[Federal Register Volume 65, Number 6 (Monday, January 10, 2000)]
[Rules and Regulations]
[Pages 1322-1323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-486]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[OAR-FRL-6521-2]


Indian Tribes: Air Quality Planning and Management

AGENCY: Environmental Protection Agency (EPA).

ACTION: Clarification.

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SUMMARY: On February 12, 1998, EPA issued its final rule on 
implementing section 301(d) of the CAA (63 FR 7254, Indian Tribes: Air 
Quality Planning and Management), hereafter known as the Tribal 
Authority Rule (TAR). The TAR specified provisions of the CAA for which 
EPA may treat Indian tribes in the same manner as states. Among other 
things, the preamble to the TAR described a process by which tribal 
assertions of jurisdiction would be submitted to ``appropriate 
governmental entities'' for review and comment. The purpose of this 
document is to clarify EPA's position on receiving comments on tribal 
jurisdictional assertions under section 301(d) of the CAA.

FOR FURTHER INFORMATION CONTACT: David R. LaRoche, Office of Air and 
Radiation (OAR 6101-A), U.S. Environmental Protection Agency, 401 M 
Street, S.W., Washington DC 20460 at (202) 564-7416.

SUPPLEMENTARY INFORMATION:

I. Background

    Consistent with the treatment in the same manner as a state (TAS) 
process that EPA has historically implemented under the Clean Water 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 utilizing the eligibility 
process was to streamline EPA's review of such requests to eliminate 
needless delay. Id. In finalizing the TAR to provide for notice to and 
comment from ``appropriate governmental entities,'' EPA was generally 
affirming prior TAS practice. EPA also noted in its proposal that the 
CAA does not mandate a specific process regarding TAS determinations, 
including determinations regarding jurisdiction.1
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    \1\ The four criteria established by the TAR to determine a 
tribe's eligibility to be treated in the same manner as a state are: 
(1) The applicant is an Indian tribe recognized by the Secretary of 
the Interior; (2) the Indian tribe has a governing body carrying out 
substantial governmental duties and functions; (3) 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 (4) 
the Indian tribe is reasonably expected to be capable of carrying 
out the function to be exercised in a manner consistent with the 
terms and purposes of the CAA and all applicable regulations.
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    The Agency considers such TAS determinations to be informal 
adjudications. Therefore, primarily to inform EPA regarding the 
existence of competing claims over tribes' reservation boundary 
assertions and assertions of jurisdiction over non-reservation areas, 
the TAR provided for

[[Page 1323]]

notice to and a limited opportunity for input by ``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 63 FR at 7267 (citing 56 FR 64876, 64884 
(Dec. 12, 1991)). This practice recognized, in part, that to the extent 
genuine reservation boundary or non-reservation jurisdictional disputes 
exist, the assertion of such disputes is an inherently government-to-
government process. EPA further 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.'' 63 FR at 7267.
    In the preamble to its final rule, EPA made clear, however, that 
others who might have information germane to the tribe's jurisdictional 
assertions would have the opportunity to provide that information to 
EPA through ``appropriate governmental entities.'' The preamble stated: 
``Nonetheless, EPA seeks to make its notification [of the tribe's 
application for eligibility] sufficiently prominent to inform local 
governmental entities, industry and the general public * * *.'' 63 FR 
at 7267. EPA also stated that it ``will consider relevant factual 
information from these sources as well, provided * * * they are 
submitted through the identified `appropriate governmental entities'.'' 
Id.

II. Clarification

    Concerns have been raised about whether this process potentially 
inhibits EPA's receipt of pertinent information on a tribe's 
jurisdictional claims. One expressed concern is that the ``appropriate 
governmental entity'' may not always pass the comments along to EPA. In 
order to avoid potential confusion and ensure that EPA receives all 
potentially relevant information regarding a tribe's jurisdiction, EPA 
wishes to clarify its position on receiving information under the TAR 
from persons other than ``appropriate governmental entities.''
    EPA continues to recognize that the tribal eligibility 
determination process is an inherently government-to-government 
process. Normally, most of the relevant information on jurisdictional 
boundaries resides with those sovereign entities most concerned with 
the specific jurisdictional claims. However, private citizens may at 
times possess information relevant to jurisdictional determinations. In 
such cases, EPA believes that nothing in the nature of the government-
to-government relationship between the U.S. and the tribe requires 
involvement of a third sovereign--the state--in order to facilitate 
EPA's receipt of information. It has been EPA's general practice in 
making TAS eligibility determinations to accept all relevant 
information regarding such issues, whether or not it comes from 
``appropriate governmental entities.'' In other words, when a member of 
the public has submitted relevant information on a tribe's 
jurisdictional claims directly to EPA, it has been EPA's practice to 
consider those comments in making its final determination.
    Consequently, for purposes of the TAR, on those occasions when a 
member of the public may have relevant information on a tribe's 
jurisdictional claim, that information may be submitted directly to the 
appropriate EPA Regional office. In this context, ``relevant 
information'' is limited to information related to the tribe's 
jurisdictional assertions, e.g., the geographic boundaries of the 
reservation, the status of areas outside the reservation boundaries, 
agreements that may limit the tribe's jurisdiction, etc. However, given 
the government-to-government nature of the process, as well as the need 
to inform all affected parties about relevant comments that are 
submitted, where a member of the public elects to submit comments 
directly to EPA, EPA suggests that the commenter also send a copy to 
its ``appropriate governmental entity.'' EPA will treat such 
information in the same way it treats all information received during 
the process and respond accordingly. All other aspects of the TAS 
tribal eligibility process, as described in the preamble and regulatory 
section of the TAR, remain unchanged.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, does not 
apply because this action is not a rule, for purposes of 5 U.S.C. 
804(3).

    Dated: January 3, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-486 Filed 1-7-00; 8:45 am]
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