[Federal Register Volume 69, Number 228 (Monday, November 29, 2004)]
[Proposed Rules]
[Pages 69338-69342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26295]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 69, No. 228 / Monday, November 29, 2004 / 
Proposed Rules  

[[Page 69338]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[Docket : WA-04-005; FRL-7842-8]


Approval and Promulgation of State Implementation Plans and 
Designation: Washington; Yakima County Nonattainment Area Boundary 
Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In this action, EPA is proposing to correct an error in the 
initial delineation of the boundary of the Yakima County nonattainment 
area (Yakima NAA) for particulate matter with an aerodynamic diameter 
less than or equal to a nominal 10 micrometers. This correction would 
revise the boundary of the Yakima NAA to exclude a small portion that 
lies within the exterior boundary of the Yakama Indian Reservation. The 
excluded area would revert to an unclassifiable designation, consistent 
with the original and current designation of the Yakama Indian 
Reservation.

DATES: Written comments must be received by December 29, 2004.

ADDRESSES: Submit your comments, identified by Docket ID No. WA-04-005, 
by one of the following methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. E-mail: [email protected].
    C. Fax: (206) 553-0110.
    D. Mail: Office of Air Waste and Toxics, Environmental Protection 
Agency, Attn: Gina Bonifacino, Mailcode: OAWT-107, 1200 Sixth Avenue, 
Seattle, WA 98101.
    E. Hand Delivery: Environmental Protection Agency Region 10, Attn: 
Gina Bonifacino (OAWT-107), 1200 Sixth Avenue, Seattle, WA 98101, 9th 
floor. Such deliveries are only accepted during EPA's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. WA-04-005. 
EPA's policy is that all comments received will be included in the 
public docket without change, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov, or 
e-mail. The federal regulations.gov website is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses.
    Docket: Publicly available docket materials are available in hard 
copy at EPA Region 10, Office of Air Waste, and Toxics, Mail Code OAWT-
107, 1200 Sixth Avenue, Seattle, Washington 98101. EPA is open Monday 
through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays. 
Please contact the individual listed in the For Further Information 
Contact section if you wish to schedule an appointment to review 
materials in the publicly available docket.

FOR FURTHER INFORMATION CONTACT: Gina Bonifacino, Office of Air, Waste 
and Toxics, Region 10, OAWT-107, Environmental Protection Agency, 1200 
Sixth Avenue, Seattle, WA 98101; phone: (206) 553-2970; fax number: 
(206) 553-0110; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'', 
``us'' or ``our'' are used, we mean EPA.

Table of Contents

I. Background
    A. What is the general background of this proposed action?
    B. What is the background of the designation of the Yakima NAA?
    C. What is the current description of the Yakima NAA?
II. This Action
    A. What boundary change is the EPA proposing?
    B. What is the basis for this action?
    C. How will the excluded area be classified?
    D. Can I comment on this action?
    E. What should I consider as I prepare my comments for EPA?
III. Statutory and Executive Order Requirements

I. Background

A. What Is the General Background of This Proposed Action?

    Section 107(d)(4)(B) of the Clean Air Act (CAA) sets out the 
general process by which areas were to be designated nonattainment for 
the national ambient air quality standards (NAAQS) for particulate 
matter with an aerodynamic diameter less than or equal to a nominal 10 
micrometers (PM-10) upon enactment of the 1990 Clean Air Act Amendments 
(1990 CAA Amendments). Section 107(d)(4)(B)(i) of the CAA states that 
each area that had been identified by EPA as a PM-10 Group I area \1\ 
prior to the 1990 CAA Amendments is designated nonattainment for PM-10 
by operation of the law upon enactment of the 1990 CAA Amendments. 
Although EPA believes that, in general, the language of this section 
would appear to preclude any exercise of EPA discretion to modify these 
initial nonattainment area designations, EPA also believes that 
explicit reliance of section 107(d)(4)(B)(i) of the CAA on EPA's prior 
Group I determinations provides the basis for an exception to the 
general rule. By requiring that all Group I areas be among the initial 
areas designated nonattainment upon enactment of the 1990 CAA 
Amendments, Congress

[[Page 69339]]

relied on EPA's expertise and judgment in determining, based on an 
analysis of relevant air quality information, those areas for which a 
PM-10 nonattainment status was merited. EPA does not believe that 
Congress intended initial PM-10 areas to be based on a clearly 
erroneous Group I determination. Thus, one exception to the principle 
that EPA lacks authority to modify these initial nonattainment area 
designations is where, prior to enactment of the 1990 CAA Amendments, 
EPA mistakenly construed then-existing air quality data and, as a 
consequence, incorrectly identified an area as being among the Group I 
areas that were subsequently referenced in section 107(d)(4)(B)(i) of 
the CAA. See 56 FR 37654, 37656 (August 8, 1991); see also 61 FR 29667, 
29668 (June 12, 1996).
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    \1\ Group I areas were areas that, at the time the particulate 
matter indicator was changed from total suspended particulate (TSP) 
to PM-10, were estimated to have a high probability of exceeding the 
PM-10 NAAQS.
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    As discussed below, EPA believes that such a clear identification 
error occurred in the case of the Yakima NAA. That is, EPA believes 
that it erred by including a portion of the Yakama Indian Reservation 
as part of the Yakima NAA. Accordingly, under the authority of section 
110(k)(6) of the CAA, EPA is revising the boundary of the Yakima NAA to 
exclude the portion within the exterior boundary of the Yakama Indian 
Reservation.

B. What Is the Background of the Designation of the Yakima NAA?

    On July 1, 1987, the EPA promulgated national ambient air quality 
standards, implementation policies, and regulations for PM-10. See 52 
FR 24634. In accordance with these policies, on August 7, 1987, EPA 
categorized areas of the United States into three groups based on the 
likelihood that the existing State Implementation Plan (SIP) must be 
revised to protect the PM-10 NAAQS. See 52 FR 29383. Areas with a 
strong likelihood of violating the PM-10 NAAQS and requiring 
substantial SIP revisions were placed in Group I; areas where 
attainment of the PM-10 NAAQS was uncertain and where the SIP required 
only slight adjustment were placed in Group II; and areas with a strong 
likelihood of attaining the PM-10 NAAQS were placed in Group III.
    The Group I areas were generally identified by a county, township 
or other planning area. These descriptions were only an initial 
definition of an area. In the process of monitoring and modeling PM-10 
concentrations and determining the extent of sources of PM-10 emissions 
that impact the areas, the states were to better define the boundaries 
of the area that were or may have been violating the standards. Based 
on monitoring data from monitors located in the city of Yakima, Yakima 
County was included among the Group I areas. See 52 FR at 29385.
    In March 1989, the Washington Department of Ecology submitted a 
State Implementation Plan for PM-10 for the Yakima County Group I area. 
This submittal addressed CAA requirements to meet the new federal 
standards for PM-10 within nine months after the effective date of the 
standard. The State chose a rectangular shaped area covering 
approximately 75 square miles for in-depth study of PM-10 in the Yakima 
area based on knowledge of the emission sources (primarily area sources 
consisting of wood stoves and vehicle-related emissions), and all areas 
shown by initial dispersion modeling to experience levels above the 
standard. Washington's plan describes this study area as three cities 
in close proximity, Yakima, Selah and Union Gap, and the surrounding 
areas in Yakima County.
    Washington's 1989 plan describes land use within the city limits as 
primarily residential and commercial, with residences extending at a 
lesser density beyond the incorporated city limits. The rest of the 
plan's study area consists of agricultural land and open land. The plan 
indicates that the Yakima Indian Reservation is on the southern portion 
of the study area. At the time of the study, Washington conducted 
dispersion modeling of the area based on 1985 emissions. These modeling 
results indicate an expected exceedence of the PM-10 NAAQS in the city 
of Yakima, but did not indicate an expected exceedence of the PM-10 
NAAQS within the Yakama tribal area south of the city of Yakima (see 
the Technical Support Document for a detailed description of dispersion 
modeling results and study area description from the 1989 plan).
    On October 31, 1990, EPA published technical corrections clarifying 
the boundaries of concern for some of the areas previously identified 
as Groups I and II areas. See 55 FR 45799. The area for Yakima County 
Group I was revised to correspond to Washington's rectangular study 
area and was described as follows:

The area bounded on the south by a line from Universal Transmercater 
(UTM) coordinate 694000mW, 5157000mN, west to 681000mW, 5157000mN 
thence north along a line to coordinate 681000mN, 5172000mN, thence 
east to 694000mW, 5172000mN, thence south to the beginning 
coordinate 694000mW, 5157000mN.\2\
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    \2\ Though UTM coordinates are not explicitly given in the 1989 
plan, figures in the 1989 plan area appear to correspond to the UTM 
coordinates in 55 FR 45799.

This area includes approximately six square miles of fee land within 
the exterior boundaries of the Yakama Indian Reservation. There was 
nothing in the State's 1989 plan to indicate that the study area 
included lands within the Yakima Indian Reservation. (See Technical 
Support Document for a detailed discussion of the study area described 
in the State's 1989 plan.)
    The 1990 Amendments to the Clean Air Act provided the PM-10 
grouping scheme as the starting point for designating areas 
nonattainment or unclassifiable for PM-10. Group I areas identified in 
the August 7, 1987, Federal Register (52 FR 29383), and subsequently 
clarified on October 1, 1990 (55 FR 45799), were designated 
nonattainment for PM-10 by operation of law pursuant to section 
107(d)(4)(B)(i) of the CAA. See 56 FR 11101 (March 15, 1991). Any other 
area (i.e., Group II or III areas) containing a monitoring site for 
which air quality monitoring data showed a violation of the NAAQS for 
PM-10 prior to January 1, 1989 was also designated nonattainment. All 
other areas were designated unclassifiable for PM-10. The Yakima Group 
I area was designated nonattainment with this action and became the 
Yakima NAA. 56 FR at 11105. The Yakama Indian Reservation, with the 
exception of the portion within the Yakima Group I area, was designated 
unclassifiable.

C. What Is the Current Description of the Yakima NAA?

    As discussed above, the Yakima NAA is a rectangular shaped area 
covering approximately 75 square miles. Within the Yakima NAA, the 
cities of Yakima, Selah and Union Gap form an urban area. The cities 
lie in the Yakima river valley at an elevation of 1000 feet and are 
surrounded by mountains and ridges rising to between 3000 and 3500 feet 
above the valley floor. One major stationary source (Boise Cascade 
sawmill \3\) and several small stationary sources lie within the NAA. 
All point sources are on located on state lands within the NAA. The 
rest of the NAA consists of commercial, residential, agricultural, and 
open land. The northeast corner of the nonattainment area contains a 
small part of the Yakima Training Center Military Reservation and the 
southern boundary of the NAA extends into the Yakama Indian 
Reservation. The portion of the Yakama Indian Reservation within the 
NAA is roughly six square miles of agricultural land and rangeland 
which contains

[[Page 69340]]

several residences and a few small commercial properties.
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    \3\ Boise Cascade will be operated as Yakima Resources, LLC in 
the future.
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II. This Action

A. What Boundary Change Is EPA Proposing?

    EPA is proposing to correct the boundary of the Yakima NAA to 
exclude the portion within the exterior boundary of the Yakama Indian 
Reservation. This proposal would change the boundary of the Yakima NAA 
to read as follows:

The area bounded on the south by a line from UTM coordinate 
694000mW, 5157000mN, west to 681000mW, 5157000mN, thence north along 
a line to coordinate 681000mN, 5172000mN, thence east to 694000mW, 
5172000mN, thence south to the beginning coordinate 694000mW, 
5157000mN, excluding the area within the exterior boundary of the 
Yakama Indian Reservation.

B. What Is the Basis for This Action?

    Under section 110(k)(6) of the CAA, whenever EPA determines that 
its action approving, disapproving, or promulgating any plan or plan 
revision (or part thereof), area designation, redesignation, 
classification, or reclassification was in error, EPA may in the same 
manner as the approval, disapproval, or promulgation revise such action 
as appropriate without requiring any further submission from the state. 
Such determination and the basis thereof shall be provided to the state 
and public.
    Pursuant to section 110(k)(6), EPA is proposing a revision to the 
boundary of the Yakima NAA to correct an error in EPA's initial 
delineation of the Yakima County Group I area, which included land 
within the exterior boundaries of the Yakama Indian Reservation as part 
of the Yakima County Group I area. Although this boundary correction is 
not subject to the legal requirements for public notice and comment (51 
FR at 11103), EPA is providing the public with an opportunity to 
comment on this action in order to foster public participation and 
avoid further error.
    In the absence of technical information identifying particular 
sources contributing to violations of the NAAQS, EPA policy for 
determining the boundaries of PM-10 nonattainment areas is to use 
political boundaries associated with the area where the monitored 
violations occurred and in which it is reasonably expected that sources 
contributing to the violations are located. See 57 FR 43846, 43848 
(September 22, 1992).\4\ As discussed above, although the Yakima NAA is 
comprised mostly of state lands, it also includes lands within the 
exterior boundaries of the Yakama Indian Reservation. Under the CAA, 
the State of Washington Department of Ecology, along with the Yakama 
Regional Clean Air Authority (YRCAA),\5\ have primary planning 
responsibility for state land within the current Yakima NAA, whereas 
EPA and the Confederated Tribes and Bands of the Yakama Nation (Yakama 
Nation) have primary planning responsibility for the tribal land within 
the current Yakima NAA. See CAA section 301(a) and 301(d)(4); 64 FR 
8247, 8251-8255 (February 19, 1999) (``Federal Operating Permits 
Program; Final Rule''); 63 FR 7254, 7254-7259, 7262 (February 12, 1998) 
(``Indian Tribes: Air Quality Planning and Management; Final Rule''); 
59 FR 43956, 43958-43961 (``Indian Tribes: Air Quality Planning and 
Management; Proposed Rule''). Thus, when EPA delineated the boundary of 
theYakima County Group I area through technical corrections in 1990, 
EPA policy called for drawing the boundary of the area based on 
political boundaries unless there was technical information identifying 
particular sources contributing to violations of the NAAQS that 
warranted a different approach. In other words, EPA policy called for 
not including land within the exterior boundaries of the Yakama Indian 
Reservation as part of the Yakima Group I area unless there was 
information showing that sources within the Yakama Indian Reservation 
contributed to the PM-10 violations recorded on state lands.
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    \4\ Guidance on this issue is also provided in the PM-10 SIP 
Development Guideline (EPA-450/2-86-001).
    \5\ YRCAA is the local air pollution control authority with the 
primary planning responsibilities for state lands within Yakima 
County.
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    A review of the air quality data from Washington's 1989 plan for 
the Yakima County Group I area does not indicate that sources within 
the Yakama Indian Reservation contributed to the PM-10 violations 
recorded on state lands at the time the boundary was determined. There 
were two monitors recording exceedences of the PM-10 NAAQS that were 
used in EPA's delineation of the Yakima Group I area in 1990. Both of 
these monitors, which were predicted to be representative of the areas 
of highest concentration of PM-10 in the Group I area, were located in 
the city of Yakima.
    Modeling and emissions inventory data from the 1989 state plan 
indicates that sources within the Yakama Indian Reservation did not 
contribute to an exceedence of the PM-10 NAAQS in Yakima, Selah, Union 
Gap and surrounding areas. The emissions inventory from Washington's 
1989 plan showed that 95% of the PM-10 for high pollution days in 1985 
was attributable to residential wood heating and point sources (see 
Technical Support Document for a description of the emissions inventory 
used in the 1989 plan). As discussed above, the Reservation land 
included within the Yakima NAA is largely desert and agricultural land. 
According to aerial photos, there were fewer than 300 residences on the 
portion of the Yakama Indian Reservation that was included within the 
Yakima Group I area. This compares to more than 25,000 residences in 
the cities of Yakima, Selah and Union Gap. There were no major point 
sources and only a few small commercial properties are located within 
the tribal portion of the NAA. Thus, the number of residences in the 
tribal portion of the Yakima Group I area comprised less than 1.5% of 
the households in the Yakima Group I area and less than 1.5% of total 
PM-10 on days with elevated PM-10 levels.
    That sources on the tribal portion of the Yakima Group I area did 
not contribute to the violations of the PM-10 standard at the time the 
Yakima Group I area was delineated is supported by modeling data from 
Washington's 1989 implementation plan for area. Concentration isopleths 
from the 1989 plan predicted that the PM-10 concentrations in southern 
range of the study area (near or on the Yakama Indian Reservation) were 
far below the NAAQS (30-70 ug/m3 24 hour NAAQS), while the areas to the 
north towards the cities of Yakima and Selah and to the east toward 
Union Gap were predicted to exceed the NAAQS.
    In short, at the time of determination of the boundaries of the 
Yakima Group I area, which by operation of the law became the Yakima 
NAA, there was no technical information provided by Washington 
indicating that sources on the Yakima Indian Reservation contributed to 
the violations of the PM-10 NAAQS that had been recorded on monitors in 
the city of Yakima. EPA policy therefore called for using political 
boundaries to delineate the nonattainment area. As such, EPA erred in 
including a portion of the Yakama Indian Reservation in the Yakima NAA.
    We note that correcting the boundary to exclude Reservation lands 
from the Yakima NAA is consistent with EPA's past actions with respect 
to the Yakima NAA. In approving the Yakima PM-10 nonattainment area as 
part of the Washington SIP in 1998, EPA made clear that the approved 
SIP does not extend to lands within the boundaries of the Yakama Indian 
Reservation. See 63

[[Page 69341]]

FR 5269, 5270 (February 2, 1998). EPA further noted that it was not 
including any reference to authority of YRCAA over activities or air 
resources located within the exterior boundaries of the Yakama Indian 
Reservation. 63 FR at 5270.

C. How Will the Excluded Area Be Classified?

    If EPA finalizes the decision to exclude land within the exterior 
boundary of the Yakama Indian Reservation from the Yakima NAA, this 
six-square mile area would revert to an unclassifiable designation, 
consistent with the original designation of the Yakama Indian 
Reservation. Under section 107(d)(4) of the CAA, each area not 
identified as a Group I area in 52 Federal Register 29383 (August 7, 
1987) or not identified as an area containing a site for which air 
quality monitoring data showed a violation of the NAAQS for PM-10 
before January 1, 1989, was to be designated unclassifiable for PM-10. 
At the time the city of Yakima was designated as a Group I area in 
1987, there was no monitoring data showing a violation of the PM-10 
NAAQS in the tribal portion of the Yakima Group I area. Monitors 
currently installed on the Yakama Indian Reservation also do not 
indicate violations of the PM-10 NAAQS.\6\
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    \6\ Although EPA is basing its decision on information existing 
at the time the nonattainment area boundaries were initially 
established, EPA would be reluctant to revise through a correction 
action the description of the nonattainment area based on 
information available before EPA's initial erroneous boundary 
description if data collected since that time indicated that the 
areas was not in attainment of, or would be expected to violate, the 
NAAQS.
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D. Can I Comment on This Action?

    By this notice, EPA is notifying the State of Washington, YRCAA, 
the Yakama Nation, and the public that EPA proposes to correct the 
boundary of the Yakima NAA to exclude the six-square mile area that 
lies within the exterior boundaries of the Yakama Indian Reservation. 
Although neither the Administrative Procedures Act nor the Clean Air 
Act legally obligate EPA to provide the public an opportunity to 
comment on this correction (56 FR at 1103), EPA is soliciting public 
comment to foster public participation and avoid any further errors. 
EPA will consider all comments on this action that are received by 
December 29, 2004. After consideration of all timely comments received, 
EPA will make any adjustments to this proposed correction that are 
appropriate in light of the comments.

E. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit this information to EPA through regulations.gov or e-mail. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark 
the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 Code of 
Federal Regulations (CFR) part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to: i. Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
    ii. Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a CFR part or 
section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

III. Statutory and Executive Order Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this proposed action is also not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). This proposed action merely corrects the 
description of a nonattainment area to exclude land that did not 
contribute to the nonattainment problem and was under a different 
regulatory jurisdiction and does not impose any additional requirements 
on state, local or tribal governments or the private sector. 
Accordingly, the Administrator certifies that this proposed rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Because this rule proposes to approve pre-existing requirements under 
state law and does not impose any additional enforceable duty beyond 
that required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.'' Under section 5(b) of Executive 
Order 13175, EPA may not issue a regulation that has tribal 
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 
tribal governments, or EPA consults with tribal officials early in the 
process of developing the proposed regulation. Under section 5(c) of 
Executive Order 13175, EPA may not issue a regulation that has tribal 
implications and that preempts tribal law, unless the Agency consults 
with tribal officials early in the process of developing the proposed 
regulation. EPA has concluded that this proposed rule may have tribal 
implications. EPA's action will remove a portion of the Yakama Indian 
Reservation from the Yakima NAA. However, it will neither impose 
substantial direct compliance costs on tribal governments, nor preempt 
tribal law. Thus, the requirements of sections 5(b) and 5(c) of the 
Executive Order do

[[Page 69342]]

not apply to this rule. Consistent with EPA policy, EPA nonetheless 
consulted with representatives of tribal governments early in the 
process of developing this proposal to permit them to have meaningful 
and timely input into its development. In the spirit of Executive Order 
13175, and consistent with EPA policy to promote communications between 
EPA and tribal governments, EPA specifically solicits additional 
comment on this proposed rule from tribal officials.
    This action also does not have Federalism implications because it 
does 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 (64 FR 43255, August 
10, 1999). This proposed action merely corrects the description of a 
nonattainment area to exclude land that did not contribute to the 
nonattainment problem and was under a different regulatory jurisdiction 
and does not alter the relationship or the distribution of power and 
responsibilities established in the CAA. This rule also is not subject 
to Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does 
not impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

40 CFR Part 81

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

    Dated: November 16, 2004.
Michael F. Gearheard,
Acting Regional Administrator, Region 10.
[FR Doc. 04-26295 Filed 11-26-04; 8:45 am]
BILLING CODE 6560-50-P