[Federal Register Volume 67, Number 106 (Monday, June 3, 2002)]
[Rules and Regulations]
[Pages 38328-38330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13806]



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Part II





Environmental Protection Agency





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40 CFR Part 71



Revision to Regulations Implementing the Federal Permits Program in 
Areas for Which the Indian Country Status Is in Question; Final Rule

  Federal Register / Vol. 67, No. 106 / Monday, June 3, 2002 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 71

[FRL-7221-6]


Revision to Regulations Implementing the Federal Permits Program 
in Areas for Which the Indian Country Status is in Question

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; implementation of court order.

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SUMMARY: This action promulgates an amendment to EPA's Federal 
operating permits program rule in order to comply with a court order. 
In February 1999, EPA promulgated final regulations setting forth EPA's 
program for issuing Federal operating permits to stationary sources of 
air pollution in Indian country, pursuant to title V of the Clean Air 
Act (Act). On October 30, 2001, the U.S. Court of Appeals for the 
District of Columbia Circuit vacated and remanded a portion of the 
regulation that stated EPA will treat areas for which EPA believes the 
Indian country status is in question as Indian country. To conform with 
the Court's order, EPA is taking the ministerial step of removing the 
regulatory language that treats ``in question'' areas as Indian country 
as well as related regulatory language regarding the possible reduction 
of fees for sources located in ``in question'' areas.

DATES: This rule is effective on June 3, 2002.

ADDRESSES: The EPA does not seek comment on this final rule. Supporting 
information used in developing the promulgated rule is contained in 
Docket A-93-51. This docket is available for public inspection and 
copying between 8:30 a.m. and 3:30 p.m., Monday through Friday, at 
EPA's Air Docket, Room M-1500, Waterside Mall, 401 M Street SW., 
Washington, DC 20460. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Candace Carraway (telephone 919-541-
3189, e-mail [email protected]), Operating Permits Group, 
Information Transfer and Program Integration Division, Office of Air 
Quality Planning and Standards, U.S. EPA, Mail Code C304-04, Research 
Triangle Park, North Carolina 27711.

SUPPLEMENTARY INFORMATION: The court order in State of Michigan v. EPA, 
268 F.3d 1075 (D.C. Cir. 2001) vacating the treatment of ``in 
question'' areas as Indian country has been added to Docket A-93-51.
    After signature, the final rule will be posted on the policy and 
guidance page for newly proposed or final rules of EPA's Technology 
Transfer Network (TTN) at http://www.epa.gov/ttn/oarpg/t5.html. For 
more information, call the TTN HELP line at (919) 541-5384.

Table of Contents

I. Background
II. Administrative Requirements
    A. Executive Order 12866: ``Significant Regulatory Action 
Determination.''
    B. Regulatory Flexibility Act Compliance as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    C. Paperwork Reduction Act.
    D. Submission to Congress and the Comptroller General.
    E. Unfunded Mandates Reform Act.
    F. Executive Order 13132: Federalism.
    G. Executive Order 13175: Consultation with Tribes.
    H. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks.
    I. Executive Order 13211: Energy Effects.
    J. National Technology Transfer and Advancement Act.

I. Background

    On February 19, 1999, pursuant to title V of the Act, EPA 
promulgated final regulations amending 40 CFR part 71 to establish how 
EPA would issue Federal operating permits to sources in Indian country. 
See 64 FR 8247. The final rule amended certain definitions in [sect] 
71.2, applicability provisions in [sect] 71.3, program implementation 
provisions in [sect] 71.4, affected State review requirements in [sect] 
71.8, permit fee requirements in [sect] 71.9, and administrative 
process provisions in [sect] 71.11. See 64 FR 8262-8263. In addition, 
to help avoid gaps in title V coverage for sources in Indian country, 
EPA included regulatory language at 40 CFR 71.4(b) that stated as 
follows: ``For purposes of administering the part 71 program, EPA will 
treat areas for which EPA believes the Indian country status is in 
question as Indian country.'' See 64 FR 8249-8250, 8262. Subsequently, 
the State of Michigan Department of Environmental Quality, the American 
Forest and Paper Association, the New Mexico Oil & Gas Association, the 
New Mexico Environment Department, the Public Service Company of New 
Mexico and Salt River Project Agricultural Improvement and Power 
District challenged EPA's final rule in the U.S. Court of Appeals for 
the District of Columbia Circuit. The State and industry petitioners 
challenged EPA's decision to treat areas that EPA believes are ``in 
question'' as Indian country, and the process by which EPA intended to 
determine Federal jurisdiction in such cases.
    In its October 30, 2001 decision, the Court agreed with the Agency 
that EPA has the authority to administer operating permit programs in 
Indian country. However, the Court found that EPA had exceeded its 
authority in deciding to treat ``in question areas'' as Indian country 
as provided by the Federal operating permits rule. Therefore, the Court 
ordered that portion of the EPA rule authorizing EPA to treat lands for 
which EPA has deemed Indian country status to be in question as Indian 
country to be vacated and remanded to the EPA for further proceedings. 
The EPA notes that the Agency had not issued any permits to sources 
based on the ``in question'' area approach under the rule.
    To conform with the Court's order, EPA is taking the ministerial 
step of removing the language in [sect] 71.4(b) that provided that for 
purposes of administering part 71, EPA will treat areas for which EPA 
believes the Indian country status is in question as Indian country. In 
addition, to make the rest of part 71 conform with the Court's order 
regarding the language in [sect] 71.4(b), EPA is removing [sect] 
71.9(p) which provided that the permitting authority may reduce fees 
for sources that are located in ``in question'' areas that have paid 
fees to a State or local permitting authority asserting the Act's 
authority under a part 70 program. In light of the removal of the ``in 
question'' language of [sect] 71.4(b), [sect] 71.9(p) has no utility.
    The EPA has determined that it has ``good cause'' under section 
553(b)(B) of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b)(B), to promulgate this final rule without prior notice and 
opportunity for comment. The EPA finds it ``unnecessary'' to provide an 
opportunity to comment on the strictly legal issue of the impact of the 
Court's decision on the February 19, 1999, Federal operating permits 
program provisions addressing EPA's authority in ``in question'' areas. 
Today's rule is in direct response to the Court's order and implements 
that order. It amends only those regulatory provisions directly 
affected by the Court's order to vacate the portion of the rule 
authorizing EPA to treat areas for which EPA has deemed Indian country 
status to be in question as Indian country.
    For the same reason, EPA has determined that good cause exists 
under section 553(d)(3) of the APA, 5 U.S.C. 553(d)(3) to waive the 
requirement for a 30-day period before the amendment becomes effective, 
and therefore the

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amendment will be immediately effective.
    Finally, the Administrator hereby designates subsection 307(d) of 
the Act as applying to this rulemaking.

II. Administrative Requirements

A. Executive Order 12866: ``Significant Regulatory Action 
Determination''

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
adversely affecting in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety in 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 entitlement, grants, 
user fees, or loan programs of 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 
the Executive Order.
    Because this action involves a ministerial removal of regulatory 
text in direct response to a court order, it has been determined that 
this action is not a ``significant regulatory action'' under the terms 
of Executive Order 12866 and is not subject to OMB review.

B. Regulatory Flexibility Act Compliance as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq.

    The Regulatory Flexibility Act generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions. 
Because the agency has made a ``good cause'' finding that this action 
is not subject to notice-and-comment requirements under the APA or any 
other statute, it is not subject to the regulatory flexibility 
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

C. Paperwork Reduction Act

    The OMB has approved the information collection requirements 
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 2060-
0336.
    The Administrator has determined today's action does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), since it directly 
imposes no burden at all. Burden means the total time, effort, or 
financial resources expended to generate and maintain, retain, or 
provide information as required by a rule. This includes the time 
needed to review instructions; develop, acquire, install, and use 
technology and systems for collecting, validating, and verifying 
information or processing and maintaining information; adjust the 
existing ways to comply with previous instructions and requirements; 
train personnel to respond to the collection of information; search 
data sources; complete and review the information; and transmit the 
information. Today's rule imposes no such burden on any entity.

D. Submission to Congress and the Comptroller General

    The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report (which includes a copy 
of the rule) to each House of the Congress and to the Comptroller 
General of the United States. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary, or contrary to public interest. This 
determination must be supported by a brief statement (5 U.S.C. 808(2)). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefor, and established an effective date of June 3, 
2002, for this rule. The EPA will submit 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 United States prior 
to the publication of the rule in the Federal Register. This action is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Because the agency has made a ``good cause'' finding that this 
action is not subject to notice-and-comment requirements under the APA 
or any other statute, it is not subject to sections 202 and 205 of the 
UMRA. In addition, this action does not significantly or uniquely 
affect small governments or impose a significant intergovernmental 
mandate, as described in sections 203 and 204 of the UMRA.

F. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State

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and local officials in the development of regulatory policies that have 
Federalism implications.'' ``Policies that have Federalism 
implications'' is defined in the Order to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
Federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. The EPA also may not issue a regulation that has 
Federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    If EPA complies by consulting, Executive Order 13132 requires EPA 
to provide to OMB, in a separately identified section of the preamble 
to the rule, a Federalism summary impact statement (FSIS). The FSIS 
must include a description of the extent of EPA's prior consultation 
with State and local officials, a summary of the nature of their 
concerns and the Agency's position supporting the need to issue the 
regulation, and a statement of the extent to which the concerns of 
State and local officials have been met. Also, when EPA transmits a 
draft final rule with Federalism implications to OMB for review 
pursuant to Executive Order 12866, EPA must include a certification 
from the Agency's Federalism official stating that EPA has met the 
requirements of Executive Order 13132 in a meaningful and timely 
manner.
    This action will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government as specified in Executive Order 13132. This action 
would not alter the overall relationship or distribution of powers 
between governments for the title V program. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

G. Executive Order 13175: Consultation With Tribes

    This action does not have a substantial direct effect on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000) because it does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Accordingly, this 
rule is not subject to Executive Order 13175.

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

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that the EPA determines (1) economically significant as 
defined under Executive Order 12866, and (2) the environmental health 
or safety risk addressed by the rule has a disproportionate effect on 
children. If the regulatory action meets both criteria, the Agency must 
evaluate the environmental health or safety effects of the planned rule 
on children and explain why the planned regulation is preferable to 
other potentially effective and reasonably feasible alternatives 
considered by the Agency.
    This action is not subject to Executive Order 13045, because it is 
not an economically significant regulatory action as defined by 
Executive Order 12866, and it does not address an environmental health 
or safety risk that would have a disproportionate effect on children.

I. Executive Order 13211 (Energy Effects)

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, business practices, etc.) that are developed or adopted by 
voluntary consensus standard bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This action 
does not involve technical standards. Therefore, EPA is not considering 
the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 71

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

    Dated: May 23, 2002.
Christine Todd Whitman,
Administrator.

    For the reasons set out in the preamble title 40, chapter I of the 
Code of Federal Regulations is to be amended as set forth below.

PART 71--[AMENDED]

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

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

Subpart A--[Amended]


[sect] 71.4  [Amended]

    2. Section 71.4 is amended by removing the last sentence from 
paragraph (b) introductory text.


[sect] 71.9  [Amended]

    3. Section 71.9 is amended by removing paragraph (p).

[FR Doc. 02-13806 Filed 5-31-02; 8:45 am]
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