Approval and Promulgation of the Northern Cheyenne Tribe's Tribal Implementation Plan; Northern Cheyenne Tribe; Open Burning Permit Program and Maintenance of the National Ambient Air Quality Standards, 7718-7722 [2022-02724]
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Federal Register / Vol. 87, No. 28 / Thursday, February 10, 2022 / Rules and Regulations
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manning. An OCMI may require
manning of vessel FOFs under 46 U.S.C.
3301 and 3306 and regulations
promulgated in 46 CFR, chapter I,
subchapter B, part 15—Manning
Requirements.
Non-vessel FOFs. OCSLA does not
prescribe particular manning
requirements with the exception of 43
U.S.C. 1356, which imposes U.S.
citizenship requirements to units that
conduct activities under OCSLA
jurisdiction. For FOFs that are not
vessels, OCMI manning authority is
limited to the regulations promulgated
under 33 CFR chapter I, subchapter N—
Outer Continental Shelf Activities,
which is limited to a Person In Charge.
In association with this clarification
of requirements, the Coast Guard is
canceling: USCG District 8 Policy Letter
08–2001, Licensing Requirements for
personnel on Non-Self-Propelled
Floating OCS Facilities.
4. Credentialing of Personnel Serving on
FOFs
The Coast Guard is announcing the
availability of CG–MMC Policy Letter
01–22, Merchant Mariner Credential
Endorsements for Service on Floating
Outer continental Shelf (OCS) Facilities.
This letter cancels Eighth District (D8)
Policy Letter 08–2001, Licensing
Requirements for Personnel on Non-Self
Propelled Floating Outer Continental
Shelf (OCS) Facilities, and outlines the
new credentialing policies concerning
personnel serving on FOFs.4
Effective 30 days from the issuance of
CG–MMC Policy Letter 01–22, the Coast
Guard will no longer issue original
MMC officer endorsements that are
restricted to service on specific types of
FOFs, referred to as Floating Offshore
Instillations (FOI) in endorsements. This
applies to the following endorsements:
• Offshore Installation Manager
(Active Ballast FOI);
• Offshore Installation Manager
(Passive Ballast FOI);
• Barge Supervisor (Active Ballast
FOI);
• Barge Supervisor (Passive Ballast
FOI);
• Ballast Control Operator (Active
Ballast FOI); and
• Ballast Control Operator (Passive
Ballast FOI).
The Coast Guard will continue to
issue the following original
endorsements to mariners meeting
applicable service and training
requirements specified in 46 CFR part
11:
4 D8 Policy Letter 08–2001 is available at https://
www.dco.uscg.mil/Portals/9/OCSNCOE/References/
Policy-Letters/D8/D8-PL-08-2001
.pdf?ver=XemXFtSnbUCVYl0M1brmIw%3d%3d.
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• Offshore Installation Manager (OIM)
[46 CFR 11.470]:
Æ OIM Unrestricted;
Æ OIM Surface Units on Location;
Æ OIM Surface Units Underway;
Æ OIM Bottom Bearing Units on
Location; and
Æ OIM Bottom Bearing Units
Underway;
• Barge Supervisor (without
restriction to specific MODU or FOF
types) [46 CFR 11.472]; and
• Ballast Control Operator (without
restriction to specific MODU or FOF
types) [46 CFR 11.474].
There are currently 47 mariners who
hold one or more of the endorsements
listed above. Considering that some
FOFs may be found to be vessels, not
allowing these endorsements could
result in taking something of present or
potential value from the mariners who
hold them.5 Accordingly, the Coast
Guard will continue to renew the
endorsements listed above.
Mariners who served aboard FOFs
that have been determined to not be
vessels will need to renew their MMCs
under provisions in 46 CFR 10.227(e)
that are applicable to mariners who do
not have evidence of at least one year
of service during the past five years.
Mariners who served on FOFs found to
be vessels may use their service to
renew their endorsements under 46 CFR
10.227(e)(1).
The Coast Guard can only credit
seagoing service for qualifying for MMC
endorsements if it was obtained on a
vessel.6 Accordingly, service on FOFs
that are not vessels will not be accepted
as service for qualifying for an original
or raise of grade of an MMC
endorsement. Service on FOFs that are
not vessels may only be accepted if it is
found to be ‘‘closely related service’’ as
specified in 46 CFR 10.232(g) to renew
an MMC.
The Coast Guard will discontinue
approving stability and ballast control
courses and courses that substitute for a
Coast Guard administered examination
that are valid only for the FOF
endorsements noted in the second
paragraph of section four above. These
approved courses will not be renewed
upon expiration. If a stability course or
in lieu of examination course is
approved for both an endorsement being
discontinued and one or more of the
endorsements described in 46 CFR
11.470, 11.472, or 11.474 the course
5 The Coast Guard does not anticipate any
currently operating FOFs will be determined to be
a vessel. But, modifications to a currently operating
unit or a new unit that comes on line in the future
could be classified as a vessel.
6 46 CFR 10.107 (definition of ‘‘seagoing
service’’.)
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approval will be amended to omit
meeting requirements for the FOF
endorsements noted above.
In addition to being available along
with other Coast Guard guidance
documents at https://www.uscg.mil/
guidance, a complete copy of CG–MMC
Policy Letter 01–22, Merchant Mariner
Credential Endorsements for Service on
Floating Outer Continental Shelf (OCS)
Facilities, is available in the docket at
https://www.regulations.gov and also at
https://www.dco.uscg.mil/OurOrganization/Assistant-Commandantfor-Prevention-Policy-CG-5P/
Commercial-Regulations-standards-CG5PS/Office-of-Merchant-MarinerCredentialing/CG-MMC-2/CG-MMC-2New-Policies/.
Dated: February 4, 2022.
J.G. Lantz,
Director of Commercial Regulations and
Standards.
[FR Doc. 2022–02707 Filed 2–9–22; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 49
[EPA–R08–OAR–2020–0742; FRL–9082–02–
R8]
Approval and Promulgation of the
Northern Cheyenne Tribe’s Tribal
Implementation Plan; Northern
Cheyenne Tribe; Open Burning Permit
Program and Maintenance of the
National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is approving a Tribal
Implementation Plan (TIP) submitted by
the Northern Cheyenne Tribe (Tribe) on
September 25, 2017, as described in our
February 26, 2021 proposal. The TIP
includes ambient air quality standards
and provisions for an open burning
permit program, enforcement and
appeals, and emergency authority.
These provisions establish a base TIP
that is suitable for the Northern
Cheyenne Indian Reservation and four
tribal trust parcels at issue
(Reservation), is within the Tribe’s
regulatory capacities, and meets all
applicable minimum requirements of
the Clean Air Act (CAA or Act) and EPA
regulations. The effect of this action is
to make the approved TIP federally
enforceable under the CAA and to
further protect air quality on the
Reservation.
SUMMARY:
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This final rule is effective March
14, 2022. The incorporation by reference
of certain publications listed in the rule
is approved by the Director of the
Federal Register as of February 10, 2022.
ADDRESSES: EPA has established a
docket for this action under EPA–R08–
OAR–2020–0742. Generally, documents
in the docket for this action are
available electronically at https://
www.regulations.gov or in hard copy at
EPA Region 8, 1595 Wynkoop Street,
Denver, Colorado. While all documents
in the docket are listed at https://
www.regulations.gov, some information
may be publicly available only at the
hard copy location (e.g., copyrighted
material, large maps, multi-volume
reports) and some may not be available
in either location (e.g., confidential
business information (CBI)). To inspect
the hard copy materials, please schedule
an appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Kyle
Olson, Air and Radiation Division,
Environmental Protection Agency,
Region 8 Office, Mailcode 8ARD–TRM,
1595 Wynkoop Street, Denver, CO
80202–1129, telephone number: (303)
312–6002, email address: olson.kyle@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, the terms
‘‘we’’, ‘‘us’’, and ‘‘our’’ refer to EPA.
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DATES:
I. Summary of the Proposed Action
The Tribe’s Reservation is located in
southeastern Montana and is adjacent to
the Crow Indian Reservation and the
State of Wyoming. On February 26,
2021, EPA proposed to approve a TIP
submitted by the Tribe on September
27, 2017, as described in the proposal.1
The TIP includes ambient air quality
standards and provisions for an open
burning permit program, enforcement
and appeals, and emergency authority.
The TIP is a regulatory program
comprised of the Northern Cheyenne
Clean Air Act (NCCAA). We proposed to
approve the NCCAA under sections 110
and 301 of the CAA, and the relevant
implementing regulations, as discussed
in this document and in our February
26, 2021 proposal. These provisions
establish a base TIP that is suitable for
the Reservation, is within the Tribe’s
regulatory capacities, and meets all
applicable minimum requirements of
the CAA, the Tribal Authority Rule in
40 CFR part 49 (TAR), and other
applicable CAA regulations.
For a more detailed description of the
TIP, our evaluation of the TIP and
1 86
16:22 Feb 09, 2022
II. EPA’s Response to Comments
Our February 26, 2021 proposed rule
provided for a 30-day comment period,
which ended on March 29, 2021. We
received nine public comment letters,
each of which can be found in the
docket for this action. Seven comments
expressed general support for our
proposed action and did not otherwise
raise material issues that necessitate
response. Here, we summarize and
respond to significant comments.
Commenter 0007: The commenter
offered support for approval of the
Northern Cheyenne TIP and support for
implementation plans generally. In
particular, the commenter described
TIPs as positive for the tribes and an
indication that enforcement of TIPs will
be successful and thorough. The
commenter also stated that exposure to
dangerous air pollution is dwindling,
which can be attributed, in no small
part, to implementation plans. The
commenter stated that regulating air
pollution within the borders of the
Reservation is an important step to
making the country more proactive
against climate change. The commenter
further summarized other supportive
comments.
Nevertheless, the commenter stated
that the industrial and manufacturing
power plants that surround the
Reservation have a major impact on the
air quality of the Reservation, which is
unfair to those who live on the
Reservation but are not part of these
industries. The commenter also
identified ‘‘drawbacks’’ of TIPs—that
TIPs focus on higher levels of air
pollution as opposed to other smaller
problems, and that TIPs require a
lengthy administrative process, which
does not lead to fast action to reverse
the effects of climate change.
Response: We appreciate the
commenter’s support for the approval of
the Northern Cheyenne TIP and general
support for the regulation of air
pollution through TIPs. The
administrative process for TIP approval
is governed by CAA sections 110 and
301 and corresponding regulations.2 We
explain elsewhere in this preamble that
TIPs are not required to address each
element under CAA section 110, but
may instead include elements to address
the specific air quality needs that a tribe
has the capacity to manage. The
2 See, for example, 40 CFR part 51, appendix V,
and 40 CFR part 49, subpart A.
FR 11674 (Feb. 26, 2021).
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supplemental information, and our
rationale for our proposed action, please
see the February 26, 2021 proposed rule,
86 FR 11674, which can be found in the
docket for this action.
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commenter has not provided enough
information regarding smaller air
pollution problems that the commenter
believes should be addressed in TIPs for
us to respond further on that point.
Additionally, while we understand
and appreciate the commenter’s
concerns with respect to climate change
and agree that climate change is an
important environmental problem, the
purpose of this action is not to address
the problem of climate change, but
rather to approve the Tribe’s plan to
regulate certain air pollutants emitted
by open burning.3 Thus, consideration
of climate change is outside the scope
of our action. Likewise, the commenter’s
concerns regarding sources located
outside the Reservation are also outside
the scope of the action. The TIP applies
within the exterior boundaries of the
Reservation only. The Tribe is not
required to address pollution from
outside the Reservation in its submittal
and EPA’s task is to evaluate the
program elements the Tribe has
submitted. The commenter’s concern
with the administrative process for
developing TIPs is also outside the
scope of this action. We note that the
process of having tribes decide when
and how to develop TIPs gives tribes the
authority over how to best protect air
quality in Indian country, and the
Northern Cheyenne Tribe fully supports
approval of the TIP here.
Commenter 0009: The commenter
offered support for the primary and
secondary air quality standards
established in the TIP, which are the
same as EPA’s national ambient air
quality standards (NAAQS). However,
the commenter stated that the TIP did
not include ‘‘any protocols the Northern
Cheyenne Tribe plans to implement to
reach attainment.’’ 4 The commenter
further asserted that CAA section
110(a)(2) requires that TIPs include
control measures, means or techniques,
and a monitoring program by which the
Tribe will attain the standards, and that
the TIP lacks these mechanisms.
Response: As an initial matter, the TIP
does include measures to improve air
quality, including, significantly, an
3 86
FR 11675.
0009 at page 1. The commenter cites
CAA section 107, but that provision is not at issue
in this rulemaking. As stated in the preamble to the
proposed rule, EPA is taking this action pursuant
to CAA sections 110(o), 110(k)(3), and 301(d). CAA
section 110(o) requires that EPA review TIPs in
accordance with CAA section 110 except as
otherwise provided by regulation or CAA section
301(d)(2). Accordingly, we have reviewed the TIP
under CAA section 110 as applicable to TIPs. See
40 CFR 49.9(h).
4 Comment
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open burning permit program.5
However, the commenter is correct that
the TIP does not include all elements
listed in CAA section 110 for the
implementation, maintenance, and
enforcement of the air quality standards.
Under the TAR, eligible Indian tribes
have the flexibility to include in a TIP
only those implementation plan
elements that address their specific air
quality needs and that they have the
capacity to manage. Under this modular
approach, the TIP elements that the
tribe adopts must be ‘‘reasonably
severable’’ from the package of elements
that can be included in a whole TIP.6 As
provided in the TAR, ‘‘reasonably
severable’’ means that the parts or
elements selected for the TIP are not
integrally related to parts not included
in the TIP, and are consistent with
applicable CAA and regulatory
requirements.7 Thus, TIPs are
significantly different than state
implementation plans because, while
the Act requires states to prepare an
implementation plan that meets all of
the requirements of CAA section 110, an
Indian tribe may adopt TIP provisions
that address only some elements of CAA
section 110.8
EPA retains its general authority to
directly implement CAA requirements
in Indian country as necessary or
appropriate to protect tribal air
resources.9 Thus, where a tribe chooses
not to adopt a CAA program or adopts
only a partial program, EPA may
exercise its authority to issue such
regulations as are necessary or
appropriate to protect tribal air
resources. This type of joint
management allows tribes to focus on
their specific air quality needs while
ensuring adequate protection of tribal
air resources.
At this time, the Northern Cheyenne
Tribe opted to include in its TIP certain
limited measures—an open burning
permit program and related enforcement
authority. This program and
enforcement authority are severable
from other CAA program elements
5 In addition, contrary to the commenter’s
assumption about the lack of a monitoring program,
the Tribe has, for decades, operated an air quality
monitoring program. Northern Cheyenne Tribe’s
Application for Treatment as a State Under the
Clean Air Act (Northern Cheyenne TAS/TIP
Application), September 20, 2017, at 6–7.
6 40 CFR 49.7(c).
7 Id.
8 Id. See also 42 U.S.C. 7410(o) (providing that
EPA reviews TIPs in accordance with CAA section
110, except as provided by regulations under CAA
section 301(d)(2), including 40 CFR 49.7(c)).
9 See 42 U.S.C. 7601(a), (d)(4); 40 CFR 49.11; 59
FR 43956, 43958–61 (August 25, 1994) (proposed
TAR preamble explaining EPA’s CAA authorities in
Indian country); 63 FR 7254, 7262–64 (Feb. 12,
1998) (final TAR preamble).
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because they do not depend on the
inclusion of and are not integrally
related to any other program elements.
Additionally, as discussed further
below, EPA has reviewed the open
burning permit program and concluded
that it supports the implementation,
maintenance, and enforcement of the air
quality standards. The open burning
program is designed, in part, to control
particulate matter emissions. Moreover,
EPA has reviewed the enforcement
authority included in the TIP and
determined that it is sufficient to ensure
enforcement of the NCCAA. Likewise,
through the Tribe’s treatment in a
similar manner as a state (TAS)
application, the Tribe has demonstrated
that it is capable of implementing the
open burning permit program and
enforcement authorities.10
Commenter 0009: The commenter
also criticized the TIP’s open burning
program as inefficient and unduly
burdensome. In particular, the
commenter raised concerns that
requiring a permittee to apply for a
permit with the Tribe’s Air Quality
Administrator and wait for consultation
with the Bureau of Indian Affairs and
other agency personnel is inefficient.
The commenter also stated that the
burden placed on the Air Quality
Administrator and Northern Cheyenne
Tribal Court for ‘‘minute violations’’ is
impractical and unnecessary. The
commenter also stated that the size of
the penalty for violations is too hefty,
claiming that violations of the open
burning program would subject
individuals ‘‘to at least a five thousand
dollar fine.’’ Furthermore, the
commenter stated that there is no basis
in the proposed rule for the finding that
there is no information collection
burden under the Paperwork Reduction
Act. Finally, the commenter stated that
the TIP lacks any statistics proving that
the open burning that is the subject of
the permitting program is any different
from other burning not covered by the
program. The commenter recommended
that the Northern Cheyenne Tribe
reconsider the open burn limits and
exceptions, and initiate a simpler
reporting and filing program, such as
on-site permitting or virtual permitting.
Response: Under the TIP process,
tribes decide how to structure
permitting and enforcement programs
submitted for approval in a TIP. This
gives tribes the flexibility to balance the
protection of tribal air quality and the
10 Letter dated June 22, 2020, from Gregory
Sopkin, Region 8 Regional Administrator, to
President Rynalea Whiteman Pena, Northern
Cheyenne Tribe, Subject: ‘‘Approval of Northern
Cheyenne Tribe Application for Treatment in a
Similar Manner under the Clean Air Act,’’ at 8–9.
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administrative process involved in
doing so. EPA supports tribal decisions
on how best to protect tribal air quality,
and the CAA does not condition a TIP’s
approval on its administrative efficiency
or require that a tribe justify open
burning limitations with statistics. EPA
supports tribes implementing open
burning permit programs to support air
quality on reservations.11
Here, the Tribe considered the level of
administrative process to include in the
TIP. EPA disagrees that the Northern
Cheyenne Tribe’s process is inefficient
or will be problematic in practice. The
Tribe indicates that it is already
successfully implementing this process
under tribal law,12 and the program is
similar to open burning programs that
other tribes administer as part of
approved TIPs and Federal
Implementation Plans.13 Concerning the
commenter’s assertion that violations of
the open burning program would lead to
excessive penalties, it is not accurate
that a violator will be subject to at least
a five thousand dollar fine. The NCCAA
authorizes the Air Quality
Administrator to fine violators ‘‘up to
$5,000 per day for each violation[,]’’ 14
and the Air Quality Administrator has
the enforcement discretion to assess
penalties below that maximum. EPA
does not agree that this TIP should be
disapproved because of concerns about
the level of possible fines for violations.
EPA disagrees with the commenter’s
assertion that EPA’s approval of the TIP
will result in a ‘‘burden placed on the
collection of information under the
Paperwork Reduction Act.’’ 15 Broadly,
the Paperwork Reduction Act provides
for certain procedures relating to the
‘‘collection of information’’ by or for an
agency, generally limited to identical
questions posed to or identical reporting
or recordkeeping requirements imposed
on ten or more persons.16 The
information-related requirements of the
NCCAA already exist as a matter of
tribal law. EPA is not using identical
11 See, e.g., 76 FR 69618 (December 10, 2007)
(EPA approval of the St. Regis Mohawk Tribe’s TIP);
79 FR 69763 (November 24, 2014) (EPA approval
of the Swinomish Indian Tribal Community’s TIP);
EPA, ‘‘Developing a Tribal Implementation Plan,’’
September 2018, pages 26–27, available at https://
www.epa.gov/sites/default/files/2018-09/
documents/developing_a_tribal_implementation_
plan_sept._2018_1.pdf.
12 Northern Cheyenne TAS/TIP Application at 7.
13 Precedent for tribes to use minor source
permitting programs to protect air quality includes
the Gila River Open Burning Minor New Source
Review Permit Program (75 FR 48880 (August 12,
2010) and the Nez Perce’s Agricultural Open
Burning Permit Program (70 FR 18074 (April 8,
2005)).
14 NCCAA section 3.2(1) (emphasis added).
15 Comment 0009 at page 3.
16 See 44 U.S.C. 3502(3)(A).
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questions to collect information from or
imposing identical reporting or
recordkeeping requirements on 10 or
more persons as part of this action. This
action does not impose information
collection burdens prohibited by or
contrary to the Paperwork Reduction
Act.
III. Final Action
Under CAA sections 110(o), 110(k)(3)
and 301(d), and the TAR, EPA is
approving the TIP submitted by the
Tribe on September 25, 2017, as
described in our February 26, 2021
proposal (86 FR 11674). For the reasons
set forth in this document and in the
February 26, 2021 proposed rule, we
conclude that the TIP meets the
applicable requirements of the CAA and
EPA’s implementing regulations.
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IV. Incorporation by Reference
In this document, the EPA is
finalizing regulatory text that includes
incorporation by reference. In
accordance with the requirements of 1
CFR 51.5, the EPA is finalizing the
incorporation by reference the TIP
amendments described in section III of
this preamble. The EPA has made, and
will continue to make, these materials
generally available through
www.regulations.gov and at the EPA
Region 8 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
Therefore, these materials have been
approved by the EPA for inclusion in
the TIP, have been incorporated by
reference by the EPA into that plan, and
are fully federally enforceable under
section 110 and 113 of the CAA as of the
effective date of the final rulemaking of
the EPA’s approval.
V. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this 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 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 action approves laws of
an eligible Indian tribe as meeting
Federal requirements and imposes no
additional requirements beyond those
imposed by Tribal law. Accordingly, the
Administrator certifies that this 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
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16:22 Feb 09, 2022
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rule approves pre-existing requirements
under Tribal law and does not impose
any additional enforceable duty beyond
that required by Tribal 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’’ (59 FR
22951, November 9, 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.’’ EPA has concluded that
this rule will have tribal implications in
that it will have substantial direct
effects on the Tribe. However, it will
neither impose substantial direct
compliance costs on tribal governments,
nor preempt tribal law. EPA is
approving the Tribe’s 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
approval of the TIP. This approval
makes the TIP federally enforceable.
EPA worked and consulted with
officials of the Tribe early in the process
of developing these regulations. During
the TAS eligibility process, the Tribe
and EPA worked together to ensure that
the appropriate information was
submitted to EPA. The Tribe and EPA
also worked together throughout the
process of development and Tribal
adoption of the TIP. The Tribe and EPA
also entered into a criminal enforcement
Memorandum of Agreement (MOA)
during the TAS process, per 40 CFR
49.8.
This action 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 action approves
Tribal rules implementing a TIP over
areas within the exterior boundaries of
the Tribe’s Reservation, and does not
alter the relationship or the distribution
of power and responsibilities
established in the CAA.
Executive Order 12898 establishes
Federal executive policy on
environmental justice.17 Its main
provision directs Federal agencies, to
the greatest extent practicable and
17 59
PO 00000
FR 7629 (February 16, 1994).
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7721
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. EPA’s
objective in approving the TIP is to
support the Tribe’s efforts to protect the
communities on the Reservation, where
open burning operations and seasonal
wildfires have been shown to contribute
to exceedances of the particulate matter
NAAQS. The impacts of this final rule
are expected to be beneficial, rather than
adverse, and its benefits are expected to
accrue to communities on the
Reservation.
In reviewing TIP submissions, EPA’s
role is to approve an eligible tribe’s
submission, provided that it meets the
criteria of the CAA. In this context, in
the absence of a prior existing
requirement for the tribe to use
voluntary consensus standards (VCS),
EPA has no authority to disapprove a
TIP submission for failure to use VCS.
It would thus be inconsistent with
applicable law for EPA, when it reviews
a TIP submission, to use VCS in place
of a TIP provision that otherwise
satisfies the requirements of the CAA.
Thus, the requirements of section 12(d)
of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272) do not apply. This 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.). This action 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.
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 the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action 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 rule 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).
E:\FR\FM\10FER1.SGM
10FER1
7722
Federal Register / Vol. 87, No. 28 / Thursday, February 10, 2022 / Rules and Regulations
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by April 11, 2022. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements (see section
307(b)(2)).
PART 49—INDIAN COUNTRY: AIR
QUALITY PLANNING AND
MANAGEMENT
1. The authority citation for part 49
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
Subpart K—Implementation Plans for
Tribes—Region VIII
2. Add an undesignated center
heading and § 49.4200 to read as
follows:
■
Implementation Plan for the Northern
Cheyenne Tribe
§ 49.4200
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.
Dated: February 4, 2022.
KC Becker,
Regional Administrator, Region 8.
Part 49 of chapter I, title 40 of the
Code of Federal Regulations is amended
as follows:
Identification of plan.
(a) Purpose and scope. This section
contains the approved implementation
plan for the Northern Cheyenne Tribe,
submitted to EPA on September 25,
2017. The plan consists of programs and
procedures that cover general and
emergency authorities, ambient air
quality standards, permitting
requirements for open burning, general
prohibitory rules, open burning
limitations, enforcement authorities,
and procedures for administrative
appeals and judicial review in Tribal
court.
(b) Incorporation by reference. (1)
Material listed in paragraph (c) of this
section was approved for incorporation
by reference by the Director of the
Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51.
Material is incorporated as it exists on
the date of the approval, and notice of
any change in the material will be
published in the Federal Register.
(2) EPA Region 8 certifies that the
rules/regulations provided by EPA in
the TIP compilation at the addresses in
paragraph (b)(3) of this section are an
exact duplicate of the officially
promulgated tribal rules/regulations
which have been approved as part of the
Tribal Implementation Plan.
(3) Copies of the materials
incorporated by reference may be
inspected at the Region 8 Office of EPA
at 1595 Wynkoop Street, Denver, CO
80202 or call 303–312–6002; the U.S.
Environmental Protection Agency, EPA
Docket Center (EPA/DC), Air and
Radiation Docket and Information
Center, MC 2822T, 1200 Pennsylvania
Avenue NW, Washington, DC 20460 or
call 202–566–1742; and the National
Archives and Records Administration.
For information on the availability of
this material at NARA, email
fr.inspection@nara.gov, or go to: https://
www.archives.gov/federal-register/cfr/
ibr-locations.html. Copies of the
Northern Cheyenne TIP regulations we
have approved are also available at
https://www.epa.gov/region8/air/
sip.html.
(c) EPA-approved regulations.
TABLE 1 TO PARAGRAPH (c)
Tribal citation
Title/subject
Tribal effective date
Northern Cheyenne Tribe, Northern Cheyenne Clean Air Act Tribal Implementation Plan.
Entirety ..............
December 20, 2016
[FR Doc. 2022–02724 Filed 2–9–22; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2021–0216; FRL–9168–02–
R10]
jspears on DSK121TN23PROD with RULES1
Air Plan Approval; AK; Incorporation
by Reference Updates and Permit
Program Revisions
Environmental Protection
Agency (EPA).
ACTION: Final rule.
The Environmental Protection
Agency (EPA) is approving revisions to
the Alaska State Implementation Plan
VerDate Sep<11>2014
16:22 Feb 09, 2022
Jkt 256001
February 10, 2022
(SIP) submitted on November 10, 2020.
The revisions update the adoption by
reference of certain Federal air
regulations and add a pre-approved
emission limit option that may be used
to permit diesel engine facilities, among
other changes. The EPA’s approval
makes the revisions federally
enforceable as part of the Alaska SIP.
This final rule is effective March
14, 2022.
DATES:
The EPA has established a
docket for this action under Docket ID
No. EPA–R10–OAR–2021–0216. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., Confidential Business
Information or other information the
disclosure of which is restricted by
ADDRESSES:
AGENCY:
SUMMARY:
EPA approval date
PO 00000
Frm 00044
Fmt 4700
Sfmt 4700
Explanations
The Tribal effective date is based on the date the Bureau of Indian Affairs (BIA) Superintendent of the
Northern Cheyenne Agency approved the Tribe’s Ordinance No. DOI–008 (2017) adopting the Northern
Cheyenne Clean Air Act.
statute. Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available at https://
www.regulations.gov, or please contact
the person listed in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT:
Kristin Hall, EPA Region 10, 1200 Sixth
Avenue (Suite 155), Seattle, WA 98101,
at (206) 553–6357, or hall.kristin@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we’’ or ‘‘our’’ is used, it is intended to
refer to the EPA.
E:\FR\FM\10FER1.SGM
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]]>Agencies
[Federal Register Volume 87, Number 28 (Thursday, February 10, 2022)]
[Rules and Regulations]
[Pages 7718-7722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02724]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-R08-OAR-2020-0742; FRL-9082-02-R8]
Approval and Promulgation of the Northern Cheyenne Tribe's Tribal
Implementation Plan; Northern Cheyenne Tribe; Open Burning Permit
Program and Maintenance of the National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a Tribal Implementation Plan (TIP) submitted
by the Northern Cheyenne Tribe (Tribe) on September 25, 2017, as
described in our February 26, 2021 proposal. The TIP includes ambient
air quality standards and provisions for an open burning permit
program, enforcement and appeals, and emergency authority. These
provisions establish a base TIP that is suitable for the Northern
Cheyenne Indian Reservation and four tribal trust parcels at issue
(Reservation), is within the Tribe's regulatory capacities, and meets
all applicable minimum requirements of the Clean Air Act (CAA or Act)
and EPA regulations. The effect of this action is to make the approved
TIP federally enforceable under the CAA and to further protect air
quality on the Reservation.
[[Page 7719]]
DATES: This final rule is effective March 14, 2022. The incorporation
by reference of certain publications listed in the rule is approved by
the Director of the Federal Register as of February 10, 2022.
ADDRESSES: EPA has established a docket for this action under EPA-R08-
OAR-2020-0742. Generally, documents in the docket for this action are
available electronically at https://www.regulations.gov or in hard copy
at EPA Region 8, 1595 Wynkoop Street, Denver, Colorado. While all
documents in the docket are listed at https://www.regulations.gov, some
information may be publicly available only at the hard copy location
(e.g., copyrighted material, large maps, multi-volume reports) and some
may not be available in either location (e.g., confidential business
information (CBI)). To inspect the hard copy materials, please schedule
an appointment during normal business hours with the contact listed in
the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Kyle Olson, Air and Radiation
Division, Environmental Protection Agency, Region 8 Office, Mailcode
8ARD-TRM, 1595 Wynkoop Street, Denver, CO 80202-1129, telephone number:
(303) 312-6002, email address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we'',
``us'', and ``our'' refer to EPA.
I. Summary of the Proposed Action
The Tribe's Reservation is located in southeastern Montana and is
adjacent to the Crow Indian Reservation and the State of Wyoming. On
February 26, 2021, EPA proposed to approve a TIP submitted by the Tribe
on September 27, 2017, as described in the proposal.\1\ The TIP
includes ambient air quality standards and provisions for an open
burning permit program, enforcement and appeals, and emergency
authority. The TIP is a regulatory program comprised of the Northern
Cheyenne Clean Air Act (NCCAA). We proposed to approve the NCCAA under
sections 110 and 301 of the CAA, and the relevant implementing
regulations, as discussed in this document and in our February 26, 2021
proposal. These provisions establish a base TIP that is suitable for
the Reservation, is within the Tribe's regulatory capacities, and meets
all applicable minimum requirements of the CAA, the Tribal Authority
Rule in 40 CFR part 49 (TAR), and other applicable CAA regulations.
---------------------------------------------------------------------------
\1\ 86 FR 11674 (Feb. 26, 2021).
---------------------------------------------------------------------------
For a more detailed description of the TIP, our evaluation of the
TIP and supplemental information, and our rationale for our proposed
action, please see the February 26, 2021 proposed rule, 86 FR 11674,
which can be found in the docket for this action.
II. EPA's Response to Comments
Our February 26, 2021 proposed rule provided for a 30-day comment
period, which ended on March 29, 2021. We received nine public comment
letters, each of which can be found in the docket for this action.
Seven comments expressed general support for our proposed action and
did not otherwise raise material issues that necessitate response.
Here, we summarize and respond to significant comments.
Commenter 0007: The commenter offered support for approval of the
Northern Cheyenne TIP and support for implementation plans generally.
In particular, the commenter described TIPs as positive for the tribes
and an indication that enforcement of TIPs will be successful and
thorough. The commenter also stated that exposure to dangerous air
pollution is dwindling, which can be attributed, in no small part, to
implementation plans. The commenter stated that regulating air
pollution within the borders of the Reservation is an important step to
making the country more proactive against climate change. The commenter
further summarized other supportive comments.
Nevertheless, the commenter stated that the industrial and
manufacturing power plants that surround the Reservation have a major
impact on the air quality of the Reservation, which is unfair to those
who live on the Reservation but are not part of these industries. The
commenter also identified ``drawbacks'' of TIPs--that TIPs focus on
higher levels of air pollution as opposed to other smaller problems,
and that TIPs require a lengthy administrative process, which does not
lead to fast action to reverse the effects of climate change.
Response: We appreciate the commenter's support for the approval of
the Northern Cheyenne TIP and general support for the regulation of air
pollution through TIPs. The administrative process for TIP approval is
governed by CAA sections 110 and 301 and corresponding regulations.\2\
We explain elsewhere in this preamble that TIPs are not required to
address each element under CAA section 110, but may instead include
elements to address the specific air quality needs that a tribe has the
capacity to manage. The commenter has not provided enough information
regarding smaller air pollution problems that the commenter believes
should be addressed in TIPs for us to respond further on that point.
---------------------------------------------------------------------------
\2\ See, for example, 40 CFR part 51, appendix V, and 40 CFR
part 49, subpart A.
---------------------------------------------------------------------------
Additionally, while we understand and appreciate the commenter's
concerns with respect to climate change and agree that climate change
is an important environmental problem, the purpose of this action is
not to address the problem of climate change, but rather to approve the
Tribe's plan to regulate certain air pollutants emitted by open
burning.\3\ Thus, consideration of climate change is outside the scope
of our action. Likewise, the commenter's concerns regarding sources
located outside the Reservation are also outside the scope of the
action. The TIP applies within the exterior boundaries of the
Reservation only. The Tribe is not required to address pollution from
outside the Reservation in its submittal and EPA's task is to evaluate
the program elements the Tribe has submitted. The commenter's concern
with the administrative process for developing TIPs is also outside the
scope of this action. We note that the process of having tribes decide
when and how to develop TIPs gives tribes the authority over how to
best protect air quality in Indian country, and the Northern Cheyenne
Tribe fully supports approval of the TIP here.
---------------------------------------------------------------------------
\3\ 86 FR 11675.
---------------------------------------------------------------------------
Commenter 0009: The commenter offered support for the primary and
secondary air quality standards established in the TIP, which are the
same as EPA's national ambient air quality standards (NAAQS). However,
the commenter stated that the TIP did not include ``any protocols the
Northern Cheyenne Tribe plans to implement to reach attainment.'' \4\
The commenter further asserted that CAA section 110(a)(2) requires that
TIPs include control measures, means or techniques, and a monitoring
program by which the Tribe will attain the standards, and that the TIP
lacks these mechanisms.
---------------------------------------------------------------------------
\4\ Comment 0009 at page 1. The commenter cites CAA section 107,
but that provision is not at issue in this rulemaking. As stated in
the preamble to the proposed rule, EPA is taking this action
pursuant to CAA sections 110(o), 110(k)(3), and 301(d). CAA section
110(o) requires that EPA review TIPs in accordance with CAA section
110 except as otherwise provided by regulation or CAA section
301(d)(2). Accordingly, we have reviewed the TIP under CAA section
110 as applicable to TIPs. See 40 CFR 49.9(h).
---------------------------------------------------------------------------
Response: As an initial matter, the TIP does include measures to
improve air quality, including, significantly, an
[[Page 7720]]
open burning permit program.\5\ However, the commenter is correct that
the TIP does not include all elements listed in CAA section 110 for the
implementation, maintenance, and enforcement of the air quality
standards. Under the TAR, eligible Indian tribes have the flexibility
to include in a TIP only those implementation plan elements that
address their specific air quality needs and that they have the
capacity to manage. Under this modular approach, the TIP elements that
the tribe adopts must be ``reasonably severable'' from the package of
elements that can be included in a whole TIP.\6\ As provided in the
TAR, ``reasonably severable'' means that the parts or elements selected
for the TIP are not integrally related to parts not included in the
TIP, and are consistent with applicable CAA and regulatory
requirements.\7\ Thus, TIPs are significantly different than state
implementation plans because, while the Act requires states to prepare
an implementation plan that meets all of the requirements of CAA
section 110, an Indian tribe may adopt TIP provisions that address only
some elements of CAA section 110.\8\
---------------------------------------------------------------------------
\5\ In addition, contrary to the commenter's assumption about
the lack of a monitoring program, the Tribe has, for decades,
operated an air quality monitoring program. Northern Cheyenne
Tribe's Application for Treatment as a State Under the Clean Air Act
(Northern Cheyenne TAS/TIP Application), September 20, 2017, at 6-7.
\6\ 40 CFR 49.7(c).
\7\ Id.
\8\ Id. See also 42 U.S.C. 7410(o) (providing that EPA reviews
TIPs in accordance with CAA section 110, except as provided by
regulations under CAA section 301(d)(2), including 40 CFR 49.7(c)).
---------------------------------------------------------------------------
EPA retains its general authority to directly implement CAA
requirements in Indian country as necessary or appropriate to protect
tribal air resources.\9\ Thus, where a tribe chooses not to adopt a CAA
program or adopts only a partial program, EPA may exercise its
authority to issue such regulations as are necessary or appropriate to
protect tribal air resources. This type of joint management allows
tribes to focus on their specific air quality needs while ensuring
adequate protection of tribal air resources.
---------------------------------------------------------------------------
\9\ See 42 U.S.C. 7601(a), (d)(4); 40 CFR 49.11; 59 FR 43956,
43958-61 (August 25, 1994) (proposed TAR preamble explaining EPA's
CAA authorities in Indian country); 63 FR 7254, 7262-64 (Feb. 12,
1998) (final TAR preamble).
---------------------------------------------------------------------------
At this time, the Northern Cheyenne Tribe opted to include in its
TIP certain limited measures--an open burning permit program and
related enforcement authority. This program and enforcement authority
are severable from other CAA program elements because they do not
depend on the inclusion of and are not integrally related to any other
program elements. Additionally, as discussed further below, EPA has
reviewed the open burning permit program and concluded that it supports
the implementation, maintenance, and enforcement of the air quality
standards. The open burning program is designed, in part, to control
particulate matter emissions. Moreover, EPA has reviewed the
enforcement authority included in the TIP and determined that it is
sufficient to ensure enforcement of the NCCAA. Likewise, through the
Tribe's treatment in a similar manner as a state (TAS) application, the
Tribe has demonstrated that it is capable of implementing the open
burning permit program and enforcement authorities.\10\
---------------------------------------------------------------------------
\10\ Letter dated June 22, 2020, from Gregory Sopkin, Region 8
Regional Administrator, to President Rynalea Whiteman Pena, Northern
Cheyenne Tribe, Subject: ``Approval of Northern Cheyenne Tribe
Application for Treatment in a Similar Manner under the Clean Air
Act,'' at 8-9.
---------------------------------------------------------------------------
Commenter 0009: The commenter also criticized the TIP's open
burning program as inefficient and unduly burdensome. In particular,
the commenter raised concerns that requiring a permittee to apply for a
permit with the Tribe's Air Quality Administrator and wait for
consultation with the Bureau of Indian Affairs and other agency
personnel is inefficient. The commenter also stated that the burden
placed on the Air Quality Administrator and Northern Cheyenne Tribal
Court for ``minute violations'' is impractical and unnecessary. The
commenter also stated that the size of the penalty for violations is
too hefty, claiming that violations of the open burning program would
subject individuals ``to at least a five thousand dollar fine.''
Furthermore, the commenter stated that there is no basis in the
proposed rule for the finding that there is no information collection
burden under the Paperwork Reduction Act. Finally, the commenter stated
that the TIP lacks any statistics proving that the open burning that is
the subject of the permitting program is any different from other
burning not covered by the program. The commenter recommended that the
Northern Cheyenne Tribe reconsider the open burn limits and exceptions,
and initiate a simpler reporting and filing program, such as on-site
permitting or virtual permitting.
Response: Under the TIP process, tribes decide how to structure
permitting and enforcement programs submitted for approval in a TIP.
This gives tribes the flexibility to balance the protection of tribal
air quality and the administrative process involved in doing so. EPA
supports tribal decisions on how best to protect tribal air quality,
and the CAA does not condition a TIP's approval on its administrative
efficiency or require that a tribe justify open burning limitations
with statistics. EPA supports tribes implementing open burning permit
programs to support air quality on reservations.\11\
---------------------------------------------------------------------------
\11\ See, e.g., 76 FR 69618 (December 10, 2007) (EPA approval of
the St. Regis Mohawk Tribe's TIP); 79 FR 69763 (November 24, 2014)
(EPA approval of the Swinomish Indian Tribal Community's TIP); EPA,
``Developing a Tribal Implementation Plan,'' September 2018, pages
26-27, available at https://www.epa.gov/sites/default/files/2018-09/documents/developing_a_tribal_implementation_plan_sept._2018_1.pdf.
---------------------------------------------------------------------------
Here, the Tribe considered the level of administrative process to
include in the TIP. EPA disagrees that the Northern Cheyenne Tribe's
process is inefficient or will be problematic in practice. The Tribe
indicates that it is already successfully implementing this process
under tribal law,\12\ and the program is similar to open burning
programs that other tribes administer as part of approved TIPs and
Federal Implementation Plans.\13\ Concerning the commenter's assertion
that violations of the open burning program would lead to excessive
penalties, it is not accurate that a violator will be subject to at
least a five thousand dollar fine. The NCCAA authorizes the Air Quality
Administrator to fine violators ``up to $5,000 per day for each
violation[,]'' \14\ and the Air Quality Administrator has the
enforcement discretion to assess penalties below that maximum. EPA does
not agree that this TIP should be disapproved because of concerns about
the level of possible fines for violations.
---------------------------------------------------------------------------
\12\ Northern Cheyenne TAS/TIP Application at 7.
\13\ Precedent for tribes to use minor source permitting
programs to protect air quality includes the Gila River Open Burning
Minor New Source Review Permit Program (75 FR 48880 (August 12,
2010) and the Nez Perce's Agricultural Open Burning Permit Program
(70 FR 18074 (April 8, 2005)).
\14\ NCCAA section 3.2(1) (emphasis added).
---------------------------------------------------------------------------
EPA disagrees with the commenter's assertion that EPA's approval of
the TIP will result in a ``burden placed on the collection of
information under the Paperwork Reduction Act.'' \15\ Broadly, the
Paperwork Reduction Act provides for certain procedures relating to the
``collection of information'' by or for an agency, generally limited to
identical questions posed to or identical reporting or recordkeeping
requirements imposed on ten or more persons.\16\ The information-
related requirements of the NCCAA already exist as a matter of tribal
law. EPA is not using identical
[[Page 7721]]
questions to collect information from or imposing identical reporting
or recordkeeping requirements on 10 or more persons as part of this
action. This action does not impose information collection burdens
prohibited by or contrary to the Paperwork Reduction Act.
---------------------------------------------------------------------------
\15\ Comment 0009 at page 3.
\16\ See 44 U.S.C. 3502(3)(A).
---------------------------------------------------------------------------
III. Final Action
Under CAA sections 110(o), 110(k)(3) and 301(d), and the TAR, EPA
is approving the TIP submitted by the Tribe on September 25, 2017, as
described in our February 26, 2021 proposal (86 FR 11674). For the
reasons set forth in this document and in the February 26, 2021
proposed rule, we conclude that the TIP meets the applicable
requirements of the CAA and EPA's implementing regulations.
IV. Incorporation by Reference
In this document, the EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with the
requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by
reference the TIP amendments described in section III of this preamble.
The EPA has made, and will continue to make, these materials generally
available through www.regulations.gov and at the EPA Region 8 Office
(please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section of this preamble for more information). Therefore,
these materials have been approved by the EPA for inclusion in the TIP,
have been incorporated by reference by the EPA into that plan, and are
fully federally enforceable under section 110 and 113 of the CAA as of
the effective date of the final rulemaking of the EPA's approval.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
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 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 action
approves laws of an eligible Indian tribe as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by Tribal law. Accordingly, the Administrator certifies that
this 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 approves pre-existing requirements
under Tribal law and does not impose any additional enforceable duty
beyond that required by Tribal 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'' (59 FR 22951, November 9, 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.'' EPA has concluded that this
rule will have tribal implications in that it will have substantial
direct effects on the Tribe. However, it will neither impose
substantial direct compliance costs on tribal governments, nor preempt
tribal law. EPA is approving the Tribe's 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 approval of the TIP. This approval
makes the TIP federally enforceable.
EPA worked and consulted with officials of the Tribe early in the
process of developing these regulations. During the TAS eligibility
process, the Tribe and EPA worked together to ensure that the
appropriate information was submitted to EPA. The Tribe and EPA also
worked together throughout the process of development and Tribal
adoption of the TIP. The Tribe and EPA also entered into a criminal
enforcement Memorandum of Agreement (MOA) during the TAS process, per
40 CFR 49.8.
This action 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 action approves Tribal rules implementing a TIP over areas within
the exterior boundaries of the Tribe's Reservation, and does not alter
the relationship or the distribution of power and responsibilities
established in the CAA.
Executive Order 12898 establishes Federal executive policy on
environmental justice.\17\ 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. EPA's objective in approving the TIP is to support the
Tribe's efforts to protect the communities on the Reservation, where
open burning operations and seasonal wildfires have been shown to
contribute to exceedances of the particulate matter NAAQS. The impacts
of this final rule are expected to be beneficial, rather than adverse,
and its benefits are expected to accrue to communities on the
Reservation.
---------------------------------------------------------------------------
\17\ 59 FR 7629 (February 16, 1994).
---------------------------------------------------------------------------
In reviewing TIP submissions, EPA's role is to approve an eligible
tribe's submission, provided that it meets the criteria of the CAA. In
this context, in the absence of a prior existing requirement for the
tribe to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a TIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a TIP
submission, to use VCS in place of a TIP provision that otherwise
satisfies the requirements of the CAA. Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (15 U.S.C. 272) do not apply. This 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.). This action 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.
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 the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action 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 rule 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).
[[Page 7722]]
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 11, 2022. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements (see section 307(b)(2)).
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.
Dated: February 4, 2022.
KC Becker,
Regional Administrator, Region 8.
Part 49 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT
0
1. The authority citation for part 49 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart K--Implementation Plans for Tribes--Region VIII
0
2. Add an undesignated center heading and Sec. 49.4200 to read as
follows:
Implementation Plan for the Northern Cheyenne Tribe
Sec. 49.4200 Identification of plan.
(a) Purpose and scope. This section contains the approved
implementation plan for the Northern Cheyenne Tribe, submitted to EPA
on September 25, 2017. The plan consists of programs and procedures
that cover general and emergency authorities, ambient air quality
standards, permitting requirements for open burning, general
prohibitory rules, open burning limitations, enforcement authorities,
and procedures for administrative appeals and judicial review in Tribal
court.
(b) Incorporation by reference. (1) Material listed in paragraph
(c) of this section was approved for incorporation by reference by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. Material is incorporated as it exists on the date of the
approval, and notice of any change in the material will be published in
the Federal Register.
(2) EPA Region 8 certifies that the rules/regulations provided by
EPA in the TIP compilation at the addresses in paragraph (b)(3) of this
section are an exact duplicate of the officially promulgated tribal
rules/regulations which have been approved as part of the Tribal
Implementation Plan.
(3) Copies of the materials incorporated by reference may be
inspected at the Region 8 Office of EPA at 1595 Wynkoop Street, Denver,
CO 80202 or call 303-312-6002; the U.S. Environmental Protection
Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket and
Information Center, MC 2822T, 1200 Pennsylvania Avenue NW, Washington,
DC 20460 or call 202-566-1742; and the National Archives and Records
Administration. For information on the availability of this material at
NARA, email [email protected], or go to: https://www.archives.gov/federal-register/cfr/ibr-locations.html. Copies of the Northern
Cheyenne TIP regulations we have approved are also available at https://www.epa.gov/region8/air/sip.html.
(c) EPA-approved regulations.
Table 1 to Paragraph (c)
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Tribal citation Title/subject Tribal effective date EPA approval date Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Northern Cheyenne Tribe, Northern Entirety................. December 20, 2016........... February 10, 2022........... The Tribal effective date
Cheyenne Clean Air Act Tribal is based on the date the
Implementation Plan. Bureau of Indian Affairs
(BIA) Superintendent of
the Northern Cheyenne
Agency approved the
Tribe's Ordinance No. DOI-
008 (2017) adopting the
Northern Cheyenne Clean
Air Act.
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[FR Doc. 2022-02724 Filed 2-9-22; 8:45 am]
BILLING CODE 6560-50-P
