while it appears in a criminal code, provides the 
general parameters under federal Indian law of the areas over which a 
tribe may have jurisdiction, including civil judicial and regulatory 
jurisdiction. See DeCoteau v. District County Court, 420 U.S. 425, 427 
n. 2 (1975). EPA acknowledges that there may be controversy over 
whether a particular non-reservation area is within a tribe's 
jurisdiction. However, EPA believes that these questions should be 
addressed on a case-by-case basis in the context of particular tribal 
applications. EPA has established a process under section 49.9 for 
appropriate governmental entities to comment on assertions of authority 
in individual tribal applications. More discussion of the parameters of 
``Indian country'' is provided in the detailed response to comment 
document.
    Some tribal commenters object to EPA's description of the proposed 
requirement in Sec. 49.7(a)(3)(ii) that, where a tribe seeks to have 
its program cover areas outside the boundaries of a reservation, the 
tribe must demonstrate its ``inherent authority'' over those areas. 
These commenters assert that the term ``inherent authority'' must be 
clarified because it may inappropriately limit the potential sources of 
tribal authority to regulate non-reservation air resources. EPA agrees 
that there may be cases where a tribe has authority to regulate a non-
reservation area that derives from a federal statute or some other 
source of federal Indian law that is not based on ``inherent 
authority.'' Section 49.7(a)(3)(ii) only asks a tribe seeking to 
implement a CAA program in a non-reservation area to ``describe the 
basis for the tribe's assertion of authority * * *.'' Under this 
provision, a tribe may include any basis for its assertion of 
authority.
    Some tribal commenters ask EPA to take the position that the phrase 
``other areas within the tribe's jurisdiction'' means that tribes will 
have control over sources in close proximity to a reservation. One 
tribe comments that EPA has a trust responsibility to ensure that 
tribes have authority to control sources of air pollution outside of 
reservation boundaries that affect the health and welfare of tribal 
members living within reservation boundaries. One tribe asks whether 
non-reservation jurisdictional areas include ceded lands where tribes 
retain the right to hunt and fish.
    As noted above, it is EPA's position that, while Congress delegated 
CAA authority to eligible tribes for reservation areas, the CAA 
authorizes a tribe to implement a program in non-reservation areas only 
if it can demonstrate authority over such areas under federal Indian 
law. Thus, a tribe may implement a CAA program over sources in non-
reservation areas, including ceded territories, if the tribe can 
demonstrate its authority over such sources under federal Indian law. 
CAA provisions regarding cross-boundary impacts are the appropriate 
mechanisms for addressing cases where sources outside of tribal 
authority affect tribal health and environments. See, e.g., CAA 
sections 110(a)(2)(D), 126, and 164(e). The issue of cross-boundary 
impacts is discussed further in the response to comments document.
    (c) Comments challenging EPA's interpretation of the CAA. Some 
commenters state that CAA section 110(o) limits the jurisdictional 
reach of a TIP to areas located within the boundaries of a reservation. 
One commenter asserts that since a tribe can only implement its TIP 
within a reservation, to allow a tribe to implement other parts of the 
CAA in non-reservation areas would be unmanageable and unreasonable.
    EPA believes that the reference in CAA section 110(o) to 
``reservation'' is simply a description of the type of area over which 
a TIP may apply. EPA does not believe the provision was intended to 
limit the scope of TIPs to reservations. CAA section 301(d)(1) 
authorizes EPA to treat a tribe in the same manner as a state for any 
provision of the Act (except with regard to appropriations under 
section 105) as long as the requirements in section 301(d)(2) are met. 
EPA has decided to include most of the provisions of section 110 in the 
group of provisions for which treatment of tribes in the same manner as 
a state is appropriate. Section 301(d)(2) permits EPA to approve 
eligible tribes to implement CAA programs, including TIPs, over non-
reservation areas that are within a tribe's jurisdiction.
    An industry commenter asserts that the Senate Report evidences that 
Congress intended to provide tribes the same opportunity to adopt 
programs as provided under the CWA and SDWA. This commenter asserts 
that tribal jurisdiction under those statutes is limited to 
reservations. EPA notes that the SDWA does not limit tribal programs to 
reservations. See 42 U.S.C. 300j-11(b)(1)(B) (authorizing a tribal role 
``within the area of the Tribal Government's jurisdiction.''). EPA also 
notes that there is evidence in the Senate Report that Congress 
intended to authorize EPA to approve eligible tribes for CAA programs 
in non-reservation areas of Indian country that are within a tribe's 
jurisdiction. The report states that section 301(d) is designed ``to 
improve the environmental quality of the air wit[h]in Indian country in 
a manner consistent with EPA Indian Policy and `the overall Federal 
position in support of Tribal self-government and the government-to-
government relations between Federal and Tribal Governments' * * *.'' 
Senate Report at 79 (emphasis added) (citing EPA's 1984 Indian Policy); 
see also, id. at 80.
3. Other Jurisdictional Issues
    Several local governments comment that the final rule should ensure 
that tribes with very small reservations do not have authority under an 
air program to adversely affect economic development in adjacent areas, 
intrude upon the jurisdiction of local governments, or create 
checkerboarded regulation. One commenter asserts that the proposal 
would allow for EPA approval of ``islands'' of Indian

[[Page 7260]]

programs and ``will create the same problems for states and local 
governments which EPA believes will be eliminated by granting tribes 
full regulatory power over all land within reservation borders.'' In 
addition, a state commenter states that extending tribal programs to 
non-reservation areas within the parameters of 18 U.S.C. section 1151 
conflicts with EPA's goal under the CAA of increasing cohesive air 
quality management. Several commenters state that regulation by tribes 
with very small reservations or other very small areas of Indian 
country would be administratively impractical.
    Several local governments state that a minimum size should be 
placed on areas to be considered for tribal jurisdiction. An industry 
commenter suggests that the final rule limit non-reservation tribal 
programs to those areas under tribal jurisdiction that are contiguous 
with reservations. Some local government commenters also state that 
EPA, instead of a tribe, should consider enforcing programs on small 
areas of Indian country.
    EPA acknowledges that there may be cases where the Agency may 
approve a tribe's application to implement a CAA program over a 
relatively small land area. EPA also recognizes that approval of a 
tribal program over a small area that is surrounded by land covered by 
a state CAA program could lead to less uniform regulation. However, EPA 
believes it would be inappropriate to place a blanket limitation on the 
geographic size of an approvable tribal program. EPA notes that 
Congress, in the CAA, authorized the Agency to approve tribal CAA 
programs when a tribe meets the criteria contained in CAA section 
301(d)(2)(B) without regard to size of area. In addition, it is long-
standing federal Indian policy to support tribal self-government and a 
government-to-government relationship with federally recognized Indian 
tribes. See Senate Report at 79; April 29, 1994 Presidential 
Memorandum, ``Government-to-Government Relations with Native American 
Tribal Governments,'' 59 FR 22,951 (May 4, 1994). Furthermore, EPA 
policy favors tribal over federal implementation of environmental 
programs in areas under tribal jurisdiction. See 59 FR at 43962; 
November 8, 1984 ``EPA Policy for the Administration of Environmental 
Programs on Indian Reservations.'' EPA also recognizes that under the 
realities of federal Indian law, there are some small pockets of Indian 
country under tribal and federal jurisdiction that lie among lands 
under state jurisdiction. While EPA recognizes that its approval of 
tribal programs over small areas may result in less uniform regulation 
in some cases, the Agency believes that the approach to tribal 
jurisdiction outlined in this Tribal Authority Rule best reconciles 
federal Indian and environmental policies. See Washington Department of 
Ecology, 752 F.2d at 1469. The Agency's overall approach minimizes the 
potential for checkerboarded regulation within Indian reservations (see 
preamble at II.A.1.(a)), while promoting tribal sovereignty and self-
determination.
    One tribal commenter states that pollution from air sources outside 
a tribe's jurisdiction must be addressed. This commenter states that 
section 126 of the CAA, while designed to address this issue, is 
awkward and probably difficult to administer. In addition, local 
government commenters state that the off-site effect of approving 
tribal programs for Indian lands should be considered. One local 
commenter states that ``mutual protection for air quality goals, health 
values and customs should be assured for all within any physical air 
basin to the extent workable.''
    EPA notes that several provisions of the CAA are designed to 
address cross-boundary air impacts. EPA is finalizing its proposed 
approach that the CAA protections against interstate pollutant 
transport apply with equal force to states and tribes. Thus, EPA is 
taking the position 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. As EPA noted in the preamble to its proposed rule, 
section 110(a)(2)(D), among other things, requires states to include 
provisions in their SIPs that prohibit any emissions activity within 
the state from significantly contributing to nonattainment, interfering 
with maintenance of the national ambient air quality standards (NAAQS), 
or interfering with measures under the Prevention of Significant 
Deterioration (PSD) or visibility protection programs in another state 
or tribal area. In addition, section 126 authorizes any state or tribe 
to petition EPA to enforce these prohibitions against a state 
containing an allegedly offending source or group of sources. The issue 
of cross-boundary impacts is discussed further in the response to 
comment document.
    Several tribal commenters note that, in the preamble to the 
proposed rule, EPA misstated the dollar limitation contained in the 
Indian Civil Rights Act on criminal fines that may be imposed by 
tribes. EPA agrees that the dollar limitation in the Indian Civil 
Rights Act on criminal fines is $5,000 as opposed to $500.

B. Sovereign Immunity and Citizen Suit

1. Section 304
    In its August 25, 1994 Notice of Proposed Rulemaking (NPR) EPA 
proposed, under the CAA's section 301(d) rulemaking authority, that the 
citizen suit provisions contained in section 304 of the Act should 
apply to tribes in the same manner in which they apply to states. See 
59 FR at 43978. In today's final action, EPA is declining to announce a 
position, in the context of the rulemaking required under section 
301(d) of the Act, regarding whether tribes are subject to the citizen 
suit provisions contained in section 304, and therefore is not 
finalizing the position stated in the NPR. In order to facilitate 
tribal adoption and implementation of air quality programs in a manner 
similar to state-implemented programs, section 301(d) requires EPA to 
specify through rulemaking those provisions of the Act which the Agency 
believes are appropriate to apply to tribes. EPA's rulemaking approach 
has been to deem all CAA provisions appropriate for tribes, except for 
those provisions specifically listed in the rule regarding which EPA, 
for various reasons, believes it may be inappropriate for the Agency, 
solely in the context of its 301(d) authority, to make such a 
determination. Thus, the direct consequence for today's final action of 
EPA's decision not to adopt the position presented in the NPR regarding 
the provisions of section 304 is that section 304 has been added to the 
list of those CAA provisions which, for section 301(d) purposes, EPA 
has concluded it is not appropriate to determine that tribes should be 
treated as states. That list is contained in section 49.4 of today's 
rule. EPA is also clarifying the relationship of this final action 
regarding section 304 to the right that tribes enjoy, as sovereign 
powers, to be immune from suit. See Santa Clara Pueblo v. Martinez, 436 
U.S. 49, 58 (1978).
    The Agency received a number of comments on the section 304 citizen 
suit issue. One group of industry commenters appears to be in favor of 
tribes being subject to citizen suits, and is particularly concerned 
that non-tribal members be provided with similar enforcement 
opportunities for TIPs as are required for SIPs. The majority of 
comments received on this issue came from tribal governments, mainly 
disputing EPA's claim that section 301(d), as a legal matter, provided 
EPA with the authority to apply the section 304 citizen suit provisions 
to tribes since doing so would appear to have the effect of 
administratively waiving tribal sovereign immunity. These commenters

[[Page 7261]]

argue that only the tribes themselves or Congress may waive tribal 
sovereign immunity and, further, that Congressional intent to waive 
tribal sovereign immunity may not be implied but must be express and 
unequivocal. They do not believe that the CAA, including section 
301(d), contains such an express waiver. Several of the commenters also 
state that because states are subject to section 304 only ``to the 
extent permitted by the Eleventh Amendment to the Constitution,'' 
applying it to tribes would likely make the requirement more burdensome 
than it would be for states. Several tribal commenters also express the 
view that citizen suit recourse is unnecessary since EPA retains 
enforcement authority under various other CAA provisions, for example, 
sections 110(m), 179(a)(4), and 502(i). Finally, concern is expressed 
that adopting a policy of subjecting tribes to citizen suits could 
hinder development of tribal air programs because it could add 
significant resource constraints, financial and otherwise, particularly 
with respect to potential litigation.
    Section 304 of the CAA reflects the general principle underlying 
all environmental citizen suit provisions, namely that actors who 
accept responsibility for regulating health-based standards and who 
voluntarily commit themselves to undertake control programs in 
furtherance of such goals, ought to be accountable to the citizens 
those programs are designed to benefit. However, EPA agrees, as several 
commenters pointed out, that section 304 only applies to states to the 
extent permitted by the Eleventh Amendment to the Constitution. The 
Supreme Court has interpreted the provisions of the Eleventh Amendment 
as generally serving to protect a state from liability to suit where 
the state does not consent to be sued. EPA believes that, just as 
states implementing air quality programs are not subject to citizen 
suits except to the extent permitted by the Eleventh Amendment of the 
Constitution and the provisions of the Clean Air Act, by analogy, in 
the context of air program implementation in Indian country, the issue 
of citizen suit liability would be determined based on established 
principles of tribal sovereign immunity and the provisions of the Clean 
Air Act. This is meant to emphasize that no EPA action in this final 
rule either enhances or limits the immunity from suit traditionally 
enjoyed by Indian tribes as sovereign powers.
    Because the Eleventh Amendment does not apply to tribes (by its 
terms, the Eleventh Amendment only addresses suits brought ``against 
one of the United States''), and because the provisions of section 304 
(and the applicable definitions in section 302) do not expressly refer 
to tribes, EPA has been concerned that the action it proposed to take 
may have subjected tribes to citizen suit liability in situations in 
which citizens could not sue states. Because of this uncertainty, EPA 
believes it is not appropriate to attempt to resolve this significant 
issue in the context of the limited scope of the rulemaking required 
under section 301(d).
    EPA also notes that courts have long recognized that citizen 
plaintiffs may bring actions for prospective injunctive relief against 
state officials under the CAA section 304 citizen suit provisions, as 
well as under other environmental statutes with similar citizen suit 
provisions. See Council of Commuter Organizations v. Metro. Transp., 
683 F.2d 663, 672 (2nd Cir. 1982). See also Seminole Tribe of Florida 
v. Florida, 116 S. Ct. 1114, 1133 n.17 (1996) (acknowledging that lower 
courts have entertained suits against state officials pursuant to 
citizen suit provisions in environmental statutes substantially 
identical to CAA section 304(a)(1)). While this raises the question of 
whether such actions could be brought against ``tribal officials,'' EPA 
believes this issue is also outside the scope of this rulemaking.
2. Judicial Review Provisions of Title V
    In its proposed rulemaking, EPA proposed to treat tribes in the 
exact same manner as states for purposes of the provisions of CAA 
sections 502(b)(6) and 502(b)(7) addressing judicial review under the 
Title V Operating Permits Program. 59 FR at 43972. For the reasons 
discussed below, in today's final action EPA is withdrawing its 
proposal to treat tribes in the exact same manner as states for 
purposes of these judicial review provisions. As described below, 
however, tribes that opt to establish a Title V program will still need 
to meet all requirements of sections 502(b)(6) and 502(b)(7) except 
those provisions that specify that review of final action under the 
Title V permitting program be ``judicial'' and ``in State court.''
    As noted above in the discussion regarding the applicability of CAA 
section 304 to tribes, tribal commenters express concern over waivers 
of tribal sovereign immunity to judicial review. Several tribal 
commenters also note that requiring tribes to waive sovereign immunity 
in order to run a Title V program will be a strong disincentive for 
tribes to assume these programs. Two industry commenters state that 
nonmembers that are regulated by tribes must have access to tribal 
courts for judicial review. Several commenters express concern that 
some tribal governments may lack a distinct judicial 
system.7
---------------------------------------------------------------------------

    \7\ Two industry commenters stated that tribal courts ``lack 
many procedural, substantive law and constitutional protection[s] 
for non-members.'' EPA is aware that tribal governments are not 
subject to the requirements of the Bill of Rights and the Fourteenth 
Amendment of the U.S. Constitution, and that review of tribal court 
decisions in federal court may be limited. However, EPA notes that 
the Indian Civil Rights Act requires tribes to provide several 
protections similar to those contained in the Bill of Rights and the 
Fourteenth Amendment, including due process of law, equal protection 
of the laws, and the right not to have property taken without just 
compensation. 25 U.S.C. Sec. 1302; Santa Clara Pueblo v. Martinez, 
436 U.S. 49, 57 (1978). These protections extend to all persons 
subject to tribal jurisdiction, whether Indians or non-Indians. See 
Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 19 (1987).
---------------------------------------------------------------------------

    EPA recognizes the importance of providing citizens the ability to 
hold accountable those responsible for regulating air resources. 
Nonetheless, EPA also acknowledges that applying the judicial review 
provisions of Title V to tribes through this rule would raise unique 
issues regarding federal Indian policy and law. EPA is mindful of the 
vital importance of sovereign immunity to tribes. In addition, EPA is 
aware that in some instances tribes do not have distinct judicial 
systems. Finally, EPA has long recognized the importance of encouraging 
tribal implementation of environmental programs and avoiding the 
establishment of unnecessary barriers to the development of such 
programs. E.g., EPA's 1984 Indian Policy; see also Senate Report at 
8419 (noting that section 301(d) is generally intended to be consistent 
with EPA's 1984 Indian Policy). EPA seeks to strike a balance among 
these various considerations. See Washington Department of Ecology v. 
EPA, 752 F.2d 1465, 1469 (9th Cir. 1985).
    In order to ensure a meaningful opportunity for public 
participation in the permitting process, it is EPA's position that some 
form of citizen recourse be available for applicants and other persons 
affected by permits issued under tribal Title V programs. One option 
for review of final actions taken under a tribal Title V program is for 
tribes to consent to suit through voluntary waiver of their sovereign 
immunity in tribal court. EPA supports the continued development and 
strengthening of tribal courts and encourages those tribes that will 
implement Title V permitting programs to consent to challenges by 
permit applicants and other affected persons in tribal court. For the 
reasons discussed

[[Page 7262]]

above, however, requiring tribes to provide for review in the exact 
same manner as states pursuant to section 502(b)(6) is not appropriate.
    In some cases, well-qualified tribes seeking approval of Title V 
programs may not have a distinct judiciary, but rather may use non-
judicial mechanisms for citizen recourse. See Santa Clara Pueblo v. 
Martinez, 436 U.S. 49, 65-66 (1978) (``Non-judicial tribal institutions 
have * * * been recognized as competent law-applying bodies.''). In 
addition, a requirement that tribes waive their sovereign immunity to 
judicial review, in some cases, may discourage tribal assumption of 
Title V programs. Thus, EPA is willing to consider alternative options, 
developed and proposed by a tribe in the context of a tribal CAA Title 
V program submittal, that would not require tribes to waive their 
sovereign immunity to judicial review but, at the same time, would 
provide for an avenue for appeal of tribal government action or 
inaction to an independent review body and for injunctive-type relief 
to which the Tribe would agree to be bound.
    EPA has consistently stressed the importance of judicial review 
under state Title V programs. E.g., Virginia v. Browner, 80 F.3d 869, 
875 (4th Cir. 1996) (``EPA interprets the statute and regulation to 
require, at a minimum, that states provide judicial review of 
permitting decisions to any person who would have standing under 
Article III of the United States Constitution. Notice of Proposed 
Disapproval, 59 Fed. Reg. 31183, 31184 (June 17, 1994)''), cert denied 
117 S.Ct. 764 (1997). However, the statutory scheme regarding tribal 
clean air programs is quite different from that of states. Section 
301(d)(2) of the Act explicitly provides EPA with the discretion to 
``specify * * * those provisions for which it is appropriate to treat 
Indian tribes as States.'' 42 U.S.C. 7601(d)(1). In addition, section 
301(d)(4) of the Act states that where EPA ``determines that treatment 
of tribes as identical to states is inappropriate or administratively 
infeasible, [EPA] may provide, by regulation, other means by which 
[EPA] will directly administer such provisions so as to achieve the 
appropriate purpose.'' 42 U.S.C. 7610(d)(4). As EPA noted in the 
preamble to the proposed rule, tribes have a ``unique legal status and 
relationship to the Federal government that is significantly different 
from that of States. [C]ongress did not intend to alter this when it 
authorized treatment of Tribes `as States' under the CAA.'' 59 FR at 
43962, n.11.
    In addition, there is ample precedent for treating tribes and 
states differently under federal Indian law. E.g., U.S. Const. amend. 
XIV; Indian Civil Rights Act, 25 U.S.C. 1301 et. seq.; and Santa Clara 
Pueblo v. Martinez, 436 U.S. 49 (1978). In Santa Clara, the Supreme 
Court addressed the availability of federal court review of tribal 
action under the Indian Civil Rights Act (ICRA), which requires tribal 
governments to provide several protections similar to those contained 
in the Bill of Rights and the Fourteenth Amendment. In finding that no 
additional federal court remedies beyond habeas corpus were provided by 
Congress for review of tribal compliance with the ICRA, the Court noted 
that Congress had struck a balance between the dual statutory 
objectives of enhancing individual rights without undue interference 
with tribal sovereignty. Santa Clara, 436 U.S. at 65-66. EPA has 
concluded that in enacting section 301(d) of the Act, Congress provided 
EPA with the discretion to balance the goals of ensuring meaningful 
opportunities for public participation under the CAA and avoiding undue 
interference with tribal sovereignty when determining those provisions 
for which it is appropriate to treat tribes in the same manner as 
states. See Washington Department of Ecology v. EPA, 752 F.2d 1465, 
1469 (9th Cir. 1985) (``it is appropriate for us to defer to EPA's 
expertise and experience in reconciling [Indian policy and 
environmental policy], gained through administration of similar 
environmental statutes on Indian lands.'').
    In addition to the requirement that tribal Title V programs provide 
some avenue for appeal of tribal government action or inaction and for 
injunctive-type relief, EPA may use several oversight mechanisms to 
ensure that tribal Title V programs provide adequate opportunities for 
citizen recourse. E.g., CAA sections 502(i)(requiring EPA assumption of 
state or tribal Title V programs that EPA finds are not being 
adequately implemented or enforced), 505(b) (requiring EPA objection to 
state or tribal Title V permits that EPA finds do not meet applicable 
requirements).
    Thus, under today's final rulemaking, EPA is not requiring tribes 
to provide for judicial review in the same manner as states under CAA 
section 502(b)(6). EPA will develop guidance in the future on 
acceptable alternatives to judicial review. In reviewing the Title V 
program submission of any tribe proposing an alternative to judicial 
review, EPA will apply such guidance to determine, pursuant to its 
section 301(d) authority, whether the tribe has provided for adequate 
citizen recourse consistent with the requirement in CAA section 
502(b)(6) that there be review of final permit actions and the guidance 
and principles discussed above.
    EPA emphasizes that tribes seeking to implement the Title V program 
will still need to meet all the requirements of CAA section 502(b)(6), 
except the requirements that review of final permit actions be 
``judicial'' and ``in state court.'' Specifically, tribes seeking to 
implement the Title V program, will need to provide:

    [a]dequate, streamlined, and reasonable procedures for 
expeditiously determining when applications are complete, for 
processing such applications, for public notice, including offering 
an opportunity for public comment and a hearing, and for expeditious 
review of permit actions, including applications, renewals, or 
revisions, and including an opportunity for * * * review * * * of 
the final permit action by the applicant, any person who 
participated in the public comment process, and any other person who 
could obtain judicial review of that action under applicable law.

CAA section 502(b)(6). In addition, all provisions of CAA section 
502(b)(7) will apply to tribal programs except the requirements that 
the review be ``judicial'' and in ``State court.''

C. Air Program Implementation in Indian Country

    The August 25, 1994, proposed tribal authority rule set forth EPA's 
view that, based on the general purpose and scope of the CAA, the 
requirements of which apply nationally, and on the specific language of 
sections 301(a) and 301(d)(4), Congress intended to give to the Agency 
broad authority to protect tribal air resources. The proposal went on 
to state that EPA intended to use its authority under the CAA ``to 
protect air quality throughout Indian country'' by directly 
implementing the Act's requirements in instances where tribes choose 
not to develop a program, fail to adopt an adequate program or fail to 
adequately implement an air program.'' Id. at 43960. Comments on this 
issue were received from tribes, state and local government 
representatives, and industry.
    The comments generally support the discussion of EPA's authority 
under the CAA to protect air quality throughout Indian country, but, 
overall, seek specific clarification with respect to the time frame and 
scope of federal implementation. In addition, several commenters, 
although focusing on different aspects of the issue, express a general 
concern that there be no diminution or interruption in tribal air 
resource protection while tribal programs are being developed. EPA

[[Page 7263]]

acknowledges the seriousness of the concerns identified by the 
commenters and agrees that a clearer presentation of the Agency's 
intentions is appropriate.
    Most tribal commenters support establishing federal air programs 
under the circumstances outlined in the proposal, but many are 
concerned with the past lack of enforcement of environmental programs 
on tribal lands. Almost all commenters express concern with the lack of 
a definite timetable for federal initiation of air programs to protect 
tribal air resources and prevent gaps in protection. Tribal commenters 
generally support the provision in the proposal to develop an 
implementation strategy and a plan for reservation air program 
implementation; however, they request that EPA develop time frames and 
establish dates for developing the implementation strategy. A state 
commenter argues that the proposal did not sufficiently allow for state 
comment or input in the development of the implementation strategy, 
asserting that both state and tribal involvement will be necessary to 
avoid regulatory conflicts. A number of government and industry 
commenters suggest that EPA elaborate on the process for developing 
tribal air programs in light of the interrelationship between existing 
air programs and new tribal programs. Another commenter requests that 
EPA resolve the process for transition from existing programs to tribal 
programs as part of this rulemaking. One state comments that the 
transfer must be accomplished without leaving sources of air pollution 
and the states in air quality ``limbo'' pending development of either 
tribal or EPA programs to regulate sources under the jurisdiction of a 
tribe. Another state argues that if a tribe has no approved program and 
EPA has no reason for enforcement, section 116 preserves the state's 
inherent authority to regulate non-member sources on a reservation. One 
tribe asks that the process for transferring administration of an EPA-
issued permit for a source on tribal lands to the tribe be made more 
explicit. Many tribal commenters request technical and administrative 
support in the form of guidance documents, training, sufficient 
financial resources, and EPA staff assigned to work with tribes on 
tribal CAA programs who are knowledgeable about tribal law and 
concerns. These commenters also express concern that limited resources 
might prevent EPA from providing this critical support.
    As indicated above, EPA recognizes the seriousness of the concerns 
expressed in these comments and has undertaken an initiative to develop 
a comprehensive strategy for implementing the Clean Air Act in Indian 
country. The strategy will articulate specific steps the Agency will 
take to ensure that air quality problems in Indian country are 
addressed, either by EPA or by the tribes themselves. This strategy [a 
draft of which is available in the docket referenced above] addresses 
two major concerns: (1) Gaps in Federal regulatory programs that need 
to be filled in order for EPA to implement the CAA effectively in 
Indian country where tribes opt not to implement their own CAA 
programs; (2) identifying and providing resources, tools, and technical 
support that tribes will need to develop their own CAA programs.
    EPA believes that the strategy being developed addresses many of 
the concerns expressed by the commenters. Once tribal programs are 
approved by EPA, tribes will have authority to regulate all sources 
within the exterior boundaries of the reservation under such programs. 
One of the most prevalent concerns is the status of sources (current 
and future) in Indian country not yet subject to the limits of an 
implementation plan. Commenters want assurance that EPA would step in 
to fill this gap and ensure adequate control. The Agency has 
consistently recognized the primary role for tribes in protecting air 
resources in Indian country and has expressed its continued commitment 
to work with tribes to protect these resources in the absence of 
approved tribal programs. The Agency has issued permits and undertaken 
the development of Federal Implementation Plans (FIP) to control 
sources locating in Indian country. For example, the Agency is working 
with both the Shoshone-Bannock and the Navajo Tribes to address 
pollution control of major sources on their Reservations. The Agency 
has also issued PSD preconstruction permits to new sources proposing to 
locate in Indian country. The Agency has started to explore options for 
promulgating new measures to ensure that EPA has a full range of 
programs and Federal regulatory mechanisms to implement the CAA in 
Indian country.
    Since the 1994 proposal, EPA has tried specifically to identify the 
primary sources of air pollution emissions in Indian country, and 
evaluate the CAA statutory authorities for EPA to regulate those 
sources pending submission and approval of a TIP. EPA has determined 
that the CAA provides the Agency with very broad statutory authority to 
regulate sources of pollution in Indian country, but there are 
instances in which EPA has not yet promulgated regulations to implement 
its statutory authority.
    One example is the absence of complete air permitting programs in 
Indian country. EPA has promulgated regulations establishing permit 
requirements for major sources in attainment areas, and issued 
Prevention of Significant Deterioration permits to new or modifying 
major sources. See 40 CFR 52.21. However, EPA has not promulgated 
regulations for a permitting program in Indian country for either minor 
or major sources of air pollution emissions in nonattainment areas. 
Therefore, EPA is currently drafting nationally applicable regulations 
for such minor and major source permitting programs. The permitting 
programs are expected to apply to construction or modification of all 
minor sources and to major sources in nonattainment areas. In addition, 
the planned permitting program would allow existing sources to 
voluntarily participate in the permitting program and accept 
enforceable permit limits. EPA regional offices would be the permitting 
authority for this program. With respect to Title V operating permits, 
EPA has proposed to include Indian country within the scope of 40 CFR 
Part 71. Therefore, the Part 71 regulations would apply to all major 
stationary sources of air pollution located in Indian country.
    Many CAA requirements apply in Indian country without any further 
action by the EPA. For example, the standards and requirements of the 
Standards of Performance for New Sources, 42 U.S.C. 7411 and 40 CFR 
Part 60, apply to all sources in Indian country. Similarly, the 
National Emissions Standards for Hazardous Air Pollutants, 42 U.S.C. 
7412 and 40 CFR Part 63 apply in Indian country.
    EPA has, however, identified categories of sources of air 
pollution, such as open burning and fugitive dust, that are not covered 
by those regulations. For these categorical sources, EPA believes that 
it has the authority to promulgate regulations on a national basis that 
would apply until a TIP has been submitted and approved. EPA has also 
identified a number of general air quality rules, such as the 
prohibition against emitting greater than 20 percent opacity, which 
could be promulgated nationally for application in Indian country 
pending TIP approval.
    EPA is optimistic that any additional regulations can be 
promulgated and implemented relatively quickly, since, along with the 
protections they would provide, such regulations can also serve as 
models which tribes can use in drafting TIPs.
    EPA wishes to emphasize that the national rules it intends to 
promulgate will be analogous to, but not the same

[[Page 7264]]

in all respects, as the types of rules generally approved into State 
Implementation Plans. For example, EPA's federal rules are likely to 
represent an average program, potentially more stringent than some SIP 
rules and less stringent than others. However, by promulgating such 
rules, EPA would not be establishing, and should not be interpreted by 
States as setting, new minimal criteria or standards that would govern 
its approval of SIP rules. EPA encourages and will work closely with 
all tribes wishing to replace the future federal regulations with TIPS. 
EPA intends that its federal regulations will apply only in those 
situations in which a tribe does not have an approved TIP.
    EPA will actively encourage tribes to provide assistance in the 
development of the proposed regulations referenced above to ensure that 
tribal considerations are addressed and development of the regulations 
will be subject to notice and comment rulemaking procedures.
    The case-by-case nature of program implementation in Indian country 
makes it difficult to address concerns about plans and time lines. The 
Agency's strategy for implementing the CAA in Indian country proposes a 
multi-pronged approach, one prong of which is federal implementation 
described above. The other prongs derive from a ``grass-roots'' 
approach in which staff in the EPA regional offices work with 
individual tribes to assess the air quality problems and develop, in 
consultation with the tribes, either tribal or federal strategies for 
addressing the problems.
    1. Building Tribal Capacity. An essential component of the Agency's 
CAA implementation strategy is to assess the extent to which tribes 
have developed an environmental protection infrastructure and determine 
how best to build tribal capacity to implement their own CAA programs. 
The assessment will be done in cooperation with the tribes and may 
include any or all of the following:
    a. Needs Assessment. An initial step for effectively implementing 
the CAA in Indian country is to identify the air quality concerns and 
determine how well the tribes are able to address them. EPA will work 
with the tribes to develop emission inventories and air monitoring 
studies (where appropriate) to determine the nature of the problem and 
identify a range of potential control strategies. From this 
information, EPA and the tribes will jointly develop, as needed, tribal 
or federal implementation plans (TIPs/FIPs) to address the problem. 
These TIPs/FIPs may include, for example, controls on minor sources, 
categorical prohibitory rules, area source controls (e.g., vapor 
recovery, open burning ordinances).
    b. Communication. A critical part of the Agency's strategy to build 
tribal capacity is outreach and communication. Outreach has already 
begun as EPA regional staff worked with tribes in their service area to 
draft the Strategy for Implementing the CAA in Indian Country. Outreach 
will continue with the promulgation of this rule; staff will meet with 
Tribes in regional meetings held throughout the country to talk about 
implementing the rule and answer questions. In follow-up to these 
initial meetings, EPA will adopt a multi-media approach to 
communicating with the Tribes and other stakeholders (conferences, 
conference calls, newsletters, Internet, etc.) to ensure timely access 
to information and guidance developed in support of this rule.
    c. Training. The third component for building tribal capacity is 
training, providing in various forms and through various media the 
skills and knowledge needed to implement an air quality protection 
program in Indian country. EPA already supports a training program at 
Northern Arizona University (NAU) that offers basic introductory 
workshops on air quality program management and administration and a 
more in-depth course in air pollution control technology. This program, 
offered at no cost to tribes, helps tribal environmental professionals 
develop competence in air quality management. The program also prepares 
these professionals for enrollment in more advanced courses in EPA's 
Air Pollution Training Institute (APTI). In addition to these formal 
training opportunities, EPA offers internships to college students 
interested in pursuing an environmental career and supports an outreach 
program in high schools in Indian country to encourage these students' 
interest in environmental protection careers. EPA plans to encourage 
other options for promoting tribal professional development, including 
peer-to-peer support, temporary assignments with other government 
(state, tribal, or federal) environmental programs, and cooperative 
agreements to provide technical assistance.
    As these individual tribal assessments are completed, the 
information will be compiled in order to determine to what extent 
commonalities exist among the air quality problems that might be 
amenable to common solutions (e.g., Title V, minor sources, etc.). The 
Agency will work in concert to develop other common solutions, as 
needed. At the same time, EPA is developing guidance documents, 
templates, and model analyses to assist tribes in developing Tribal Air 
Programs.
    Finally, EPA recognizes that air quality problems in Indian country 
do not exist in isolation and that often they are part of a broader 
spectrum of environmental problems, the solutions for which may be best 
developed through an integrated approach to environmental protection. 
EPA's Office of Air & Radiation will continue to work with other media 
offices to develop overall environmental assessments (through the 
Tribal/EPA Environmental Agreement process) for Indian country and 
develop integrated approaches where appropriate. One approach, for 
example, might be to focus on ways to simultaneously protect air 
quality, water quality, and other public health and environmental 
values through control strategies that reduce atmospheric deposition of 
air pollutants in Indian country.

D. CAA Sections 110(c)(1) and 502(d)(3) Authority

    In the proposed tribal rule, EPA stated that it was not proposing 
to treat tribes in the same manner as states under its section 301(d) 
authority with respect to the specific provision in section 110(c)(1) 
that directs EPA to promulgate, ``within 2 years,'' a Federal 
Implementation Plan (FIP) after EPA finds that a state has failed to 
submit a required plan, or has submitted an incomplete plan, or within 
2 years after EPA has disapproved all or a portion of a plan. 59 FR at 
43965. The proposed exception applied only for that provision of 
section 110(c)(1) that sets a specified date by which EPA must issue a 
FIP. The proposal went on to state that ``EPA would continue to be 
subject to the basic requirement to issue a FIP for affected [tribal] 
areas within some reasonable time.'' In today's action, EPA is 
finalizing the general approach discussed in the proposal, but has 
altered the method for implementing that approach. Therefore, although 
the result that was intended by the proposal remains unchanged, after 
further review, EPA is modifying the regulatory procedure by which it 
achieves that result, and is also clarifying the statutory basis it is 
relying upon for doing so.
    The proposed rule set forth EPA's view that one of the principal 
goals of the rulemaking required under section 301(d) is to allow 
tribes the flexibility to develop and administer their own CAA programs 
to as full an extent as possible, while at the same time ensuring that 
the health and safety of the public is

[[Page 7265]]

protected. However, since, among other things, tribal authority for 
establishing CAA programs was expressly addressed for the first time in 
the 1990 CAA Amendments, in comparison to states, tribes in general are 
in the early stages of developing air planning and implementation 
expertise. Accordingly, EPA determined that it would be infeasible and 
inappropriate to subject tribes to the mandatory submittal deadlines 
imposed by the Act on states, and to the related federal oversight 
mechanisms in the Act which are triggered when EPA makes a finding that 
states have failed to meet required deadlines or acts to disapprove a 
plan submittal. As the proposal noted, section 301(d)(2) provides for 
EPA to promulgate regulations specifying those provisions for which it 
is appropriate to treat tribes as states, but does not compel tribes to 
develop and seek approval of air programs. In other words, there is no 
date certain submittal requirement imposed by the Act for tribes as 
there is for states. Thus, since the FIP obligation under section 
110(c)(1) is keyed to plan submission failures by states that are 
contemplated with respect to ``a required submission,'' and to plan 
disapprovals that have not been cured within a specified time frame, 
the discussion in the proposal regarding section 110(c)(1) was 
consistent with the approach summarized above. However, given that the 
statutory basis underlying section 110(c)(1) is either expressly 
inapplicable to tribal plans or is linked to submittal deadlines that 
the Agency is today determining are inappropriate or infeasible to 
apply to tribal plan submissions, that section as a whole--not merely 
the provision setting a specific date by which EPA must issue a FIP--
should have been included on the list of proposed CAA provisions for 
which EPA would not treat tribes in the same manner as states.
    Consequently, in this final action, EPA has added section 110(c)(1) 
in its entirety to the list of CAA provisions in the rule portion of 
this action (Sec. 49.4) for which EPA is not treating tribes in the 
same manner as states. However, by including the specific FIP 
obligation under section 110(c)(1) on the list in section 49.4 of this 
final rule, EPA is not relieved of its general obligation under the CAA 
to ensure the protection of air quality throughout the nation, 
including throughout Indian country. In the absence of an express 
statutory requirement, EPA may act to protect air quality pursuant to 
its ``gap-filling'' authority under the Act as a whole. See, e.g., CAA 
section 301(a). Moreover, section 301(d)(4) provides EPA with 
discretionary authority, in cases where it has determined that 
treatment of tribes as identical to states is ``inappropriate or 
administratively infeasible,'' to provide for direct administration 
through other regulatory means. EPA is exercising this discretionary 
authority and has created a new section (Sec. 49.11) to this final rule 
which provides that the Agency will promulgate a FIP to protect tribal 
air quality within a reasonable time if tribal efforts do not result in 
adoption and approval of tribal plans or programs. Thus, EPA will 
continue to be subject to the basic requirement to issue a FIP for 
affected tribal areas within some reasonable time.
    The proposal notice made clear that even while the Agency was 
proposing not to treat tribes as states for purposes of the specified 
date in section 110(c)(1), it was always EPA's intention to retain the 
requirement to issue a FIP, as necessary and appropriate, for affected 
tribal areas. The bases and rationale for that determination are 
thoroughly set forth in 59 FR 43956 (especially at pages 43964 through 
43966) and remain the same. The only change between the proposal and 
this final notice regards the methodology used to achieve the intended 
result, i.e., using the Agency's section 301(d)(4) discretionary 
authority in conjunction with its general ``gap-filling'' CAA 
authority.
    Similarly, EPA is taking final action on its proposal not to treat 
tribes in a manner similar to states for the provision of section 
502(d)(3) which requires issuance by EPA, within two years of the 
statutory submittal deadline, of a federal operating permit program if 
EPA has not approved a state program. The Agency has proposed, pursuant 
to its section 301(d)(4) authority, to include in its final rule 
addressing federal implementation of operating permit programs in 
Indian country a commitment to implement such programs by a date 
certain in instances where a tribe chooses not to implement a program 
or does not receive EPA approval of a submitted program. 62 FR 13748. 
In light of this commitment, EPA does not believe it is necessary to 
retain the text in Sec. 49.4(j) acknowledging its federal authority.

III. Significant Changes to the Proposed Regulations

A. Part 35--State and Local Assistance

    Section 35.205 Maximum Federal Share and Section 35.220 Eligible 
Indian Tribe. In its proposed rule, EPA sought comment on the 
appropriate level of tribal cost share for a section 105 grant, from a 
minimum of five percent to a maximum of 40 percent. The proposal also 
asked for comments on the establishment of a phase-in period for tribes 
to meet whatever match is ultimately required for section 105 grants. 
Tribes universally comment that the level of matching funds should be 
kept to a minimum, i.e., five percent, if not waived altogether, 
especially during the early stages of developing an air quality 
program. One tribe asserts that Title V cannot be viewed as the 
solution to funding tribal air programs; other financial resources must 
also be made available. In addition, EPA notes that only a small number 
of tribes have applied for section 105 grants despite being eligible to 
receive such grants as air pollution control agencies under section 
302(b)(5) and section 301(d)(5). EPA attributes much of the tribes' 
reluctance to apply for these grants to the match requirement of forty 
percent that has been applicable to all section 105 grants.
    EPA agrees with the commenters that tribal resources generally are 
not adequate to warrant the level of match required of states and that 
equivalent resources are unlikely to become available in the 
foreseeable future. A high match requirement would likely discourage 
interested tribes from developing and implementing air programs. It is 
not appropriate to compare the resources available for the development 
of state programs to that of tribes because tribes often lack the 
resources or tax infrastructure available to states for meeting cost 
share requirements. Furthermore, a low match requirement, with a 
hardship waiver, is consistent with federal Indian policy which 
encourages the removal of obstacles to self-government and impediments 
to tribes implementing their own programs.
    Accordingly, EPA has determined that it is inappropriate to treat 
tribes identically to states for the purpose of the match requirement 
of section 105 grants. Therefore, pursuant to its authority under 
section 301(d)(4), EPA will provide a maximum federal contribution of 
95 percent for financial assistance under section 105 to those tribes 
eligible for treatment in the same manner as states for two years from 
the initial grant award. After the initial two-year period of 5 percent 
match, EPA will increase each tribe's minimum cost share to 10 percent, 
as long as EPA determines that the tribe meets certain objective and 
readily-available economic indicators that would provide an objective 
assessment of the tribe's ability to increase its share. Within 
eighteen months of the promulgation of

[[Page 7266]]

this rule, the Agency will, with public input, develop guidance setting 
forth the precise procedures for evaluating tribal economic 
circumstances and will identify those economic indicators (for example, 
tribal per capita income, tribal unemployment rates, etc.) that will be 
used to support its determinations.
    The tribal match will not be waived unless the tribe can 
demonstrate in writing to the satisfaction of the Regional 
Administrator that fiscal circumstances within the tribe are 
constrained to such an extent that fulfilling the match would impose 
undue hardship. This waiver provision is designed to be very rarely 
used. The Agency does not foresee any circumstances that would justify 
eliminating this waiver provision for those eligible tribes that are 
able to demonstrate that meeting the match requirement would result in 
undue financial hardship. This waiver provision is not available to 
tribes that establish eligibility for a section 105 grant pursuant to 
Sec. 35.220(b).
    The EPA will examine the experience of this program and other 
relevant information to determine appropriate long-term cost share 
rates within five years of the date of publication of this rule.
    Finally, the definition of Indian Tribe in Sec. 35.105 has been 
changed to make it consistent with the definition found in the CAA at 
section 302(r) and the definition in Sec. 49.2.

B. Title V Operating Permits Program: Operational Flexibility

    The Agency received comments that objected to the proposed rule's 
position that tribal part 70 programs would not be required to include 
the same operational flexibility provisions required of state part 70 
programs. The proposal preamble suggested that the three operational 
flexibility provisions at 40 CFR 70.4(b)(12) would be optional for 
tribes as would 40 CFR 70.6(a)(8), 40 CFR 70.6(a)(10), and 40 CFR 
70.6(a)(9). A brief description of each of these provisions follows.
    The three operational flexibility provisions in Sec. 70.4(b)(12) 
require permitting authorities to: (1) allow certain changes within a 
facility without requiring a permit revision; (2) allow for trading 
increases and decreases in emissions in the facility where the 
applicable implementation plan provides for such trading; and (3) allow 
trading of emissions increases and decreases in the facility for the 
purposes of complying with a federally-enforceable emissions cap that 
is established in the permit. These provisions implement section 
502(b)(10) of the Act. EPA has proposed to modify these provisions, by 
deleting the first provision and making some technical clarifications 
to the third provision. See 60 FR 45529 (August 31, 1995).
    Section 70.6(a)(8) requires as a standard condition that permits 
contain a provision stating that no permit revision shall be required 
under any approved economic incentives, marketable permits, emissions 
trading and other similar programs or processes for changes that are 
provided for in the permit.
    Section 70.6(a)(10) requires a standard condition (upon request of 
the applicant) that allows for emissions trading at a source if the 
applicable requirement provides for trading without a case-by-case 
approval of each emission trade.
    Section 70.6(a)(9) requires as a standard condition (upon request 
of the applicant and approval by the permitting authority) terms that 
describe reasonably anticipated operating scenarios.
    Initially, EPA believed that the technical expertise required to 
implement operational flexibility provisions would make it too 
difficult for tribal programs to obtain EPA approval. Accordingly, the 
Agency proposed that, for purposes of these provisions, tribes would 
not be treated in the same manner as states. However, EPA now believes 
that a better approach would be to treat tribes in the same manner as 
states for purposes of these provisions, while providing sufficient 
technical assistance, if needed, to enable tribes to issue permits that 
meet these operational flexibility requirements. Such an approach will 
assure that sources will be provided maximum flexibility regardless of 
whether the permitting agency is a tribal or state agency. In addition, 
it will afford sources that are subject to tribal part 70 programs the 
benefit of streamlined provisions that have been proposed for part 70.

C. Section 49.4  Clean Air Act Provisions for Which Tribes Will Not Be 
Treated in the Same Manner as States

    Based on the comments received regarding tribal sovereign immunity 
and citizen suits (see discussion at II.B), EPA is withdrawing its 
proposal to treat tribes as states for purposes of section 304 and the 
judicial review provisions of sections 502(b)(6) and 502(b)(7) of the 
Act and has revised Sec. 49.4 accordingly.

D. Section 49.8  Provisions for Tribal Criminal Enforcement Authority

    EPA is modifying the language under this provision to clarify the 
federal role in criminal enforcement of tribal programs. Where tribes 
are precluded by law from asserting criminal enforcement authority, the 
federal government will exercise criminal enforcement responsibility. 
To facilitate this process, the Criminal Investigation Division office 
located at the appropriate EPA regional office and the tribe will 
establish a procedure by which any duly authorized agency of the tribe 
(tribal environmental program, tribal police force, tribal rangers, 
tribal fish and wildlife agents, tribal natural resources office, etc.) 
shall provide timely and appropriate investigative leads to any agency 
of the federal government (EPA, U.S. Attorney, BIA, FBI, etc.) which 
has authority to enforce the criminal provisions of federal 
environmental statutes. This procedure will be incorporated into the 
Memorandum of Agreement between the tribe and EPA. Nothing in the 
agreement shall be construed to limit the exercise of criminal 
enforcement authority by the tribe under any circumstances where the 
tribe may possess such authority.

E. Section 49.9  EPA Review of Tribal Clean Air Act Applications

New Process for Determining Eligibility of Tribes for CAA Programs
    Many state, local government and industry commenters suggest that 
the proposed 15-day review period provided by EPA to identify potential 
disputes regarding a tribal applicant's assertion of reservation 
boundaries and jurisdiction over non-reservation areas should be 
extended. Suggested changes to the proposed 15-day review period range 
from 30 to 120 days. Commenters cite the potential complexity of 
jurisdictional issues and the amount of time required to respond 
adequately, especially for non-reservation areas. These commenters also 
express concern that notice and an opportunity for comment regarding 
reservation boundaries and tribal jurisdiction over non-reservation 
areas is being limited to ``appropriate governmental entities.'' 
Industry commenters suggest that notice and opportunity for comment 
also be provided to the regulated community, as well as other 
interested parties (e.g., landowners whose property could potentially 
fall under tribal jurisdiction). In addition, one industry commenter 
states that such determinations should be viewed as rulemakings under 
the Administrative Procedures Act (APA) and, thus, subject to public 
notice and comment.
    Consistent with the TAS process which EPA has historically 
implemented under the Clean Water

[[Page 7267]]

and Safe Drinking Water Acts, the preamble to EPA's proposed rule on 
tribal CAA programs stated that the CAA TAS process ``will provide 
States with an opportunity to notify EPA of boundary disputes and 
enable EPA to obtain relevant information as needed[.]'' 59 FR at 
43963. The proposal also indicated that a principal concern in 
developing the eligibility process was to streamline the process to 
eliminate needless delay. Id. In proposing to limit the notice and 
comment provision to ``appropriate governmental entities'' and the 
period within which to respond to 15 days with the possibility of a 
one-time extension of another 15 days, EPA was generally affirming 
prior ``treatment as state'' (TAS) practice. EPA notes that neither the 
Water statutes nor the CAA mandates a specific process regarding TAS 
determinations, including jurisdiction. Under CAA section 301(d)(2)(B), 
EPA must evaluate whether a tribe has demonstrated that the air 
resource activities it seeks to regulate are either within a 
reservation area, or within a non-reservation area over which the tribe 
has jurisdiction. In doing so, the Agency has provided for notice and a 
limited opportunity for input respecting the existence of competing 
claims over tribes' reservation boundary assertions and assertions of 
jurisdiction over non-reservation areas to ``appropriate governmental 
entities,'' which the Agency has defined as states, tribes and other 
federal entities located contiguous to the tribe applying for 
eligibility. See generally, 56 FR 64876, 64884 (Dec. 12, 1991). This 
practice recognizes, in part, that to the extent genuine reservation 
boundary or non-reservation jurisdictional disputes exist, the 
assertion of such are an inherently government-to-government process. 
Nonetheless, EPA seeks to make its notification sufficiently prominent 
to inform local governmental entities, industry and the general public, 
and will consider relevant factual information from these sources as 
well, provided (for the reason given above) they are submitted through 
the identified ``appropriate governmental entities.'' In making 
determinations regarding eligibility in the context of the Water Acts, 
EPA has explained that the part of the process that involves notifying 
``appropriate governmental entities'' and inviting them to review the 
tribal applicant's jurisdictional assertion is designed to be a fact-
finding procedure to assist EPA in making these statutorily-prescribed 
determinations regarding the tribes' jurisdiction; it is not in any way 
to be understood as creating or approving a state or non-tribal 
oversight role for a statutory decision entrusted to EPA. For these 
reasons, EPA also disagrees with the industry commenter about the 
status of these decisions under the APA. Given that there is no 
particular process specified under EPA governing statutes for TAS 
eligibility determinations, they are in the nature of informal 
adjudications for APA purposes. As such, EPA does not believe there is 
a legal requirement for any additional process than what the Agency 
already provides. By contrast, EPA decisions regarding tribal authority 
to implement CAA programs generally are rulemaking actions involving 
public notice and comment in the Federal Register. The approach in the 
proposed CAA rule was intended to follow the above process, including 
its imposed limitations (such as a 15-day review period), to ensure 
that overall eligibility decisions should not be delayed unduly.
    In today's rulemaking, EPA recognizes that the potential 
complexities of reservation boundary and non-reservation jurisdictional 
issues may require additional review time and is finalizing an initial 
notice and comment period of 30 days with the option for a one-time 
extension of 30 days for disputes over non-reservation areas, should 
the issues identified by the commenters warrant such extension. EPA 
agrees that in some cases issues regarding tribal jurisdiction over 
non-reservation areas may be complex and may require more extensive 
analysis. However, EPA believes that many jurisdictional claims will be 
non-controversial and will not elicit adverse comments. In these 
instances, a comment period in excess of 30 days is not warranted. If, 
however, the tribal claims involve non-reservation areas and require 
more extensive analysis, an extension to the comment period may be 
warranted. 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.
    State and industry commenters question the appropriateness of the 
language in Sec. 49.9 of the regulatory portion of the proposal which 
states that eligibility decisions regarding a tribe's jurisdiction will 
be made by EPA Regional Administrators, as it appears to imply that 
jurisdictional disputes will always be resolvable at the Agency level. 
EPA continues to believe that the Regional Administrators are the 
appropriate decision makers for tribal eligibility purposes, including 
jurisdictional assertions. However, the Agency does agree that the 
language, as written, may have been confusing. Consequently, EPA has 
modified the first sentence of Sec. 49.9(e). As explained previously, 
EPA has been making eligibility decisions pursuant to the TAS process 
under other environmental statutes for some time now. The TAS process 
set forth in this rule, including the process for making tribal 
jurisdictional determinations, is consistent with the approach followed 
by EPA in related regulatory contexts. EPA notes again that it believes 
that many submissions regarding jurisdiction by tribes requesting 
eligibility determinations will be non-controversial.
    This final rule allows tribes to submit simultaneously to EPA a 
request for an eligibility determination and a request for approval of 
a CAA program. In such circumstances, EPA will likely announce its 
decision with respect to eligibility and program approval in the same 
Federal Register notice, for purposes of administrative convenience. 
However, EPA does not intend this simultaneous decision process of 
itself to be interpreted as altering the Agency's view (described 
above) regarding APA applicability with respect to notice and review 
opportunities provided to appropriate governmental entities with 
respect to tribal reservation boundary and non-reservation 
jurisdictional assertions.

F. Section 49.11  Actions Under Section 301(d)(4) Authority

    This section addresses the regulatory provisions being added to 
this rule pursuant to CAA section 301(d)(4). See discussion at Part 
II.D above.

IV. 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.

[[Page 7268]]

    This rule was determined to be a significant regulatory action. A 
draft of this rule was 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 rule; and
    (2) Materials that identify substantive changes made between the 
submittal of a draft 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. 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 rule 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 rule does not place any mandates on Indian tribes. Rather, it 
authorizes Indian tribes at their own initiative 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 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 rule.
    The 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 regulation is expected to 
be negligible, since tribal regulation of these activities is limited 
to areas within reservations and non-reservation areas within tribal 
jurisdiction and, in any event, EPA has regulated or may regulate these 
activities in the absence of tribal CAA programs.
    The regulation will not have a significant impact on a substantial 
number of small organizations for the same reasons that the regulation 
will not have a significant impact on a substantial number of small 
businesses.
    Accordingly, I certify that this regulation will not have a 
significant economic impact on a number of small entities.

C. Executive Order (EO) 12875 and the Unfunded Mandates Reform Act

    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 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 rule will not place mandates on Indian 
tribes. Rather, as discussed in section IV.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 rule also explains how tribes seeking to develop and 
submit CAA programs to EPA for approval may qualify for federal 
financial assistance.
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, signed into law on March 22, 1995, establishes requirements for 
federal agencies to assess the effects of their regulatory actions on 
state, local, and tribal governments and the private sector. Under 
sections 202 and 205 of the UMRA, EPA generally must prepare a written 
statement of economic and regulatory alternatives analyses for proposed 
or final rules with federal mandates, as defined by the UMRA, that may 
result in expenditures to state, local, or tribal governments, in the 
aggregate, or to the private sector, of $100 million or more in any one 
year. The section 202 and 205 requirements do not apply to today's 
action because it is not a ``Federal Mandate'' and because it does not 
impose annual costs of $100 million or more.
    Today's rule contains no federal mandates for state, local or 
tribal governments or the private sector for two reasons. First, 
today's action does not impose any enforceable duties on any state, 
local or tribal governments or the private sector. Second, the Act also 
generally excludes from the definition of a ``federal mandate'' duties 
that arise from participation in a voluntary federal program. As 
discussed above and in Section IV.B., the rule that is being 
promulgated today merely authorizes eligible tribes to seek, at their 
own election, approval from EPA to implement CAA programs for the 
provisions specified by the Administrator. Moreover, EPA has regulated 
or may regulate these activities in the absence of Tribal CAA programs.
    Even if today's rule did contain a federal mandate, this rule will 
not result in annual expenditures of $100 million or more for state, 
local, and tribal governments, in the aggregate, or the private sector. 
This rule only addresses CAA authorizations that pertain to tribal 
governments, not to state or local governments, and calls for tribal 
governments to submit the minimum information necessary to effectively 
evaluate applications for eligibility and CAA program approval. The 
rule also explains how tribes seeking to develop and submit CAA 
programs for approval may qualify for federal financial assistance and, 
thus, minimize any economic burden. Finally, any economic impact on the 
public resulting from implementation of this regulation is expected to 
be negligible, since tribal regulation of CAA activities is limited to 
reservation areas and non-reservation areas over which a tribe can 
demonstrate jurisdiction.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments,

[[Page 7269]]

including tribal governments, section 203 of the UMRA requires EPA to 
develop a plan for informing and advising any small government. EPA 
consulted with tribal governments periodically throughout the 
development of the proposed rule, and met directly with tribal 
representatives at three major outreach meetings. Since issuance of the 
proposed rule, EPA also received extensive comments from, and has been 
in communication with, tribal governments regarding all aspects of this 
rule. The Agency is also committed to providing ongoing assistance to 
tribal governments seeking to develop and submit CAA programs for 
approval.

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 record keeping 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 Office of Management and Budget has also approved the 
information collection requirements pertaining to an Indian tribe's 
application for eligibility to be treated in the same manner as a state 
or ``treatment as state'' as provided by this rule under the Paperwork 
Reduction Act, 44 U.S.C. 3501, et seq. and has assigned OMB control 
number 2060-0306. This rule provides that each tribe voluntarily 
choosing to apply for eligibility is to meet eligibility by 
demonstrating it: (1) Is a federally recognized tribe; (2) has a 
governing body carrying out substantial governmental duties and powers; 
and (3) is reasonably expected to be capable of carrying out the 
program for which it is seeking approval in a manner consistent with 
the CAA and applicable regulations. If a tribe is asserting 
jurisdiction over non-reservation areas, it must demonstrate that the 
legal and factual basis for its jurisdiction is consistent with 
applicable principles of federal Indian law.
    This collection of information for treatment in the same manner as 
states to carry out the Clean Air Act has an estimated reporting burden 
of 20 annual responses, averaging 40 hours per response and an 
estimated annual record keeping 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. 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. EPA is 
amending the table in 40 CFR Part 9 of currently approved ICR control 
numbers issued by OMB for various regulations to list the information 
requirements contained in this final rule.

E. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects

40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 35

    Environmental protection, Air pollution control, Coastal zone, 
Grant programs--environmental protection, Grant programs--Indians, 
Hazardous waste, Indians, Intergovernmental relations, Pesticides and 
pests, Reporting and recordkeeping requirements, Superfund, Waste 
treatment and disposal, Water pollution control, Water supply.

40 CFR Part 49

    Environmental protection, Air pollution control, Administrative 
practice and procedure, Indians, Intergovernmental relations, Reporting 
and recordkeeping requirements.

40 CFR Part 50

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

40 CFR Part 81

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

    Dated: February 3, 1998.
Carol M. Browner,
Administrator.

    For the reasons set out in the Preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as set forth below:

PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 
9601-9657, 11023, 11048.

    2. In Sec. 9.1 the table is amended by adding a heading and entries 
in numerical order to read as follows:


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                                  OMB   
                       40 CFR citation                          control 
                                                                  No.   
------------------------------------------------------------------------
                  *        *        *        *        *                 
                                                                        
Indian Tribes:                                                          
    Air Quality Planning and Management                                 
        49.6................................................   2060-0306
        49.7................................................  2060-0306 
                  *        *        *        *        *                 
------------------------------------------------------------------------

PART 35--STATE AND LOCAL ASSISTANCE

    3. The authority cite for part 35, subpart a, continues to read as 
follows:


[[Page 7270]]


    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)).

    4. 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 the 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 federally recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians.
* * * * *
    5. Section 35.205 is amended by adding new paragraphs (c), (d), and 
(e) to read as follows:


Sec. 35.205  Maximum Federal share.

* * * * *
    (c) For Indian Tribes establishing eligibility pursuant to 
Sec. 35.220(a), the Regional Administrator may provide financial 
assistance in an amount up to 95 percent of the approved costs of 
planning, developing, establishing, or improving an air pollution 
control program, and up to 95 percent of the approved costs of 
maintaining that program. After two years from the date of each Tribe's 
initial grant award, the Regional Administrator will reduce the maximum 
federal share to 90 percent, as long as the Regional Administrator 
determines that the Tribe meets certain economic indicators that would 
provide an objective assessment of the Tribe's ability to increase its 
share. The EPA will examine the experience of this program and other 
relevant information to determine appropriate long-term cost share 
rates within five years of February 12, 1998. For Indian Tribes 
establishing eligibility pursuant to Sec. 35.220(a), the Regional 
Administrator may increase the maximum federal share if the Tribe can 
demonstrate in writing to the satisfaction of the Regional 
Administrator that fiscal circumstances within the Tribe are 
constrained to such an extent that fulfilling the match would impose 
undue hardship. This waiver provision is designed to be very rarely 
used.
    (d) The Regional Administrator may provide financial assistance in 
an amount up to 95 percent of the approved costs of planning, 
developing, establishing, or approving an air pollution control program 
and up to 95 percent of the approved costs of maintaining that program 
to an intertribal agency of two or more Tribes that have established 
eligibility pursuant to Sec. 35.220(a), which has substantial 
responsibility for carrying out an applicable implementation plan under 
section 110 of the Clean Air Act, when such intertribal agency is 
authorized by the governing bodies of those Tribes to apply for and 
receive financial assistance. After two years from the date of each 
intertribal agency's initial grant award, the Regional Administrator 
will reduce the maximum federal share to 90 percent, as long as the 
Regional Administrator determines that the tribal members of the 
intertribal agency meet certain economic indicators that would provide 
an objective assessment of the Tribes' ability to increase the non-
federal share. For intertribal agencies made up of Indian Tribes 
establishing eligibility pursuant to Sec. 35.220(a), which have 
substantial responsibility for carrying out an applicable 
implementation plan under section 110 of the Clean Air Act, the 
Regional Administrator may increase the maximum federal share if the 
intertribal agency can demonstrate in writing to the satisfaction of 
the Regional Administrator that fiscal circumstances within the member 
Tribes are constrained to such an extent that fulfilling the match 
would impose undue hardship. This waiver provision is designed to be 
very rarely used.
    (e) The Regional Administrator may provide financial assistance in 
an amount up to 60 percent of the approved costs of planning, 
developing, establishing, or improving an air pollution control 
program, and up to sixty percent of the approved costs of maintaining 
that program to Tribes that have not made a demonstration that they are 
eligible for treatment in the same manner as a state under 40 CFR 49.6, 
but are eligible for financial assistance under Sec. 35.220(b).
    6. Section 35.210 is amended by adding 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(a) and intertribal agencies made up of such 
Tribes.
    7. 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, tribal, local, and international interests.
    (b) The Regional Administrator will not award section 105 funds to 
a local, interstate, intermunicipal, or intertribal 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.
    8. Section 35.220 is added just before the center heading ``Water 
Pollution

[[Page 7271]]

Control (section 106)'' to read as follows:


Sec. 35.220  Eligible Indian Tribes.

    The Regional Administrator may make Clean Air Act section 105 
grants to Indian Tribes establishing eligibility under paragraph (a) of 
this section, 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 tribal cost share of five percent for two years 
from the date of each Tribe's initial grant award. After two years, the 
Regional Administrator will increase the tribal cost share to ten 
percent, as long as the Regional Administrator determines that the 
Tribe meets certain economic indicators that would provide an objective 
assessment of the Tribe's ability to increase its cost share. 
Notwithstanding the above, the Regional Administrator may reduce the 
required cost share of grants to Tribes that establish eligibility 
under paragraph (a) of this section if the Tribe can demonstrate in 
writing to the satisfaction of the Regional Administrator that fiscal 
circumstances within the Tribe are constrained to such an extent that 
fulfilling the match would impose undue hardship. This waiver provision 
is designed to be very rarely used.
    (a) An Indian Tribe is eligible to receive financial assistance if 
it has demonstrated eligibility to be treated in the same manner as a 
state under 40 CFR 49.6.
    (b) An Indian 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)(5).
    (c) The Administrator shall process a tribal application for 
financial assistance under this section in a timely manner.
    9. 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 for which it is not appropriate to 
treat tribes in the same manner as states.
49.5  Tribal requests for additional Clean Air Act provisions for 
which it is not appropriate to treat tribes in the same manner as 
states.
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.
49.11  Actions under section 301(d)(4) authority.
    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 or may be treated in 
the same manner as states. In general, these regulations authorize 
eligible tribes to have the same rights and responsibilities 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.

    (a) Clean Air Act or Act means those statutory provisions in the 
United States Code at 42 U.S.C. 7401, et seq.
    (b) 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.
    (c) 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.
    (d) Indian Tribe Consortium or Tribal Consortium means a group of 
two or more Indian tribes.
    (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.


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 for which it is not appropriate to 
treat tribes in the same manner as states.

    Tribes will not be treated as states with respect to the following 
provisions of the Clean Air Act and any implementing regulations 
thereunder:
    (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, and 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 provisions of section 110(c)(1) of the Act.
    (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 of 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)'' provision in section 502(d)(3) of the 
Act.
    (k) Section 502(g) of the Act, which authorizes a limited interim 
approval of an operating permit program that

[[Page 7272]]

substantially meets the requirements of Title V, but is not fully 
approvable.
    (l) The provisions of section 503(c) of the Act 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 not to exceed three years after the effective 
date.
    (m) The provisions of section 507(a) of the Act 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) of the Act that direct the 
establishment of a Compliance Advisory Panel.
    (o) The provisions of section 304 of the Act that, read together 
with section 302(e) of the Act, authorize any person who provides the 
minimum required advance notice to bring certain civil actions in the 
federal district courts against states in their capacity as states.
    (p) The provisions of section 502(b)(6) of the Act that require 
that review of a final permit action under the Title V permitting 
program be ``judicial'' and ``in State court,'' and the provisions of 
section 502(b)(7) of the Act that require that review of a failure on 
the part of the permitting authority to act on permit applications or 
renewals by the time periods specified in section 503 of the Act be 
``judicial'' and ``in State court.''
    (q) The provision of section 105(a)(1) that limits the maximum 
federal share for grants to pollution control agencies to three-fifths 
of the cost of implementing programs for the prevention and control of 
air pollution or implementation of national primary and secondary 
ambient air quality standards.


Sec. 49.5  Tribal requests for additional Clean Air Act provisions for 
which it is not appropriate to treat tribes in the same manner as 
states.

    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 general in the same manner as states. Such request 
should clearly identify the provisions at issue and should be 
accompanied with a statement explaining 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 approval. 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 a reservation the statement should include:
    (i) A map or legal description of the area over which the 
application asserts authority; and
    (ii) A statement by the applicant's legal counsel (or equivalent 
official) that 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 that support the tribe's assertion of 
authority.
    (4) A narrative statement describing the capability of the 
applicant to administer effectively 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 by the 
Regional Administrator, 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) that exercise the 
executive, legislative, and judicial functions of the tribal 
government;
    (iv) A description of the existing, or proposed, agency of the 
Indian tribe that 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

[[Page 7273]]

expected to be capable of carrying out the functions to be exercised 
consistent with Sec. 49.6(d). 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. A 
program approval request may be comprised of only partial elements of a 
Clean Air Act program, provided that any such elements are reasonably 
severable, that is, not integrally related to program elements that are 
not included in the plan submittal, and are consistent 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 tribe will provide 
potential investigative leads to EPA and/or other appropriate federal 
agencies, 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 non-reservation areas, EPA's 
notification of other governmental entities shall include the substance 
and bases of the tribe's jurisdictional assertions.
    (c) The governmental entities shall have 30 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 non-reservation areas, appropriate governmental 
entities may request a single 30-day extension to the general 30-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 from the tribe and may consult with the 
Department of the Interior.
    (e) The EPA Regional Administrator shall decide the jurisdictional 
scope of the tribe's program. 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 non-
reservation areas shall apply to all future Clean Air Act applications 
from that tribe or tribal consortium and no further notice to 
governmental entities, as described 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 to the EPA Regional Administrator.
    (g) If the EPA Regional Administrator determines that a tribe meets 
the requirements of Sec. 49.6 for purposes of a Clean Air Act 
provision, the Indian tribe is eligible to be treated in the same 
manner as a state with respect to that provision, to the extent that 
the provision is 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) Consistent with the exceptions listed in Sec. 49.4, a tribal 
application containing a Clean Air Act program submittal will be 
reviewed by EPA in accordance with applicable statutory and regulatory 
criteria in a manner similar to the way EPA would review a similar 
state submittal.
    (i) The EPA Regional Administrator shall return an incomplete or 
disapproved application 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.


Sec. 49.11  Actions under section 301(d)(4) authority.

    Notwithstanding any determination made on the basis of authorities 
granted the Administrator under any other provision of this section, 
the Administrator, pursuant to the discretionary authority explicitly 
granted to the Administrator under sections 301(a) and 301(d)(4):
    (a) Shall promulgate without unreasonable delay such federal 
implementation plan provisions as are necessary or appropriate to 
protect air quality, consistent with the provisions of sections 304(a) 
and 301(d)(4), if a tribe does not submit a tribal implementation plan 
meeting the completeness criteria of 40 CFR part 51, Appendix V, or 
does not receive EPA approval of a submitted tribal implementation 
plan.
    (b) May provide up to 95 percent of the cost of implementing 
programs for the prevention and control of air pollution or 
implementation of national primary and secondary ambient air quality 
standards. After two years from the date of each tribe's initial grant 
award, the maximum federal share will be reduced to 90 percent, as long 
as the Regional Administrator determines that the tribe meets certain 
economic indicators that would provide an

[[Page 7274]]

objective assessment of the tribe's ability to increase its share. The 
Regional Administrator may increase the maximum federal share to 100 
percent if the tribe can demonstrate in writing to the satisfaction of 
the Regional Administrator that fiscal circumstances within the tribe 
are constrained to such an extent that fulfilling the match would 
impose undue hardship.

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

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

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

    11. 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.
    12. 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 area under a tribal CAA program or any portion thereof which 
are more stringent than the national standards.
* * * * *

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

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

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

    14. Section 81.1 is amended by revising paragraph (a) and adding 
new paragraphs (c), (d) and (e) to read 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

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

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


Sec. 81.300  [Amended]

    16. Section 81.300(a) is amended by revising the third sentence 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 proposed state or tribal redesignation must be 
submitted to EPA for concurrence.''

[FR Doc. 98-3451 Filed 2-11-98; 8:45 am]
BILLING CODE 6560-50-P