[Federal Register Volume 86, Number 37 (Friday, February 26, 2021)]
[Proposed Rules]
[Pages 11674-11678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03826]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 49

[EPA-R08-OAR-2020-0742; FRL-10020-09-Region 8]


Approval of the Tribal Implementation Plan for the Northern 
Cheyenne Tribe

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a Tribal Implementation Plan (TIP) submitted by the Northern 
Cheyenne Tribe (Tribe) on September 25, 2017, to regulate air pollution 
within the exterior boundaries of the Tribe's Northern Cheyenne Indian 
Reservation and four tribal trust parcels (collectively, the 
Reservation). The EPA is proposing to approve the TIP based on 
maintenance of the National Ambient Air Quality Standards (NAAQS) 
through a permitted open burning program. The EPA is taking this action 
pursuant to sections 110(o), 110(k)(3), and 301(d) of the Clean Air Act 
(CAA or the Act).

DATES: Comments: Written comments must be received on or before March 
29, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2020-0742, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit: http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the 
www.regulations.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. 
Publicly available docket materials are available electronically in 
www.regulations.gov. To reduce the risk of COVID-19 transmission, for 
this action we do not plan to offer hard copy review of the docket. 
Please email or call the person listed in the FOR FURTHER INFORMATION 
CONTACT section if you need to make alternative arrangements for access 
to the docket.

FOR FURTHER INFORMATION CONTACT: Kyle Olson, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-TRM, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6002, [email protected].

SUPPLEMENTARY INFORMATION: 
    Throughout this document ``we,'' ``us,'' or ``our'' means the EPA.

Table of Contents

I. The EPA Action Being Proposed Today
II. Introduction
III. Background
IV. Tribal Implementation Plan Requirements
    A. What is required for the approval of a Tribal Implementation 
Plan?
V. Northern Cheyenne Tribe's TIP Submittal
    A. Northern Cheyenne Tribe TAS Eligibility
    B. What authority does the Northern Cheyenne Tribe's Department 
of Environmental Protection and Natural Resources (DEPNR) have?
    C. What role does the EPA have in criminal enforcement?
    D. When did the Northern Cheyenne Tribe adopt the TIP under 
Tribal Law?
    E. What is included in the Northern Cheyenne Tribe's TIP 
submittal?
    1. Ambient Air Quality Standards
    2. Open Burning Program
    3. Enforcement
VI. What EPA action is being taken today?
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews

[[Page 11675]]

I. The EPA Action Being Proposed Today

    The EPA is proposing approval of the Tribe's TIP submission which 
contains programs to address: Ambient air quality standards for sulfur 
dioxide (SO2), particulate matter (PM10 and 
PM2.5), nitrogen dioxide (NO2), ozone 
(O3), carbon monoxide (CO), and lead; permitting; open 
burning; and enforcement.

II. Introduction

    The Tribe is a federally-recognized Indian tribe by the U.S. 
Secretary of the Interior. See 85 FR 5462, 5464 (January 30, 2020). 
Beginning in 2017, the Tribe, with assistance from the EPA, began 
developing a draft TIP and its various elements with the goal of 
eventually submitting the TIP to the EPA for approval. On September 25, 
2017, the Tribe requested that the EPA find the Tribe eligible for 
treatment in a similar manner as a state (TAS), pursuant to section 
301(d) of the CAA and Title 40 part 49 of the Code of Federal 
Regulations (CFR), for the purpose of developing and carrying out a 
TIP. The Tribe also formally submitted the TIP to the EPA on September 
25, 2017. On June 22, 2020, the EPA determined that the Tribe is 
eligible for TAS for that purpose. Having found that the Tribe is 
eligible for TAS, the EPA is now proposing to approve the Tribe's TIP.
    The Tribe's TIP has been developed to protect the Reservation 
populace from air pollution by controlling open burning sources. The 
TIP establishes primary and secondary ambient air quality standards for 
CO, lead, SO2, PM10, PM2.5, 
NO2, and O3. The TIP also establishes an open 
burning permitting program and enforcement authorities.

III. Background

    The CAA was originally enacted in 1963 and has been significantly 
amended over the years (most notably in 1970, 1977, and 1990). Among 
other things, the Act: Requires the EPA to establish NAAQS for certain 
pollutants; requires the EPA to develop programs to address specific 
air quality problems; establishes the EPA's enforcement authority; and 
provides for air quality research. As part of the 1990 amendments, 
Congress added section 301(d) to the Act authorizing the EPA to treat 
eligible Indian tribes ``in the same manner as states'' and directing 
the EPA to promulgate regulations specifying those provisions of the 
Act for which TAS is appropriate. In February of 1998, the EPA 
implemented this requirement by promulgating the Tribal Authority Rule 
(TAR) (63 FR 7254 (February 12, 1998), codified at 40 CFR part 49). The 
EPA included relevant provisions relating to implementation plans among 
the provisions for which TAS is appropriate (exceptions are identified 
in 40 CFR 49.4).
    Under the provisions of the Act and the EPA's regulations, Indian 
tribes must demonstrate that they meet the criteria in section 301(d) 
of the Act and the TAR in order to be eligible for TAS. The eligibility 
criteria are: (1) The Indian tribe is federally recognized; (2) the 
Indian tribe has a governing body carrying out substantial governmental 
duties and powers; (3) the functions the Indian tribe is applying to 
carry out pertain to the management and protection of air resources 
within the exterior boundaries of the reservation (or other areas 
within the Indian tribe's jurisdiction); and (4) the Indian tribe is 
reasonably expected to be capable of performing the functions the 
Indian tribe is applying to carry out in a manner consistent with the 
terms and purposes of the Act and all applicable regulations.
    An implementation plan is a set of programs and regulations 
developed by the appropriate regulatory agency in order to assure 
healthy air quality through the attainment and maintenance of the 
NAAQS. These plans can be developed by states, eligible Indian tribes, 
or the EPA, depending on the entity with jurisdiction and the EPA's 
approval in a particular area.
    For states, these plans are referred to as State Implementation 
Plans or SIPs. For eligible Indian tribes, these plans are called TIPs. 
Occasionally, the EPA will develop an implementation plan for a 
specific area or source. This is referred to as a Federal 
Implementation Plan or a FIP. Once final approval is published in the 
Federal Register, the provisions of an implementation plan become 
federally enforceable. An applicable implementation plan may be 
comprised of both TIPs and FIPs or SIPs and FIPs.
    The contents of a typical implementation plan may fall into three 
categories: (1) Enforceable emission limitations and other control 
measures, means, or techniques, as well as schedules and timetables for 
compliance; (2) ``non-regulatory'' components (e.g., attainment plans, 
rate of progress plans, emission inventories, statutes demonstrating 
legal authority, monitoring programs); and (3) additional requirements 
promulgated by the EPA (in the absence of a commensurate state or 
tribal provision) to satisfy a mandatory CAA section 110 or part D 
requirement. The implementation plan is a living document which can be 
revised by the state or eligible Indian tribe as necessary to address 
air pollution problems. Accordingly, the EPA from time to time must 
take action on implementation plan revisions which may contain new and/
or revised regulations that will become part of the implementation 
plan.
    Upon submittal to the EPA, the EPA reviews implementation plans for 
conformance with federal policies and regulations. If the 
implementation plan conforms, the state's or eligible Indian tribe's 
regulations become federally enforceable upon EPA approval. The 
codification is usually accomplished by notice-and-comment rulemaking, 
with publications of proposed and final rules in the Federal Register.

IV. Tribal Implementation Plan Requirements

What is required for the approval of a Tribal Implementation Plan?

    For a tribe to receive EPA approval of a TIP, the tribe must, among 
other things, obtain a determination from the EPA that the tribe is 
eligible for TAS for purposes of the TIP and submit to the EPA a TIP 
that satisfies requirements of the Act and relevant regulations that 
apply to the plan elements and functions the tribe seeks to carry out.
    The following technical elements in a TIP may include, but are not 
limited to: \1\
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    \1\ United States Environmental Protection Agency, Office of Air 
Quality and Planning Standards. Developing a Tribal Implementation 
Plan. chapters 2 and 4. https://www.epa.gov/sites/production/files/2018-09/documents/developing_a_tribal_implementation_plan_sept._2018_1.pdf. 2018.
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     A list of regulated pollutants affected by the plan;
     Documentation that the plan contains emission limitations, 
work practice standards, and recordkeeping/reporting requirements; and
     Regulations.
    The TAR allows tribes to develop, adopt, and submit an 
implementation plan for approval as a TIP in a modular fashion, so it 
may not be necessary to meet all of the requirements identified above.
    The EPA has the authority, under the Act, to enforce the 
regulations in an approved TIP. The EPA recognizes that, in certain 
circumstances, eligible Indian tribes have limited criminal enforcement 
authority. The TAR specifically provides that such limitations on an 
Indian tribe's criminal enforcement authority do not prevent a TIP from 
being approved. Where implementation of the TIP requires criminal 
enforcement authority, and to

[[Page 11676]]

the extent a tribe is precluded from asserting such authority, the 
federal government will exercise primary criminal enforcement 
responsibility. A memorandum of agreement between an Indian tribe and 
the EPA is an appropriate way to address circumstances in which the 
tribe is incapable of exercising applicable enforcement requirements as 
described in 40 CFR 49.7(a)(6) and 40 CFR 49.8. The memorandum of 
agreement shall include a process by which the tribe will provide 
potential investigative leads to the EPA and/or other appropriate 
federal agencies in an appropriate and timely manner.

V. Northern Cheyenne Tribe's TIP Submittal

A. Northern Cheyenne Tribe TAS Eligibility

    On September 25, 2017, the Tribe requested an EPA determination 
under the provisions of 40 CFR 49.7 that the Tribe is eligible for TAS 
for the purpose of developing a TIP for air quality. On June 22, 2020, 
the EPA determined that the Tribe meets the eligibility requirements of 
section 301(d) of the Act and 40 CFR 49.6 for the purposes of 
developing and carrying out an implementation plan under the Act. EPA's 
decision on the TAS is final and is provided as background only in this 
action. It is not subject to further public comment as part of this TIP 
approval.

B. What authority does the Northern Cheyenne Tribe's Department of 
Environmental Protection and Natural Resources (DEPNR) have?

    The Northern Cheyenne Tribal Council gave the DEPNR authority to 
administer the Northern Cheyenne Clean Air Act (NCCAA) programs on 
behalf of the Tribe in Tribal Ordinance No. DOI-008 (2017) dated 
December 7, 2016. The Northern Cheyenne Tribal Council had the 
authority to take this action pursuant to Article IV, Section 1(a), 
(i), and (r) of the Tribe's Amended Constitution and Bylaws.\2\ Tribal 
Ordinance NO. DOI-008 (2017) authorized the DEPNR to administer the 
NCCAA programs, as allowed under the Act and the EPA's regulations.
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    \2\ Northern Cheyenne TAS/TIP Application, section J, page 1.
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C. What role does the EPA have in criminal enforcement?

    The Tribe did not submit, and EPA is not proposing to approve, any 
criminal enforcement authority under the TIP. Accordingly, the EPA is 
responsible for pursuing any criminal enforcement action for violations 
of the Act or implementing regulations that occur in Indian country. 
Consistent with 49 CFR 49.7(a)(6) and 49 CFR 49.8, on May 14, 2020, the 
Tribe entered into a Memorandum of Agreement (MOA) with EPA Region 8 
concerning criminal enforcement of air pollution rules and regulations 
as part of the TAS application process. Under the terms of this MOA, 
the Tribe would refer alleged criminal violations of the Act that 
exceed the Tribe's criminal authority to EPA Region 8 if the EPA 
approves the Tribe for CAA criminal enforcement authorities in the 
future. Neither the proposed action nor the MOA prevent the Tribe from 
pursuing criminal enforcement actions within the Tribe's criminal 
authority under tribal law.

D. When did the Northern Cheyenne Tribe adopt the TIP under Tribal Law?

    On December 7, 2016, the NCCAA was approved by the Tribal Council 
as Tribal Ordinance No. DOI-008 (2017). On September 12, 2017, the 
Tribal Council passed Resolution No. DOI-201 (2017) authorizing 
submission of the NCCAA to the EPA as a TIP under the Act. The Tribe's 
staff completed the public notification process for a TIP required by 
40 CFR 51.102 and received no public comments and no requests for a 
public hearing regarding the TIP.\3\ In addition, the Tribe has posted 
the NCCAA on the Tribe's website.
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    \3\ Northern Cheyenne TAS/TIP Application, Resolution No. DOI-
201(2017), section Z, page 2.
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E. What is included in the Northern Cheyenne Tribe's TIP submittal?

    The Tribe's TIP submittal includes ambient air quality standards 
for CO, lead, NO2, O3, PM10, 
PM2.5, and SO2, and provisions for an open 
burning permit program, enforcement and appeals, and emergency 
authority.
1. Ambient Air Quality Standards
    The EPA has established primary and secondary NAAQS for six air 
pollutants: CO, lead, NO2, O3, 
PM10/PM2.5, and SO2. See https://www.epa.gov/criteria-air-pollutants/naaqs-table. Most pollutants 
regulated by the NAAQS have two limits. The ``primary'' standard is 
designed to protect the public--including children, people with asthma, 
and the elderly--from health risks. The ``secondary'' standard is to 
prevent unacceptable effects on the public welfare, e.g., damage to 
crops and vegetation, buildings and property, and ecosystems.
    The Tribe established primary and secondary air quality standards, 
which will remain consistent with any future EPA updates to the NAAQS, 
for the following air pollutants:

----------------------------------------------------------------------------------------------------------------
           Pollutant            Primary/secondary     Averaging time             Level                Form
----------------------------------------------------------------------------------------------------------------
Carbon Monoxide (CO)..........  primary..........  8 hours.............  9 ppm...............  Not to be
                                                   1-hour..............  35 ppm..............   exceeded more
                                                                                                than once per
                                                                                                year.
Lead (Pb).....................  primary and        Rolling 3 month       0.15 [micro]g/m\3\..  Not to be
                                 secondary.         period.                                     exceeded.
Nitrogen Dioxide (NO2)........  primary..........  1-hour..............  100 ppb.............  98th percentile
                                                                                                of 1-hour daily
                                                                                                maximum
                                                                                                concentrations,
                                                                                                averaged over 3
                                                                                                years.
                                primary and        1 year..............  53 ppb..............  Annual Mean.
                                 secondary.
Ozone (O3)....................  primary and        8 hours.............  0.070 ppm...........  Annual fourth-
                                 secondary.                                                     highest daily
                                                                                                maximum 8-hour
                                                                                                concentration,
                                                                                                avereaged over 3
                                                                                                years.
Particle Pollution (PM):
    PM2.5.....................  primary..........  1 year..............  12.0 [micro]g/m3....  Annual mean,
                                                                                                averaged over 3
                                                                                                years.
                                secondary........  1 year..............  15.0 [micro]g/m\3\..  Annual mean,
                                                                                                averaged over 3
                                                                                                years.
                                primary and        24 hours............  35 [micro]g/m\3\....  98th percentile,
                                 secondary.                                                     averaged over 3
                                                                                                years.
    PM10......................  primary and        24 hours............  150 [micro]g/m3.....  Not to be
                                 secondary.                                                     exceeded more
                                                                                                than once per
                                                                                                year on average
                                                                                                over 3 years.
Sulfur Dioxide (SO2)..........  primary..........  1-hour..............  75 ppb..............  99th percentile
                                                                                                of 1-hour daily
                                                                                                maximum
                                                                                                concentrations,
                                                                                                averaged over 3
                                                                                                years.
                                secondary........  3 hours.............  0.5 ppm.............  Not to be
                                                                                                exceeded more
                                                                                                than once per
                                                                                                year.
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[[Page 11677]]

    Accordingly, the EPA proposes to approve the Tribe's standards for 
the pollutants listed in the table above, which are the same as the 
NAAQS, for incorporation into the TIP.
2. Open Burning Program
    The proposed TIP establishes a general prohibition on open burning 
on the Reservation (see NCCAA Section 5.1), unless otherwise exempted 
under NCCAA Section 5.2 (i.e., open burning for cultural, traditional, 
or spiritual purposes or open burning activity that is less than four 
feet in diameter and less than three feet in height) or is permitted 
under NCCAA Section 5.7. The Tribe reserves the right to issue burn 
bans, per NCCAA Section 5.6, and prohibits the burning of listed 
materials in NCCAA Section 5.4 (unless authorized for training fires).
    Permitting procedures for open burning are specified in NCCAA 
Section 5.7. Permits are required for open burning activity on the 
Reservation that is four or more feet in diameter or three or more feet 
in height (unless exempted under NCCAA Section 5.2) prior to commencing 
open burning activities. Permits may be issued only if the Air Quality 
Administrator determines, in consultation with the appropriate Bureau 
of Indian Affairs, Northern Cheyenne Agency personnel, that the 
proposed open burning activity will not cause an adverse impact on 
Reservation air quality or otherwise endanger public health or welfare 
on the Reservation. Permits are also required to contain certain 
minimum permit conditions, including setback requirements, equipment 
and supply requirements, wind speed limitations, and extinguishment 
conditions, etc. Violations of any applicable permit terms or 
conditions are considered violations of the NCCAA. For all permitted 
open burning activities, the permittee must notify the Air Quality 
Administrator at least two working days prior to commencing an open 
burning activity and must notify Northern Cheyenne Fire Protection not 
less than one hour prior to commencing the open burning activity 
(during regular business hours). Section 5.5 of the NCCAA specifies, 
however, that no person shall commence or continue an open burning 
activity within the Reservation that is determined by the Director of 
the Tribe's DEPNR, in consultation with the Air Quality Administrator, 
to cause or contribute to an exceedance of any Northern Cheyenne 
Ambient Air Quality Standard. The EPA is proposing to approve the 
conditions and procedures the Tribe has established for its open 
burning permitting program.
3. Enforcement
    Section 3 of the proposed TIP covers civil enforcement and appeals. 
Under the TIP, the Tribe's Air Quality Administrator can issue 
compliance orders for TIP violations. A compliance order can include 
civil penalties up to $5,000 per day for each violation and an 
assessment of costs incurred by DEPNR. The Air Quality Administrator 
can file an action in Northern Cheyenne Tribal Court pursuant to the 
Northern Cheyenne Rules of Civil Procedure to enforce a penalty order 
or to seek preliminary injunctive relief against any person who is 
suspected to have violated the TIP or a compliance order.
    Alleged violators can challenge compliance orders by petitioning 
the DEPNR Director for administrative review within 30 days of 
receiving the order. The Director shall promptly review petitions for 
administrative review and issue a written decision that upholds, 
vacates, or modifies the order. Alleged violators can challenge a 
decision by the Director by filing an action in Northern Cheyenne 
Tribal Court pursuant to the Northern Cheyenne Rules of Civil 
Procedure. The Tribal Court shall uphold any decision by the Director 
unless it is arbitrary and capricious or contrary to law.
    The EPA finds the Tribe has adequately established an enforcement 
mechanism to carry out its regulations, and the EPA proposes to approve 
it.

VI. What EPA action is being taken today?

    The EPA is proposing approval of the Tribe's proposed TIP, which 
contains programs to address ambient air quality standards for the 
NAAQS pollutants, an open burning program, and enforcement provisions. 
The public docket contains the Tribe's proposed TIP, TAS eligibility 
determination, and enforcement MOA with the EPA.

VII. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
in an EPA final rule that includes incorporation by reference. In 
accordance with the requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the TIP amendments described in Section VI of 
this preamble. The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov (refer to 
docket EPA-R08-OAR-2020-0742).

VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP or 
TIP submission that complies with the provisions of the Act and 
applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
In reviewing TIP submissions, the EPA's role is to approve tribal 
choices, provided that they meet the criteria of the CAA. Accordingly, 
this proposed action merely proposes to approve tribal law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by tribal law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because this action is not significant under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    Executive Order 13175, entitled ``Consultation and Coordination 
with

[[Page 11678]]

Indian Tribal Governments'' (65 FR 67249, November 9, 2000), requires 
the 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.'' The EPA has concluded that 
this proposed rule will have tribal implications in that it will have 
substantial direct effects on the Northern Cheyenne Tribe. However, it 
will neither impose substantial direct compliance costs on tribal 
governments nor preempt tribal law. The EPA is proposing to approve the 
TIP at the request of the Tribe. Tribal law will not be preempted as 
the Tribe has already incorporated the TIP into Tribal law on December 
7, 2016. The Tribe has applied for, and fully supports, the proposed 
approval of the TIP. If it is approved, the TIP will become federally 
enforceable.

List of Subjects in 40 CFR Part 49

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Indians, Indians--
law, Indians--tribal government, Intergovernmental relations, Reporting 
and recordkeeping requirements.

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

    Dated: February 17, 2021.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2021-03826 Filed 2-25-21; 8:45 am]
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