
[Federal Register Volume 78, Number 1 (Wednesday, January 2, 2013)]
[Proposed Rules]
[Pages 51-59]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31537]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2012-0936; FRL-9767-4]


Designation of Areas for Air Quality Planning Purposes; 
California; Morongo Band of Mission Indians

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to correct an error in a previous rulemaking 
that revised the boundaries between nonattainment areas in Southern 
California established under the Clean Air Act for the purposes of 
addressing the revoked national ambient air quality standard for one-
hour ozone. EPA is also proposing to revise the boundaries of certain 
Southern California air quality planning areas to designate the Indian 
country of the Morongo Band of Mission Indians, California (Morongo 
Reservation) as a separate air quality planning area for the one-hour 
and 1997 eight-hour ozone standards.

DATES: Written comments must be received on or before February 1, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2012-0936, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: israels.ken@epa.gov.
    3. Fax: 415-947-3579.
    4. Mail or deliver: Ken Israels (Mailcode AIR-8), U.S. 
Environmental Protection Agency, Region IX, 75 Hawthorne Street, San 
Francisco, CA 94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov, including any personal information provided, 
unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through the 
http://www.regulations.gov or email; http://www.regulations.gov is an 
anonymous access system, and EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send email directly to EPA, your email address will be automatically 
captured and included as part of the public comment. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed 
directly below.

FOR FURTHER INFORMATION CONTACT: Ken Israels, Grants and Program 
Integration Office (AIR-8), U.S. Environmental Protection Agency, 
Region IX, (415) 947-4102, israels.ken@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' ``our,'' and ``Agency'' refer to EPA.

Table of Contents

I. Background
    A. Banning Pass and the Morongo Band of Mission Indians
    B. National Ambient Air Quality Standards
    C. Area Designations and Classifications
II. Proposed Action
    A. Legal Authority
    B. Proposed Correction to 2003 Action
    C. Proposed Boundary Redesignation of the Morongo Reservation as 
a Separate Nonattainment Area for the One-Hour Ozone and Eight-Hour 
Ozone Standards
III. Summary of Proposed Action and Request for Public Comment

[[Page 52]]

IV. Statutory and Executive Order Reviews

I. Background

A. Banning Pass and the Morongo Band of Mission Indians

    Connecting the South Coast Air Basin to the Coachella Valley, the 
Banning Pass (also known as the San Gorgonio Pass) is one of the three 
major routes by which air pollutants are transported out of the Los 
Angeles metropolitan area (which lies within the South Coast Air 
Basin). Banning Pass runs in an east-west direction for about 15 miles 
and is about 5 miles wide. The pass starts west of Beaumont, California 
at an elevation of about 2,200 feet and reaches a maximum elevation of 
around 2,600 feet in the city of Beaumont, then drops to an elevation 
of near 1,400 feet between Cabazon and White Water. The San Bernardino 
Mountains are on the north side of the pass and the San Jacinto 
Mountains are on the south side. The San Bernardino Mountains reach a 
maximum elevation of approximately 11,500 feet at the top of San 
Gorgonio Mountain and the San Jacinto Mountains reach a maximum 
elevation of approximately 10,800 feet at Mt. San Jacinto.
    The Morongo Band of Mission Indians, California (``Morongo Tribe'' 
or ``Tribe'') is a federally-recognized Indian tribe whose Indian 
country \1\ (``Morongo Reservation'' or ``Reservation'') lies within 
the Banning Pass. The Morongo Reservation covers approximately 35,000 
acres and is home to approximately 1,500 full-time residents.\2\ The 
Morongo Reservation is rural, and most of the current land use is 
residential or agricultural. The Morongo Reservation also hosts a hotel 
and casino, among other enterprises.
---------------------------------------------------------------------------

    \1\ ``Indian country'' as defined at 18 U.S.C. 1151 refers to: 
``(a) All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and, including rights-of-way running through 
the reservation, (b) all dependent Indian communities within the 
borders of the United States whether within the original or 
subsequently acquired territory thereof, and whether within or 
without the limits of a state, and (c) all Indian allotments, the 
Indian titles to which have not been extinguished, including rights-
of-way running through the same.'' The Morongo Tribe is the only 
Tribe that has Indian country in the portion of the Banning Pass at 
issue in this rulemaking.
    \2\ See EPA's 2008 eight-hour ozone standard designations 
Technical Support Document (TSD) found at http://www.epa.gov/groundlevelozone/designations/2008standards/documents/R9_CA_TSD_FINAL.pdf.
---------------------------------------------------------------------------

    The eastern edge of the Morongo Reservation abuts the current 
boundary between the South Coast Air Basin and Southeast Desert/
Coachella Valley air planning areas. Most of the Morongo Reservation is 
located north of Interstate 10, just east of the City of Banning, but 
some of the Reservation is located south of Interstate 10 as well.

B. National Ambient Air Quality Standards

    The Clean Air Act (CAA or ``Act'') requires EPA to establish a 
National Ambient Air Quality Standard (NAAQS or ``standard'') for 
pollutants that ``may reasonably be anticipated to endanger public 
health and welfare'' and to develop a primary and secondary standard 
for each NAAQS. The primary standard is designed to protect human 
health with an adequate margin of safety and the secondary standard is 
designed to protect public welfare and the environment. EPA has set 
NAAQS for six common air pollutants, referred to as criteria 
pollutants: Ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide, 
particulate matter, and lead.
    In 1979, EPA promulgated the first ozone \3\ standard of 0.12 parts 
per million (ppm), averaged over a one-hour period (``one-hour ozone 
standard''), to replace an earlier photochemical oxidant standard. In 
1997, EPA revised the ozone standard to 0.08 ppm, eight-hour average 
(``1997 eight-hour ozone standard''), and then, in 2008, lowered the 
eight-hour ozone standard to 0.075 ppm (``2008 ozone standard''). 
Today's proposed action relates only to the designations and 
classifications for the one-hour ozone and 1997 eight-hour ozone 
standards, discussed below, but relies on EPA's analysis and rationale 
for the Agency's recent designations for the 2008 ozone standard.
---------------------------------------------------------------------------

    \3\ Ground-level ozone is a gas that is formed by the reaction 
of volatile organic compounds (VOC) and oxides of nitrogen 
(NOX) in the atmosphere in the presence of sunlight. 
These precursor emissions are emitted by many types of pollution 
sources, including power plants and industrial emissions sources, 
on-road and off-road motor vehicles and engines, and smaller 
sources, collectively referred to as area sources.
---------------------------------------------------------------------------

C. Area Designations and Classifications

    Areas of the country were originally designated as attainment, 
nonattainment, or unclassifiable following enactment of the 1977 
Amendments to the CAA. See 43 FR 8962 (March 3, 1978). These 
designations were generally based on monitored air quality values 
compared to the applicable standard. Under the 1990 Amendments to the 
CAA, ozone nonattainment areas were further classified as ``Marginal,'' 
``Moderate,'' ``Serious,'' ``Severe'' or ``Extreme'' depending upon the 
severity of the ozone problem. Area designations and classifications 
are codified in 40 CFR part 81; area designations and classifications 
for California are codified at 40 CFR 81.305.
    EPA has historically designated areas in Southern California by 
referencing air basins, including the South Coast Air Basin \4\ and the 
Southeast Desert Air Basin. More recently, the EPA has recognized 
California's division of the former Southeast Desert Air Basin into the 
Mojave Desert Air Basin and the Salton Sea Air Basin. The relevant 
portion of the Southeast Desert Air Basin (and Salton Sea Air Basin) 
for the purposes of this proposed action is Coachella Valley, which 
covers roughly the middle third of Riverside County, i.e., east of the 
South Coast Air Basin and west of the Little San Bernardino Mountains.
---------------------------------------------------------------------------

    \4\ The South Coast includes Orange County, the southwestern 
two-thirds of Los Angeles County, southwestern San Bernardino 
County, and western Riverside County (see 40 CFR 81.305).
---------------------------------------------------------------------------

    Historically, the Morongo Reservation was included in the Coachella 
Valley portion of the Southeast Desert Air Basin and was designated 
accordingly for the various standards. In 2002, the State of California 
requested that EPA revise the boundaries of the South Coast Air Basin 
and the Southeast Desert Air Basin to remove the Banning Pass area from 
the Coachella Valley portion of the Southeast Desert Air Basin and 
include it in the South Coast Air Basin. See 68 FR 57820 (October 7, 
2003).\5\ Specifically, California sought to establish a new boundary 
approximately 18 miles east of the then-established boundary between 
the South Coast Air Basin and the Coachella Valley portion of the 
Southeast Desert Air Basin. The boundary between the two basins was to 
be moved from the range line common to Range 2 West and Range 1 West to 
the range line common to Range 2 East and Range 3 East (San Bernardino 
Base and

[[Page 53]]

Meridian).\6\ On October 7, 2003, EPA approved California's boundary 
change request (68 FR 57820).
---------------------------------------------------------------------------

    \5\ California also requested two other specific boundary 
changes: (1) To move the eastern boundary of the Coachella Valley 
portion of the Southeast Desert ozone nonattainment area further 
east to match the boundaries of the Coachella Valley PM-10 
nonattainment area, and (2) to correct an error in the eastern 
boundary of the San Bernardino County portion of the South Coast Air 
Basin with respect to carbon monoxide. Unlike the boundary change to 
enlarge the South Coast to include the entire Banning Pass area, the 
change in the eastern boundary of the Coachella Valley portion of 
the Southeast Desert ozone nonattainment area did not affect Indian 
country and would not be affected by today's proposed action. The 
approval of the State's request to correct the carbon monoxide 
boundary simply fixed a typographical error and thereby removed from 
the South Coast carbon monoxide nonattainment area a portion of San 
Bernardino County that neither EPA nor California intended to be 
included. See 68 FR 48848, at 48850 (August 15, 2003). EPA's 
correction of the carbon monoxide boundary in San Bernardino County 
would also be unaffected by today's proposed action.
    \6\ For a detailed map of the area, please see the technical 
support document (TSD) for this proposed rulemaking available in the 
docket for this action, EPA-R09-OAR-2012-0936.
---------------------------------------------------------------------------

    With respect to the one-hour ozone standard, EPA's 2003 action had 
the effect of moving the Morongo Reservation from the Coachella Valley 
portion of the ``Southeast Desert Modified AQMA Area'' (``Southeast 
Desert'') to the South Coast Air Basin and changing the designations 
and classifications accordingly. Specifically, EPA's 2003 action had 
the effect of changing the ozone nonattainment area classification for 
the Banning Pass area, including the Morongo Reservation, from 
``Severe-17'' to ``Extreme''.\7\
---------------------------------------------------------------------------

    \7\ For carbon monoxide, EPA's action had the effect of changing 
the designation of the Banning Pass area from ``unclassifiable/
attainment'' to ``Serious'' nonattainment. With respect to 
particulate matter with an aerodynamic diameter less than or equal 
to a nominal 10 micrometers (``PM10''), the action did 
not change the designation or classification of the Banning Pass 
because both the South Coast Air Basin and Coachella Valley are 
``Serious'' nonattainment areas for that pollutant. Both the South 
Coast and Coachella Valley are designated as unclassifiable or 
attainment for the nitrogen dioxide and sulfur dioxide standards, 
but, for nitrogen dioxide, the South Coast Air Basin is a former 
nonattainment area for which a maintenance plan has been approved. 
See 63 FR 39747 (July 24, 1998). Today's proposed action relates 
only to the designations and classifications for the one-hour ozone 
and 1997 eight-hour ozone standards.
---------------------------------------------------------------------------

    In 2004, EPA promulgated area designations and classifications for 
the 1997 eight-hour ozone standard. Among the California areas, EPA 
designated the ``Los Angeles-South Coast Air Basin, CA,'' the boundary 
of which coincided with the boundary for the one-hour ozone standard, 
as amended in 2003 to include the entire Banning Pass, including the 
Morongo Reservation, as a ``Severe-17'' nonattainment area. See 69 FR 
23858 (April 30, 2004). In EPA's 2004 final rule, the Agency designated 
``Riverside Co. (Coachella Valley), CA'' (``Coachella Valley'') as a 
``Serious'' nonattainment area. In 2007, the State of California 
requested that EPA reclassify the South Coast nonattainment area from 
``Severe-17'' to ``Extreme'' and the Coachella Valley nonattainment 
area from ``Serious'' to ``Severe-15'' for the 1997 eight-hour ozone 
standard.
    In response to EPA's 2003 boundary change action and California's 
2007 reclassification request, the Morongo Tribe requested that EPA 
create a separate nonattainment area for the Morongo Reservation or, 
alternatively, move the western boundary of the Coachella Valley area 
westward to include the Morongo Reservation. See letter from Robert 
Martin, Chairman, Morongo Band of Mission Indians, to Deborah Jordan, 
Director, Air Division, EPA Region IX, dated May 29, 2009.
    In 2009, in response to California's 2007 reclassification request, 
EPA proposed that all Indian country in the South Coast be reclassified 
in keeping with the classification of non-Indian country State lands to 
``Extreme'' for the 1997 eight-hour ozone standard. See 43 FR 43654 
(August 27, 2009). In 2010, EPA took final action granting the request 
by California to reclassify the South Coast Air Basin from ``Severe-
17'' to ``Extreme'' for the 1997 eight-hour ozone standard, and to 
reclassify all Indian country, except that pertaining to the Morongo 
Tribe and the Pechanga Tribe, in keeping with the reclassification of 
non-Indian country State lands to ``Extreme.'' With respect to the 
Morongo Tribe and the Pechanga Tribe, EPA deferred reclassification 
pending EPA's final decisions on their previously-submitted boundary 
change requests. See 75 FR 24409 (May 5, 2010). In EPA's 2010 final 
rule, the Agency also granted the request to reclassify the Coachella 
Valley nonattainment area to ``Severe-15.''
    Today's proposed action would correct EPA's 2003 action to the 
extent that the action relates to the designations and classifications 
of the Morongo Reservation for the one-hour ozone standard and would 
establish a separate one-hour ozone nonattainment area for the 
Reservation. Today's proposed action would also grant the Tribe's 
request to revise the boundary designation and to designate the Morongo 
Reservation as a separate nonattainment area for the 1997 eight-hour 
ozone standard.\8\
---------------------------------------------------------------------------

    \8\ If we finalize our proposed action to revise the boundaries 
of the South Coast to designate the Morongo Reservation as a 
separate nonattainment area for the 1997 eight-hour ozone standard, 
EPA will withdraw our proposed rule to reclassify Indian country in 
the South Coast to ``Extreme'' for the 1997 eight-hour ozone 
standard (74 FR 43654, August 27, 2009) to the extent that the 2009 
proposed rule relates to the Morongo Reservation.
---------------------------------------------------------------------------

    Today's proposed action would not affect the current designations 
and classifications of the Morongo Reservation for any of the other 
standards. Today's proposed action would also not affect the 
designations and classifications for any pollutant with respect to 
State lands.

II. Proposed Action

A. Legal Authority

    The relevant statutory provisions for this proposed action are CAA 
section 110(k)(6), which is EPA's error correction authority, and CAA 
sections 107(d)(3), 301(a) and 301(d), which are EPA's authority to 
redesignate Indian country areas under these circumstances.
    Section 110(k)(6) of the CAA provides: ``Whenever the Administrator 
determines that the Administrator's action approving, disapproving, or 
promulgating any plan or plan revision (or part thereof), area 
designation, redesignation, classification, or reclassification was in 
error, the Administrator may in the same manner as the approval, 
disapproval, or promulgation revise such action as appropriate without 
requiring any further submission from the State. Such determination and 
the basis thereof shall be provided to the State and public.'' We 
interpret this provision to authorize the Agency to make corrections to 
a promulgated regulation when it is shown to our satisfaction that (1) 
we clearly erred in failing to consider or inappropriately considering 
information made available to EPA at the time of the promulgation, or 
the information made available at the time of promulgation is 
subsequently demonstrated to have been clearly inadequate, and (2) 
other information persuasively supports a change in the regulation. See 
57 FR 56762, at 56763 (November 30, 1992).
    Sections 107(d)(3)(A)-(C) provide that EPA may initiate the 
redesignation process ``on the basis of air quality data, planning and 
control considerations, or any other air quality-related considerations 
the Administrator deems appropriate,'' and ``promulgate the 
redesignation, if any, of the area or portion thereof.'' CAA section 
107(d)(3) does not refer to Indian country, but consistent with EPA's 
discretionary authority in CAA sections 301(a) and 301(d)(4) to 
directly administer CAA programs, and protect air quality in Indian 
country through federal implementation, EPA is authorized to directly 
administer sections 107(d)(3)(A)-(C) and redesignate Indian country 
areas.\9\
---------------------------------------------------------------------------

    \9\ Revisions of designations are referred to as 
``redesignations.'' Boundary changes revise an area's designation 
and, as such, represent one type of redesignation. As a general 
matter, EPA is no longer acting to redesignate areas with respect to 
the revoked one-hour ozone standard. However, in this instance, EPA 
is proposing to revise the designation of an air quality planning 
area in concert with a proposal to correct a clear error that 
occurred with respect to Indian country prior to revocation of the 
one-hour ozone standard. As indicated in this document, EPA believes 
that correction of this error is justified by the specific 
jurisdictional context and the on-going regulatory impacts on the 
Morongo Tribe arising from the error.

---------------------------------------------------------------------------

[[Page 54]]

B. Proposed Correction to 2003 Action

    We have reviewed the materials submitted by the State of California 
in connection with the State's 2002 request to enlarge the South Coast 
Air Basin to include the Banning Pass area, thereby removing the area 
from the Southeast Desert. We have also reviewed EPA's rationale for 
approving the State's request. On the basis of that review, and for 
reasons given below, EPA has concluded that while EPA's action to 
approve California's request was not erroneous with respect to state 
lands, it was erroneous with respect to the Morongo Reservation and 
that we have sufficient justification to correct the error at this 
time.
    First, a review of the items listed in EPA's administrative record 
for EPA's proposed (68 FR 48848, August 15, 2003) and final (68 FR 
57820, October 7, 2003) rules approving California's boundary change 
request reveals no reference to, or map illustrating the location of, 
the Morongo Reservation.
    Second, from review of the record, it is clear that EPA understood 
its action as one in which the Agency was taking action on a State 
request under CAA section 107(d)(3)(D). See, e.g., the proposed rule at 
48850 (``* * * we are proposing to fully approve [the requests] under 
CAA section 107(d)(3)(D).''). Section 107(d)(3)(D) provides: ``The 
Governor of any State may, on the Governor's own motion, submit to the 
Administrator a revised designation of any area or portion thereof 
within the State.'' Typically, however, states are not approved to 
administer programs under the CAA in Indian country, and California has 
not been approved by EPA to administer any CAA programs in Indian 
country. CAA actions in Indian country would thus generally be taken 
either by EPA, or by an eligible Indian tribe itself under an EPA-
approved program. In this case, the Morongo Tribe has not applied under 
CAA section 301(d) for treatment-in-a-similar-manner-as-a-state (TAS) 
for purposes of designations and redesignations under section 107(d) 
and does not implement any relevant EPA-approved CAA regulatory 
program, nor has the tribe developed a tribal implementation plan 
(TIP).\10\ In these circumstances, EPA is the appropriate entity to 
administer relevant CAA programs in Indian country.
---------------------------------------------------------------------------

    \10\ In addition, the CAA does not require Indian tribes to 
develop and seek approval of air programs, and pursuant to our 
authority in CAA section 301(d), EPA has interpreted relevant CAA 
requirements for submission of air programs as not applying to 
tribes. See 40 CFR 49.4.
---------------------------------------------------------------------------

    Thus, with respect to the Indian country located within an area 
subject to a State boundary change request, EPA is the appropriate 
entity to initiate and promulgate the redesignation, and EPA could do 
so under CAA sections 107(d)(3)(A)-(C) and sections 301(a) and 
301(d)(4), as discussed above in subsection II.A (``Legal Authority''). 
While EPA thus had authority to change the boundary of the South Coast 
Air Basin with respect to Indian country, it is apparent from the 
proposed and final rules in 2003 that EPA did not recognize that it was 
acting under that authority or appropriately consider the effect of the 
action on Indian country lands. EPA recognized only that the Agency was 
acting on a State request under section 107(d)(3)(D) and reviewed the 
request accordingly. As noted previously, states are not approved to 
administer CAA programs in Indian country.\11\
---------------------------------------------------------------------------

    \11\ EPA is not excluding the possibility that Tribes can agree 
with State requests in certain circumstances, nor are we suggesting 
that we would undo actions we took just because we did not 
explicitly identify Indian country land that was included with the 
State land.
---------------------------------------------------------------------------

    If EPA's actions had more explicitly addressed the fact that the 
State's request affected tribal lands, and also had expressly 
considered the Tribe's position with respect to the State's request to 
revise the boundary in relation to Indian country, EPA might well have 
relied upon the same criteria cited in the proposed rule. The criteria, 
set forth in section 107(d)(3)(A) include ``air quality data, planning 
and control considerations, or any other air quality-related 
considerations the Administrator deems appropriate''. The evaluation of 
``planning and control considerations'' for Indian country, however, 
differs from that for State lands. In this instance, with respect to 
State lands, the South Coast Air Quality Management District (SCAQMD) 
has planning and permitting responsibility over the entire Banning Pass 
area, as well as the South Coast, and Coachella Valley, and administers 
an EPA-approved (nonattainment) New Source Review (NSR) program under 
which permits may be issued to new or modified stationary sources.
    In contrast, EPA currently administers relevant CAA programs on the 
Morongo Reservation. Until recently, EPA had not established a NSR 
program applicable to the Reservation. This means that a higher ozone 
classification, and simultaneous lowering (i.e., more stringent) of NSR 
major source thresholds, would have presented a greater challenge for 
new and modified stationary sources at the Morongo Reservation than for 
similar sources on State lands in the Banning Pass subject to SCAQMD's 
EPA-approved NSR program. (EPA's NSR rule for Indian country, including 
the Morongo Reservation, was published on July 1, 2011 at 76 FR 38748 
and took effect on August 30, 2011.)
    Moreover, state law and SCAQMD rules restrict the use of emission 
reduction credits generated under SCAQMD rules by major new or modified 
sources located within the South Coast Air Basin, but outside the scope 
of the SCAQMD program. See SCAQMD Rule 1309 (``Emission Reduction 
Credits''), subsection (h)(3); and California Health & Safety Code 
section 40709.6 (``Offset by reductions credited to stationary sources 
located in another district''). Given the few emissions sources on the 
Morongo Reservation, reliance upon emissions reductions by sources off 
the Reservation to offset emissions from any major new or modified 
sources on the Reservation is inevitable and because of the limitations 
in state law and SCAQMD rules, the availability of such emissions 
reductions is uncertain.
    Therefore, as described above, in the specific circumstances 
presented here, and based on our review of the record from the 2003 
rulemaking, we conclude that EPA erred in including the Morongo 
Reservation in the 2003 boundary change approval. Because Indian 
country was subsumed into a larger area for which the State requested a 
boundary revision, EPA should not have acted solely with respect to the 
State's request under section 107(d)(3)(D), but should have fulfilled 
its responsibilities pursuant to section 107(d)(3)(A)-(C), and sections 
301(a) and 301(d) and considered the relevant criteria from the 
perspective of Indian country.
    Furthermore, we recognize that the boundary change has had adverse 
regulatory impacts on the Morongo Tribe, particularly by lowering the 
one-hour ozone NSR major source threshold from 25 tons per year to 10 
tons per year. This adverse regulatory impact continues to affect the 
Tribe, even though the one-hour ozone standard was revoked, effective 
on June 15, 2005 [i.e., one year from the designations for the eight-
hour ozone standard--see 40 CFR 50.9(b)].
    With respect to the one-hour ozone standard and the related NSR 
major source thresholds, the Tribe continues to be affected because, in 
the wake of a decision by the U.S. Court of Appeals for the DC Circuit 
challenging EPA's Phase I Implementation Rule for the

[[Page 55]]

eight-hour ozone standard,\12\ the NSR requirements that had applied by 
virtue of the area's classification as of June 15, 2004 continue to 
apply under anti-backsliding requirements established by EPA for the 
transition from the one-hour ozone standard to the eight-hour ozone 
standard. See 77 FR 28424 (May 14, 2012) for information concerning the 
NSR requirement and the anti-backsliding provisions for the former one-
hour ozone standard. Thus, notwithstanding the revocation of the one-
hour ozone standard, the applicable major source NSR thresholds for the 
Morongo Reservation continue to be 10 tons per year, based on the 
inclusion of the Reservation in the South Coast because the South Coast 
was classified as ``Extreme'' for the one-hour ozone standard on June 
15, 2004.
---------------------------------------------------------------------------

    \12\ South Coast Air Quality Management District v. EPA, 472 
F.3d 882 (DC Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying that 
the vacatur was limited to the issues on which the court granted the 
petitions for review).
---------------------------------------------------------------------------

    In sum, given the on-going effects that flow from our 2003 error, 
we are persuaded to propose action now to correct the error in our 2003 
boundary change action as it relates to the Morongo Reservation.
    In considering how to correct the error in our 2003 boundary change 
action, we have concluded from our review of the administrative record 
for that rulemaking that EPA did not commit an error with respect to 
State lands. Our proposed action addresses only the specific regulatory 
impact on the Morongo Reservation, and otherwise leaves the 2003 action 
unchanged. Thus, we propose to rescind the 2003 boundary change rule 
only with respect to the Morongo Reservation for the revoked one-hour 
ozone standard.
    Revocation of the 2003 boundary change rule with respect to the 
Morongo Reservation would return it to its status before the 2003 
boundary change, when the Reservation was included in the Southeast 
Desert one-hour ozone nonattainment area. (see section I.C. herein). In 
this action, however, EPA is taking the additional step of proposing to 
revise the boundaries of the Southeast Desert to designate the Morongo 
Reservation as a separate one-hour ozone nonattainment area. If both 
proposed actions are finalized, the Morongo Reservation would resume 
the one-hour ozone nonattainment classification it previously shared 
with the Southeast Desert (i.e., ``Severe-17'').
    We are not proposing to rescind the 2003 action with respect to 
area designations for any of the other standards, because the Tribe has 
not faced any significant adverse regulatory impacts from the boundary 
change with respect to those pollutants. Our proposed action would not 
affect any area designations or classifications with respect to State 
lands.

C. Proposed Boundary Redesignation of the Morongo Reservation as a 
Separate Nonattainment Area for the One-Hour Ozone and 1997 Eight-Hour 
Ozone Standards

    As noted previously, on May 29, 2009, the Morongo Tribe submitted a 
request to EPA for a boundary change to create a separate ozone 
nonattainment area, or in the alternative, to move the western boundary 
of the Coachella Valley nonattainment area westward to include the 
Morongo Reservation. As noted above, we are authorized to redesignate 
Indian country areas under these circumstances under CAA sections 
107(d)(3)(A)-(C), 301(a) and 301(d).
    Recently, EPA issued a policy (referred to herein as the ``Tribal 
Designation Policy'') for establishing separate air quality 
designations for areas of Indian country.\13\ Where EPA receives a 
request for a boundary change from a tribe seeking to have its Indian 
country designated as a separate area, the policy indicates that EPA 
will make decisions regarding these requests on a case-by-case basis 
after consultation with the tribe. As a matter of policy, EPA believes 
that it is important for tribes to submit the following information 
when requesting a boundary change: A formal request from an authorized 
tribal official; documentation of Indian country boundaries to which 
the air quality designation request applies; concurrence with EPA's 
intent to include the identified tribal lands in the 40 CFR part 81 
table should EPA separately designate the area; and a multi-factor 
analysis to support the request. See Tribal Designation Policy, pages 3 
and 4.
---------------------------------------------------------------------------

    \13\ See memorandum from Stephen D. Page, Director, EPA Office 
of Air Quality Planning and Standards, to EPA Regional Air 
Directors, Regions I-X, dated December 20, 2011, titled ``Policy for 
Establishing Separate Air Quality Designations for Areas of Indian 
Country.''
---------------------------------------------------------------------------

    The Tribal Designation Policy states that EPA intends to make 
decisions regarding a tribe's request for a separate air quality 
designation after all necessary consultation with the tribe and, as 
appropriate, with the involvement of other affected entities, and after 
evaluating whether there is sufficient information to support such a 
designation. Boundary change requests for a separate air quality 
designation should include an analysis of a number of factors (referred 
to as a ``multi-factor analysis,'') including air quality data, 
emissions-related data (including source emissions data, traffic and 
commuting patterns, population density and degree of urbanization), 
meteorology, geography/topography, and jurisdictional boundaries.\14\ 
EPA believes these factors are appropriate to consider in acting under 
CAA sections 107(d)(3)(A)-(C), 301(a) and 301(d).
---------------------------------------------------------------------------

    \14\ The Tribal Designation Policy also states that, in addition 
to information related to the identified factors, tribes may submit 
any other information that they believe is important for EPA to 
consider.
---------------------------------------------------------------------------

    On May 29, 2009, the Chairman of the Morongo Tribe submitted the 
Tribe's request for a separate ozone nonattainment area that included a 
multi-factor analysis addressing air quality data, emissions data, 
meteorology, geography/topography, and jurisdictional boundaries. As 
such, although submitted prior to release of the Tribal Designation 
Policy, the Morongo Tribe's request for a boundary change to create a 
separate ozone nonattainment area, in conjunction with EPA's additional 
analysis found in the technical support document for this proposed 
action, represents the type of formal, official request and supporting 
information called for in the policy.\15\
---------------------------------------------------------------------------

    \15\ In addition, EPA has consulted with the tribe several times 
about this matter.
---------------------------------------------------------------------------

    EPA recently reviewed the Morongo Tribe's multi-factor analysis in 
connection with designating areas of the country for the 2008 ozone 
standard. Upon review of the Tribe's analysis and EPA's own 
supplemental analysis in light of the Tribal Designation Policy, EPA 
designated the Morongo Reservation as a separate nonattainment area for 
the 2008 ozone standard. See 77 FR 30088 (May 21, 2012). We believe 
that EPA's analysis and recent decision to designate the Morongo 
Reservation as a separate nonattainment area for the 2008 ozone 
standard is directly relevant to our consideration of whether to revise 
the boundaries of existing air quality planning areas to designate the 
Morongo Reservation as a separate nonattainment area for the one-hour 
and 1997 eight-hour ozone standards. We recognize that the three 
standards address the same pollutant, and thus share multi-factor 
analyses and considerations.\16\
---------------------------------------------------------------------------

    \16\ EPA also notes that in using many of the same factors found 
in the 2008 ozone designations process, we are using factors that 
represent the most current information regarding meteorology, air 
quality, etc. in the area and therefore we believe serve the 
purposes of being representative for the previously established 
ozone standards.
---------------------------------------------------------------------------

    EPA is therefore adopting the analysis and rationale previously 
relied upon by EPA in establishing the Morongo nonattainment area for 
the 2008 ozone

[[Page 56]]

standard. Key findings from the 2008 ozone designations decision that 
we are adopting for this proposed action include: \17\
---------------------------------------------------------------------------

    \17\ See the TSD associated with this proposal for our detailed 
analysis of each of the factors. Our TSD also shows that violations 
continue for the one-hour standard and that the transitional 
characteristic observed for the eight-hour ozone data also applies 
to the one-hour ozone data.
---------------------------------------------------------------------------

     Air quality data: The SCAQMD-run monitor in Banning is 
located within two miles of the Morongo monitor, and data from SCAQMD's 
Banning monitor is appropriate for use as a regulatory monitor and is 
representative of air quality within the Morongo Reservation. Eight-
hour ozone concentrations measured at the SCAQMD-run Banning ozone 
monitor shows continued violations of the 1997 eight-hour ozone 
standard and, reflecting the transitional nature of the Banning Pass 
area, contrast with the higher design values of the South Coast Air 
Basin to the west and lower design values in Southeast Desert to the 
east; \18\
---------------------------------------------------------------------------

    \18\ In performing our analysis, EPA relied on data from the 
following monitoring stations in our air quality system (AQS): 
Redlands (AQS 06-071-4003), Banning (AQS 06-065-
0012), and Palm Springs (AQS 06-065-5001). EPA believes 
that the Banning monitor, given its proximity, is representative of 
the Morongo Indian Country's air quality. EPA also notes that, while 
the Morongo Tribe operates its own monitor, we did not use that data 
for this action.
---------------------------------------------------------------------------

     Emissions data: Sources of air pollutants located on or 
associated with the Morongo Reservation consist of stationary sources 
that generate less than 20 tons per year (tpy) of NOX and 
less than 20 tpy of VOC, and motor vehicles for travel associated with 
the 1,500 residents and visitors to the Morongo Casino Resort. In 
contrast, ozone precursor emissions from the adjacent Los Angeles-South 
Coast Air Basin nonattainment area exceed 400,000 tpy of NOX 
and over 200,000 tpy of VOC, with a total population of approximately 
17 million people.\19\ To the east, ozone precursor emissions from the 
adjacent Riverside County (Coachella Valley, which was originally part 
of the Southeast Desert Air Basin) nonattainment area exceed 50,000 tpy 
of NOX and 28,000 tpy of VOC, with a population of over 2 
million people; \20\
---------------------------------------------------------------------------

    \19\ See page 5 of the Morongo portion of the 2008 eight-hour 
ozone standard TSD found at http://www.epa.gov/groundlevelozone/designations/2008standards/documents/R9_CA_TSD_FINAL.pdf
    \20\ See page 6 of the Morongo portion of the 2008 eight-hour 
ozone standard TSD found at http://www.epa.gov/groundlevelozone/designations/2008standards/documents/R9_CA_TSD_FINAL.pdf
---------------------------------------------------------------------------

     Meteorology: Under most meteorological conditions, air 
from the coastal plain (i.e., South Coast) to the west is funneled 
through Banning Pass to the desert area to the east. As a mountain pass 
area, the meteorology is dissimilar from that of either the coastal 
plain to the west or the desert area to the east. The winds are more 
frequent and stronger, with a more westerly component, than those in 
most of the coastal plain, and the temperatures vary more than in most 
of the coastal plain but not as much as in the desert area to the 
east.\21\ Thus, in some ways, the Banning Pass is transitional between 
the coastal and desert areas; in other ways, as a mountain pass, the 
Banning Pass is simply unlike either area to the west or east;
---------------------------------------------------------------------------

    \21\ Meteorological information for the Morongo Reservation is 
from 2005-2009 Weather and Air Quality Summary, prepared by the 
Morongo Band of Mission Indians, Environmental Protection 
Department, Tribal Air Program, August 2010.
---------------------------------------------------------------------------

     Geography/topography: The topographical characteristics of 
the Banning Pass create very different climatic conditions than found 
in the coastal plain to the west or the desert area to the east, such 
as persistently strong westerly air flow that is compressed and 
channeled by the elevated land mass of the Pass itself and the steep 
mountain peaks to the north and south; and
     Jurisdictional boundaries: Although the Morongo 
Reservation contains stationary and mobile sources of ozone precursors, 
the magnitude of ozone precursor emissions is very small compared to 
emissions from the adjacent Los Angeles-South Coast Air Basin and 
Coachella Valley nonattainment areas. Because the analysis of factors 
does not conclusively indicate that the sources located on the Morongo 
Reservation contribute to nonattainment in the surrounding area, EPA 
believes that consistent with the principles set forth in the Tribal 
Designation Policy, the jurisdictional boundaries factor is especially 
important in the decision-making process for designating the Morongo 
Reservation.
    Air quality data, meteorology and topography indicate that the 
Morongo Reservation experiences transitional conditions characteristic 
of a mountain pass area through which pollutants are channeled from a 
highly urbanized metropolitan nonattainment area to the west to the 
relatively less developed nonattainment area to the east. Considering 
the three factors of air quality data, meteorology, and topography, EPA 
could reasonably include the Morongo Reservation in either the South 
Coast nonattainment area to the west, or the Southeast Desert 
nonattainment area to the east, as EPA has done in the past for the 
one-hour ozone standard and the 1997 eight-hour ozone standard. 
Alternatively, the Agency could establish a separate nonattainment area 
for the Morongo Reservation as it did for the 2008 eight-hour ozone 
standard.\22\
---------------------------------------------------------------------------

    \22\ See 77 FR 30088, dated May 21, 2012.
---------------------------------------------------------------------------

    However, taking into account the minimal amount of emissions 
associated with activities on the Morongo Reservation and corresponding 
minimal contribution to regional ozone violations, we believe that in 
these circumstances it is appropriate to assign particular weight to 
the jurisdictional boundaries factor, and it is consistent with the 
principles for designations of Indian country set forth in the Tribal 
Designation Policy. Moreover, the Tribe has invested in the development 
of its own air program, including operation of weather stations and an 
air monitoring station, and has expressed interest in development of 
its own permitting program. Under the jurisdictional boundaries factor, 
we find that redesignation of the Morongo Reservation as a separate 
ozone nonattainment area for the one-hour ozone and 1997 eight-hour 
ozone standards would be appropriate. Therefore, consistent with the 
designation of the Morongo Reservation for the 2008 ozone standard, we 
propose to revise the boundaries of the Southeast Desert one-hour ozone 
nonattainment area and the boundaries of the South Coast 1997 eight-
hour ozone nonattainment area to designate the Morongo Reservation as a 
separate nonattainment area for the one-hour and 1997 eight-hour ozone 
standards.

III. Summary of Proposed Action and Request for Public Comment

    Under section 110(k)(6) of the CAA, EPA is proposing to correct an 
error in a 2003 final action that revised the boundaries between areas 
in Southern California established under the CAA for the purposes of 
addressing the standard for one-hour ozone. EPA has determined that the 
Agency erred in the 2003 final action to change the boundary of the 
South Coast Air Basin, which enlarged the basin to include all of the 
Banning Pass area. In taking that action, EPA failed to consider the 
presence of Indian country (i.e., the Morongo Reservation) located 
therein. EPA thus failed to consider the status of the Indian country 
under the appropriate statutory and regulatory provisions when it 
evaluated and acted upon the State's boundary change request. EPA 
believes that its error resulted in regulatory consequences for the 
Morongo Tribe that justify making a correction.

[[Page 57]]

    Specifically, EPA is proposing to rescind the 2003 final action, as 
it pertains to the Morongo Reservation for the one-hour ozone standard. 
This proposed action would not affect the designations and 
classifications of State lands.
    Second, under CAA section 107(d)(3), 301(a) and 301(d), we propose 
to revise the boundaries of the Southeast Desert to designate the 
Morongo Reservation as a separate nonattainment area for the one-hour 
ozone standard and to classify the Morongo Reservation as ``Severe-
17,'' i.e., consistent with its prior classification when it was 
included in the Southeast Desert. Third, also under CAA section 
107(d)(3), 301(a) and 301(d), we are proposing to revise the boundaries 
of the South Coast to designate the Morongo Reservation as a separate 
nonattainment area for the 1997 eight-hour ozone standard and to 
classify the Morongo Reservation as ``Severe-17,'' i.e., consistent 
with its original classification when it was included in the South 
Coast.
    We are proposing to redesignate the Morongo Reservation as a 
separate air quality planning area for the one-hour ozone and 1997 
eight-hour ozone standards based on our conclusion that factors such as 
air quality data, meteorology, and topography do not definitively 
support inclusion of the Reservation in either the South Coast or the 
Southeast Desert air quality planning areas, that Morongo Reservation 
emissions sources contribute minimally to regional ozone 
concentrations, and that the jurisdictional boundaries factor should be 
given particular weight under these circumstances.
    If finalized as proposed, the Morongo air quality planning area for 
the one-hour and 1997 eight-hour ozone standards would have the same 
boundaries as the Morongo nonattainment area for the 2008 eight-hour 
ozone standard. Moreover, if finalized as proposed, new or modified 
stationary sources proposed for construction on the Morongo Reservation 
would be subject to the NSR major source thresholds for ``Severe-17'' 
ozone nonattainment areas, rather than the more stringent thresholds 
for ``Extreme'' ozone nonattainment areas.
    EPA is soliciting public comments on the issues discussed in this 
document and will accept comments for the next 30 days. These comments 
will be considered before taking final action.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order. Under Executive Order 
12866 (58 FR 51735, October 4, 1993), this proposed action is not a 
``significant regulatory action'' and therefore is not subject to 
review by the Office of Management and Budget. For this reason, this 
proposed action is also not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001). This proposed 
action would merely correct an error in a previous rulemaking and 
redesignate certain air quality planning area boundaries, and thereby 
reinstate certain CAA designations and corresponding requirements to 
which the affected area had previously been subject.

B. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. Burden means the total time, effort, or financial 
resources expended by persons to generate, maintain, retain, or 
disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information. This proposed rule does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.). An agency may not conduct or sponsor, 
and a person is not required to respond to a collection of information 
unless it displays a currently valid OMB control number. The OMB 
control numbers for EPA's regulations in 40 CFR are listed in 40 CFR 
part 9.

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. After considering the economic 
impacts of today's rule on small entities, I certify that this action 
will not have a significant economic impact on a substantial number of 
small entities. This proposed rule will not impose any direct 
requirements on small entities. EPA is proposing to correct an error in 
a previous rulemaking and redesignate certain air quality planning area 
boundaries, and thereby reinstate certain CAA designations and 
corresponding requirements to which the affected area had previously 
been subject. This proposed action is intended to, among other 
purposes, facilitate and support the Morongo Tribe's efforts to develop 
a tribal air permit program by re-establishing, within the Morongo 
Reservation, the less-stringent New Source Review major source 
thresholds that had applied under the area's

[[Page 58]]

previous ``Severe-17'' classification for the one-hour ozone standard.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements. Today's proposed rule contains no Federal mandates (under 
the regulatory provisions of Title II of the UMRA) for State, local, or 
tribal governments or the private sector. The proposed rule imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector. In any event, EPA has determined that this proposed 
rule does not contain a Federal mandate that may result in expenditures 
of $100 million or more for State, local, and tribal governments, in 
the aggregate, or the private sector in any one year. Thus, today's 
proposed rule is not subject to the requirements of sections 202 and 
205 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' This 
proposed action also does not have Federalism implications because it 
does not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This proposed action would merely correct an error in a 
previous rulemaking and redesignate certain air quality planning area 
boundaries, and thereby reinstate certain CAA designations and 
corresponding requirements to which the affected area had previously 
been subject, and does not alter the relationship or the distribution 
of power and responsibilities established in the Clean Air Act.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, 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.'' ``Policies that have tribal 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
the Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes.'' Under section 5(b) 
of Executive Order 13175, EPA may not issue a regulation that has 
tribal implications, that imposes substantial direct compliance costs, 
and that is not required by statute, unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by tribal governments, or EPA consults with tribal officials 
early in the process of developing the proposed regulation. Under 
section 5(c) of Executive Order 13175, EPA may not issue a regulation 
that has tribal implications and that preempts tribal law, unless the 
Agency consults with tribal officials early in the process of 
developing the proposed regulation.
    EPA has concluded that this action would have tribal implications. 
In 2009, the Morongo Tribe requested that EPA create a separate area 
for the Morongo Reservation in part due to the adverse regulatory 
impacts resulting from the Agency's 2003 boundary change action. EPA 
consulted with representatives of the Morongo Tribe prior to, and 
following, the Tribe's 2009 boundary change request, concerning the 
issues covered herein. In today's proposed action, EPA is responding to 
the Tribe's 2009 boundary change request and has proposed an action 
that would eliminate the adverse regulatory impacts arising from EPA's 
2003 boundary change action. As described herein, we agree with the 
Tribe that the boundary should be corrected to reflect their concerns. 
As proposed, this action will neither impose substantial direct 
compliance costs on tribal governments, nor preempt tribal law. Rather, 
the proposed action would relieve the Tribe of the additional 
requirements that flowed from the boundary change and corresponding 
change in CAA designations and classifications. Thus, the requirements 
of sections 5(b) and 5(c) of the Executive Order do not apply to this 
rule.

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

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This 
proposed rule 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

[[Page 59]]

significant as defined in Executive Order 12866, and because the Agency 
does not have reason to believe the environmental health or safety 
risks addressed by this rule present a disproportionate risk to 
children.

H. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This proposed 
rule does not involve establishment of technical standards, and thus, 
the requirements of section 12(d) of the National Technology Transfer 
and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply to this 
action.

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

    Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed action will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
directly affect the level of protection provided to human health or the 
environment. In this action, EPA is proposing to correct an error in a 
previous rulemaking and redesignate certain air quality planning area 
boundaries, and thereby reinstate certain CAA designations and 
corresponding requirements to which the affected area had previously 
been subject.

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Intergovernmental 
relations, National parks, Ozone, Wilderness areas.

    Dated: December 20, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-31537 Filed 12-31-12; 8:45 am]
BILLING CODE 6560-50-P


