[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Rules and Regulations]
[Pages 23876-23879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10321]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-HQ-OAR-2010-0293; FRL-9300-2]
RIN-2060-AQ56


Clarifications to Indian Tribes' Clean Air Act Regulatory 
Requirements; Direct Final Amendments

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action to amend certain Clean 
Air Act regulations pertaining to Indian tribes. This action changes 
the title of the regulations titled, ``Tribal Clean Air Act Authority'' 
to the more accurate ``Indian Country: Air Quality Planning and 
Management.'' The action also reorganizes existing sections for better 
placement within the regulations.

DATES: The direct final rule is effective on July 28, 2011 without 
further notice, unless EPA receives relevant adverse comments by May 
31, 2011. If EPA receives relevant adverse comments, we will publish a 
timely withdrawal in the Federal Register informing the public that the 
amendments in this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0293, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (202) 566-9744.
     Mail: Indian Country: Air Quality Planning and Management 
Docket, Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of 
two copies.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0293. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be confidential business information (CBI) or other

[[Page 23877]]

information whose disclosure is restricted by statute. Do not submit 
information you consider to be CBI or otherwise protected through 
http://www.regulations.gov or e-mail. The http://www.regulations.gov 
Web site 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 http://www.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 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: All documents in the docket are listed in the http://www.regulations.gov gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the 
Indian Country: Air Quality Planning and Management Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Darrel Harmon, Office of Air and 
Radiation (OAR/IO 6101A), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 
564-7416, facsimile number (202) 501-0394; electronic mail (e-mail) 
address: [email protected].

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:

I. Why is EPA using a direct final rule?
II. What is the purpose of this action?
III. Why is this action needed?
IV. Where can I get a copy of this document?
V. What should I consider as I prepare my comments for EPA?
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Why is EPA using a direct final rule?

    The EPA is publishing this direct final rule without a prior 
proposed rule because we view this as a non-controversial action and 
anticipate no adverse comments. This action does not make changes to 
any requirements; the action simply renames the existing 40 CFR Part 49 
to more accurately reflect its purpose and relocates existing sections 
for better organization within the part. Any parties interested in 
commenting must do so at this time. Because this is an amendment of 
regulatory language through rulemaking, a redline version of the 
regulatory language has been created and has been placed in the docket. 
(http://www.regulations.gov, see docket number EPA-HQ-OAR-2010-0293) to 
aid the public's ability to comment. For further information about 
commenting on the rule, see the ADDRESSES section of this document. If 
EPA receives adverse comments, we will publish a timely withdrawal in 
the Federal Register informing the public the amendments in this direct 
final rule will not take effect. We will address any comments received 
in a subsequent final rule based on the proposed rule.

II. What is the purpose of this action?

    The purpose of this action is to (1) retitle 40 CFR Part 49 
``Tribal Clean Air Act Authority'' to the more accurate ``Indian 
Country: Air Quality Planning and Management,'' and (2) relocate three 
existing sections from Subpart A, which is intended to include only 
general tribal authority-related provisions, to Subpart L, which 
includes provisions specific to implementation plans for tribes located 
in EPA Region IX. The three sections that will be moved from 40 CFR 
part 49 subpart A to Subpart L are Sec.  49.22 Federal Implementation 
Plan for Tri-cities Landfill, Salt River Pima-Maricopa Indian Community 
(will become Sec.  49.5511), Sec.  49.23 Federal Implementation Plan 
Provisions for Four Corners Power Plant, Navajo Nation (will become 
Sec.  49.5512), and Sec.  49.24 Federal Implementation Plan Provisions 
for Navajo Generating Station, Navajo Nation (will become Sec.  
49.5513). Sections 49.22, 49.23, and 49.24 will be reserved in the 
event new general tribal authority-related provisions are promulgated 
in the future.

III. Why is this action needed?

    This rule is needed to provide regulatory clarity to Indian tribes. 
The change in the title of the part from ``Tribal Clean Air Act 
Authority'' to the more accurate ``Indian Country: Air Quality Planning 
and Management'' is needed because the current title suggests the part 
only includes requirements applicable to the granting of authority to 
tribes under the Clean Air Act. While the title was appropriate when 
Part 49 was originally promulgated, since then other regulations not 
relating to tribal authority have been added to the part such that the 
title is no longer broad enough to encompass the entire scope of these 
regulations. ``Indian Country: Air Quality Planning and Management'' is 
a broader, more accurate title which identifies the Part 49 regulations 
as relating more generally to the planning and management of air 
quality in Indian country. It has been long recognized by EPA 
Headquarters (HQ) and Regions the title did not fully illustrate the 
context of the rule and could be misread. For this reason, EPA HQ and 
Regions have an interest in changing the title to reduce any confusion. 
This change will also enable tribes to more easily recognize the Clean 
Air Act regulation that affects them.
    The rule also moves sections 49.22, 49.23 and 49.24 out of Subpart 
A, which is intended to include provisions relating generally to tribal 
authority regardless of the EPA Region in which a tribe is located, to 
Subpart L, Implementation Plans for Tribes in Region IX, such that all 
implementation plan provisions that apply specifically to Region IX 
tribes are located together.

IV. Where can I get a copy of this document?

    In addition to being available in the docket, an electronic copy of 
this final

[[Page 23878]]

action will also be available on the Worldwide Web (WWW) through the 
Technology Transfer Network (TTN). Following signature, a copy of this 
final action will be posted on the TTN's policy and guidance page for 
newly proposed or promulgated rules at the following address: http://www.epa.gov/ttn/oarpg/. The TTN provides information and technology 
exchange in various areas of air pollution control.

V. What should I consider as I prepare my comments for EPA?

    Do not submit information containing CBI to EPA through http://www.regulations.gov or e-mail. Send or deliver information identified 
as CBI only to the following address: Roberto Morales, OAQPS Document 
Control Officer (C404-02), Office of Air Quality Planning and 
Standards, Environmental Protection Agency, Research Triangle Park, 
North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2010-0293. 
Clearly mark the part or all of the information 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 CFR Part 2.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is, therefore, not subject to review under the Executive Orders 12866 
and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
These amendments do not result in changes to the information collection 
requirements of the existing regulations and will have no impact on the 
information collection estimate of projected cost and hour burden made 
and approved by the Office of Management and Budget (OMB) during the 
development of the existing regulations. However, the Office of 
Management and Budget (OMB) has previously approved the information 
collection requirements contained in the existing regulations (40 CFR 
Part 49) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. and has assigned OMB control numbers (2060-0306 and 2060-
0558). The OMB control numbers for EPA's regulations in 40 CFR are 
listed in 40 CFR Part 9. Therefore, the information collection requests 
have not been amended.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the Agency certifies the rule 
would not have a significant economic impact on a substantial number of 
small entities. Small entities include small businesses, small 
organizations, and small governmental jurisdictions.
    For the purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district, or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify this action will not have a significant economic 
impact on a substantial number of small entities. This rule will not 
impact small entities due to the fact these amendments simply rename 
the title and reorganize existing sections for better placement within 
the regulation. There are no substantive changes to the regulation. 
Small entities will not incur any adverse impacts as a result of this 
rule because this action does not create any new requirements or 
burdens. No costs are associated with these amendments.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for state, local, and tribal 
governments, in the aggregate, or to the private sector in any one 
year. This direct final rule is not expected to impact state, local, or 
tribal governments. Thus, this rule is not subject to the requirements 
of sections 202 and 205 of the Unfunded Mandates Reform Act (UMRA).
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. These amendments 
simply rename the title and move subparts to fit more appropriately in 
later subparts. There are no substantive changes to the regulation.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It 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 direct final rule does not 
impose any requirements on state and local governments. Thus, Executive 
Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175 (65 FR 67249, November 6, 2000). These amendments 
do not impose requirements on tribal governments. This direct final 
action will not have tribal implications and we received no adverse 
comments when the proposed changes were presented to the National 
Tribal Air Association (NTAA) in March 2010. Tribes at the meeting 
supported these proposed changes; thus, Executive Order 13175 does not 
apply to this action.

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

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not have 
a substantive impact on existing regulations, and does not create any 
new requirements.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22,

[[Page 23879]]

2001) because it is not a significant regulatory action under Executive 
Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA), Public Law 104-113 (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, and 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. 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 did not consider the use of 
any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined this direct final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. These amendments simply rename the title and move subparts 
to fit more appropriately in later subparts. There are no substantive 
changes to the regulation.

K. Congressional Review Act

    The Congressional Review Act, 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 Congress and to the Comptroller General 
of the United States. The EPA will submit a report containing these 
amendments 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 publication of the amendments in the Federal Register. 
A major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2). This direct final rule will be effective on July 28, 
2011.

List of Subjects in 40 CFR Part 49

    Environmental protection, Air pollution, Indians--lands, Indians--
tribal government.

    Dated: April 22, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, Title 40, Chapter I, Part 
49 of the Code of Federal Regulations is amended as follows:

PART 49--[AMENDED]

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1. The authority citation for Part 49 continues to read as follows:

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

PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT

0
2. Revise the part heading for part 49 as set forth above. Sec. Sec.  
49.22-49.24 [Redesignated]

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3. Redesignate Sec.  49.22 in subpart A as Sec.  49.5511 in subpart L.

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4. Redesignate Sec.  49.23 in subpart A as Sec.  49.5512 in subpart L.

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5. Redesignate Sec.  49.24 in subpart A as Sec.  49.5513 in subpart L.

0
6. Add and reserve new Sec. Sec.  49.22-49.24 in subpart A.

[FR Doc. 2011-10321 Filed 4-28-11; 8:45 am]
BILLING CODE 6560-50-P